BY THE COURT
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.
parent has a fundamental liberty interest in making decisions
regarding the care, custody, and control of his or her child.
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
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.
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.
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
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.
from Shawnee District Court; Darian P. Dernovish, judge.
I. Hockenbarger, for appellant natural father.
L. Hall, deputy district attorney, and Michael F. Kagay,
district attorney, for appellee.
Schroeder, P.J., Green and Powell, JJ.
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.
and Procedural Background
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.
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
"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 ...