J.L., In Interest of

• Decision Date: 10 March 1995
• Docket Number: No. 71913,71913
• Parties: In the Interest of J.L. and D.L.
• Court: Kansas Court of Appeals

Page 1125

891 P.2d 1125

20 Kan.App.2d 665

In the Interest of J.L. and D.L.

No. 71913.

Court of Appeals of Kansas.

March 10, 1995.

Review Denied May 4, 1995.

Syllabus by the Court

1. A prior child in need of care adjudication is a mandatory prerequisite to the termination of the parent/child relationship.

2. A parent's right to the custody and control of his or her children is a liberty interest protected by the Fourteenth Amendment to the United States Constitution.

3. When the State seeks to terminate the parent/child relationship, it must do so by fundamentally fair procedures that meet the requirements of procedural due process.

4. In determining whether the requirements of procedural due process have been satisfied, the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976), and In re Cooper, 230 Kan. 57, 67, 631 P.2d 632 (1981), must be applied.

5. The question of whether a process is due under certain circumstances is a question of law.

6. The presumption of unfitness as provided by K.S.A.1994 Supp. 38-1585(a)(1) and (3) as applied in this case violated the procedural due process rights of the natural mother whose parental rights were terminated.

7. The court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.

8. Prior to applying the presumption of unfitness as contained in K.S.A.1994 Supp. 38-1585, the trial court must first determine whether the presumption, as it applies to the case under consideration, is a K.S.A. 60-414(a) or (b) presumption.

9. If the presumption is determined by the trial court to be a K.S.A. 60-414(a) presumption, it will operate in the manner set forth in K.S.A.1994 Supp. 38-1585.

10. If the presumption is determined by the trial court to be a K.S.A. 60-414(b) presumption, it will cease to exist upon the introduction of any evidence of the nonexistence of the presumed fact, including the uncorroborated testimony of the parent whose rights are under consideration.

11. The determination of whether the presumption is a K.S.A. 60-414(a) or (b) presumption is a question of law.

12. The eight-year-old termination case on which the presumption in this case was based was, as a matter of law, a K.S.A. 60-414(b) presumption and was rebutted by the evidence submitted by the natural mother.

Robert E. Diehl, Hays, for appellant.

Thomas J. Drees, Asst. County Atty. and Robert T. Stephan, Atty. Gen., for appellee.

Willis K. Musick, Hays, guardian ad litem.

Before PIERRON, P.J., and GERNON and LEWIS, JJ.

LEWIS, Judge:

D.L.C. is the natural mother of J.L. and D.L. Her parental rights to these children were terminated by the trial court. She appeals from that decision.

The facts on which the trial court based its severance of D.L.C.'s parental rights are not extensive. On February 6, 1986, D.L.C.'s parental rights to another child were terminated. The 1986 severance took place in the same trial court and before the same judge who presided in the instant matter. As its only proof in these proceedings, the State introduced a certified copy of the 1986 order terminating D.L.C.'s parental rights. The State offered no other evidence. The State argued that the evidence entitled it to a presumption of unfitness under K.S.A.1994 Supp. 38-1585(a)(1). The trial court agreed and additionally took judicial notice of "several cases" in which at least two other children of D.L.C. had been found to be children in need of care. The "several cases" referred to by the court are not identified by case number, and apparently no formal proof was made concerning those proceedings. In any event, the trial court concluded the State was entitled to a presumption of unfitness under K.S.A.1994 Supp. 38-1585(a)(1) and (3). It found that as a result of the presumption of unfitness provided by the statute, "the burden of proof is on the respondent, [D.L.C.], to present evidence to rebut the presumption that she is an unfit parent." D.L.C. did attempt to rebut that presumption and presented evidence in support of her position. The trial court held that D.L.C. had failed to rebut the presumption and terminated her parental rights to the children in question. Thus, D.L.C.'s parental rights were terminated upon a showing that her parental rights to another child were terminated eight years previously.

SEVERANCE AS TO D.L.

For reasons which are not relevant, D.L.C.'s rights to D.L. were terminated before D.L. had been adjudged to be a child in need of care. All parties to this appeal agree that D.L. has never been adjudicated a child in need of care. This failure requires that we reverse the termination as to D.L.

K.S.A.1994 Supp. 38-1583 provides in part: "(a) When the child has been adjudicated to be a child in need of care, the court may terminate parental rights." This court has held that "a child in need of care adjudication is required to terminate parental rights." In re D.V., 17 Kan.App.2d 788, 790, 844 P.2d 752, rev. denied 252 Kan. 1092 (1993).

The State concedes that the failure to determine D.L. to be a child in need of care is fatal to the termination order as to D.L. The guardian ad litem asks us to declare that a child in need of care determination is not necessary but cites no authority to support his position. The position of the guardian ad litem is without merit.

The order terminating D.L.C.'s parental rights is reversed, and this matter is remanded as to D.L. for appropriate action to determine if she is a child in need of care.

CONSTITUTIONALITY OF K.S.A. 38-1585(a)(1) and (3)

D.L.C. argues that the presumption of unfitness provided for in K.S.A.1994 Supp. 38-1585(a)(1) and (3) is an unconstitutional violation of her due process rights under the Fourteenth Amendment to the United States Constitution. We agree that the statute as construed and applied in this case violated the procedural due process rights of the natural mother.

K.S.A.1994 Supp. 38-1585 provides in relevant part:

"(a) It is presumed in the manner provided in K.S.A. 60-414 and amendments thereto that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes by clear and convincing evidence that:

(1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 38-1581 et seq. and amendments thereto, or comparable proceedings under the laws of another state, or the federal government;

....

(3) on two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care as defined by subsection (a)(3) of K.S.A. 38-1502 and amendments thereto;

....

"(b) The burden of proof is on the parent to rebut the presumption. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall now terminate the parent's parental rights in proceedings pursuant to K.S.A. 38-1581 et seq. and amendments thereto."

Ultimately, we believe that the reference to K.S.A. 60-414 is of vital importance, and that analysis will follow. For the time being, we focus only on the manner in which the presumption was applied by the trial court. This case presents a factual situation wherein D.L.C. was declared to be unfit in 1994 because she was declared to be unfit in 1986. The question presented to this court is whether an eight-year-old adjudication may constitutionally shift the burden of proof from the State to the mother. We have examined the record, and there was no effort in this case to compare the 1986 facts with the 1994 facts. No consideration was given to the fact that the 1986 proceeding did not involve the same children who were the subject of the 1994 proceeding. In fact, the State was permitted to carry its entire burden of proof simply by introducing a certified copy of the termination journal entry from 1986.

The question involved in this case is whether the procedural due process rights of the natural mother were violated. The term procedural due process is defined by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976): "Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment."

The Supreme Court in Mathews went on to describe the process by which courts may judge whether an individual's right to procedural due process has been violated:

"These decisions underscore the truism that ' "[d]ue process," unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230] (1961). '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.' Morrissey v. Brewer, 408 U.S. 471, 481 [92 S.Ct. 2593, 2600, 33 L.Ed.2d 484] (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. [Citations omitted.] More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative...