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In re X.D.

Court of Appeals of Kansas

December 24, 2014

In the Interest of: X.D., T.C.D., F.M.D., D.D., and C.D., Jr., Children in Need of Care

Appeal from Saline District Court; JEROME P. HELLMER, judge.

SYLLABUS

BY THE COURT

When considering whether to apply a presumption of unfitness as a basis for terminating parental rights, the district court must allow both parties to present evidence relevant to the presumption before deciding whether to apply it.

Mitchell B. Christians, of Salina, for appellant natural father.

Charles Ault-Duell, assistant county attorney, and Ellen Mitchell, county attorney, for appellee.

Before MALONE, C.J., LEBEN and ATCHESON, JJ.

OPINION

Page 1231

Leben, J.

Corey D. (Father) appeals the district court's termination of his parental rights to five children. He argues that the district court violated his due-process rights when it found that the State had presented a sufficient evidentiary basis for presuming him an unfit parent without first hearing the evidence Father wanted to present on the unfitness presumption.

We agree with Father that the district court's procedure violated his due-process rights. A fundamental part of due process is the opportunity to be heard in a meaningful way. The presumption of unfitness that can be applied to terminate a parent's rights to a child is an important part of the process, and the parent has a right to present evidence before the presumption is applied. We therefore reverse the district court's judgment terminating Father's parental rights and remand the case for further proceedings.

Factual and Procedural Background

The district court held an evidentiary hearing on the State's motion to terminate Father's rights to these children on October 15, 2013. The State sought to establish Father's unfitness as a parent, which is required to terminate parental rights, under a statutory presumption found in K.S.A. 2013 Supp. 38-2271(a)(5). Under that statutory provision, a parent is presumed unfit and unable to care for his or her child if the State proves by clear and convincing evidence that the child has been in a court-ordered, out-of-home placement for 1 year or more and the parent " has substantially neglected or willfully refused to carry out a reasonable [court-approved] plan" for reintegrating the child into the parent's home. K.S.A. 2013 Supp. 38-2271(a)(5).

To terminate parental rights, the State must prove unfitness, and the State chose in Father's case to proceed solely on the basis of this presumption. After the State presented the testimony of three witnesses who managed the family's case plan and provided therapy, the district court agreed to the State's suggestion that it determine--based on the evidence heard ...


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