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In re N.A.C.

Supreme Court of Kansas

July 11, 2014

In the Interest of N.A.C

As Amended July 11, 2014.

Page 459

Review of the judgment of the Court of Appeals in 49 Kan.App.2d 699, 316 P.3d 771 (2013).

Appeal from Sedgwick District Court; DANIEL T. BROOKS, judge.

Judgment of the Court of Appeals reversing the district court is reversed. Appeal dismissed for lack of jurisdiction.

SYLLABUS

BY THE COURT

1. Under K.S.A. 2012 Supp. 38-2201(b)(4), a stated statutory policy of the Revised Kansas Code for Care of Children is to " acknowledge that the time perception of a child differs from that of an adult and to dispose of all proceedings under this code without unnecessary delay." Appellate review of district court decisions made under the Revised Code should respect that policy.

2. The right to appeal is entirely statutory. Appellate courts have only such jurisdiction as is provided by law. Under the Revised Kansas Code for Care of Children, K.S.A. 2012 Supp. 38-2273(a) sets forth the procedure and requirements for an appeal in a child in need of care case.

3. K.S.A. 2012 Supp. 38-2273(a) specifically limits the types of orders that can be appealed in a child in need of care case under the Revised Kansas Code for Care of Children. Under that statute, appealable orders are limited to " any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights." If an order in a child in need of care case does not fit within these five categories, it is not appealable.

4. The terms " order of temporary custody," " adjudication," and " disposition" are terms of art within the Revised Kansas Code for Care of Children with particular meanings assigned within its context.

5. The Revised Kansas Code for Care of Children creates a legislatively designated framework of sequential steps of judicial proceedings with each step occurring in a specific order leading toward permanency in the child's placement. Applying this framework, the temporary custody hearing and order comprise the first step in these proceedings. The second step involves the adjudication. The third involves the disposition.

6. An order terminating parental rights is the last appealable order under K.S.A. 2012 Supp. 38-2273(a). Post-termination permanency orders issued under K.S.A. 2012 Supp. 38-2264(h) are not subject to appellate review.

Lynnette A. Herrman, of counsel, Beall & Mitchell, L.L.C., of Wichita, argued the cause and was on the brief for appellants Maternal Cousins.

Kellie E. Hogan, of Kansas Legal Services, of Wichita, argued the cause and was on the briefs for appellees, Foster Parents.

BILES, J. MORITZ, J., not participating. R. SCOTT MCQUIN, District Judge, assigned. [1] JOHNSON, J., dissenting.

OPINION

Page 460

[299 Kan. 1101] Biles, J.

This is an expedited appeal from a child in need of care (CINC) proceeding under the

Page 461

Revised Kansas Code for Care of Children (Revised Code), K.S.A. 2012 Supp. 38-2201 et seq. The lower courts reached different outcomes on the law and evidence. The threshold question--whether appellate jurisdiction exists to reach the merits of the case--presents a conflict within the caselaw as developed by the Court of Appeals. The answer has wide-ranging implications for future CINC proceedings. Because of that, we granted review even though we recognize our involvement delayed permanency for this child and the two families who have struggled within the system to provide her with an adoptive home.

We hold that the Revised Code's appellate jurisdiction statute, K.S.A. 2012 Supp. 38-2273(a), limits what district court decisions may be appealed in a CINC proceeding. In this case, there is no appellate jurisdiction to review the post-termination decisions at issue: (1) the district court's finding that the responsible state agency failed to make reasonable efforts or progress toward adoptive placement; and (2) its attendant orders, which were contingent under the statute upon that first finding, removing the child from state agency custody and placing her directly with her foster parents with permission to adopt. See K.S.A. 2012 Supp. 38-2264(h) (if court determines reasonable efforts or progress has not been made toward finding adoptive placement, it may make other orders [299 Kan. 1102] regarding custody and adoption that are appropriate under the circumstances).

We reverse the decision by the Court of Appeals panel majority, which reached a contrary holding. This appeal is dismissed for lack of appellate jurisdiction.

Factual and Procedural Background

On November 2, 2011, N.A.C. was born premature on a city street in Wichita. She weighed 4 pounds and tested positive for cocaine. The baby's mother was behaving erratically, and the two were taken to a hospital where the mother wanted to leave with the newborn against medical advice. The infant was taken into police protective custody as authorized by K.S.A. 2012 Supp. 38-2231(b)(1) (child under 18 years of age shall be taken into custody when law enforcement or court services officer reasonably believes child will be harmed if not immediately removed from place where child has been found). Mother left the hospital alone and has had no further contact with N.A.C.

For the most part, we will limit our discussion about what happened next to what is relevant to the dispositive jurisdictional issue.

District Court Proceedings

On November 4, a CINC petition was filed in Sedgwick County District Court Juvenile Department, Case No. 2011-JC-430. That same day, the district court (CINC court) entered an ex parte order of protective custody under K.S.A. 2012 Supp. 38-2242, which placed N.A.C. with the Secretary of the Department of Social and Rehabilitation Services (SRS). That agency then asked S.D. and D.D. (Foster Parents) to accept N.A.C. as their foster child. They agreed and brought the infant home from the hospital. They have cared for her ever since. Foster Parents are not N.A.C.'s blood relatives.

After a hearing on November 7, the CINC court entered an order of temporary custody under K.S.A. 2012 Supp. 38-2243 in which it determined: (1) an emergency existed threatening N.A.C.'s safety; (2) there was probable cause to believe N.A.C. was likely to sustain harm if not immediately removed from the parental [299 Kan. 1103] home; and (3) N.A.C.'s placement with SRS should continue. Later that month, a court services officer informed an employee of Youthville, an SRS contractor, that the mother's cousin and cousin's husband (Maternal Cousins), who lived in another state, were interested in adopting N.A.C.

When N.A.C. was 1 month old, she was adjudicated a child in need of care under K.S.A. 2012 Supp. 38-2251. On January 5, 2012, the CINC court conducted a dispositional hearing under K.S.A. 2012 Supp. 38-2253. The resulting Order of Disposition directed that N.A.C. remain in SRS custody.

On February 8, 2012, the State filed a motion to terminate parental rights. N.A.C. was 3 months old at that point. The district

Page 462

court orally granted this motion during an April hearing, but the journal entry was not filed until May 3 because N.A.C.'s mother informed the court she wanted to voluntarily relinquish her parental rights. On May 17, the district court held a post-termination permanency hearing under K.S.A. 2012 Supp. 38-2264. The district court accepted SRS's permanency plan and continued N.A.C.'s temporary placement with SRS for adoption.

In the meantime, SRS had initiated efforts for Maternal Cousins to adopt N.A.C. in compliance with the Interstate Compact on Placement of Children (ICPC), K.S.A. 38-1201 et seq. , which was necessary because Maternal Cousins resided in another state. An adoptive ICPC was approved on August 6. SRS and its contractor formally chose Maternal Cousins for adoptive placement at an agency meeting commonly referred to as the " best interests staffing."

But Foster Parents also wanted to adopt N.A.C. They were granted interested party status by the CINC court under K.S.A. 2012 Supp. 38-2241(e) (permitting such status to any person with whom the child has resided, among others, if the district court finds it is in the best interests of the child). Foster Parents first pursued an internal reconsideration of the agency decision favoring adoptive placement with Maternal Cousins; but when SRS again chose Maternal Cousins, Foster Parents filed a motion with the CINC court under K.S.A. 2012 Supp. 38-2264(h) alleging in that statute's language that " reasonable efforts or progress have not been made [299 Kan. 1104] toward finding an adoptive placement." This motion and its outcome are the focus of this appeal.

On November 5, the CINC court held an evidentiary hearing and granted Foster Parents' motion. It found SRS and Youthville had failed to make reasonable efforts or progress towards N.A.C.'s adoption. The court also noted that from the outset " this case screamed termination [of parental rights]," making permanent placement the obvious outcome. The CINC court further found the delays in securing N.A.C.'s adoption by Maternal Cousins were the result of systemic problems with the agency and its contractor and that the " absolute severance" of the bonds that had formed between N.A.C. and Foster Parents, as well as their other children with whom N.A.C. had been living, would not be in N.A.C.'s best interests. The CINC court then granted Foster Parents custody of N.A.C. with permission to adopt. It also granted Maternal Cousins interested party status under K.S.A. 2012 Supp. 38-2241(e) for purposes of appeal " if they choose to explore that option." N.A.C. had just turned 1.

After the CINC court ruling, Foster Parents initiated a separate court action to adopt N.A.C. in Sedgwick County District Court (Case No. 12 A.D. 366) under the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq. , which is part of the Kansas Probate Code. This separate court action was necessary because a district court lacks authority to enter adoption decrees under the Revised Code. See K.S.A. 2012 Supp. 38-2270 (enumerating orders CINC court may enter if parental rights have been terminated and it appears adoption is a viable alternative).

On December 19, Maternal Cousins filed a notice of appeal in the CINC proceeding (Case No. 2011-JC-430). That notice states Maternal Cousins appeal " certain judgments entered herein on November 5, 2012, and all previous rulings, and orders on all issues." The notice of appeal concludes the appellate record from the CINC case.

On December 21, the same district judge who conducted the CINC proceedings presided over the adoption case and approved Foster Parents' adoption of N.A.C. Maternal Cousins did not appear in that case or pursue an appeal.

[299 Kan. 1105] Court of Appeals Proceedings

Once the appeal from the CINC proceeding was docketed by Maternal Cousins, Foster Parents filed a motion to involuntarily dismiss it, alleging the Court of Appeals lacked jurisdiction. Foster Parents argued the November 5 order was not one of those enumerated in the Revised Code as appealable. See K.S.A. 2012 Supp. 38-2273(a) (appeal may be taken by any party or interested party from " any order of temporary custody, adjudication, disposition, finding of unfitness

Page 463

or termination of parental rights" ). The Court of Appeals denied this motion but ordered the parties to fully brief the pivotal jurisdictional question for fuller consideration with the merits.

In their responsive filings, Maternal Cousins argued jurisdiction existed under the Code of Civil Procedure's general jurisdiction statute, K.S.A. 2012 Supp. 60-2102. They essentially contended the November 5 CINC court order was a final order and that CINC proceedings are civil in nature. Notably, Maternal Cousins did not address the more specific jurisdictional provision in K.S.A. 2012 Supp. 38-2273(a), which Foster Parents had identified as controlling.

For reasons not at all understandable, neither party advised the Court of Appeals in their briefs that the separate adoption proceeding had occurred months earlier and resulted in a final adoption decree. In fact, the adoption decree was not disclosed to the panel until oral arguments, at which point the panel ordered the parties to prepare additional briefing addressing whether this appeal was moot since a final adoption decree had been entered and not appealed.

After this additional briefing, a divided Court of Appeals panel reversed the CINC court. The majority held jurisdiction existed, that the case was not moot, and that the CINC court erred in finding SRS and Youthville had failed to make reasonable efforts or progress towards N.A.C.'s adoption. The panel majority then vacated the CINC court's order granting Foster Parents legal custody, voided the adoption decree in the separate adoption proceeding (Case No. 12 A.D. 366), and remanded the CINC case for [299 Kan. 1106] post-termination case management " while [SRS] proceeds with and finalizes adoption placement." In re N.A.C.,49 Kan.App.2d 699, 725, 316 P.3d 771 (2013). ...


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