In Re Ke
261 P.3d 934
Kan. Ct. App.2011Background
- Father, the natural parent of two children (ages 11 and 9), challenged a district court termination of parental rights on due process grounds; he sought to testify by phone from Georgia but was denied full telephonic participation due to oath concerns and lack of in-person appearance.
- The district court denied a continuance and barred sworn telephonic testimony, allowing only listening participation, while applying a statutory presumption of unfitness.
- Kansas law had been amended to allow telephonic testimony for good cause with safeguards, but the court did not explore available safeguards or swear an oath by telephone.
- The court ultimately found presumptively unfit status under 38-2271 and held termination to be in the children's best interests; Father appealed.
- The Court of Appeals held Father’s due process rights violated by denial of telephonic participation and remanded for retrial, while distinguishing abandonment of the continuance issue.
- The concurring judge dissented on the due process holding, arguing Father was not denied due process and criticizing the majority’s rationale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of full telephonic participation violated due process | Father argues denial of telephonic testimony violated due process under In re J.O. | State contends the court properly exercised discretion and the amended statute requires in-person or sworn testimony with safeguards | Remanded for new proceedings due to due process violation. |
Key Cases Cited
- In re J.O., 43 Kan.App.2d 754, 232 P.3d 880 (2010) (telephonic participation and due process in termination)
- In re Adoption of B.J.M., 42 Kan.App.2d 77, 209 P.3d 200 (2009) (due process protections in termination hearings)
- J.L.D., 14 Kan.App.2d 487, 794 P.2d 319 (1990) (flexible due process analysis in parental rights cases)
- State v. Calderon, 270 Kan. 241, 13 P.3d 871 (2000) (structural due process considerations in appeal)
- Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000) (fundamental liberty interest in child custody)