## Facts

- Michael and J.C. were married, divorced, and later cohabited; their daughter, M.M.L., was born in 1981.
- After the parents separated, J.C. left with M.M.L., later remarried, and ongoing parental hostility affected M.M.L.’s relationship with Michael.
- M.M.L. made sexual-abuse allegations against Michael; he was investigated and cleared, while evidence indicated M.M.L. had been abused by someone and the stepfather was a suspected source.
- After further abuse allegations against the stepfather, M.M.L. was removed from the home and placed in state custody and then foster care.
- Michael returned to Kansas, sought custody, and had court-ordered visitation.
- J.C. moved out of state, ceased participating, and abandoned her role in the custody litigation.
- Expert evidence conflicted on M.M.L.’s comfort with Michael; some professionals reported fear and anger concerns, while others reported positive interactions and recommended placement with Michael.
- At disposition, the district court found Michael was not unfit but ordered long-term foster care because M.M.L. was bonded with the foster family and the court believed immediate placement with Michael could cause emotional harm.

## Issues

1. Whether a court may continue long-term foster care over the objection of a fit natural parent based solely on a “best interests of the child” determination.
2. How K.S.A. 38-1563(d)’s “best interests” language must be construed to avoid violating a parent’s Fourteenth Amendment liberty interest in custody.
3. Whether an appellate court may address constitutional and interpretive questions not precisely raised below to prevent denial of a fundamental right.

## Decision

- The Kansas Supreme Court reversed the dispositional order continuing long-term foster care and remanded.
- The court held that applying a stand-alone best-interests test to deny custody to a fit parent violates constitutional parental rights.
- The court construed K.S.A. 38-1563(d) to permit a best-interests disposition denying a fit parent custody only after clear and convincing findings of parental unfitness or highly unusual or extraordinary circumstances substantially endangering the child’s welfare.
- Because the district court found Michael fit and made no qualifying endangerment findings, its reliance on the child’s comfort and foster bond was legally insufficient.

## Legal Principles

- A parent’s right to the custody, care, and control of a child is a fundamental liberty interest protected by the Fourteenth Amendment.
- The State may not disturb a fit parent’s custody absent clear and convincing evidence and findings of (a) parental unfitness, or (b) highly unusual or extraordinary circumstances that substantially endanger the child’s welfare.
- “Best interests of the child” cannot constitutionally function as an independent basis to prefer foster placement over a fit natural parent.
- Courts may construe a statute to include limiting safeguards to preserve constitutionality.
- Appellate courts may reach otherwise unpreserved issues in exceptional circumstances to prevent denial of fundamental rights.

## Conclusion

The court required that, before a child in need of care disposition can deny custody to a fit natural parent on best-interests grounds, the court must first find by clear and convincing evidence that the parent is unfit or that extraordinary circumstances substantially endanger the child; because the district court made neither finding, continuing long-term foster care was reversed and the matter remanded.


In re M.M.L., 258 Kan. 254, 900 P.2d 813 (Kan. 1995)