Opinion
No. 107,188.
2012-07-27
In the interest of H.L., Dob xx/xx/1996 a female.
Appeal from Smith District Court; Preston Pratt, Judge. Kevin L. Phillips, of Weltmer Phillips Law Office, of Mankato, for appellant. Allen Shelton, county attorney, for appellee.
Appeal from Smith District Court; Preston Pratt, Judge.
Kevin L. Phillips, of Weltmer Phillips Law Office, of Mankato, for appellant. Allen Shelton, county attorney, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
L.L. (Mother) appeals from the district court's judgment that declared her unfit to parent her teenage daughter, H.L., and appointed H.L.'s stepmother as her permanent guardian. Because we find that the district court lacked personal jurisdiction over Mother, we are required to reverse the district court's finding of unfitness and the appointment of a permanent guardian.
Factual and Procedural History
On October 20, 2009, Mother was admitted to Larned State Hospital (Larned) for mental health treatment, where she was diagnosed with Bipolar I Disorder, Most Recent Episode Manic, Severe with Psychotic Features.
At the time of her commitment to Larned, Mother had been living in a van with her then 13–year–old daughter, H.L., whom Mother was homeschooling. The previous day they had snuck into a room at the Ramada Inn in Hays, Kansas, without paying for the room. Upon being transported to Larned, Mother left H.L. in the care of her 21–year–old brother and A.L, Mother's son. A.L. reported that Mother and H.L. had been living as transients without a permanent residence for a year and a half and that H.L. had not been attending school for several weeks.
The State petitioned the Trego County District Court to declare H .L. a child in need of care (CINC). The petition and summons were personally served upon both Mother and A.L. The district court entered an emergency order granting the Kansas Department of Social and Rehabilitation Services (SRS) temporary custody of H.L.
Subsequently, a district court magistrate judge adjudicated H.L. a CINC. H.L.'s father had passed away in 2006, so H.L. was placed in the home of her stepmother, T.L. (Stepmother), though she remained in SRS custody.
Upon Mother's appeal, a district court judge affirmed the CINC adjudication and remanded the case to the magistrate court for additional proceedings. Venue was eventually transferred from Trego to Smith County, where Mother had moved. A Smith County magistrate judge then appointed separate counsel to represent both Mother and H .L. and presided over the remainder of the proceedings.
After a review hearing in December 2010, the court determined that despite reasonable efforts, reintegration was no longer an adequate option, directed the district attorney to file a motion to terminate parental rights or a pleading to establish a permanent custodian, and ordered the permanency plan changed to the appointment of a permanent custodian.
On May 12, 2011, the State filed a “Motion for Finding of Unfitness and Termination of Parental Rights or Appointment of Permanent Custodian.” In support of its motion, the State attached and incorporated an affidavit prepared by Elaine Ziegler, a social worker at St. Francis Community Services who had been working with the family, that detailed the history of services provided to H.L. since April 29, 2010. Nothing in the record indicates that the motion was ever served upon anyone, and the State does not claim that it was ever served.
In the meantime, review hearings continued to be held. On June 3, 2011, the magistrate judge sent a notice of a review hearing scheduled for June 15, 2011, to the parties' counsel and Ziegler. The day prior to that hearing, Mother's counsel moved for a continuance because Mother was out of state and had not received adequate notice of the review hearing, which the magistrate denied.
Mother's counsel appeared at the June 15, 2011, review hearing, after which the magistrate judge found that reintegration was not viable and guardianship would be the permanency goal for H.L. The court's journal entry indicates that the matter was then set for an “Appointment of Permanent Custodian hearing” on July 19, 2011. Mother's counsel signed the journal entry, but there is no indication that any other sort of notice of the hearing was served upon any of the parties.
At the opening of the July 19, 2011, hearing, Mother's counsel objected to the case proceeding on the State's motion to terminate or appoint a permanent guardian because neither she nor H.L.'s grandfather were properly served with or given the notice of the State's motion required by K.S.A.2011 Supp. 38–2267(b). The State responded that the purpose of notice was obviously satisfied because both Mother and H.L.'s grandfather were present and urged the court not to exalt form over substance. The magistrate noted that the parties were present and that H.L.'s best interests in permanency were important, so it questioned whether Mother and H.L.'s grandfather would waive notice from the stand. But the State responded that such formal waivers were unnecessary because Mother's and H.L.'s grandfather's presence, alone, effectively amounted to a waiver of the notice requirements because they would have the opportunity to be heard. The magistrate judge ultimately ruled that because everyone was present, he was going to take Mother's objection under advisement but continue with the hearing.
The State then proceeded to present evidence in support of its motion. After hearing several witnesses, the matter was continued until August 11, 2011. When the trial resumed and the State rested its case, Mother renewed her objection to the lack of proper notice and repeated that she was not waiving that objection by testifying. Mother then presented her case in opposition to the appointment of Stepmother as H.L.'s permanent custodian, which consisted solely of her own testimony.
The magistrate judge subsequently entered judgment declaring Mother unfit and finding the appointment of a permanent custodian to be in H.L.'s best interests. On Mother's appeal from that decision, the district court judge reviewed the entire court file as well as all transcripts and exhibits admitted during the hearing before the magistrate judge and found that mother was unfit and it was in H.L.'s best interests to appoint a permanent guardian. In sum, the district court held: (1) the State's failure to give proper notice of the proceeding on its motion was not fatal because of the voluntary appearance at and obvious preparation for trial by all parties and interested persons; (2) the magistrate judge had statutory authority to preside over the hearing on the State's motion; (3) mother was unfit because reasonable efforts at reintegration were given but failed and by reason of her conduct or condition that was not likely to change in the foreseeable future, which rendered her unable to properly care for H.L.; and (4) it was in H.L.'s best interests to appoint a permanent guardian but not terminate Mother's parental rights. Mother timely appealed from that decision to this court.
Analysis
Although Mother raises three issues on appeal, we find her challenge to the court's personal jurisdiction over her is determinative of this appeal. Therefore we do not address the other issues raised.
Mother alleges that the district court lacked jurisdiction to conduct an evidentiary hearing on the State's Motion for Finding of Unfitness and Termination of Parental Rights or Appointment of Permanent Custodian because the motion was never served on her or H.L.'s grandfather as required by K.S.A.2011 Supp. 38–2267. Whether personal jurisdiction exists is a question of law over which our review is unlimited. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009). Likewise, to the extent that statutory interpretation may be required, our review is also unlimited. In re T.S., 276 Kan. 282, 287, 74 P.3d 1009 (2003).
The statute at issue here, K.S.A.2011 Supp. 38–2267, provides, in pertinent part:
“(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.
(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.
“(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.2011 Supp. 38–2267.
Provisions governing the persons required to be noticed and method of service of the notice required by K.S.A.2011 Supp. 38–2267(b)(1) are as follows:
• K.S.A.2011 Supp. 38–2236(a) requires a summons and copy of the motion to be served upon the child, parents, person with whom the child is residing, and any other person designated by the county or district attorney.
• K.S.A.2011 Supp. 38–2236(b) requires a copy of the motion and notice of the hearing to be mailed to the child's noncustodial grandparents.
• K.S.A.2011 Supp. 38–2237 allows, in pertinent part, for service of process by (a) personal and residential service; (b) service by return receipt delivery; or (c) service by first class mail.
This court addressed the notice and service requirements under the essentially identical statutory predecessor to K.S.A.2011 Supp. 38–2237 in In re H.C., 23 Kan.App.2d 955, 939 P.2d 937 (1997). We held:
“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.2011 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.” (Emphasis added.) 23 Kan.App.2d 955, 939 P.2d 937, Syl. 5.
So the issue in this case is whether personal jurisdiction was acquired over Mother, either by service of process as outlined in the statute or by voluntary appearance. There is no dispute that Mother was not personally served with the motion or notice of hearing. The issue hinges on the district court's finding that Mother and H.L.'s grandfather voluntarily appeared at the hearing. Mother did not voluntarily appear at the hearing, so the district court lacked personal jurisdiction.
Many years ago, litigants were required to make a special appearance (versus general appearance) to contest personal jurisdiction or that defense would be deemed waived by their mere appearance at the hearing or answer to the petition. However, the distinction between general and special appearances has since been abolished. Now, a defense of lack of personal jurisdiction is waived in a general civil action only when it is not timely asserted as a defense. See K.S.A. 60–212(h); Haley v. Hershberger, 207 Kan. 459, 465, 485 P.2d 1321 (1971), superseded by statute on other grounds as stated in Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 127 P.3d 319 (2006).
Here, Mother timely asserted her objection to personal jurisdiction at the first opportunity available to her, i.e., at the opening of the hearing on the State's motion, with which she had never been served. Mother then steadfastly renewed that objection throughout the trial. It can hardly be said under these facts that she voluntarily appeared.
That Mother and H.L.'s grandfather were present and Mother's counsel was adequately prepared to go forward despite the lack of proper service and notice does not change this conclusion. The opportunity to be heard, which the State argues was not denied here, is a separate due process issue not now before this court. The sole issue here is compliance with a statutory notice provision. Actual prejudice is not a required showing for establishing a lack of personal jurisdiction due to lack of notice from service. See Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999) (holding that “[n]otice or knowledge must come from process of service, or there must be a valid waiver); Le v. Joslin, 41 Kan.App.2d 280, 293, 202 P.3d 677 (2009) (reasoning that actual knowledge of the pendency of an action is not a substitute for service; otherwise, it would be meaningless for a party to ever assert insufficiency of service of process as a defense); Cook v. Cook, 32 Kan.App.2d 214, 220–22, 83 P.3d 1243 (2003), rev. denied 277 Kan. 923 (2004) (citing 1 Gard and Casad, Kansas Code of Civil Procedure Annotated 3d § 60–204, p. 2–18 [1997] in discussing same).
For these reasons, the lack of proper service deprived the district court of personal jurisdiction over Mother for purposes of the proceeding on the State's motion. That lack of jurisdiction renders the district court's judgment invalid. See In re H.C., 23 Kan.App.2d at 960, 939 P.2d 937.
Because reversal is required we do not need to address the adequacy of notice to the grandparents.
Reversed.