Opinion
No. 108,313.
2013-03-15
In the Interest of W.E.
Appeal from Johnson District Court; Kathleen Sloan, Judge. Richard P. Klein, of Olathe Legal Clinic, LLC, for appellant natural father. Kathryn S. Barker, of Lawrence, for appellant natural mother.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Richard P. Klein, of Olathe Legal Clinic, LLC, for appellant natural father. Kathryn S. Barker, of Lawrence, for appellant natural mother.
Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
D.E. (Father) and M.C. (Mother) appeal the district court's order terminating their parental rights to W.E. Father contends he was not served with notice of the termination hearing as required in K.S.A.2012 Supp. 38–2267(b)(l) that specifically incorporates the service requirements of K.S.A.2012 Supp. 38–2237. As a consequence, Father argues the district court was without jurisdiction to terminate his parental rights. In contrast, Mother contends there was not clear and convincing evidence presented to justify termination of her rights.
The Underlying Circumstances
In December 2010, the State of Kansas filed a child in need of care (CINC) proceeding pertaining to W.E., a 9–year–old boy. W.E.'s case was combined with CINC proceedings with his half-siblings, 13–year–old J.C., and 10–year–old twins, C.C. and S.C. The natural mother of all the children was M.C. W.E.'s natural father was identified as D.E. This appeal only involves the parental rights to W.E.
The CINC petition described a long history of Mother's and the children's involvement with the Kansas Department of Social and Rehabilitation Services (SRS). The petition identified prior CINC cases in 2005 and subsequent reports of physical, emotional, and sexual abuse and neglect toward some or all of the children. The petition also listed various reports of Mother suffering from mental health issues and/or abusing drugs. The investigation also disclosed reports that J.C. assaulted Mother.
The CINC petition was filed based on this history as well as renewed allegations of physical abuse by Mother and reports that Mother had started using illegal drugs again. As a result of a domestic dispute between J.C. and Mother, police were called to the family home on December 25, 2010. Evidence of alcohol and drugs were found in J.C.'s room. During the investigation, Mother admitted to recently using methamphetamines, marijuana, and alcohol and reported that she failed a recent drug test. Based on the family situation, all four children were temporarily removed from the home.
Following a hearing on February 16, 2011, W.E. was adjudicated as a child in need of care. Father did not attend this hearing. The court ordered the children remain in SRS custody and directed SRS's contractor to develop a 6–month reintegration plan for Mother. A formal reintegration plan was drafted effective March 2, 2011, and was set to expire September 2, 2011. Mother was directed to obtain and maintain suitable housing for herself and the children, aid in developing and enforcing a safety plan, maintain full-time employment, attend budgeting and parenting classes, obtain a psychological evaluation, continue drug and alcohol treatment at Cypress Recovery, and submit to random urinalysis (UA) tests. Mother also was directed to participate in weekly visitation.
In August 2011, the State filed a motion to terminate the parental rights of Mother and Father to W.E. The court appointed Richard Klein to represent Father in future proceedings. The appearance docket reflects copies of the motion as sent to Mother, Father, and attorneys of record. Although the record on appeal does not contain the motion or any filings reflecting the manner of service of this motion or the written notice of hearing to be held on December 15, 2011, neither Father nor Mother dispute that the State complied with the service and notice requirements of K.S.A.2012 Supp. 38–2267(b) and K.S.A.2012 Supp. 38–2237.
At the scheduled time of hearing on December 15, 2011, Mother and Father personally appeared and were represented by counsel. During this hearing, Father requested a continuance because he was taking hydrocodone for an injury he suffered the day before and was unable to testify or participate in the proceeding. The court reluctantly continued the case. On the record, the court set another permanency hearing for January 21, 2012, and scheduled the trial for February 14, 2012.
Mother had relinquished her rights to W.E. immediately prior to the December hearing. A few days later, Mother filed a motion to revoke her relinquishment. Mother was appointed new counsel; her motion was granted on February 1, 2012.
Immediately after the revocation of Mother's relinquishment, the trial scheduled for February 14, 2012, was cancelled and rescheduled for April 19, 2012. The record does not reflect the reasons for the cancellation, whether a new notice of hearing was served, or how service was made.
Several days later, the State filed a motion to suspend the parents' visitation rights. The court heard the State's motion to suspend visitation on February 14, 2012. Mother and her attorney appeared at this hearing; Father's attorney appeared, but Father did not personally appear. Father's attorney informed the district court that his client was at a session with his therapist. After hearing evidence, the court granted the State's motion to suspend visitation and ordered no contact between W.E, and his parents. The court noted during the hearing that the trial had been rescheduled for April 19, 2012. A copy of the order from this hearing, that referenced the April 19, 2012, hearing date, was mailed by first class mail to both Father and his attorney. The State acknowledges there was no effort to provide notice of hearing under K.S.A.2012 Supp. 38–2267.
An evidentiary hearing was held on April 19, 2012. Mother and her attorney appeared at the hearing. Father's attorney was present, but Father was not. At the beginning of the hearing, Father's attorney requested a continuance because his client was not present. When that request was denied, Father's counsel argued that a continuance was required because Father had not been properly served with the notice of the hearing as required by K.S.A.2012 Supp. 38–2237. Father's counsel acknowledged Father was properly served with the motion to terminate but that he was not properly served with notice of the present hearing date. The State conceded that it was not its practice to serve notices of hearing separately to parties who are represented by counsel. The court rejected Father's argument and again denied Father's request for a continuance. After hearing all the evidence and closing arguments, the judge took the matter under advisement and stated she would announce a ruling on a later date.
The court's ruling was announced from the bench on May 17, 2012, and reduced to a written journal entry filed June 13, 2012. The court found that Father was unfit and terminated his rights. The court also found Mother was unfit because of her use of intoxicating liquors or dangerous drugs, failure to make reasonable efforts to rehabilitate the family, lack of effort to adjust to meet the needs of W.E., and similar factors. Both Mother and Father timely appealed from this order.
Discussion
Father's Appeal
In his appeal, Father argues that the district court lacked personal jurisdiction to terminate his parental rights because he was not served with notice of the April 19, 2012, hearing as required in K.S.A.2012 Supp. 38–2267 and K.S.A.2012 Supp. 38–2237. The State counters that once service was perfected prior to the scheduled December 15, 2011, hearing, the district court acquired personal jurisdiction over the person of Father and that notice of continued or recessed hearings could thereafter be given by first class mail in accord with K.S.A.2012 Supp. 38–2239.
Standard of Review
Whether personal jurisdiction exists over a party is a question of law over which appellate courts have unlimited review. Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 270, 275 P.3d 869 (2012). In addition, this issue requires interpretation of a statute; again, this court's review of such an issue is unlimited. Interpretation of a statute is a question of law over which our review is unlimited. In re Adoption of I.M., 48 Kan.App.2d 343, 345, 288 P.3d 864 (2012).
The Statutory Provisions
K.S.A.2012 Supp. 38–2266 provides that a request for termination of parental rights may be made either in the CINC petition or in a later motion for severance. 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.2012 Supp. 38–2267. “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. In re L.S., 14 Kan.App.2d, 261, 262, 788 P.2d 875 (1990).
K.S.A.2012 Supp. 38–2267 provides that the district court, upon receiving a request to terminate parental rights, set the hearing within 90 days of the request, “A continuance shall be granted only if the court finds it is in the best interests of the child.” K.S.A.2012 Supp. 38–2267(a). Notice of the termination hearing must be given to the parties. K.S.A.2012 Supp. 38–2267(b)(l). It is further required that “ [t]his notice shall be given by return receipt delivery not less than 10 business days before the hearing.” (Emphasis added.) K.S.A.2012 Supp. 38–2267(b)(2). However, it is further stated that notice of the hearing must be given to “the parties and interested parties, as provided in K.S.A.2012 Supp. 38–2236 and 38–2237.” K.S.A.2012 Supp. 38–2267(b)(l). Thus, a parent, as a party to the case, must be given notice of the termination hearing based upon the procedures set forth in K.S.A.2012 Supp. 38–2236 and K.S.A.2012 Supp. 38–2237.
K.S.A.2012 Supp. 38–2236 and K.S.A.2012 Supp. 38–2237 control the service of the summons, CINC petition, and notice of hearings. The first statute identifies the persons who must be served with a summons and copy of any CINC petition. K.S.A.2012 Supp. 38–2236(a). The latter statute sets forth the methods of service of process of summons, notices of hearings, and other process. As relevant in this case, the statute provides for personal and residential service and service by return receipt delivery mail. K.S.A.2012 Supp. 38–2237(a), (b). Service by first class mail is permitted, but it is only deemed completed when the person appears before the court in response thereto. K.S.A.2012 Supp. 38–2237(c).
Father was given proper notice
In this appeal, Father does not contend faulty service with the State's motion to terminate parental rights and the notice of a December 15, 2011, hearing. Thus, the district court acquired personal jurisdiction over Father. Father and his attorney appeared at the December termination hearing and requested a continuance, which the district court reluctantly granted. In Father's presence, the court set the continued hearing for February 14,2012.
For reasons not entirely clear from the record, the district court once again continued the termination hearing to April 19, 2012. However, the court did conduct a hearing on the February date on the State's motion to suspend the parents' visitation rights. Although Father's attorney was present at the hearing on February 14, 2012, Father was not present. At the conclusion of this hearing and thereafter in a journal entry, the court reiterated that an evidentiary hearing would be conducted on April 19, 2012. The journal entry was sent to both Father and his attorney, by first class mail.
An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Pardon v. Lopez, 289 Kan. 1089, 1097–98, 220 P.3d 345 (2009). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear does the court use canons of construction or legislative history to construe the legislature's intent. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009).
K.S.A.2012 Supp. 38–2267 provides the procedure and process necessary to acquire jurisdiction over the person of a party in a termination proceeding. However, the plain and unambiguous language of the statute cannot be read to divest the district court of jurisdiction over the person of a party once acquired. The requirement under subsection (a) that the hearing must be held within 90 days after the filing of a motion to terminate can only be read as applicable to the initial hearing date and not to later adjourned hearing dates to accommodate requests for continuances or the district court's schedule. Consider that in subparagraph (b)(1) of the statute, the notice that is required refers to the hearing. Then consider that in subparagraph (b)(2) it is provided that “[t]his notice shall be given by return receipt delivery not less than 10 business days before the hearing.” (Emphasis added .) These provisions must refer to acquiring jurisdiction over the person of a party and “the” in both subsections must be defined in a manner consistent with subsection (a) of the statute.
We conclude once the district court acquired personal jurisdiction over Father by service of the motion to terminate and notice of the December 15, 2011, hearing that he attended with counsel, the notice provisions of K.S.A.2012 Supp. 38–2267 were satisfied and notices of recessed or continued hearings were given to Father as provided in K.S.A.2012 Supp. 38–2239(c).
Our decision is reinforced by other provisions in the Revised Kansas Code For Care of Children (RKCCC). K.S.A.2012 Supp. 38–2201 et seq.K.S.A.2012 Supp. 38–2267(a) provides that the district court may grant a continuance of the termination hearing if a continuance is in the best interests of the child. K.S.A.2012 Supp. 38–2239(c) provides that unless a provision of the RKCCC requires service of process, notice of a hearing may be given by first class mail. The statute further provides that “[n]otice by mail is not required if the court orally notifies a party or interested party of the time and place of the hearing.” K.S.A.2012 Supp. 38–2239(c). Here, Father's counsel was present at the hearing on February 14, 2012, when the termination hearing was continued until April 19, 2012. Moreover, a copy of the journal entry from the February 14, 2012, proceedings noting that the termination hearing would be held on April 19, 2012, was mailed by first class mail to both Father and his attorney.
Accordingly, the district court's order terminating Father's rights to W.E. is affirmed.
Mother's Appeal
Mother has also appealed the district court's order terminating her parental rights. Mother contends that there was not clear and convincing evidence to support the district court's findings that she was unfit and unlikely to change in the foreseeable future. She also asserts that termination of her rights was not in the best interests of W.E.
Standard of Review
When 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 parent's rights should be terminated. In re K.W., 45 Kan.App.2d 353, 354, 246 P.3d 1021 (2011) (citing In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 [2008] ).
Evidence Presented
The testimony as to the termination of Mother's parental rights reflected that although Mother initially made progress, her drug addiction quickly resurfaced and negatively impacted on the reintegration efforts. Alia Hamil, a permanency case manager with KVC Behavioral Health Care, worked with W.E. beginning in January 2011. Hamil worked with Mother to create a reintegration plan and they reviewed the plan requirements together. Hamil provided Mother with contact information to obtain the required psychological evaluation and lists of parenting classes.
From the beginning of the case plan until spring of 2011, Mother rented an appropriate residence from a relative. Mother was employed as a CNA until she was fired at the end of March 2011; she remained unemployed until approximately October 2011. Initially, Mother had unsupervised visitation with the children, but in April 2011, someone threatened to burn down the house Mother lived in; as a result, the visits were no longer in the home and became supervised. Initially, Mother's visitations were regular and appropriate. Mother completed a mental health assessment and was obtaining treatment for a while; Mother also completed some parenting classes.
However, after April 2011 and until at least October 2011, Mother's behavior regressed. Mother left her residence because of safety issues—the arson threat and a burglary—and for failure to pay the rent. She failed to maintain stable housing because she moved to Baxter Springs, then to Joplin, Pittsburg, and finally Prairie Village. A couple of months later, Mother was asked to leave the Prairie Village home. Mother finally obtained an apartment at the time of the termination hearing.
Similarly, family members reported that Mother's behavior began changing in April 2011. On May 16, 2011, reports were made by family members that they suspected Mother was using drugs again. A week later, Mother was reported as missing; police found her beaten and injured a couple of days later. Mother reported being forced to take drugs. After this incident, Mother missed several UA tests and tested positive for methamphetamine on at least two others. Mother continued to miss tests and occasionally test positive for various drugs and alcohol; her last test was October 29, 2011. Mother also failed to present proof she was in drug treatment until August 2011 when she completed an intake at a treatment facility. Mother admitted that she had drug problems in the past, had gotten sober, and had relapsed several times.
Mother also missed several scheduled visitations between May and December 2011 (out of 50 visits, she missed 6 and was late for 11). Mother did not provide proof that she was working and had not followed up on obtaining additional mental health services until several weeks before the April termination hearing. Mother was arrested in June 2011 for driving with a suspended license. Mother did not establish proof of employment after March until October 2011. Based on the budget Mother prepared just before the hearing, her income was just sufficient to meet her rent and other financial means.
Hamil reported that before the December 2011 termination hearing, Mother called W.E. and asked him whether she should relinquish her rights to him; the foster parent terminated the call as inappropriate. Mother then relinquished her parental rights and had a farewell visit with her children. Thereafter, Mother revoked her relinquishment.
Hamil and the foster mother testified that W.E. needed stability. W.E. had expressed frustration that both his Mother and Father “gave up” on the family and his Father's inconsistency in visitation and contact. According to Hamil, W.E. was very angry with his parents and would need family therapy. However, the foster mother testified that Mother had not been involved in enough individual therapy to be able to start family therapy.
Mother also testified during the hearing. Mother told the court that she had a new apartment that she was moving to a week after the hearing. Mother testified that she started using drugs prior to 2005. Later, she confirmed that she had met the father of two of her children in court-ordered treatment 13 years before. Still later, Mother admitted that she had been using drugs since she was 13 years old. She also conceded that she had been in drug treatment three times since she was 13.
At the time of the hearing, Mother was attending Alcoholics Anonymous (AA) meetings daily and Crystal Meth Anonymous (CMA) once a week. Mother also spoke at high schools and treatment centers to talk about her experience with drugs and hoped for recovery. She was also receiving drug treatment through Cypress and was discharged from that program on April 10, 2012. Mother testified that she knew she would have to maintain balance every day for the rest of her life and that she would have to continue to attend AA and CMA programs. Mother reported that she had not used drugs since October 2011 and that she tested negative for substances the day before the hearing. Mother also had attended three or four therapy sessions, and had a valid driver's license and reliable transportation. Mother testified she wanted to continue to have a relationship with W.E.
In its ruling from the bench and in its journal entry, the court found Mother was unfit as defined in subsections (b)(3) (use of intoxicating liquors or narcotic or dangerous drugs), (b)(7) (failure of reasonable efforts made by agencies to rehabilitate the family), and (b)(8) (lack of effort on the part of the parent to adjust her circumstances to meet the child's needs) of K.S.A.2012 Supp. 38–2269. The court also found Mother was unfit under subsections (c)(1) (failure to assure care of the child in the parental home), (c)(2) (failure to maintain regular visitations, contact or communication with the child), and (c)(3) (failure to carry out a reasonable plan toward integration) of K.S.A.2012 Supp. 38–2269.
Termination of Mother's parental rights was proper
Before terminating a parent's right, the district court is required to make three findings. First, the court must find by clear and convincing evidence that the parent is unfit. Second, the court must find that the parent's conduct or condition which renders him or her unfit is unlikely to change in the foreseeable future. Finally, the court must determine that termination of parental rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(a), (g)(1).
There was clear and convincing evidence that Mother was unfit and that her unfitness was unlikely to change in the foreseeable future. Mother had a long history of drug use, drug treatment, and relapse. Twice her children were removed from her care—in 2005 and 2010—in part because of her drug abuse issues. Mother also had been in court-ordered drug treatment on at least one occasion before the 2005 CINC cases. Mother started drug treatment after the CINC finding was in place in the present case, but within a couple of months she tested positive for alcohol and/or drugs. Although she had begun attending drug treatment and AA/CMA meetings again after the motion to terminate was filed, Mother's newly avowed commitment to remain drug-free carried little assurance that another relapse would be avoided.
Similarly, other aspects of Mother's life did not show any stabilization until after the motion to terminate was filed. It was not until October 2011 that Mother regained steady employment and drug treatment. During the 6 months she worked under the reintegration plan, she lived in at least four different places. She was planning to move again the week after the termination hearing. She had only attended three or four individual therapy sessions prior to the termination hearing. According to the case manager, she was not yet ready to participate in family therapy with W.E. Finally, Mother missed or was late to a number of visitations and otherwise failed to comply with the case manager's reasonable requirements.
Although Mother relied on her recent progress since the termination motion was filed, Mother never testified as to when she would be ready to be fully reintegrated with W.E. In light of her long history of recovery and relapse, her current and brief status of healthier behaviors did not warrant further delay in finding a stable situation for W.E.
“What is the ‘foreseeable future’ is to be considered ‘from the child's perspective, not the parents', as time perception of a child differs from that of an adult.’ [Citation omitted.] ... We have found incarceration for as few as 7 additional months from the date of the hearing, along with other factors, was sufficient to establish that the parent's condition would not change in the foreseeable future. [Citations omitted.]” In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009).
Once the court makes a finding of unfitness, it must consider whether terminating the parent's rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(g)(l); In re K.W., 45 Kan.App.2d at 354. In this case, W.E. had been in an out-of-home placement for over 12 months; this was the second time in his 10 years that he had been removed from his Mother's care. Moreover, in December 2011, Mother relinquished her custody of W.E. and had a farewell visit with him and his half-siblings. This caused trauma to W.E., who believed both his parents had given up on him. Notwithstanding this decision and the farewell meeting, Mother then changed her mind and revoked her relinquishment. The court justifiably found that it was in W.E.'s best interest to end the roller coaster situation W.E. faced with Mother.
For these reasons, the district court's findings that Mother's rights should be terminated is supported by clear and convincing evidence.
Affirmed.