Opinion
No. 108,999.
2013-09-13
In the Interest of A.P.J.
Appeal from Shawnee District Court; Jean M. Schmidt, Judge. Rachel I. Hockenbarger, of Topeka, for appellants. Pantaleon Florez, Jr., of Topeka, for appellee.
Appeal from Shawnee District Court; Jean M. Schmidt, Judge.
Rachel I. Hockenbarger, of Topeka, for appellants. Pantaleon Florez, Jr., of Topeka, for appellee.
Before MALONE, P.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This appeal involves an ongoing dispute between A.P.J.'s father and maternal grandparents over what is in A.PJ.'s best interests. This culminated in the maternal grandparents petitioning the district court for a finding that A.P.J. was a child in need of care. The district court, after hearing the evidence, declined to make such a finding. A.P.J.'s maternal grandparents now appeal, claiming the district court arbitrarily disregarded undisputed evidence. We disagree and affirm.
Factual and Procedural History
A.P.J. was born in October 2003 to a dating couple who were living together. The father signed A.P.J.'s birth certificate and paid $200 of the medical bills. Soon after A.P.J. was born, the couple ended their dating relationship, and the mother and A.P.J. moved in with the mother's parents and have resided with them since that time. The mother and the father never obtained court orders regarding custody, child support, or parenting time.
The father spent time with A.P.J. as an infant, and, eventually, the mother and father agreed that the father would pick up A.P.J. on Sunday afternoons and she would live with the father Sunday afternoons through Wednesday afternoons. On Wednesday evenings, A.P .J. spent time with her paternal grandparents, then lived with her mother and maternal grandparents Wednesday nights until Sunday mornings. It is unclear whether this arrangement started when A.P.J. was 2 years old or when she started school, but, regardless, this arrangement had been in place for most of A.P.J.'s life.
In 2010, the mother suffered an anoxic brain injury after a dental-related surgery. As a result, she is noncommunicative, relies on a feeding tube and wheelchair, and requires 24/7 care. A.P.J. lived with the father full time for an unspecified period of time while the mother's entire family was attending to her at the hospital right after the injury. Following the injury, the mother was hospitalized for around 9 months at various facilities in Colorado and Kansas. The maternal grandparents were often with her at these various hospitals. While the maternal grandparents were away taking care of the mother, A.P.J.'s aunt, who was living at the maternal grandparents' house, took care of A.P.J. when she was at their house during the week. The mother returned to live in the maternal grandparents' home in early 2011.
In order to maintain consistency in A.P.J.'s life, the parties continued to implement the same Sunday through Wednesday parenting schedule with the father until the maternal grandparents filed this action on May 22, 2012, alleging that A.P.J. was a child in need of care.
Stressful situations arose between the father and the mother before the mother's injury, and between the father and the maternal grandparents after the injury. The father testified that before the injury he and the mother had agreed that A.P.J. would not be around the mother's boyfriend until the father had met the boyfriend. One day, he drove by the mother's house and saw that A.P.J. and the mother's boyfriend were there at the same time. He was angry and demanded to take A.P.J. with him until the boyfriend left. This led to an argument which resulted in the mother and father yelling at each other.
After the mother's injury, the father and the maternal grandparents had multiple arguments. The maternal grandfather described one argument which occurred after the maternal grandmother had changed A.P.J.'s doctor's appointment to coincide with her own doctor's appointment without consulting the father. The father went over to the maternal grandparents' house and had a “heated conversation” with them. The maternal grandfather testified that the father was “so intense that he put a hole in the door as he came into the house.” The police were not called. The father testified that he was angry because the grandparents were not respecting him as A.P.J.'s father. He clarified that he felt that the maternal grandparents were not communicating with him about his daughter and that the maternal grandmother was always trying to tell him what to do.
Two days later, another incident occurred which resulted in a no contact order between the maternal grandmother and the father. According to the maternal grandmother, she refused to give the father a neighbor's address. He started screaming at her over the phone saying “he was going to get the young ones and they were going to come over and F'up everybody in the house, and, ‘I'm on my way over there.’ “ The police were called, and they advised the maternal grandmother to file a restraining order.
Another incident cited by the maternal grandparents as an example of the father's anger involved A.P.J. traveling to Kansas City with a maternal aunt and her husband for Easter in 2012. The father became upset that they would not have A.P.J. back in Topeka by a certain time. Over the phone, the father was very angry, cursed, and argued that he was A.P.J.'s father so they needed to do what he said.
After A.P.J.'s birth, the father moved multiple times. From the witness stand, the father described his living situation at the time the petition was filed. The father rented a basement apartment with two bedrooms. A.P.J. had her own bedroom and bed, dressers, a tv, stereo, pictures on the walls, and a picture of her mother. The father's main job was as a disc jockey. From this job, he was able to pay all his bills and buy things A.P.J. needed, such as clothes. The father explained that A.P.J.'s clothes bought either by him or by the maternal grandparents often ended up in the other party's house.
The father testified that he was able to provide for all of A.P.J .'s needs while she was with him. On the days he would pick her up from school, she would have a snack and do homework, then they would do some kind of activity, such as go to the lake, play with the dog, or watch a movie. He attended A.P.J.'s doctors' appointments; attended parent-teacher conferences; and went to school activities like the carnival, Doughnuts for Dad, and the chili feed. He also attended A.P.J.'s extracurricular activities, which included basketball and soccer. Before the mother's injury, the father testified that both he and the mother would go together to enroll A.P.J. in school each year. He demonstrated his knowledge of A.P.J.'s medical history by explaining that she had dry skin and was allergic to smoke.
The maternal grandparents testified that the father did not pay for A.P.J.'s medical expenses, school fees, lunches, or extracurricular activities fees, and that they bought A.P.J.'s clothes and glasses. The maternal grandmother testified that the father did not take proper care of A.P.J.'s hair while she was at his house; she had doubts about how the father was helping A.P.J. with her homework; and she described a time when she thought the father had not dressed A.P.J. appropriately for the cold weather.
The father disputed some of the grandparents' allegations. He explained that he did not pay for school lunches because A.PJ. qualified for free school lunches. He acknowledged that her maternal aunt paid for A.P.J.'s orthodontic work and soccer, but he paid for her basketball. He also explained that he would give the mother money for A.P J.'s school enrollment fee, then she would pay the school.
The maternal grandparents pointed out that the father never requested that A.P.J. live with him permanently after the mother's injury. The father testified that they had all agreed to keep the parenting time schedule the same after the injury, and every time he would bring up the subject of A.P J. living with him more days during the week, the maternal grandmother would get so upset that he stopped trying to bring it up. He explained that he wished A.P.J. to continue having a close relationship with her mother and her maternal grandparents.
A.P.J.'s maternal aunt, who cared for her after the mother's injury, testified that to her knowledge the father successfully took A.P.J. to all her activities, he was interested in her education, went to her doctor and dentist appointments, and was active in her life. The father's grandfather also testified that he never saw A.P .J. lack anything while in her father's care, that he was impressed at how the father “mothered” A.P.J. and generally how involved the father was with A.P.J.
At the conclusion of all testimony, the district court ruled that the maternal grandparents had not proven that A.PJ. was a child in need of care by clear and convincing evidence and that adequate care had been made available to A.P.J. The court ordered that a paternity case be filed by the father within 30 days. The court stated:
“There are so, so many strong points that I've heard today. There [are] some things that, of course, could be a lot better. But in looking at even and, [maternal grandmother], I believe you, but I think the standard that I have to apply is adequate. Is [the father] the best? No. Could he be better? Yes. Is he minimally adequate? I'm finding he is.”
The court dismissed the petition. The maternal grandparents timely appeal.
Did the Trial Court Err in Finding the Maternal Grandparents Failed to Prove A.P.J. Was a Child in Need of Care?
In relevant part, K.S.A.2012 Supp. 38–2202(d) defines a child in need of care:
“(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.2012 Supp. 38–2242, and amendments thereto, who:
(1) Is without adequate parental care, control or subsistence, and the condition is not due solely to the lack of financial means of the child's parents or other custodian;
(2) is without the care or control necessary for the child's physical, mental or emotional health;
(3) has been physically, mentally or emotionally abused or neglected or sexually abused....”
K.S.A.2012 Supp. 38–2250 mandates that the petitioner prove “by clear and convincing evidence that the child is a child in need of care.” Clear and convincing evidence is “an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt.” In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008). It is evidence “that the factfinder believes that the truth of the facts asserted is highly probable.” 286 Kan. at 697. The burden of proof in this case was on the maternal grandparents.
After hearing the evidence, the district court concluded that the maternal grandparents failed to prove by clear and convincing evidence that A.P.J. was a child in need of care. “[T]his is a negative finding that may not be reversed unless there was an arbitrary disregard of undisputed evidence or the district court's ruling was a result of bias, passion, or prejudice.” In re L.C.W., 42 Kan.App.2d 293, 302, 211 P.3d 829 (2009). Accordingly, our standard of review is a very narrow one.
In their brief, the maternal grandparents only argue that the district court arbitrarily disregarded the following evidence: due to A.P.J. living with her father only 3 days out of the week, she was without “parental” care for the other 4 days each week; the father never sought to have A.P.J. live with him full time; he did not take care of A.P.J.'s hair properly; the clothes A.P.J. wore when with her father were dirty or inappropriate for the weather; and there were possible truancy issues because A.PJ. had been late to school so often.
The father argues that, despite the maternal grandparents' complaints about him, the undisputed evidence: (1) never showed A.PJ. was lacking anything while in his care; (2) showed he was participating in the parenting time schedule as agreed upon by himself and the mother, and then as reaffirmed between himself and the maternal grandparents after the mother's injury; (3) he had a relationship with A.PJ.; (4) he was A.P.J.'s caretaker Sunday through Wednesday each week; and (5) he participated in her doctors' appointments, education, and extracurricular activities. By his own testimony, he recognized the importance of A.PJ. spending time with and maintaining her close relationship with her mother and her mother's family, which was why he never sought to have A.P.J. live with him full time. The undisputed evidence also showed there were communication problems and anger management issues between the father and the maternal grandparents.
From the bench, the district court addressed the father's potential problems with controlling his anger and declared that, though the father had room to improve his parenting, the maternal grandparents failed to show by clear and convincing evidence that A.PJ. was a child in need of care. After a detailed review of the record, we cannot conclude the district court arbitrarily disregarded any undisputed evidence in making its ruling.
The district court is affirmed.