This court reversed on the grounds that the district court had improperly required A.W.B. and K.Y.B. to meet the clear and convincing evidence standard of proof. In In re L.D.B., 20 Kan.App.2d 643, 646-47, 891 P.2d 468 (1995), the court held that the preponderance of the evidence standard must be used when evaluating whether the parents have rebutted the presumption of unfitness created by K.S.A. 38-1585.        On remand, the district court applied the preponderance of the evidence standard and found that neither parent had rebutted the presumption of unfitness, terminating the parental rights of A.W.B. and K.Y.B.

Lower federal courts and state courts have followed the Supreme Court's lead. See, e.g., N. Am. Coal Corp. v. Campbell, 748 F.2d 1124, 1128 (6th Cir. 1984) (holding that there was a rational connection between working 25 years in a coal mine and developing black lung disability); Ala. By-Products Corp. v. Killingsworth, 733 F.2d 1511, 1517-18 (11th Cir. 1984) (holding that Congress was not "acting in a purely arbitrary manner" when finding a rational connection between working ten years in a coal mine and pneumoconiosis); Jim Crocket Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 490-91 (4th Cir. 1983) (finding no rational connection between complaints of loudness and prima facie evidence of violation of a noise ordinance); In re L.D.B., 891 P.2d 468, 470-71 (Kan.Ct.App. 1995) (finding a rational connection between a past judicial determination of unfitness and a presumption that the parent is unfit as to the present child); Diáaz Fontáanez, 2001 WL 1346759, at *10 (P.R.) ("[A]s a due process imperative, the existence of a rational nexus between the basic fact and the fact presumed is required.") Pneumoconiosis is a chronic respiratory impairment caused by long-term inhalation of coal dust.

Other states addressing this issue have reached a similar conclusion. See, e.g., Interest of L.D.B., 891 P.2d 468, 471 (Kan. Ct. App. 1995) (holding that a parent must rebut a presumption of parental unfitness during a termination proceeding by a preponderance of the evidence); In re Interest of Kyle S.-G., 533 N.W.2d at 797 (concluding that a parent must rebut a presumption of abandonment by a preponderance of evidence during a termination proceeding); cf. In re A.M., 831 N.E.2d 648, 653-55 (111. App. Ct. 2005) (determining a parent must rebut a presumption in a termination proceeding by introducing sufficient evidence to the contrary of the presumption); In re Welfare of J.W., 807 N.W.2d 441, 445-46 (Minn. Ct. App. 2011) (requiring a parent to rebut a presumption in a termination proceeding by presenting evidence '"that would justify a finding of fact contrary to the assumed fact'" (quoting Minn. R. Evid. 301)). Based on our review of the pertinent statutes, we conclude that Nevada law requires a parent to rebut NRS 128.109's presumptions by a preponderance of the evidence.

Other states addressing this issue have reached a similar conclusion. See, e.g., Interest of L.D.B., 20 Kan.App.2d 643, 891 P.2d 468, 471 (1995) (holding that a parent must rebut a presumption of parental unfitness during a termination proceeding by a preponderance of the evidence); In re Interest of Kyle S.-G., 533 N.W.2d at 797 (concluding that a parent must rebut a presumption of abandonment by a preponderance of evidence during a termination proceeding); cf. In re A.M., 358 Ill.App.3d 247, 294 Ill.Dec. 698, 831 N.E.2d 648, 653–55 (2005) (determining a parent must rebut a presumption in a termination proceeding by introducing sufficient evidence to the contrary of the presumption); In re Welfare of J.W., 807 N.W.2d 441, 445–46 (Minn.Ct.App.2011) (requiring a parent to rebut a presumption in a termination proceeding by presenting evidence “ ‘that would justify a finding of fact contrary to the assumed fact’ ” (quoting Minn. R. Evid. 301)).

Id. Similarly, the Kansas Court of Appeals in In the interest of L.D.B., C.C.B., and V.J.B., 891 P.2d 468, 471 (Kan.App.Ct. 1995), held that when a parent rebuts a showing of parental unfitness, he or she must only prove the rebuttal evidence under a preponderance of the evidence standard. The court stated:

The State bears the burden to prove both that the parent is unfit at the time of the request to terminate parental rights and that the unfitness is unlikely to change in the foreseeable future. In re L.D.B., 20 Kan.App.2d 643, 646, 891 P.2d 468 (1995); see K.S.A. 38-2269(a).

In re T.H., 60 Kan.App.2d 536, 547, 494 P.3d 851 (2021) (quoting In the Interest of Armentrout, 207 Kan. 366, 371-72, 485 P.2d 183 [1971]). The State bears the burden to prove both that the parent is unfit at the time of the request to terminate parental rights, and that the unfitness is unlikely to change in the foreseeable future. In re L.D.B., 20 Kan.App.2d 643, 646, 891 P.2d 468 (1995); see K.S.A. 38-2269(a). When a parent challenges the sufficiency of the evidence supporting a finding of unfitness, an appellate court will uphold the decision only if, after reviewing the record in a light most favorable to the prevailing party, the district court's findings are supported by clear and convincing evidence. Stated differently, the government must persuade us that a rational fact-finder could have found it highly probable

As noted in another context, " 'to avoid a directed verdict as to the presumed fact, the party adversely affected by the presumption must offer sufficient evidence to permit a rational factfinder to find the nonexistence of the presumed fact....' " (Emphasis added.) In re L.D.B., 20 Kan.App.2d 643, 647, 891 P.2d 468 (1995) (quoting 29 Am.Jur.2d, Evidence § 199) (discussing presumption of unfitness in termination of parental rights proceeding).        Finally, S.M.D. argues that the procedures were fundamentally unfair because the district court had failed to establish local rules of procedure for extended jurisdiction juvenile proceedings as required by the statute.