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In re D.H.

Court of Appeals of Kansas

October 18, 2019

In the Interest of D.H., A Minor Child.

         SYLLABUS BY THE COURT

         1.

         The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained.

         2.

         When 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.

         3.

         Courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation.

         4.

         The 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 adjudication hearing.

          Appeal from Ellis District Court; Glenn R. Braun, judge.

          Carol 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.

          STANDRIDGE, J.

         This is 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.

         Factual and Procedural History

         D.H. 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.

         In 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 Father.

         In 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.

         In 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.

         In 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 with [D.H.]"

         Father 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.

         In late 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 ...


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