In re B.D.Y.

• Decision Date: 18 July 2008
• Docket Number: No. 99,509.,99,509.
• Citation: 187 P.3d 594
• Parties: In the Interest of B.D.-Y., a Child under the Age of 18.
• Court: Kansas Supreme Court

187 P.3d 594

In the Interest of B.D.-Y., a Child under the Age of 18.

No. 99,509.

Supreme Court of Kansas.

July 18, 2008.

D. Charles Ball, of Law Offices of D. Charles Ball, argued the cause and was on the brief for appellant natural mother.

Kristiane N. Gray, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Stephen N. Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by NUSS, J.:

The district court found that infant B.D.-Y. was a child in need of care (CINC) under K.S.A.2007 Supp. 38-2202(d) without determining which of her three family caretakers caused her injuries. After the court placed limitations on their contact with B.D.-Y., the natural mother appealed. We transferred from the Court of Appeals; our jurisdiction is pursuant to K.S.A.2007 Supp. 38-2273(a).

The ultimate issue on appeal is as follows:

1. Did sufficient evidence support the trial court's finding that B.D.-Y. was a CINC?

Mother's docketing statement, however, also argued an incongruity between the trial court requirement under K.S.A.2007 Supp. 38-2250 to find a CINC by "clear and convincing evidence" and the appellate court's purported lower standard for reviewing that particular finding's factual support for merely substantial competent evidence. Accordingly, we ordered briefing on two additional issues:

2. Does "clear and convincing evidence" refer to a quantum of evidence representing an intermediate standard of proof, i.e., more than a preponderance of the evidence? Or does it refer simply to the quality of evidence which must be met under a preponderance of the evidence standard?

3. Is the appellate standard of review of trial court findings, made under a clear and convincing standard, simply to determine if substantial competent evidence exists to support the findings? Or is the standard whether substantial competent evidence of a clear and convincing quality exists to support the findings? Or is there an alternative standard?

We affirm the district court.

FACTS

B.D.-Y. was born to D.D. (Mother) and R.Y. (Father) in February 2007. Mother and Father were common-law married and shared care-taking responsibilities with the child's maternal grandmother. At birth, B.D.-Y. had problems eating and swallowing. A month later, doctors at Children's Mercy Hospital performed surgery in which they inserted a feeding tube.

During a routine check-up, on April 17, 2007, B.D.-Y.'s primary care physician noticed bruising on her face, legs, and chest. As a result, 3 days later B.D.-Y. was referred to Children's Mercy Hospital.

Dr. Martha Walsh, a pediatrician specializing in child abuse, evaluated B.D.-Y. at the hospital. The doctor noticed bruising on B.D.-Y.'s face and chest, and an abrasion on the back of her head. Although bruising on the legs had been reported, Dr. Walsh did not see any. She also noted that B.D.-Y. suffered pain when turning her head to the right. X-rays revealed that B.D.-Y. had at least 12 rib fractures.

In an interview with Megan Robertson, a hospital social worker, the parents explained that the bruising may have resulted from the "fishy-face exercises" they were told to conduct with B.D.-Y. to improve her sucking. The parents also explained that they had done some internet research and discovered that Zantac, a drug B.D.-Y. was taking, made people more susceptible to bruising.

Father stated that B.D.-Y.'s head abrasion was probably caused by her sliding across the floor during the exercises they did to help with her leg movement. He explained that her stomach bruising stemmed from an incident in which she had fallen back and he pulled her forward. The bruising was around the "Mickey button," the place where the feeding tube was inserted.

The parents remarked that they had no idea what could have caused B.D.-Y.'s rib fractures. But while Mother was being interviewed by Beth Harris, another hospital social worker, Father interrupted to say that a friend reminded him that approximately 10 days earlier, Father had performed CPR on B.D.-Y. He said that he pressed on her back, breathed in her mouth, and did chest compressions. Father thought the rib fractures might have been caused by the chest compressions.

Father also said that while he did not call 911, he did call the nurse line. Both parents frequently called the nurse line to ask questions about B.D.-Y.

Father additionally told social workers that he had suffered from seizures since a September 11, 2004, car accident. However, no medical doctor has diagnosed him with epilepsy or any type of brain injury. He was given a prescription to reduce the number of seizures, but believes the seizures still prevent him from working. He also told the social workers that he is often unable to remember the time frame surrounding the seizures.

A court petition alleging that B.D.-Y. was a CINC was filed on April 24, 2007. She was removed from the home and placed in foster care the next day. A trial was held the following September.

At trial, B.D.-Y.'s daily routine was outlined. Mother was employed during regular daytime hours. She would wake up every day and take care of B.D.-Y. until she went to work. Grandmother would then come over and help for a few hours. Father would wake up a little later and would then be solely responsible for B.D.-Y. for the next few hours. Grandmother would return later in the afternoon to help Father, and Mother would return around 5 p.m.

Dr. Walsh testified that the bruising and the abrasion were atypical of a child B.D.-Y.'s age, as she was not at "cruising age" yet. Dr. Walsh explained that these types of injuries are usually the result of a traumatic injury. She testified that the fishy-face maneuvers do not cause bruising. Additionally, to determine if Zantac was causing the bruising, B.D.-Y.'s platelet count was measured three times while she was at the hospital. Her platelet count was always normal.

Dr. Walsh also discussed the multiple rib fractures. She first explained that they were lateral and posterior, which were not typical of CPR-caused injuries. Dr. Walsh also explained that rib fractures are rare in infants because their ribs are so pliable. She further estimated that the fractures were 10 to 14 days old. She suspected child abuse because the explanations given for all of the injuries were implausible. She could not determine who had caused the injuries, however, or whether they were intentional or accidental.

Social worker Penny Clodfelter testified about her discussion with Father regarding the CPR incident. Father told her that the nurse who answered the nurse line told him he did not need to call 911. Clodfelter questioned whether this occurred because in her experience, if a child is not breathing, the nurse would recommend getting immediate medical attention. According to Clodfelter, Father could not remember whether he had called Mother to tell her about the incident.

Psychologist Dr. Ryabik reviewed Father's medical records and met with him several times before trial. He testified that he observed Father having a seizure the morning of the trial. According to Dr. Ryabik, if Father continued to care for B.D.-Y., his seizures would require him to be monitored.

Dr. Young, a pathologist, testified for Father. According to Dr. Young, it is impossible to review medical records and determine whether an injury was intentionally or accidentally inflicted. He also said it is impossible to determine who caused the injuries. Dr. Young opined that all of the injuries could have been caused accidentally by Father during one of his seizures, and Father would not even remember the accident occurring.

The trial court found B.D.-Y. to be a CINC under K.S.A.2007 Supp. 38-2202(d)(1), (d)(2), and (d)(3). It rejected as implausible Dr Young's suggestion that all of B.D.-Y.'s injuries resulted from one accidental event, determining that B.D.-Y. was either abused or injured in a series of accidents. It also rejected the parents' explanations for the injuries. Finally, the court determined that even if the injuries were accidentally caused during one of Father's seizures, B.D.-Y. was nevertheless without proper parental care and control.

ANALYSIS

Mother claims that because there was no showing that B.D.-Y.'s injuries were caused through her parents' intent or negligence, the evidence was insufficient to support the trial court finding that B.D.-Y. was a CINC. Before considering that claim, however, we must determine the parameters of our review.

Issue 1: Clear and convincing evidence is not simply a quality of proof.

The Kansas Legislature has specified that the State must prove "by clear and convincing evidence that the child is a child in need of care." K.S.A.2007 Supp. 38-2250. Besides CINC cases, the clear and convincing evidence standard of proof applies to a variety of other causes of action in Kansas. See, e.g., In re Arabia, 270 Kan. 742, 19 P.3d 113 (2001) (attorney discipline); Ortega v. IBP, Inc., 255 Kan. 513, 874 P.2d 1188 (1994) (retaliation for workers compensation claim); Chandler v. Central Oil Corp., 253 Kan. 50, 853 P.2d 649 (1993) (to prove invalidity of marriage); Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 827 P.2d 24 (1992) (whether agency relationship exists); In re Kerns, 225 Kan. 746, 594 P.2d 187 (1979) (permanent deprivation of parental rights); Hoch v. Hoch, 187 Kan. 730, 359 P.2d 839 (1961) (fraud); Jackman v. Development Co., 106 Kan. 59, 187 P. 258 (1920) (action to cancel oil and gas lease).

We first examine what is meant by "clear and convincing evidence." The parties agree that it is an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt. See Addington v. Texas, 441 U.S. 418, 423-24, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); In re S.M.Q., 247 Kan. 231, 796 P.2d 543 (1990). We agree. Accordingly, the clear and convincing requirement is...