dissenting: As noted by the majority, there is no transcript of the child in need of care hearing on November 12, 1987. Therefore we must assume that the evidence presented related to the allegations made in the petition.
The petition is a form pleading, and paragraph number two lists eight printed reasons why a child may be a child in need of care. Each reason has a box which allows the petitioner to *423check the applicable reasons. In this case, box number two is checked, which states that S.R.H. is a child in need of care because he: “is without the care or control necessary for the child’s physical mental or emotional health.”
Paragraph number three sets out the specifioTacts upon which the petition is based and is typewritten, not printed. It states:
“The mother of said child was admitted to St. John’s Hospital, Joplin, on 10-19 after being severly [sic] beaten. The child was left with the man who inflicted the injuries to child’s mother, and with the mother of this man who did know [record later indicates this should have been ‘did not know’] the child’s name or sex, after having had the child in her home for several days.
“Child is believed to be in imminent danger.”
The summons reflects personal service upon the mother and includes the following warning:
“Failure to respond or to appear before the court at the time shown below will not prevent the court from entering judgment that the child is a child in need of care if it finds judgment should be granted and removing the child from the custody of parent, parents or any other present legal custodian until the further order of the court. If, after a child has been adjudged to be a child in need of care, the court finds a parent or parents to be unfit, the court may make an order permanently terminating the parents’ rights.
“The attorney shown below, has been appointed as guardian ad litem for the child. Each parent or legal custodian has the right to appear and be heard personally either with or without an attorney. The court will appoint an attorney for any parent who is financially unable to hire one.”
At the conclusion of the hearing, S.R.H. was found to be a child in need of care. Although not contained in the journal entry, a reintegration plan was adopted that contemplated the completion of in-patient drug and alcohol abuse treatment and a complete psychological evaluation by the mother.
The majority relies heavily upon In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981), in concluding that the court committed reversible error in failing to either appoint counsel for the mother at the child in need of care hearing or make an adequate record that the mother had voluntarily waived counsel.
Admittedly, Cooper is the law in Kansas; however, it does not require the assistance of counsel in every proceeding involving the possible temporary removal of the child from the home. In *424Cooper, the Court of Appeals had so held, but the Supreme Court, in reversing this court, held:
“In deprived child hearings the district court should safeguard the due process rights of an indigent parent .and have counsel appointed at the expense of the county when the circumstances appear to require it and, should a request for counsel be refused, grounds for such refusal shall be stated in the record so that meaningful judicial review can be had.” 230 Kan. at 69.
After reviewing the holdings in different jurisdictions, the court in Cooper adopted a middle road, which requires appointment of counsel for indigent parents where there is a reasonable possibility that parental rights will be terminated or there will be a prolonged separation between the parent and child. The court went on to find that, under the facts and circumstances, the due process rights of the mother were adequately protected and that there was no substantial possibility of permanent severance or of prolonged separation of the child from the parent.
From my reading of the Cooper opinion, it is apparent that the court adopted the “middle road” position because of its concern that parental misconduct sufficient to justify a finding that a child is deprived may also be used to support a finding that the parent is unfit in a severance hearing. “The parents’ representation by counsel at a termination proceeding will not alone satisfy due process or equal protection requirements if the trial court relies on evidence introduced at a deprived [child] proceeding at which the indigent parent had not been afforded counsel.” 230 Kan. at 63.
In the present case, the district magistrate judge, on November 12, 1987, found S.R.H. to be a child in need of care based upon evidence that the child’s mother was in the hospital following a beating from a man, that the man was staying in the same house as S.R.H., and that S.R.H. was believed to be in imminent danger. The court apparently also heard evidence of the mother’s alcohol and drug problems. As previously noted, there was no record of the hearing. .
The termination hearing occurred almost two years later before a different judge. During the period between the adjudication hearing on November 12, 1987, and the termination hearing in August 1989, the record shows that the mother had been hos*425pitalized numerous times for alcohol or drug treatment or for medical reasons. In at least six instances, she left the hospital against medical advice.
The court found that during this same period, the mother had exercised 14 visits with S.R.H. The court found them to be only incidental visits.
Finally, based on a long history of instability in the home, repeated incidents of domestic violence, the mother’s emotional illness and alcohol and drug abuse, the emotional neglect of the child, and the mother’s failure to comply with the reintegration plan, the court terminated her parental rights.
Unlike Cooper, there was not a direct appeal from the child in need of care adjudication. The judge in the termination hearing did not preside over the child in need of care hearing. He did not have a record of that prior hearing for review.
The court in Cooper was concerned that evidence presented in the child in need of care hearing when a parent is without counsel might be relied upon by the court at the termination hearing. This may well be a problem when the same judge conducts both hearings. When a parent is without counsel at a child in need of care hearing, inadmissible evidence may be admitted, evidence unfavorable to the parent may not be subjected to cross-examination, and evidence favorable to the parent may not be presented. The judge, having relied upon such evidence in making his decision in that hearing, may consciously or unconsciously rely on that same evidence at a termination hearing.
That is not a problem in this case. Even if the judge heard evidence in the termination case that had been presented in the previous child in need of care hearing, this judge was hearing it for the first time, and the mother was represented by counsel.
S.R.H. was two years old when he was removed from his mother’s home. He is now over five. During this time, his mother has made little or no progress in dealing with her problems, and the trial court has found that she is unlikely to be able to meet the needs of her child in the foreseeable future.
Sending this matter back to the trial court for a new child in need of care hearing cannot be in the best interest of S.R.H.