In re K.H.

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No. 120,239

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of K.H., K.R.T., and K.J.T.,
Minor Children.


SYLLABUS BY THE COURT

1.
Interpretation of a statute is a question of law over which appellate courts have
unlimited review.

2.
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.

3.
Under the Revised Kansas Code for Care of Children, 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
parent. But if the parent has instructed his or her counsel to object to a proffer, then the
State should proceed by presenting evidence to the court in support of termination.

Appeal from Shawnee District Court; MARY E. CHRISTOPHER, judge. Opinion filed May 17,
2019. Reversed and remanded.



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Rachel I. Hockenbarger, of Topeka, for appellant.

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

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

MALONE, J.: J.H. (Mother) appeals the termination of her parental rights to her
children, K.R.T., K.J.T., and K.H. The district court granted a default judgment against
Mother because she failed to appear in person at the hearing on the State's motion to
terminate parental rights, even though Mother appeared at the hearing through her court
appointed counsel. On appeal, Mother claims the district court violated her due process
rights by terminating her parental rights through a default judgment. She also claims there
was insufficient evidence to support the district court's findings that she was an unfit
parent and that termination of her parental rights was in the children's best interests. For
the reasons stated in this opinion, we conclude the district court erroneously terminated
Mother's parental rights based on a default judgment without hearing any evidence.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2015, the State filed a petition alleging K.R.T., K.J.T., and K.H.
were children in need of care (CINC). The petition named N.C. as the father of K.R.T.
and K.J.T., and it named R.H. as the father of K.H. The fathers are not involved in this
appeal. As to Mother, the petition alleged that she physically abused the children.

The district court held a temporary custody hearing the next day. Mother and her
court appointed attorney appeared at the hearing. At the end of the hearing, the district
court placed the children into the temporary custody of the Department for Children and
Families (DCF).

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The district court held an adjudication hearing on November 30, 2015. Mother
appeared in person and through her attorney. At the hearing, Mother did not contest the
allegations in the petition and the district court adjudicated the children as CINC. The
district court held a disposition hearing on January 25, 2016, and ordered that the children
remain in DCF custody.

The record reflects no other court hearings until late in 2016. In December 2016,
the district court held a permanency hearing with the goal of reintegration or adoption.
The district court held a review hearing in March 2017, and the court ordered social
services to provide therapist recommendations to Mother. The district court held the next
hearing in May 2017, and it ordered reports on progress in therapy. The district court held
another review hearing in July 2017, and it ordered the social service agency to distribute
reports relating to autism, psychological evaluations, and parenting assessments to all
parties. Mother appeared in person and through her attorney at each of these hearings.

On July 31, 2017, Mother moved for direct placement of the children with her or,
in the alternative, for accelerated reintegration. In her motion, Mother alleged she had
stable housing, gainful employment, and was complying with her parole and requests
from social services. But she argued social services were not making efforts to
rehabilitate the family because social services did not start family therapy or allow her
visits with the children longer than one hour. Mother requested the children be placed
with her and allow court services to supervise her care of the children.

Before the district court could hear Mother's motion, the State moved to terminate
her parental rights. The motion alleged that Mother was failing her reintegration plan due,
in part, to her recent incarceration. According to the motion, Mother was incarcerated for
felony fleeing or eluding, felony interference with law enforcement, misdemeanor
possession of marijuana, and several traffic violations. The record does not reflect the
final disposition of the criminal charges. The State's motion also requested termination of
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the fathers' parental rights. The motion included a notice that "[a]ll parties are hereby
notified pursuant to K.S.A. 38-2234 and K.S.A. 60-255 that if you do not appear at the
hearing, the court will be making decisions without your input which could result in a
default judgment against either parent who fails to appear."

The district court held several hearings before scheduling a trial on the motion to
terminate parental rights. At a review hearing on August 28, 2017, the district court
ordered a continuance on both pending motions. The district court held a permanency
hearing in October 2017. At a review hearing on November 14, 2017, and again at a
hearing on January 3, 2018, the district court continued the pending motions. Mother
appeared in person and through her attorney at each of these hearings.

In March 2018, the district court held a review hearing where Mother addressed
the court "regarding sibling visits and . . . communication and cooperation issues between
Mother and [social services] assigned to her case." The district court ordered sibling
visits to occur within two weeks and continued the case for pretrial and trial.

The district court held a pretrial hearing in April 2018. Mother failed to appear and
the court continued the case for another pretrial hearing in May 2018. The record
contains no journal entry for the May 2018 hearing, but the record shows the hearing
occurred in May and that Mother again failed to appear.

The district court scheduled a trial on the State's motion to terminate parental
rights on June 26, 2018. Mother did not appear in person at the hearing, but she was
represented by her court appointed attorney. The district court recessed for 10 minutes to
give Mother a chance to appear late, but she did not appear when court resumed. Mother's
attorney referred the court to an unpublished Kansas appellate decision finding that a
mother's due process rights had been violated when the district court refused to hold over
a termination hearing for a third day to allow the mother to testify after she had failed to
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appear on the second day of the hearing. The district court responded that "if it is an
unpublished opinion then per Supreme Court rule it has no [precedential] value."

On the State's request, the district court granted "default judgment in regards to
[M]other's termination of parental rights." The district court entered a finding that Mother
was "unfit as set forth in the State's motion." The district attorney asked the court for
clarification in whether it was making a best interests finding. The district court agreed
that it was making a best interests finding and noted that it had "reviewed the file and the
materials in it" earlier that morning.

The State later filed a journal entry terminating Mother's parental rights. In the
journal entry, the district court found Mother unfit because of: (1) failure of reasonable
efforts by appropriate public agencies to rehabilitate the family; (2) lack of effort on
Mother's part to adjust her circumstances, conduct, or conditions to meet the needs of the
children; (3) failure to maintain regular visitation, contact, or communication with the
children; and (4) failure to carry out a reasonable plan approved by the court directed
toward reintegration.

Mother moved to reconsider and set aside the default judgment. In her motion,
Mother asserted that she was not at the termination hearing because of "mistake,
inadvertence or, at the very worst, excusable neglect." She explained she missed the trial
because she was confused because previous hearings had been in the afternoon. She
argued that the children were bonded to her and that setting aside the default judgment
would not prejudice the State. Mother asserted that she had a history of appearing in court
during the case and that she always worked her case plan and visited with her children.
At a hearing at which Mother appeared in person, the district court denied the motion to
reconsider and set aside the default judgment, finding that Mother's stated reason for
missing court was not a "meritorious defense." Mother timely filed a notice of appeal.

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ANALYSIS

On appeal, Mother claims the district court violated her due process rights by
terminating her parental rights through a default judgment. She also claims there was
insufficient evidence to support the district court's findings that she was an unfit parent
and that termination of her parental rights was in the children's best interests. Because we
find that these two issues are interrelated, we will address them together.

As to Mother's due process claim, "[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).

As to Mother's sufficiency of the evidence claim, "[w]hen this court reviews a
district court's termination of parental rights, we consider whether, after review of all the
evidence, viewed in the light most favorable to the State, we are convinced that a rational
factfinder could have found it highly probable, i.e., by clear and convincing evidence,
that the parents' right should be terminated." In re K.W., 45 Kan. App. 2d 353, 354, 246
P.3d 1021 (2011). In making this determination, an appellate court does not weigh
conflicting evidence, pass on the credibility of witnesses, or redetermine questions of
fact. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

Although Mother's claim that the district court erred by granting a default
judgment is based on an alleged violation of her constitutional due process rights, we find
that the claim can be resolved through statutory analysis. 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).

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We begin by reviewing the statutory procedure for termination of parental rights in
the Revised Kansas Code for Care of Children (Revised Code), K.S.A. 2018 Supp. 38-
2201 et seq. In all proceedings under the Revised Code, the rules of evidence of the code
of civil procedure shall apply. K.S.A. 2018 Supp. 38-2249(a). Under the Revised Code,
any party may request that the parental rights of either or both parents be terminated
based on a finding of unfitness, either by making the request in the original petition filed
in the case or in a separate motion filed in an existing case. K.S.A. 2018 Supp. 38-
2266(a).

Upon the filing of a motion to terminate parental rights, the district court shall
appoint an attorney to represent any parent who is not already represented by counsel.
K.S.A. 2018 Supp. 38-2267(d) states that before a hearing on a motion to terminate
parental rights, "the court shall appoint an attorney to represent any parent who fails to
appear and may award a reasonable fee to the attorney for services." This statute
contemplates that a termination of parental rights hearing can proceed with appointed
counsel when the parent fails to appear.

At the hearing on a motion to terminate parental rights, the court may grant the
motion when it finds by clear and convincing evidence that the parent is unfit by reason
of conduct or condition which renders the parent unable to care properly for a child and
the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2018
Supp. 38-2269(a). In determining unfitness, the court shall consider, but is not limited to,
the factors set forth in K.S.A. 2018 Supp. 38-2269(b) and (c). If the court makes a finding
of unfitness, it shall also consider whether termination of parental rights is in the best
interests of the child. K.S.A. 2018 Supp. 38-2269(g)(1).

Finally, the Revised Code directs the district court how to proceed at a hearing on
a motion to terminate parental rights when a parent fails to appear. K.S.A. 2018 Supp. 38-
2248(f) provides that in evidentiary hearings for termination of parental rights, "the case
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may proceed by proffer as to parties not present, unless they appear by counsel and have
instructed counsel to object." In other words, 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 parent. But if
the parent has instructed his or her counsel to object to a proffer, then the State should
proceed by presenting evidence to the court in support of termination.

Here, the district court did not follow the statutory procedure in granting a
judgment terminating Mother's parental rights. Although Mother failed to appear in
person at the hearing on the motion to terminate her parental rights, she appeared at the
hearing through her attorney. 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.

Instead of following the statutory procedure, the district court announced, without
receiving any evidence, that it was granting a "default judgment in regard to [M]other's
termination of parental rights." The district court found that Mother was "unfit as set
forth in the State's motion." But the State's motion was not evidence, nor did any party
ask the district court to consider the motion as evidence. In clarifying that it was also
making a best interests finding, the district court noted that it had "reviewed the file and
the materials in it" earlier that morning.

We recognize that a court may take judicial notice of its own court file. See K.S.A.
60-409(b)(4); In re A.S., 12 Kan. App. 2d 594, 598, 752 P.2d 705 (1988). But in
proceedings under the Revised Code, there 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 and evaluations of the parties involved in the case. See K.S.A. 2018 Supp. 38-
2211. Here, the district court did not specify whether it had reviewed its official court file
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or the social file before the hearing and, in any event, no party requested the district court
to take judicial notice of any file to serve as an evidentiary basis supporting the State's
motion to terminate parental rights. Without a clearer record, we have no way of knowing
what documents the district court may have reviewed before the hearing or whether the
documents supported the district court's decision to terminate Mother's parental rights.

The district court later filed a journal entry terminating parental rights, noting that
a default judgment had been granted against Mother. The journal entry also specified
several statutory grounds for finding that Mother was an unfit parent under K.S.A. 2018
Supp. 38-2269(b) and (c). But as we have explained, the record shows that no party
presented any evidence to the district court supporting the statutory factors.

We also recognize that the State's motion to terminate parental rights stated that
"[a]ll parties are hereby notified that pursuant to K.S.A. 38-2234 and K.S.A. 60-255 that
if you do not appear at the hearing, the court will be making decisions without your input
which could result in a default judgment against either parent who fails to appear." But an
examination of these two statutes shows that they do not support the district court's
decision to grant a default judgment against Mother under the circumstances of this case.

K.S.A. 2018 Supp. 38-2234(a)(8) states that a pleading in a CINC case shall notify
the parties that "[i]f you do not appear in court the court will be making decisions without
your input." (Emphasis added.) But notifying a party that failure to appear in court will
allow the court to make decisions without the party's input is not the same as notifying
the party that failure to appear in court will allow the court to make decisions without
hearing any evidence. Thus, K.S.A. 2018 Supp. 38-2234 did not authorize the district
court to grant a default judgment against Mother without receiving any evidence.

Likewise, K.S.A. 2018 Supp. 60-255 did not authorize the district court to grant a
default judgment under the circumstances presented here. That statute provides, in part:
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"(a) When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, the party is in default. On request and a showing that
a party is entitled to a default judgment, the court must render judgment against the party
in default for the remedy to which the requesting party is entitled. . . . If the party against
whom a default judgment is sought has appeared personally, or by a representative, that
party or its representative must be served with written notice of the request for judgment
at least seven days before the hearing."

Under K.S.A. 2018 Supp. 60-255, a party is in default when the party "has failed
to plead or otherwise defend" against the action. Mother was not in default under this
statute because she had appeared either in person or through counsel at every hearing
scheduled in the case including the hearing to terminate parental rights. She certainly had
not failed to plead or otherwise defend against the action as contemplated by the statute.

We have found no published appellate decisions in Kansas addressing default
judgments granted on a motion to terminate parental rights. But In re A.H., No. 103,138,
2010 WL 1379713 (Kan. App. 2010) (unpublished opinion), is similar to the facts here.
In that case, the State moved to terminate the father's parental rights. Although the father
was represented by stand-by counsel, he failed to appear in person at the termination
hearing. Upon the State's request, the district court entered a default judgment
terminating the father's parental rights. The district court received no evidence at the
hearing, but the court stated that "it had reviewed the files and found sufficient evidence
of unfitness." 2010 WL 1379713, at *1.

On appeal, the father challenged the sufficiency of the evidence supporting the
termination order. This court began its analysis by questioning whether K.S.A. 60-255(a)
on default judgments applies to a Chapter 38 proceeding. But without deciding that
question, this court stated: "While [Father] did not appear to defend the State's unfitness
allegations, [Father] was represented by stand-by counsel. Even if stand-by counsel was
unprepared to represent [Father]'s interests, the district court should have proceeded with
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the hearing and required the State to produce evidence in support of termination." 2010
WL 1379713, at *2. This court observed that K.S.A. 2009 Supp. 38-2269(a) provides that
the court may terminate parental rights only when the court finds by clear and convincing
evidence that the parent is unfit and that the conduct or condition is unlikely to change in
the foreseeable future. Based on the statute, this court concluded that "the State was not
entitled to judgment unless and until the State established clear and convincing evidence
of [Father]'s unfitness to the satisfaction of the court." 2010 WL 1379713, at *2.

In re A.H. is distinguishable from the facts here because the district court in that
case made no statutory findings of unfitness. Here, the journal entry filed by the district
court included statutory findings of unfitness. But as we have discussed, these findings
were not based on any evidence presented at the termination hearing, so the distinction
between the two cases is not significant. We agree with the court's analysis in In re A.H.
The State is not entitled to receive a default judgment against a parent who fails to appear
in person at a termination hearing as long as the parent appears at the hearing through
counsel. In that situation, the State must present evidence, or at least proffer evidence,
supporting its motion to terminate parental rights before the district court can grant
judgment on the motion. Cf. In re D.H., No. 119,882, 2019 WL 1087762, at *4-5 (Kan.
App. 2019) (unpublished opinion) (finding district court's decision to deny parent's
motion to set aside default judgment was not an abuse of discretion).

To sum up, the district court erred by granting a default judgment against Mother
terminating her parental rights because she was not in default in the proceedings. Mother
had appeared in person at most of the hearings throughout the case and she appeared
through her court appointed counsel at the hearing on the motion to terminate parental
rights. A CINC case is a civil proceeding, and although one might expect a parent to
attend a hearing on a motion to terminate parental rights, there is no requirement for a
parent to attend such a hearing unless the parent has been subpoenaed by a party. And
even a failure to obey a subpoena or court order to attend a hearing would not render the
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parent in default to allow the court to terminate parental rights without receiving any
evidence. Here, Mother had been notified that her failure to appear at the hearing could
result in the court making decisions without her input that could result in the termination
of her parental rights. But this notice did not allow the district court to terminate Mother's
parental rights without receiving any evidence supporting the motion.

Mother claims on appeal that there was insufficient evidence to support the district
court's findings that she was an unfit parent and that termination of her parental rights
was in the children's best interests. We agree. In fact, the State presented no evidence
supporting its motion to terminate Mother's parental rights. The court may grant a motion
terminating parental rights only when it finds by clear and convincing evidence that the
parent is unfit by reason of conduct or condition which renders the parent unable to care
properly for a child and the conduct or condition is unlikely to change in the foreseeable
future. K.S.A. 2018 Supp. 38-2269(a). When Mother failed to appear at the hearing on
the motion to terminate her parental rights, the State, at a minimum, 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.

Based on the record before us, we conclude there was insufficient evidence to
support the district court's findings that Mother was an unfit parent and that termination
of her parental rights was in the children's best interests. The case is remanded to the
district court for further proceedings consistent with this opinion.

Reversed and remanded.