In The Interest Of M.M.L.

900 P.2d 813 (1995)

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Nature of the Case

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Facts

The case has a long and tortured history. Despite extensive efforts by F, the courts, counsel, various social and professional workers, and others involved in this case, the results have been far from satisfactory. It appears that much of the original difficulty encountered in attempting to reach a solution to the conflicting claims and positions of the parties arises from the long-term animosity which has existed between F and J.C., the mother (M). Apparently, M has taken every opportunity to criticize and demean F to M.M.L. and has gone to great lengths to poison M.M.L. against F. On the other hand, M.M.L. complains that F constantly criticizes and says bad things about M. Even though M has moved to Texas and has apparently abandoned any interest in these custody proceedings or her daughter, M.M.L. maintains a strong bond and feeling for her mother. M and F were married in 1974, and one son, now an adult, was born to the marriage. The couple was divorced in 1979; however, they reestablished a relationship and lived together until sometime in 1984. M.M.L. was born in 1981. In mid-1984 M.M.L. and M left the home, and at some later date, M married M.C. In 1985 M filed a proceeding in Missouri to obtain custody of both children. Soon thereafter M.M.L. alleged she had been sexually abused by F or by one of her mother's boyfriends. F was absolved of any sexual abuse of M.M.L., although expert testimony did establish that she had, in all probability, been abused by someone, either M.C. or one of the other friends of M. F moved to the state of Washington and lost track of his children. His custody suit was dismissed when he failed to show up for the hearing. M.M.L. and M moved to Great Bend. F was unable to obtain any information about her whereabouts or about her welfare. In 1991 f learned by chance that M and M.M.L. were in Great Bend. He has been attempting to gain custody ever since. M.M.L. was placed in the temporary custody of the Department of Social and Rehabilitation Services (SRS) based on allegations that she had been sexually abused by M.C. She was placed by SRS in a foster home in Great Bend, where she has remained since. The trial court found by clear and convincing evidence that M.M.L. had been sexually abused by M.C. and adjudicated her a child in need of care. F had not had contact or a relationship with M.M.L. for approximately five years. The court found that placing M.M.L. with F was not a viable option at that time and denied him visitation rights so that M.M.L.'s therapist could prepare her for future visitation. J.C. moved to Texas and apparently abandoned any interest in M.M.L. or in any further court proceedings in her behalf. F was granted visitation rights. Initially the visits were limited to supervised visits in Great Bend, but eventually, Michael was granted unsupervised visits at his home in Kansas City for several days at a time. F did everything requested of him by the court. Home studies have been performed and the latest done in July 1994 recommended M.M.L. be placed in F's home with supervision. A local professional stated the following conclusions: M.M.L. maintained throughout the proceedings that she did not want to live with him. M.M.L. described 'a pattern of arbitrary and provocative hostility' by F, such as verbally abusing and continually provoking arguments with M to whom M.M.L. is attached, making exaggerated and hostile complaints in public places, teasing her cousins unnecessarily, and having conflicts with her aunts and foster mother. F's mother and his sisters (the aunts) deny these allegations. M.M.L. does not trust him and is afraid he will sexually abuse her because he gets so ''pushy and mad.'' M.M.L. was concerned with her father's use of alcohol. Various psychological tests and counseling bear that out. M.M.L.'s emotional and psychological concerns about sexual abuse and excessive use of alcohol appear to be a result of her early childhood experiences with her stepfather and one or more of her mother's other male companions. M.M.L. was firmly attached to the foster care home, describing it as a place where she was safe, secure, and part of a family. Professionals in the Kansas City reach a diametrically opposite conclusion. They recommend that M.M.L. be placed in her father's custody. From their reports and the testimony of Michael, M.M.L. seems to be happy and well-adjusted when with her father. She voiced no serious complaints to the Kansas City counselors and professionals. However, upon returning to Great Bend, she apparently tells a totally different story and has consistently maintained she will not live with F. The record includes several letters written by M.M.L. to the court in which she voices her desire to stay with her foster parents and complains bitterly about her F's actions and appearance. F moved for an order placing M.M.L. in his custody. The magistrate denied the motion and recommended long-term foster care placement, finding it was not in M.M.L.'s best interests to return her to the custody of her parents. The district court found in October 1993 that SRS should make an additional effort to reintegrate M.M.L. and later approved a reintegration plan. The court found that although F was not an unfit parent, no close bond existed between F and M.M.L. despite his tremendous efforts. While reasonable efforts had been made to reintegrate M.M.L., the efforts had not been successful largely due to M.M.L.'s attitude and fears. The court believed forcing M.M.L. to live with her father could cause more emotional damage. Because a close bond existed between M.M.L. and her foster family, the court continued placement in long-term foster care with visitation to be worked out by the parties. There have been literally dozens of hearings held by the court and hundreds of hours devoted to this case by dedicated judges, counsel, and professional workers in an attempt to arrive at an acceptable solution to the apparent legal and emotional conflict between F and M.M.L. and/or SRS. F appealed. F argues that under the parental preference doctrine he has a constitutional right to custody of his child which may not be disturbed absent a finding of unfitness. The State and guardian ad litem argue that the Kansas Code for Care of Children (Code), K.S.A. 38-1501 et seq., provides the same if not better protection than that afforded by the parental preference doctrine.