In Re Interests of M.S.
447 P.3d 994
| Kan. Ct. App. | 2019Background
- Two children (M.S., age 6 at removal; B.J., 1 month) removed in July 2015 after allegations of neglect, domestic violence, drug use, and a rodent-infested home; placed in DCF custody and adjudicated CINC.
- Case plan initially aimed at reintegration; later changed to adoption after reintegration was deemed nonviable; State moved to terminate parental rights after ~31 months out of home.
- Three-day termination trial: Mother testified on day 1 and cross‑examination was deferred; she did not appear on days 2 or 3 despite counsel’s presence; court received evidence from both sides and terminated Mother’s rights.
- District court found clear and convincing evidence Mother was unfit under multiple statutory subsections (drug use, failure of reasonable efforts, lack of effort to adjust circumstances, failure to maintain visitation, failure to carry out plan) and that termination was in children’s best interests.
- Mother appealed, arguing denial of due process (denied continuance / trial proceeded without her), insufficient evidence of unfitness, and that termination was not in children’s best interests.
Issues
| Issue | Mother’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether denial of continuance and completion of trial without Mother violated due process | Denial of continuance and proceeding when she was absent deprived her of meaningful opportunity to be heard | Mother testified on day 1, presented evidence and had counsel; she chose not to appear on later days; State has interest in timely disposition in child time | No due process violation; Eldridge balancing favors State and denial was not abuse of discretion |
| Whether evidence was sufficient to prove unfitness by clear and convincing evidence | Mother contested insufficiency and incomplete record from her nonattendance on day 3; challenged agencies’ effectiveness | Record shows drug use (admitted relapse; missed UAs; one UA with meth trace), failure to complete services, minimal visitation, and failure to carry out case plan tasks | Sufficient evidence supports unfitness findings and that circumstances were unlikely to change in foreseeable (child) time |
| Whether agency efforts must be "effective" not just "reasonable" | Mother argued agencies’ resource/staffing failures make efforts ineffective and should bar termination | Statute requires "reasonable efforts"; courts have refused to import an "effective efforts" standard because it would undermine statutory purpose | Courts require only reasonable efforts; here agencies made reasonable efforts and termination premised on parental failures |
| Whether termination was in children’s best interests | Mother argued her improvements and circumstances supported continuance and additional time | Children had prolonged out-of-home placement, limited/negative contact with Mother (including self-harm by M.S.), and need stability | No abuse of discretion; termination found to be in children’s best interests |
Key Cases Cited
- In re K.H., 56 Kan. App. 2d 1135 (2019) (parent appearing through counsel is not in default for termination hearing)
- In re Adoption of B.J.M., 42 Kan. App. 2d 77 (2009) (heightened process protections in termination proceedings)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three‑factor due process balancing test)
- Santosky v. Kramer, 455 U.S. 745 (1982) (parental rights are a fundamental liberty interest; clear and convincing standard)
- In re B.D.-Y., 286 Kan. 686 (2008) (standard of review and clear-and-convincing proof in parental termination cases)
- State v. Tillery, 227 Kan. 342 (1980) (circumstantial evidence as proof of material facts)
- In re A.A., 38 Kan. App. 2d 1100 (2008) (continuance/abuse of discretion review in child welfare context)
- Wiles v. American Family Life Assurance Co., 302 Kan. 66 (2015) (standard for abuse of discretion)
- Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906 (2013) (defining abuse of discretion review)