In re L.F. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,157
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of L.F.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JANE A. WILSON, judge. Opinion filed April 15, 2022.
Affirmed.
J. Shane Rockey, of Rockey & Stecklein, Chtd., of Kansas City, for appellant natural father.
Zahi Omari, assistant district attorney, and Mark A. Dupree Sr., district attorney, for appellee.
Before HURST, P.J., GARDNER, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Father appeals the district court's termination of his parental rights,
claiming his due process rights were violated by the State's failure to provide him with
earlier personal service of process and the district court's denial of his motion for a
second continuance. While this court recognizes the paramount importance of parental
rights, it also recognizes the rights of children to safety and permanency. Here, the State
met the statutory minimum requirements to ensure Father had notice and opportunity to
prepare and present a defense to the proceedings. Additionally, the district court
considered the best interests of the child and did not abuse its discretion in denying
Father's request for a second continuance of the termination proceedings when such
continuance was not requested to allow him to prepare for trial. In proceedings that affect
the fundamental rights of a parent, the State and courts must ensure that all required due
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process standards are met and should endeavor to afford the parents with as much notice
and time to prepare a defense as possible—and here, the district court met its obligation.
FACTUAL AND PROCEDURAL BACKGROUND
On May 7, 2019, the State sought a temporary custody order for L.F. from the
Wyandotte County District Court and requested the court declare her a child in need of
care (CINC). The State's petition identified Mother but stated that the identity and
whereabouts of Father were unknown. Without any notification to the unknown father,
the court granted the State's petition and scheduled an adjudication hearing for July 22,
2019.
The State filed an affidavit on June 12, 2019, explaining its efforts to obtain
service on Mother and to identify the unknown father, and requested leave from the
district court to obtain service by publication. The State explained that it had no
information about the identity of L.F.'s father:
"The District Attorney's Office has no way of locating the father, John Doe, no
information is known about him such as his date of birth, social security number, address,
phone number, place of employment, relatives' names etc. John Doe has never contacted
any of the professionals involved in this case and has never appeared for any court
hearings in this case. We do not know the whereabouts or identity of John Doe."
The district court granted the State's request and approved service by publication, finding
"due diligence was exercised and no other means of service is available other than service
by publication." The Notice of Publication was printed on June 20 and 27 in the
Wyandotte Echo and The Pulse Legal Publication.
About a month after the service by publication, on July 22, 2019, the district court
held an adjudication hearing. Neither Father nor Mother were present. After receiving the
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State's evidence, the district court found L.F. was (1) without adequate parental care,
control, or subsistence; (2) without the care or control necessary for her physical, mental,
or emotional health; and (3) had been physically, mentally, or emotionally abused or
neglected. The court then adjudicated L.F. as a child in need of care.
Contrary to the State's June 2019 affidavit seeking notice by publication, a case
manager later testified that she was aware of Father's identity by mid-May 2019, and that
she believed Father was incarcerated in Lansing Correctional Institution but had been
unable to find any other information on him. The case manager testified that she
attempted to contact Father—sending him six to eight letters at Lansing—but she never
received any response. Three months after the State proceeded with service by
publication, a court services officer compiled a disposition report, filed on September 18,
2019, that listed Father by name and identified his location as the Lansing Correctional
Facility.
On March 17, 2021, about two years after the court found L.F. to be a child in
need of care, the State moved to terminate Mother's and Father's parental rights to L.F.
The next day, the State filed another affidavit, containing some of the same language
from the first affidavit, and attesting that although it had discovered Father's identity—its
investigator had been unable to locate him—explaining its efforts:
"On 03/17/21 the Investigator in the District Attorney's Office checked the
Telephone Directory, Legal Department, Jail Screen, and Alert Screen, and
provided the CSO with information found regarding possible current addresses for
[Mother] and [Father].
"Service will be attempted at the parents' last known addresses and service by
publication is being done in case service cannot be perfected at these addresses.
"We do not know the whereabouts of [Father]. The whereabouts of
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[Mother] have been known to case professionals, however, [Mother] reported in October of 2020
that she was moving from her known address, and she has not provided an updated address since
that time. The State is attempting service at this address but requests leave of the Court to publish
out of an abundance of caution."
The State again requested notice by publication of the termination hearing.
The court granted the State's request, finding the State had once again exercised
due diligence in its attempts to find Father, and notice of the hearing was published on
March 25 and April 1, 2021. However, about a month later, the State found out that
Father had been taken into custody in Wyandotte County. On May 11, 2021, the State
was able to personally serve Father with notice and a summons for the rapidly
approaching termination hearing. After the State located Father, a social worker testified
that she attempted to contact Father via phone and letters, but never received a response
from those attempts. She later testified that social workers had been attempting to find
Father's contact information since his release from Lansing—sometime in early 2020—
but no one was able to obtain his contact information.
On May 17, 2021, the day of the termination hearing, the court appointed Father
an attorney. Father's counsel immediately objected to proceeding because Father had
been served less than 10 days before the hearing—a violation of K.S.A. 2020 Supp. 38-
2267(b)(2). The court agreed, granted Father a short continuance, and rescheduled
Father's termination for the following month. The court proceeded with the hearing as to
Mother and putative father of L.F. and a second child, and after finding they were unfit,
the court determined that termination of Mother's and putative father's rights was in the
best interests of the children.
At the beginning of the rescheduled hearing on June 15, 2021, Father requested
another continuance so that he could have time to comply with court orders and
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potentially reintegrate with L.F. The court denied his request, finding a continuance was
not in L.F.'s best interests and that Father would not be prejudiced by proceeding with the
termination hearing.
During the termination hearing, one of the social workers explained that Father
had not completed any of the case plan tasks, and that she "would not feel comfortable
making an estimate" about how long it would take him to do so considering the lack of
engagement Father had with L.F. and the current charges he faced in Wyandotte County.
Another social worker similarly testified that Father had not completed any court orders
in the case. Both social workers agreed that in the 25-month pendency of the case, Father
had no contact with L.F., who was six years old at the time of the termination hearing.
She concluded that "permanency through adoption" was in the best interests of L.F.
Father testified that he had been incarcerated at the time the State filed its petition
in 2019, and the last time he had seen L.F. was when she was two years old. He
explained: "I haven't seen my baby since she was two. That's all I know. I haven't seen
her, I haven't seen her mom. I don't—I didn't even know if her mom was alive. I don't
know. Her mom disappeared. I don't know." Father further explained that he was
incarcerated around the time L.F. was born and could not sign the birth certificate and
had spent time with L.F. for about six months from when she was about 18 months old to
two years old. Father was never L.F.'s primary caregiver and saw her for the last time
when he threw her a party for her second birthday. When asked about whether he had
made any attempts to see L.F. after he was released in February 2020, Father explained:
"there was nothing that I could do. I mean, I haven't even talked to the mom the whole
time that I was in prison, and then when I did get out, the only residence that I knew of,
her grandmother and her auntie. But from her grandmother, she gave me auntie
information and they just said that [the Mother] was out of town, so I just didn't—I didn't
feel like that they were even trying to give me any contact to [Mother]. So, I mean, I just
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didn't know, but that was the only contact that I had. I didn't even know that they was in
state custody, whatever this shit—shit is. I didn't—I didn't even know."
Father also testified he never received any letters or information from the State or the
social workers regarding L.F.: "I wasn't even talking to no one in prison. Nobody ever
said nothing to me, so no. No. I did that time alone, didn't nobody nothing, nothing."
Father's attorney argued that the State had failed to sufficiently notify Father of
this case. Father was released from incarceration in February 2020 and remained out of
custody until May 2021, when, he argues, he could have attempted to work on the case
plan and to reintegrate with L.F. But the court disagreed, explaining that there had been
"plenty of efforts made to try to reach out to [Father], to find him, to locate him, to
contact him and there was never anything done in response." The court found that even
though Father may have been unaware of the case, he took no steps towards reaching out
to L.F. or Mother during the time he was not incarcerated.
The district court terminated Father's parental rights to L.F., finding he was unfit
under K.S.A. 2020 Supp. 38-2269(b)(4), (b)(7), (b)(8), (b)(9) in conjunction with (c)(2),
and (c)(3); and was presumed unfit under K.S.A. 2020 Supp. 38-2271(a)(6). Finally, the
court determined that termination was in the best interests of L.F. The court summarized
these findings in a journal entry of termination of Father's parental rights.
Father appeals.
DISCUSSION
Father argues the State's failure to provide him with adequate notice of the case
proceedings and the district court's denial of his request for a second continuance violated
his due process rights. Notably, Father does not attack the merits of the district court's
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decision, so this court's review is limited to these procedural, timing issues—and will not
address the propriety of the court's decision.
I. The State complied with the minimum notice requirements.
Father contends the State violated his due process rights by failing to comply with
the statutorily mandated process of formally notifying parties to a legal action.
Specifically, he argues the State should have attempted service pursuant to K.S.A. 2020
Supp. 38-2237(d), which provides for service of process to incarcerated parents. Father's
claims present a question of law over which this court exercises de novo review, looking
anew at the facts and law. See In re Care & Treatment of Sykes, 303 Kan. 820, 823, 367
P.3d 1244 (2016) (explaining that constitutional due process claims are reviewed de
novo). In re Adoption of B.B.M., 290 Kan. 236, 240, 224 P.3d 1168 (2010) (statutory
interpretation is a question of law subject to de novo review).
Parents subject to actions to terminate their parental rights have a fundamental and
statutory right to service of notice of those legal proceedings, and failure to provide
adequate notice is a violation of their due process rights. See K.S.A. 2020 Supp. 38-2235,
K.S.A. 2020 Supp. 38-2237; In re H.C., 23 Kan. App. 2d 955, 958, 939 P.2d 937 (1997).
This court understands the paramount nature of the State's obligation, particularly in a
case such as this when the State seeks to affect the fundamental, cardinal rights of
parenthood. Such a proceeding should not be taken lightly, nor without thorough attempts
at notification.
Kansas statutes provide for three primary methods of service: (1) personal and
residential service, (2) service by return receipt delivery, and (3) first-class mail service.
K.S.A. 2020 Supp. 38-2237(a)-(c). Additionally, in the event that a parent is incarcerated:
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" [S]ervice shall be made by return receipt delivery to addressee only to both the person
in charge of the institution and the confined parent in care of the person in charge of the
institution or that person's designee." K.S.A. 2020 Supp. 38-2237(d).
Finally, if service cannot be accomplished in person through the typical methods, Kansas
law permits notice of the proceeding to be published in a newspaper of general
circulation—so long as the State first exercises due diligence in its attempts to serve the
parties in person. K.S.A. 2020 Supp. 38-2237(e). The statute states:
"If service cannot be completed after due diligence using any other method
provided in this section, service may be made by publication in accordance with this
subsection. Before service by publication, the petitioner, or someone on behalf of the
petitioner, shall file an affidavit which shall state the affiant has made an attempt, but
unsuccessful, with due diligence to ascertain the names or residences, or both, of the
persons. The notice shall be published once a week for two consecutive weeks in the
newspaper authorized to publish legal notices in the county where the petition is filed. If
a parent cannot be served by other means and due diligence has revealed with substantial
certainty that the parent is residing in a particular locality, publication shall also be in a
newspaper authorized to publish legal notices in that locality." K.S.A. 2020 Supp. 38-
2237(e).
Understandably, service by publication "is a last resort for service on a parent in a
termination proceeding." In re M.H., No. 112,378, 2015 WL 3514180, at *4 (Kan. App.
2015) (unpublished opinion). Notice publication in these types of proceedings should be
limited—only used when the parent cannot be located after the State's exercise of due
diligence. The State's efforts to locate and personally serve parents must be at least as
diligent "'as a reasonably prudent person would make in view of the circumstances and
must extend to those places where information is likely to be obtained and to those
persons who, in the ordinary course of events, would be likely to receive news of or from
the absent person.'" In re H.C., 23 Kan. App. 2d. at 959 (quoting In re L.S., 14 Kan. App.
2d 261, 788 P.2d 875 [1990]). The State's failure to exercise due diligence in its pursuit
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of identifying the parent's name and address for service is a fatal error, voiding any
judgment for lack of personal jurisdiction. See In re L.S., 14 Kan. App. 2d at 263.
Although this standard appears stringent, the effort required from the State does vary
depending on the case—"[d]ue diligence does not require the use of all conceivable
means possible to an inquiry into the absent parent's whereabouts." 14 Kan. App. 2d at
264.
Here, the State's initial CINC petition filed in May 2019 listed Father as
"[u]nknown to the State at this time," and explained that "[F]ather's whereabouts and
identity are unconfirmed and unknown at this time." The next month, the State filed an
affidavit stating it had no information about Father, and it had no way of locating him,
and requested permission to serve him by publication pursuant to K.S.A. 2020 Supp. 38-
2237(e). Based on the State's assertions, the court found that the State had exercised due
diligence in attempting to locate Father and that no means of service other than
publication was available. Thereafter, notice of the CINC adjudication hearing was
published on June 20 and 27, and the hearing was held in July 2019.
According to the State's affidavits and court filings, it was unaware of Father's
identity until September 2019—two months after the CINC hearing—when a court
services officer discovered Father's name and the fact that he was incarcerated at Lansing
Correctional Facility. How the court services officer located this information when the
State alleged it had put forth effort and was unable to make this determination before the
CINC adjudication is not clear from the record. However, two years after the CINC
adjudication, a case manager testified that she had become aware of Father's identity and
the fact that he was incarcerated in Lansing as early as May 2019—just days after she had
been assigned the case and before the State requested notice by publication asserting it
was unable to identify or locate Father. This social worker further testified that she
attempted to contact Father at Lansing—albeit unsuccessfully—in June 2019 by sending
several letters introducing herself and explaining the case. Although there was an
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apparent disconnect between the State and the case managers related to identifying and
notifying Father, that does not wholly undermine the State's argument that it complied
with its statutory and constitutional notification requirements.
Father was released from Lansing in February 2020, more than six months after
the CINC adjudication, and Father made no attempts to contact L.F., the case managers,
Mother, or the State regarding L.F.. The State claimed it had no information about his
whereabouts after his release. By March 2021, when the State filed its motion to
terminate parental rights, it was unquestionably aware of Father's identity, but claims it
was unaware of how to locate him. The State unsuccessfully attempted to issue a
summons to Father and serve him with a copy of its motion to terminate his parental
rights to L.F. by both personal and certified mail service at his last known address.
Although the State is generally required to serve parents with the "motion
requesting termination of parental rights," an exception to that obligation exists when the
parent cannot be located for the CINC case. See K.S.A. 2020 Supp. 38-2267(a) and (b)
(requiring service of termination motions); K.S.A. 2020 Supp. 38-2267(b)(3) (relieving
the State of its obligations to serve parents the motion to terminate when the State was
unable to locate the parent for the CINC proceeding). Kansas law does "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." K.S.A. 2020 Supp. 38-2267(b)(3).
After unsuccessfully trying to personally serve Father with notice of the parental
termination proceedings, the State again moved the district court for permission to serve
notice by publication, citing attempts to locate Father by the "Telephone Directory, Legal
Department, Jail Screen, and Alert Screen, and provided the CSO with information found
regarding possible current addresses for [Father]." Again, the court found the State had
exercised due diligence in attempting to locate Father and on March 17, 2021, ordered
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service on Father by publication. Father was arrested in May, about two months after the
district court ordered publication service, and the State was able to personally serve him
while he was in custody. Therefore, in addition to the prior service by publication, the
State also personally served Father with process on May 11, 2021, about a week prior to
the scheduled hearing.
At the May 17, 2021 termination hearing the district court granted Father's first
request for a continuance, and continued the termination hearing until June 15, 2021.
Therefore, in addition to the service by publication, Father received personal service and
notice more than 10 days before the termination hearing. See K.S.A. 2020 Supp. 38-
2267(b)(2). Because Father received actual, personal notice of the hearing in accordance
with statutory requirements—he was apprised of the pendency of the action and afforded
an opportunity to present his objections to the action.
Father questions whether the State exercised due diligence in its efforts to locate
him sooner, but has not shown that the State failed to make a reasonable and prudent
inquiry into the places he may have been and the people who may have had information
or news as to his whereabouts. Father contends that he should have received service
pursuant to K.S.A. 2020 Supp. 38-2237(d) because he was incarcerated at the time of the
CINC adjudication. But the State provided sworn statements that it was unaware of
Father's identity during the notification for the CINC adjudication proceedings in June
2019 when he was incarcerated. By the time the State contends it became aware of
Father's identity, he was no longer incarcerated. Given the scant information the State had
about Father—and his limited connection with Mother, her family, or L.F.—the State's
efforts to provide Father notice complied with the applicable statutes and due process
guarantees.
Although the State's efforts to identify Father, locate him, and provide personal
service may have been less than rigorous given that at least one case manager later
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testified that she was aware of Father's identity during the CINC proceedings—Father did
ultimately receive notice of the termination proceedings via both service by publication
and personal service. See K.S.A. 2020 Supp. 38-2237. Father in fact appeared with
counsel at the May 17 termination hearing and again at the June 15 termination hearing
where he provided testimony and evidence. Father's due process rights were not violated
as he was given sufficient notice of the proceedings and an opportunity to be heard to
defend against the State's claims. See In re H.C., 23 Kan. App. 2d at 958.
2. Unlimited continuances are not guaranteed.
Father also argues that the district court should have granted his request for a
second continuance of the termination hearing. District courts are afforded deference in
determining if a continuance is appropriate, and this court reviews a district court's
refusal to grant a continuance for an abuse of discretion. In re J.A.H., 285 Kan. 375, 384,
172 P.3d 1 (2007). The district court abuses its discretion when it takes a position that no
reasonable person would take under the circumstances, or its decision was based on an
error of fact or an error of law. State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).
In cases involving the termination of parental rights, the termination proceeding
typically occurs after years of prior proceedings and State involvement through case
management. Thus, Kansas law requires that all such proceedings "be disposed of
without unnecessary delay," and "[a] continuance shall be granted only if the court finds
it is in the best interests of the child" and only when "good cause is shown." K.S.A. 2020
Supp. 38-2267(a); K.S.A. 2020 Supp. 38-2246. The Kansas Supreme Court has explained
that "'[i]n ruling on a motion for continuance . . . a court must consider all circumstances,
particularly such matters as the applicant's good faith, his showing of diligence, and the
timetable of the lawsuit.'" In re J.A.H., 285 Kan. at 385. The district court's denial of
Father's request for a second continuance was not accompanied by a lengthy reasoning,
but the court heard testimony of Father's failure to contact A.F. for the preceding year
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when he was no longer incarcerated, efforts to contact Father, and that the case had been
pending for over two years. The court explained it considered the best interests of A.F.,
the need for permanency, and that it did not believe Father would be prejudiced by the
denial.
Father argues the district court abused its discretion in denying his second
continuance because the State failed to earlier notify him of the case to allow him the
opportunity to comply with the court orders and case management plan for reintegration.
Although courts have discretion in their decisions to permit a continuance, that discretion
is bound by due process requirements that interested parties be afforded an opportunity to
present their objections, which includes a reasonable time to prepare a defense to the
litigation. In re H.C., 23 Kan. App. 2d at 961; see In re S.M., 12 Kan. App. 2d 255, 256,
738 P.2d 883 (1987). Here, the district court granted Father an initial continuance of
almost 30 days. Unlike In re H.C., 23 Kan. App. 2d at 961, where the mother requested a
continuance to secure witnesses and records necessary for her defense—here Father
requested a second continuance to pursue reintegration—not to prepare a defense. By the
time of his request for a second continuance, the case had been pending for 25 months—
about a third of L.F.'s life. He never contacted L.F. or the State after his release from
incarceration during the pendency of the case, he was not in contact with L.F. while
incarcerated, and he was currently incarcerated at the time of his second request. Father's
requested continuance would have indefinitely delayed the termination hearing. Kansas
courts "must strive to decide these cases in 'child time' rather than 'adult time.'" In re
J.A.H., 285 Kan. at 386. A reasonable person could conclude that a second continuance
was not in the best interests of L.F., thus the court did not abuse its discretion in deciding
not to grant Father's request for a second continuance of the termination hearing.
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CONCLUSION
The district court's decision to terminate Father's parental rights as to L.F. is
affirmed because Father received notice of the proceedings in accordance with his due
process rights, and the district court did not abuse its discretion in denying Father's
request for a second continuance of the termination hearing.
Affirmed.
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