C.H., the mother of L.S. and A.J.S., appeals the termination of
her parental rights and further appeals the trial court's denial
of her motion to reconsider. We reverse and remand for new trial.
C.H. argues that her parental rights should not have been
terminated because she was not afforded proper notice and
opportunity to be heard. She further argues the trial court erred
in denying her motion to reconsider by finding adequate service
had been afforded.
The State first argues the natural mother has no standing to
appeal the termination of her parental rights because on April
18, 1988, she signed a consent to the adoption of L.S. and
A.J.S., which was acknowledged before the administrative district
court judge for Wyandotte County. The State argues that such a
consent, acknowledged before a judge of a court of record, is
irrevocable pursuant to K.S.A. 59-2102(c).
As this court has previously stated, provisions of the adoption
statutes must be "strictly construed in favor of maintaining the
rights of the natural parents in controversies involving
termination of the parent-child relationship." In re Adoption of
J.G., 10 Kan. App. 2d 483, 485, 702 P.2d 1385, rev. denied
238 Kan. 877 (1985). K.S.A. 59-2102(c) establishes rules between the
natural parents and prospective adoptive parents on when and
under what circumstances a consent to adoption can be revoked.
Treiber v. Stong, 5 Kan. App. 2d 392, 396, 617 P.2d 114, rev.
denied 228 Kan. 807 (1980). Here, no adoption was ever
finalized. The legislature did not intend that a natural parent
should lose forever all parental rights to a child if the
adoption consented to is not completed. Treiber, 5 Kan. App. 2d
at 396. We find nothing in the consent by C.H. to an incompleted
adoption which would disturb her standing to assert this appeal.
We now turn to the natural mother's arguments that she was not
afforded due process. "[J]urisdiction over the person of the
defendant can be acquired only by issuance and service of process
in the method prescribed by statute, or by voluntary appearance."
Davila v. Vanderberg, 4 Kan. App. 2d 586, 608 P.2d 1388 (1980).
"A parent's right in and to his or her children is of paramount
importance and is entitled to due process protection under the
Fourteenth Amendment." In re M.L.K., 13 Kan. App. 2d 251, Syl. ¶
1, 768 P.2d 316 (1989).
On January 27, 1989, the district court found that the notice
of termination hearing by publication was sufficient. The
affidavit of the investigator upon which the court based its
authority for publication notice showed the investigator
contacted the BPU, the Gas Service Co., Union Gas, Directory
Assistance, Wyandotte County Voter Registration, the Wyandotte
County Sheriffs Department, and the Kansas City, Kansas, and
Kansas City, Missouri, Police Departments in his efforts to
locate C.H. No effort
was apparently made to contact any relatives of C.H., or any
friends or neighbors in the area of her last known address.
K.S.A. 38-1582(c), a section of the code dealing with the
procedures for terminating parental rights, states:
"(c) In any case in which a parent of a child
cannot be located by the exercise of due diligence,
service shall be made upon the child's nearest blood
relative who can be located and upon the person with
whom the child resides. Service by publication shall
be ordered upon the parent."
Before there can be a valid personal service of process by
publication in a termination of parental rights action upon a
parent who cannot be located by due diligence, this statute must
be at least substantially complied with. See Briscoe v. Getto,
204 Kan. 254
, 256, 462 P.2d 127 (1969). A reasonable attempt was
not made to locate or serve the children's nearest blood
relative. If such an attempt had been made, the natural mother
might well have been located. We hold this error to be fatal to
service in this case. Without such service the State did not have
personal jurisdiction over the natural mother. Lack of personal
jurisdiction renders the judgment void. Ford v. Willits,
9 Kan. App. 2d 735, 743-44, 688 P.2d 1230 (1984), affd 237 Kan. 13,
697 P.2d 834 (1985).
The trial court erred in finding the State had exercised due
diligence in attempting to locate the natural mother.
Parents' rights of custody and control of their children are
liberty interests protected by the Fourteenth Amendment Due
Process Clause. In re Cooper, 230 Kan. 57, Syl. ¶ 1, 631 P.2d 632
(1981). The due process clause requires at a minimum
"`that deprivation of life, liberty or property by
adjudication be preceded by notice and opportunity
for hearing appropriate to the nature of the case. .
. . [W]hen notice is a person's due, process which is
a mere gesture is not due process. The means employed
must be such as one desirous of actually informing
the absentee might reasonably adopt to accomplish
it.'" Pierce v. Board of County Commissioners,
200 Kan. 74, 82-83, 434 P.2d 858 (1967) (quoting Mullane
v. Central Hanover Tr. Co., 339 U.S. 306, 313, 315,
94 L.Ed. 865, 70 S.Ct. 652 ).
Due process requires that notice must be "reasonably
calculated, under all the ...