In re GMA
Citation | 43 P.3d 881,30 Kan. App.2d 587 |
Decision Date | 12 April 2002 |
Docket Number | No. 86,933.,86,933. |
Parties | IN THE INTEREST OF G.M.A., DOB: 06-21-93, and S.R.A, DOB: 02-16-95 |
Court | Court of Appeals of Kansas |
Scott E. Wasserman and Candice L. Shepard, of Law Offices of Scott Wasserman, of Shawnee Mission, for appellant maternal grandmother.
Donald W. Hymer, Jr., and Steven J. Obermeier, assistant district attorneys, and Paul J. Morrison, district attorney, for appellee State of Kansas.
Melinda S. Whitman, of Overland Park, guardian ad litem.
Before RULON, C.J., KNUDSON, J., and WAHL, S.J.
This is a severance of parental rights case. The district court severed the parental rights of the biological parents to both children in this case. The issues on appeal concern the denial of a motion for custody filed by the maternal grandmother requesting the district court to grant her custody of the children for the purpose of adoption under K.S.A. 38-1584.
We affirm.
The two issues on appeal are as follows:
I. Does K.S.A. 38-1584(b)(4) create a rebuttable presumption in favor of custody with a relative for purposes of adoption?
II. Who bears the burden of proof and the burden of producing evidence in regard to obtaining custody of the children for adoption?
The facts of this case are not in dispute.
On May 12, 1999, G.M.A. and S.R.A were found to be children in need of care for reasons not relevant here. Subsequently, the district court terminated both natural parents' rights to the children. Neither parent has appealed this ruling.
On May 25, 2000, the maternal grandmother filed a motion asking for custody of the children. In the maternal grandmother's motion she seeks custody for the purposes of adopting the children. After hearing evidence and argument from counsel, the district court found it would not be in the children's best interests to be placed in the custody of the maternal grandmother and, therefore, denied her motion.
The maternal grandmother first argues that the court erred in finding K.S.A. 38-1584(b)(4) does not create a rebuttable presumption in favor of giving custody to a relative, when the relative requests custody for purposes of adopting the subject child or children. She claims the court's ruling, finding that it would not be in the best interests of the children, in effect eviscerates the language of the statute. We disagree.
K.S.A. 38-1584 reads in relevant part:
This is an issue of statutory interpretation and thus a question of law. Interpretation of a statute is a question of law, and this court's review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
"" State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998) (quoting State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 [1998]).
The trial court in this case noted that under K.S.A. 38-1501 a proceeding under the Kansas Code for the Care of Children is civil in nature. The court went on to find that K.S.A. 60-413 provides the definition of a presumption and K.S.A. 60-414 the effect of a presumption. However, the legislature used the word "preference" rather that the word "presumption." The court noted that in K.S.A. 38-1585 the legislature used the word "presumption," indicating the legislature knew the difference between the two terms. In In re R.P., 12 Kan. App.2d 503, 749 P.2d 49,rev. denied 243 Kan. 779 (1988), this court reviewed a similar argument under the 1987 version of this same statute. K.S.A. 1987 Supp. 38-1584 read in relevant part:
In In re R.P., one of the appellants was the child's uncle. The trial court found that while the appellants were good prospective adoptive parents, it would not be in the best interests of the child to destroy the trusting and loving relationship the child had experienced over the 2 years the child had been with the foster parents. To do so would cause serious consequences and inflict great emotional pain upon R.P. The uncle argued the legislature did not intend for close emotional ties with the foster parents or other nonrelatives to change the statutory preference for placement with relatives, claiming the legislature had determined that placement of a child with suitable relatives is in the best interests of a child and a trial court lacked jurisdiction to determine otherwise.
This court disagreed, noting the language of K.S.A. 1987 Supp. 38-1584(a) emphasized the court's duty was to act in the child's best interests. The language of the statute remains unchanged in the current version.
12 Kan. App.2d at 505.
In In re R.P., this court concluded the trial court had applied the statutory preference and such placement was a matter within the sound discretion of the trial court. 12 Kan. App.2d at 505.
Other than some changes in the wording and numbering of statutory sections not relevant here, the statute remains unchanged from when In re R.P. was decided. Here, the maternal grandmother...
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