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IN RE S.M.Q.

July 19, 1990.

IN THE INTEREST OF S.M.Q., a Minor Child under Eighteen Years of Age.


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 In an unpublished opinion, a majority of the Court of Appeals panel reversed the Sedgwick County District Court's termination of the parental rights to S.M.Q. by finding the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 review.

The Court of Appeals determined there was sufficient evidence to find the child was in need of care and affirmed the trial court's

[247 Kan. 232]

      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

[247 Kan. 233]

      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.

[247 Kan. 234]

     

  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 ...


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