In re H.R.B.

43 P.3d 887, 30 Kan. App. 2d 599, 2002 Kan. App. LEXIS 330
CourtCourt of Appeals of Kansas
DecidedApril 12, 2002
DocketNo. 87,290
StatusPublished
Cited by7 cases

This text of 43 P.3d 887 (In re H.R.B.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re H.R.B., 43 P.3d 887, 30 Kan. App. 2d 599, 2002 Kan. App. LEXIS 330 (kanctapp 2002).

Opinion

Johnson, J:

The Department of Social and Rehabilitation Services (SRS) appeals the termination of the parental rights of H.R.B.’s natural father (hereafter “Father”). The action was a “pri[600]*600vate” childinneed of care (CINC) proceeding initiated by Ii.R.B.’s natural mother (hereafter “Mother”). SRS was not notified of the CINC proceeding and, therefore, did not participate, thus giving rise to a question as to SRS’s standing to bring this appeal. SRS wants to generally challenge the concept of a private termination and specifically challenge the sufficiency of the evidence to support a termination in this case. We dismiss the appeal.

H.R.B. was bom on December 5, 2000, in Manhattan, Kansas. His parents were never married; his father was in the military, stationed in Kansas. During Mother’s pregnancy, Father told Mother he did not want to be involved in any part of the child’s life. After being notified of H.R.B.’s birth, Father made good on his pledge to abdicate all parental responsibility; he refused to have any contact with the baby and provided no financial support. Father’s intentions were to leave the military and the state of Kansas within 6 months of the child’s birth and to remain permanently separated from the child.

Four months after H.R.B.’s birth, Mother filed a petition alleging H.R.B. was a child in need of care with respect to Father and requesting termination of Father’s parental rights. The motion alleged that Father did not want to be H.R.B.’s parent; that he had refused all communication with H.R.B.; and that he wanted to be permanently separated from H.R.B., both physically and emotionally. Father voluntarily entered his appearance and waived his rights and privileges under the Soldiers’ and Sailors’ Civil Relief Act of 1940. 50 U.S.C. § 501 et seq. (1994). Although allegedly providing H.R.B. medical assistance at the time, SRS was not notified of the proceeding.

As required in a CINC proceeding, a guardian ad litem (GAL) was appointed to represent the best interests of H.R.B. At the April 18, 2001, hearing, Mother, Father, and GAL were present and agreed to the termination of Father’s rights. Evidence was presented through a proffer, but the district court independently questioned Father. After determining Father’s actions were voluntary and that he understood the consequences of a parental termination, the district court granted the petition. The journal entry terminating Father’s parental rights was filed May 3, 2001.

[601]*601On May 30,2001, SRS filed an entry of appearance in the district court, claiming to be the assignee of Mother s support rights against Father. Contemporaneously, SRS filed a notice of appeal.

Appellees filed a motion to dismiss the appeal, claiming SRS had no standing. This court directed that the standing issue would be considered by the assigned panel and that the parties should brief the issue.

Our initial concern is that the issue of standing was not presented to the district court. SRS did not seek relief from the trial court; it simply filed an entry of appearance and appealed. Normally, issues not raised before the trial court cannot be raised on appeal. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999). Here, the rationale for such a rule is exemplified by the absence of SRS’s factual allegations in the record, e.g., proof that SRS provided medical assistance to H.R.B. was not submitted to the district court. As with many general rules, however, there are exceptions. See Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 622-23, 938 P.2d 1293 (1997).

In a K.S.A. Chapter 60 proceeding, we would expect SRS to commence its attack on the termination order in the district court. See, e.g., K.S.A. 60-260(b). However, CINC actions are governed by Chapter 38, and neither the statutes nor our case law malee it dear to what extent, if any, the Chapter 60 Code of Civil Procedure applies to CINC proceedings. Further, time is of the essence in cases involving parental rights; children are entitled to the stability of an expedient and final decision on the legal standing of their parents. We believe consideration of the issue is necessary to serve the ends of justice or to prevent denial of fundamental rights. See Jarboe, 262 Kan. at 622.

Whether SRS has standing to appeal involves the interpretation of various statutes; statutory interpretation is a question of law, subject to unlimited appellate review. See In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, Syl. ¶ 1, 913 P.2d 213 (1996).

SRS claims to be a “party in interest” in any action under the Kansas Code for Care of Children, K.S.A. 38-1501 ei seq., because all such proceedings are brought in the exercise of the parental [602]*602power of the State. SRS points to the first section of the code for authority that the best interests of the State are not to be ignored:

“K.S.A. 38-1501 through 38-1593 shall be known as and may be cited as the Kansas code for care of children and shall be liberally construed, to the end that each child within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state. All proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state. Proceedings pursuant to this code shall be civil in nature.” (Emphasis added.) K.S.A. 38-1501.

SRS asserts the State is per se defined as a “party in interest” by the code:

“As used in this code, unless the context otherwise indicates:
“(e) ‘Interested party’ means the state, the petitioner, the child, any parent, any grandparent and any person found to be an interested party pursuant to K.S.A. 38-1541 and amendments thereto.” (Emphasis added.) K.S.A. 2001 Supp. 38-1502.

Appellees suggest the statutory references to the “state” in the CINC code mean the district or county attorney, not SRS. The same definition statute to which SRS points contains a definition for “Secretary,” which is defined as the Secretary of Social and Rehabilitation Services. K.S.A. 2001 Supp. 38-1502(o). “Secretary” is not, however, listed in the definition of “[interested party.” Further, K.S.A.

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Bluebook (online)
43 P.3d 887, 30 Kan. App. 2d 599, 2002 Kan. App. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hrb-kanctapp-2002.