Review Granted Jan. 30, 2014.
[Copyrighted Material Omitted]
Syllabus by the Court
1. Whether jurisdiction exists is a question of law over which an appellate court has unlimited review.
2. The right to appeal is entirely statutory and is not contained in the United States Constitution or Kansas Constitution.
3. Appeals under the Revised Kansas Code for the Care of Children are limited to those taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights. K.S.A.2012 Supp. 38-2273(a).
4. The term " custody" is defined in K.S.A.2012 Supp. 38-2202(h) to mean " the status created by court order or statute which vests in a custodian, whether an individual or an agency, the right to physical possession of the child and the right to determine placement of the child, subject to restrictions placed by the court."
5. The term " disposition," as used in the Revised Kansas Code for the Care of Children, is an order that places a child in, continues a child in, or removes a child from the legal custody of an individual or agency.
6. In the context of describing the purpose and timing of a dispositional hearing, K.S.A.2012 Supp. 38-2253(b) provides that an order of disposition may be entered at the time of the adjudication but no later than 30 days following adjudication, unless delayed for good cause shown.
7. K.S.A.2012 Supp. 38-2256 authorizes the court to rehear any order of disposition on its own motion or the motion of any party or interested party, after which the court may enter any dispositional order authorized by the Revised Kansas Code for the Care of Children.
8. K.S.A.2012 Supp. 38-2264(f) authorizes the court to rescind any of its prior dispositional orders and enter any dispositional order authorized by the Revised Kansas Code for [49 Kan.App.2d 700] the Care of Children upon a finding by the court that reintegration continues to be a viable alternative.
9. When parental rights have been terminated and it appears to the court that adoption is a viable alternative, the court shall either (1) enter an order granting custody of the child to the Kansas Department for Children and Families for adoption placement or (2) enter an order granting custody
of the child to proposed adoptive parents and consenting to the adoption of the child by the proposed adoptive parents. K.S.A.2012 Supp. 38-2270(a).
10. Pursuant to K.S.A.2012 Supp. 38-2270(a)(1), if the district court grants custody of a child to an authorized agency, the custodial agency thereafter may give its consent for adoption without further consent of the court or any other entity or individual.
11. K.S.A.2012 Supp. 38-2264(h) provides that the district court presiding over a permanency hearing continues to maintain supervisory authority over the case even when an agency has been granted legal custody for adoption because the Revised Kansas Code for the Care of Children requires the court to conduct periodic permanency hearings to assess the progress being made toward adoption.
12. If, after the district court enters an order terminating parental rights, the court determines that reasonable efforts or progress have not been made toward finding an adoptive placement with a fit and willing relative, K.S.A.2012 Supp. 38-2264(h) allows the court to rescind its prior orders of custody for adoption placement and make other orders regarding custody and adoption that are appropriate under the circumstances.
13. The reasonable efforts and reasonable progress standards as provided in K.S.A.2012 Supp. 38-2264(h), encompass not only efficiency in finding an adoptive placement with a suitable family member who is willing and able to take on the responsibility, but also encompass consideration of all family members as potential adoptive resources in both a timely and consistent manner.
[49 Kan.App.2d 701] 14. Dispositional orders subject to appeal under K.S.A.2012 Supp. 38-2273(a) include a dispositional order entered within 30 days following adjudication as well as any other dispositional order authorized by the Revised Kansas Code for the Care of Children.
15. An appellate court generally does not decide moot questions or render advisory opinions.
16. Under the Revised Kansas Code for the Care of Children, the district court continues to have jurisdiction over all issues in the case that are not specifically appealed while a case is on appeal from the district court. Nevertheless, K.S.A.2012 Supp. 38-2274(b) permits the district court to modify a decision that is being reviewed on appeal so long as the modification is temporary in nature, relates to the care and custody of the child, and is considered advisable by the court.
17. A judgment is void, and therefore a nullity, if the court that rendered it lacked subject matter jurisdiction.
18. The appellate courts review findings of fact to determine whether they are supported by substantial competent evidence. Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion.
19. Enacted by all 50 states, the District of Columbia, and the Virgin Islands, the Interstate Compact on the Placement of Children (ICPC), K.S.A. 38-1201 et seq. , is a uniform law that provides for cooperation between states in placing children between states.
20. Article III(b) of K.S.A. 38-1202 states that before an agency can send a child into another state for placement in foster care or for a possible adoptive placement, the agency must furnish the appropriate public authorities in the receiving state a written notice of intention to send the child.
21. If an agency seeks to send a child into another state for adoptive placement, Article III(b)(4) of K.S.A. 38-1202 requires the agency to send evidence to the receiving state that will prove such agency possesses the legal authority necessary to make an adoption placement for that particular child.
[49 Kan.App.2d 702] 22. Pursuant to K.S.A.2012 Supp. 38-2264(h), it is only after the district court finds the Kansas Department for Children and Families has failed to make reasonable efforts or progress towards finding an adoptive placement with a fit and willing relative that the court is authorized to rescind or enter a new order of custody for adoption.
Lynnette A. Herrman, of Beall & Mitchell, L.L.C., of Wichita, for appellants H.G. and D.G.
Kellie E. Hogan, of Kansas Legal Services, for appellees S.D. and D.D.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
H.G. and D.G. (Maternal Cousins) appeal from the district court's order (1) finding that the Department of Social and Rehabilitation Services (SRS) failed to make reasonable efforts or progress toward finding an adoptive placement for N.A.C., (2) removing N.A.C. from the custody of SRS for adoptive placement, and (3) granting custody directly to S.D. and D.D. (Foster Parents) with court approval to adopt. For the reasons stated below, we conclude the court's finding regarding the lack of reasonable efforts by SRS toward finding an adoptive placement is not supported by substantial competent evidence, which in turn divested the court of its legal authority to remove N.A.C. from SRS custody for adoptive placement or grant legal custody directly to Foster Parents for adoption. Accordingly, we reverse the district court's finding regarding reasonable efforts, vacate the court's orders regarding custody, and remand the cause while the Department for Children and Families proceeds with and finalizes adoption placement. (The Department of Social and Rehabilitation Services was reorganized and renamed as the Department for Children and Families on July 1, 2012. For purposes of this opinion, we shall refer to the agency as SRS throughout.)
On November 2, 2011, Mother gave birth to N.A.C. on the sidewalk [49 Kan.App.2d 703] in front of a sandwich shop in Wichita, Kansas. N.A.C. was born 6 weeks premature, weighed less than 5 pounds, and tested positive for cocaine. N.A.C. was placed into police protective custody that same day.
On November 4, 2011, the district court filed an ex parte order placing N.A.C. in the protective custody of SRS. Later that day, the State filed a petition seeking to adjudicate N.A.C. as a child in need of care. The petition alleged that Mother had a history of substance abuse and prostitution and that other children previously had been removed from her care. After proper notice was provided to all known interested parties, a temporary custody hearing was held on November 7, 2011, and the court placed N.A.C. in the temporary custody of SRS for out-of-home foster care placement. Thereafter, SRS moved N.A.C. to a foster care placement with Foster Parents, and the case was referred to Youthville for management.
In late November 2011, Maternal Cousins, who lived in Idaho, contacted Youthville and advised the social worker in the foster care unit working on N.A.C.'s case that they were interested in adopting N.A.C. Youthville informed Maternal Cousins that before N.A.C. could be placed with them for purposes of adoption, an Interstate Compact on the Placement of Children (ICPC) request formally seeking an adoption placement would need to be made by Kansas and approved by Idaho. Youthville further informed Maternal Cousins that the ICPC process for adoption placement (as opposed to a foster care placement) could not be pursued until parental rights were terminated.
On December 1, 2011, the court held a hearing at which it adjudicated N.A.C. a child in need of care. A disposition hearing was held on January 5, 2012. The journal entry of disposition ordered N.A.C. to remain in the custody of SRS for out-of-home foster care placement until further written order of the court. With regard to permanency, the journal entry required SRS and Youthville to ensure the biological parents received the services necessary to reintegrate N.A.C. into a parental home. At the same time, the court scheduled an April 3, 2012, termination of parental rights hearing [49 Kan.App.2d 704] and authorized Youthville to begin working on the ICPC paperwork for Maternal Cousins.
The State filed a motion to terminate parental rights on February 8, 2012. After the motion to terminate was filed, but before the April 3, 2012, hearing on that motion, Youthville began working on the ICPC paperwork necessary to request that Idaho conduct a
courtesy home study and evaluation of Maternal Cousins in anticipation of an ICPC request to approve them as an adoptive resource for N.A.C. The April 3, 2012, termination hearing was held as scheduled, and the district court orally granted the motion to terminate parental rights as to Mother and any known or unknown father. On April 10, 2012, however, it appears the district court received notice that Mother intended to relinquish her parental rights, which apparently caused a delay in filing the journal entry terminating parental rights that was needed in order to pursue the ICPC process for adoption placement.
On May 3, 2012, the court filed a journal entry documenting its decision to terminate parental rights, but it specifically stayed the findings and rulings as to Mother for a period of 10 days (to May 13, 2012) pending receipt of Mother's voluntary relinquishment. The journal entry specifically ordered N.A.C. to " be placed in the custody of SRS for adoption proceedings, under K.S.A. 38-2270."
A post-termination permanency hearing was held on May 17, 2012, 4 days after the stay on the journal entry terminating parental rights was lifted. At this hearing, the district court found that SRS was making reasonable efforts toward adoption, noting that " [a] possible relative resource has been found in Idaho and the ICPC process will start soon. In addition, the foster parents are interested in adopting [N.A.C.]"
In early June 2012, Youthville received a certified copy of the journal entry terminating parental rights and granting SRS custody for adoption placement under K.S.A.2012 Supp. 38-2270. The case was reassigned to an adoption worker, who in turn finalized and transmitted the ICPC paperwork necessary for Idaho to determine whether Maternal Cousins were an appropriate adoptive resource for N.A.C. Youthville received notice on August 6, 2012, [49 Kan.App.2d 705] that Idaho authorities had approved Maternal Cousins as an adoptive placement for N.A.C.
On August 27, 2012, Youthville held a best interests staffing to determine N.A.C.'s adoptive resource. By unanimous decision, Youthville selected Maternal Cousins as the adoptive placement. Foster Parents objected to the decision and requested a review. A second staffing was held, and Youthville again selected Maternal Cousins as the adoptive placement.
On September 28, 2012, Foster Parents filed a pleading titled " Motion to Find No Reasonable Efforts" asking the court to find that SRS had failed to make reasonable efforts or progress toward placement of N.A.C. with Maternal Cousins for adoption, and to enter an order removing N.A.C. from SRS custody for adoptive placement and granting legal custody of N.A.C. to Foster Parents for adoption. See K.S.A.2012 Supp. 38-2264(h) (if court determines, after terminating parental rights, that reasonable efforts or progress have not been made toward finding adoptive placement with fit and willing relative, court may rescind prior custody and adoption orders).
On November 5, 2012, the district court held an evidentiary hearing on Foster Parents' motion. At the end of the hearing, the court concluded Youthville had not made reasonable efforts under K.S.A.2012 Supp. 38-2264(h) to find an adoptive placement for N.A.C. with a fit and willing relative. With regard to custody, the court found the adoption staffing team erroneously considered only the fact that Maternal Cousins were blood relatives in selecting them as the adoptive placement and failed to consider the effect on N.A.C. if the bond with the only family she had known during the first year of her life was destroyed by making such a placement. Relying on its discretionary authority under K.S.A.2012 Supp. 38-2264(h) to rescind a prior custody or adoption order after parental rights have been terminated based on a finding that the custodial agency has failed to make reasonable efforts or progress toward finding an adoptive placement with a fit and willing relative, the court thereafter removed N.A.C. from SRS custody and placed her directly with Foster Parents in order to allow them to pursue an independent adoption. The journal entry was filed on November [49 Kan.App.2d 706] 29, 2012. The court granted interested party status to Maternal Cousins for purposes of appealing the rulings in its decision.
Foster Parents promptly filed a petition for adoption of N.A.C. and, although it was filed in probate court, the juvenile judge presiding over the child in need of care (CINC) matter granted the final decree of adoption in favor of Foster Parents on December 21, 2012.
Maternal Cousins appeal from the district court's November 5, 2012, order. Before this court can address the underlying merits of the issues presented on appeal, we first must determine whether we have jurisdiction over the subject matter presented and, if we do, whether the issues presented have been rendered moot by the decree of adoption in favor of Foster Parents entered while this appeal was pending.
Whether jurisdiction exists is a question of law over which an appellate court has unlimited review. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). The right to appeal is entirely statutory and is not contained in the United States Constitution or Kansas Constitution. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. Harsch v. Miller, 288 Kan. 280, 287, 200 P.3d 467 (2009). Consequently, if the record shows that the appellate court does not have jurisdiction, the appeal must be dismissed. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
" An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights." K.S.A.2012 Supp. 38-2273(a). The district court granted Maternal Cousins interested party status, so they have standing to appeal. But in order for this court to have subject matter jurisdiction over Maternal Cousins' appeal, the order being appealed must be one of the specified orders listed in K.S.A.2012 Supp. 38-2273(a). In this case, the [49 Kan.App.2d 707] order being appealed concluded SRS— by and through Youthville as its contracting agent— did not make reasonable efforts to find a relative to adopt N.A.C., removed N.A.C. from the legal custody of SRS for adoptive placement, and granted legal custody of N.A.C. directly with Foster Parents for adoption. Thus, we must determine whether this order qualifies as an order of temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights.
In making this determination, we find it helpful to begin our analysis by providing a brief overview of the legal process for terminating parental rights in Kansas. This process is set forth in the Revised Kansas Code for Care of Children (Code), K.S.A.2012 Supp. 38-2201 et seq. , and is initiated upon the filing of a petition that alleges a child to be a child in need of care. Once a CINC petition is filed, the case evolves based on individual circumstances that may or may not develop in the case. The statutory scheme that governs this evolution is summarized below, prefaced by two statutory definitions that also are relevant to our analysis.
The term " custody" is defined in the Code to mean " the status created by court order or statute which vests in a custodian, whether an individual or an agency, the right to physical possession of the child and the right to determine placement of the child, ...