Opinion
No. 112115.
05-22-2015
In the Interest of K.G., Year of Birth: 2007, A Person Under Eighteen (18) Years of Age.
Kelly W. Johnston, of The Johnston Law Offices, P.A., of Kechi, for appellant. Shannon L. Cooper, of Andover, for appellee.
Kelly W. Johnston, of The Johnston Law Offices, P.A., of Kechi, for appellant.
Shannon L. Cooper, of Andover, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Mother appeals the district court's denial of her request that it terminate Father's parental rights to their child, K.G. She argues that the district court erred by concluding that Father had not abandoned K.G., making him a child in need of care, and that the district court should have terminated Father's parental rights because he had abused K.G., he was unfit as a parent (and would likely remain so), and terminating his rights was in K.G.'s best interests.
Before terminating a parent's rights, the district court must find that the child is in need of care. Although Mother claims that Father here had abandoned or abused K.G., the district court did not agree, and we find no indication that it misapplied the statutory definition of abandonment or disregarded uncontested evidence. Because the district court did not find K.G. was a child in need of care, it had no authority to terminate Father's parental rights.
Even if the district court had found K.G. to be in need of care, terminating parental rights would require it also find that the parent is unfit and that terminating the parent's rights is in the child's best interests. The district court said it would not have made these findings even if it had found K.G. in need of care because Mother had not proved by clear and convincing evidence that Father was unfit or that terminating Father's parental rights was in K.G.'s best interests. We find no error in its conclusion that those showings weren't made. Based on the district court's conclusion that the child was not in need of care, along with its conclusion that Mother didn't prove that Father was unfit or that terminating Father's parental rights was in K.G.'s best interests, we affirm the district court's judgment.
Factual and Procedural Background
Cases like this are necessarily fact-intensive, so we must review the factual background and evidence in some detail. Mother filed for divorce from Father on June 1, 2011, and the divorce court awarded her primary residential custody of their son, K.G. In July 2011, Mother filed a separate court action for a protection-from-abuse order on behalf of her stepdaughters, and the court granted the order. Father and K.G. had contact from the end of July 2011 through the beginning of December 2011, according to Mother.
In mid-December 2011, the court ordered Father to complete a children-of-divorce workshop and anger-management therapy and adopted a parenting plan that Mother and Father had agreed to. The parenting plan gave Mother primary residential custody of K.G. and gave Father liberal weekly visitation. But on April 16, 2012, Mother moved the court to suspend Father's parenting time with K.G. because she alleged Father had been physically and verbally abusing his children—including K.G.—and that he had yet to complete any of his court-ordered case-management tasks. The court suspended Father's parenting time.
At this time, Mother said that Father had stopped bringing K.G.'s sisters to courtordered sibling visitation. She petitioned the court for stepparent visitation with the girls, and it granted her the visitation if the girls wished to visit. In June 2012, Father stopped contacting K.G. or paying child support for him. Father had been ordered to pay $824 per month in child support for K.G. That amount was based on Father's employment before the divorce as an aircraft-sales engineer making $85,000 a year.
On July 25, 2012, the divorce court awarded Mother sole residential and legal custody of K.G. It found that K.G. should live solely with Mother because of Father's drug use, his failure to participate in court proceedings, and his failure to communicate with Mother about K.G. Under this order, if Father wanted visitation with K.G., he needed to submit to hair-follicle drug testing, get Mother's permission, undergo a psychological evaluation, and complete the children-of-divorce workshop he had agreed to complete in December 2011. Father did not do any of these things, and Mother said that around November 1, 2012, he moved to Florida and did not give her his address. In December 2012, the court prevented Father from having contact with his daughters from a previous marriage when his other ex-wife alleged that he had emotionally and verbally abused the younger daughter and threatened to kidnap her, had provided both daughters with illegal drugs, and had encouraged the older daughter to engage in sexually inappropriate behavior. In January 2013, Father emailed Mother and said that he was getting treatment for drug and alcohol addictions.
The court proceedings now before us—a separate court action from the divorce case—began on July 10, 2013, when Mother petitioned to have Father's parental rights to K.G. terminated. Mother alleged that Father had physically, mentally, or emotionally abused or neglected K.G. as defined by K.S.A.2014 Supp. 38–2202(d)(3), which she said qualified K.G. as a child in need of care. She claimed that Father was unfit by reason of condition or conduct that made him unable to care for K.G. at the time the petition was filed and in the foreseeable future. Mother alleged that through the divorce case, she had made reasonable efforts to restore Father's visitation with K.G. but that Father had opted not to comply with the court's orders of December 2011, April 2012, and July 2013. Mother argued that Father's rights should therefore be terminated to protect K.G.'s best interests.
Father moved to dismiss Mother's petition to terminate his rights. He argued that even though the petition mentioned finding K.G. a child in need of care, it did not request an adjudication on that issue, and because it requested termination of Father's rights without requesting a child-in-need-of-care finding, it should not be allowed to proceed. Father also argued he should be allowed to comply with reintegration efforts before the court terminated his rights.
In response, Mother moved the court to allow her to amend her original petition to seek a child-in-need-of-care finding in addition to the termination of Father's parental rights. In Mother's amended petition, Mother argued that the court should find that K.G. qualified as a child in need of care because Father had abused or abandoned him as defined by K.S.A.2014 Supp. 38–2202(d)(3) and (5). The court set Father's motion for hearing on October 3, 2013.
At the hearing, ultimately with Father's agreement, the court allowed Mother to amend her petition and set it for an evidentiary hearing that took place in May 2014.
Pending that hearing, the district court filed an order in February 2014 requiring that Father keep the parties updated on his employment situation; complete a hair-follicle drug test, a urinalysis, and a psychological evaluation; and release his medical records for the evaluation. Around this time, Father began making partial child-support payments for K.G. for the first time since 2012. Father also submitted to hair-follicle drug testing. Father tested positive for marijuana in January 2014 and negative in May 2014.
Mother, an attorney, represented herself at trial and called only three witnesses: Father, herself, and an expert that she had hired to evaluate K.G. Father testified that he had accepted new employment with B/E Aerospace at the end of January 2014 but had been unemployed before accepting that position since August 2013. Before that, Father said he had worked at one restaurant in Arizona, had done part-time work at a liquor store in Colorado, and had taken a 6–month contract job for Euclid Aviation in Florida after he had ended his employment with Beechcraft in June 2012.
Mother also presented some admissions from Father. In response to Mother's discovery requests, Father admitted that K.G. had received write-ups for behavioral aggression toward other kids two to three times a week in January and February 2012. Father also admitted that he had taken his children to eat at a restaurant where the waitresses did not wear clothes, that he had requested a substance-abuse evaluation only after his positive drug test and not before, and that K.G. had been removed from his custody as a result of his actions and inactions for at least 23 months. He also admitted he owed over $25,000 in back child support to Mother for K.G.
Father said that he had never had—and did not have as of the time of the trial—a problem with drug or alcohol addiction. Father did admit he had sent an e-mail to Mother that mentioned he had an addiction problem, but he said he did not remember writing it.
He said he could not recall having ever been treated for any mental-health problems, though he had been to counseling for marriage issues. Father also could not remember ever meeting with anyone the court appointed as a therapist for his children or if the court had appointed anyone, though the court took judicial notice of orders entered in family court regarding therapy for his children from both of his marriages.
Father said he had not seen K.G. since April 2012, which was 2 years before the hearing. He said that before Mother had filed the case, he had tried to complete the orders, but he lived in another state that did not offer the class he needed and he did not make enough money to pay child support as ordered. Father said he had inquired about K.G. online through family friends. He said he didn't worry about K.G.'s needs being met financially because Mother made good money as an attorney. He said he didn't intend to abandon K.G. but thought he couldn't realistically see him until he had money to feed him with. Father said his plan was therefore to get a job first and then to start seeing K.G. again. Father testified to completing a drug-and-alcohol-information class that lasted 8 hours one weekend. He admitted that he had not paid child support for some time but said he had been making partial payments between February and May 2014.
Father said he wanted to remain involved in K.G.'s life going forward and said he would do anything he had to do to make that happen, including anything the court asked of him. But Father admitted that he had previously refused to participate in a casemanagement process in the divorce case because he said he had thought that the caseworkers favored his ex-wife's side.
Mother testified that Father had told her during their relationship that he did not drink because he was a recovering alcoholic. At the end of their relationship, however, she said he had abused alcohol and marijuana and that she had once found a hypodermic needle. Mother said Father had let K.G.'s health insurance lapse and that he hadn't gotten back to her about K.G.'s kindergarten applications. Mother said that Father had reacted badly to the divorce and that his actions had made her and K.G. fear him, which caused K.G. to act out, get sick, and lose weight—issues that had resolved since Father had been out of K.G.'s life.
Dr. Molly Allen, a psychologist Mother hired, also testified. She said that children should not be forced to continuously grieve the loss of people in their lives. Allen suggested that a consistent schedule would be best for K.G. but said he wasn't an overly rigid child. Mother asked Allen if she thought it would be in K.G.'s best interests to reintegrate with Father. Allen said that it would in the long term but that she did not have enough information to completely answer the question.
After hearing this evidence, the court said that it was obligated to determine whether Mother had established that K.G. qualified as a child in need of care under K.S.A.2014 Supp. 38–2251 and to dismiss the proceedings if she had not. The court then proceeded to go through the definitions of a child in need of care under K.S.A.2014 Supp. 38–2202(d)(1)–(13) and found that none of them applied. The court found that Mother had not proved by clear and convincing evidence that K.G. qualified under any of the definitions.
Of particular importance to this appeal, the court said that K.G. was not a child in need of care by reason of abandonment under K.S.A.2014 Supp. 38–2202(d)(5) for what amounted to two reasons: (1) the statute did not specify how long the abandonment needed to have been, and Father's absence for 2 years did not constitute abandonment in this case; and (2) Mother was present and caring for the child, so K.G. had not been abandoned.
Because K.G. did not qualify as a child in need of care, the court said that it could not terminate Father's parental rights under the Revised Kansas Code for Care of Children. The court proceeded, however, to state that it would have denied Mother's request even if it had made the initial finding that K.G. was a child in need of care.
The court said that Mother also had failed to establish by clear and convincing evidence that Father was unfit and would remain so for the foreseeable future. It noted that even if one factor for terminating a parent's rights can be established, it does not mean that a court must terminate that parent's rights under K.S.A.2014 Supp. 38–2269(f). Likewise, the court said Mother had put forth no evidence that terminating Father's rights would be in K.G.'s best interests. The court said that “asking this Court to bastardize a child is troubling.”
Mother has appealed to this court.
Analysis
I. The District Court Did Not Err in Concluding That K.G. Had Not Been Shown to Be a Child in Need of Care.
Mother argues that the district court's finding that K.G. did not qualify as a child in need of care should be reversed because the district court misapplied statutory provisions relating to “abandonment” and because it disregarded uncontroverted evidence that Father abandoned and abused K.G. Generally, an appellate court will not reverse a district court's decision that a child does not qualify as a child in need of care unless it arbitrarily disregarded undisputed evidence or made its ruling based on bias, passion, or prejudice. In re L.C.W., 42 Kan.App.2d 293, Syl. ¶ 5, 211 P .3d 829 (2009). We give a great deal of deference to the district court's finding that a child is not in need of care because that is a negative factual finding, which means the district court found that the party moving to declare the child in need of care failed to satisfy the burden of proof. See generally In re Marriage of Kuzanek, 279 Kan. 156, 159–60, 105 P.3d 1253 (2005) (noting that “negative finding of fact” is the type of finding made by a court when a party “failed to sustain its burden of proof”); Mynatt v. Collis, 274 Kan. 850, Syl. ¶ 8, 57 P.3d 513 (2002).
Here, however, Mother argues in part that the district court incorrectly applied the law to the facts of this case by misapplying sections of the Code pertaining to the “abandonment” of a child by one of his parents. Whether the district court applied the correct legal standard or definitions when making its decision about K.G.'s status cannot fairly be characterized as an argument related to a “negative finding.” See Collis, 274 Kan. at 872 ; see In re Estate of Smith, No. 98,397, 2008 WL 1868685, at *4 (Kan.App.2008) (unpublished opinion). So we must independently consider Mother's contention that the district court erred in applying statutes, without giving deference to the district court. Becker v. Knoll, 291 Kan. 204, 212, 239 P.3d 830 (2010) (noting courts should apply unlimited standard of review to whether the district court properly applied the law to the facts). To the extent Mother's appellate argument challenges the district court's conclusion that she did not put forth sufficient evidence, however, she is complaining about a negative factual finding, and the standard of review for negative factual findings still applies. See In re Marriage of Kuzanek, 279 Kan. at 159–60 ; In re L.C.W., 42 Kan.App.2d at 302.
Mother's legal arguments are that the district court (1) failed to use the correct definition of “abandonment” and (2) failed to apply the durational requirement for abandonment that she says the legislature set in K.S.A.2014 Supp. 38–2271(a)(5). Had the district court correctly interpreted these provisions, Mother argues, it would have found K.G. a child in need of care.
1. We Find No Indication That the District Court Misapplied the Statutory Definition of Abandonment.
Under K.S.A.2014 Supp. 38–2202(d)(5), a child may be classified as a child in need of care if the court finds by clear and convincing evidence that the child “has been abandoned or does not have a known living parent.” See also K.S.A.2014 Supp. 38–2250 (requiring clear and convincing evidence to adjudicate a child in need of care). Mother claims that when the district court evaluated whether K.G. qualified as a child in need of care by reason of abandonment, it did not apply the statutory definition of abandonment provided in K.S.A.2014 Supp. 38–2202(a) and therefore came to a mistaken conclusion about whether Father had abandoned K.G.
Mother is correct that the district court did not specifically reference or discuss the definition of “abandonment” provided by the Code in K.S.A.2014 Supp. 38–2202(a) when looking at subsection (d)(5) in relation to K.G. Rather, the court simply found that Mother had shown no evidence that K.G. had been abandoned, specifically:
“I'll find that based on the evidence presented the child has not been abandoned by his father, and candidly hasn't been abandoned by his parent, as his mother candidly was involved in his rearing. Abandonment isn't set by a specific time. It could be a year, it could be longer, it could be shorter.
“In this case the facts do not support that the child has been abandoned, and obviously the child has a known living parent. For that reason, that does apply in this case, and the child is not a child in need of care pursuant to (d)(5).”
Not mentioned was a definition provided by statute for abandonment: “As used in the [Code], unless the context otherwise indicates: (a) ‘Abandon’ or ‘abandonment’ means to forsake, desert or, without making appropriate provision for substitute care, cease providing care for the child.” K.S.A.2014 Supp. 38–2202(a). We will discuss each of the separate terms that the legislature has used to define abandonment
Let's start with the last one—“without making provision for substitute care, [to] cease providing care for the child.” Mother argues that the district court ignored evidence that Father “cease[d] to provide care.” She notes that Father failed to make any financial contributions to K.G. from June 2012 to February 2014 and also that he did not have any authorized contact with K.G. during this time period; she claims that is uncontroverted evidence that K.G. was abandoned financially and emotionally.
Here, Mother ignores a key part of this statutory definition of abandonment. To “cease providing care for the child” does not—by itself—constitute abandonment. It must be combined with a failure to provide substitute care for the child. In this case, Father did not leave K.G. without financial or emotional support; he left K.G. with Mother.
The other two words used to define “abandon” in K.S.A.2014 Supp. 38–2202(a) —“forsake” and “desert”—each suggest a permanent act, not mere absence for a time. Merriam Webster's Collegiate Dictionary defines “forsake” as “to renounce or turn away from [someone or something] entirely” and “desert” as “to withdraw from or leave [someone or something] usu[ally] without intent to return.” Merriam–Webster's Collegiate Dictionary 337, 493 (11th ed.2014). There was evidence in this case that the district court could have used to conclude that Father did not intend to permanently abandon K.G.:
• Father did not willingly cease contact with K.G.; Mother prevented him, by court order, from having that contact. To be sure, Father did not follow through with court processes that could have restored contact, but he did try to contact K.G. through Mother's attorney and by sending him a card.
• Evidence supported Father's position that he lacked the funds to support K.G. for a time—at least at the court-ordered level—but he knew that Mother was caring for K.G. so that K.G. was not without adequate care.
• Father reinstituted child-support payments and opposed Mother's action to terminate his parental rights.
We acknowledge that the district court did not make any specific findings about how Father did not “abandon” or “desert” K.G. or about how he provided care for him under K.S.A. 38–2202(a), but Mother did not ask the district court to make these findings. When a party complains that the district court lacked adequate findings to support its judgment, it must request that the court make additional findings and it must provide the district court a chance to correct its error. Dragon v. Vanguard Industries, Inc., 282 Kan. 349, 356, 144 P.3d 1279 (2006). In the absence of an objection, appellate courts will not consider omissions in findings of fact and conclusions of law on appeal. Gilkey v. State, 31 Kan.App.2d 77, 77–78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003). In the absence of a request to the district court for more detailed findings, we presume on appeal that the district court made all the necessary findings to support its overall judgment, provided those findings are supported by the evidence. Dragon, 282 Kan. at 356 ; Mannon v. State, No. 107,421, 2012 WL 6061624, at *8 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1246 (2013). We have the option to remand to the district court for further findings if the lack of specific findings prevents meaningful appellate review. Dragon, 282 Kan. at 356 (citing Gilkey, 31 Kan.App.2d at 78 ).
We find no need to remand here for additional findings. The evidence we have discussed supports a finding that Father did not abandon K.G. Mother has not shown that the district court erred in its conclusion that she had failed to prove abandonment.
2. There Is No Durational Requirement for Abandonment in the Code Sections for Determining Whether a Child Qualifies as a Child in Need of Care.
Mother also argues that the district court erred as a matter of law when considering the evidence of abandonment because it did not look at the duration of Father's abandonment of K.G., which she claims exceeded the time that a parent may abandon a child before his rights are subject to termination under the Code. Mother is correct that the district court did not consider the duration of Father's abandonment; the district court said that the length of the abandonment wasn't determinative: “Abandonment isn't set by a specific time. It could be a year, it could be longer, it could be shorter.”
Mother disagrees, citing K.S.A.2014 Supp. 38–2271(a)(5), which she claims limits a parent's absence to less than 1 year and entitled her to a presumption of Father's unfitness because he had been absent from K.G.'s life for longer than 1 year:
“(a) It is presumed in the manner provided in K.S.A. 60–414, and amendments thereto, that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that:
....
(5) the child has been in an out-of-home placement, under court order for a cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home;
....
“(b) The burden of proof is on the parent to rebut the presumption of unfitness by a preponderance of the evidence. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall terminate parental rights....” (Emphasis added.)
Mother claims that by finding no durational requirement for abandonment as it pertained to a child-in-need-of-care finding, the district court erred because it disregarded this provision, which gives the party petitioning to terminate a parent's rights the benefit of a presumption that the parent is unfit if the child has been in out-of-home placement for more than 1 year. K.S.A.2014 Supp. 38–2271(a)(5), (b). Mother goes on to argue that as to Father, K.G. had been in out-of-home placement for more than 1 year, because he had been living with her since the divorce.
But the statute Mother cites does not apply to the determination of whether a child is in need of care. Rather, the duration requirement in K.S.A.2014 Supp. 38–2271(a)(5) would only come into play if the court has first determined that the child is in need of care and has moved on to consider whether Father is unfit as a parent, a second requirement for the termination of Father's parental rights. In that case, K.S.A.2014 Supp. 38–2271(a)(5) would have created a presumption that Father was unfit (assuming for the sake of this discussion that K.G. was in out-of-home placement as to Father). But under K.S.A.2014 Supp. 38–2251(a) –(b), the court must make a finding about whether a child is in need of care before considering a parent's fitness. If the child is not in need of care, then the proceedings must be dismissed. K.S.A.2014 Supp. 38–2251(a).
We note too that this presumption of unfitness applies to a different measure of behavior. The 1–year requirement there counts only time after the child has been in a court-ordered, out-of-home placement. K.S.A.2014 Supp. 38–2271(a)(5). Mother has not shown error in the district court's failure to apply the 1–year presumption found in K.S.A.2014 Supp. 38–2271(a)(5).
3. The District Court Did Not Arbitrarily Disregard Evidence That K.G. Qualified as a Child in Need of Care Because Father Had Abused Him.
Mother separately contends that the district court failed to consider the evidence she presented of Father's abuse of K.G. as an alternate reason that K.G. should be declared in need of care. Mother's argument here is not that the district court misapplied the abuse provisions of the Code but that it disregarded the following uncontroverted evidence that Father abused K.G.: (1) Father had been ordered to attend anger management in 2007; (2) Mother received an emergency divorce; (3) Father did not appear for a hearing where Mother alleged that Father abused K.G.; and (4) Father's other former wife had sole custody of Father's daughters because she had alleged that Father had been abusive.
But Mother's focus on this evidence does not explain why she believes the district court arbitrarily disregarded it. The court simply held that Mother had not met her burden of proof to show that K.G. needed care. In order to have met her burden, Mother needed to prove by clear and convincing evidence that K.G. was a child in need of care. K.S.A.2014 Supp. 38–2250. To establish something by clear and convincing evidence, the party must put forth evidence that shows that the truth of the facts asserted is highly probable. In re B.D.-Y., 286 Kan. 686, 697–98, 187 P.3d 594 (2008). The clear-and-convincing-evidence standard applies when important individual interests or rights are at stake and imposes an extremely high burden of proof, lower than for a criminal adjudication, but higher than the burden imposed in a typical civil matter. 286 Kan. at 697 ; In re Adoption of S.A.M., 36 Kan.App.2d 894, Syl. ¶ 4, 147 P.3d 158 (2006).
The evidence that Mother points to fails to satisfy that burden. Mother put on no evidence that Father abused anyone, let alone K.G. Even Mother's expert did not suggest that Father abused K.G. That the court ordered Father to attend anger management or that two of his ex-wives alleged that Father abused his children does not prove by clear and convincing evidence that Father abused K.G. so as to render K.G. a child in need of care under the Code.
Because Mother has not shown error in the district court's conclusion that K.G. was not a child in need of care, we need not address her separate arguments on appeal that the district court erred in failing to find Father unfit or that termination of Father's parental rights was in K.G.'s best interests. But our decision is subject to potential, discretionary review by the Kansas Supreme Court. Accordingly, in the interest of judicial economy, we will also address the other arguments Mother has made on appeal. Once again, we find no error by the district court.
II. The District Court Did Not Err by Holding That Father's Rights Should Not Be Terminated.
Mother next argues that the district court erred by concluding she had not proved that Father was unfit at the time of trial, that he would continue to be unfit for the foreseeable future, and that terminating Father's rights was in K.G.'s best interests. We will consider each of those issues separately.
1. The District Court Could Properly Have Declined to Find Father Unfit.
After finding that a child is in need of care, the district court may terminate a parent's rights to the child only when the party seeking to terminate the rights has shown the parent is unfit and will likely remain unfit for the foreseeable future and that it's in the best interests of the child to terminate the parent's rights. K .S.A.2014 Supp. 38–2269(a), (g)(1). Further, a parent's rights may be terminated only when the evidence supporting termination is particularly strong: under the statute, the evidence must be “clear and convincing.” K.S.A.2014 Supp. 38–2269(a). As with a child-in-need-of-care finding, clear and convincing evidence is evidence that is based on facts that are highly probable. In re B .D.-Y., 286 Kan. at 705. Mother argues that the district court erroneously concluded that she did not prove Father's unfitness at the time of trial or his likelihood of remaining unfit for the foreseeable future.
We review a district court's finding that a party failed to prove a parent's unfitness—another negative factual finding—only to ensure that the district court did not arbitrarily disregard any uncontroverted evidence or base its decision on some extrinsic consideration such as bias, passion, or prejudice. In re Marriage of Kopac, 30 Kan.App.2d 735, Syl. ¶ 1, 47 P.3d 425 (2002).
Mother argues that she presented uncontroverted evidence of Father's unfitness that the district court disregarded. Specifically, she says that Father did not comply with reintegration efforts, which she contends should have led to a finding of Father's present and ongoing unfitness to parent K.G. She points to evidence that Father did not comply with divorce-court orders and that he testified he had found case-management meetings and mediation between him and Mother ineffective. Mother argues that this was proof that Father was not fit under K.S.A.2014 Supp. 38–2269(c)(2)–(4), which allows the court to consider whether a parent whose child is not in his custody has failed to maintain visitation, carry out a court-approved reintegration plan, and pay child support when determining if the parent is fit.
Mother is correct that she put forth some evidence that Father was not fit under this provision. But simply because this evidence did not result in a finding for Mother does not mean that the district court arbitrarily disregarded it.
First, the district court need not terminate a parent's rights merely because a single factor indicates unfitness. K.S.A.2014 Supp. 38–2269(a) (“When the child has been adjudicated to be a child in need of care, the court may terminate parental rights....” [Emphasis added.] ); K.S.A.2014 Supp. 38–2269(f) (“The existence of any one of the above factors standing alone may, but does not necessarily, establish grounds for termination of parental rights.” [Emphasis added.] ); In re B.H., 32 Kan.App.2d 12, 21, 80 P.3d 396 (2003). Termination is not mandatory under the Code in every instance that a parent is deemed unfit. In re K.P., 44 Kan.App.2d 316, 321–22, 235 P.3d 1255 (2010), rev. denied October 7, 2010. Second, in this case, disregarding Mother's evidence would not have been arbitrary. For instance, she claimed Father had not followed a courtapproved reintegration plan, but there was no court-approved reintegration plan developed in response to the child-in-need-of-care petition, only divorce-court orders. Also, some evidence supported Father's claim that he lacked the ability to pay child support during the time he failed to pay. Moreover, Father was prohibited from having contact with K.G. by Mother (albeit through court orders); he did not simply cease contacting K.G. on his own accord.
So, under the facts of this case, the district court could have found that Mother did not prove Father's unfitness by clear and convincing evidence because of evidence to the contrary. Or the district court could have found that despite the evidence Mother points to, Father did not need to be deemed unfit under the law. Finally, the district court could even have found that Father was legally unfit but that termination was not the proper outcome here. In any event, Mother has not shown error by the district court.
2. The District Court Could Properly Have Rejected the Claim That Terminating Father's Parental Rights Was in K.G.'s Best Interests.
Mother's final argument is that the district court erred by concluding that she failed to establish that terminating Father's rights was in K.G.'s best interests. Once the court makes a finding of unfitness, it must then determine whether terminating the parent's rights is in the child's best interests. K.S.A.2014 Supp. 38–2269(g)(1) ; In re K. W, 45 Kan.App.2d 353, 354, 246 P.3d 1021 (2011) ; see In re K.M., No. 111,109, 2014 WL 3907119, at *12 (Kan.App.2014) (unpublished opinion). When determining whether termination of a parent's rights is in a child's best interests, the court must give primary consideration to the child's physical, mental, and emotional health. K.S.A.2014 Supp. 38–2269(g)(1).
To do so, the court must weigh the benefits of termination, which include permanency for the child, against the consequences of termination, which may include a severing of the relationship between the parent and child. In re K.R., 43 Kan.App.2d 891, 904, 233 P.3d 746 (2010). K.S.A.2014 Supp. 38–2269(g)(1) does not require that the district court make specific findings on the record when deciding whether termination is in a child's best interests, only that it consider the statutory criteria. See also In re T.T., No. 106,939, 2012 WL 3822914, at *6 (Kan.App.2012) (unpublished opinion).
Here again, the district court concluded that Mother failed to carry her evidentiary burden of showing that K.G. would best be served by terminating Father's rights-a negative finding of fact. Thus, this court may only reverse the district court's best-interest determination if it finds that the district court arbitrarily disregarded uncontroverted evidence or made its decision based on passion, prejudice, or bias. In re Marriage of Kopac, 30 Kan.App.2d 735, Syl. ¶ 1.
Mother argues that the district court failed to consider the following uncontroverted evidence that suggested terminating Father's rights was in K.G.'s best interests: (1) if Father's rights remain intact, he has a financial incentive to harm Mother to receive K.G.'s inheritance from Mother's family; (2) using K.G.'s college fund to litigate custody battles harms K.G.; and (3) Mother requested restraining orders against Father in the past. Mother notes that the court did not mention these arguments when it concluded that K.G.'s best interests would not be served by terminating Father's rights.
But as noted above, simply because the court did not mention Mother's evidence does not mean that the court did not consider it. See Dragon, 282 Kan. at 356 (noting that, in the absence of an objection at the district court, this court presumes that the district court made the appropriate findings to support its conclusions). Further, Mother's evidence in support of termination cannot be considered in isolation from the evidence against it, the strongest of which goes directly to the heart of the factors the district court was required by statute to consider: K.G.'s mental, emotional, and physical health. K.S.A.2014 Supp. 38–2269(g)(1). Indeed, Mother's expert testified K.G. would benefit longterm from a relationship with his Father. This information is more important in light of the statute's criteria than the information Mother emphasizes.
The only objective witness in this case suggested that K.G. would benefit from a relationship with his Father over time. We find no error in the district court's conclusion that Mother failed to prove that K.G.'s emotional, physical, and mental well-being would be best served by terminating Father's parental rights.
We affirm the district court's judgment.
LEBEN, J., concurring.
I wish to add an additional note, speaking only for myself, regarding the abandonment issue in this case.
Beyond the statutory definition of “abandon” or “abandonment,” the structure of the statute suggests that Father did not abandon K.G. in this case. Consider the different ways in which statutory provisions defining parental fitness and child abandonment have been written. K.S.A.2014 Supp. 38–2202(d), which defines when a child is in need of care, focuses on the child, while K.S.A. 38–2269, which defines parental unfitness, focuses on the parent. K.S.A. 38–2202(d)(5)'s provision on abandonment is phrased in passive voice to focus on abandonment of the child (“[the child] has been abandoned or does not have a known living parent”), not the act of an individual parent. While our court has previously said that a court should focus only on the conduct of the parent whose rights are at issue or against whom the child-in-need-of-care petition is brought, we have made that statement in cases involving whether the parent had abused or neglected the child, not in relation to a finding of abandonment. See In the Interest of C.D.W., 24 Kan.App.2d 456, 458, 946 P.2d 100 (1997) ; In the Interest of N.D.G., 20 Kan.App.2d 17, 23–24, 883 P.2d 89, rev. denied 256 Kan. 995 (1994).
This makes sense: when a court is considering whether a child has been abused or neglected by a parent, it is logical to look only at the conduct of the parent against whom those allegations were made. But here, the abandonment provision in the Code looks at the position of the child and authorizes a child-in-need-of-care finding only when the child “has been abandoned or does not have a known living parent.” K.S.A.2014 Supp. 38–2202(d)(5). So, while a child can be abused by a single parent—as the court in In re C.D. W. found—a child can only be abandoned if both parents desert the child. See 24 Kan.App.2d at 458. Such a finding comports with this court's warning in In re N.D.G. that the child-in-need-of-care provisions ordinarily should not be used to litigate custody disputes between parents that could otherwise be resolved by a divorce court. See 20 Kan.App.2d at 23 (noting that “we do not recommend the use of [the Code] to litigate custody disputes between two persons involved in a divorce action”).
In this case, of course, K.G. was not abandoned by both parents. In my view, that provides an additional basis for affirming the district court's conclusion that K.G. was not a child in need of care under K.S.A.2014 Supp. 38–2202(d)(5).
GREEN, J., dissenting.
I respectfully dissent from the majority's holding that the trial court properly construed and applied K.S.A.2014 Supp. 38–2202(d)(5) in determining that the father did not abandon his child, K.G.
K.S.A.2014 Supp. 38–2202(d)(5) states the following:
“(d) ‘Child in need of care’ means a person less than 18 years of age at the time of filing of the petition or issuance of an ex parte protective custody order pursuant to K.S.A.2014 Supp. 38–2242, and amendments thereto, who:
(5) has been abandoned or does not have a known living parent.”
In construing and applying K.S.A.2014 Supp. 38–2202(d)(5), the trial court concluded:
“I'll find that based on the evidence presented the child has not been abandoned by his father, and candidly hasn't been abandoned by his parent, as his mother candidly was involved in his rearing. Abandonment isn't set by a specific time. It could be a year, it could be longer, it could be shorter.
“In this case the facts do not support that the child has been abandoned, and obviously the child has a known living parent. For that reason, that does apply in his case, and the child is not a child in need of care pursuant to (d)(5).”
Specifically, the trial court seemed to conclude that there can be no abandonment under K.S.A.2014 Supp. 38–2202(d)(5) if there is a parent involved in the rearing of the child or if the child has a known living parent.
K.S.A.2014 Supp. 38–2202(a) defines abandonment as follows: “ ‘Abandon’ or ‘abandonment’ means to forsake, desert or, without making appropriate provision for substitute care, cease providing care for the child.” As the majority correctly pointed out, the trial court did not specifically reference or discuss this definition of abandonment in interpreting the meaning of the “abandoned” prong under K.S.A.2014 Supp. 38–2202(d)(5).
The definition of abandon or abandonment under K.S.A.2014 Supp. 38–2202(a) seems to focus on a parent's conduct. The definition seems to say that abandonment occurs when a parent fails to maintain an interest, a concern, or a responsibility as to the welfare of the child. This would mean that a parent would have an individual responsibility to maintain an interest, a concern, or a care for the welfare of the child. This reasoning is borne out by the definition of a parent under K.S.A.2014 Supp. 38–2202(u) : “ ‘Parent’ “ when used in relation to a child or children, includes a guardian and every person who is by law liable to maintain, care for or support the child.” Thus, under this definition, each parent is “liable to maintain, care for or support the child.”
Turning to the trial court's ruling that there can be no abandonment under K.S.A.2014 Supp. 38–2202(d)(5) if there is a parent involved in the rearing of the child or if the child has a known living parent, I could find no statutory support for either of these conditions. None of the statutes previously cited state there can be no abandonment under K.S.A.2014 Supp. 38–2202(d)(5) if there is a parent—the mother in this case—involved in the rearing of the child. As a result, the trial court has adopted an unstated statutory requirement (if there is a parent involved in the rearing of the child) and elevated it above the plain statutory language of statutes previously discussed.
As to the trial court's second condition (if the child has a known living parent) for concluding that no abandonment occurred, this condition was apparently derived from the second prong of K.S.A.2014 Supp. 38–2202(d)(5). This subsection can be diagrammed as follows:
Child in need of care means a person less than 18 years of age at the time of filing of the petition or issuance of an ex parte protective custody order pursuant to K.S.A.2014 Supp. 38–2242, and amendments thereto, who:
| 1st Prong | 2nd Prong | |
|---|---|---|
| Has been abandoned | or | Does not have a known living parent |
The legislature, in using the word “or,” wrote K.S.A.2014 Supp. 38–2202(d)(5) in the disjunctive. Indeed, in Davis v. Vermillion, 173 Kan. 508, 510–11, 249 P.2d 625 (1952), our Supreme Court stated that the word “or” is to be interpreted as used in the disjunctive: “ ‘[T]he ordinary interpretation given to the word “or” is not as a conjunctive.’ “ Quoting 67 C.J.S. Or., p. 518 (1950). See also State v. McGaugh, 180 Kan. 850, 853, 308 P.2d 85 (1957).
Just because a child has “a known living parent” does not mean that the child cannot be abandoned. Again, none of the statutes previously discussed state that no abandonment can occur under K.S.A.2014 Supp. 38–2202(d)(5) if the child has a known living parent. The trial court ignored the disjunctive component under K.S.A.2014 Supp. 38–2202(d)(5). Thus, the trial court's conclusion that no abandonment can occur if the child has a known living parent is at variance with K.S.A.2014 Supp. 38–2202(d)(5). Obviously, the trial court's interpretation of that statute would make the abandonment prong of K.S.A.2014 Supp. 38–2202(d)(5) of no effect when a parent is involved in the rearing of the child or when the child has a known living parent.
This same reasoning also applies to Judge Leben's concurring opinion where he states the following: “[T]he abandonment provision in the Code looks at the position of the child and authorizes a child-in-need-of-care finding only when the child ‘has been abandoned or does not have a known living parent.’ K.S.A.2014 Supp. 38–2202(d)(5). So, while a child can be abused by a single parent—as the court in In re C.D.W. found—a child can only be abandoned if both parents desert the child.” Slip op. at 20–21. Thus, Judge Leben would make the abandonment prong of K.S.A.2014 Supp. 38–2202(d)(5) of no effect unless the child is deserted by both parents. Does this mean that a child with only one living parent could not be abandoned by that parent under the abandonment prong of K.S.A.2014 Supp. 38–2202(d)(5) ? I think not. As a result, I would reverse based on the trial court's and the majority's restricted interpretation of the abandonment prong under K.S.A.2014 Supp. 38–2202(d)(5) and remand for further proceedings.