In re N.E.

Citation516 P.3d 586
Decision Date09 September 2022
Docket Number123,599
Parties In the INTEREST OF N.E., a Minor Child.
CourtUnited States State Supreme Court of Kansas

516 P.3d 586

In the INTEREST OF N.E., a Minor Child.

No. 123,599

Supreme Court of Kansas.

Opinion Filed September 9, 2022.

Mitchell F. Engel, pro hac vice, of Shook, Hardy & Bacon, LLP, of Kansas City, Missouri, argued the cause, and Vanessa Dittman, pro hac vice, and Abilgail Lawson, pro hac vice, of the same firm, and Travis J. Ternes, of Watkins Calcara, Chtd., of Great Bend, were with him on the briefs for appellant maternal grandmother.

Jennifer L. Harper, assistant district attorney, argued the cause, and Thomas Stanton, district attorney, was with her on the brief for appellee.

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

516 P.3d 589

N.E. was four months old when the State took her into protective custody and placed her with a foster family. We refer to her by initials in this opinion because she is a minor. See Kansas Supreme Court Rule 7.043 (2022 Kan. S. Ct. R. at 50). Over the next year and a half, the district court held child-in-need-of-care (CINC) proceedings under the Revised Kansas Code for the Care of Children (Revised Code), K.S.A. 38-2201 et seq. During those proceedings, N.E.’s grandmother sought custody of N.E. When the district court denied Grandmother's request, she appealed

516 P.3d 590

to a panel of the Court of Appeals, which dismissed the appeal for lack of jurisdiction.

We granted Grandmother's petition to review the panel's jurisdictional holding. The Revised Code's appellate jurisdiction statute, K.S.A. 38-2273(a), limits which district court decisions may be appealed in a CINC proceeding. That jurisdictional statute, as construed under our precedent in In re N.A.C. , 299 Kan. 1100, 329 P.3d 458 (2014), bars appellate review of each of the district court orders from which Grandmother has appealed. The doctrine of stare decisis warrants our continued adherence to In re N.A.C. Thus, we affirm the judgment of the Court of Appeals and dismiss the appeal for lack of jurisdiction.


The circumstances that led to the Department for Children and Families (DCF) taking custody of N.E. are tragic, but they are not the focus of this appeal. To answer the jurisdictional question, we concentrate on the district court proceedings under the Revised Code, which the Legislature enacted in 2006 to address the custody and care of a minor. See L. 2006, ch. 200, § 1. Specifically, we focus on those facts relevant to, and proceedings conducted under, the portion of the Revised Code that applies when a young child is taken into protective custody—the CINC proceedings.

We do not ordinarily discuss the legal framework in this section of the opinion. But here, a general understanding of the statutory scheme governing CINC proceedings is important to place the facts and district court proceedings in their proper context and to fully appreciate their significance to the jurisdictional question raised in this appeal.

CINC proceedings unfold in a specific, temporal order. See 299 Kan. at 1110-15, 329 P.3d 458. First, during the temporary-custody phase, a district court decides whether it should temporarily place the child in the custody of specific persons or entities listed by statute, such as the Secretary of DCF. See K.S.A. 38-2243(f), (g)(1). Second, during the adjudication phase, the district court determines whether the child meets one or more statutory definitions of a "child in need of care." See K.S.A. 38-2202(d)(1)-(14) (defining a child in need of care); K.S.A. 38-2251 (providing for adjudication). Third, during the dispositional phase, the district court enters orders that address the custody and case planning of a child adjudicated as a "child in need of care." K.S.A. 38-2253(a). Fourth, during the termination phase, the district court decides whether a parent is "unfit" under several statutory factors and whether it is in the best interests of the child to terminate parental rights. See K.S.A. 38-2269(a) - (g)(1). Finally, if the court decides to terminate parental rights, then during the post-termination phase, the district court facilitates placement of the child in a permanent family setting, whether through adoption or the appointment of a permanent custodian. See K.S.A. 38-2269(g)(2) (providing options for district court after termination of parental rights).

With one important exception noted below, N.E.’s case followed the typical progression of CINC proceedings under the statutory framework described above. Those proceedings began in August 2019, when the State took protective custody of N.E., and they ended in January 2021, when Grandmother appealed and N.E. was adopted by her foster family.

Temporary Custody Phase

During the temporary-custody phase in August 2019, the district court temporarily placed N.E. in the custody of DCF, which immediately placed N.E. with a foster family. For reasons that will become important later, we note that the temporary custody order placed conditions on DCF's ability to make a "kinship care placement." Under the Revised Code, a "placement" is the decision by the individual or agency having custody of the child about "where and with whom the child will live." K.S.A. 38-2202(z). A "kinship care placement," then, is a placement "in the home of an adult with whom the child or the child's parent already has close emotional ties." K.S.A. 38-2202(q). The district court imposed two conditions on such placements. First, it ordered that DCF could make no short-term kinship placements without the

516 P.3d 591

approval of the guardian ad litem, the court-appointed attorney who represents the child's interests in a CINC proceeding. See K.S.A. 38-2205(a) (providing for appointment of attorney for the child in a CINC proceeding). Second, the court ordered that DCF could make no long-term kinship placements unless a "kinship assessment" had been completed and the court had scheduled a review hearing.

Grandmother appeared in person at the temporary custody hearing. And the district court provided "the parents, grandparents and/or interested parties, who were present at [the] hearing ... with informational materials pertaining to their respective rights and responsibilities in connection with the proceedings." But nothing in the record suggests that Grandmother objected to the placement limitations in the temporary custody order at that time. Nor did Grandmother appeal from the temporary custody order. See K.S.A. 38-2273(a) (permitting the appeal of "any order of temporary custody").

Adjudication Phase

During the adjudication phase in September 2019, the district court adjudicated N.E. as a child in need of care. In its September 19th Journal Entry and Orders of Adjudication and Disposition, the district court found that N.E. met three of the statutory definitions of a child in need of care. The district court also specified that its previous findings and orders would remain in effect. Neither parent contested the district court's adjudication of N.E. as a child in need of care. Grandmother did not appear at the adjudication hearing. And nothing in the record suggests that she objected at that time to the adjudication of N.E. as a child in need of care or to the district court's continuation of its previous findings and orders. As with the temporary custody order, Grandmother did not appeal the order of adjudication. See K.S.A. 38-2273(a) (permitting the appeal of an adjudication order).

Dispositional Phase

The dispositional phase began when the district court ordered N.E. to remain in the custody of DCF as part of its September 19, 2019 Orders of Adjudication and Disposition. As noted, DCF had exercised its custodial authority by placing N.E. with a foster family. But six to nine months into the dispositional phase, two events added complexity to these CINC proceedings. First, in March 2020, the COVID-19 pandemic impacted the way courts could safely conduct judicial proceedings in Kansas courtrooms. In response, our court entered administrative orders suspending "statutory time standards or deadlines applying to the conduct or processing of judicial proceedings." See, e.g., Administrative Order 2020-PR-016 (imposing statewide restrictions on judiciary operations effective March 18, 2020). Second, in May 2020, Grandmother engaged counsel and became significantly more involved in the proceedings.

Grandmother Requests Placement

The order and timing of the later proceedings is important to our jurisdictional analysis. In March 2020, a supervisor at St. Francis Ministries, the social-service agency managing N.E.’s case on behalf of DCF, informed the district court that Grandmother wanted DCF to place N.E. in Grandmother's home, rather than with the foster family. After gathering input from the parties, the district court issued an April 30th email ruling finding that placement with Grandmother was not in N.E.’s best interests.

Grandmother Moves for Custody and Other Procedural Developments

On May 22, 2020, Grandmother's counsel filed a motion for interested party status and custody of N.E. In the motion, Grandmother noted that a permanency hearing had been scheduled for June 4, and that neither permanent placement, termination of parental rights, nor adoption had yet been completed. Thus, Grandmother argued that she had a right to be heard as an interested party seeking custody and placement of N.E. Grandmother did not request a stay of, or otherwise object to, the court's setting of the permanency hearing for June 4.

While Grandmother's custody motion was pending, the district court conducted a hearing on June 4, 2020, to evaluate progress

516 P.3d 592

towards a permanent placement of N.E. Grandmother appeared by counsel at the permanency hearing. After the hearing, the district court entered its June 15th Permanency Hearing Journal Entry and Order. There, the district court found that reintegration with N.E.’s parents was not a viable permanency objective and adoption might be in N.E.’s best interests. Thus, the district court ordered the State to file a...

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