D.D.P., In Interest of
| Decision Date | 25 October 1991 |
| Docket Number | No. 66038,66038 |
| Parties | In the Interest of D.D.P., Jr., T.P., and B.J.P., Minor Children under Eighteen Years of Age. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Child in need of care proceedings, pursuant to the Kansas Code for Care of Children (K.S.A. 38-1501 et seq.), are discussed generally, with emphasis on the roles of the respective parties thereto.
2. The enactment of K.S.A. 38-1505a authorizing appointment of a court-appointed special advocate (CASA) and the promulgation of Supreme Court Rule 110 (1990 Kan.Ct.R.Annot. 98) relative to CASA programs are discussed.
3. K.S.A. 38-1505a and Supreme Court Rule 110 (1990 Kan.Ct.R.Annot. 98) are held not to afford a court-appointed special advocate (CASA) interested party status as defined by K.S.A.1990 Supp. 38-1502(e).
4. Appeals from a reintegration plan prepared by the Social and Rehabilitation
Services (SRS) for submission to and approval of the district court, pursuant to K.S.A.1990 Supp. 38-1565, are from the district court's approval of the plan rather than subject to the agency's administrative review procedures.
5. Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal, they are not properly before the appellate court for review.
6. The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court's decision.
7. One who asserts an abuse of discretion bears the burden of showing such abuse.
8. No abuse of discretion is shown in the trial court's approval of the reintegration plan which required certain extended family members to be psychologically tested if the subject children were to reside with their mother in the home of such extended family members.
Mark Works, of Works, Works, & Works, P.A., Topeka, argued the cause and was on the briefs for appellant maternal grandfather.
Timothy H. Henderson, Asst. Dist. Atty., argued the cause, and Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the briefs for State of Kan.
Kenneth M. Carpenter, of Carpenter Chartered, Topeka, argued the cause and was on the briefs for Court-Appointed Special Advocate.
Petitions seeking to have each of the minor siblings, D.D.P., Jr., T.P., and B.J.P., determined to be a child in need of care were filed by the Shawnee County District Attorney's office on information supplied by the Department of Social and Rehabilitation Services (SRS). Two appeals were filed herein: (1) The State appeals from the court's determination that the court-appointed special advocate (CASA) is an interested party under K.S.A.1990 Supp. 38-1502(e); and (2) the children's maternal grandfather appeals from a provision in the reintegration plan adopted by the court which provides that he and an adult daughter residing with him (the children's aunt) must undergo psychological testing if the children and their mother are to reside with them.
The facts giving rise to the filing of the petitions and the evidence on which the court determined the children to be in need of care are not before us in these appeals. Physical abuse of the children perpetrated by an individual other than the maternal grandfather and the aunt who resides with him was the cause of the proceedings being filed herein. Other facts will be stated as necessary for the determination of the particular issues raised.
We shall first consider the issues arising in the State's appeal.
On June 25, 1990, the court held that K.S.A. 38-1505a and Supreme Court Rule 110 (1990 Kan.Ct.R.Annot. 98) grant interested party status to a CASA under K.S.A.1990 Supp. 38-1502(e), although a CASA is not within the purview of K.S.A. 38-1541. The State contends this was an erroneous interpretation of our rule and the statutes.
In order to put this issue in context, it is helpful to review the procedural framework of child in need of care cases.
Investigation of alleged child abuse or neglect is the responsibility of SRS and law enforcement officers. K.S.A. 38-1521, K.S.A.1990 Supp. 38-1522, K.S.A.1990 Supp. 38-1523. The next stage is covered by K.S.A. 38-1529, which provides:
The contents of the petition are to be in conformity with K.S.A. 38-1531.
The child is represented by a guardian ad litem whose appointment is controlled by K.S.A. 38-1505(a), (d), and (e), which provide:
Sections (b) and (c) deal with appointment of counsel for a parent or custodian. Appointment of counsel is mandatory for a parent who is a minor, a mentally ill person, or a disabled person, and for an indigent parent who requests an attorney.
K.S.A. 38-1532 through -1536 set forth the service of process requirements.
Who are the parties to the proceedings? K.S.A.1990 Supp. 38-1502(e) provides:
"(e) 'Interested party' means the state, the petitioner, the child, any parent and any person found to be an interested party pursuant to K.S.A. 38-1541 and amendments thereto."
Those specifically listed in the statute are mandatory parties with a statutory right to participate. In addition, the court may find anyone within the provisions of K.S.A. 38-1541 is an interested party. These are optional "interested parties" without a right to participate unless so designated by the court under K.S.A. 38-1541, which provides:
Note that "interested party" status under K.S.A. 38-1541 is also subject to withdrawal by the court. Note, also, that a guardian ad litem is not an interested party in his or her own right--rather, he or she represents the child who is a mandatory interested party.
Let us examine the possible participants in such proceedings. We have the nonprofessionals--the child, the parents, the petitioner (if an individual rather than the State), and individuals designated by the court under K.S.A. 38-1541. By the express language of the statute, the optional interested party pool is limited to close relatives and individuals with whom the child has been residing. The child aside, each member of the nonprofessional participants has his or her own personal interests at stake. Their contact with the child antedates the court proceedings, and their interests may be quite different from those of the child. Any or all may turn out to be part of the problem giving rise to the filing of the petition.
Let us look at the professionals involved. In this group, we have the guardian ad litem appointed to represent the child, the State (commonly county or district attorney), attorneys for parents or other "interested parties," and the trial judge. Additionally, although not parties, SRS case workers will be participating. The professionals are typically involved with many cases.
The nonprofessionals frequently have their own axes to grind, and the professionals are stretched thin in the time they can devote to any particular case. Further, attorneys for individuals are representing their clients only. It is not surprising that horror stories began to surface of children being lost in the system and spending their childhood being shunted from foster home to foster home when a prompt concerted effort could have resulted in their return...
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