No. 95,509
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of E.T.
SYLLABUS BY THE COURT
1. An appellate court's review of jurisdictional issues is unlimited.
2. Under K.S.A. 38-1348(a)(3), Kansas can exercise jurisdiction when all courts having jurisdiction under K.S.A. 38-1348(a)(1) and (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of a child under K.S.A. 38-1354 or K.S.A. 38-1355.
3. Based on the facts of this case, Missouri was the state that had jurisdiction under K.S.A. 38-1348(a)(2). Because Missouri was the only state that had jurisdiction under K.S.A. 38-1348(a)(1) and (2) but declined to accept jurisdiction because Kansas was the more appropriate forum, Kansas could assume jurisdiction under K.S.A. 38-1348(a)(3).
4. Under K.S.A. 38-1585(a)(1), a parent is presumed unfit when he or she has previously been found to be unfit in proceedings under K.S.A. 38-1581 et seq. or comparable proceedings under the laws of another state or the federal government.
5. Under K.S.A. 38-1585(a)(3), a parent is presumed unfit when on two or more previous occasions a child in the physical custody of the parent has been adjudicated a child in need of care as defined by K.S.A. 38-1502(a)(3).
6. K.S.A. 60-414 sets forth two types of presumptions. A K.S.A. 60-414(a) presumption arises from facts that have probative value as evidence of the existence of the presumed fact. A K.S.A. 60-414(b) presumption arises from facts that have no probative value as evidence of the presumed fact.
7. Under K.S.A. 60-414, if a subsection (a) presumption arises, there shifts to the opposing party both the burden of coming forward with evidence and the burden of proof. If a subsection (b) presumption arises, there shifts to the opposing party the burden of coming forward with evidence, but the burden of proof does not shift.
8. K.S.A. 38-1585 is applied in a constitutional manner when the trial court first determines whether the presumption of unfitness, as it applies to the case under consideration, is a K.S.A. 60-414(a) or (b) presumption.
9. Under the facts of this case, a K.S.A. 60-414(b) presumption arose when the State failed to bring forth any evidence showing that the mother's abusive conduct towards another child nearly 8 ½ years ago could possibly reoccur with the child involved in this case.
10. When a K.S.A. 60-414(b) presumption is created, any evidence which would support a finding of fitness, including the uncorroborated testimony of a parent, will result in the overcoming of the presumption, and the burden of proving unfitness will once again be upon the State.
11. In this case, once the mother presented evidence to rebut the K.S.A. 60-414(b) presumption that she was an unfit parent, the State's evidence was insufficient to support a present finding of unfitness and to terminate her parental rights.
12. A child may be adjudicated in need of care because he or she is without proper parental care necessary for the child's physical, mental, or emotional health, even if the parent has never been given a chance to prove himself or herself as to that particular child. Once there is evidence of a parent's unfitness–even if it relates to a child other than the one at issue–a court need not gamble with the health or life of the child before it.
13. Under the facts of this case, the mother's previous conduct towards an older child, along with prior cases terminating the mother's parental rights in three older children, provided substantial competent evidence to support the trial court's child in need of care adjudication.
Appeal from Atchison District Court; PHILIP C. LACEY, judge. Opinion filed July 7, 2006. Affirmed in part, reversed in part, and remanded.
Rex L. Lane, of Atchison, for appellant natural father.
Robert D. Campbell, of Campbell Law Office, P.A., of Atchison, for appellant natural mother.
Gerald R. Kuckelman, county attorney, and Phill Kline, attorney general, for appellee.
Before PIERRON, P.J., GREEN and JOHNSON, JJ.
GREEN, J.: T.M., the natural mother, and M.T., the natural father, appeal from the trial court's decision terminating their parental rights in E.T. (date of birth 10-10-04). First, T.M. and M.T. contend that the trial court lacked jurisdiction over E.T. under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). We disagree. Although it appears that Missouri had jurisdiction under K.S.A. 38-1348(a)(2), the Missouri court declined to exercise jurisdiction on the ground that Kansas was the more appropriate forum. Therefore, a Kansas court could assume jurisdiction under K.S.A. 38-1348(a)(3).
Next, T.M. contends that the trial court erred in ruling that there was a presumption of unfitness under K.S.A. 38-1585(a)(1) and (3) and terminating her parental rights. Based on the evidence presented by the State at the termination hearing, we determine that the presumption of unfitness was a K.S.A. 60-414(b) presumption that was rebutted by T.M.'s evidence. Therefore, the State still had the burden to prove T.M.'s unfitness by clear and convincing evidence. Because the State failed to meet its burden at the termination hearing, we reverse the trial court's decision terminating T.M.'s parental rights. Nevertheless, we determine that T.M.'s abusive conduct towards E.T.'s older sibling in 1996, coupled with the previous terminations of her parental rights in three children, furnished substantial competent evidence to support the trial court's determination that E.T. was a child in need of care.
Finally, M.T. argues that the trial court erred in determining that he was presumptively unfit under K.S.A. 38-1585(a)(3) and terminating his parental rights. We determine that the evidence presented at the termination hearing was insufficient to establish a presumption of unfitness under K.S.A. 38-1585(a)(3). Moreover, based upon the trial court's findings, we determine that there was not substantial evidence supporting the trial court's decision that M.T. was an unfit parent. Accordingly, we affirm in part, reverse in part, and remand.
In October 2004, T.M. gave birth to E.T. 3 months prematurely at St. Luke's Hospital in Kansas City, Missouri. When E.T. was born, both T.M. and M.T. were living in Kansas. E.T. suffered many complications due to his premature birth and remained in the hospital until the middle of January 2005.
On January 4, 2005, the State of Missouri initiated proceedings concerning E.T.'s protection. Following a protective custody hearing, the Missouri court entered orders placing E.T. in the temporary legal custody of its children's division. On January 16, 2005, E.T. was discharged from St. Luke's Hospital to licensed foster parents in Gladstone, Missouri.
On January 18, 2005, the State of Kansas filed a petition in the current case requesting that the trial court find E.T. a child in need of care. Moreover, the State requested that the trial court find T.M. and M.T. unfit parents and terminate their parental rights. The State's petition was based upon an April 1996 incident in which T.M. had slit her 3-year-old daughter's throat. T.M. was later convicted of aggravated battery for the injury to her daughter. Previous to this case, child in need of care adjudication and termination of parental rights actions were completed against T.M. involving her three other children. The State contended that there was a presumption of unfitness under K.S.A. 38-1585(a)(1) and (3) based upon the prior child in need of care adjudications and termination of parental rights. Moreover, the State contended that factors under K.S.A. 38-1583(b)(2) and (5) had been met due to T.M.'s conduct of slitting her daughter's throat and her later conviction. Regarding M.T., the State alleged that he had been convicted of several felonies and served time in prison and that J.T., a child in his custody, had been adjudicated a child in need of care.
T.M. had been convicted of the aggravated battery offense in 1997 and sentenced to 48 months in prison. Based upon her conduct and resulting conviction, T.M.'s parental rights were terminated in J.M. and B.M. in July 2000. After T.M. was released from prison, she and M.T. had a child, J.T. (date of birth 08-20-02). M.T. was not the father of J.M. and B.M.
After J.T. was born, child in need of care proceedings were initiated in Missouri based on the 1996 incident of T.M. cutting her daughter's throat and her resulting conviction. J.T. was placed in protective custody. In February 2004, T.M. voluntarily relinquished her parental rights in J.T. Thereafter, M.T. achieved reunification efforts, and J.T. was returned to his care. Nevertheless, M.T. continued a relationship with T.M. and allowed contact between T.M. and J.T.
In December 2004, J.T. was removed from M.T.'s care and placed in the custody of his paternal grandparents. In a written stipulation filed with the Missouri court, M.T. agreed that J.T. would be placed in the custody of his paternal grandmother. Moreover, the paternal grandmother agreed to petition the probate court for guardianship over J.T.
After the State filed its petition in the instant case, T.M. moved to dismiss for lack of jurisdiction, arguing that Missouri was E.T.'s home state. At an evidentiary hearing conducted in January 2005 on her motion to dismiss, T.M. testified that she had recently moved to Missouri but that M.T. was still living in Atchison, Kansas. T.M. indicated that she had moved to Atchison before the petition was filed in this case. Nevertheless, the State presented testimony from a social worker who had spoken with T.M. on January 19, 2005. T.M. had advised her that she was in the process of moving to Missouri at that time but did not have a residence yet.
During the evidentiary hearing on T.M.'s motion to dismiss, the State introduced an order from the Missouri court dismissing the proceedings concerning E.T. in Missouri. The Missouri court found that Missouri was not E.T.'s "home state," that it was an inconvenient forum, and that it was appropriate for Kansas to establish jurisdiction over E.T.
At the conclusion of the hearing, the trial court found that both T.M. and M.T. resided in Kansas when E.T. was born and when the petition was filed in this case. The trial court determined that it had jurisdiction over the case and denied T.M.'s motion to dismiss. The trial court entered temporary orders, placing E.T. in the custody of the Secretary of Social and Rehabilitation Services and allowing him to remain in his current foster home placement in Gladstone, Missouri. T.M. was allowed frequent supervised visits with E.T. T.M. did not contest these temporary orders.
The record on appeal indicates that in February 2005, E.T. was placed in a foster home in Kansas for 3 days. Nevertheless, due to his medical condition, E.T. left his foster home placement in Kansas and was admitted to Children's Mercy Hospital in Kansas City, Missouri, for over a month. When E.T. was discharged from the hospital in April 2005, he went to a foster home in Kansas. In October 2005, E.T. was placed in Missouri with his paternal grandmother who also had custody of J.T.
The hearing on the State's petition requesting that E.T. be adjudicated a child in need of care and that T.M. and M.T.'s parental rights be terminated was conducted on 2 days during March and April 2005. At the hearing, the State presented testimony from social worker Mary Ann Noll who had investigated the case when E.T. was born. Noll had written to the county attorney asking for protection for E.T. due to T.M.'s background. Noll indicated that she did not have any personal knowledge concerning T.M.'s ability to care for E.T. Noll stated, however, that T.M. visited E.T. frequently in the hospital and that T.M. had visited E.T. after he was discharged from the hospital.
During Noll's testimony, the State presented exhibits concerning the prior aggravated battery conviction of T.M.; the adjudication of J.M., B.M., and J.T. as children in need of care; and the termination of her parental rights in J.M., B.M., and J.T. The State also presented exhibits showing that M.T. had been convicted and imprisoned for attempted burglary in Missouri and that J.T. had been removed from M.T.'s custody. After Noll's testimony and the introduction of these exhibits, the State rested.
T.M. presented testimony from social worker Kristen Prekopy. She worked for the Atchison Kaw Valley Center. The center, which was a subcontractor for Kansas Social and Rehabilitation Services, had been monitoring E.T.'s placements and health progress. Prekopy testified that although she was not present during the hospital visitations between T.M. and E.T., she was told by the hospital social workers that the visitation guidelines were being followed. Moreover, in supervising the visits at E.T.'s foster home, Prekopy noticed that T.M. and M.T. had appropriate interactions with E.T. Prekopy was not aware of any mistreatment of E.T. by T.M or M.T.
T.M. also presented testimony from James Lewis, a family friend who had witnessed the interaction between J.T. and his parents when J.T. lived with them. Lewis testified that both T.M. and M.T. were good with J.T. According to Lewis, T.M. was a good mother who kept J.T. and her home clean, showed love and affection towards J.T., and provided J.T. with adequate clothing and food. Lewis never saw signs of abuse of J.T. According to Lewis, M.T. and J.T. had lived with Lewis for approximately 4 months. During that time, he noticed that M.T. was very attentive to J.T., showed love and affection towards him, and adequately cared for him. Lewis testified that he had never seen M.T. act inappropriately towards J.T.
Lewis stated that he had known M.T. for 12 years and had seen a drastic turnaround in him over that period of time. During his testimony, M.T. admitted that he had previously been convicted of burglary, tampering with a vehicle, and attempting to escape from police custody. He further admitted that he had served time in prison but had been released in 1999. M.T. testified that he had never been arrested for or convicted of a crime involving children, nor had the State ever alleged that he had abused a child.
Christine Deware, who was J.T.'s babysitter until December 2004, testified that T.M. was a loving and nurturing mother. Deware testified that she never suspected that T.M. was abusing J.T. J.T. was always clothed properly and was brought to her with adequate food, diapers, and other necessary supplies. Deware further testified that M.T. was very loving with J.T. and that J.T. was always happy to see his parents when they arrived to pick him up. According to Deware, she had no concerns about M.T.'s and T.M.'s parenting ability.
T.M. testified that she had voluntarily relinquished parental rights to J.T. because she was presumed unfit under a Missouri statute because of the prior termination of her parental rights in J.M. and B.M. According to T.M., she was never accused of doing anything improper to J.T. While J.T. lived with her, T.M. cared for him properly. T.M. testified that she had previously been treated for depression and anxiety which were due to her conviction for aggravated battery and the termination of her parental rights. Nevertheless, T.M. indicated that she was psychologically able to take care of E.T. T.M. testified that while she was pregnant with E.T., she followed her doctor's advice. After E.T. was born, T.M. visited him in the hospital at least every 3 days during the first month. After the first month, she was at the hospital every other day for the entire day visiting E.T. During her visits with E.T., T.M. had observed M.T. being a good father and interacting with E.T. T.M. indicated that both she and M.T. had the skills necessary to be good parents. According to T.M., she would be willing to do anything it took to obtain custody of E.T.
T.M. also presented testimony from her mother, her father, and her brother who all had observed T.M. with her children. These family members indicated that T.M. was a good mother and that they had never seen any signs of abuse. Moreover, they indicated that M.T. was a good father. Moreover, T.M.'s brother indicated that M.T. had matured a lot since J.T. was born and that he was a loving father towards both J.T. and M.T.
After the hearing, Marlin Johanning, the appointed guardian ad litem, filed a document entitled "Guardian Ad Litem's Concurrent Pleading" in which he advised the trial court that he believed there was insufficient evidence to terminate T.M.'s and M.T.'s parental rights in E.T. Johanning pointed out that "an extremely important evidentiary component" was missing: an expert-witness counselor who could offer enlightenment as to the likelihood of T.M. having been fully rehabilitated so that she would never again be physically abusive towards her own child.
In October 2005, the trial court filed a written journal entry of judgment, adjudicating E.T. a child in need of care and terminating T.M.'s and M.T.'s parental rights. The trial court found that T.M. was presumed to be unfit under K.S.A. 38-1585(a)(1) and (3) because of having been found an unfit parent on three previous occasions and because on two or more occasions a child in her physical custody had been adjudicated a child in need of care. In addition, the trial court found that T.M. had met numerous factors under K.S.A. 38-1583 indicating T.M. was an unfit parent and her condition was unlikely to change in the foreseeable future. The trial court stated that T.M. had physically abused a child in her care by slitting the child's throat, which resulted in her being convicted of a felony and imprisoned. The trial court found that M.T. was presumed to be unfit under K.S.A. 38-1585(a)(3) due to the fact that a child in his physical custody had been adjudicated a child in need of care. Moreover, the trial court found that M.T. had met numerous factors under K.S.A. 38-1583 indicating that he was an unfit parent and his condition was unlikely to change in the foreseeable future. The trial court stated that M.T. had been convicted of attempted burglary, a felony, and had been imprisoned.
Jurisdiction
First, T.M. and M.T. argue that the trial court lacked jurisdiction over this case under the UCCJEA. An appellate court's review of jurisdictional issues is unlimited. McNabb v. McNabb, 31 Kan. App. 2d 398, 403, 65 P.3d 1068 (2003). Moreover, resolution of this issue requires interpretation of K.S.A. 38-1348 of the UCCJEA. Interpretation of a statute presents a question of law over which an appellate court's review is unlimited. In re Marriage of Ruth, 32 Kan. App. 2d 416, 420, 83 P.3d 1248, rev. denied 278 Kan. 845 (2004).
The UCCJEA applies to proceedings held under the Kansas Code for the Care of Children, K.S.A. 38-1501 et seq. K.S.A. 2005 Supp. 38-1503(a) and (b). K.S.A. 38-1348 of the UCCJEA sets forth four alternatives through which a Kansas trial court obtains jurisdiction to make an initial child-custody determination:
"(a) Except as otherwise provided in K.S.A. 38-1351 and amendments thereto, a court of this state has jurisdiction to make an initial child-custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under K.S.A. 38-1354 or 38-1355 and amendments thereto, and:
(A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under K.S.A. 38-1354 or 38-1355 and amendments thereto; or
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3)."
Here, the Missouri court declined to exercise jurisdiction over the case, finding that E.T.'s "physical location in the State of Missouri was temporary in nature and for the purpose of obtaining necessary medical care and treatment" and that Kansas was the "home state" of E.T.
Under K.S.A. 38-1348(a)(1), a Kansas court has jurisdiction if Kansas was E.T.'s home state when the proceeding was commenced or was E.T.'s home state within 6 months before the proceeding was commenced and E.T. was absent from Kansas but a parent or person acting as a parent continued to live here. K.S.A. 38-1337(8) defines "home state" as follows:
"'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period."
Because E.T. was less than 6 months of age when the petition was filed in this case, his "home state" was the state in which he lived from birth with a parent or a person acting as a parent.
Both T.M. and M.T. contend that Kansas does not meet the definition of "home state" for E.T. because E.T. never lived in Kansas before the petition was filed in this case. On the other hand, the State maintains that E.T. was a resident of Kansas because T.M. had intended to bring E.T. to live in Kansas after his release from the hospital. Nevertheless, the State fails to cite any authority to support its proposition. Moreover, when the petition was filed in this case, Missouri had already entered protective orders placing E.T. in the temporary legal custody of its children's division. T.M. and M.T. were living in Kansas, and E.T. was living in Missouri with foster parents. E.T. had not lived from birth in either Kansas or Missouri with a parent or a person acting as a parent. E.T. apparently did not have a "home state" on January 18, 2005, the date of the commencement of this case.
Because Kansas does not qualify as E.T.'s "home state" under K.S.A. 38-1348(a)(1), we must look to the other subsections of K.S.A. 38-1348 to determine whether Kansas has jurisdiction in this case. Under K.S.A. 38-1348(a)(2), when no other state has "home state" jurisdiction under K.S.A. 38-1348(a)(1), Kansas can exercise jurisdiction as long as two factors are met: (A) E.T. and at least one of his parents have a significant connection with Kansas, other than mere physical presence; and (B) substantial evidence is available in Kansas concerning E.T.'s care, protection, training, and personal relationships. Both factors must be met under K.S.A. 38-1348(a)(2) in order for Kansas to exercise jurisdiction.
T.M. and M.T. contend that Kansas does not have jurisdiction under K.S.A. 38-1348(a)(2) because E.T. had no significant connection with Kansas. We agree. While T.M. was pregnant with E.T., she received her prenatal care in St. Joseph, Missouri. E.T. was born in Missouri and spent several months in a Missouri hospital after his birth. When the petition was filed in this case and when the hearing was held on T.M.'s motion to dismiss for lack of jurisdiction, E.T. was living in Missouri with foster parents. At that time, E.T. had never been in Kansas.
In In re Adoption of Baby Girl B., 19 Kan. App. 2d 283, 867 P.2d 1074, rev. denied 255 Kan. 1001 (1994), this court had to determine whether the child and her mother had a "significant connection" with Kansas under K.S.A. 38-1303(a)(2) (now repealed). K.S.A. 38-1303(a)(2) was a provision under the UCCJA which, similar to K.S.A. 38-1348(a)(2), required that the child and at least one parent have a "significant connection" with Kansas. In that case, approximately 2 weeks before the child's birth, the mother moved to Kansas to live with her uncle who became her legal guardian. Before moving to Kansas, the mother and the child's father lived in Pennsylvania with their respective parents. The day after the child's birth, the adoptive petitioners, who lived in Michigan, petitioned for adoption. The adoptive petitioners were granted temporary custody, and the child lived with them in Michigan after her discharge from the hospital. Shortly after the natural mother gave birth to the child, she returned to Pennsylvania. Nevertheless, she returned to live in Kansas a couple of months later. The child's father remained in Pennsylvania. This court determined that "arguably" the mother and child had a "significant connection" with Kansas and affirmed the trial court's decision that Kansas had jurisdiction when the adoption proceedings were commenced. Moreover, this court determined that Pennsylvania did not have jurisdiction. Although the father clearly had a "significant connection" with Pennsylvania, the child did not. 19 Kan. App. 2d at 291.
Based on this court's analysis in In re Adoption of Baby Girl B., it appears that a parent residing in a state and the mother's presence in that state during part of her pregnancy is not sufficient to establish a "substantial connection" between the child and the state. On the other hand, the analysis in In re Adoption of Baby Girl B., suggests that a child being born in a state might be sufficient to establish a "significant connection" between the child and that state.
Here, in determining that it had jurisdiction under K.S.A. 38-1348, the trial court found that E.T. "resided with [T.M.] until birth in her womb in the state of Kansas." In addition, the trial court found that both parents were residents of Kansas when the child was born and when the petition was filed in this case. Nevertheless, neither of these findings establishes that E.T. had a "significant connection" with Kansas.
Missouri apparently was the state that had jurisdiction over the proceedings under K.S.A. 38-1348(a)(2). Although Missouri was not the "home state" of E.T., it seems that Missouri was the state that had a "significant connection" with E.T. and at least one of his parents. When the petition was filed and when the hearing occurred on T.M.'s motion to dismiss, E.T. had a significant connection with Missouri because he had been born there, had stayed in the hospital there for approximately 3 months after his birth, and was living in a foster home in Missouri. Both M.T. and T.M. also had a significant connection with Missouri because they had previously lived there. The case involving J.T. was brought in Missouri. Furthermore, while she was pregnant with E.T., T.M. received her prenatal care in Missouri.
Moreover, substantial evidence would be available in Missouri concerning E.T.'s care, protection, training, and personal relationships. When the petition was filed in this case, T.M. was in the process of moving to Missouri. At the hearing, T.M. testified that she was living in Missouri. As discussed above, the case involving J.T. had been brought in Missouri. Presumably, the social file in that case would be relevant to E.T.'s care, protection, training, and personal relationships. Furthermore, at the time of the hearing, E.T. had spent his entire life in Missouri. His medical records and information gained from foster care concerning his care, protection, training and personal relationships would be available in Missouri.
Nevertheless, under K.S.A. 38-1348(a)(3), Kansas can exercise jurisdiction when "all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under K.S.A. 38-1354 or 38-1355 and amendments thereto." K.S.A. 38-1354 is the provision of the UCCJEA relating to declining jurisdiction due to an "inconvenient forum." K.S.A. 38-1355 is the provision of the UCCJEA relating to declining jurisdiction due to unjustifiable conduct.
Here, Missouri was the state that had jurisdiction under K.S.A. 38-1348(a)(2). Missouri declined to accept jurisdiction, based in part on its finding that Kansas was the more appropriate forum. The parties do not suggest that any other state (besides Missouri and Kansas) had jurisdiction under K.S.A. 38-1348(a)(1) or (2). Based on the record before us, we are unable to see how any other state besides Missouri could have jurisdiction under K.S.A. 38-1348(a)(1) or (2). Because Missouri had jurisdiction under K.S.A. 38-1348(a)(2) but declined to exercise jurisdiction on the ground that Kansas was the more appropriate forum, Kansas could assume jurisdiction under K.S.A. 38-1348(a)(3). As a result, T.M. and M.T.'s jurisdiction argument fails.
Presumption of Unfitness as to T.M.
Next, T.M. argues that the trial court erred in ruling that there was a presumption of unfitness when the trial court failed to determine whether the evidence supporting the presumption was a K.S.A. 60-414(a) or 60-414(b) presumption based on the rule in In re J.L., 20 Kan. App. 2d 665, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995).
K.S.A. 38-1585 states in relevant part:
"(a) It is presumed in the manner provided in K.S.A. 60-414 and amendments thereto that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes by clear and convincing evidence that:
(1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 38-1581 et seq. and amendments thereto, or comparable proceedings under the laws of another state, or the federal government;
. . . .
(3) on two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care as defined by subsection (a)(3) of K.S.A. 38-1502 and amendments thereto;
. . . .
"(b) The burden of proof is on the parent to rebut the presumption. . . . In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall now terminate the parents parental rights in proceedings pursuant to K.S.A. 38-1581 et seq. and amendments thereto." </