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In re A.F.

December 7, 2007

IN THE INTEREST OF A.F., J.F., AND S.F., CHILDREN UNDER THE AGE OF 18 YEARS


Appeal from Washington District Court; KIM W. CUDNEY, judge.

SYLLABUS BY THE COURT

1. A statute regulating conduct must provide sufficient warning of the prohibited conduct under common understanding and have adequate safeguards against arbitrary enforcement. Otherwise the statute is unconstitutionally vague.

2. The precision of statutory language must be greater in criminal statutes than in ones that regulate business. Thus, the same statutory standard might give sufficient guidance to constitutionally regulate business conduct but be too vague to allow criminal penalties for noncompliance. Statutes that regulate the conduct of parents fall in between these standards.

3. The Kansas Code for Care of Children, as in effect in 2005, provided that a child was in need of care if the child had "been physically, mentally or emotionally abused or neglected or sexually abused." K.S.A. 2005 Supp. 38-1502(a)(3). The statute provided sufficient guidance to satisfy constitutional standards. As applied to the facts of this case, the statute used words commonly understood to forbid the conduct found here. In addition, the statute provided sufficient protection against arbitrary enforcement.

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

Affirmed.

Before CAPLINGER, P.J., ELLIOTT and LEBEN, JJ.

Joe and Debra F. appeal the adjudication of their children as children in need of care. The district court concluded that Debra had committed physical abuse against J.F. and that J.F.'s siblings, A.F. and S.F., were likewise children in need of care under K.S.A. 2005 Supp. 38-1502(a)(11), which authorizes protection for children residing with another child who is physically abused. On appeal, Joe and Debra claim that there was insufficient evidence to find abuse and that the statute is unconstitutionally vague. But our review of the records reveals substantial evidence in support of the district court's conclusion that J.F. sustained bruising all around his left ear from Debra's striking him there with a 1-inch-thick wooden paddle. And we do not believe that the statute is so vague that a citizen would be unaware that you may not strike a child on the head with such a paddle.

Substantial Evidence Supports the District Court's Finding of Physical Abuse

We review the district court's factual findings to see whether they are supported by substantial competent evidence. In performing this review, we view the evidence in the light most favorable to the prevailing party. Although the State had the burden below to prove its case by clear and convincing evidence, that standard does not affect our scope of review on appeal. In re J.J.G., 32 Kan. App. 2d 448, 454, 83 P.3d 1264 (2004).

Although Debra never admitted striking J.F. on the ear with her paddle, she did admit to investigators that she had struck J.F. three or four times with the paddle the night before his school reported the abuse that spawned the child-in-need-of-care proceeding. Her admission came after initial denials of even spanking J.F. that night. After she admitted spanking J.F., Debra still denied hitting J.F. on the head but told the sheriff that "anything's possible" when pressed about whether she might have struck J.F. on the head with the paddle. J.F. had purplish to red bruising on and around his left ear, which was also swollen; he also had bruising on his lower back and on his buttocks.

Debra said she spanked J.F. that evening because he had taken too long in the bathtub and was generally being defiant, a habit that was becoming more frequent. At the time this occurred, J.F. was 8 years old and in the second grade. A.F., a fourth-grader, was 9, and S.F., a kindergartner, was 5. All three of the children have special needs, and they had been adopted by Joe and Debra after the children had been removed from their biological parents because of abuse and neglect.

Debra's view of the facts on appeal ignores our standard of review, under which we must accept the factual findings of the district court that are supported by substantial evidence, even when there is contrary testimony. For example, Debra contends that she and Joe never spanked the children when angry based on her testimony at the adjudication hearing. This is contrary to statements Debra made to investigators about her state of mind on the night J.F. was struck. As to the injury to J.F.'s ear, Debra notes that she denied having hit him there and cites some evidence that the bruising to the ear appeared to be more recent than the bruising to J.F.'s bottom. She further cites her own testimony where she speculated that J.F.'s ear might have been hurt while playing with A.F. right before going to school. Again, under our standard of review, this does not undermine the factual finding of the district court. Debra admitted to striking J.F. several times with the paddle, even though she had denied it initially. The district court had the opportunity to evaluate the credibility of her denial of striking J.F. on the ear, and the district court also may well have concluded that her "anything's possible" remark was a tacit admission. Clearly, Debra inflicted substantial physical punishment on J.F. the night before his school reported the abuse. Substantial evidence supports the conclusion that blows struck by Debra caused all of the bruising observed at the local hospital, including to the ear.

There was no dispute in the evidence that A.F. and S.F. were living in the same household as J.F. Thus, they would fit within the statutory provision that accords child-in-need-of-care status to children ...


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