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In re of K.H.

Court of Appeals of Kansas

May 17, 2019

In the Interests of K.H., K.R.T., and K.J.T., Minor Children.

          Appeal from Shawnee District Court; Mary E. Christopher, judge.

          Rachel I. Hockenbarger, of Topeka, for appellant.

          Morgan L. Hall, deputy district attorney and Michael F. Kagay, district attorney, for appellee.

          Before Arnold-Burger, C.J., Pierron and Malone, JJ.

          OPINION

          Malone, J.

         1. Interpretation of a statute is a question of law over which appellate courts have unlimited review.

         2. At a hearing on a motion for termination of parental rights, a parent who fails to appear in person but who appears through counsel is not in default. In this situation, the district court errs by granting a default judgment terminating parental rights without receiving any evidence to support the motion.

         3. Under the Revised Kansas Code for Care of Children, when a parent fails to appear at the hearing on a motion to terminate parental rights, the State may proceed by proffering the evidence supporting the motion if there is no objection by counsel for the parent. But if the parent has instructed his or her counsel to object to a proffer, then the State should proceed by presenting evidence to the court in support of termination.

         J.H. (Mother) appeals the termination of her parental rights to her children, K.R.T., K.J.T., and K.H. The district court granted a default judgment against Mother because she failed to appear in person at the hearing on the State's motion to terminate parental rights, even though Mother appeared at the hearing through her court appointed counsel. On appeal, Mother claims the district court violated her due process rights by terminating her parental rights through a default judgment. She also claims there was insufficient evidence to support the district court's findings that she was an unfit parent and that termination of her parental rights was in the children's best interests. For the reasons stated in this opinion, we conclude the district court erroneously terminated Mother's parental rights based on a default judgment without hearing any evidence.

         Factual and Procedural Background

         On August 20, 2015, the State filed a petition alleging K.R.T., K.J.T., and K.H. were children in need of care (CINC). The petition named N.C. as the father of K.R.T. and K.J.T., and it named R.H. as the father of K.H. The fathers are not involved in this appeal. As to Mother, the petition alleged that she physically abused the children.

         The district court held a temporary custody hearing the next day. Mother and her court appointed attorney appeared at the hearing. At the end of the hearing, the district court placed the children into the temporary custody of the Department for Children and Families (DCF).

         The district court held an adjudication hearing on November 30, 2015. Mother appeared in person and through her attorney. At the hearing, Mother did not contest the allegations in the petition and the district court adjudicated the children as CINC. The district court held a disposition hearing on January 25, 2016, and ordered that the children remain in DCF custody.

         The record reflects no other court hearings until late in 2016. In December 2016, the district court held a permanency hearing with the goal of reintegration or adoption. The district court held a review hearing in March 2017, and the court ordered social services to provide therapist recommendations to Mother. The district court held the next hearing in May 2017, and it ordered reports on progress in therapy. The district court held another review hearing in July 2017, and it ordered the social service agency to distribute reports relating to autism, ...


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