In re R.J., 011521 KSCA, 122, 230

Docket Nº:122, 230
Opinion Judge:PER CURIAM:
Party Name:In the Interest of R.J., A Minor Child.
Attorney:Anita Settle Kemp, of Wichita, for appellant father and father, appellant pro se. Jennifer M. Hill, of McDonald Tinker PA, of Wichita, for appellee.
Judge Panel:Before Buser, P.J., Atcheson, J., and Burgess, S.J.
Case Date:January 15, 2021
Court:Court of Appeals of Kansas

In the Interest of R.J., A Minor Child.

No. 122, 230

Court of Appeals of Kansas

January 15, 2021


Appeal from Sedgwick District Court; Kevin M. Smith, judge.

Anita Settle Kemp, of Wichita, for appellant father and father, appellant pro se.

Jennifer M. Hill, of McDonald Tinker PA, of Wichita, for appellee.

Before Buser, P.J., Atcheson, J., and Burgess, S.J.



This is an appeal of the district court's judgment finding that R.J., a minor child born in 2006, is a child in need of care as to his Father and that due to Father's unfitness, his parental rights should be terminated. On appeal, Father raises several procedural issues and matters challenging the sufficiency of the evidence. Upon our review, we conclude that none of the issues raised by Father merit the reversal of the district court's judgment. Accordingly, we affirm.

Brief Factual and Procedural Background

On November 20, 2018, Mother filed a combined pleading comprised of a private child in need of care (CINC) petition on behalf of her son, R.J., and a motion to terminate Father's parental rights. The district court appointed an attorney to represent Father. Pretrial hearings were held at which time the district court issued rulings which are discussed in the analysis section of this opinion. On September 5, 2019, four days before the termination hearing, Father filed a pro se counter petition for termination of parental rights in which Father made several claims against Mother. The counter petition is not an issue in this appeal.

On September 9, 2019, the district court held a hearing on the combined motion relating to Father's parental rights to R.J. After addressing pretrial issues, which are discussed later in this opinion, Mother presented the testimony of Amy Meek, a licensed therapist who began counseling R.J. in July 2018. This counseling continued to the time of the termination hearing.

As detailed later during her testimony, Meek opined about R.J.'s mental and physical health, his feelings towards Father, and his issues with safety, trust, and trauma. Meek testified that, in her opinion, it was in R.J.'s best interests to terminate Father's parental rights. Mother rested her case at the end of Meek's testimony.

Father was the sole witness in his case in chief. Among other topics, Father testified he was currently incarcerated after a jury convicted him in 2012 of two counts of solicitation to commit murder in the first degree. The proposed victim of the scheme was Father's ex-wife and R.J.'s mother. Although Father was unsuccessful in his direct appeal, he indicated he had filed a motion to correct an illegal sentence before the Kansas Court of Appeals, and a habeas corpus action was pending before the federal district court. As a result, Father testified he was "100 percent confident" his criminal convictions would be reversed, and he would be out of prison sometime before March 4, 2022-his earliest possible release date.

At the conclusion of the evidence, the district court found Father was unfit to parent R.J. under K.S.A. 2019 Supp. 38-2269(b)(4), (b)(5), (b)(7), (b)(8), (c)(2), (c)(3), and (d). In particular, the district court found Father's solicitation attempts to murder Mother "inflicted severe psychological abuse upon the child" under subsection (b)(4) and Father's convictions qualified to establish unfitness under subsection (b)(5) because the convictions were severity level 3 person felonies. The district court also found that based on Father's release date, R.J. probably will not see Father until after he is 18 years old. Upon considering child time and the physical, mental, and emotional health of R.J., the district court concluded it was in R.J.'s best interests to terminate Father's parental rights. Regarding the CINC petition, the district court specifically made findings under K.S.A. 2019 Supp. 38-2202(d) and K.S.A. 2019 Supp. 38-2251 in concluding that R.J. was a child in need of care.

Father appealed and was appointed appellate counsel who filed a brief on his behalf. Subsequently, Father also filed a pro se supplemental brief.

Procedural Issues

At the outset, Father raises a variety of procedural issues relevant to the proceedings in the district court. We will address those issues individually.

Jurisdiction and Venue of the Proceedings

In his pro se supplemental appellate brief, Father claims that Sedgwick County was not the proper jurisdiction or venue to conduct these proceedings. Father initially sought to transfer venue from Sedgwick County District Court to Johnson County District Court at the January 2019 hearing. He argued the proceedings should be transferred to Johnson County because that is the county which had jurisdiction over Father's criminal case and Mother and Father's divorce action. In response, Mother argued that venue was statutorily authorized under K.S.A. 2019 Supp. 38-2204(a) because Mother and R.J. resided in Sedgwick County when the petition was filed. The district court denied Father's motion and held that jurisdiction and venue were appropriate in Sedgwick County.

On appeal, Father contends the Sedgwick County District Court lacked jurisdiction to consider this CINC action because the Johnson County District Court had acquired jurisdiction when it "issued orders, e.g., protective custody and removal of [R.J.] from custody of Mother" and this jurisdiction "still is continuous over [R.J.]." Father also asserts that venue was improper in Sedgwick County because he does not reside there and his home "remain[s] in Johnson County, KS" despite his incarceration in Hutchinson.

Whether jurisdiction exists is a question of law over which our court's scope of review is unlimited. In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017). Venue is a matter of jurisdiction. State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). Whether venue is proper is a question of law over which an appellate court has unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006); McElroy, 281 Kan. at 264. In Kansas, statutes determine the proper venue for CINC proceedings. The interpretation and application of a statute is likewise a question of law over which an appellate court has unlimited review. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).

Under K.S.A. 2019 Supp. 38-2203(c), a district court "acquires jurisdiction over a child by the filing of a petition pursuant to this code." The jurisdiction "may continue" until the child becomes 18 years old, has been adopted, or has been discharged by the court. K.S.A. 2019 Supp. 38-2203(c). Moreover, relevant to this appeal, as a general rule, any order issued under the revised Kansas Code for Care of Children (KCCC) "shall take precedence over such orders in a civil custody case." K.S.A. 2019 Supp. 38-2203(f). As a result, as opposed to Johnson County, the Sedgwick County District Court correctly determined it had jurisdiction upon the filing of the CINC petition in Sedgwick County.

Sedgwick County was also the appropriate venue to file the CINC petition. Under K.S.A. 2019 Supp. 38-2204(a): "Venue of any case involving a [CINC] shall be in the county of the child's residence or in the county where the child is found." (Emphasis added.) Here, the record shows R.J. had been living in Sedgwick County for six years. Father concedes Sedgwick County "might be [the] proper venue for the CINC action" but claims it is improper for the "termination of parental rights action" because Father does not live there. But, as stated in K.S.A. 2019 Supp. 38-2204(a), Sedgwick County would be appropriate for termination proceedings because Father's termination is "any case involving a [CINC]." As a result, the district court did not err in finding venue was proper in Sedgwick County and declining to transfer venue to the Johnson County District Court.

Claim of a Due Process Violation

For the first time on appeal, Father contends he was denied due process when the district court failed to hold a separate hearing for adjudicating R.J. as a child in need of care instead of combining the adjudication and termination matters at the time of the termination hearing. Father argues Kansas statutory and common law require adjudication to occur before proceeding to termination and the district court's failure to adhere to this procedure violated his due process rights to "be heard at a meaningful time in a meaningful manner."

This case began with Mother filing a combined pleading comprised of a private CINC petition on behalf of her son, R.J., and a motion to terminate Father's parental rights. The record reveals that, without Father's objection, the adjudication phase and termination phase were combined throughout the pretrial hearings and termination hearing.

On April 12, 2019, the district court held a pretrial conference. At this hearing, the district court inquired whether, given the fact that Father was incarcerated, he wished to stipulate to R.J. being a child in need of care. Father declined. The district court acknowledged Father's position and noted that presentation of evidence about the CINC matter would not take very long and the matter of parental fitness was the principal issue in the proceeding. The district court indicated that the CINC adjudication "will be the first thing we will take up at the hearing."

Three months after the pretrial conference, the district judge initially assigned to the case recused himself and the case was transferred to Judge Kevin M. Smith, who presided over the termination hearing. At the...

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