In re J.P.

1

NOT DESIGNATED FOR PUBLICATION

No. 121,016

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

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


MEMORANDUM OPINION


Appeal from Ellis District Court; BLAKE BITTEL, judge. Opinion filed November 1, 2019.
Affirmed.


J. Alex Herman, of Herman Law Office, P.A., of Hays, for appellant natural mother.


Charlene Brubaker, assistant county attorney, for appellee.


Before ATCHESON, P.J., MALONE, J., and DANIEL D. CREITZ, District Judge, assigned.

PER CURIAM: Mother appeals the termination of her parental rights for her child
J.P., born in 2004. She claims that the district court did not successfully provide service
to give her adequate notice of the child in need of care (CINC) case, depriving the court
of personal jurisdiction to later terminate her parental rights. The State argues that the
appeal should be dismissed because the district court served a copy of the motion for
termination, as well as the previous substantive pleadings in the case, on Mother while
she was incarcerated. We find that Mother was properly served, and the court had
personal jurisdiction to terminate her parental rights. We affirm the district court's order
terminating Mother's parental rights.


2

Factual and Procedural Background

In March 2017, the State filed a CINC petition, alleging that J.P. had not been
attending school as required by Kansas law. About two weeks later, the State filed an
amended CINC petition, alleging additional factors under K.S.A. 2018 Supp. 38-
2202(d)(1), (2), and (3). That same day the district court issued an ex parte order of
protective custody, placing J.P. in the temporary custody of the Department for Children
and Families (DCF).

On April 12, 2017, a return of service came back incomplete because Mother's
whereabouts were unknown. The next day, the district court set a temporary custody
hearing for April 17 and sought to give Mother oral notice of the hearing by telephone,
but there was no answer and no voicemail service set up.

On April 14, 2017, Mother contacted J.P. on his cell phone but she refused to talk
to anyone from St. Francis Community Services (SFCS) and would hang up when SFCS
tried to speak to her. Mother reported that she was getting on a bus at 6 p.m. to travel to
Oklahoma "where she would be taking care of her warrants." Later that day, J.P. called
Mother, and Mother told him she was on the bus but did not provide any other
information.

On April 17, 2017, the district court held the temporary custody hearing as
scheduled but Mother was not present. The district court ordered J.P. to stay in DCF's
custody and scheduled the CINC adjudication hearing for June 16, 2017.

On May 30, 2017, J.P. told his caseworker that Mother was in jail in Kansas.
SFCS conducted an online jail search but did not find any information to verify Mother's
incarceration.

3

At the June 16, 2017 hearing, with neither parent present, the district court
adjudicated J.P. as a CINC. The district court ordered J.P. to remain in DCF custody.

On June 26, 2017, J.P. reported to SFCS that he saw Mother at the Salina city pool
the previous weekend. Mother told J.P. that she "was going to do what it takes" to keep
him in her custody. SFCS tried to call Mother but the last known phone number they had
for her was disconnected.

On July 7, 2017, the district court issued an order of disposition for the case with a
concurrent goal of reintegration and adoption. Neither parent was present at this hearing.

At a review hearing in September 2017, the district court appointed Alex Herman
to represent Mother. At a review hearing in April 2018, in the presence of Herman, the
district court found that reintegration was no longer a viable goal. At a July 2018 review
hearing, in the presence of Herman, the district court noted that the State should move to
terminate the parental rights of both parents. At an October 2018 review hearing, in the
presence of Herman, the district court noted that the State "need[ed] to get termination
filed ASAP."

On November 2, 2018, the State filed a motion for finding of unfitness and
termination of parental rights with the district court. A sheriff's return of service came
back on November 5 showing that Mother was personally served with a copy of the
motion while in custody at the Trego County Jail, as well as with copies of both CINC
petitions, the Ex Parte Order of Protective Custody, the Journal Entry of Temporary
Custody, the Journal Entry and Order of Adjudication, the Journal Entry and Order of
Disposition, and the Notice of Pretrial and Trial.

At a January 2019 pretrial conference, Mother appeared for the first time in person
with Herman. The district court acknowledged that Mother had been personally served, to
4

which Herman agreed. The district court scheduled a trial on the motion for termination
for February 8, 2019, which was later rescheduled to February 12, 2019.

The district court conducted the trial as scheduled with Herman present. Mother
was not present. After Herman objected to termination of Mother's parental rights, the
district court accepted the State's proffer, finding that Mother was unfit as a parent and
that termination was in J.P.'s best interests.

Mother timely appealed.

Did the District Court Have Jurisdiction to Terminate Mother's Parental Rights?

Mother's only argument on appeal is that the district court lacked jurisdiction to
terminate her parental rights because the court failed to provide service to give her
adequate notice of the previous proceedings in the action. Although she admits that the
district court personally served her with a copy of the motion for finding of unfitness and
termination of her parental rights, Mother contends that she had no notice of any of the
previous proceedings in the case. She asks this court to remand the matter with
instructions to devise a reintegration plan to reunite her with J.P.

The State asserts that the district court had personal jurisdiction over Mother
because the court served her with copies of every substantive pleading and order issued in
the case—including the motion for termination of parental rights—in November 2018.
Although the State is correct that serving a parent with a copy of a motion for finding of
unfitness and termination of parental rights gives the district court personal jurisdiction
over that parent, resolving this appeal requires additional considerations. See K.S.A. 2018
Supp. 38-2267(b); see also In re L.S., 14 Kan. App. 2d 261, 262, 788 P.2d 875 (1990)
("'[J]urisdiction over the person of the defendant can be acquired only by issuance and
service of process in the method prescribed by statute, or by voluntary appearance.'").
5

K.S.A. 2018 Supp. 38-2267(b) provides:

"(1) The court shall give notice of the hearing: (A) To the parties and interested
parties, as provided in K.S.A. 2018 Supp. 38-2236 and 38-2237, and amendments
thereto; (B) to all the child's grandparents at their last known addresses or, if no
grandparent is living or if no living grandparent's address is known, to the closest relative
of each of the child's parents whose address is known; (C) in any case in which a parent
of a child cannot be located by the exercise of due diligence, to the parents nearest
relative who can be located, if any; and (D) to the foster parents, preadoptive parents or
relatives providing care.
"(2) This notice shall be given by return receipt delivery not less than 10 business
days before the hearing. Individuals receiving notice pursuant to this subsection shall not
be made a party or interested party to the action solely on the basis of this notice.
"(3) The provisions of this subsection shall not require additional service to any
party or interested party who could not be located by the exercise of due diligence in the
initial notice of the filing of a petition for a child in need of care."

Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82
(2017). To the extent that answering this question involves statutory interpretation,
appellate review is also unlimited. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918,
349 P.3d 469 (2015).

A parent has a constitutionally protected liberty interest in the relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). A district
court obtains subject-matter jurisdiction in a CINC proceeding once the initial petition is
filed in compliance with K.S.A. 2018 Supp. 38-2203. Mother does not contest the district
court's subject-matter jurisdiction, so this court did not review the district court's subject-
matter jurisdiction.
6

Mother fails to show that the district court did not comply with the statutory service
requirements for the motion to terminate her parental rights.

As correctly pointed out by Mother, once filed, the district court must serve the
summons and a copy of the CINC petition on a parent. See K.S.A. 2018 Supp. 38-
2236(a). Similarly, and more important for the issue before this court, the district court
must give adequate notice to parents upon the filing of a petition or motion requesting
termination of parental rights of a minor child by seving them a copy of the petition or
motion. See K.S.A. 2018 Supp. 38-2267(b). That statute also requires the district court to
exercise due diligence when attempting to effectuate personal service. See K.S.A. 2018
Supp. 38-2267(c).

Here, the record reflects that the district court served Mother with a copy of the
motion for finding of unfitness and termination of parental rights while she was
incarcerated at the Trego County Jail on November 5, 2018. The termination hearing was
held on February 12, 2019. Mother received more than 10 days' notice of her termination
hearing. See K.S.A. 2018 Supp. 38-2267(b)(2). As a result, the district court obtained
personal jurisdiction over Mother upon service of the motion for termination. Mother
does not raise any substantive challenges to the district court's order terminating her
parental rights to J.P. Having determined that the district court had subject matter and
personal jurisdiction to terminate Mother's parental rights, all other issues raised by
Mother are moot.

We affirm the district court's order terminating Mother's parental rights.