In the Interest of J.H., S.V.H., L.L.H., R.H., C.G.H., D.G., and M.A.G. v. << (1998)

The State appeals the district court's denial of its motion to terminate the parental rights of R.H., the natural father of J.H., S .V.H., L.L.H., R.H., C.G.H., and D.G. The State argues the court erred in finding that R.H. was not an unfit parent.   Additionally, D.H., the natural mother of all the children listed above and M.A.G., cross-appeals the termination of her parental rights.   She argues the State failed to provide her with proper notice of the termination proceedings.   The father of M.A.G. is unknown, and no party has come forward to appeal the termination of his parental rights.

Due to the nature of this appeal, a detailed statement of the underlying facts is necessary.

On August 1, 1994, police officers discovered D.H., R.H., and seven children living out of a station wagon near a local park.   The car was cluttered with clothes, toys, trash, and food.   D.H. told the officers they had been living out of the car for approximately 4 days.   The children were taken into protective custody, and the Kansas Department of Social and Rehabilitation Services (SRS) initiated child in need of care proceedings.   The family had been evicted from a house in Garden City because of unsanitary conditions, including maggots on the cabinets and a dead dog in a stack of dirty laundry.   In removing the children from the parents' custody, the court ordered D.H. and R.H. to obtain suitable housing.

When the children were taken into protective custody, two needed glasses and one needed dental care, the 5-year-old was still in diapers, and the 2- and 3-year-olds were still in diapers and drinking from a bottle.   One child had an enlarged heart and one had a deformed arm which could not bend at the elbow.   All the children had head lice.

SRS assisted D.H. and R.H. by providing weekly visits and instruction on budgeting, parenting, and available community resources.   SRS prepared several reintegration plans for D.H. and R.H. to follow, the second established in March 1995.   This plan required that the parents maintain a proper home with separate bedrooms for the boys and the girls, maintain utilities, meet with the social worker once a week, take parenting classes, and obtain psychological, drug, and alcohol evaluations;  it further required that R.H. remain employed and that D.H. obtain counseling for prior sexual abuse.   The plan was explained to D.H. and R.H. step by step and discussed on several occasions.   Since R.H. was not fluent in English, the plan was also discussed in Spanish by the social workers.

After the children were removed, the parents rented a house in Lakin, Kansas, but were evicted in July or August 1995.   They then moved into a trailer house in Garden City but were evicted in January 1996.   With slight modifications, both the house and the trailer house would have met the requirements of the reintegration plan.

In January 1996, D.H. informed SRS that she wanted a divorce from R.H. and would be leaving the area.   D.H. never again attempted to contact SRS, and R.H. had no idea where she was.   After D.H. left, R.H. resided with his brother in Garden City.

Numerous social workers testified as to their involvement in the case-how they assisted in visitations;  instructed the parents on the reintegration plan;  and helped with parenting, budgeting, and other types of assistance.   They also testified as to R.H.'s completion of parenting classes and the drug and alcohol evaluations, and how he regularly attended the scheduled visitations.

Kandace Kennis, a social worker, observed visitations over a 2-year period, at a rate of approximately 2 visits a month.   She said the parents did not communicate with the children and did not attempt to discipline or interact with them.   This was confirmed by the testimony of several other social workers.   They testified the parents did not interact with the children during the visitations.   However, when visitations occurred in larger areas (the room at the SRS building was too small for such a large family), there was more interaction.

Several social workers also testified as to the special needs of the children.   L.L.H. and R.H., Jr. were behind in their education.   L.L.H was diagnosed with attention deficit disorder, needed special education services in school, and was seeing a speech pathologist.   One of the foster parents for L.L.H and R.H., Jr. testified that both of the children looked forward to the visits with R.H. and indicated they would like to live with him.

Carol Lightner, a clinical social worker, counseled five of the seven children.   She diagnosed M.A.G. as being a neglected child and also the possible victim of sexual abuse.   D.G.'s foster mother and an SRS worker indicated there may have been a sexual abuse incident involving D.G., M.A.G., and the foster mother's twin nephews.   Lightner felt D.G. was well adjusted to her foster home.

Lightner testified she was able to confirm that C.G.H. had been sexually abused by her maternal grandfather.   She said S.V.H. presented problems of sexual play at day care and with her sisters, had been caught stealing, and had a sleeping disorder.   Lightner felt S.V.H. was making a good adjustment to her foster home and that stability would help with most of the problems.   Lightner testified J .H. was allegedly sexually abused, but was unable to confirm it.   J.H. was also adjusting to her foster home.

Idalia Penka Duncan chronicled R.H.'s struggle to obtain his psychological evaluation.   She said he missed several appointments and in the end was unable to get the evaluation completed prior to the severance hearing.   Angela Beims, of United Methodist Youthville, testified how R.H. repeatedly rejected her assistance in trying to find a house.

R.H. testified he knew he needed to find adequate housing in order to comply with the reintegration plan.   He hoped he would get his job back and could start looking for a place for him and the children to live.   He admitted he did not always enjoy the visits with his children because the supervisors wanted him to speak English to the children and he was not fluent in English.   R.H. testified he loved his children and would do whatever the court ordered so he could keep them.   When asked what he wanted from the court, R.H. testified he wanted to visit his children.

After two days of hearings, the magistrate judge terminated the parental rights of both D.H. and R.H. The judge found R.H. had shown more interest in the children than D.H., had a job, and had found a temporary house, but there had not been visitation because he had failed to cooperate and had done nothing to complete the reintegration plan.   The judge noted that once the parents had separated and the motion for termination had been filed, R.H. began consistent visitation.   The judge also stated that R.H. had been employed throughout the duration of the proceedings but had provided no support for the children, other than food for the visitations and an occasional gift.

The magistrate judge found the single most detrimental factor to be that R.H. had failed to maintain adequate housing.   R.H. knew he needed a home in order to get the children, but over the 3-year span of the case, he had failed, refused, or neglected to do so.

The judge declared R.H. to be presumed unfit under K.S.A.1997 Supp. 38-1585(a)(5) and (6).   Under the statutory requirements, the judge found the State had established by clear and convincing evidence that the children had been out of the home for more than 2 years, that R.H. had substantially neglected or refused to carry out a reasonable reintegration plan, and that there was a substantial probability that R.H. would not carry out such a plan in the future.

The judge also found R.H. to be unfit, under K.S.A.1997 Supp. 38-1583, by reason or conduct which rendered him unable to properly care for the children and that such condition would not change in the future.   The judge found that R.H. had physically, mentally, and emotionally neglected his children, had failed to comply with the reintegration plans, and had failed to support the children;  that reasonable efforts by social agencies were unable to rehabilitate the family;  and that there was a lack of effort by R.H. to adjust his circumstances to meet the needs of his children.   K.S.A.1997 Supp. 38-1583(b)(4), (b)(7), (b)(8), (c)(1) and (c)(3).

D.H. and R.H. appealed the termination of their parental rights to the district court.   The court gave all the parties the opportunity to present supplemental testimony, but none was offered.   The court heard arguments of counsel and decided the case based on the court file and the transcripts of the termination hearings before the magistrate.

The district court terminated D.H.'s parental rights.   However, it decided not to terminate R.H.'s parental rights.   The court found the presumption of unfitness in K.S.A.1997 Supp. 38-1585 did not apply to R.H. and it could not find he was an unfit parent.   The court relied on the fact that R.H. had consistently maintained employment, visited the children regularly, completed alcohol and drug evaluations, put forth a good faith effort to obtain a psychological evaluation, and on several occasions had a residence sufficient to house the family.

The district court acknowledged that R.H. was illiterate, had limited resources, and would have a difficult time raising six children.   The court also recognized that R.H.'s children would probably be better off economically in their foster homes, but that R.H. had a constitutional right to raise his children unless he was proven, or is proven in the future, to be an unfit parent.   The court ordered SRS to establish a new reintegration plan for R.H.

The State appeals the district court's decision to not terminate R.H.'s parental rights, arguing the court erred in deciding it could not find R.H. to be an unfit parent.

The State is an interested party within the Kansas Code for Care of Children.   We have jurisdiction to consider this case as an appeal by an interested party from the termination of parental rights.   See In re T.D.W., 18 Kan.App.2d 286, Syl. ¶ 4, 850 P.2d 947 (1993) (an appeal from the denial of a motion to terminate parental rights is appealable as an order of disposition).

 In the normal context, the standard of review of a district court's termination of parental rights is to examine whether there is substantial competent evidence to support the trial court's findings.  In re S.M.Q., 247 Kan. 231, 234, 796 P.2d 543 (1990).   Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.  In re J.D.D., 21 Kan.App.2d 871, 874, 908 P.2d 633 (1995).   The appellate court does not make a determination as to whether the evidence contained in the record was clear and convincing in nature.  In re D.V., 17 Kan.App.2d 788, 792, 844 P.2d 752, rev. denied 252 Kan. 1092 (1993).   The appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.   It must review the evidence in the light most favorable to the party prevailing below.  In re S.M.Q., 247 Kan. at 234, 796 P.2d 543;  In re D.V., 17 Kan.App.2d at 792, 844 P.2d 752.

We believe this issue is resolved by a statutory provision not addressed by any of the parties.

In In re K.J., 242 Kan. 418, Syl. ¶ 2, 748 P.2d 419 (1988), the Supreme Count stated:

“In an appeal from the decision of the district magistrate judge terminating parental rights pursuant to K.S.A. 38-1583, the trial de novo before the district judge must be as if the case were originally filed in the district court for trial and had not been previously tried to the district magistrate judge.

Perhaps in response to In re K.J., the legislature amended K.S.A. 38-1591(b) in 1994.   Prior to the 1994 amendments, 38-1591(b) stated:  “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.”   The amended and current version which was in effect at the time of the hearings in this case reads:  “An appeal from an order entered by a district magistrate judge shall be to a district judge.   The appeal shall be heard within 30 days from the date the notice of appeal is filed.   If no record was made of the proceedings, the trial shall be de novo.”   K.S.A.1997 Supp. 38-1591(b).

The case at bar does not fall within the last sentence of K.S.A.1997 Supp. 38-1591(b).   Here, the termination proceedings before the magistrate judge consisted of a 2-day evidentiary hearing on the record.   There is no language in the statute specifically addressing such a situation.   Therefore, the district court's review in the present case was controlled by the general language:  “An appeal from an order entered by a district magistrate judge shall be to a district judge.”   The implication of the statute is that if the prior proceedings were on the record, the district court's review would be something other than de novo.

Unfortunately, the way the statute is drafted, we are provided with little guidance as to what is the nature of an appeal from a magistrate to a district court in a termination of parental rights case.   To say the appeal will not be de novo does close off some avenues of interpretation, although what exactly a de novo appeal is has not always been clear.   See Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 169-77, 777 P.2d 765 (1989).   There is apparently no helpful legislative history of the 1994 amendments.

 The district court obviously believed it could hear the case in some form of a de novo review.   By offering to the parties the chance to present new evidence, the court viewed the hearing as a fairly broad de novo review, more extensive than the “de novo review on the record” which was formerly used in workers compensation appeals. Reeves, 245 Kan. at 169-77, 777 P.2d 765.   Given that the district court judge here was the successful counsel in the In re K.J. case, we presume he had a clear idea of what he was doing.   However, whether or not the legislature intended to allow some form of de novo review under these circumstances, the language of the statute clearly calls for it only when there is no record at the magistrate level.

 Since this case was not to be reviewed de novo, the only other reasonable possibility is a “substantial competent evidence” test.

Since the appeal to the district court was not to be de novo and was to be on the record in the magistrate's court, we are in as good a situation as the district court to determine if there was substantial competent evidence to support the magistrate's decision.  Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990).   As set out above, we believe there was.

 We find the district court was incorrect in its approach to the appeal in this case by treating it as a de novo proceeding.   Since there was a full hearing on the record of the proceedings in the magistrate court, the district court should have reviewed it under a substantial competent evidence standard and found the magistrate's decision was supported by substantial competent evidence.   We therefore reverse the district court's decision and reinstate the ruling of the magistrate as to R.H.

On cross-appeal, D.H. argues the magistrate court, and later the district court, erred in authorizing publication service on her since the State failed to file the motion with adequate notice to counsel.   She also claims the State's efforts to locate her did not constitute reasonable but unsuccessful efforts.

A quick review of the procedural facts is necessary.   Child in need of care proceedings were initiated by the State on August 1, 1994.   D.H. was served with a copy of the child in need of care petition by personal service.   D.H. attended the various child proceedings and adjudications through September or October 1995, which included the child in need of care adjudication on January 31, 1995.   D.H. left the state in January 1996, after separating from R.H.

The State filed the motion to sever parental rights on January 17, 1996.   The motion indicated that the whereabouts of D.H. were unknown.   On March 11, 1996, the State filed a written motion for publication service and accompanying affidavit for service by publication for D.G. and the unknown father of M.A.G. The affidavit gave the following justification:

“a. SRS has no current addresses for [D.H. and the unknown father of M.A.G.] and have [sic ] not been able to locate them.

“b. Family members and friends of [D.H.] have been contacted by SRS and they do not have any idea's [sic ] where [D.H.] might be located.

“c. [R.H.] does not know the whereabouts of his wife, [D.H.].

“d. [D.H.] is unable to inform the Court who the father of [M.A .G.] is.

“e. The father of [M.A.G.] is unknown to [D.H.] and to this Court.

“f. There are not any current utility hook-ups for [D.H.] in Garden City or Lakin, Kansas.

“g. A skip trace for [D.H.] was completed by TRW but no current address was obtained.”

The motion for publication service contained a notice for a hearing on March 12, 1996, the day after the motion was personally served on counsel for D.H. on March 11, 1996.

The magistrate court heard the motion for publication service on March 12, 1996.   The court's order indicated a finding that the State had conducted reasonable efforts to obtain service on D.H. and that notice of the termination proceedings could be obtained through service by publication.   Service by publication did occur in January and February 1997 and then again in May 1997.

Prior to the termination hearing, counsel for D.H. filed a motion for summary denial of the motion to terminate her parental rights based on improper service by publication.   The motion claimed that notice on March 11 did not permit counsel to adequately prepare for the hearing on March 12, that the court had allegedly not seen the State's affidavit when the motion was granted, and that the motion failed to demonstrate sufficient efforts to locate and contact D.H.

The magistrate court denied D.H.'s motion, finding that due diligence was exercised before and after the motion to publish was granted.   Counsel for D.H. filed a motion for reconsideration based on alleged sightings of D.H. in the Garden City area and her contact with one of her children.   D.H.'s attorney raised this issue at the commencement of the termination proceedings.   The magistrate took the motion under advisement and permitted counsel for D.H. to present evidence on the matter at a later date of the termination hearing.   Apparently the magistrate never directly ruled on the matter, but by terminating D.H.'s parental rights, she impliedly denied the motion.

On appeal to the district court, counsel for D.H. again raised the issue of improper use of notice by publication service.   In addition to the aforementioned procedural findings, the court found that the motion for publication service was not a surprise to counsel since a prior motion to continue the case had been filed on March 6, 1996, indicating the need for publication service on D.H. That motion was served on counsel for D.H. on March 6, 1996.   Additionally, the State attempted personal service on D.H. in early July for the termination hearing, but was unsuccessful.   In denying D .H.'s motion, the district court ruled as follows:

“In addition to the affidavit, the testimony presented at the hearing indicated that the mother informed numerous people including SRS representatives that she was leaving the area.   Attempts were made prior to publication to locate her through her dad, husband, brother and sister prior to publication occurring and all attempts to locate her were for naught.   She has not visited the children since she left some 18 months ago, not kept in touch with her family, or attorney despite the fact that she was informed of the pending Motion to sever both by Mr. Hodson [her attorney], her son [M.A.G.] and her brother.   This Court finds that due and diligent effort was made to attempt to locate the mother for personal service and that publication service was properly permitted and the Court does have jurisdiction over [D.H.] regarding the Motion for severance of her parental rights.”

 D.H. correctly argues that a termination of parental rights invokes stringent compliance with due process concerns.   When fundamental rights are involved, substantial diligence is required.   See In re L.S., 14 Kan.App.2d 261, Syl. ¶ 2, 788 P.2d 875 (1990).   When less significant rights are involved, less effort is required by the government to provide notice that is adequate for due process purposes.  Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 483-84, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988).

 K.S.A. 38-1581 provides that a request for termination of parental rights may be made either in the child in need of care petition or in a later motion for severance.   Because a motion to terminate parental rights is akin to an original petition, the motion must be served on the parents in accordance with K.S.A. 38-1534.   See In re H.C., 23 Kan.App.2d 955, 958, 939 P.2d 937 (1997).  “ ‘Jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.’  ”In re L.S., 14 Kan.App.2d at 262, 788 P.2d 875.

K.S.A.1997 Supp. 38-1582(b)(1) requires that upon receipt of a motion or petition for severance, the court shall give notice of the termination hearing in accordance with service of process statutes, K.S.A. 38-1532 through 38-1536.   Furthermore, the court is required under K.S.A.1997 Supp. 38-1582(b)(3) to determine, prior to the commencement of the termination hearing, that “due diligence has been used in determining the identity of the interested parties and in accomplishing service of process.”

Notice of the proceedings for service by publication is contemplated in K.S.A.1997 Supp. 38-1582(c) and is a recognized form of service of process under K.S.A. 38-1534.   K.S.A.1997 Supp. 38-1582(c) provides:

“In any case in which a parent of a child cannot be located by the exercise of due diligence, service shall be made upon the child's nearest blood relative who can be located and upon the person with whom the child resides.   Service by publication shall be ordered upon the parent.”

D.H. concedes that the basic tenets of the above statutes were complied with.   However, she contends that Kansas Supreme Court Rule 131 (1997 Kan.Ct.R.Annot. 162) requires a different result:

“(a) If any party seeks the hearing of any motion on a required day of court and it is not a motion which may be heard ex parte, or if the judge sets a hearing on this day of court, notice of the hearing shall be given to all parties affected either by the party, or by the clerk at the direction of the judge, not less than seven (7) days prior to the date of hearing.”

 D.H. argues the 7-day notice period in Supreme Court Rule 131 should not be examined as a mere matter of convenience to counsel, but as a fundamental due process requirement and an entitlement to competent and effective representation.   She insists the State's 1-day notice of the hearing was improper and, as a result, the court had no jurisdiction over her and no authority to terminate her parental rights.

The district court did not err in denying D.H.'s claim that it was without jurisdiction.   Under D.H.'s due process concerns, although her counsel should have been given more notice of the hearing to consider service by publication, she does not indicate how she was denied effective representation.   Other than a general statement that her counsel did not have adequate notice to prepare for or respond to the request, we fail to see the prejudice.

 We now turn to D.H.'s argument that the State's efforts to locate her did not constitute reasonable efforts as required by K.S.A. 38-1534(f) and K.S.A.1997 Supp. 38-1582(b)(3).   Appellate review is based on an examination of the lower court's findings of fact and conclusions of law.   In re L.S., 14 Kan.App.2d at 264, 788 P.2d 875.

 “Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law.”   Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929 (1993).  “This court's review of conclusions of law is unlimited.”   Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

 Due diligence requires only such inquiry “ ‘as a reasonably prudent person would make in view of the circumstances and must extend to those places where information is likely to be obtained and to those persons who, in the ordinary course of events, would be likely to receive news of or from the absent person.’  ” In re L.S ., 14 Kan.App.2d at 264, 788 P.2d 875 (quoting In the Interest of A.W., 224 Neb. 764, 766, 401 N.W.2d 477 [1987] );  see also In re Woodard, 231 Kan. 544, 554-55, 646 P.2d 1105 (1982) (service by publication is universally recognized under certain factual circumstances).

D.H. contends the efforts of SRS did not constitute due diligence since it knew she was leaving the area.   D.H. contends SRS should have utilized its access to social security records as a national database to attempt to locate her.   She quotes from In re H.C., 23 Kan.App.2d at 958, 939 P.2d 937:  “ ‘The right to adequate notice in judicial proceedings is a fundamental one, guaranteed both by statute and by the Fourteenth Amendment to the Constitution of the United States.   Without such notice, due process is denied and any judgment rendered is void.’ ” Consequently, D.H. argues, the efforts of SRS fell short of due diligence and the severing of her parental rights is void.

In a termination of parental rights action, before there can be a valid personal service of process by publication upon a parent who cannot be located by due diligence, K.S.A. 38-1582(c) must be at least substantially complied with.  In re L.S., 14 Kan.App.2d at 263, 788 P.2d 875.   The State listed 5 factors applicable to the search for D.H. in the affidavit attached to the motion for service by publication:  (1) SRS had no current address for D.H. and had not been able to locate her;  (2) D.H.'s family and friends did not know her whereabouts;  (3) D.H.'s husband did not know her whereabouts;  (4) there were no utility hook-ups for D.H. in Garden City or Lakin, Kansas;  and (5) a skip trace for D.H. was completed by TRW, but no current address was obtained.

 In In re L.S., 14 Kan.App.2d at 264-65, 788 P.2d 875, the court found that the State had failed to attempt to seek out and contact either relatives or friends and neighbors at the absent mother's last known address in order to inquire as to her current whereabouts.   The court also ruled the State had failed to exercise due diligence even though it had contacted various utility companies, police stations, directory assistance, and voter registration.   The court provided the following assistance for determining what constitutes due diligence:

“It is not necessary to follow a restrictive mandatory checklist for measuring due diligence.   What is necessary to a reasonable inquiry will vary from case to case.   Due diligence does not require the use of all conceivable means possible to an inquiry into the absent parent's whereabouts.”  14 Kan.App.2d at 264, 788 P.2d 875.

Although SRS could have performed a social security check, a skip trace search performed by TRW, a major credit reporting company, made use of a national database in an attempt to locate D.H. Furthermore, in addition to the service by publication, the court file is full of repeated notice to grandparents and other relatives.   We also recognize that D.H. may have received actual notice of the hearing since there was testimony that her counsel, M.A.G., and her brother told her of the termination hearing during phone conversations.   The State presented sufficient evidence of due diligence on the part of SRS in attempting to find D.H.

Affirmed in part and reversed in part.

PIERRON, Judge.