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In re J.L

Court of Appeals of Kansas

July 19, 2019

In the Interest of J.L., A Minor Child.

         SYLLABUS BY THE COURT

         1. When evaluating a due process claim, a determination must first be made whether a fundamental liberty or property interest is implicated. If so, the court must then determine the nature and extent of the process that is due. Whether an individual's due process rights were violated is a question of law subject to de novo review.

         2. A parent has a fundamental liberty interest in making decisions regarding the care, custody, and control of his or her child.

         3. Before a parent can be deprived of the right to the custody, care, and control of his or her child, the parent is entitled to due process. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

         4. In determining the nature and extent of the process a parent is due, 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), is to be used. 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 burdens additional or substitute procedure would incur.

         5. A component of due process requires the State to provide notice of a potential deprivation of the interest and an opportunity to be heard regarding the deprivation.

         6. To adjudicate a child as a child in need of care when the parent contests such a finding, the court shall hear evidence in support of adjudication, and the State is required to prove the same by clear and convincing evidence. When a parent is not present, the case may proceed by proffer unless the parent appears by counsel and has instructed counsel to object.

         7. The State's petition containing a blanket notice that if a parent failed to appear at any hearing the result would be the court making decisions without the parent's input and could result in a default judgment did not satisfy the notice requirements of K.S.A. 2018 Supp. 60-255 where the father had previously appeared in the case nor did it satisfy the minimum due process requirements for notice when the purpose of the hearing was to consider pretrial matters and the default judgment granted was adjudication of the child as a child in need of care.

          Appeal from Shawnee District Court; Darian P. Dernovish, judge.

          Rachel I. Hockenbarger, for appellant natural father.

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

          Before Schroeder, P.J., Green and Powell, JJ.

          POWELL, J.

         A father has a constitutional right to parent his child. Before that right may be impaired or taken away, a scrupulous observance of due process is called for. In the case before us, J.J.L. (Father) appeals the district court's decision to adjudicate by default his son, J.L., as a child in need of care (CINC) at a pretrial conference hearing without advance notice even though Father's counsel was present and Father was only 10 minutes late. Because such an action offends due process, we reverse and remand.

         Factual and Procedural Background

         On April 24, 2018, the State filed a petition alleging J.L. was a child in need of care. In this petition, the State alleged J.L witnessed an "unknown male" shoot his mother inside of the home, that there were prior reports of domestic violence between J.L.'s mother and Father, and that it was believed that Father would attempt to remove J.L. from the jurisdiction to prevent him from testifying regarding the incident. On the same day, after a temporary custody hearing at which Father appeared in person, J.L. was placed in the temporary custody of the Secretary of the Department for Children and Families. On May 21, 2018, a review hearing was held, and Father appeared in person. On June 28, 2018, another review hearing was held, and Father again appeared in person. At this hearing a prior restraining order on Father was lifted; the district court authorized supervised visits between J.L. and Father; and both of J.L.'s parents requested a trial on the CINC petition, which was set for December 18 and 19, 2018. No pretrial conference date was set at the time.

         On November 13, 2018, the district court conducted a pretrial conference hearing. According to Father's attorney, notice of the pretrial conference was apparently mailed on September 27, 2018, listing Father's address as "unknown." A copy of this notice does not appear in the record on appeal. The following exchange occurred at the pretrial conference:

"THE COURT: Okay. Usually the parties are here. Why aren't the parties here? Were they told not to be here. Or, what's going on?
"[GUARDIAN AD LITEM]: They were ordered to appear.
"MR. DEBENHAM [FATHER'S ATTORNEY]: Yeah. On June 25th, my client was here and then got the trial dates of December 18 through 19. I don't think there was a pre-trial set then. Or, if it [was], it was changed. And then, notice of this pre-trial was mailed out on September 27th listing an unknown address for 'father.' Father does move around. He doesn't have a set address. I had mailed him a letter at the address he said we usually forward things on and he wasn't there. So, I guess, my thought is is that he, you know, publication probably ...

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