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IN RE J.L.D.

August 28, 1990.

In the Interest of J.L.D., a minor child.


J.J.C. (appellant), the natural father of J.L.D., appeals the district court's termination of his parental rights pursuant to K.S.A. 38-1583, contending his due process rights were violated because he was not afforded the opportunity to be present at the termination hearing. We affirm.

The facts in the case are important and essentially undisputed. J.J.C. and B.D. are the natural parents of J.L.D. The record

[14 Kan. App. 2d 488]

      does not reflect whether the parents were ever legally married. Appellant was in Florida when his son was born on July 11, 1987. He returned to Kansas but was arrested in August 1987 and returned to Florida to face criminal charges. He had had contact with his son while in Kansas.

Appellant was convicted in Florida of second-degree murder and robbery involving a firearm. He was sentenced to 42 years' imprisonment and remains incarcerated in Florida. There was a dispute as to his eligibility for release. An SRS social worker's affidavit advised the court appellant's earliest release date would be in the year 2015.

  The child and his mother apparently lived in Emporia, Kansas. Because of child abuse the district court issued an order placing the child in the protective custody of the Department of Social and Rehabilitation Services (SRS). On the same date, a petition was filed alleging J.L.D. to be a child in need of care because he was without adequate parental care and had been abused. J.L.D. was placed in a foster home. J.L.D. was found by the district court to be a child in need of care. The mother was present, but appellant apparently received no notice of the hearing.

  A petition was filed seeking termination of the parental rights of both parents. Appellant does not dispute that he had proper notice of this hearing. Counsel was appointed for each of the parents.

  Counsel for appellant filed a motion to transport the natural father from Florida to the hearing. The court sustained the motion and granted the father a continuance.

  The mother's severance hearing was held, she was found to be unfit, and her parental rights were terminated. She did not appeal that decision.

  Appellant's attorney was granted an additional six-week continuance to attempt to secure appellant's presence at the severance hearing. Thereafter, the hearing for the termination of the father's parental right was held. He was not present, although both the State and the father's attorney had contacted various Florida governmental officials to no avail. The parties were in agreement that it was not possible to obtain appellant's release from prison for the hearing.

[14 Kan. App. 2d 489]

     

  Appellant's attorney objected to proceeding with the hearing in his client's absence on the grounds that constitutional due process required the father's presence at the hearing. The district court overruled the objection on the basis that every possible effort had been made to obtain the father's presence, that the court had jurisdiction to hear the case, and that the severance hearing should proceed without the father's presence.

  The hearing proceeded, evidence was admitted, and arguments were presented by counsel. Appellant did not seek to testify by deposition or to submit written interrogatories. At the close of the hearing, the district court found J.L.D. to be a child in need of care and, after making findings of fact, found appellant to be unfit by reason of conduct and condition which render him unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future.

  The trial court balanced the best interests of the child against the rights of the father and concluded that it had jurisdiction to proceed with the severance of parental rights under K.S.A. 38-1583. The district court entered its ...


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