In re L.C.

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NOT DESIGNATED FOR PUBLICATION

No. 120,124

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of L.C.,
A Minor Child.

MEMORANDUM OPINION

Appeal from Douglas District Court; BETHANY J. ROBERTS, judge pro tem. Opinion filed May 3,
2019. Affirmed.

Rachel I. Hockenbarger, of Topeka, for appellant.

Lindsie Ford, legal intern, Kate Duncan Butler, assistant district attorney, and Charles Branson,
district attorney, for appellee.

Before HILL, P.J., BRUNS, J., and BURGESS, S.J.

PER CURIAM: The Douglas County District Court found L.C. to be a child in need
of care (CINC). Mother appeals, claiming that there was insufficient evidence for the
district court to find her minor son, L.C., to be a CINC. We reject Mother's claim that
L.C. was not a CINC and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On June 10, 2018, Mother sent texts to her boyfriend threatening to kill herself and
L.C. Fearing she might act on her statements, Mother's boyfriend contacted law
enforcement. As a result, Mother was taken to Lawrence Memorial Hospital for
evaluation and was then involuntarily committed to Osawatomie State Hospital. L.C.'s
father had not been involved in his care since he was a month old and did not respond to
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attempted contact at four different numbers. L.C. was placed in protective custody of the
State because no parent was available to care for him.

Mother had a care and treatment hearing on the morning of June 13, 2018. The
district court found probable cause that Mother should remain involuntarily committed at
Osawatomie State Hospital.

On June 13, 2018, the State initiated CINC proceedings for L.C. The same day a
hearing was held on temporary custody. Mother appeared by video from Osawatomie
State Hospital. L.C. was ordered to remain in the State's custody and placed in out-of-
home placement.

The adjudication hearing was held in August 2018. The district court allowed
evidence offered by the State regarding Mother's previous contact with the Kansas
Department for Children and Families (DCF) in March 2018 after Mother posted a video
online in which she threatened to kill L.C. Turner Smith, a licensed social worker with
DCF, became involved with Mother at that time after he received a report for emotional
abuse. In the video, Mother is sitting in front of L.C., and L.C. is playing with Mother's
hair and giggling. Mother states: "I'm gonna fucking kill you." The video cuts out with
Mother grabbing at L.C.

Smith talked to Mother about the content of the video. Mother told Smith she did
not believe it was inappropriate for her to talk about murdering L.C., and she frequently
made statements about sacrificing him to the gods. Smith found it troubling that Mother
made statements about murdering L.C., but DCF did not substantiate Mother for
emotional abuse primarily due to L.C.'s age. Smith explained that substantiating
emotional abuse "requires some sort of deterioration of the child, which would be
extremely hard to find at that age."

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Smith testified that his next interaction with Mother occurred when he received the
report that L.C. had been taken into police protective custody in June 2018. Smith met
with Mother's boyfriend, who provided him with some of the text messages. The texts
stated:

 "Me and [L.C.] be dead when you get home"
 "I'm just kill us both"
 "every one will be happy I'll be dead and so will [L.C.]"
 "We won't cost anyone [too] much if we are dead"
 "So I'm do everyone and myself and [L.C.] a favor"
 "I'm kill ya both"
 "I'm kill us both . . . "
 "I'm kill him and myself"
 "I'm sure I can find enough chemicals in this house to do so"
 "I'm be dead so it won't matter"
 "Help isn't something I'll need dead"
 "And I won't cost you anything dead"
 "I'll be dead
 "So will my son"
 "I'm going to kill myself . . . . I won't be breathing when you get home"
 "I'm over being told how much I cost people and how I should just be dead
anyways"
 "I'm going to end it and bet you when you get home my ass is dead"
 "Nope I have rope and it's already around my neck . . ."
 "[L.C.] is just running around"
 "I'll just kill myself like I was told to do"
 "No one wants me around anyways"
 "And I cost you too much"
 "And you could afford shit if I wasn't here"
 "So . . . I'm kill myself."
 "No one but me wants him anyway."

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Smith found the text messages extremely concerning because Mother repeatedly
threatened to kill herself and L.C. Smith testified that he was worried that Mother might
hurt L.C. if she had access to him after being released from involuntary commitment.
Smith also expressed concern about the fact that Mother continued to defend the
statements and indicated that her phone auto filled L.C.'s name into the texts.

Mother testified that she did intend to send the text messages. As with the video,
she claimed she sent the texts threatening L.C. because she wanted attention from her
boyfriend. Mother denied having any intent to harm L.C. Mother testified she has been
receiving treatment for mental health conditions for over 20 years, but she was no longer
taking medication because it made her sick. Mother also claimed she was not taking
medication at the time of the hearing because she had recently been "put on hormones"
and had an appointment for a follow-up medicine evaluation.

At the end of the hearing, the district court adjudicated L.C. to be a CINC based
on the threats to L.C., concerns about Mother's mental health, and Mother's related
hospital stay. The district court found by clear and convincing evidence that at the time of
the filing of the petition, L.C. was without adequate parental control and was without the
care or control necessary for his physical, mental, or emotional health under K.S.A. 2018
Supp. 38-2202(d)(1) and (d)(2). The district judge stated:

"The video and the text messages together do give me pause, and I—when I first
saw the video, I think I understand why DCF sort of gave you the benefit of the doubt. It
does feel kind of like a joke and in the vein of the I'm going to getcha stuff, and so I
understand that. I think the combination of the video with the text messages is what gives
myself and the professionals pause. It's those two things together that make us nervous.
In combination with there was a determination by another judge that at least in that short
time that you needed mental health treatment immediately.
"And so for those reasons I am going to find that [L.C.] is a child in need of care
under [K.S.A. 2018 Supp.] 38-2202(d)(1) and (d)(2) . . . ."
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The district court entered a journal entry reflecting its findings and a case plan
goal of reintegration.

Mother's appeal now brings this matter before us.

Sufficiency of the Evidence That L.C. Was a CINC

Mother claims the district court erred in finding L.C. is a CINC because the
district court focused on the evidence at the time the petition was filed and not at the time
of the hearing. In addition, Mother asserts the State presented insufficient evidence that
L.C. was a CINC and claims the evidence showed that L.C. was well cared for at home.

CINC actions stem from the State's interest in protecting the safety and welfare of
children within its jurisdiction. See K.S.A. 2018 Supp. 38-2201(a) (proceedings under the
Code "deemed to be pursuant to the parental power of the state"); K.S.A. 2018 Supp. 38-
2201(b)(1) ("safety and welfare of a child to be paramount in all proceedings under the
code"); In re L.B., 42 Kan. App. 2d 837, 842, 217 P.3d 1004 (2009). A CINC
adjudication is a begining step in the process and is often followed by attempts to reunify
the child with the parent. K.S.A. 2018 Supp. 38-2251. However, a parent may appeal the
adjudication of his or her child as being in need of care, as Mother has done here. K.S.A.
2018 Supp. 38-2273.

Mother claims the evidence was insufficient to support the decision that L.C. was
a CINC. In considering this issue, we view the evidence in the light favoring the State to
determine whether there was clear and convincing evidence from which a rational fact-
finder could find L.C. a CINC. See In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594
(2008).

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First, we will address Mother's claim that the district court erred by considering
the evidence at the time the CINC petition was filed and not at the time of the hearing.
For support, Mother points to language in In re A.E.S., No. 108,584, 2013 WL 2992733,
at *4 (Kan. App. 2013) (unpublished opinion), in which a panel of this court stated that
the criteria in the CINC statute should be viewed at the time of the hearing, rather than at
the time the petition is filed, for a determination that the child is now in need of care.

K.S.A. 2018 Supp. 38-2202(d) provides that a CINC is "a person less than 18
years of age at the time of filing of the petition or issuance of an ex parte protective
custody order" who meets certain criteria. This court has previously rejected arguments
that the language "'at the time of the filing of the petition'" limited "the temporal scope of
the court's review at an adjudication hearing." See In re B.G., No. 109,513, 2013 WL
4404574, at *5 (Kan. App. 2013) (unpublished opinion).

In this case, the district court looked at the evidence at the time of the filing of the
petition for the CINC determination, and then it considered evidence after the petition
was filed in determining the disposition. In this case, both time periods were relevant to
the CINC determination and the disposition of such a petition. There is no evidence that
the district court erroneously focused solely on the evidence at the time the petition was
filed in making its CINC determination and the proper disposition.

The district court's journal entry and order of adjudication shows that the district
court adjudicated L.C. to be a CINC under two subsections of the statute: (1) K.S.A.
2018 Supp. 38-2202(d)(1), which requires clear and convincing evidence that the child
was "without adequate parental care, control or subsistence and the condition is not due
solely to the lack of financial means of the child's parents or other custodian;" and (2)
K.S.A. 2018 Supp. 38-2202(d)(2), which requires clear and convincing evidence that the
child was "without the care or control necessary for the child's physical, mental, or
emotional health."
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The evidence shows that this child was one year old at the time the CINC petition
was filed. L.C. was in need of constant care and completely depended on those around
him for his physical needs. Mother was the child's primary caregiver, and she was
involuntarily committed to Osawatomie State Hospital and unable to meet L.C.'s daily
needs during her eight-day stay. Mother had threatened to kill L.C. prior to her admission
to the hospital. Mother testified at the hearing that she was still in the process of securing
appointments to evaluate her medical needs and secure the therapy that she needed to
address her mental health needs.

In In re A.M., No. 106,890, 2012 WL 2925660, at *6 (Kan. App. 2012)
(unpublished opinion), a panel of this court reiterated that "a CINC case . . . is focused
entirely on the care and well-being of the [child]." Here, Mother made threats indicating
that she might harm herself and her child on at least two occasions in the months leading
up to the CINC petition. Because of those threats, Mother was involuntarily committed to
a hospital, and L.C. was left "without adequate parental care, control or subsistence" and
"without the care or control necessary for the child's physical, mental, or emotional
health." See K.S.A. 2018 Supp. 38-2202(d)(1) and (2). Despite her threats, the district
court acknowledged that it seemed like L.C. was well cared for and rejected the State's
recommendation of a dual case plan of reintegration and adoption. Instead, the district
court ordered a case plan goal of reintegration with Mother.

A comparison of the facts of this case to the facts of other cases is often not
helpful as CINC cases rely solely on the specific facts in front of the court. In this case, a
child of tender age was left without a caretaker while his Mother was evaluated and
treated for mental health concerns. In addition, Mother made threats to the child's life that
were serious enough that others reported her behavior to DCF and to law enforcement.
Mother admitted to Smith that she frequently made comments about "sacrificing" her
son. Smith reported serious concerns that Mother would harm L.C. if she had access to
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him. At the time of the hearing, Mother was still in the process of securing a therapist to
address what led to those threats.

The fact of the matter is that the facts preceding the filing of a CINC petition, the
facts existing at the time of the filing of the petition, and the facts existing at the time of
the CINC determination are all relevant. Mother has had mental health issues for an
extended period. Mother made threats against L.C. prior to the petition. She was
hospitalized at the time of the filing of the petition for making threats against her son. At
the time of the hearing, Mother had just been released from the state hospital and she had
no mental health support. There was nothing at that time to show that Mother was stable
or that the threatening behavior would not continue. While there was no evidence
presented that Mother had acted on her threatening behavior at the time of the hearing, it
is not required for a child to be harmed before addressing a child that is clearly at risk for
harm. See In re Price, 7 Kan. App. 2d 477, 480-81, 644 P.2d 467 (1982). There was more
than sufficient evidence to find L.C. was a CINC.

Based on the evidence presented in the record at the time of the termination
hearing, the district court could have reasonably found L.C. to be a CINC based on the
standards outlined in K.S.A. 2018 Supp. 38-2202(d)(1) and (2). Under the standard of
review, a reasonable fact-finder could determine it was highly probable, by clear and
convincing evidence, that L.C. was a CINC. Accordingly, we affirm the district court's
adjudication of L.C. to be a CINC.

Affirmed.