BY THE COURT
most fundamental rule of statutory construction is that the
intent of the Legislature governs if that intent can be
construing statutes to determine legislative intent,
appellate courts must consider various provisions of an act
in pari materia with a view of reconciling and
bringing the provisions into workable harmony if possible.
must construe statutes to avoid unreasonable or absurd
results and presume the Legislature does not intend to enact
temporal scope of the circumstances to be considered by the
court in deciding whether to adjudicate a child as one in
need of care must be based on the plain language of the
statutory criteria upon which the court is making the
adjudication decision. If the statutory criterion is framed
in the present perfect tense, then the adjudication decision
will depend upon a view of the child's circumstances in
the past and perhaps continuing to the present. If the
statutory criterion is framed in the present tense, then the
adjudication decision will depend upon a view of the
child's present circumstances existing on the day of the
from Ellis District Court; Glenn R. Braun, judge.
M. Park, of Schwartz & Park, L.L.P., of Hays, for
appellant natural mother.
Charlene Brubaker, assistant county attorney, for appellee.
Before Standridge, P.J., Atcheson and Schroeder, JJ.
an expedited appeal from a child in need of care (CINC)
proceeding under the revised Kansas Code for Care of Children
(Code), K.S.A. 2018 Supp. 38-2201 et seq. Relevant here,
D.H., a minor, lived with her natural father (Father) in
Hays, Kansas, from 2009 to 2018. D.H.'s natural mother
(Mother) lived in Illinois during that time period. In June
2018, Father died and the district court granted temporary
legal custody of D.H. to the Secretary of the Kansas
Department for Children and Families (DCF). The district
court later issued an order of adjudication finding D.H. to
be a child in need of care. Mother appeals from the order of
adjudication, arguing the court's finding was based on
evidence outside the relevant time period. Mother also argues
the court's adjudication decision is not supported by
clear and convincing evidence in the record. For the reasons
stated below, we reverse the district court's order of
adjudication and remand with directions.
and Procedural History
was born in December 2007. Mother and D.H.'s natural
father (Father) were never married and split up not long
after D.H. was born.
April 2008, when D.H. was almost five months old, the State
filed a petition in juvenile case number 08-JC-34 alleging
that D.H. was a child in need of care. Although the record
does not reflect an exact date, the district court later
issued an order of adjudication in the 2008 CINC case finding
D.H. to be a child in need of care as to both Mother and
September 2008, the district court issued an order in
domestic case number 08-DM-138, which legally established
Father's paternity as to D.H. On or around the time this
order establishing paternity was filed, Mother became
pregnant-but not by Father- with another child.
April 2009, DCF-formerly known as the Kansas Department of
Social and Rehabilitation Services-filed a petition in
domestic case number 09-DM-061, requesting that the district
court enter an order requiring Mother to pay child support
and medical expenses for D.H.
early May 2009, Father filed a motion to establish residency
and parenting time for D.H. Father filed this motion in both
the domestic paternity case, 08-DM-138, and the domestic
child support case, 09-DM-061. In support of this motion,
Father stated, in relevant part:
"That the [two domestic] cases deal with child support
and not residency and parenting time.
"That there is currently an ongoing CINC case involving
[D.H.] Said case is Ellis County Case No. 08-JC-34. Said case
is ready for dismissal upon orders of residency and parenting
time being entered in [the domestic paternity case and the
domestic child support case], as [Father] and [Mother] no
longer live together.
"That the recommendations in Case No. 08-JC-34 [the CINC
case] are that [Father] be granted residency and [Mother be
granted] supervised visitation of one hour minimum per week
attached a proposed parenting plan to his motion. With regard
to legal custody, Father recommended that the court order
joint legal custody of D.H. In support of this
recommendation, Father expressly stated that both Mother and
Father "are fit and proper persons to have joint
responsibility for the care of the minor child [and that it]
is in the best interest of the child that the parties jointly
share in the care of the child." With regard to physical
custody, Father recommended that the court grant him primary
physical custody of D.H. and that Mother have at least one
hour of supervised visitation per week.
May 2009, the district court held a hearing on Father's
motion. Father appeared in person and with counsel. Mother
appeared in person without counsel. At the outset of the
hearing, Father's attorney announced that the parties had
come to an agreement regarding residency and parenting time.
Father's attorney set forth the terms of the agreement.
Although the transcript of this 2009 hearing is not in the
record, it appears from the journal entry that the agreement
essentially mirrored a proposed parenting plan attached to
Father's motion to establish residency and parenting
time. After verifying that Mother agreed to the terms stated,
the court granted Father primary physical custody (residency)
of D.H., with Mother having phone parenting time/visitation
once a week. The court ...