In re Interests A.a.-F.

• Decision Date: 12 July 2019
• Docket Number: 117,370,117,369,117,372,117,371,368,Nos. 117,s. 117
• Citation: 444 P.3d 938
• Parties: In the INTERESTS OF A.A.-F., M.A.-F., F.A.-F., B.C., and J.S., Minor Children.
• Court: Kansas Supreme Court

444 P.3d 938

In the INTERESTS OF A.A.-F., M.A.-F., F.A.-F., B.C., and J.S., Minor Children.

Nos. 117

368

117,369

117,370

117,371

117,372

Supreme Court of Kansas.

Opinion filed July 12, 2019.

Andy Vinduska, of Manhattan, argued the cause and was on the briefs for appellant natural mother.

Jason B. Oxford, assistant county attorney, argued the cause, and Michelle L. Brown, assistant county attorney, was on the briefs for appellee.

The opinion of the court was delivered by Luckert, J.:

Acting under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), a California court transferred five cases to a Kansas court for the continuation of child in need of care proceedings. The natural mother (Mother) of the children challenges the Kansas court's subject-matter jurisdiction, pointing to potential issues arising from the transfer. Mother also raises a constitutional due process challenge based on the alleged failure of the Kansas district court to hold a timely, statutorily required permanency hearing.

Based on the record before us, we hold the Kansas district court did not abuse its discretion by accepting and exercising jurisdiction after the California court transferred jurisdiction. Nor did the Kansas court violate Mother's due process rights. As a result, we affirm the exercise of subject-matter jurisdiction by Kansas courts and the rulings made by the district court that are the subject of this appeal.

FACTS AND PROCEDURAL HISTORY

The proceedings transferred from California involve five of Mother's six children. The natural father of the three oldest children is A.F., and the natural father of the younger children is D.S. D.S. actively participated in the California and Kansas proceedings and objected to the exercise of jurisdiction by the Kansas court. A.F. never appeared and reportedly was in Mexico. Neither father is involved in this appeal.

The two oldest children, who were born in Kansas, have been in and out of protective custody since at least 2009. The three younger children have been in and out of custody since shortly after their births. When each child first became the subject of a child in need of care (CINC) proceeding, he or she resided in California with Mother and, at various times, with either A.F. or D.S. (California does not use the same child in need of care terminology as does Kansas. Even so, for consistency, we will refer to the California dependency proceedings and the Kansas proceedings as CINC proceedings.)

In October 2014, Mother had physical custody of all the children, although the California Department of Children and Family Services (DCFS) retained legal custody and supervision of at least some of them. At that time, Mother and D.S. were married and residing in California. An argument between Mother and D.S. devolved into a physical altercation that led to D.S.'s arrest. Mother then took the children to Geary County, Kansas, without informing D.S. The California court revoked the children's physical placement with Mother on October 27, 2014, and issued warrants in November 2014 for the children's return.

Upon D.S.'s release from custody, he traveled to Kansas to reunite with Mother and the children at the home of Mother's friends. D.S. physically confronted the friends and threatened them, leading authorities to arrest him. About two months after the children had arrived in Kansas, Kansas officials returned the children to California under authority of the California warrants. In February 2015, the California court determined "[s]ubstantial danger exists to the physical health of minor(s) and/or minor(s) is suffering severe emotional damage, and there is no reasonable means to protect without removal from parent's or guardian's physical custody." At that time, the California court ordered a report on possible placement with the children's grandmother in Kansas and a possible transfer of the case to a Kansas court that could oversee the family's reintegration. Mother appealed that order. While it is unclear from the record before us what happened with that appeal, the record discloses additional review or progress hearings occurred in the California trial court. During this period, the California judge called Judge Maritza Segarra, a district judge in Geary County.

The various California investigations, reports, and hearings culminated on June 24, 2015, with a progress hearing at which the California court ordered the cases transferred to Kansas. The court's June 24, 2015, order stated:

"Pursuant to this Court's consultation with the Honorable Maritza Segarra, [Kansas] District Court Judge, and pursuant to the UCCJEA, this case is transferred to the Geary County District Court, 138 East 8th Street, Junction City, Kansas, 66441. The Department of Children and Family Services is ordered to send copies of all pleadings, orders and reports or other information contained in this Court's files to Judge Segarra forthwith. It is further ordered that minors be transported by the Department of Children and Family Services to the Kansas Department for Children and Families."

The California court transmitted copies of the pleadings, orders, and reports to the Geary County court but no transcripts of hearings. We thus know only the information recorded in written orders and journal entries. The June 24, 2015, order recites that Mother and D.S. appeared at the hearing through counsel. The record does not specify whether Mother and D.S. appeared in person. Later, in Kansas proceedings, Mother testified she went to California to attend a hearing. She said the hearing "was right before the kids came back," but she denied being at the hearing at which the California court transferred the case to Kansas.

Nothing in the record indicates that Mother appealed the June 24, 2015, order. And, as ordered by the California court, the children were transported back to Kansas. The Geary County District Court then exercised jurisdiction and ordered the children remain in out-of-home placements.

About one month later, D.S. was arrested again, this time for domestic violence and making a criminal threat against Mother. His probation in his earlier Kansas case was revoked. He remained in custody throughout the remainder of the CINC proceedings.

Around the time of D.S.'s arrest, the Kansas Department for Children and Families (DCF) held a case plan meeting. The plan identified concerns but nonetheless identified its goal as reintegration of the family. Mother was assigned tasks toward reintegration, including attending counseling to address domestic violence issues and obtaining suitable housing and reliable income. She completed none of these tasks to DCF's satisfaction. The district court held a permanency hearing on October 14, 2015, at which the district court concluded that reintegration remained a viable alternative. But that ruling changed when, on November 4, 2015, the district court held a review hearing at which it heard evidence. At the end of that hearing, the court found "reintegration is no longer a viable option with the mother." The court held a series of review and status hearings thereafter. At a hearing on January 27, 2016, Mother asked for more time to work on alternatives other than termination of her parental rights. On October 12, 2016, the court held another permanency hearing.

Between the two permanency hearings, the State filed, and then amended, motions for a finding of unfitness and termination of parental rights. The district court held evidentiary hearings related to the amended motions over three days in late 2016 and early 2017. D.S. objected to the court's subject-matter jurisdiction early on the first day of the hearings. The district court asked counsel for the specific objection to Kansas jurisdiction. D.S.'s counsel replied that D.S. "just believes that California should have continued to exercise jurisdiction, and that Kansas should not have obtained jurisdiction, and the case should be transferred back to California. So I would just like that noted for a possible appeal issue."

The district court rejected the jurisdictional objection:

"The objection as to jurisdiction, although counsel is correct, jurisdiction can be raised at any time, there's nothing that's been shown to the Court that would indicate that jurisdiction is erroneously with this Court. This Court took jurisdiction under the UCCJEA and the [Interstate Compact on the Placement of Children, the] ICPC. The Court was—the Court followed the guidelines in conversations with the judge out of California. And this case was transferred. And no basis has been—there's no legal basis for—to support that this Court does not correctly have jurisdiction in this matter, so the Court will deny that request also."

D.S. raised his jurisdictional objection again on the second day of the termination hearing. Mother joined the motion. D.S.'s counsel argued there was no hearing on the jurisdictional issue in California. The district court disagreed, pointing to journal entries in the California record reflecting hearings on the issue. The district court again denied the motion. In its explanation, the court also outlined the conversation it had with the California court regarding the transfer:

"All right. [The] Court's going to deny the motion. It's obvious from the journal entries that both the mother and the father were represented by counsel. California, correct, was the home state. But then the mother and the father both left the state of California and came here. The children were then picked up on an order out of the state of California, taken back to California. The parents apparently stayed here. And it may have been because, at that point in time, [D.S.] was already in jail, and so could not leave. The mother stayed here also. But there were at least two hearings in the state of California concerning this.

"The only thing that the judge called me on, the judge out of California, was to see, after they had had their hearings, if I

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