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In res M.S.

Court of Appeals of Kansas

June 22, 2019

In the Interests of M.S. and B.J., Minor Children.

         SYLLABUS BY THE COURT

         1. A fit parent has a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution to make decisions regarding the care, custody, and control of his or her child.

         2. In determining the nature and extent of the process a parent is due, we use the three-factor balancing test set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Those three factors are: (1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State's interest in the procedure used, including the fiscal and administrative burden additional or substitute procedure would incur.

         3. Proceedings in child in need of care cases "shall be disposed of without unnecessary delay. Continuances shall not be granted unless good cause is shown." K.S.A. 2018 Supp. 38-2246. A request to continue a hearing on a motion to terminate parental rights "shall be granted only if the court finds it is in the best interests of the child." K.S.A. 2018 Supp. 38-2267(a).

         4. The district court may terminate the legal bonds between parent and child only upon clear and convincing proof of parental unfitness. K.S.A. 2018 Supp. 38-2269(a). An appellate court reviewing that determination must find, based on the full evidentiary record considered in a light favoring the State as the prevailing party, that a rational fact-finder could have found the termination decision highly probable, i.e., supported by clear and convincing evidence.

         5. Under K.S.A. 2018 Supp. 38-2269(b)(7), the court considers the failure of reasonable efforts, not effective efforts, made by appropriate public or private agencies to rehabilitate the family.

         6. The State is not required to provide direct evidence that a parent's conduct is due to drug use or to provide direct evidence that a parent's drug use is harmful to a child if sufficient evidence shows that drug use impeded reintegration.

         7. After a district court finds a parent unfit, it must then decide whether termination of parental rights is "in the best interests of the child." K.S.A. 2018 Supp. 38-2269(g)(1). An appellate court reviews that determination for an abuse of discretion.

          Appeal from Shawnee District Court; Steven R. Ebberts, judge.

          Rachel I. Hockenbarger, of Topeka, for appellant natural mother.

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

          Before Gardner, P.J., Green and Atcheson, JJ.

          Gardner, J.

         Mother appeals the termination of her parental rights to her two children. She contends that she was denied due process, that insufficient evidence shows her to be unfit, and that termination is not in the children's best interests. Having reviewed the record, we find no error.

         Factual and Procedural Background

         Mother has two children, M.S. and B.J. In July 2015, when the children were six years old and one month old, the State filed a children in need of care (CINC) petition alleging that the children were not being properly fed, were in a home with domestic violence and drug use, and that their home was infested with rodents. As a result of these allegations, the children were placed in the temporary custody of the Kansas Department for Children and Families (DCF).

         In August 2015, the children were adjudicated CINC. Mother was not present at that hearing, but Father stipulated to the allegations in the State's petition and entered a no-contest statement. The district court ordered that the children remain in DCF custody and adopted a proposed permanency plan with a goal of reintegration with Mother and Father.

         In June 2016, the district court held a permanency hearing and adopted a dual case-plan goal of reintegration and adoption. But the district court later found reintegration was no longer viable and changed the case plan goal to adoption. The State then moved to find the parents unfit and to terminate their parental rights.

         A three-day trial was set on the State's motion to terminate. At the beginning of the trial, Mother told the district court that her mother was in the hospital and that she may need to leave early to bring her home. Mother later requested a continuance to the next day, but the district court denied her request. The State presented its evidence then Mother presented her case-in-chief. The district court ended trial for the day and ordered Mother to appear at 9 a.m. the next morning.

         Mother did not appear on the second day of trial. She did, however, speak with her attorney and asked her to notify the court that she had a transportation issue and would be late. Yet Mother failed to show, so the district court continued the trial to the following day.

         On the third day of trial, Mother again failed to appear and failed to respond to her attorney's attempts to contact her. Her attorney, however, was present and indicated that Mother had no more evidence to present. The district court found Mother in default, heard a proffer by the State, reviewed the evidence the parties had presented, and then terminated Mother's parental rights.

         We give no effect to the district court's finding that Mother was in default. As we have recently reminded courts, "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." In re K.H., 56 Kan.App.2d 1135, Syl. ¶ 2, ___ P.3d ___ (No. 120, 239, filed May 17, 2019). And we find it unnecessary to consider the effect of the State's proffer. See In re J.M.B., No. 112, 578, 2015 WL 4460578, at *11 (Kan. App. 2015) (unpublished opinion) (citing In re J.F., No. 110, 809, 2014 WL 3024367, at *4 [Kan. App. 2014] [unpublished opinion]). Here, the district court received and relied on evidence presented by both the State and Mother to justify its decision, rather than relying on Mother's failure to appear. We do the same.

         The district court found the evidence clearly and convincingly showed Mother was unfit and was unlikely to change in the foreseeable future, based on the following factors:

K.S.A. 2018 Supp. 38-2269(b)(3) - "the use of intoxicating liquors or narcotic or dangerous drugs of such duration or nature as to render the parent unable to care for the ongoing physical, mental or emotional needs of the child;"
K.S.A. 2018 Supp. 38-2269(b)(7) - "failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family;"
K.S.A. 2018 Supp. 38-2269(b)(8) - "lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child."
K.S.A. 2018 Supp. 38-2269(c)(2) - "failure to maintain regular visitation, contact or communication with the child or with the custodian of the child;" and
K.S.A. 2018 Supp. 38-2269(c)(3) - "failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home."

         The district court also found that termination of Mother's parental rights was in the best interests of the children.

         Mother has timely appealed.

         Was Mother Afforded Due Process?

         We first address Mother's argument that her due process rights were violated when the district court permitted the trial to continue and conclude without her being present. "Whether an individual's due process rights were violated is a question of law subject to de novo review." In re Adoption of B.J.M., 42 Kan.App.2d 77, 81, 209 P.3d 200 (2009).

         Legal Principles

         Before a parent can be deprived of the right to the custody, care, and control of the child, the parent is entitled to due process of law. In re Adoption of A.A.T., 287 Kan. 590, 600-01, 196 P.3d 1180 (2008).

"The right to due process is traditionally stated as the right to be heard at a meaningful time in a meaningful manner. Due process violations exist when a claimant is able to establish that the claimant was denied a specific procedural protection. In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007)." In re S.D., No. 116, 185, 2017 WL 2001662, at *5 (Kan. App. 2017) (unpublished opinion).

         The specific procedural protection denied to Mother was a continuance of the trial.

"Due process is not a fixed concept, but rather what procedures are necessary depends on the specific circumstances. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001). Also, due process is not a static concept. Its requirements vary to assure the basic fairness of each particular action according to the circumstances. See In re J.L.D., 14 Kan.App.2d 487, 490, 794 P.2d 319 (1990), disapproved on ...

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