In the Interest of A.F.

172 P.3d 63, 38 Kan. App. 2d 742, 2007 Kan. App. LEXIS 1152
CourtCourt of Appeals of Kansas
DecidedDecember 7, 2007
DocketNo. 97,929
StatusPublished
Cited by13 cases

This text of 172 P.3d 63 (In the Interest of A.F.) 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 the Interest of A.F., 172 P.3d 63, 38 Kan. App. 2d 742, 2007 Kan. App. LEXIS 1152 (kanctapp 2007).

Opinion

Leben, J.:

Cases that involve children are challenging for eveiyone. The children must be protected. Their rights — as well as those of the parents and others with an interest in them — must be protected. And the legal process must move with some dispatch so that disputes may be resolved within a reasonable time frame, even as time is perceived by a child.

Our challenge here is to decide whether the dispute presented to us may even be heard in our appellate court at all. The child in this case, 3-year-old A.F., was placed into the custody of the Kansas Department of Social and Rehabilitation Services (SRS) on the day she was bom. The district court found an emergency situation existed because A.F.’s mother did not have a fit home to bring her new daughter home to. A.F. has remained in SRS custody ever since.

[743]*743The rights of A.F.’s parents were terminated in March 2006 when A.F. was 16 months old. The court granted custody to SRS, giving it the authority to find an adoptive home for A.F. and to approve that adoption: K.S.A. 38-1584(b)(l)(A) provides in this circumstance that SRS may “give consent for the legal adoption of the child[,] which shall be the only consent required to authorize the entry of an order or decree of adoption.” Even after custody is given to SRS for the purpose of arranging a child’s adoption, though, the district court retains a supervisory role to make sure that reasonable efforts are made toward that end by SRS. See K.S.A. 38-1584(d).

SRS initially considered A.F.’s paternal grandmother, S.W., as a potential adoptive parent. SRS placed A.F. with the grandmother from May 2005 until August 2006. SRS then decided instead to place A.F. with a foster family for potential adoption. The grandmother asked for a court hearing to challenge this SRS decision. We have previously held that interested parties have a right to a hearing in the district court to review SRS placement decisions. In re M.R., 36 Kan. App. 2d 837, 146 P.3d 229 (2006); In re D.C., 32 Kan. App. 2d 962, 92 P.3d 1138 (2004). And a hearing was provided to the grandmother in our case too. The district court found that the grandmother had not shown that she had been unfairly excluded from consideration by SRS as an adoptive parent for A.F. As a result of that decision, A.F. remained with the foster family, who had already adopted A.F.’s half-sister, who is now age 2 and unrelated to the paternal grandmother of A.F.

The grandmother has appealed the district court’s decision that overruled her objection to this placement decision to our court. Upon initial review of the case file, we noted that another panel had recently heard a very similar case and had dismissed it for lack of jurisdiction. See In re D.M.M., 38 Kan. App. 2d 394, 166 P.3d 431 (2007).

The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. An appeal must be dismissed if the record shows that the appellate court does not have jurisdiction. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006). Because of D.M.M., we issued a [744]*744show-cause order to the parties here to address the jurisdiction issue.

The grandmother noted in her response that jurisdiction appeared to have been exercised in similar cases in the past, citing In re M.R.; In re D.C.; and In re D.D.P., Jr., 249 Kan. 529, 819 P.2d 1212 (1991). Indeed, the M.R. and D.C. cases were like both our case and D.M.M.: all involved a challenge to a change of placement of a child for adoption after termination or relinquishment of parental rights. In all of these cases, custody had been awarded to SRS, which was authorized to move toward adoption. But the only discussion of jurisdiction in the appellate decisions before D.M.M. related to whether the district court had jurisdiction, not whether there was appellate jurisdiction. In re M.R., 36 Kan. App. 2d at 839-40 (noting circumstances in which the district court is authorized by statute to consider whether a change in the placement made by SRS is in the best interests of the child); In re D.C., 32 Kan. App. 2d at 965-67 (holding that district court has authority to review placement decisions made by SRS in cases of voluntary relinquishment as well as termination of parental rights). The other case cited by the grandmother, D.D.P.,Jr., is not factually similar to our case, and it too offers no separate discussion of appellate jurisdiction. Thus, the panel in D.M.M. rightly concluded that the question of appellate jurisdiction had neither been considered nor decided in the cited cases.

S.W.’s appeal was filed January 10, 2007, just after the Revised Kansas Code for Care of Children went into effect. We have referred to the pre-2007 Code provisions thus far because they were in effect when the events that we have discussed took place before the district court. We shift now to the current Code, effective January 1, 2007, though the provision authorizing appeals has not changed in any way decisive for the case before us.

The Revised Kansas Code for Care of Children, K.S.A. 2006 Supp. 38-2201 et seq., allows for appeals by any interested party “from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” K.S.A. 2006 Supp. 38-2273(a). The key words found here are terms of art, de[745]*745fined by this comprehensive statute. In re T.D.W., 18 Kan. App. 2d 286, Syl. ¶ 3, 850 P.2d 947 (1993).

The order at issue here was neither an adjudication, a disposition, nor a finding of unfitness. An adjudication refers to a determination that a child is in need of care, K.S.A. 2006 Supp. 38-2251, which had occurred for A.F. back in 2004. Unfitness refers to a basis for termination of a parent’s rights, K.S.A. 2006 Supp. 38-2269, which had occurred for A.F.’s parents in 2006. A disposition refers to a court order regarding custody after a child has been adjudicated as a child in need of care. K.S.A. 2006 Supp. 38-2255. Both when A.F. was adjudicated in need of care in 2004 and when the rights of her parents were terminated in 2006, the court granted custody to SRS. Any appeal of those dispositional.custody orders had to be filed within 30 days, K.S.A.

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Bluebook (online)
172 P.3d 63, 38 Kan. App. 2d 742, 2007 Kan. App. LEXIS 1152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-af-kanctapp-2007.