In re Adoption of D.G.G.

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NOT DESIGNATED FOR PUBLICATION

No. 114,451

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Adoption of
D.G.G. and J.L.G.


MEMORANDUM OPINION

Appeal from Montgomery District Court; FREDERICK WILLIAM CULLINS, judge. Opinion filed
March 11, 2016. Affirmed.

Jennifer L. Goheen and Rachel E. Lomas, of Hite, Fanning & Honeyman L.L.P., of Wichita, for
appellant father.

Paul M. Kritz, of Hall, Levy, Devore, Bell, Ott & Kritz, P.A., of Coffeyville, for appellee
stepfather.

Before MALONE, C.J., SCHROEDER, J., and BURGESS, S.J.

Per Curiam: J.R.G. (Father) appeals the district court's termination of his parental
rights and the granting of R.C.'s (Stepfather) petition to adopt D.G.G. and J.L.G., Father's
two children. Father alleges: (1) The district court erred by not remanding the case to the
district magistrate judge for another trial, and (2) there was insufficient evidence
presented to support the termination of his parental rights and the granting of the
stepparent adoption. We disagree. The record reflects the district court did not err by
failing to remand the case to the district magistrate judge. There was more than sufficient
evidence to support the termination of Father's parental rights and the approval of the
Stepfather adoption. We affirm.

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FACTS

T.C. (Mother) and Father, formerly husband and wife, are the natural parents of
their daughter, D.G.G., who was born in 2008, and their son, J.L.G., who was born in
2011. In July 2011, the family was living in California. Father was in the Navy and began
a 5-month deployment overseas. After Father deployed, Mother found Father had created
a fake Facebook account and posted several disturbing comments concerning their
children. Mother contacted authorities and the Naval Criminal Investigative Service
(NCIS) began an investigation. Mother then emailed the Father and told him she was
taking the children and returning to her home in Coffeyville.

One week after Father returned from deployment, NCIS contacted him regarding
the investigation surrounding his children. Father was interviewed twice by NCIS during
which Father confessed to sexually abusing his children in the months prior to his July
2011 deployment. Father was charged under the Uniform Code of Military Justice with
multiple sexually violent crimes including rape and sodomy involving both children. A
military court convicted Father in March 2013. He is currently at the United States
Disciplinary Barracks in Fort Leavenworth serving his 140-month term of imprisonment.
Father now claims he is innocent and contends he falsely confessed. Father's direct
appeal to the United States Naval and Marine Corps Court of Criminal Appeals resulted
in his convictions being affirmed.

Upon returning to Kansas, Mother filed a petition for divorce on December 22,
2011. At the final hearing on March 22, 2012, the divorce was granted and sole custody
of the children was awarded to Mother. The decree of divorce denied Father any direct or
indirect contact with the children. Father's last contact with his children was in July 2011.

On November 8, 2012, Mother married Stepfather. On August 28, 2013,
Stepfather filed a petition to adopt D.G.G. and J.L.G. Mother consented to the adoption;
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Father objected. In his petition, Stepfather alleged Father had failed to assume the duties
of a parent for the 2 years preceding the filing of the petition and therefore his consent
was unnecessary. In an amended petition filed on July 8, 2014, Stepfather alleged Father
was an unfit parent and his unfitness prevented him from assuming the duties of a parent
for the 2 years preceding the filing of the petition.

A nonlaw trained district magistrate judge presided over the trial of the stepparent
adoption on November 4, 2014. The court heard testimony from Stepfather, Mother,
Father, and members of Father's family, including his parents who had been granted
intervenor status. Father's parents attempted to introduce evidence of Father's child
support payments. The court sustained Stepfather's objection to the evidence arguing the
evidence was irrelevant because the amended petition was based on the Father's alleged
unfitness and not his failure to provide financial support.

On December 9, 2014, the district magistrate judge filed a memorandum of
decision terminating Father's parental rights and granting the Stepfather's petition to
adopt D.G.G. and J.L.G. The district magistrate judge found Father was unfit and his
consent was not required. The Father's parental rights were terminated pursuant to K.S.A.
2015 Supp. 59-2136(d) and K.S.A. 2015 Supp. 59-2136(h)(1)(B). Father appealed the
district magistrate judge's decision to the district court judge. On July 29, 2015, the
district court judge determined, based on the totality of the circumstances, Father was
unfit and it was in the best interests of the children to terminate his parental rights. The
district court granted the children's adoption by Stepfather. Father now timely appeals the
district court judge's decision.





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ANALYSIS

De Novo Review of the District Magistrate Judge's Ruling

Father argues the district court judge should have remanded the case to the district
magistrate judge when he denied the admission of Father's financial support records. In
the alternative, Father claims the record made before the district magistrate judge lacked
sufficient evidence for the district court judge to determine on the record the Father's
parental rights should be terminated and the petition to adopt by Stepfather should be
granted. Initially, the Father is concerned about how the district magistrate judge presided
over the bench trial. Father claims the district court judge's only option on appeal from
the district magistrate judge was to remand the case to the district magistrate judge for a
new bench trial, and by not doing so, the district court judge erred. Both parties directed
the district court judge to follow K.S.A. 2015 Supp. 20-302b(c)(2)(A) in processing the
appeal. See K.S.A. 2015 Supp. 20-302b(c)(2)(A) (an appeal from a nonlaw trained
district magistrate judge when a record was made shall be tried and determined by the
district court judge de novo on the record).

Actually, appeals of Chapter 59 probate proceedings from a nonlaw trained district
magistrate judge, are controlled by K.S.A. 2015 Supp. 59-2401a(a). If a record was made,
an appeal of a nonlaw trained district magistrate judge shall be to the district court judge
on the record. If either party appeals the district court judge's decision, then the appeal is
to this court pursuant to Article 21 of Chapter 60 of the Kansas Statutes Annotated. See
K.S.A. 2015 Supp. 59-2401a(b). We review the decision of the district court judge and
not the decision of the district magistrate judge. The district court is free to make its
decision on the merits of the plaintiff's or defendant's claim. See In re L.C.W., 42 Kan.
App. 2d 293, 298, 211 P.3d 829 (2009). Therefore, we look at the proceedings before the
district court judge to determine if the district court judge used the proper standard to
terminate Father's parental rights and to grant Stepfather's petition to adopt. Petitions to
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adopt are governed by K.S.A. 59-2111 et seq., and more specifically in a stepparent
adoption, by K.S.A. 2015 Supp. 59-2136(d). Whether the district court judge used the
proper standard is an issue of statutory construction. Interpretation of a statute is a
question of law over which appellate courts have unlimited review. Neighbor v. Westar
Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). K.S.A. 2015 Supp. 59-2136(d)
provides:

"In a stepparent adoption, if a mother consents to the adoption of a child who has
a presumed father . . . , the consent of such father must be given to the adoption unless
such father has failed or refused to assume the duties of a parent for two consecutive
years next preceding the filing of the petition for adoption or is incapable of giving such
consent. In determining whether a father's consent is required under this subsection, the
court may disregard incidental visitations, contacts, communications or contributions. In
determining whether the father has failed or refused to assume the duties of a parent for
two consecutive years next preceding the filing of the petition for adoption, there shall be
a rebuttable presumption that if the father, after having knowledge of the child's birth, has
knowingly failed to provide a substantial portion of the child support as required by
judicial decree, when financially able to do so, for a period of two years next preceding
the filing of the petition for adoption, then such father has failed or refused to assume the
duties of a parent. The court may consider the best interests of the child and the fitness of
the nonconsenting parent in determining whether a stepparent adoption should be
granted." (Emphasis added.)

Father filed a notice of appeal to the district court judge and submitted a brief
along with proposed findings of fact and conclusions of law. In his brief, Father asked the
district court judge for a new trial. Father claimed the district court judge's jurisdiction to
hear the appeal was found in K.S.A. 2015 Supp. 20-302b(c)(2)(A), which allows for a de
novo review of a nonlaw trained district magistrate judge's decision on the record. Father
asked the district court judge to review the issue de novo because the issue of whether the
district magistrate judge used the correct legal standard was a pure legal question. Father
claimed the district magistrate judge erred by citing K.S.A. 2015 Supp. 59-2136(h)(1)(B)
as a basis for termination because the action was a stepparent adoption under K.S.A.
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2015 Supp. 59-2136(d), which involves a different standard. Father also argued the
district magistrate judge erred when it terminated his rights based only on unfitness
because K.S.A. 2015 Supp. 59-2136(d) required a court first find he had failed to assume
his parental duties for the 2 years preceding the filing of the petition for adoption before it
could terminate his rights. Father claimed the district magistrate judge should have
allowed into evidence the records of financial support he provided to show he was
performing substantial parental duties within the 2-year window immediately before the
petition was filed. Therefore, the case should be remanded to the district magistrate judge
for a new bench trial to consider that evidence.

Father essentially asked the district court judge to review the record made by the
district magistrate judge and make a legal conclusion regarding whether the district
magistrate judge used the correct standard. Stepfather responded noting Father did not
provide any authority supporting his contention the case should be remanded to the
district magistrate judge for a new trial. Stepfather argued that under K.S.A. 2015 Supp.
20-302b(c)(2)(A), the district court judge should review the record de novo and make its
own decision regarding the case.

The district court judge had access to the record, the briefs, and both parties'
proposed findings of fact and conclusions of law when he reviewed the case. The court
declined to remand the case to the district magistrate judge, finding it had authority under
K.S.A. 2015 Supp. 20-302b(c)(2)(A) to try the case on the record made before the district
magistrate judge. The district court judge went on to make his own findings of fact and
conclusions of law based on the record before him:

"The horrific facts of this case undoubtedly show [Father] is unfit. [Father] is
facing 140 months of confinement for raping or performing sexual acts upon his two
children (both of wh[o] were below 4 years of age at the time of the incidents), [D.G.G.]
and [J.G.G.]. [Father], for obvious reasons, has not been a part of these two children's
lives since July 2011.
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"K.S.A. 59-2136(d) states in relevant part '. . . the consent of such father (the
natural) must be given to the adoption unless such father has failed or refused to assume
the duties of a parent for two consecutive years next preceding the filing of the petition
for adoption[.]'
"Beyond the payment of support, fathers have multiple duties to their children.
One of those duties is to protect them from horrendous acts and not to perpetuate
horrendous acts upon them. [Father] raped and performed sex acts upon his two children.
[Father] has utterly failed to perform the duties of a father for two consecutive years
before the filing of the petition (raise them in a loving protective environment). Instead,
he robbed them of their childhood. A few dollars of support provided before and after his
conviction does not outweigh or compensate for his evil."

To support his argument the district court judge erred by not remanding the case to
the district magistrate judge, Father points to K.S.A. 59-2409, which states: "Upon
determination of an appeal from an order, judgment, decree, or decision of a district
magistrate judge, the judge determining such appeal may remand the case to the district
magistrate judge, who shall proceed in accordance therewith." (Emphasis added.)

Stepfather continues to argue that under K.S.A. 2015 Supp. 20-302b(c)(2)(A), the
district court judge had the authority to review the record and make his own decision.
Stepfather noted that even if the district magistrate judge had applied an erroneous legal
standard, the district court judge had the authority to review and decide the case de novo
based on the record made in the district magistrate court.

In relying upon K.S.A. 59-2409, Father neglects to recognize the term "may" in
the statute, which denotes a discretionary decision on the part of the district court judge.
Thus, the district court judge had three options: (1) Remand as provided in K.S.A. 59-
2409; (2) decide the case on the record pursuant to K.S.A. 2015 Supp. 59-2401a(a); or (3)
allow a de novo trial pursuant to K.S.A. 2015 Supp. 59-2401a(a). We review such a
decision for an abuse of discretion. A judicial action constitutes an abuse of discretion if
the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3)
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is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296
Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). We see no abuse of
discretion by the district court judge in exercising the option he followed to review the
case on the record made before the district magistrate judge de novo pursuant to K.S.A.
2015 Supp. 20-302b(c)(2)(A). Both parties invited the district court judge to follow
K.S.A. 2015 Supp. 20-302b(c)(2)(A) in handling the appeal, even though the proper
statutory procedure for the appeal of a nonlaw trained district magistrate judge's decision
in a probate case is provided by K.S.A. 2015 Supp. 59-2401a(a). In any event, neither
party specifically challenges on appeal the district court judge's reliance on K.S.A. 2015
Supp. 20-302b(c)(2)(A) to process Father's appeal. An issue not briefed is deemed
waived and abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889,
259 P.3d 676 (2011).

On appeal to this court, neither party recognized K.S.A. 2015 Supp. 59-2401a(a)'s
application to this case. Father does claim the district court judge erred by not remanding
the case to the district magistrate judge pursuant to K.S.A. 59-2409, while Stepfather
argues the district court judge correctly utilized K.S.A. 2015 Supp. 20-302b(c)(2)(A).
The statutory instruction contained in K.S.A. 2015 Supp. 20-302b(c)(2)(A) and K.S.A.
2015 Supp. 59-2401a(a) are very similar, and while we recognize K.S.A. 2015 Supp. 59-
2041a(a) is the more specific statute and controls over K.S.A. 2015 Supp. 20-
302b(c)(2)(A), when we construe them in pari materia with each other, we find no error
by the district court other than the wrong statute was relied upon by the district court
judge to process the appeal from the district magistrate judge. This error was harmless.
See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015).

Since we have determined the district court judge was right for the wrong reason,
we now look at K.S.A. 2015 Supp. 59-2401a(a) to review the district court judge's
function in handling the appeal:

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"The appeal shall be heard no later than 30 days from the date the notice of
appeal is filed. If no record was made of the proceedings, the trial shall be de novo.
Except as provided further, if a record was made of the proceedings, the district judge
shall conduct the appeal on the record. Upon motion of any party to the proceedings, the
district judge may hold a trial de novo." (Emphasis added.)

The statute provides the district court judge discretion to hold the trial de novo if
any party asks for a de novo trial. Father asked for a new trial but neither party
specifically asked for a de novo trial. They both requested the district court judge utilize
K.S.A. 2015 Supp. 20-302b(c)(2)(A) in processing the appeal, which does provide for a
de novo review on the record by the district court judge. The district court judge
proceeded with a de novo review based on the record made before the district magistrate
judge, supplemented with both parties briefs, proposed findings of fact, and conclusions
of law.

With a de novo review, the district court is free to review and decide the case
based on the record created before the district magistrate judge. This outcome also makes
the most sense in this case. Here, the district magistrate judge may have relied in part on
the wrong statute to grant the adoption, but that makes no difference to this court as we
review the decision of the district court judge, not the district magistrate judge. Our
standard of review is the totality of the circumstances involving the father and his minor
children. The Kansas Supreme Court, in interpreting a prior year's version of K.S.A. 2015
Supp. 59-2136(d), held that a court should consider the totality of circumstances when
deciding whether a Father failed to assume his parental duties. See In re Adoption of
J.M.D., 293 Kan. 153, 167, 260 P.3d 1196 (2011).

The district court judge, in reviewing the record, found he could decide the appeal
without remanding the case. The district court judge reviewed the record and, applying
the clear and convincing evidence standard, determined Father had failed to assume his
parental duties for the 2 years preceding the filing of the petition and was unfit because of
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his past horrendous acts; therefore, his parental rights were terminated and the adoption
was granted. The district court judge also addressed the district magistrate judge's
exclusion of Father's child support payments by stating: "A few dollars of support
provided before and after his conviction does not outweigh or compensate for his evil."

In conclusion, the district court judge did not err when he determined the record
was sufficient for him to rule on Stepfather's petition to terminate Father's parental rights
and to adopt the two minor children. The district court applied the correct statutory
standard to the evidence contained in the record on appeal from the district magistrate
judge's bench trial.

Substantial Competent Evidence

Father contends the district court judge's decision to terminate his parental rights
based on the fact he was unfit and failed to assume parental duties for the 2 years
immediately preceding the filing of the petition for stepparent adoption is not supported
by sufficient evidence.

A district court's finding under K.S.A. 2015 Supp. 59-2136(d) that a parent has
refused or failed to assume parental duties for 2 years prior to the filing of the petition for
stepparent adoption is a finding of fact that we review in the light most favorable to the
prevailing party below to determine if it is supported by substantial competent evidence.
In re Adoption of J.M.D., 293 Kan. at 171. Substantial competent evidence is such legal
and relevant evidence as a reasonable person might accept as being sufficient to support a
conclusion. Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014).

The Kansas Supreme Court set forth the analysis courts must consider when
deciding whether to terminate a father's rights under K.S.A. 2015 Supp. 59-2136(d). See
In re Adoption of J.M.D., 293 Kan. at 167-68. The court abandoned the "two-sided
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ledger" test used in prior cases involving stepparent adoptions in favor of a totality of the
circumstances approach. 293 Kan. at 167. The two-sided ledger test required courts to
consider both love and affection and any financial support provided to determine whether
parental duties had been met. Under the test, the parent must have failed both sides of the
ledger before a court could terminate his parental rights. 293 Kan. at 164. Citing its
rationale from In re Adoption of G.L.V., 286 Kan. 1034, 1053-54, 190 P.3d 245 (2008),
the Supreme Court found the two-sided ledger test was not the most comprehensive
analysis to use because "'there are numerous duties associated with being a parent to a
child, and all such duties—even though not explicitly enumerated—may be considered,'"
and abandoned the two-sided test and adopted a totality of circumstances analysis in its
place. In re Adoption of J.M.D., 293 Kan. at 167. The court noted the statute contained a
rebuttable presumption that a father fails to assume parental duties if he fails to
financially support the child when able to do so and a court did not have to consider the
totality of circumstances if that presumption applied. 293 Kan. at 167. The court
mentioned that even if the presumption did not apply, a court may still consider the lack
of financial support as part of the totality of circumstances. 293 Kan. at 167. Most
importantly, however, the court found that although the statute allowed for a court to
consider the nonconsenting parent's fitness,

"a natural parent's unfitness will not obviate the need for his or her consent to a
stepparent adoption, unless the district court finds that the unfitness has prevented the
natural parent from assuming the duties of a parent for 2 consecutive years next
preceding the filing of the petition for adoption." 293 Kan. at 169.

The court noted, for example, even if a father was communicating with his children on a
regular basis, if that communication was psychologically or emotionally abusive to the
children, a court could find the father failed to assume parental duties by not
"safeguarding his children's physical, mental, or emotional health." 293 Kan. at 169-70.

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Here, Father claims the district court judge's finding that he failed to assume his
parental duties is not supported by sufficient evidence and contrary evidence in the record
exists to show he did assume his parental duties. Father's claims are based mainly on the
"substantial" child support he paid before he was incarcerated. Father believes the district
court judge should have considered the child support he paid as part of the totality of
circumstances. Father also argues there was no evidence at trial connecting his unfit
behavior (the molestation of his own children) to the children's emotional health during
the relevant 2-year time frame. Father is essentially arguing that because the molestation
happened outside the 2-year statutory time frame, there was insufficient evidence to show
his unfitness caused him to fail to assume his parental duties in the 2 years prior to the
filing of the stepparent adoption petition. He claims he attempted to contact his children
during the relevant 2-year time frame but was prevented from doing so by both Mother
and the no-contact order in place after divorce proceedings were instigated by his wife.

Father's arguments lack merit. The district court judge considered the totality of
circumstances and found that Father had failed to assume his parental duties for the 2
years immediately before Stepfather's petition was filed and his extended absence in the
children's lives was due to his intentional conduct that resulted in his imprisonment for
his molestation of them. Additionally, the district court judge found Father failed to
honor his parental duty to protect his children from horrendous acts but instead
intentionally perpetuated horrendous acts upon them and "robbed [the children] of their
childhood." Finally, the district court judge acknowledged fathers have "multiple duties
to their children" over and above the payment of child support. Here, the district court
found "a few dollars of support provided before and after [Father's] conviction does not
outweigh or compensate for his evil."

The district court judge's decision is supported by substantial competent evidence.
First, unless a stepparent is invoking the rebuttable presumption that a father failed to
assume his parental duties by not paying child support, it is but one point for the court to
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consider with all the other factors in the children's best interests. A court is supposed to
weigh the totality of circumstances. Here, the district court judge took into account Father
had paid child support, but the judge found the overwhelming evidence that Father had
sexually molested and raped his children was not outweighed by any amount of money.

Further, it is illogical to find Father's unfit behavior (the molestation) did not
amount to him failing to assume his parental duties simply because the molestation
happened outside the 2-year window. When the molestation was discovered, Father was
no longer allowed contact with the children. He inflicted serious harm on his children by
raping and molesting them. Father has been absent from his children's lives since July
2011 due to his intentional acts. Finally, the record reflects Father is currently serving a
140-month term of imprisonment and will not be in a position to parent his children
anytime in the near future. In a light most favorable to the Stepfather, there is substantial
competent evidence to support the district court judge's decision Father was unfit, to
terminate Father's parental rights, and to grant the Stepfather's adoption of the children
pursuant to K.S.A. 2015 Supp. 59-2136(d).

Affirmed.