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
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
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.
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 ...