Opinion
112,378.
05-22-2015
In the Interest of: M.H. Date of Birth: 2003, M.H. Date of Birth: 2006, Children Under the Age of 18 Years.
Darren K. Kearns, of Overland Park, for the appellant natural mother. Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Darren K. Kearns, of Overland Park, for the appellant natural mother.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Before McANANY, P J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
S.S. (Mother), the mother of her daughters Mac. H. and Mad. H, appeals from the district court's termination of her parental rights to those children. We find that the district court lacked personal jurisdiction over Mother because the publication service purporting to confer that jurisdiction was defective. We also find that the maternal grandmother, D.B., was not properly notified of the termination proceedings. Thus, we vacate the termination orders relating to Mac. H and Mad. H and we remand this case to the district court for further proceedings.
Factual and Procedural Background
We base our decision in these appeals on defects in the service of process on Mother for the termination hearing in these child in need of care (CINC) cases. We provide only a brief history of the cases for context. We omit a recitation of the facts adduced at the evidentiary hearing on the termination motions, except those facts that concern service of process, because we lack jurisdiction to review the propriety of the district court's termination of Mother's rights.
On September 12, 2011, Mother stipulated to the truth of the allegations in the State's CINC petitions that her three minor children, including the subjects of this appeal, Mac. H. and Mad. H., as well as her son, T.H., were children in need of care. The district judge accepted Mother's stipulations and found that all three children were in need of care. The court subsequently approved a 6 month reintegration plan.
On April 16, 2012, the State filed separate Motions for Finding of Unfitness and Termination of Parental Rights or Appointment of Permanent Custodian regarding the three children. On July 18 and 19, 2012, the district court conducted an evidentiary hearing on those motions. At the conclusion of the hearing the court took the matters raised in the motions under advisement.
At a hearing September 18, 2013, the district court announced its rulings on the motions. It found that the State had proved by clear and convincing evidence that Mother was unfit but had not adequately proved that Mother's unfitness was unlikely to change in the foreseeable future. It declined to terminate Mother's parental rights. The district court ordered that another 90–day reintegration plan be implemented to allow Mother more time and services so that she might overcome her unfitness.
On January 16, 2014, the State filed new motions seeking the termination of Mother's rights to the three children. The hearing was eventually scheduled for May 15, 2014. For reasons not explained in the record, the State did not begin its attempts to serve the necessary parties until late March 2014. The State obtained the last known address for Mother from Mother's Kaw Valley Center caseworker Leanne Arnold and, on March 28, 2014, attempted to serve Mother there by certified mail. However, as Arnold testified at the eventual hearing, she had known by March 11, 2014, that Mother was no longer at that address. When that mail, not surprisingly, was returned as undeliverable, the State conducted a “Lexus Nexus Accurint Search,” obtained some other addresses, and sent Mother certified mail to those addresses. All were returned undelivered.
The State then caused notice of the May 15, 2014, hearing to be published in the Kansas City Star on May 3 and May 10, 2014. The State's affidavit for publication service on Mother was subsequently signed by an assistant district attorney on May 14, 2014, and filed that same date, as was the district court's order permitting publication service.
At the outset of the termination hearing on May 15, 2014, Mother's attorney requested a continuance. Counsel contended that the State did not comply with the statutory requirement that the State demonstrate “due diligence” in attempting to locate Mother before its resort to publication service, which violated both her statutory and her due process rights. Counsel also argued that the 12 and/or 5 day periods from the publication dates to the hearing date constituted insufficient notice.
The State responded that the publication service statute provided no “time frame” for such notice, and that Mother was required to show “undue prejudice” caused by the publication service. Next, the State argued that, since the court had previously found Mother unfit and termination was just the next step in the process, the State's additional notice by publication was not even “necessary under the statute.” By publishing, the State claimed, “we have actually done more than we are supposed to do.” The State contended, a contention we note has been abandoned in the State's brief, that the clerk had lost the pre-publication original affidavit for publication and the order approving it. The State indicated that the filing, after the fact of publication, of the claimed duplicate paperwork on May 14, 2014, cured that “procedural hiccup.” Finally, the State noted that Mother appeared for the hearing and she was thus not prejudiced by the State's method of serving process.
Mother's counsel responded:
“My client didn't write the statute. My client didn't structure the protocol of what needs to be done and it is not her burden. It is the State's burden to comply with the service of process issues that are put in the Code of Civil Procedure and also Section [sic ] 38. And again I would just argue to the Court that that has not been done.”
The district judge rejected Mother's challenges to service and her request for continuance, stating:
“Based on everything I have heard, the Court agrees with the State. The Court doesn't believe that good cause has been shown for a continuance of this matter. The Court believes that notice has been appropriate and there is no prejudice that has attached. [Mother's] request for a continuance is denied.”
Without any further preliminary proceedings the district court commenced the hearing on the merits of the termination motions. At the close of the evidence the court took the cases under advisement. On May 29, 2014, the district court announced its decision terminating Mother's parental rights to Mac. H. and Mad. H., as well as to her son T.H. Journal entries were filed August 7, 2014. Mother timely appeals from the orders terminating her parental rights to Mac. H. and Mad. H. Mother has not appealed the termination order regarding T.H.
Analysis
Mother argues that the district court erred both in approving publication service without the prerequisite showing by the State of due diligence in its attempts to serve her and, then at the termination hearing, by again failing to require the State to demonstrate due diligence in its efforts to serve her and her mother, D.B. Now on appeal she also contends that the publication service on her was defective, the district court lacked jurisdiction to conduct the termination hearing, and its judgments are void. Finally, she argues that the court erred on the merits when it determined that termination of her parental rights was in the best interests of the children. Because we find that the district court did not have personal jurisdiction over Mother, we do not reach those merits.
Generally, issues not raised before the trial court cannot be raised on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). However, lack of personal jurisdiction may be raised at any time, even for the first time on appeal. Whether such jurisdiction exists is a question of law subject to our unlimited review. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165–66, 210 P.3d 105 (2009). “ ‘Jurisdiction over the person of the defendant [sic ] can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.’ “ In re L.S., 14 Kan.App.2d at 262, 788 P.2d 875.' “ In re H.C., 23 Kan.App.2d 955, 958, 939 P.2d 937(1997).
The statutes relevant to the issue of proper service and personal jurisdiction.
K.S.A.2013 Supp. 38–2267(a) and (b) required that Mother be duly served with the “motion requesting termination of parental rights.” Because those subsections are not the only parts of that statute relevant here, we set out those parts of K.S.A.2013 Supp. 38–2267 pertinent to this appeal in the following:
“(a) Upon receiving a petition or motion requesting termination of parental rights or appointment of permanent custodian, the court shall set the time and place for the hearing, which shall be held within 90 days. A continuance shall be granted only if the court finds it is in the best interests of the child....
“(b)(1) The court shall give notice of the hearing: (A) To the parties and interested parties, as provided in K.S.A. 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.
“(c) At the beginning of the hearing the court shall determine that due diligence has been used in determining the identity and location of the persons listed in subsection (b) and in accomplishing service of process.” (Emphasis added.) K.S.A.2013 Supp. 38–2267.
As emphasized above in K.S.A.2013 Supp. 38–2267(b)(1)(A), service upon Mother, obviously a party, is to be effected pursuant to K.S.A.2013 Supp. 38–2236 and K.S.A.2013 Supp. 38–2237. K.S.A.2013 Supp. 38–2267(b)(1)(B) requires that the State also provide notice of the hearing to the child's or children's grandparents.
K.S.A.2013 Supp. 38–2236(a)(2) requires that the State serve the motion and a summons on the parents of the child or children. K.S.A.2013 Supp. 38–2236(b) requires that the State mail a copy of the motion and the notice of hearing to the non-custodial grandparents of the child or children.
K.S.A.2013 Supp. 38–2237 sets out the authorized methods of service of process. It provides, in pertinent part, as follows:
“Summons, notice of hearings and other process may be served by one of the following methods:
(a) Personal and residence service. Personal and residence service is completed by service in substantial compliance with the provisions of K.S.A. 60–303, and amendments thereto. Personal service upon an individual outside the state shall be made in substantial compliance with the applicable provisions of K.S.A. 60–308, and amendments thereto.
(b) Service by return receipt delivery. Service by return receipt delivery is completed upon mailing or sending only in accordance with the provisions of subsection (c) of K.S.A. 60–303, and amendments thereto.
(c) First class mail service....
(d) Service upon confined parent....
(e) Service by publication. 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.... ” (Emphasis added.) K.S.A.2013 Supp. 38–2237.
The record does not confirm that the State exercised due diligence in attempting to serve process on Mother before its resort to publication service.
Publication service is a last resort for service on a parent in a termid [¶] nation proceeding. Such service under K.S.A.2013 Supp. 38–2237(e) is only available “[if] service cannot be completed after due diligence using any other method provided in this section.” It is apparent from the record that the State only considered obtaining service on Mother by the certified mail option provided in K.S.A.2013 Supp. 38–2267(b)(2) and K.S.A.2013 Supp. 38–2237(b). This overlooks the first method of service prescribed in K.S.A.2013 Supp. 38–2267(b)(l) and K.S.A.2013 Supp. 38–2237(a), that of personal service. The State maintained in its affidavit for publication that it exercised due diligence before publishing in that it sent notice by certified mail to Mother's last known address, which came back undeliverable. It then ran its Accurint computer search and sent out more certified mail notices to those addresses generated by that search, which were also returned undelivered.
Due diligence is, as is implicit in “due,” dependent on the facts of the given situation. We have explained what is required for due diligence in the following:
“Due diligence requires only such inquiry “ ‘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. ” [Citation omitted.]’ In re L.S., 14 Kan.App.2d at 264, 788 P.2d 875.” (Emphasis added.) In Interest of H.C., 23 Kan.App.2d 955, 959, 939 P.2d 937 (1997).
In our circumstances Mother and KVC caseworker Leanne Arnold were in contact over Mother's weekly visitation with her children and her compliance, or lack thereof, with the reintegration plan. Although the dates of those visits were not stated in the record, it was clear from Arnold's testimony that mother had several visits, supervised by Arnold, after the January 2014 filing of the termination motions. Arnold and Mother each testified that each was in contact with the other both by phone and e-mail, as such contact was required in advance to confirm each visitation. Mother testified that Arnold knew that Mother was working for Farmer's insurance. Arnold testified that she and Mother had met over the children's cases on April 28, 2014, just over 2 weeks prior to the hearing. Arnold was a person likely “to receive news” from Mother who could have aided the State in serving her.
While Mother acknowledged that she had not given KVC staff her new address, because she did not trust them, she was clearly not “absent” from the cases. The district court did not examine due diligence at the beginning of the hearing, as required by K.S.A.2013 Supp. 38–2267(c). Thus, the district court did not ask why mother was not personally served at a visitation with her children or meetings she obviously kept with Arnold. And, finally, as noted above, Arnold knew by March 11, 2014, that Mother was no longer at the “last known address” because mail Arnold had sent there was returned as undeliverable. That certainly should have indicated to the State that its purported due diligence attempt to obtain certified mail service on Mother at that address would not succeed.
In addition, there is nothing in the record to indicate that the State contacted D.B., also a likely source of information, in its due diligence effort to serve process on Mother. In In re S.R., 34 Kan.App.2d 202, 203, 116 P.3d 43 (2005), D.R. appealed the trial court's decision to terminate his parental rights. On appeal the issue was whether the State exercised due diligence in its publication service of process on D.R. This court held:
“The record on appeal indicates that there was never a finding, as required by K.S.A. 38–1582(b)(3) [now K.S.A.2013 Supp. 38–2267(c) ], that due diligence had been exercised in obtaining service of process on D.R. In addition, the record indicates that the State received an address for D.R. but never attempted to serve him at that address. As a result, we determine that the due diligence requirement of K.S.A. 38–1582(c) [now K.S.A.2013 Supp. 38–2266 and K.S.A.2013 Supp. 38–2267(b)(1)(C) ] has not been met. Moreover, we determine that the trial court abused its discretion in denying D.R.'s motion to continue the trial date. Although D.R. had actual notice of the proceedings, the record on appeal indicates that he did not have sufficient time to prepare his defense to the State's petition. Accordingly, we reverse and remand.” In re S.R., 34 Kan.App.2d at 203.
“Publication service on a parent in a termination of parental rights case under K.S.A. 38–1582(c) [now K.S.A.2013 Supp. 38–2266 and K.S.A.2013 Supp. 38–2267(b)(1)(C) ] is permitted only when the parent cannot be located by the exercise of due diligence. Here, the State had a letter from D.R. that contained his address in Mesquite, Nevada; however, the State never attempted to obtain service of D.R. at that address. When constructive service such as publication notice is used, there must be strict compliance with the requisite statutory procedures.” In re S.R., 34 Kan.App.2d at 207.
As in In re S.R., here the district court likewise failed to make the due diligence determination at the beginning of the termination hearing. Nor did it determine, in the face of Mother's direct challenge, that the State had exercised the due diligence required by K.S.A.2013 Supp. 38–2237(e) prior to publication service. The district court simply stated: “The court believes that notice has been appropriate and there is no prejudice that has attached.”
The State may not have had Mother's address, but it knew or should have known in the exercise of due diligence that Mother was attending visits with her children and meetings with KVC's Arnold at which Mother could have been served. Nor was there evidence it contacted D.B. for information on Mother. The State's certified mail service attempts were more akin to just going through the motions than actually exercising due diligence. We conclude that the State failed to satisfy the due diligence requirement of K.S.A.2013 Supp. 38–2237(e) before its resort to publication service. That purported publication service was ineffective to provide the district court with personal jurisdiction over Mother. The district court's orders terminating Mother's parental rights were therefore void.
The State was required by statute to serve notice of the termination hearing on Mother.
The State argued to the district court that, since a termination motion would logically follow a failure to progress under the previously ordered reintegration plan, Mother was already on notice of the proceedings and further formal notice on the termination motion was not statutorily required. This court addressed a similar claim by the State under the essentially identical statutory predecessor to K.S.A.2013 Supp. 38–2237 in In re H.C., 23 Kan.App.2d 955. In that case the State simply mailed the termination motion and notice of hearing to the attorneys for the parents. This court found such notice inadequate to confer jurisdiction:
“Because a motion to terminate parental rights is akin to an original petition, the motion must be served on the parents in accordance with K.S.A. 38–1534 [recodified and essentially identical to K.S.A.2013 Supp. 38–2237 ]. Jurisdiction 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.” 23 Kan.App.2d 955, Syl. ¶ 5.
Clearly, then, in its attempts to serve Mother the State was doing only what it was required to do and not, as it claims, “more than we are supposed to do.” To the extent that the court adopted the State's contentions that service of process on Mother was not actually necessary and a showing of prejudice was required (“[T]he court also agrees with the State”), the district court erred. Nor could Mother's appearance be deemed voluntary: she objected to the termination proceedings at the outset of the hearing, challenged the propriety of the purported publication service on her, and requested a continuance. “Kansas law indicates that actual notice does not cure jurisdictional defects in the issuance and service of process.” In re S.R., 34 Kan.App.2d at 207 ; see In re H.L., No. 107,188, 281, 2012 WL 3136788 (Kan.App.2012) (unpublished opinion). Valid service of process on Mother was required in order for the district court to have personal jurisdiction over Mother.
The State was required to notify the maternal grandmother of the termination proceedings.
As Mother contends, the record fails to confirm that her mother, D.B., a grandparent of the subject children, was notified of the termination hearing pursuant to either relevant statutory provision. K.S.A.2013 Supp. 38–2267(b)(1)(B) requires that notice be provided “to all the child's grandparents at their last known addresses.” Perhaps more importantly here, where the State claimed the whereabouts of Mother were unknown, K.S.A.2013 Supp 38–2267(b)(1)(C) requires notice to a parent's nearest relative, here the maternal grandmother, “in any case in which a parent of a child cannot be located by the exercise of due diligence.”
The maternal grandmother's name, D.B., her address and her phone number were all included in the original CINC petitions. D.B. appears to have been served with various documents filed of record over the years the cases were pending. Finally, D.B.'s name and address were specifically referred to in the State's affidavit for publication. Yet nothing in the record indicates that D.B. was provided notice of the termination hearing, let alone that she was contacted by the State in carrying out its statutorily mandated duty to exercise due diligence to serve Mother.
Again, K.S.A.2013 Supp. 38–2267(c) requires that “[a]t the beginning of the hearing the court shall determine that due diligence has been used in determining the identity and location of the persons listed in subsection (b) and in accomplishing service of process.” The district court did not follow that procedure. It should have inquired whether the State had exercised due diligence in accomplishing service on D.B., Mother, and others entitled to notice. The State contends that Mother does not have standing to raise this issue. We reject that contention: A party has whatever minimal standing is necessary to bring to our attention the failure of the district court to comply with a statute.
The State also argues that the “shall” in K.S.A.2013 Supp. 38–2267(c) is directory, not mandatory. We reject that claim as well: Every other use of “shall” in that statute is clearly mandatory, as the statute concerns the very things necessary to confer jurisdiction on the district court to proceed with a termination hearing. We do not regard this subparagraph as a suggestion. The statute does not require of the district courts that they follow some arbitrary due diligence factor checklist to discharge the obligation under this subsection. See In re B. G., No. 99,106, 2007 WL 4578279, at *3 (Kan.App.2007) (unpublished opinion). But the court must make some determination on the record that the State has exercised due diligence in accomplishing service on those entitled to it under K.S.A.2013 Supp. 38–2267(b).
Vacated and remanded to the district court for further proceedings.