Opinion
No. 108,328.
2012-12-21
In the Interest of A.S.
Appeal from Pottawatomie District Court; Jeff Elder, Judge. Jack Turner, of Baldock & Turner, LLP, of Alma and Andy Vinduska, of Manhattan, for appellants mother and father. Sherri Schuck, county attorney, for appellee.
Appeal from Pottawatomie District Court; Jeff Elder, Judge.
Jack Turner, of Baldock & Turner, LLP, of Alma and Andy Vinduska, of Manhattan, for appellants mother and father. Sherri Schuck, county attorney, for appellee.
Before MALONE, C.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The natural parents of A.S. jointly appeal the district magistrate's adjudication that A.S. is a child in need of care (CINC). The parents claim that the magistrate's decision was not supported by clear and convincing evidence. The parents also claim that the district court erred by dismissing their appeal of the magistrate's decision based on their failure to file verified notices of appeal. We conclude that the district court did not err by dismissing the parents' appeal and that this court lacks jurisdiction to review the sufficiency of the evidence to support the CINC adjudication.
A.S. was born in 2011. S.S. (Mother) and T.P. (Father) are the natural parents. On February 6, 2012, the State filed a CINC petition alleging concerns about domestic violence and anger control issues in the home. On March 16, 2012, the magistrate judge held a full evidentiary hearing attended by Mother and Father, who were both represented by counsel. We will not recount the evidence presented at the hearing. On March 19, 2012, the parties returned to court for closing arguments. After hearing the evidence and the arguments, the magistrate found that “both parents have been neglectful of the child and father has been abusive towards the child.” Accordingly, the magistrate adjudicated A.S. to be a CINC. Mother and Father each filed a separate notice of appeal of the magistrate's decision to the district court, but neither notice of appeal was verified.
On April 19, 2012, the State filed a motion to dismiss the appeal based on the parents' failure to file verified notices of appeal. After hearing arguments of counsel, the district court granted the motion to dismiss. The district court determined that K.S.A.2011 Supp. 38–2273(e) required the notices of appeal of the magistrate's decision to be verified, and the parents' failure to file verified notices of appeal required that the appeal be dismissed. The parents timely appealed that decision to this court.
On appeal, the parents first claim that the magistrate's CINC adjudication was not supported by clear and convincing evidence. The parents also claim that the district court erred by dismissing their appeal of the magistrate's decision based on their failure to file verified notices of appeal. We will consider the arguments in reverse order.
The parents claim that the district court erred by dismissing their appeal of the magistrate's decision. The district court dismissed the appeal because the parents had failed to file verified notices of appeal as required by K.S.A.2011 Supp. 38–2273(e). But this statute only requires a party to file a verified notice of appeal if the party has been personally served at any time during the proceedings. Here, the parents argue that they were not required to file verified notices of appeal because they were not personally served with notice of the CINC petition. The parents further argue that their voluntary appearance at the adjudication hearing did not substitute for lack of personal service.
The parents' argument requires the interpretation of statutes. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The right to appeal is entirely statutory and is not a right contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 111, 260 P.3d 387 (2011).
K.S.A.2011 Supp. 38–2273 governs appeals under the Revised Kansas Code for Care of Children (Revised Code). This statute provides:
“(a) An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.
“(b) An appeal from an order entered by a district magistrate judge shall be to a district judge. The appeal shall be heard on the basis of the record within 30 days from the date the notice of appeal is filed. If no record was made of the proceedings, the trial shall be de novo.
“(c) Procedure on appeal shall be governed by article 21 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.
“(d) Notwithstanding any other provision of law to the contrary, appeals under this section shall have priority over all other cases.
“(e) Every notice of appeal, docketing statement and brief shall be verified by the appellant if the appellant has been personally served at any time during the proceedings. Failure to have the required verification shall result in the dismissal of the appeal.
“(f) While a case is on appeal from the district court, the district court or magistrate court shall continue to have jurisdiction over all issues not specifically appealed and shall conduct timely permanency hearings.”
K.S.A.2011 Supp. 38–2273(e) requires that every notice of appeal shall be verified by the appellant and failure to have the required verification shall result in the dismissal of the appeal. This requirement was designed to alleviate the problem of attorneys who were bound to proceed with appeals for a parent even if the parent was disinterested or could not be located. See In re J.A., 30 Kan.App.2d 416, 422, 42 P.3d 215,rev. denied 274 Kan. 1112 (2002). But K.S.A.2011 Supp. 38–2273(e) provides that every notice of appeal shall be verified by the appellant only “if the appellant has been personally served at any time during the proceedings.”
K.S.A.2011 Supp. 38–2237 provides for service of process in cases under the Revised Code. K.S.A.2011 Supp. 38–2237(a) states in part: “Personal and residence service is completed by service in substantial compliance with the provisions of K.S.A. 60–303, and amendments thereto.” K.S.A.2011 Supp. 60–303(e), in turn, provides that the “voluntary appearance by a party is equivalent to service on the date of appearance.” The State argues that the parents' voluntary appearance at the adjudication hearing was the equivalent of service on the date of the appearance. Thus, the State contends that the parents were required to verify their notices of appeal of the magistrate's decision and their failure to do so justified the district court's dismissal of the appeal.
The parents cite In re C.B., 34 Kan.App.2d 317, 324, 117 P.3d 888,rev. denied 280 Kan. 982 (2005), to support their contention that only litigants who are personally served are required to file verified pleadings in an appeal under the Kansas Code for Care of Children (Code). But in that case, the court merely was making the point that the requirement for filing verified pleadings applies only to the appellant, not the appellee. In re C.B. did not address whether a voluntary entry of appearance by a party can substitute for personal service.
The parents cite In re J.A., 30 Kan.App.2d at 421–23, for the proposition that a voluntary entry of appearance does not substitute for personal service, thereby requiring verification of a notice of appeal. But when that case was decided, K.S.A. 38–1534 under the Code did not incorporate the provision at K.S.A. 60–303(e), allowing for a voluntary entry of appearance. As previously stated, K.S.A.2011 Supp. 38–2237(a) under the Revised Code provides that personal service is completed by service “in substantial compliance with the provisions of K.S.A. 60–303, and amendments thereto.” Thus, In re J.A. does not control the outcome of the present case.
K.S.A.2011 Supp. 38–2237(e) requires that every notice of appeal shall be verified by the appellant if the appellant has been personally served at any time during the proceedings, and failure to have the required verification shall result in the dismissal of the appeal. The remedy provided by the statute is mandatory, and the district court in this case had no choice but to dismiss the parents' appeal provided that the parents had been personally served at any time during the proceedings. K.S.A.2011 Supp. 38–2237(a) unambiguously states that personal service “is completed by service in substantial compliance with the provisions of K.S.A. 60–303, and amendments thereto.” K.S.A.2011 Supp. 60–303(e), in turn, provides that the “voluntary appearance by a party is equivalent to service on the date of appearance.”
By construing these statutes together, we find it is clear that the voluntary appearance by a party is equivalent to personal service under the Revised Code. K.S.A.2011 Supp. 38–2237(a), which specifies the methods of personal and residence service under the Revised Code, incorporates K.S.A. 60–303 in its entirety, including the provision under subsection (e) that the voluntary appearance by a party is equivalent to service. We note that K.S.A.2011 Supp. 38–2237(a) also states that personal service upon an individual outside the state shall be made in substantial compliance with the applicable provisions of K.S.A. 60–308. Also, K.S.A.2011 Supp. 38–2237(b) states that 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. Thus, in drafting the service of process provisions for the Revised Code, the legislature knew how to limit the incorporation of the provisions under the Code of Civil Procedure. But in specifying the methods of personal and residence service under K.S.A.2011 Supp. 38–2237(a), the legislature incorporated K.S.A. 60–303 in its entirety, including the provision under subsection (e) that the voluntary appearance by a party is equivalent to service.
Here, it is undisputed that both parents personally appeared at the adjudication hearing, represented by counsel. At no time during that proceeding did either parent object to the lack of personal service or otherwise suggest that service of process was legally inadequate. Under K.S.A.2011 Supp. 60–303(e), the parents' voluntary appearance at the adjudication hearing was equivalent to being personally served on that date. This equivalent personal service triggered the verification requirement of K.S.A.2011 Supp. 38–2273(e). Because the parents had failed to file verified notices of appeal as required by statute, the district court did not err by dismissing their appeal of the magistrate's decision.
The parents also argue on appeal that the magistrate's CINC adjudication was not supported by clear and convincing evidence. The State responds by arguing that this issue is not properly before this court for review. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074 (2011).
K.S.A.2011 Supp. 38–2273(b) requires that an appeal of an order entered by a district magistrate judge “shall” be to the district court. Here, the parents attempted to appeal the magistrate's decision to the district court, but the district court dismissed the appeal and never addressed the merits of the magistrate's decision. Whether the magistrate's CINC adjudication was supported by clear and convincing evidence is not an issue that can be appealed directly to this court under K.S.A.2011 Supp. 38–2273(b). Thus, we agree with the State that this court lacks jurisdiction to review the sufficiency of the evidence to support the CINC adjudication.
Affirmed in part and dismissed in part.