NOT DESIGNATED FOR PUBLICATION
No. 123,755
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of L.G.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Reno District Court; PATRICIA MACKE DICK, judge. Opinion filed January 14, 2022.
Affirmed.
Thomas A. Dower, of Gilliland Green LLC, of Hutchinson, for appellant natural mother.
Jennifer L. Harper, assistant district attorney, and Thomas R. Stanton, district attorney, attorney
general, for appellee.
Before SCHROEDER, P.J., BRUNS and WARNER, JJ.
PER CURIAM: This is a child in need of care (CINC) case that a panel of this court
previously remanded to the district court. The panel remanded this matter with directions
for the district court to set a rehearing on disposition and to provide the requisite notice of
that hearing to all parties as set forth in K.S.A. 2020 Supp. 38-2254. In re L.G., No.
121,639, 2020 WL 1492859, at *10 (Kan. App. 2020) (unpublished opinion). On remand,
the district court held an evidentiary hearing in accordance with the mandate of this court
and found that it was in the minor child's best interest to remain in his Father's custody. In
this appeal, Mother contends that the district court erred by applying an incorrect
standard. In addition, Mother contends that the evidence was insufficient to support the
district court's custody order. Finding no error, we affirm the district court's decision.
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FACTS
The underlying facts were set forth in the case In re L.G., No. 121,639, 2020 WL
1492859, at *2-7 (Kan. App. 2020) (unpublished opinion). As such, we will focus on the
facts that are material to the issue presented in this appeal. If necessary, we will address
additional facts in the Analysis section of this opinion.
L.G. was born in June 2015, in Mesa, Arizona. L.G.'s Mother signed an
acknowledgment of Father's paternity at the hospital. About two months after L.G. was
born, Father filed a paternity action in the Superior Court of Arizona in Maricopa County.
In his petition, Father alleged he was the natural father of L.G. However, in response to
the petition, Mother's boyfriend, N.D., filed a voluntary acknowledgement of paternity.
Subsequently, Mother and N.D. moved to Kansas with L.G. and began calling him by a
different name.
On January 11, 2016, Mother filed a verified petition in Kansas to determine
paternity, custody, visitation, and support. In the petition, Mother alleged that she was
married to N.D. at the time of L.G.'s conception and birth. She also alleged that N.D. was
both the natural and presumed father of L.G., even though she knew that this was not
true.
On February 22, 2016, Father filed a motion to intervene in the Kansas action for
the limited purpose of asking the district court to defer to an order for genetic testing
entered in Arizona. He also asked the district court to enforce any orders issued in
Arizona regarding L.G.'s paternity. On March 11, 2015, the district court entered an
agreed upon order to intervene. In the agreed order, the parties acknowledged that a DNA
test performed on March 9, 2016, shows the probability of Father's paternity to be
99.999999997 percent. Based on the DNA paternity test results, Father was allowed to
intervene and participate in the case.
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Father then moved to dismiss the Kansas paternity case on the basis that
proceedings regarding custody, visitation, and support were ongoing in Arizona. Mother
opposed the motion for dismissal and asked the district court to participate in a
conference call with the judge handling the Arizona action to discuss jurisdiction under
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The district
court granted Mother's request and a UCCJEA conference was held on April 28, 2016.
During the conference, both the Kansas and Arizona courts determined that Arizona was
the home state. Nevertheless, it was determined that the Kansas court was the more
appropriate forum to decide the issues in this matter because L.G. was living here.
On June 20, 2016, the Arizona court found that the genetic testing results
concluded that N.D. is not the natural father of L.G. The following year, Mother filed a
petition seeking an order of protection from abuse (PFA) against N.D. In support of her
petition, Mother alleged that N.D. sexually assaulted her. On June 6, 2017, the district
court issued a final order of protection from abuse. Thereafter, there was significant
litigation between N.D. and Mother that is not material to the issues presented in this
appeal.
On October 10, 2018, the State filed a petition alleging that L.G. was a child in
need of care. In its petition, the State alleged that L.G. was: (1) without adequate parental
care, control or subsistence and it is not due solely to the lack of financial means of the
child's parents or other custodian (K.S.A. 38-2202[d][1]); and (2) without the care or
control necessary for the child's physical, mental or emotional health (K.S.A. 38-
2202[d][2]). Specifically, the State alleged the following facts in support of its petition:
"In Reno County case # 18 DM 493, both [Mother] and [N.D.] asserted in the
Petition filed 7-3-18 that they were the parents of [L.G.]. This is contrary to the findings
of the Superior Court of Arizona in Maricopa County case # FC 2015-095221. It found in
its Order filed 6-22-16 that [N.D.] was not the father of [L.G.], setting aside a prior Order
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issued in AZ case FC 2015-095415, and changed the child’s name back from [E.D.] to
[L.G.].
"In 18 DM 493, [N.D.] has been given temporary residential custody of [L.G.]
despite having no legal relationship with the child, to the exclusion of the biological
[Father]. Based on the allegations against [Mother] which prompted the change in
custody, she is not fit. Her actions in changing states and preventing a relationship with
the biological father necessitate a closer examination of what is in the best interest at this
point in [L.G.]'s life now that he is over three years old and would likely only recognize
[N.D.] as his father, and respond to [E.D.], rather than his legal name of [L.G.]."
The court also appointed a guardian ad litem to represent L.G.'s interests, and a
pretrial conference was held on October 30, 2018. After hearing from the parties and
listening to the arguments of counsel, the district court ordered the case to be supervised
by the Kansas Department of Children and Families (DCF). However, the district court
left L.G. in the temporary physical custody of N.D. The district court also allowed Father
to have two in-person visits with L.G. before he returned home to Arizona. In addition,
the district court appointed counsel to represent Mother and continued the pretrial
conference.
On November 9, 2018, the district court resumed the pretrial conference and
Mother appeared in person as well as through her attorney. Although Mother denied the
allegations in the CINC petition, the district court determined that its prior orders should
remain in place. The district court also ordered that Father's home in Arizona be assessed
under the Interstate Compact for the Placement of Children (ICPC) and that a regular
parenting time schedule between L.G. and Father be established using virtual technology.
Finally, the district court ordered that an early education screening of L.G. be conducted.
On December 11, 2018, Father filed a motion requesting: (1) an out-of-state
overnight visit from January 5, 2019, through January 12, 2019; and (2) immediate
placement of L.G. with him in Arizona. Two days later, the parties convened for an
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evidentiary hearing regarding the allegations in the amended CINC petition. Neither
Mother nor Father contested the allegations set forth in the petition, and the district court
adjudicated L.G. to be a CINC. Specifically, the district court found that L.G. was
without adequate parental care, control, or subsistence. The district court then addressed
disposition and temporarily placed L.G. in the legal custody of DCF. The district court
also granted Father's request for an out-of-state visit from January 5, 2019, through
January 12, 2019. Although the district court did not rule on Father's request for
immediate placement of L.G. with him, it ordered N.D. to facilitate virtual visits between
L.G. and his Father.
On December 27, 2018, DCF held a case planning conference in which both
Mother and Father participated by telephone. About a month later, Father filed a motion
asking the district court for an order placing L.G. with him in Arizona. He also requested
another out-of-state visit with L.G. Even though the district court granted Father's request
for another visit in Arizona, it did not rule on his request that L.G. be placed immediately
with him.
Two days before L.G. was scheduled to return to Kansas, the district court issued a
two-page "Order Regarding Custody" granting Father custody of L.G. with any future
disputes between the parents to be resolved in the Arizona court. On April 4, 2019,
Mother filed a motion challenging the district court's legal authority to enter the order
modifying custody. In an order entered on June 20, 2019, the district court clarified that
its order was not issued sua sponte, but instead was intended to grant Father's motion for
direct placement of L.G. with him in Arizona. The district court explained that it had
previously taken Father's motion under advisement at a hearing attended by Mother and
her attorney. In addition, the district court ruled that the best interests of L.G. are served
by placing him with his Father. Thereafter, Mother filed her first appeal.
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A panel of this court reversed the court's decision and remanded the matter to the
district court for further consideration. In reaching this conclusion, the panel held:
"Upon review of the record, we find no evidence that Mother received notice and an
opportunity to be heard at a dispositional hearing on the issue of transferring legal
custody of L.G. from DCF in Kansas to Father in Arizona. This is not to say that the
district court did not have the authority to enter such an order; Father is L.G.'s natural
parent. But before entering the order, [Kansas law] requires the constitutional safeguards
of notice and an opportunity to be heard. For this reason, we reverse the court's decision
to deny Mother's motion to reconsider and remand with directions for the court to
schedule a rehearing on disposition hearing as contemplated by K.S.A. 2019 Supp. 38-
2256 and to provide the requisite notice for that hearing to all necessary parties as set
forth in K.S.A. 2019 Supp. 38-2254." 2020 WL 1492859, at *9-10.
On remand, the district court scheduled an evidentiary hearing and gave notice to
the parties. Unfortunately, the audio recording equipment used at the hearing failed, and a
transcript is not available to this court. However, a statement reconstructing the hearing
record has been filed pursuant to Kansas Supreme Court Rule 3.04 (2021 Kan. S. Ct. R.
24). This statement was agreed to by the parties and approved by the district court.
The Rule 3.04 statement provides:
"On December 10, 2020, the Court conducted an evidentiary hearing relating to the issues
of custody as directed by the Court of Appeals. The following persons testified on that
date: the mother; the father by telephone; Tresny Janzen, Director of Rockin J’s Child
Care—L.G. former daycare provider while residing in Hutchinson, KS; and Shirley
Muncie, a LCSW."
• "Ms. Janzen testimony was that L.G. appeared to be well cared for and loved and that he
had a strong connection/relationship with his sister who was also present at the daycare."
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• "Ms. Muncie testified that she provided counseling services for L.G. ['s] older sister. L.G.
was not a patient of hers and she did not offer any expert opinions regarding L.G. Ms.
Muncie did testify that frequently during her sessions with L.G.'s older sister that he was
present and the close bond and connection between L.G. and his older sister was readily
apparent."
• "The mother testified as follows:
"i. L.G. had resided with her from his birth until the temporary order entered on August
27, 2018.
"ii. The mother left Arizona, where L.G. was born, in an effort to place distance between
herself and the child's father due to his volatile behavior.
"iii. In late July/early August 2018 mother re-located from Hutchinson, Kansas to Kansas
City, Kansas.
"iv. She complied with the temporary order obtained by an older child's father which
resulted in both L.G. and his older sister residing with the older sister's father.
"v. L.G. and his older sister are extremely close.
"vi. The mother elected to return to live and work in the Hutchinson, Kansas area and
completed the move in October 2018.
"vii. The case workers assigned to the case had no objections to her household.
"viii. The mother has 4 children. The oldest resides with his father in Arizona. She has
primary custody of her oldest daughter. She has a shared custody arrangement of her
youngest daughter.
"ix. The mother has had minimal difficulty in arranging for parenting time or sharing
parenting responsibilities with her other children's fathers.
"x. The mother has had extreme difficulty in arranging any meaningful contact with L.G.
during the time the child has been in Arizona.
"xi. L.G.'s father has frequently bullied or belittled her and refused to cooperate with
phone calls or video conferencing visits.
"xii. The father has suggested that she 'give up' and allow his significant other to adopt
L.G.
"xiii. This behavior continued when the mother attempted to use text messaging to
schedule a FaceTime visit with L.G."
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• "The father testified as follows:
"i. The mother consistently interfered with his ability to have a relationship with L.G.
"ii. The mother altered and/or changed records at the hospital where L.G. was born to
prevent him from having access to L.G.
"iii. The mother and L.G. left the hospital without any notice to father.
"iv. Although he was aware she moved to Kansas he wasn't always certain about her
exact address.
"v. Legal actions were commenced in Arizona to address the issue of paternity. That
resulted in the Arizona courts finding that he was L.G.['s] father.
"vi. The mother refused to cooperate with any efforts for him to see his child.
"vii. The father did not pursue an order of visitation in the paternity case that was pending
in Reno County, Kansas due to finances.
"viii. That the father has sufficient financial resources to provide for the parties' child.
"ix. The father acknowledged some of the belittling text messages but attributes those to
the ongoing frustration over past issues.
"x. The parties' child has made a good adjustment to Arizona and is currently enrolled in
school in Arizona."
After hearing the testimony of the parties and reviewing the evidence, the district
court filed a journal entry on December 18, 2020, awarding custody to Father. In the
journal entry, the district court found "that it is in the child's best interest to remain in the
custody of the father, and to have parenting time with the mother as set forth in the Order
Regarding Holiday Parenting Time and Skype visits filed on December 17, 2020."
Following the filing of the journal entry, Mother timely filed the present appeal.
ANALYSIS
Mother first contends that the district court erred by applying an incorrect standard
in ruling on L.G.'s custody. Although she argues that the district court applied the wrong
standard, Mother does not explain why she believes the standard used was wrong nor
does she explain what standard she believes should apply. Based on our review of the
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record, it is clear that the district court used a "best interests" of the child standard in
determining L.G.'s custody.
The State argues that since Mother fails to explain or support her argument that the
district court applied the wrong standard, this issue is deemed waived and abandoned. In
Kansas, a point raised incidentally in a brief and not argued is deemed abandoned.
Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017); see In re Marriage of
Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018). In addition, failure to support a point
with pertinent authority or show why it is sound despite a lack of supporting authority or
in the face of contrary authority is akin to failing to brief the issue. In re Adoption of
T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018). Here, because Mother fails to
explain how the district court erred in applying the best interests standard and fails to
explain what alternative standard should apply, we find this issue to be waived or
abandoned.
We pause to note that even if Mother had explained her argument, the result would
be the same. It is important to recognize that this is a CINC action brought under the
Revised Kansas Code for Care of Children, which takes precedence over the Kansas
Family Law Code. K.S.A. 2020 Supp. 38-2201(a). Absent certain exceptions not
applicable to this appeal, jurisdiction continues until the child turns 18 years of age
pursuant to the Revised Code for Care of Children unless the child is adopted or is
discharged by the court. K.S.A. 2020 Supp. 38-2203(c). As a result, the Revised Code for
the Care of Children applies to custody determinations in this CINC action.
Following an adjudication that a child is a CINC, the district court is required to
consider the best interests of the child when making dispositional decisions regarding
placement and custody. See K.S.A. 2020 Supp. 38-2252(a); K.S.A. 2020 Supp. 38-2253;
K.S.A. 2020 Supp. 38-2255. As our Supreme Court has explained, the best interests of
the child test has long been the preferred standard to apply when custody of a minor child
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is at issue between the child's natural parents. In re Guardianship of B.H., 309 Kan. 1097,
1104, 442 P.3d 457 (2019); see also In re P.J., 56 Kan. App. 2d 461, 465, 430 P.3d 988
(2018) (best interests standard applies in CINC proceedings). Further, in remanding this
matter to the district court, the panel specifically instructed the district court to hold a
hearing "as contemplated by K.S.A. 2019 Supp. 38-2256" and "enter any dispositional
orders authorized by the Code." In re L.G., 2020 WL 1492859, at *10. Accordingly, even
if Mother had preserved her argument on appeal, a review of the record reveals that the
district court correctly applied the best interests standard in determining L.G.'s custody in
this CINC action.
Next, Mother contends that the district court's order of custody is not supported by
sufficient evidence. As discussed above, the hearing conducted by the district court was
to determine the disposition of a CINC action. As such, the district court could
appropriately take into consideration any relevant information from the intake and
assessment process as well as evidence received at the dispositional hearing. See K.S.A.
2020 Supp. 38-2255(a).
Under K.S.A. 2020 Supp. 38-2255(b):
"The court may place the child in the custody of either of the child's parents subject to
terms and conditions which the court prescribes to assure the proper care and protection
of the child, including, but not limited to:
"(1) Supervision of the child and the parent by a court services officer;
"(2) participation by the child and the parent in available programs operated by
an appropriate individual or agency; and
"(3) any special treatment or care which the child needs for the child's physical,
mental or emotional health and safety."
Generally, we review a district court's decision regarding a child's best interests for
an abuse of discretion. See In re P.J., 56 Kan. App. 2d at 465; In re R.S., 50 Kan. App. 2d
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1105, 1115-16, 336 P.3d 903 (2014). In fact, a determination of the best interests of a
child is viewed as being highly discretionary based on the evidence presented in the case.
See In re P.J., 56 Kan. App. 2d at 465. A judicial action constitutes an abuse of discretion
if (1) no reasonable person would take the view adopted by the trial court; (2) is based on
an error of law; or (3) is based on an error of fact. The party asserting an abuse of
discretion—in this case Mother—bears the burden of showing it. In re S.R.C.-Q., 52 Kan.
App. 2d 454, 464, 367 P.3d 1276 (2016).
On appeal, we are not to reweigh conflicting evidence, pass on the credibility of
witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d
594 (2008); In re D.H., 57 Kan. App. 2d 421, 430, 453 P.3d 870 (2019). Here, Mother
does not persuasively argue that the district court's journal entry is not supported by
substantial competent evidence. Rather, we find that the record contains adequate
evidence to support the district court's legal conclusion "that it is in the child's best
interest to remain in the custody of the father, and to have parenting time with the mother
. . . ."
Mother essentially asks us to reweigh the evidence, pointing to the following: (1)
Father was not involved in L.G.'s life prior to the filing of the CINC case; (2) L.G. had a
good relationship with his siblings in Kansas; (3) Mother claims that Father was abusive
to her; and (4) Mother and Father do not get along. However, there is evidence in the
record that Mother played a role in preventing Father from seeing or developing a
relationship with L.G. Specifically, the evidence shows that Mother removed L.G. from
Arizona without Father's knowledge; that her actions prevented L.G. from having "a
relationship with his biological father;" that Mother continued to represent that N.D. was
L.G.'s natural father despite a paternity test to the contrary; that N.D.—although not
L.G.'s father—received temporary custody of L.G. based on allegations that Mother was
"not a proper placement" for the child; that Mother changed L.G.'s name in order to
represent him as N.D.'s son; and that Mother refused to maintain contact with Father
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despite the fact that he tried to reach her through social media, family members, and
through court filings.
During the CINC hearing, Father informed the court that he had spent $15,000 in
expenses in trying to establish paternity and gain access to his son. Moreover, Father
stated that despite the district court ordering virtual visits with L.G., he was not
consistently allowed to do so. But once Saint Francis Ministries—which was a 3rd party
contractor of DCF—began to facilitate the virtual visits, they occurred on a regular basis
and without any concerns being expressed.
Our review of the record confirms that substantial competent evidence supports
the district court's decision that it was in L.G.'s best interests to be placed in the custody
of Father. It is undisputed that Mother attempted to keep L.G. from his Father, even after
paternity was confirmed by genetic testing. After the filing of a CINC petition in October
2018, L.G. was placed in the temporary physical custody of N.D., despite the fact that
N.D. had no legal relationship with the child. Since being subsequently placed in Father's
custody, the record confirms that L.G. has adjusted well. Father testified that L.G. was
currently enrolled in school with an IEP in place to meet his educational needs. Further,
L.G. has a little sister in Arizona, and Father testified that L.G. was happy in his
household. In addition, L.G. spends time with extended family, including cousins close to
his age. As to his relationships in Kansas, Father testified that L.G. was able to see his
siblings on a visit to Kansas during his Mother's parenting time.
Although child custody decisions are difficult, we conclude that there is
substantial competent evidence in the record to support the district court's determination
that it is in the best interests of L.G. to remain in the custody of his Father. Furthermore,
we conclude that the district court's decision is reasonable and supported by the evidence.
We also conclude that the district court did not error as a matter of law. We, therefore,
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affirm the district court's journal entry granting custody of L.G. to his Father and granting
his Mother reasonable parenting time.
Affirmed.
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