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23 Kan. App. 2d 686

No. 77,255

IN THE INTEREST OF A.N.P.

SYLLABUS BY THE COURT

1. Under K.S.A. 38-1503, the district court's subject matter jurisdiction in child in need of care cases is based upon the presence of the child in Kansas--i.e., jurisdiction under the Uniform Child Custody Jurisdiction Act--and the status of the child as one who appears to be a child in need of care. The status and identity of the parents is not relevant to the court's subject matter jurisdiction.

2. The definition of "parent" in the Kansas Code for Care of Children is ambiguous and does not specifically require an actual determination of paternity. The entire Act speaks broadly of "parents." If only presumed or determined fathers are "parents" under the Kansas Code for Care of Children, then unknown fathers and alleged but unproven fathers would not have to be named in the child in need of care pleadings, would not receive summons notifying them of the action, and would not be entitled to appointed counsel.

3. Narrowly interpreting "parent" under the Kansas Code for Care of Children to include only admitted, proven, or presumptive fathers would undermine the purpose of the Code by unduly limiting the State's power when dealing with children with unknown or uncertain paternity.

4. The Kansas Legislature intended to include alleged, nonpresumptive fathers as "parents" under the Kansas Code for Care of Children.

Appeal from Wyandotte District Court; GEORGE A. GRONEMAN, judge. Opinion filed March 21, 1997. Affirmed.

Mark Davis, of Kansas City, for appellant.

John B. Knudsen, assistant district attorney, and Carla J. Stovall, attorney general, for appellee.

Before MARQUARDT, P.J., RULON, J., and TIMOTHY G. LAHEY, District Judge, assigned.

RULON, J.: Appellant James McGinnis appeals from the district court's order terminating his parental rights as the alleged father of A.N.P. We affirm.

A detailed statement of the facts is not needed for us to resolve the paramount issue raised in this appeal. Facts necessary to our decision are found in our following discussion.

In his first argument on appeal, McGinnis contends the district court lacked subject matter jurisdiction over him because he was not a "parent" as defined under the Kansas Code for Care of Children (KCCC), K.S.A. 38-1501 et seq. McGinnis relies on various provisions in the KCCC and the Kansas Parentage Act (KPA), K.S.A. 38-1110 et seq.

First, we must consider and construe various provisions of the KCCC. "Interpretation of a statute is a question of law and subject to unlimited review by the appellate courts." In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, Syl. ¶ 1, 913 P.2d 213 (1996).

The various principles of statutory construction were discussed by this court recently in In re J.A.C., 22 Kan. App. 2d 96, 911 P.2d 825 (1996). The primary rule of statutory construction is that the intent of the legislature governs if such intent can be determined. 22 Kan. App. 2d at 101. However, when a statute is not ambiguous, "'the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.' [Citation omitted.]" 22 Kan. App. 2d at 101.

The parameters of the district court's jurisdiction under the KCCC are set forth in K.S.A. 38-1503. Under that statute, district courts are given original jurisdiction, subject to the Indian Child Welfare Act and the Uniform Child Custody Jurisdiction Act (UCCJA), "to receive and determine proceedings under this code." K.S.A. 38-1503(b). Proceedings under the Code include any matter "concerning any child who appears to be a child in need of care." K.S.A. 38-1503(a).

Under K.S.A. 38-1503, the district court's subject matter jurisdiction in child in need of care (CINC) cases is based upon the presence of the child in Kansas--i.e., jurisdiction under the UCCJA--and the status of the child as one who appears to be a child in need of care. The status and identity of the parents is not relevant to the court's subject matter jurisdiction. There is no dispute in this case that A.N.P. was born at Bethany Medical Center in Kansas City, Kansas, shortly before the CINC petition was filed and that, based upon the presence of cocaine in her system at the time of birth, she appeared to be a child in need of care. Consequently, under K.S.A. 38-1503, the district court had subject matter jurisdiction over A.N.P.'s proceeding until such proceeding was terminated under K.S.A. 38-1503(c) or (d).

To some extent, McGinnis' jurisdiction arguments are similar to those earlier rejected by this court. In In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, the heir of a conservatee alleged the district court lacked subject matter jurisdiction in a guardianship case because the conservatee died prior to the issuance of letters of conservatorship and the posting of the bond by the conservator. In Heck, we noted the court's subject matter jurisdiction, as set forth by statute, depended solely on the presence or residence of the proposed conservatee, and once jurisdiction was properly invoked, the court's jurisdiction continued until terminated as provided by the statutes. 22 Kan. App. 2d at 139-40.

As in Heck, McGinnis' arguments are more properly treated as a challenge to the district court's authority under the KCCC rather than a challenge to its subject matter jurisdiction. Cf. In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d at 142. In this regard, McGinnis' arguments are construed as contending that the district court did not have the authority to terminate the parental rights of fathers in CINC proceedings unless paternity is presumed, proven, or unchallenged.

In his argument, McGinnis cites to the definition of "parent" in the KCCC. The definition statute provides, in relevant part, as follows:

McGinnis argues that unless he is the presumed father under K.S.A. 1996 Supp. 38-1114 or his paternity is actually determined under the K.P.A., he has no legal obligation toward A.N.P. McGinnis claims he is not a "parent" and the district court has no power to terminate any rights he may or may not have with respect to A.N.P.

The definition of "parent" in the KCCC is ambiguous and does not specifically require an actual determination of paternity. The entire Act speaks broadly of "parents." If only presumed or determined fathers are "parents" under the KCCC, then unknown fathers and alleged but unproven fathers would not have to be named in the CINC pleadings, K.S.A. 38-1531(b)(1)(B); would not receive summons notifying them of the action, K.S.A. 38-1532(a) and K.S.A. 38-1533(a); and would not be entitled to appointed counsel, K.S.A. 38-1505(b).

Narrowly interpreting "parent" under the KCCC to include only admitted, proven, or presumptive fathers would undermine the purpose of the Code by unduly limiting the State's power when dealing with children with unknown or uncertain paternity. However, the narrow definition of "parent" proposed by McGinnis would, in fact, preclude a court from fully handling the care of all children whose fathers are unknown or uncertain.

We are convinced the Kansas Legislature intended to include alleged, nonpresumptive fathers as "parents" under the KCCC. A strong indicator of the legislature's intent is the KCCC's statutory provision dealing with parentage issues. Under K.S.A. 38-1516(a) and (b), if a parentage issue arises prior to a CINC adjudication, the court may require the pleadings to be amended to name an additional party and/or for service of process to be made on an additional party. That statute additionally provides:

One of the purposes of the KCCC is to have all CINC proceedings "disposed of without unnecessary delay." K.S.A. 38-1551(a).

McGinnis argues that interpreting the KCCC to give the district court authority over alleged (but unproven) fathers would be a statutory construction which would lead to "'uncertainty, injustice or confusion.'" See Coe v. Security National Ins. Co., 228 Kan. 624, Syl. ¶ 2, 620 P.2d 1108 (1980). McGinnis argues the child will be penalized because she will never know who her true father is, citing Jensen v. Runft, 252 Kan. 76, 843 P.2d 191 (1992). In Jensen, however, the issue was focused on whether it was in the best interests of the child to order paternity testing. 252 Kan. at 79-80. Here, A.N.P.'s guardian ad litem did not object to testing, but did not request such testing. Clearly, if a guardian ad litem believes it is in the child's best interests to verify the identity of his/her father, the guardian ad litem can seek a determination of paternity.

McGinnis further argues that the best interests of the State are served by requiring a paternity determination because the State can then seek child support from the proven father. This argument fails, however, in this case because the State made it clear at the initial CINC hearing that the State intended to request termination of all parental rights in conjunction with the CINC proceeding as permitted by K.S.A. 38-1581(a).

McGinnis additionally argues that broadly reading "parent" to include alleged fathers was unfair to putative fathers who are at risk of ignoring their own child or accepting responsibility for another man's child. As we understand, McGinnis argues the district court's interpretation of the statute deprives him of rights he may have to A.N.P. because he has insufficient funds for paternity testing. These arguments are devoid of legal merit.

Nothing in the KCCC precludes an alleged father from initiating an action under the KPA to prove or disprove his parentage in order to decide what course of action he wishes to take in the CINC proceeding. Under the KPA, the district court "shall order the mother, child and alleged father to submit to genetic tests" whenever paternity of the child is in issue. K.S.A. 1996 Supp. 38-1118. The KPA further gives the district court the power to assess such costs among the parties or "order the proportion of any indigent party to be paid from the general fund of the county." K.S.A. 38-1122.

McGinnis' arguments gloss over the fact that at his request, the district court ordered the parties to submit to genetic testing and directed him to arrange the same in February 1996. The court's order required McGinnis to assume financial responsibility for the tests unless he provided additional evidence to support his unsubstantiated claim of indigency. In addition, the court continued the trial date from March to May 1, 1996. There is no dispute that at all critical times McGinnis was no longer in custody and was earning at least some wages.

Instead of arranging for these tests or immediately submitting information to establish his indigency, McGinnis did nothing. He waited until the end of April, only 1 week before the trial, to again request paternity testing. In his motion, McGinnis again failed to present any evidence of indigency other than stating he was incarcerated. The court's determination that McGinnis knowingly failed to carry out the court's February order is supported by the record.

Under the facts presented, McGinnis seeks to avoid termination of his potential parental rights and deprive SRS of the ability to find A.N.P. a permanent or long-term placement by ignoring the court's order regarding paternity testing. Such conduct undermines the purposes of the KCCC and effectively allows an alleged father to continuously delay an ultimate adjudication and disposition of the case.

Unquestionably, the district court did not err in denying McGinnis' motion to dismiss for lack of jurisdiction. The KCCC provides the district court authority to conduct CINC proceedings and termination actions with "alleged" fathers. Such fathers who question their obligations as to these troubled children would have the opportunity to use the K.P.A. to seek paternity testing and, if indigency is established, request the court to assess the costs of the testing against a governmental fund. Clearly, the rights of the alleged father are protected, and the interests of the State and the child in prompt CINC proceedings are likewise protected.

Next, McGinnis contends the State failed to prove the allegations in the petition requesting termination of his parental rights. We firmly disagree.

The standard of review in a case involving the termination of parental rights is whether there is substantial competent evidence in the record to support the trial court's decision that the parent was unfit and that the parental rights should be terminated. In re S.M.Q., 247 Kan. 231, 240, 796 P.2d 543 (1990). Although the State has the burden to prove "unfitness" by clear and convincing evidence before the district court, the clear and convincing standard does not affect this court's scope of review. 247 Kan. at 238, 240. This court cannot reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. This court must review the evidence in the light most favorable to the party prevailing below. 247 Kan. at 234; In re T.D.W., 18 Kan. App. 2d 286, 289-90, 850 P.2d 947 (1993).

The parent must be found "unfit" by the trial court before parental rights may be severed. K.S.A. 1996 Supp. 38-1583(a); In re M.M., 19 Kan. App. 2d 600, 607, 873 P.2d 1371 (1994). "'The term "unfit" is defined to include inherent mental and emotional incapacity to perform parental obligations which can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child.' [Citation omitted.]" In re N.D.G., 20 Kan. App. 2d 17, 21, 883 P.2d 89, rev. denied 256 Kan. 995 (1994).

Here, the district court found that McGinnis' conduct supported termination of any parental rights he might have under K.S.A. 1996 Supp. 38-1583(b)(4), (7), and (8) and K.S.A. 1996 Supp. 38-1583(c)(1)-(4). The court based these findings on McGinnis' failure to verify his parental status, his incarceration, and his failure to exercise visitation while he was released from jail. The court additionally found there was no evidence that McGinnis had attempted to learn parenting skills while incarcerated. McGinnis does not directly contradict the court's findings about these factors. Consequently, this issue is summarily affirmed.

Affirmed.