In re N.A.C.

• Decision Date: 30 January 2014
• Docket Number: No. 109,208.,109,208.
• Citation: 49 Kan.App.2d 699,316 P.3d 771
• Parties: In the Interest of N.A.C.
• Court: Kansas Court of Appeals

49 Kan.App.2d 699
316 P.3d 771

In the Interest of N.A.C.

No. 109,208.

Court of Appeals of Kansas.

Dec. 6, 2013.
Review Granted Jan. 30, 2014.

[316 P.3d 773]

Syllabus by the Court

1. Whether jurisdiction exists is a question of law over which an appellate court has unlimited review.

2. The right to appeal is entirely statutory and is not contained in the United States Constitution or Kansas Constitution.

3. Appeals under the Revised Kansas Code for the Care of Children are limited to those taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights. K.S.A.2012 Supp. 38–2273(a).

4. The term “custody” is defined in K.S.A.2012 Supp. 38–2202(h) to mean “the status created by court order or statute which vests in a custodian, whether an individual or an agency, the right to physical possession of the child and the right to determine placement of the child, subject to restrictions placed by the court.”

5. The term “disposition,” as used in the Revised Kansas Code for the Care of Children, is an order that places a child in, continues a child in, or removes a child from the legal custody of an individual or agency.

6. In the context of describing the purpose and timing of a dispositional hearing, K.S.A.2012 Supp. 38–2253(b) provides that an order of disposition may be entered at the time of the adjudication but no later than 30 days following adjudication, unless delayed for good cause shown.

7. K.S.A.2012 Supp. 38–2256 authorizes the court to rehear any order of disposition on its own motion or the motion of any party or interested party, after which the court may enter any dispositional order authorized by the Revised Kansas Code for the Care of Children.

8. K.S.A.2012 Supp. 38–2264(f) authorizes the court to rescind any of its prior dispositional orders and enter any dispositional order authorized by the Revised Kansas Code for the Care of Children upon a finding by the court that reintegration continues to be a viable alternative.

9. When parental rights have been terminated and it appears to the court that adoption is a viable alternative, the court shall either (1) enter an order granting custody of the child to the Kansas Department for Children and Families for adoption placement or (2) enter an order granting custody

[316 P.3d 774]

of the child to proposed adoptive parents and consenting to the adoption of the child by the proposed adoptive parents. K.S.A.2012 Supp. 38–2270(a).

10. Pursuant to K.S.A.2012 Supp. 38–2270(a)(1), if the district court grants custody of a child to an authorized agency, the custodial agency thereafter may give its consent for adoption without further consent of the court or any other entity or individual.

11. K.S.A.2012 Supp. 38–2264(h) provides that the district court presiding over a permanency hearing continues to maintain supervisory authority over the case even when an agency has been granted legal custody for adoption because the Revised Kansas Code for the Care of Children requires the court to conduct periodic permanency hearings to assess the progress being made toward adoption.

12. If, after the district court enters an order terminating parental rights, the court determines that reasonable efforts or progress have not been made toward finding an adoptive placement with a fit and willing relative, K.S.A.2012 Supp. 38–2264(h) allows the court to rescind its prior orders of custody for adoption placement and make other orders regarding custody and adoption that are appropriate under the circumstances.

13. The reasonable efforts and reasonable progress standards as provided in K.S.A.2012 Supp. 38–2264(h), encompass not only efficiency in finding an adoptive placement with a suitable family member who is willing and able to take on the responsibility, but also encompass consideration of all family members as potential adoptive resources in both a timely and consistent manner.

14. Dispositional orders subject to appeal under K.S.A.2012 Supp. 38–2273(a) include a dispositional order entered within 30 days following adjudication as well as any other dispositional order authorized by the Revised Kansas Code for the Care of Children.

15. An appellate court generally does not decide moot questions or render advisory opinions.

16. Under the Revised Kansas Code for the Care of Children, the district court continues to have jurisdiction over all issues in the case that are not specifically appealed while a case is on appeal from the district court. Nevertheless, K.S.A.2012 Supp. 38–2274(b) permits the district court to modify a decision that is being reviewed on appeal so long as the modification is temporary in nature, relates to the care and custody of the child, and is considered advisable by the court.

17. A judgment is void, and therefore a nullity, if the court that rendered it lacked subject matter jurisdiction.

18. The appellate courts review findings of fact to determine whether they are supported by substantial competent evidence. Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion.

19. Enacted by all 50 states, the District of Columbia, and the Virgin Islands, the Interstate Compact on the Placement of Children (ICPC), K.S.A. 38–1201 et seq., is a uniform law that provides for cooperation between states in placing children between states.

20. Article III(b) of K.S.A. 38–1202 states that before an agency can send a child into another state for placement in foster care or for a possible adoptive placement, the agency must furnish the appropriate public authorities in the receiving state a written notice of intention to send the child.

21. If an agency seeks to send a child into another state for adoptive placement, Article III(b)(4) of K.S.A. 38–1202 requires the agency to send evidence to the receiving state that will prove such agency possesses the legal authority necessary to make an adoption placement for that particular child.

22. Pursuant to K.S.A.2012 Supp. 38–2264(h), it is only after the district court finds the Kansas Department for Children and Families has failed to make reasonable efforts or progress towards finding an adoptive placement with a fit and willing relative that the court is authorized to rescind or enter a new order of custody for adoption.

[316 P.3d 775]

Lynnette A. Herrman, of Beall & Mitchell, L.L.C., of Wichita, for appellants H.G. and D.G.

Kellie E. Hogan, of Kansas Legal Services, for appellees S.D. and D.D.

Before MALONE, C.J., McANANY and STANDRIDGE, JJ.

STANDRIDGE, J.

H.G. and D.G. (Maternal Cousins) appeal from the district court's order (1) finding that the Department of Social and Rehabilitation Services (SRS) failed to make reasonable efforts or progress toward finding an adoptive placement for N.A.C., (2) removing N.A.C. from the custody of SRS for adoptive placement, and (3) granting custody directly to S.D. and D.D. (Foster Parents) with court approval to adopt. For the reasons stated below, we conclude the court's finding regarding the lack of reasonable efforts by SRS toward finding an adoptive placement is not supported by substantial competent evidence, which in turn divested the court of its legal authority to remove N.A.C. from SRS custody for adoptive placement or grant legal custody directly to Foster Parents for adoption. Accordingly, we reverse the district court's finding regarding reasonable efforts, vacate the court's orders regarding custody, and remand the cause while the Department for Children and Families proceeds with and finalizes adoption placement. (The Department of Social and Rehabilitation Services was reorganized and renamed as the Department for Children and Families on July 1, 2012. For purposes of this opinion, we shall refer to the agency as SRS throughout.)

Facts

On November 2, 2011, Mother gave birth to N.A.C. on the sidewalk in front of a sandwich shop in Wichita, Kansas. N.A.C. was born 6 weeks premature, weighed less than 5 pounds, and tested positive for cocaine. N.A.C. was placed into police protective custody that same day.

On November 4, 2011, the district court filed an ex parte order placing N.A.C. in the protective custody of SRS. Later that day, the State filed a petition seeking to adjudicate N.A.C. as a child in need of care. The petition alleged that Mother had a history of substance abuse and prostitution and that other children previously had been removed from her care. After proper notice was provided to all known interested parties, a temporary custody hearing was held on November 7, 2011, and the court placed N.A.C. in the temporary custody of SRS for out-of-home foster care placement. Thereafter, SRS moved N.A.C. to a foster care placement with Foster Parents, and the case was referred to Youthville for management.

In late November 2011, Maternal Cousins, who lived in Idaho, contacted Youthville and advised the social worker in the foster care unit working on N.A.C.'s case that they were interested in adopting N.A.C. Youthville informed Maternal Cousins that before N.A.C. could be placed with them for purposes of adoption, an Interstate Compact on the Placement of Children (ICPC) request formally seeking an adoption placement would need to be made by Kansas and approved by Idaho. Youthville further informed Maternal Cousins that the ICPC process for adoption placement (as opposed to a foster care placement) could not be pursued until parental rights were terminated.

On December 1, 2011, the court held a hearing at which it adjudicated N.A.C. a child in need of care. A disposition hearing was held on January 5, 2012. The journal entry of disposition ordered N.A.C. to remain in the custody of SRS for out-of-home foster care placement until further written order of the court. With regard to permanency, the journal entry required SRS and Youthville to ensure the biological parents received the...