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In re A.F.

December 7, 2007

IN THE INTEREST OF A.F., A MINOR CHILD BORN 11-07-04.


Appeal from Wyandotte District Court; KATHLEEN M. LYNCH, judge.

SYLLABUS BY THE COURT

1. Under the Revised Kansas Code for Care of Children, the right to appeal is provided only from orders of temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights.

2. When an order of disposition has been made granting custody of a child to the Kansas Department of Social and Rehabilitation Services for the purpose of adoption, there is no right to appeal from a district court judgment regarding the fairness of SRS orders placing the child with potential adoptive families.

The opinion of the court was delivered by: Leben, J.

Appeal dismissed.

Before CAPLINGER, P.J., ELLIOTT and LEBEN, JJ.

Cases that involve children are challenging for everyone. The children must be protected. Their rights--as well as those of the parents and others with an interest in them--must be protected. And the legal process must move with some dispatch so that disputes may be resolved within a reasonable time frame, even as time is perceived by a child.

Our challenge here is to decide whether the dispute presented to us may even be heard in our appellate court at all. The child in this case, 3-year-old A.F., was placed into the custody of the Kansas Department of Social and Rehabilitation Services (SRS) on the day she was born. The district court found an emergency situation existed because A.F.'s mother did not have a fit home to bring her new daughter home to. A.F. has remained in SRS custody ever since.

The rights of A.F.'s parents were terminated in March 2006 when A.F. was 16 months old. The court granted custody to SRS, giving it the authority to find an adoptive home for A.F. and to approve that adoption: K.S.A. 38-1584(b)(1)(A) provides in this circumstance that SRS may "give consent for the legal adoption of the child[,] which shall be the only consent required to authorize the entry of an order or decree of adoption." Even after custody is given to SRS for the purpose of arranging a child's adoption, though, the district court retains a supervisory role to make sure that reasonable efforts are made toward that end by SRS. See K.S.A. 38-1584(d).

SRS initially considered A.F.'s paternal grandmother, S.W., as a potential adoptive parent. SRS placed A.F. with the grandmother from May 2005 until August 2006. SRS then decided instead to place A.F. with a foster family for potential adoption. The grandmother asked for a court hearing to challenge this SRS decision. We have previously held that interested parties have a right to a hearing in the district court to review SRS placement decisions. In re M.R., 36 Kan. App. 2d 837, 146 P.3d 229 (2006); In re D.C., 32 Kan. App. 2d 962, 92 P.3d 1138 (2004). And a hearing was provided to the grandmother in our case too. The district court found that the grandmother had not shown that she had been unfairly excluded from consideration by SRS as an adoptive parent for A.F. As a result of that decision, A.F. remained with the foster family, who had already adopted A.F.'s half-sister, who is now age 2 and unrelated to the paternal grandmother of A.F.

The grandmother has appealed the district court's decision that overruled her objection to this placement decision to our court. Upon initial review of the case file, we noted that another panel had recently heard a very similar case and had dismissed it for lack of jurisdiction. See In re D.M.M., 38 Kan. App. 2d 394, 166 P.3d 431 (2007).

The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. An appeal must be dismissed if the record shows that the appellate court does not have jurisdiction. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006). Because of D.M.M., we issued a show-cause order to the parties here to address the jurisdiction issue.

The grandmother noted in her response that jurisdiction appeared to have been exercised in similar cases in the past, citing In re M.R.; In re D.C.; and In re D.D.P., Jr., 249 Kan. 529, 819 P.2d 1212 (1991). Indeed, the M.R. and D.C. cases were like both our case and D.M.M.: all involved a challenge to a change of placement of a child for adoption after termination or relinquishment of parental rights. In all of these cases, custody had been awarded to SRS, which was authorized to move toward adoption. But the only discussion of jurisdiction in the appellate decisions before D.M.M. related to whether the district court had jurisdiction, not whether there was appellate jurisdiction. In re M.R., 36 Kan. App. 2d at 839-40 (noting circumstances in which the district court is authorized by statute to consider whether a change in the placement made by SRS is in the best interests of the child); In re D.C., 32 Kan. App. 2d at 965-67 (holding that district court has authority to review placement decisions made by SRS in cases of voluntary relinquishment as well as termination of parental rights). The other case cited by the grandmother, D.D.P., Jr., is not factually similar to our case, and it too offers no separate discussion of appellate jurisdiction. Thus, the panel in D.M.M. rightly concluded that the question of appellate jurisdiction had neither been considered nor decided in the cited cases.

S.W.'s appeal was filed January 10, 2007, just after the Revised Kansas Code for Care of Children went into effect. We have referred to the pre-2007 Code provisions thus far because they were in effect when the events that we have discussed took place before the district court. We shift now to the current Code, effective January 1, 2007, though the ...


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