In the Interests of M.S. and B.J., Minor Children.
BY THE COURT
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.
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.
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).
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.
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.
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
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.
from Shawnee District Court; Steven R. Ebberts, judge.
I. Hockenbarger, of Topeka, for appellant natural mother.
Michael F. Kagay, district attorney, and Morgan L. Hall,
deputy district attorney, for appellee.
Gardner, P.J., Green and Atcheson, JJ.
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.
and Procedural Background
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).
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
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.
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.
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.
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.
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
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
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."
district court also found that termination of Mother's
parental rights was in the best interests of the children.
has timely appealed.
Mother Afforded Due Process?
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).
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
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