In re K.E.
46 Kan. App. 2d 218
Kan. Ct. App.2011Background
- Father, natural father of two children, appeals district court termination of parental rights.
- Court denied continuance and denied telephonic participation; Father proceeded telephonically from Georgia.
- Court’s decision relied on presumptions of unfitness under statutes; Father was not sworn and could not cross-examine.
- Legislation later amended 60-243(a) to allow testimony by contemporaneous transmission for good cause.
- Court found due process violation and reversed/remanded; issue of continuance abandoned.
- Children had been in state custody for about 32 months and Father had limited contact due to state actions and prior incarcerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the continuance request was properly preserved. | Father abandoned continuance claim. | Court acted in best interests to conclude proceeding. | Continuance issue abandoned; no reversal on this ground. |
| Whether denial of full telephonic participation violated due process. | Denied right to testify by phone; due process violated. | Procedural safeguards and compelling circumstances not adequately shown; oaths problematic. | Violation of procedural due process; reversal and remand required. |
| What remedy follows a due-process violation in termination of parental rights? | Testimony could have altered fitness determinations. | Remand unnecessary if substantial evidence supports termination. | Remand for new proceedings necessary due to structural due-process error. |
Key Cases Cited
- In re J.O., 43 Kan. App. 2d 754, 232 P.3d 880 (2010) (due process limits on telephonic participation considered but not controlling here)
- In re Adoption of B.J.M., 42 Kan. App. 2d 77, 209 P.3d 200 (2009) (flexible due process approach; protect fundamental liberty interests)
- J.L.D., 14 Kan. App. 2d 487, 794 P.2d 319 (1990) (due process requires fair procedures tailored to circumstances)