748 P.2d 419 | Kan. | 1988
This is an appeal by the parents of K.J. and A.J. from an order of the Finney District Court terminating their parental rights. The original petition was filed pursuant to the Code for Care of Children, K.S.A. 38-1501 et seq., and both parents were found to be unfit after a hearing before the district magistrate judge. The decision of the district magistrate judge terminating the parental rights of the appellants was affirmed by the district judge based upon the record of the hearing before the district magistrate judge. The Court of Appeals, in a unanimous opinion by Judge Parks, reversed and remanded. In re K.J., 12 Kan. App. 2d 188, 737 P.2d 874 (1987). We granted the petition for review and, after a careful review of the issue raised, adopt
The appellants raised a number of issues in their appeal to the Court of Appeals. However, the Court of Appeals found it necessary to decide only appellants’ initial contention that they were entitled to a trial de novo on appeal to the district judge.
The appellants argue that this appeal is controlled by K.S.A. 38-1591(b), which provides: “An appeal from an order entered by a district magistrate judge shall be to a district judge. The appeal shall be heard de novo within 30 days from the date the notice of appeal is filed.” Therefore, the district court erred in determining the case on the record of the proceedings before the district magistrate judge.
The appellees argue that K.S.A. 1986 Supp. 20-302b is controlling and, therefore, a determination on the record by the district judge was proper. K.S.A. 1986 Supp. 20-302b(c) provides:
“In accordance with the limitations and procedures prescribed by law, and subject to any rules of the supreme court relating thereto, any appeal permitted to be taken from an order or final decision of a district magistrate judge shall be tried and determined de novo by a district judge, except that in civil cases where a record was made of the action or proceeding before the district magistrate judge, the appeal shall be tried and determined on the record by a district judge.”
The Court of Appeals determined that, historically, a trial de novo appeal to a district judge meant that the case was tried as if it were originally filed for trial before the district judge and had not been previously tried in a lower court. Black defines a trial de novo as “[a] new trial or retrial had in an appellate court in which the whole case is gone into as if no trial whatever had been had in the court below.” Black’s Law Dictionary 1677 (4th ed. rev. 1968). See Reddington v. Rank, 176 Kan. 484, 271 P.2d 807 (1954).
The Court of Appeals correctly held that, in an appeal from the decision of a district magistrate judge in a proceeding filed pursuant to the Code for Care of Children, K.S.A. 38-1501 et seq., the district judge must hear the case as if it were originally filed for trial before the district judge. For the reasons stated by the Court of Appeals in its opinion, we conclude that the trial court’s determination of this case based on the record of the trial before the district magistrate judge was prejudicial error.
