In re A.E.S.

• Decision Date: 05 April 2013
• Docket Number: No. 108,108.,108,108.
• Citation: 298 P.3d 386,48 Kan.App.2d 761
• Parties: In the Interest of A.E.S., d.o.b. XX/XX/1998, a Female.
• Court: Kansas Court of Appeals

48 Kan.App.2d 761

298 P.3d 386

In the Interest of A.E.S., d.o.b. XX/XX/1998, a Female.

No. 108,108.

Court of Appeals of Kansas.

April 5, 2013.

Syllabus by the Court

1. As a general rule, Kansas appellate courts do not decide moot questions or render advisory opinions.

2. A case is moot when a justiciable controversy no longer exists. A justiciable controversy has definite and concrete issues between the parties and adverse legal interests that are immediate, real, and amenable to conclusive relief.

3. A question on appeal regarding the sufficiency of evidence to support a temporary custody order under K.S.A. 2011 Supp. 38–2243(f)(3) is rendered moot by the subsequent entry of an order of adjudication and an agreed order of disposition.

4. The mootness doctrine is not jurisdictional and is subject to exceptions.

5. An appellate court may review a moot issue which is capable of repetition and raises concerns of public importance.

6. Whether to entertain and determine a moot issue is within the discretion of the appellate court.

7. A challenge to the constitutionality of K.S.A. 2011 Supp. 38–2243, the statute governing temporary orders in child in need of care cases, raises an issue subject to repetition and raises a concern of public importance.

8. As a general rule, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review.

9. Under a recognized exception to the general rule, an appellate court may consider a constitutional issue raised for the first time on appeal if consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights.

10. The interest of parents in the care, custody, and control of their children is a fundamental liberty interest, and a constitutional challenge involving such interest may be heard for the first time on appeal.

11. The constitutionality of a statute is a question of law to which this court applies a de novo standard of review.

12. A statute is presumed to be constitutional, and all doubts must be resolved in favor of its validity.

13. K.S.A. 2011 Supp. 38–2243(f)(3) is neither unconstitutionally vague nor overbroad and does not violate the due process guarantee of the 14th Amendment to the United States Constitution.

Rebekah Gaston, of Lawrence, for appellant M.S.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellee guardian ad litem.

Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.

HEBERT, J.

M.S., the father of the minor child A.E.S., appeals from an order entered by the District Court of Douglas County granting temporary custody of A.E.S. to Social and Rehabilitation Services (SRS). M.S. argues that K.S.A. 2011 Supp. 38–2243(f)(3), which allows a court to enter an order of temporary custody in a child in need of care (CINC) case, is unconstitutionally vague and overbroad. M.S. also argues that the evidence was insufficient to support the district court's findings and orders. The State argues that the appeal should be dismissed as moot. The guardian ad litem (GAL) argues that this court should retain the appeal to consider the constitutional arguments.

For the reasons hereinafter set forth, we find that M.S.'s appeal is moot, since the temporary order has been superseded by subsequent orders of adjudication and disposition. However, pursuant to an exception to the mootness doctrine, we retain the appeal to consider the constitutional issues raised and find that K.S.A. 2011 Supp. 38–2243(f)(3) is neither unconstitutionally vague nor overbroad.

Procedural Background

On February 22, 2012, SRS filed an application pursuant to K.S.A. 2011 Supp. 38–2242 for an ex parte order of protective custody for A.E.S., a minor child born in 1998. On February 24, 2012, the district court conducted a temporary custody hearing. The court found probable cause existed to believe the health and welfare of A.E.S. may be endangered without further care pending a formal CINC hearing. Pursuant to K.S.A. 2011 Supp. 38–2243, the court placed A.E.S. in the temporary custody of SRS pending a formal CINC hearing which was scheduled for April 24, 2012.

M.S. filed a timely appeal from the order of temporary custody.

The formal CINC hearing was convened on June 11, 2012, and after an intervening continuance, was concluded on July 17, 2012. A.E.S. was adjudicated as a CINC and was specifically ordered to remain in the custody of SRS. The court took some dispositional evidence and continued the dispositional hearing to September 28, 2012, due to time constraints.

On September 28, 2012, the parents of A.E.S., their attorneys, the GAL, and the assistant district attorney appeared and requested the court approve an agreed order of disposition. The court's approval was memorialized in a “Combined Journal Entry of Disposition” filed on October 25, 2010. The agreed order sets forth that the father, M.S., supports the agreement and participated in its development through his attorney. The agreed order provided that custody of A.E.S. “shall remain vested with the Secretary [of SRS],” and further determined that “[r]eturning the child to a parental home on a full-time basis is contrary to the child's welfare.” The detailed journal entry set forth the terms and conditions that the parents would have to meet in order to reintegrate the family. A permanency hearing was scheduled for February 11, 2013.

Upon motion of the State, the combined journal entry of disposition was added to the record on appeal pursuant to Supreme Court Rule 3.02(d)(3) (2012 Kan. Ct. R. Annot. 18). M.S. conceded the propriety of the addition.

M.S.'s Appeal of the Temporary Custody Order Is Moot

An order of temporary custody is an order from which a party may take an appeal. K.S.A. 2011 Supp. 38–2273(a); In re D.I.G., 34 Kan.App.2d 34, 114 P.3d 173 (2005). The State does not suggest otherwise but argues that the temporary custody issue is moot because of the subsequent adjudication and disposition orders.

A case is moot when a justiciable controversy no longer exists. See State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009). “A justiciable controversy has definite and concrete issues between the parties and ‘adverse legal interests that are immediate, real, and amenable to conclusive relief.’ ” State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).

Our Supreme Court recently addressed the mootness doctrine in State v. Hilton, 295 Kan. 845, 848–49, 286 P.3d 871 (2012):

“Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011). That doctrine, however, is not a question of jurisdiction. Rather, this court has previously described the mootness doctrine as a court policy, which recognizes that the role of a court is to “ ‘determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.’ ” State v. Bennett, 288 Kan .... [at] 89, 200 P.3d 455 ... (quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996] ).

“A court policy necessarily comes about through prior opinions of the court, i.e., the mootness doctrine developed through court precedent. Accordingly, our review is unlimited. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) (‘To the extent our decision involves ... the interpretation and application of ... court precedent, we are resolving questions of law and, thus, exercising unlimited review. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 [2006].’).”

Under K.S.A. 2011 Supp. 38–2243, the terms “order of temporary custody,” “adjudication,” and “disposition” are terms of art each carrying its own meaning. See In re D.M.M., 38 Kan.App.2d 394, 398, 166 P.3d 431 (2007). The “order of temporary custody” is the first step in a sequence, wherein the court identifies the person or agency that will have temporary custody of a child determined to be in need of protection. See In re C.E., 47 Kan.App.2d 442, 448, 275 P.3d 67 (2012). Such order covers the period of time until an “adjudication” which is the next step in the sequence where the court determines if the child is a CINC. If the child is found not to be a CINC, the proceedings are dismissed. K.S.A. 2011 Supp. 38–2251(a). If, however, the child is found to be a CINC the court enters an “ adjudication order” and proceedsto a “disposition.” K.S.A. 2011 Supp. 38–2251(b). The temporary custody order may remain in effect until disposition, or the court may modify the order of custody at adjudication.

In this case, the court issued a temporary order placing A.E.S. in the temporary custody of SRS. Although M.S. filed an appeal from this temporary order, there is no provision to stay the CINC proceeding pending such an appeal. The court subsequently adjudicated A.E.S. as a CINC and specifically ordered that she remain in SRS custody pending disposition. An order of adjudication is also an appealable order under K.S.A. 2011 Supp. 38–2273(a). The specific reference to continuation of custody with SRS would supersede the temporary custody order and would eliminate any remaining justiciable controversy regarding custody arising from the temporary order.

But our consideration need not stop here. The district court proceeded to the next step of the CINC process and entered the combined journal entry of disposition as proposed by all parties on September 28, 2012. M.S. concedes that this journal entry is properly added to the record on appeal pursuant to Supreme Court Rule 3.02, and thus, is properly within our review.

As noted above, the combined journal entry...