In re L.B., 102,202.

• Court: Court of Appeals of Kansas
• Writing for the Court: Rulon
• Citation: 217 P.3d 1004
• Parties: In the Interest of L.B., Minor Child Under the Age of Eighteen.
• Docket Number: No. 102,202.,102,202.
• Decision Date: 16 October 2009

217 P.3d 1004 In the Interest of L.B., Minor Child Under the Age of Eighteen. No. 102,202. Court of Appeals of Kansas. October 16, 2009.

[217 P.3d 1005]

Bruce C. Hedrick, of Overland Park, for appellant natural mother.

Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.

Before RULON, C.J., GREENE and HILL, JJ.

RULON, C.J.

K.B., mother of L.B., appeals the decisions of the district court finding (1) probable cause at a temporary custody hearing to remove L.B. from mother's home; (2) L.B. was a child in need of care; and (3) mother was an unfit parent to L.B. and said condition was unlikely to change in the foreseeable future resulting in the termination of mother's parental rights. We dismiss in part and affirm in part.

JURISDICTION

Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005). "The right to appeal is entirely statutory and is not 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 in the manner prescribed by statute. [Citation omitted.]" Butler County R.W.D.

217 P.3d 1006

No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003).

K.S.A.2008 Supp. 38-2273(a) provides: "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." The procedure on appeal shall be governed by article 21 of chapter 60 of the Kansas Statutes. K.S.A.2008 Supp. 38-2273(c). A notice of appeal is required to be filed within 30 days of the order. K.S.A. 60-2103(a). Where such orders are not timely appealed, this court has no jurisdiction to review any such order as a part of a timely appeal from a subsequent order involving the same child, such as an order terminating parental rights. See In re D.I.G., 34 Kan.App.2d 34, 114 P.3d 173 (2005).

On July 10, 2007, Kansas State Department of Social and Rehabilitation Services (SRS) took L.B. into custody based on allegations L.B. was a child in need of care. The State was concerned mother had left L.B. in daycare for extended periods of time. At the temporary custody hearing, the court found allegations existed constituting an emergency and placed L.B. in SRS custody.

On January 9, 2008, the district court found L.B. was a child in need of care and ordered the creation of a reintegration plan. Eventually the State filed a petition to terminate mother's parental rights. After an evidentiary hearing, the court found there was clear and convincing evidence mother was an unfit parent and this condition was unlikely to change in the foreseeable future and in L.B.'s best interests terminated mother's parental rights. The journal entry of termination was filed December 22, 2008.

Mother filed her notice of appeal on January 20, 2009, which stated mother was appealing "from all judgments, rulings, decisions, and findings made by [the district court] on December 4, 2008, and the CINC finding with the Journal Entry filed January 28, 2008, to the Court of Appeals of the State of Kansas."

On March 4, 2009, on a motion filed by mother, the district court conducted a hearing wherein mother testified mother's previous attorney had not told mother she had a right to appeal either the prior temporary custody order or the CINC determination. The State did not contest mother's testimony. The district court found mother was not informed of her right to appeal either the temporary custody order or the CINC determination, but the order of termination of mother's parental rights was not modified. Mother's motion to docket the appeal out of time was granted by this court.

This record clearly shows mother's notice of appeal was untimely as to the district court's orders of temporary custody and CINC findings. Consequently, this court has no jurisdiction to review those rulings. The next question is whether this court should apply the holding in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), in the context of a civil child in need of care/termination of parental rights proceeding.

Mother argues the standard set forth in State v. Ortiz, which allows criminal defendants to file a notice of appeal out of time, should be extended to both the temporary custody hearing and the CINC hearing. In support of this contention mother cites In re T.M.C., 26 Kan.App.2d 297, 301, 988 P.2d 241 (1999), where a panel of this court extended the Ortiz fundamental fairness exception to termination of parental rights cases. For reasons cited elsewhere in this opinion, we choose to not follow the holding in In re T.M.C.

K.S.A.2008 Supp. 38-2205(b) requires in all proceedings under the Revised Kansas Code for Care of Children any parent of a child alleged or adjudicated to be a child in need of care must be appointed counsel if he or she is financially unable to retain private counsel. This guarantees an indigent parent the right to counsel in a temporary custody hearing and a child in need of care proceeding.

Mother argues her rights to companionship, care, custody, and management of her child are so fundamental they require the State to apply all standards of substantive due process to proceedings which would cut off those rights, citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). We agree with this argument,

217 P.3d 1007

but this does not end our analysis of the issue.

A compelling United States Supreme Court case, decided 1 year prior to Santosky, is Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). The Lassiter Court was asked to conclude an indigent parent had an absolute right to appointed counsel under the Due Process Clause of the Fourteenth Amendment in a termination of parental rights case. The Lassiter Court declined the invitation and held an indigent parent's rights were entitled to due process protections under the 14th Amendment, but such rights were subject to the balancing test established in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). 452 U.S. at 26-27, 101 S.Ct. 2153.

In the Lassiter case the Court concluded:

"In sum, the Court's precedents speak with one voice about what `fundamental fairness' has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured.

"The case of Mathews v. Eldridge, [citation omitted] propounds three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. We must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom." 452 U.S. at 26-27, 101 S.Ct. 2153.

Lassiter is compelling because if in a termination of parental rights case an indigent parent's right to appointed counsel is subject to the balancing test under Mathews v. Eldridge, then arguably the right of an indigent parent to file an untimely notice of appeal based on a claim of ineffective assistance of counsel in a similar case should be judged under the same balancing test.

Our Supreme Court has recognized the distinction between the constitutional rights of parents in a CINC case versus the rights of a defendant in a criminal case. In In re J.D.C., 284 Kan. 155, 159 P.3d 974 (2006), our Supreme Court distinguished the right of confrontation in a criminal trial under the Sixth Amendment versus a parent's...