The opinion of the court was delivered by
K.F.H., the natural mother of S.M.Q., a young girl born on
December 19, 1984, appealed the termination of her parental
rights to S.M.Q. pursuant to K.S.A. 38-1583. In an unpublished
opinion, a majority of the Court of Appeals panel reversed the
Sedgwick County District Court's termination of the parental
rights to S.M.Q. by finding the termination was not supported by
"substantial evidence of a clear and convincing nature." The
Secretary of Social and Rehabilitation Services (SRS) filed a
petition for review, claiming that the Court of Appeals applied
the wrong standard of review. We accepted the petition for
The Court of Appeals determined there was sufficient evidence
to find the child was in need of care and affirmed the trial
placement of S.M.Q. in the custody of SRS. But as to the
termination of parental rights of the mother, the Court of
Appeals stated it "must search the record in order to determine
whether the findings of the trial court are supported by
substantial competent evidence of a clear and convincing nature
as to parental unfitness." The Court of Appeals found that while
there was some evidence to sustain the trial court's findings it
was not of a clear and convincing nature. Specifically, it held
the expert testimony did not show that the mother was mentally
disabled or unfit since her personality disorder had not made her
a person in need of care or interfered with her ability to work
or maintain a home. It went on to review the psychologist's
testimony and concluded there was no evidence that the mother's
personality disorder would render her unable in the future to
meet her child's needs. Finally, the court held that instances of
abusive contact were not sufficient to justify the extreme
penalty of severance.
In his dissent, Judge Gernon criticized the majority for
reweighing the evidence. He stated the scope of review for the
Court of Appeals is not to find "whether there was sufficient
evidence of a clear and convincing nature to support the trial
court's findings, but whether there is substantial competent
evidence to support such findings." The controlling issue here is
to discern the appropriate standard of appellate review of a
trial court's severance of parental rights.
Termination of parental rights is a triangle which balances the
State's interest as parens patriae along with the parents'
rights to preserve the family relationship and the child's best
interests. Although the numbers may be higher due to
underreporting, in Kansas alone during 1989 there were 2,067
confirmed child abuse reports, 129 confirmed hospitalizations due
to child abuse, and 8 confirmed child abuse deaths. Report from
the Kansas Child Abuse Prevention Council (Spring 1990).
The difficult question of termination turns on two questions:
(1) determining whether the child can be returned to the parent
within a reasonable time, and (2) determining whether the
termination of parental rights is in the child's best interests.
1 Elrod, Kansas Family Law Handbook § 5.04, p. 5-31 (rev. ed.
1990). The purpose of the severance procedure is to provide
stability in the life of a child who must be removed from the
home of a
parent; to acknowledge that time perception of a child differs
from that of an adult; and to make the ongoing physical, mental,
and emotional needs of the child the decisive consideration in
proceeding under the statute. K.S.A. 1989 Supp. 38-1584.
The United States Supreme Court in Santosky v. Kramer,
455 U.S. 745, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982), requires the
State's allegations to be proven by clear and convincing evidence
in order to meet the due process requirement of the Fourteenth
Amendment before a parent's rights are terminated. Even before
Santosky, Kansas required proof by clear and convincing
evidence in termination proceedings. In re Kerns, 225 Kan. 746,
594 P.2d 187 (1979); In re Nelson, 216 Kan. 271, 531 P.2d 48
(1975); In re Stafford, 193 Kan. 120, 392 P.2d 140 (1964).
K.S.A. 38-1583(a) allows the severance of parental rights when
the court finds by clear and convincing evidence that the parent
is unfit by reason of conduct or condition which renders the
parent unable to care properly for a child and the conduct or
condition is unlikely to change in the foreseeable future. The
term "unfit" is defined to include "[i]nherent mental and
emotional incapacity to perform parental obligations [which] can
constitute such breach of parental duty as to make the parents
unfit to be entrusted with custody of their child." In re
Johnson, 214 Kan. 780, 522 P.2d 330 (1974); In re Bachelor,
211 Kan. 879, 508 P.2d 862 (1973); In re Penn,
2 Kan. App. 2d 623, 625, 585 P.2d 1072 (1978).
Clear and convincing proof is simply a requirement that a
preponderance of the evidence be definite, clear, and convincing,
or that a particular issue must be clearly established by a
preponderance of the evidence or by a clear preponderance of
proof. This requirement does not call for unanswerable or
conclusive evidence. The quality of proof, to be clear and
convincing, is somewhere between the rule in ordinary civil cases
and the requirement of criminal procedure that is, it must be
more than a mere preponderance but not beyond a reasonable doubt.
Whether evidence is clear and convincing requires weighing,
comparing, testing, and judging its worth when considered in
connection with all the facts and circumstances in evidence. 30
Am.Jur.2d, Evidence § 1167.
The same standard of appellate review that is applicable for
termination of parental rights in an adoption proceeding is
applicable in this case. To terminate parental rights in an
adoption proceeding, the duty of an appellate court extends only
to a search of the record to determine whether substantial
competent evidence exists to support the trial court's findings.
An appellate court must not reweigh the evidence, substitute its
evaluation of the evidence for that of the trial court, or pass
upon the credibility of the witnesses. It must review the
evidence in the light most favorable to the party prevailing
below. In re Adoption of B.C.S., 245 Kan. 182, 186, 777 P.2d 776
(1989). See In re J.G., 12 Kan. App. 2d 44, 734 P.2d ...