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In re J.D.C.

June 8, 2007

IN THE INTEREST OF J.D.C., DOB: 02/21/1990.


Review of the judgment of the Court of Appeals in 35 Kan. App. 2d 908, 136 P.3d 950 (2006). Appeal from Shawnee district court; DANIEL L. MITCHELL, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

SYLLABUS BY THE COURT

1. Generally, all relevant evidence is admissible. Relevant evidence is evidence having any tendency in reason to prove any material fact. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.

2. An appellate court's review of questions of law is unlimited.

3. The appropriate exercise of judicial discretion varies, depending on the character of the question presented for determination. A district court's decision is protected if reasonable persons could differ about the propriety of the decision, as long as it was made within and took into account the applicable legal standards. If, among other things, a district court's decision goes outside the legal framework or fails to properly consider statutory limitations, it constitutes an abuse of discretion.

4. Hearsay is admissible if the statement was previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would have been admissible if made by declarant while testifying as a witness.

5. The Confrontation Clause of the Sixth Amendment to the United States Constitution applies only in criminal proceedings.

6. Any right that a civil litigant can claim to confrontation and cross-examination is grounded in the Due Process Clause. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. In reviewing a procedural due process claim, a court must first determine whether a protected liberty or property interest is involved. If it is, then the court must determine the nature and extent of the process due.

7. A due process violation exists only when a claimant is able to establish that he or she was denied a specific procedural protection to which he or she is entitled. The question is resolved by a balancing test, weighing: (1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State's interest in the procedures used, including the fiscal and administrative burdens that any additional or substitute procedures would entail. The question of whether due process has been violated in a particular case is one of law, reviewable de novo on appeal.

8. On appeal of a determination that a child is in need of care (CINC), a reviewing court must decide whether there was substantial competent evidence to support the district court's finding. Substantial evidence is such legal and relevant evidence as a reasonable person would accept as sufficient to support a conclusion. The district court is in the best position to make credibility determinations, and an appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the district court, or pass upon the credibility of the witnesses.

9. Under the facts of this CINC case, the parent's due process rights were not violated by the admission of the subject child's hearsay statements pursuant to K.S.A. 60-460(a), despite the State's omission of the child's direct testimony from its case in chief. The parent waived any due process based right she may have had to confront the witness by refusing the district court's offer to put the child on the stand for cross-examination.

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

This case arises out of allegations of sexual abuse of a 14-year-old girl by her stepfather and the district court's determination that the girl was a child in need of care (CINC). We granted the natural mother's petition for review to consider whether the district judge erred in admitting hearsay evidence from the girl under K.S.A. 60-460(a), when the State did not call her in its case in chief and she was merely made available for cross-examination by her mother's lawyer.

Factual Background

Fourteen-year-old J.D.C. reported to her school counselor that her stepfather, E.D., had been sexually assaulting her for a couple of months. She reported that he fondled her breasts and put his fingers into her vagina. The school contacted the Kansas Department of Social and Rehabilitation Services (SRS), which contacted police. Detective Phillip McKay, of the Shawnee County Sheriff's office, along with another officer and Nancy Kessler, an investigator from SRS, went to the girl's residence and conducted a brief interview with J.D.C. and the family. J.D.C. stated that E.D. touched her on her breasts and vaginal area, above and below her clothing, in the morning while she was in bed. Because the stepfather lived in the home with J.D.C., McKay placed J.D.C. into emergency custody the same day over her parents' objection and despite E.D.'s offer to leave the home.

Kessler conducted a Safe Talk 3 days later at the Family Resource Center; in the Safe Talk, J.D.C. again repeated her allegations. She stated that E.D. had entered her room every weekday morning between 6:05 and 6:15 a.m., after her mother had left for work, and that he had touched her on her breasts and vaginal area, above and below her clothing. McKay monitored and videotaped the Safe Talk from a separate room.

Two days later, the State filed a CINC petition under three subsections of K.S.A. 38-1502(a) (now repealed and reenacted as K.S.A. 2006 Supp. 38-2202[d]; effective January 1, 2007). It alleged J.D.C. was: (1) without adequate parental care not due solely to lack of financial means; (2) without care or control necessary for physical, mental, or emotional health; and/or (3) had been subjected to physical, mental, or emotional abuse; neglect; or sexual abuse. J.D.C.'s allegations of sexual abuse formed the factual basis for the relief sought in the petition. The petition also included information about two of J.D.C.'s brothers who, while in the sole legal custody of J.D.C.'s mother, had previously been adjudicated children in need of care under K.S.A. 38-1502(a)(1), (2), and (3) because of physical abuse by E.D.

The State sought orders for temporary and continued protection, custody, and support. It asserted that remaining in the home would be contrary to J.D.C.'s welfare and stated that an investigation was being conducted by the Shawnee County Sheriff's office.

Seven months later, Leslie Carr of SRS contacted McKay about numerous emails she had received from Brooke Grier, the foster parent with whom J.D.C. had been staying. These emails documented correspondence among J.D.C., her mother, and E.D. The gist of this correspondence was that J.D.C. needed to recant her story about being assaulted by E.D. so that she could come home.

The State then filed an amended CINC petition, adding the information regarding the "inappropriate emails" between E.D. and J.D.C. The amended petition also noted that J.D.C. had told her foster parent that E.D. used to come into her bedroom and watch her and stroke her hair. The State alleged that remaining in the home would be contrary to J.D.C.'s welfare, because the reported sexual abuse was at the hands of her stepfather, who was still residing in the home; that there was pressure on J.D.C. to ...


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