Woodard, In Interest of

• Decision Date: 11 June 1982
• Docket Number: No. 53747,53747
• Citation: Woodard, In Interest of, 646 P.2d 1105, 231 Kan. 544 (Kan. 1982)
• Parties: In the Interest of Eva WOODARD, A Minor Under 18 Years of Age.
• Court: Kansas Supreme Court

Page 1105

646 P.2d 1105

231 Kan. 544

In the Interest of Eva WOODARD, A Minor Under 18 Years of Age.

No. 53747.

Supreme Court of Kansas.

June 11, 1982.

Syllabus by the Court

1. The juvenile code, K.S.A. 38-801 et seq., as amended, establishes its own complete procedure, separate and apart from the code of civil procedure.

2. This court has long recognized the State's interest in protecting its children and assuring they receive proper care

through the exercise of the doctrine of parens patriae.

3. The exercise of the parens patriae doctrine does not extend to the extreme of severing parental rights without a good faith effort to locate and notify the parents who are to be affected by the court's determination.

4. If feasible, notice must reasonably be calculated to inform parties of proceedings which may directly or adversely affect their legally protected interests.

5. Mere publication service without a showing of necessity is insufficient to support an order severing parental rights.

6. In an action to sever parental rights based upon service by publication under K.S.A. 38-810a(4), it must be affirmatively shown that the party seeking such service exercised reasonable diligence in attempting to identify and locate the parent upon whom such service is desired.

7. If the petitioner in an action to sever parental rights knows the whereabouts of an absent parent, service of summons must be effected by one of the ways specified in K.S.A. 38-810a, other than by publication, so that such parent may receive actual notice of the proceeding.

8. Before service on an absent parent may be made by publication, due process requires a factual showing that, after the exercise of reasonable diligence, other service calculated to give actual notice is not practical.

9. For an appellate court to give meaningful review of whether due process has been afforded in the service of process by publication in a severance of parental rights proceeding, the record should contain the facts upon which the determination to seek publication service was based, and the trial court should include sufficient findings of fact to support its conclusion that reasonable diligence was exercised to locate the absent parent.

10. In an action by the father of an illegitimate child to set aside an order severing his parental rights for a failure to receive due process in the service of summons, the record is examined and it is held the order of the trial court denying the father's motion is reversed and the case is remanded for further proceedings all as set forth in the opinion.

Van Smith, of Smith Law Office, Garden City, argued the cause, and Jay C. Hinkel, Garden City, of the same firm, was with him on the brief for appellant.

John Wheeler, of Soldner & Wheeler, Garden City, guardian ad litem, argued the cause, and Robert T. Stephan, Atty. Gen., Paul D. Handy, County Atty., and Denise Grimes, Asst. County Atty., were with him on the brief for appellee.

Philip C. Vieux, of Owen & Vieux, Garden City, was on the brief amicus curiae.

HOLMES, Justice:

Steve Woodard appeals from an order of the district court denying his motion to set aside a prior order of the court which severed his parental rights to his illegitimate daughter, Eva Woodard. In the original severance proceeding the only service upon appellant, a California resident, was by publication notice in The Garden City Telegram. When Woodard learned, some ten months later, that his parental rights to Eva had been severed he took immediate steps to set aside the order of severance. His motion was denied by the district magistrate judge for failure to take a timely appeal and that ruling was upheld upon appeal by the district judge.

Eva Woodard was born August 26, 1978, in Ukiah, California, the daughter of Caroline Pickett and Steve Woodard. Although Caroline and Steve had lived together for a considerable length of time, they were never legally married. Sometime after the birth of Eva, Caroline and the baby departed from California without informing Woodard and he evidently had no knowledge of their subsequent whereabouts. In the spring and summer of 1979, Caroline and Eva were in Garden City, Kansas, where Eva was left in the care of a day-care provider on several occasions. Caroline was quite negligent about returning to pick up the baby and on one occasion left the baby with Mrs. Nowak, the day-care provider, for nearly five weeks without checking on the child. Mrs. Nowak eventually became concerned about the neglect of the child and on August 15, 1979, contacted the Department of Social and Rehabilitation Services (SRS). After an investigation by an SRS social worker, and after interviewing Caroline, SRS filed a petition on October 1, 1979, seeking to have Eva declared a deprived child. The petition alleged the father was unknown and on the same date the court issued an order of protective custody committing Eva to SRS and temporarily placing the child with Mr. and Mrs. Nowak. Caroline has shown very little interest in the child or in the court proceedings and has not appealed any of the lower court's orders.

On October 29, 1979, on oral motion of the county attorney's office, an order was entered authorizing the filing of an amended petition to seek severance of the parental rights of both parents. The amended petition, filed November 20, 1979, named Steve Woodard as the father but asserted that the whereabouts of the father were unknown. In an order filed the previous day Mr. Van Smith, a respected member of the bar of Kansas, was appointed to represent Steve Woodard. A guardian ad litem for Eva had been appointed since the outset of the proceedings and the mother was also represented by appointed counsel. The publication notice directed to "Steve Woodard and all other persons who are or may be concerned" was published November 29th and December 6th, 1979, in The Garden City Telegram and advised that the petition for severance of parental rights would be heard by the court on January 22nd, 1980, at 9:00 o'clock a. m. On October 30th, 1979, the court had apparently entered another order based upon a motion of the deputy county attorney seeking to amend the petition and seeking service upon Steve Woodard by publication. This order, which was not filed until December 18, 1979, appears to be based upon an undated motion filed November 16, 1979, some seventeen days after the court ruled on the motion. In the motion of the deputy county attorney it is alleged "The movant further prays that the Court shall allow it to serve notice upon Steve Woodard by publication, for the reason that after due diligence the movant is unable to ascertain the whereabouts of said Steve Woodard." Based upon this November 16, 1979, motion the court order of October 30, 1979, states:

"5. The presence as a party in this matter of Steve Woodard, natural father of Eva Woodard, is essential. Due to the unknown whereabouts of said Steve Woodard, service by publication as per K.S.A.1978 Supplement 38-810a is proper."

There are no findings of fact as to the attempt made, if any, to locate the father and no showing or finding of due diligence is contained in the order. It is interesting to note that the court's order was originally dated November 30, 1979, which would have been appropriate considering the motion was filed November 16, 1979. However, it soon became apparent to someone that there was a problem in that the first publication was November 29, 1979, one day prior to the order authorizing such service. Evidently alert counsel recognized the problem and crossed out November and inserted October in the order, which resulted in the order predating the motion upon which the order was based. Whether these procedural gymnastics were an after-the-fact attempt to clean up what is a woefully inadequate record we do not know. Despite the many procedural inaccuracies it appears that the severance hearing was heard by the court on the appointed date, January 22, 1980. Steve Woodard was represented by his counsel Mr. Van Smith, Eva Woodard by her guardian ad litem, and Caroline Pickett by her appointed counsel. Findings of fact and conclusions of law were filed February 28, 1980, and a journal entry of judgment was filed March 12, 1980.

In its findings of fact the court found that Eva was born August 26, 1977, and that Steve Woodard had failed to provide any parental support for at least two years. Eva was actually born August 26, 1978, and was less than seventeen months old at the time of the hearing. In fairness to the trial judge, it should be pointed out that the court may have been misled by the proposed findings of fact, filed by the deputy county attorney, which contained these inaccuracies. In its conclusions of law, the court found that Eva was a deprived child and that the parental rights of Caroline Pickett and Steve Woodard should be permanently severed. In the journal entry of judgment the court incorporated the findings of fact and conclusions of law previously filed and in addition found:

"3. The Court finds that the parental rights of Carolyn Pickett and Steve Woodard, natural mother and natural father of Eva Woodard should be permanently and totally severed in that the said natural parents are found by the Court to be unfit parents and not proper persons to have the care, custody and control of the said child, Eva Woodard."

No appeal was ever taken from the January 22, 1980, order. Shortly before October 20, 1980, Caroline wrote to Steve and advised him she no longer had the baby and that it had been taken from her in court proceedings. He immediately contacted the county attorney and was advised to call his appointed counsel Van Smith. On October 20, 1980, Mr. Smith, at Woodard's request, filed a motion to set aside the order of January 22, 1980, and to restore Woodard's parental rights. Woodard alleges Caroline testified falsely about her lack of knowledge of his whereabouts...