In re K.R.

1

In the Interest of K.R., a Minor Child.

No. 125,712

Court of Appeals of Kansas

July 21, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Reno District Court; PATRICIA MACKE DICK, judge.

Candace S. Bridgess, of Kansas Legal Services, Inc., for appellant natural mother.

S Kyle Byfield, assistant district attorney, and Thomas Stanton, district attorney, for appellee.

Before BRUNS, P.J., GREEN and SCHROEDER, JJ.

MEMORANDUM OPINION

PER CURIAM

N.A (Mother) appeals the district court's termination of her parental rights. She argues that the district court did not afford her due process. The State argues that the district court correctly terminated parental rights through a default judgment because Mother failed to appear at the hearing allowing the district court to take judicial notice of its file. Because the district court erroneously terminated Mother's parental rights without any evidence and in direct contradiction of a persuasive decision from this court, we reverse and remand to the district court for a new termination hearing in this case.

FACTS

In July 2021, the State filed a petition alleging that K.R. was a child in need of care (CINC). The petition named T.R. as the father of K.R., noting that he was incarcerated. The father is not involved in this appeal. The petition alleged that Mother repeatedly dropped off K.R. at his grandmother's workplace before disappearing for an unknown period. The petition alleged concerns about Mother's usage of methamphetamine and heroin.

The district court scheduled a hearing on temporary custody. The guardian ad litem (GAL) stipulated that the claims in the State's petition were true. The district court placed K.R. in the temporary custody of the Kansas Department for Children and Families (DCF).

At the adjudication and disposition hearing, Mother did not stipulate that the State's petition was true as the GAL did. Instead, she entered a no-contest stipulation. The district court ordered that K.R. remain in DCF custody.

In July 2022, the district court held a permanency hearing and found that reintegration was no longer a viable goal. The State moved to terminate Mother's parental rights, alleging that Mother had failed to show stable housing and income and that she continued abusing drugs. The district court ordered a hearing on the motion, which the court scheduled for August 31, 2022.

On the day of the termination hearing, Mother's counsel appeared, but Mother did not appear. Instead, her boyfriend called to say that she was positive for COVID-19. The district court requested a test, and Mother arrived in court with a test showing that she was negative for COVID-19. The district court ordered her to have a urinalysis test at court services before the hearing. Mother left the courthouse, never went to court services, and did not return. The district court made no announcements in the record, and it did not hold a hearing on August 31, 2022. Thus, the record on appeal contains no transcript. The State, in its appellee brief, claims that the district court made findings on August 31 and ordered Mother's parental rights terminated. But the record lacks support for the State's claims.

The district court, however, issued a written order terminating Mother's parental rights on September 19, 2022. Mother moved to set aside the default judgment. Both Mother and the State maintain in their appellate briefs that the district court held a hearing on October 11, 2022, and denied Mother's motion to set aside the default judgment. No transcript or other record of this hearing is of record. Instead, the court reporter filed a memo noting that there was no electronic recording in this case to transcribe.

Mother timely appeals.

ANALYSIS

Did the district court err in terminating Mother's parental rights?

On appeal, Mother claims that the district court violated her due process rights by terminating her parental rights through a default judgment. The State argues that Mother had an opportunity to be heard at a meaningful time and in a meaningful manner, but Mother decided not to appear in person.

A 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 the parent's child. 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 P.R., 312 Kan. 767, 778, 480 P.3d 778 (2021). But this fundamental right to parent is not without limits. 312 Kan at 778. Because child welfare is a matter of state concern, the State may assert its interest "through state processes designed to protect children in need of care." In re A.A.-F., 310 Kan. 125, 146, 444 P.3d 938 (2019).

Also, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007). When considering whether there has been a due process violation, appellate courts apply an unlimited standard of review. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).

In 2019, this court gave instructions to the district courts on how to proceed with termination of parental rights in a factually and persuasive case of In re K.H., 56 Kan.App.2d 1135, 444 P.3d 354 (2019). In that case, the natural mother claimed that the district court erred, alleging that the default judgment violated her constitutional due process rights. This court held that the claim could be resolved through statutory analysis. 56 Kan.App.2d at 1139-40. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

We acknowledge that one Kansas Court of Appeals panel may freely disagree with a previous panel of the same court. State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018). While conflicting opinions among panels of the Court of Appeals may constitute a valid ground for granting Supreme Court review, no authority exists for one panel to overrule or disapprove a decision of another panel. In re Marriage of Cray, 254 Kan. 376, 382, 867 P.2d 291 (1994). Given the factual similarities between this case and In re K.H., which we find it to be a persuasive decision, it is difficult for us to say anything that has not already been considered and said in In re K.H.

K.S.A. 38-2248(f) provides that in "evidentiary hearings for termination of parental rights under this code, the case may proceed by proffer as to parties not present, unless they appear by counsel and have instructed counsel to object." The language of the statute is unambiguous. Simply put, "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" absent parent. In re K.H., 56 Kan.App.2d at 1141.

Here, the district court did not follow the statutory procedure in terminating Mother's parental rights. Mother arrived late for the hearing and then left rather than take a urinalysis test. In short, she failed to appear in person. But she appeared at the hearing through her attorney. In such circumstances, In re K.H, the court concluded:

"In this situation, at a minimum, the State should have proceeded by proffering the evidence in support of its motion to the district court. In the event of an objection to a proffer, the State should have proceeded to offer clear and convincing evidence to support its motion to terminate Mother's parental rights." In re K.H., 56 Kan.App.2d at 1141.

The State concedes that it did not proffer evidence, adding the following: "In this case the natural mother's counsel did not request the State proffer it's [sic] evidence or put on any evidence." Here, the State introduces an irrelevant argument in its assertion that Mother's counsel did not request the State to proffer its evidence. This contention is a red herring because K.S.A. 38-2248(f) does not require a natural mother's counsel to request that the State proffer evidence. As this court instructed in In re K.H., the case may proceed without Mother being present, at the district court's discretion. But if the case does proceed, it must proceed first by proffer of evidence and then, if the absent parent's counsel objects, the State must present the evidence. In re K.H., 56 Kan.App.2d at 1141.

Instead of following the statutory procedure under K.S.A. 38-2248(f), the district court apparently canceled the proceedings. The district court then granted a default judgment without receiving any evidence. Indeed, the court found that Mother's attorney could not "refute the allegations contained in the State's [m]otion." But the State's motion is not evidence, nor did any party ask the district court to consider the motion as evidence.

On appeal, the State notes that a court may take judicial notice of its own court file. While this is true, the State's argument contains two flaws. First, the State cites only to statutes and caselaw, but not to the record. Although it can easily be inferred, nothing in the record shows that the district court did in fact take judicial notice of its own court file. Second, and more importantly, the In re K.H. court discussed and rejected this argument "[T]here are two separate files in any CINC case: the official file containing all the pleadings filed in district court and the social file containing reports...