Winston v. Kansas Dept. of SRS, 87,820.

• Decision Date: 19 July 2002
• Docket Number: No. 87,820.,87,820.
• Citation: 274 Kan. 396,49 P.3d 1274
• Parties: THOMAS R. WINSTON, M.D., Appellant, v. STATE DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellee.
• Court: Kansas Supreme Court

274 Kan. 396

49 P.3d 1274

THOMAS R. WINSTON, M.D., Appellant, v. STATE DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellee.

No. 87,820.

Supreme Court of Kansas.

Opinion filed July 19, 2002.

Allan E. Coon, Norton, Hubbard, Ruzicka & Kreamer L.C., of Olathe, argued the cause and was on the brief for appellant.

Paula B. Hurt, Kansas Department of Social and Rehabilitation Services, of Overland Park, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Appellant Thomas R. Winston, M.D., appeals the district court's order affirming the final administrative order of the Kansas Department of Social and Rehabilitation Services' (SRS) State Appeals Committee which affirmed the SRS presiding officer's order finding that appellant physically abused his son and emotionally abused his son and daughter. Appellant claims (1) SRS failed to follow prescribed procedures; (2) the procedures employed by SRS created an unconstitutional condition upon his due process right to be heard; (3) he was deprived of due process; (4) the doctrine of res judicata barred subsequent proceedings; (5) the testimony of unsubstantiated allegations was improperly admitted into evidence; (6) the findings of physical and emotional abuse were not supported by substantial evidence; and, (7) the presiding officer's rulings were arbitrary and capricious.

Thomas Winston's twin children, D.W. and M.W., were born May 19, 1989. Winston is a cardiothoracic surgeon. Winston and his wife Julia separated in March 1998. When Julia filed for divorce, she alleged incompatibility and requested that she be given custody subject to reasonable visitation rights. The divorce was finalized in August 1999.

In August 1998, SRS received a confidential report alleging that Winston had physically abused D.W. SRS, along with the Overland Park Police Department, began an investigation of the allegation. The specific incident being investigated occurred the weekend of August 23, 1998, while the children were visiting their father at his apartment. D.W. reported that while trying to remove a paper containing his mother's phone number from Winston's hand, Winston picked him up by the neck and pushed his face into the corner. D.W. stated that he had a hard time breathing. Winston also hit D.W. several times with his hand and a tennis shoe. M.W. was present at the time. After this incident, Julia obtained a restraining order against Winston. Winston violated the order by continuing to contact Julia by telephone.

M.W. told Detective Barbara Hohnholt and SRS social worker Sarah Byall on August 26, 1998, that her father hits both her and D.W., but that he mainly hits D.W. hard. M.W. has also observed her father sit on D.W., strangle him, and put a pillow on his face. Separately, M.W. and Julia described the events of this most recent incident of alleged abuse the same as D.W. Julia also reported that Winston had frequently beaten her and had started physically abusing the children when they were in kindergarten. She stated that Winston, in an apparent attempt to intimidate her and the children, had purchased a 2-foot African flesh-eating fish, then threatened to cut up Julia and the children and feed them to the fish. Winston had also said things to D.W. like, "I'm going to make you disappear by cutting you up into a thousand pieces," "you're no good," "your mom and I don't love you."

Julia had previously reported to police that on or about March 4, 1998, Winston had told the children that she would disappear one night and that when they woke up, she would be gone. About a week later, Winston told the children he wished Julia would drop dead. Winston has also threatened to kill Julia in front of the children. These comments obviously upset the children. Julia reported to Detective Hohnholt and Sarah Byall that on March 15, 1998, Winston was so frustrated that he threw D.W. across the room and caused D.W. to hit his head. Julia ordered Winston to leave the house and filed for divorce the next day.

On or about September 29, 1998, SRS notified Winston that he had been substantiated for abuse of D.W. See K.A.R. 30-46-10(d) and (e). Winston requested a fair hearing on October 9, 1998. One month later, SRS notified Winston that it had also validated him for abuse of D.W. The validation was for physical and emotional abuse. See K.A.R. 30-46-10(f). Winston was validated so his name could be placed in the Kansas Child Abuse and Neglect Central Registry. The Kansas Child Abuse and Neglect Central Registry is a confidential listing of individuals who are not permitted to be employed, reside, or volunteer in Kansas child care facilities. It must be noted that, at this same time, Winston was involved in a possible criminal action arising from the alleged acts, as well as a civil divorce action.

During 5 months of not seeing his children, Winston met with the SRS case manager, and he and the children separately attended therapy. A supervised visit was finally arranged for the evening of January 12, 1999, at the Johnson County Courthouse. In addition to Winston, D.W., and M.W., Dr. Jeff Montolio, a psychologist, Roxie O'Brien, a CASA volunteer, and Greg Rainbolt, a deputy with the Johnson County Sheriffs Department, were also present. Dr. Montolio and Deputy Rainbolt were present because D.W. was afraid of Winston and had only agreed to enter the visitation room if they were present to protect him. When D.W. entered the room, he did not greet his father. D.W. sat on the opposite end of the table, diagonally, from Winston. D.W. later told Sarah Byall that "`the police had to be there so he would not hurt us,'" that he is "`very afraid'" of his father, and that his father "`violates [the] restraining order.'" D.W. also stated that Winston drives by their house, which makes him feel unsafe.

When M.W. entered the visitation room, she was hesitant, tense, and a bit apprehensive. Winston hugged M.W. and placed her on his leg, with her legs dangling between his. Winston continued to hug M.W. while she was on his lap. Her thigh was right next to Winston's crotch. Julia stated that M.W. freaked out while they were driving home after the visit. M.W. was frantic and crying and told Julia that it was "`hard and sticking up'" and that "`he was pushing [her] up against it.'" After arriving home, M.W. went to the bathroom, took off her clothes, and asked Julia to wash the clothes. She then took a bath, went to bed, and pulled the blankets over her head. M.W. cried, curled up in a ball, did not sleep, and refused to eat or drink that night. The next morning, M.W. did not want to go to school. When Julia drove her to school, M.W. refused to go inside.

School counselor Janice Mueller finally convinced M.W. to come inside the school. M.W. was visibly upset. M.W. drew a picture of herself sitting on Winston's lap. She drew his erection and his weird smile. According to Mueller, the penis was a focal point for M.W. because she kept drawing it over and over again with the marker. M.W. told Mueller that whenever she or D.W. see this particular smile on their father, they know that he will hurt them in some way or that something bad is going to happen. M.W. also told Mueller that she was upset being on her father's lap. She felt something was happening, did not like it, and wanted to get off his lap. On January 14, 1999, SRS received a confidential report alleging Winston had sexually abused M.W. during the supervised visitation. On January 15, 1999, M.W. was interviewed by Jorie Siegwald at Sunflower House. During the interview, M.W. disclosed that while she was sitting on her father's lap at the visitation 3 days earlier, "his thing-a-ma-bobber grew," that his "weiner" grew and that she felt his weiner on her leg. M.W. said that her father kept pulling her closer to him and would not let her go. M.W. stated that she left her father's lap after Dr. Montolio asked her if she would be more comfortable in a chair. During the interview, M.W. drew a picture of herself sitting on Winston's lap. The drawing appears to depict an erect penis. M.W. also reported that her father had hit her and her brother and had left hand prints and bruises on them. M.W. stated that once her father threw a sack of dog food at her mother and that on other occasions Winston had hit her mother. M.W. has also written about the abuse in her journal at school.

On March 29, 1999, Detective Ed McGillivray interviewed Winston regarding the incident with M.W. Winston denied having an erection during the visit and suggested that his daughter may have mistook his wallet and car keys, which he keeps in his front pocket, for his penis. Winston suggested that M.W. made these statements because she was being coached by Julia.

On April 2, 1999, SRS notified Winston that it had substantiated and validated him for the abuse of M.W. On April 25, 1999, it was determined that there was insufficient evidence to establish a criminal charge against Winston for the alleged sexual abuse of M.W.

On May 18, 1999, SRS notified Stephen E. Good, the presiding officer assigned to the appeal in the D.W. case, that it was withdrawing its finding of validation on the child abuse of D.W. and was preparing an amended finding of unsubstantiated abuse. Presiding Officer Good notified Winston of the withdrawal of the finding and informed him that his appeal would be dismissed as moot. On May 28, 1999, Winston withdrew his appeal.

On May 20, 1999, Winston filed an untimely request for a fair hearing on the allegations relating to M.W. SRS opposed the fair hearing because it was untimely requested. The presiding officer in that case was also Stephen E. Good. Good denied SRS's motion to dismiss the appeal.

On or about August 3, 1999, SRS sent a notice of substantiation and validation to Winston regarding the physical and emotional abuse of D.W. and an amended notice of substantiation and validation...