In re N.A.C. ( 2014 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 109,208
In the Interest of N.A.C.
SYLLABUS BY THE COURT
1.
Under K.S.A. 2012 Supp. 38-2201(b)(4), a stated statutory policy of the Revised
Kansas Code for Care of Children is to "acknowledge that the time perception of a child
differs from that of an adult and to dispose of all proceedings under this code without
unnecessary delay." Appellate review of district court decisions made under the Revised
Code should respect that policy.
2.
The right to appeal is entirely statutory. Appellate courts have only such
jurisdiction as is provided by law. Under the Revised Kansas Code for Care of Children,
K.S.A. 2012 Supp. 38-2273(a) sets forth the procedure and requirements for an appeal in
a child in need of care case.
3.
K.S.A. 2012 Supp. 38-2273(a) specifically limits the types of orders that can be
appealed in a child in need of care case under the Revised Kansas Code for Care of
Children. Under that statute, appealable orders are limited to "any order of temporary
custody, adjudication, disposition, finding of unfitness or termination of parental rights."
If an order in a child in need of care case does not fit within these five categories, it is not
appealable.
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4.
The terms "order of temporary custody," "adjudication," and "disposition" are
terms of art within the Revised Kansas Code for Care of Children with particular
meanings assigned within its context.
5.
The Revised Kansas Code for Care of Children creates a legislatively designated
framework of sequential steps of judicial proceedings with each step occurring in a
specific order leading toward permanency in the child's placement. Applying this
framework, the temporary custody hearing and order comprise the first step in these
proceedings. The second step involves the adjudication. The third involves the
disposition.
6.
An order terminating parental rights is the last appealable order under K.S.A. 2012
Supp. 38-2273(a). Post-termination permanency orders issued under K.S.A. 2012 Supp.
38-2264(h) are not subject to appellate review.
Review of the judgment of the Court of Appeals in 49 Kan. App. 2d 699, 316 P.3d 771 (2013).
Appeal from Sedgwick District Court; DANIEL T. BROOKS, judge. Opinion filed July 11, 2014. Judgment
of the Court of Appeals reversing the district court is reversed. Appeal dismissed for lack of jurisdiction.
Lynnette A. Herrman, of counsel, Beall & Mitchell, L.L.C., of Wichita, argued the cause and was
on the brief for appellants Maternal Cousins.
Kellie E. Hogan, of Kansas Legal Services, of Wichita, argued the cause and was on the briefs for
appellees, Foster Parents.
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The opinion of the court was delivered by
BILES, J.: This is an expedited appeal from a child in need of care (CINC)
proceeding under the Revised Kansas Code for Care of Children (Revised Code), K.S.A.
2012 Supp. 38-2201 et seq. The lower courts reached different outcomes on the law and
evidence. The threshold question—whether appellate jurisdiction exists to reach the
merits of the case—presents a conflict within the caselaw as developed by the Court of
Appeals. The answer has wide-ranging implications for future CINC proceedings.
Because of that, we granted review even though we recognize our involvement delayed
permanency for this child and the two families who have struggled within the system to
provide her with an adoptive home.
We hold that the Revised Code's appellate jurisdiction statute, K.S.A. 2012 Supp.
38-2273(a), limits what district court decisions may be appealed in a CINC proceeding.
In this case, there is no appellate jurisdiction to review the post-termination decisions at
issue: (1) the district court's finding that the responsible state agency failed to make
reasonable efforts or progress toward adoptive placement; and (2) its attendant orders,
which were contingent under the statute upon that first finding, removing the child from
state agency custody and placing her directly with her foster parents with permission to
adopt. See K.S.A. 2012 Supp. 38-2264(h) (if court determines reasonable efforts or
progress has not been made toward finding adoptive placement, it may make other orders
regarding custody and adoption that are appropriate under the circumstances).
We reverse the decision by the Court of Appeals panel majority, which reached a
contrary holding. This appeal is dismissed for lack of appellate jurisdiction.
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FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2011, N.A.C. was born premature on a city street in Wichita. She
weighed 4 pounds and tested positive for cocaine. The baby's mother was behaving
erratically, and the two were taken to a hospital where the mother wanted to leave with
the newborn against medical advice. The infant was taken into police protective custody
as authorized by K.S.A. 2012 Supp. 38-2231(b)(1) (child under 18 years of age shall be
taken into custody when law enforcement or court services officer reasonably believes
child will be harmed if not immediately removed from place where child has been
found). Mother left the hospital alone and has had no further contact with N.A.C.
For the most part, we will limit our discussion about what happened next to what
is relevant to the dispositive jurisdictional issue.
District Court Proceedings
On November 4, a CINC petition was filed in Sedgwick County District Court
Juvenile Department, Case No. 2011-JC-430. That same day, the district court (CINC
court) entered an ex parte order of protective custody under K.S.A. 2012 Supp. 38-2242,
which placed N.A.C. with the Secretary of the Department of Social and Rehabilitation
Services (SRS). That agency then asked S.D. and D.D. (Foster Parents) to accept N.A.C.
as their foster child. They agreed and brought the infant home from the hospital. They
have cared for her ever since. Foster Parents are not N.A.C.'s blood relatives.
After a hearing on November 7, the CINC court entered an order of temporary
custody under K.S.A. 2012 Supp. 38-2243 in which it determined: (1) an emergency
existed threatening N.A.C.'s safety; (2) there was probable cause to believe N.A.C. was
likely to sustain harm if not immediately removed from the parental home; and (3)
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N.A.C.'s placement with SRS should continue. Later that month, a court services officer
informed an employee of Youthville, an SRS contractor, that the mother's cousin and
cousin's husband (Maternal Cousins), who lived in another state, were interested in
adopting N.A.C.
When N.A.C. was 1 month old, she was adjudicated a child in need of care under
K.S.A. 2012 Supp. 38-2251. On January 5, 2012, the CINC court conducted a
dispositional hearing under K.S.A. 2012 Supp. 38-2253. The resulting Order of
Disposition directed that N.A.C. remain in SRS custody.
On February 8, 2012, the State filed a motion to terminate parental rights. N.A.C.
was 3 months old at that point. The district court orally granted this motion during an
April hearing, but the journal entry was not filed until May 3 because N.A.C.'s mother
informed the court she wanted to voluntarily relinquish her parental rights. On May 17,
the district court held a post-termination permanency hearing under K.S.A. 2012 Supp.
38-2264. The district court accepted SRS's permanency plan and continued N.A.C.'s
temporary placement with SRS for adoption.
In the meantime, SRS had initiated efforts for Maternal Cousins to adopt N.A.C.
in compliance with the Interstate Compact on Placement of Children (ICPC), K.S.A. 38-
1201 et seq., which was necessary because Maternal Cousins resided in another state. An
adoptive ICPC was approved on August 6. SRS and its contractor formally chose
Maternal Cousins for adoptive placement at an agency meeting commonly referred to as
the "best interests staffing."
But Foster Parents also wanted to adopt N.A.C. They were granted interested party
status by the CINC court under K.S.A. 2012 Supp. 38-2241(e) (permitting such status to
any person with whom the child has resided, among others, if the district court finds it is
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in the best interests of the child). Foster Parents first pursued an internal reconsideration
of the agency decision favoring adoptive placement with Maternal Cousins; but when
SRS again chose Maternal Cousins, Foster Parents filed a motion with the CINC court
under K.S.A. 2012 Supp. 38-2264(h) alleging in that statute's language that "reasonable
efforts or progress have not been made toward finding an adoptive placement." This
motion and its outcome are the focus of this appeal.
On November 5, the CINC court held an evidentiary hearing and granted Foster
Parents' motion. It found SRS and Youthville had failed to make reasonable efforts or
progress towards N.A.C.'s adoption. The court also noted that from the outset "this case
screamed termination [of parental rights]," making permanent placement the obvious
outcome. The CINC court further found the delays in securing N.A.C.'s adoption by
Maternal Cousins were the result of systemic problems with the agency and its contractor
and that the "absolute severance" of the bonds that had formed between N.A.C. and
Foster Parents, as well as their other children with whom N.A.C. had been living, would
not be in N.A.C.'s best interests. The CINC court then granted Foster Parents custody of
N.A.C. with permission to adopt. It also granted Maternal Cousins interested party status
under K.S.A. 2012 Supp. 38-2241(e) for purposes of appeal "if they choose to explore
that option." N.A.C. had just turned 1.
After the CINC court ruling, Foster Parents initiated a separate court action to
adopt N.A.C. in Sedgwick County District Court (Case No. 12 AD 366) under the Kansas
Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., which is part of the Kansas
Probate Code. This separate court action was necessary because a district court lacks
authority to enter adoption decrees under the Revised Code. See K.S.A. 2012 Supp. 38-
2270 (enumerating orders CINC court may enter if parental rights have been terminated
and it appears adoption is a viable alternative).
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On December 19, Maternal Cousins filed a notice of appeal in the CINC
proceeding (Case No. 2011-JC-430). That notice states Maternal Cousins appeal "certain
judgments entered herein on November 5, 2012, and all previous rulings, and orders on
all issues." The notice of appeal concludes the appellate record from the CINC case.
On December 21, the same district judge who conducted the CINC proceedings
presided over the adoption case and approved Foster Parents' adoption of N.A.C.
Maternal Cousins did not appear in that case or pursue an appeal.
Court of Appeals Proceedings
Once the appeal from the CINC proceeding was docketed by Maternal Cousins,
Foster Parents filed a motion to involuntarily dismiss it, alleging the Court of Appeals
lacked jurisdiction. Foster Parents argued the November 5 order was not one of those
enumerated in the Revised Code as appealable. See K.S.A. 2012 Supp. 38-2273(a)
(appeal may be taken by any party or interested party from "any order of temporary
custody, adjudication, disposition, finding of unfitness or termination of parental rights").
The Court of Appeals denied this motion but ordered the parties to fully brief the pivotal
jurisdictional question for fuller consideration with the merits.
In their responsive filings, Maternal Cousins argued jurisdiction existed under the
Code of Civil Procedure's general jurisdiction statute, K.S.A. 2012 Supp. 60-2102. They
essentially contended the November 5 CINC court order was a final order and that CINC
proceedings are civil in nature. Notably, Maternal Cousins did not address the more
specific jurisdictional provision in K.S.A. 2012 Supp. 38-2273(a), which Foster Parents
had identified as controlling.
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For reasons not at all understandable, neither party advised the Court of Appeals in
their briefs that the separate adoption proceeding had occurred months earlier and
resulted in a final adoption decree. In fact, the adoption decree was not disclosed to the
panel until oral arguments, at which point the panel ordered the parties to prepare
additional briefing addressing whether this appeal was moot since a final adoption decree
had been entered and not appealed.
After this additional briefing, a divided Court of Appeals panel reversed the CINC
court. The majority held jurisdiction existed, that the case was not moot, and that the
CINC court erred in finding SRS and Youthville had failed to make reasonable efforts or
progress towards N.A.C.'s adoption. The panel majority then vacated the CINC court's
order granting Foster Parents legal custody, voided the adoption decree in the separate
adoption proceeding (Case No. 12 AD 366), and remanded the CINC case for post-
termination case management "while [SRS] proceeds with and finalizes adoption
placement." In re N.A.C., 49 Kan. App. 2d 699, 725, 316 P.3d 771 (2013). In other
words, the panel majority attempted to clear a path for Maternal Cousins to adopt N.A.C.
instead of Foster Parents. N.A.C. had just turned 2 years old.
Chief Judge Malone dissented. He argued the panel should have followed prior
Court of Appeals caselaw holding that there was no jurisdiction to entertain an appeal
from a post-termination permanency order such as the one in this case. 49 Kan. App. 2d
at 725. And even if jurisdiction existed, Chief Judge Malone continued, he would hold
the CINC court's finding that SRS and its contractor had failed to make reasonable efforts
or progress toward an adoptive placement was supported by substantial competent
evidence. 49 Kan. App. 2d at 728. He did not address mootness.
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Foster Parents petitioned this court for review, which we granted under K.S.A. 20-
3018(b). See also K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely
petition for review).
We expedited our review because the child's custody remained in suspense. See
K.S.A. 2012 Supp. 38-2201(b)(4) (statutory policy that Revised Code be liberally
construed to "acknowledge that the time perception of a child differs from that of an adult
and to dispose of all proceedings under this code without unnecessary delay"); see also In
re L.B., 42 Kan. App. 2d 837, 842, 217 P.3d 1004 (2009) ("[C]ourts must strive to decide
these cases in 'child time' rather than 'adult time.'"), rev. denied 289 Kan. 1278 (2010).
Appellate review of district court decisions made under the Revised Code should respect
the statutory policy stated in K.S.A. 2012 Supp. 38-2201(b)(4). See also K.S.A. 2012
Supp. 38-2273(d) ("[A]ppeals under this section shall have priority over all other
cases.").
JURISDICTION
Appellate courts have only such jurisdiction as is provided by law. Williams v.
Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009). The existence of jurisdiction is a
question of law subject to unlimited appellate review. Friends of Bethany Place v. City of
Topeka, 297 Kan. 1112, 1121, 307 P.3d 1255 (2013). Questions involving statutory
interpretation are also questions of law subject to unlimited review. Nationwide Mutual
Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014).
A. WHICH JURISDICTION STATUTE APPLIES?
Maternal Cousins contend K.S.A. 2012 Supp. 60-2102(a)(4) governs their appeal.
It states in relevant part:
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"[T]he appellate jurisdiction of the court of appeals may be invoked by appeal as a matter
of right from: . . . (4) A final decision in any action, except in an action where a direct
appeal to the supreme court is required by law. In any appeal or cross appeal from a final
decision, any act or ruling from the beginning of the proceedings shall be reviewable."
K.S.A. 2012 Supp. 60-2102(a).
Maternal Cousins couple their reliance on K.S.A. 2012 Supp. 60-2102(a)(4) with
K.S.A. 2012 Supp. 38-2201(a), which states: "Proceedings pursuant to [the Revised
Code] shall be civil in nature and all proceedings, orders, judgments and decrees shall be
deemed to be pursuant to the parental power of the state." They then assume—without
argument—that the orders from which they appeal are final decisions.
But as Foster Parents point out, the Revised Code contains its own jurisdictional
statute, K.S.A. 2012 Supp. 38-2273(a), so Maternal Cousins' assertion of appellate
jurisdiction under K.S.A. 2012 Supp. 60-2102 defies a cardinal rule of statutory
interpretation that the more specific statute governs when two statutes may be applicable.
In re Tax Exemption Application of Mental Health Ass'n of the Heartland, 289 Kan.
1209, 1215, 221 P.3d 580 (2009); see also In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025(2007) ("A specific statute controls over a general statute. [Citation omitted.] Likewise, a
specific provision within a statute controls over a more general provision within the
statute."), cert. denied 555 U.S. 937 (2008); State ex rel. Tomasic v. Unified Gov. of
Wyandotte Co./Kansas City, 264 Kan. 293, Syl. ¶ 9, 955 P.2d 1136 (1998) ("General and
special statutes should be read together and harmonized whenever possible, but to the
extent a conflict between them exists, the special statute will prevail unless it appears the
legislature intended to make the general statute controlling.").
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In addition, Maternal Cousins' claim that K.S.A. 2012 Supp. 60-2102(a)(4)
controls appellate jurisdiction in CINC cases finds no support in legislative history. This
can be readily seen by tracking the legislature's actions in 1982 when it enacted the
Kansas Code for Care of Children, which is the Revised Code's predecessor. When
introduced, the proposed legislation contained an appellate jurisdiction provision nearly
identical to the one under the then-in-force Kansas Juvenile Code. It allowed an appeal
"by any interested party from any final order in any proceeding to this code." (Emphasis
added.) See K.S.A. 1980 Supp. 38-834(b); see also Kansas Judicial Council Bulletin,
June 1981, p. 51.
But this language changed during the legislative process to itemize certain orders
as appealable. See L. 1982, ch. 182, sec. 56 (codified at K.S.A. 1982 Supp. 38-1591).
And that itemization is nearly identical to the current appellate jurisdiction statute in all
but one respect—it permitted appeals from only four types of orders: adjudications,
dispositions, terminations of parental rights, or orders of temporary custody. K.S.A. 38-
1591(a). In 2006, when the Revised Code was enacted, a fifth category was added—
findings of unfitness. L. 2006, ch. 200, sec. 68; K.S.A. 2012 Supp. 38-2273.
The current appellate jurisdiction statute, which lacks the pre-1982 "final order"
language, demonstrates the legislature intended to limit appellate jurisdiction to particular
categories of orders and to permit interlocutory review of them instead of requiring
litigants to wait for final orders. This is consistent with the Revised Code's expressed
policy of disposing of proceedings without unnecessary delay. See K.S.A. 2012 Supp.
38-2201(b)(4); K.S.A. 2012 Supp. 38-2273(d). In other words, by limiting the type of
appealable orders in CINC proceedings, the stated policy goal of reducing delay is
furthered and appellate review is not deferred until a final order is entered, facilitating
more immediate review.
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We hold Maternal Cousins' claim that K.S.A. 2012 Supp. 60-2102 confers
appellate jurisdiction and allows an appeal from any final order in a CINC proceeding
under the Revised Code lacks merit. See In re E.G., No. 98,187, 2007 WL 3085378, at *2
(Kan. App. 2007) (unpublished opinion) (K.S.A. 2006 Supp. 38-2273 governs appeals
from decisions under Code for Care of Children, not K.S.A. 60-2102). The panel was
correct to reject Maternal Cousins' reliance on K.S.A. 2012 Supp. 60-2102 and to focus
on whether the November 5 order was appealable under K.S.A. 2012 Supp. 38-2273(a).
We consider next whether the panel erred when it held appellate jurisdiction
existed under the controlling statute.
B. IS THE NOVEMBER 5 ORDER APPEALABLE?
As mentioned, K.S.A. 2012 Supp. 38-2273(a) specifies five categories of
appealable orders under the Revised Code. It states: "An appeal may be taken by any
party or interested party from any order of temporary custody, adjudication, disposition,
finding of unfitness or termination of parental rights." If there is to be appellate
jurisdiction in this case, the CINC court's November 5 order must fit within one of these
categories.
It is important to recall that the CINC court's November 5 order and Foster
Parents' motion that precipitated it were authorized by K.S.A. 2012 Supp. 38-2264(h),
which states:
"If the court enters an order terminating parental rights to a child, or an agency has
accepted a relinquishment . . . the requirements for permanency hearings shall continue
until an adoption or appointment of a permanent custodian has been accomplished. If the
court determines that reasonable efforts or progress have not been made toward finding
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an adoptive placement or appointment of a permanent custodian or placement with a fit
and willing relative, the court may rescind its prior orders and make others regarding
custody and adoption that are appropriate under the circumstances. Reports of a
proposed adoptive placement need not contain the identity of the proposed adoptive
parents." (Emphasis added.)
It is also important to remember that the components of the CINC court's
November 5 order consist of: (1) a factual determination that SRS and its contractor had
failed to make reasonable efforts or progress toward finding an adoptive placement for
N.A.C.; (2) a rescission of the CINC court's prior order giving SRS custody of N.A.C.;
and (3) an order placing N.A.C. directly with Foster Parents with permission for them to
adopt. As is readily seen from K.S.A. 2012 Supp. 38-2264(h), the orders were derivative
of the factual determination—they could not have been entered absent the CINC court's
prerequisite lack of "reasonable efforts or progress" determination. It is also noteworthy
that K.S.A. 2012 Supp. 38-2270(a)(2) expressly gave the CINC court authority after
parental rights were terminated to grant custody of the child to proposed adoptive parents
with consent to the adoption of the child by the proposed adoptive parents. Such orders
are not among those listed in K.S.A. 2012 Supp. 38-2273(a).
The panel majority conceded that the CINC court's factual determination regarding
the lack of reasonable efforts or progress toward adoption, standing alone, was not
appealable under the statute. In re N.A.C., 49 Kan. App. 2d at 714. But it nonetheless
characterized that determination combined with the attendant orders as an order of
disposition, which it defined as an order "that places a child in, continues a child in, or
removes a child from the legal custody of an individual or agency." 49 Kan. App. 2d at
710, 715. It further acknowledged its definition and reasoning were unique and directly
conflicted with most all prior Court of Appeals decisions that had defined "order of
disposition" more narrowly under K.S.A. 2012 Supp. 38-2273(a). 49 Kan. App. 2d at
712-13.
13
In his dissent, Chief Judge Malone described the November 5 order as a post-
termination permanency order. As such, he argued, it is not included within the
appealable orders listed in the statute. 49 Kan. App. 2d at 727-28 ("Had the legislature
intended to make a district court's order entered at a post-termination permanency hearing
subject to appeal, the legislature easily could have accomplished this task by adding the
term 'permanency order' to the list of appealable orders under K.S.A. 2012 Supp. 38-
2273[a].").
Resolution of these two views is an issue of first impression for this court. We
begin by reviewing the governing statutes in the Revised Code. After that, we discuss
prior Court of Appeals decisions taking an entirely different view from the panel
majority. As we go, we will apply the facts of the case to the statutory provisions. In the
end, we conclude the panel majority erred.
The Governing Statutes and Statutory Scheme
None of the appealable orders listed in K.S.A. 2012 Supp. 38-2273(a) are defined
in the Revised Code's definitional statute, K.S.A. 2012 Supp. 38-2202. But each is given
context by its own statutory provisions that establish deadlines, notice requirements, and
required underlying findings or legal conclusions. So, while the appealable orders are not
explicitly defined, the governing statutes for each give description and meaning to the
terms.
Consider first the genesis of the proceeding at hand. Law enforcement took N.A.C.
into protective custody based only on a law enforcement officer's reasonable belief that
she would be harmed if not immediately removed from the place where she was found.
See K.S.A. 2012 Supp. 38-2231(b)(1). The Revised Code does not authorize an appeal
14
from the officer's action because it recognizes this on-the-spot intervention occurs
because of an exigency observed by the officer without court order or supervision. But
the Revised Code requires a prompt independent review of law enforcement's action once
a child is taken into protective custody because the officer must notify the district
attorney of all information in the officer's possession justifying that action "without
unnecessary delay." K.S.A. 2012 Supp. 38-2232(a).
This notification triggers the district attorney's duty to review the facts,
recommendations, and evidence to determine if a CINC petition is warranted. K.S.A.
2012 Supp. 38-2233. If the district attorney files a petition, an expedited hearing must be
granted. And, upon application, the court may issue an ex parte order of protective
custody but "only after the court has determined there is probable cause to believe the
allegations in the application are true." K.S.A. 2012 Supp. 38-2242(b)(1). Protective
custody, however, cannot continue for more than 72 hours with certain exceptions.
K.S.A. 2012 Supp. 38-2242(b)(2). This ex parte protective custody order, like law
enforcement's decision to take the child into protective custody, is designed to be short-
lived.
A. Temporary Custody Orders
A temporary custody hearing "shall be held within 72 hours, excluding Saturdays,
Sundays, legal holidays, and days on which the office of the clerk of the court is not
accessible, following a child having been taken into protective custody." K.S.A. 2012
Supp. 38-2243(b). This timing coincides with the statutory expiration of the ex parte
protective custody order and is the first hearing in which the parents or other statutorily
recognized parties must receive notice and have an opportunity to appear. See K.S.A.
2012 Supp. 38-2243(c). And for this proceeding, oral notice is sufficient if there is not
enough time to give written notice. K.S.A. 2012 Supp. 38-2243(e). In this way, the
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legislature recognizes that this hearing occurs so quickly in the process that the typical
notice and service procedure may not be practical.
At this hearing, under the statute applicable to these proceedings, an order of
temporary custody could be entered if the district court determines "there is probable
cause to believe that the: (1) Child is dangerous to self or to others; (2) child is not likely
to be available within the jurisdiction of the court for future proceedings; or (3) health or
welfare of the child may be endangered without further care." K.S.A. 2012 Supp. 38-
2243(f). Any one of these determinations trigger the court's authority to "place the child
in the temporary custody" of certain persons including the parent, a shelter facility, or the
Secretary. K.S.A. 2012 Supp. 38-2243(g)(1).
But the temporary custody order is also designed to be short-lived. It "shall remain
in effect until modified or rescinded by the court or an adjudication order is entered but
not exceeding 60 days, unless good cause is shown and stated on the record." (Emphasis
added.) K.S.A. 2012 Supp. 38-2243(g)(2). Temporary custody orders are the first
appealable orders under K.S.A. 2012 Supp. 38-2273(a).
In N.A.C.'s case, the temporary custody order was entered on November 7, 2011,
just days after N.A.C. was taken into protective custody. No other temporary custody
orders were entered under K.S.A. 2012 Supp. 38-2243, and no appeal was taken from the
November 7, 2011, order.
B. Order of Adjudication
Orders of adjudication are governed by K.S.A. 2012 Supp. 38-2251(b), which
provides:
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"(b) If the court finds that the child is a child in need of care, the court shall enter
an order adjudicating the child to be a child in need of care and may proceed to enter
other orders as authorized by this code." (Emphasis added.)
This denotes that the order of adjudication under the Revised Code is the order
finding the child to be a child in need of care. And once an order of adjudication is
entered, the court may then enter other orders authorized by the Revised Code.
Otherwise, the court must dismiss the proceeding. K.S.A. 2012 Supp. 38-2251(a) and (b).
The Revised Code requires that the order of adjudication "be entered within 60 days from
the date of the filing of the petition, unless good cause for a continuance is shown" or the
case must be dismissed. K.S.A. 2012 Supp. 38-2251(c). This 60-day time period
coincides with the 60-day time limit on temporary custody orders. See K.S.A. 2012 Supp.
38-2243(g)(2).
In N.A.C.'s case, the CINC court held a hearing on December 1, 2011, at which it
adjudicated her a child in need of care. No appeal was taken from that order.
C. Order of Disposition
There is more complexity to the statutory scheme governing dispositional orders
than the other orders discussed so far. The timing for dispositional orders is dictated by
K.S.A. 2012 Supp. 38-2253(b), which states "[a]n order of disposition may be entered at
the time of the adjudication if notice has been provided . . . but shall be entered within 30
days following adjudication, unless delayed for good cause shown." (Emphasis added.)
The substance of the dispositional hearing and attendant order are addressed by K.S.A.
2012 Supp. 38-2253, which states:
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"(a) At a dispositional hearing, the court shall receive testimony and other
relevant information with regard to the safety and well being of the child and may enter
orders regarding:
(1) Case planning which sets forth the responsibilities and timelines
necessary to achieve permanency for the child; and
(2) custody of the child."
Under K.S.A. 2012 Supp. 38-2255(b) and (c), there are two roads that may be
taken regarding custody—either the court places the child in the parent's custody or it
removes the child from parental custody. If the latter, the court must make certain
findings. For example, it must find probable cause that certain conditions exist, such as
"allowing the child to remain in [the] home is contrary to the welfare of the child."
K.S.A. 2012 Supp. 38-2255(c)(1)(B). And if the court makes the required findings and
removes the child from the parent's custody, it may award custody to: (1) a child's
relative; (2) a person with whom the child has close emotional ties; (3) any other suitable
person; (4) a shelter facility; (5) a youth residential facility; or (6) the Secretary. This
custody order "shall continue until further order of the court." K.S.A. 2012 Supp. 38-
2255(d). In addition, if the person to whom custody is awarded is not a parent, a
permanency plan that conforms to the requirements of K.S.A. 2012 Supp. 38-2264
(permanency hearing: purpose, procedure, time for hearing, and authorized orders) must
be prepared. K.S.A. 2012 Supp. 38-2255(e).
Once a dispositional order is entered, the court may rehear the matter on its own
motion or the motion of a party or interested party. And if there is a rehearing, the court
may enter any dispositional order authorized by the Revised Code, except modification of
a registered child support order. K.S.A. 2012 Supp. 38-2256.
18
In N.A.C.'s case, an order of disposition was filed on January 12, 2012, after the
CINC court held N.A.C. was likely to sustain harm if not immediately removed from the
home, returning home would be contrary to her welfare, and immediate placement was in
her best interests. That order also adopted the SRS-proposed permanency plan, which is
not in the appellate record although a social worker testified that reintegration was
pursued until parental rights were terminated. No appeal was taken from the January 12
order of disposition.
D. Finding of Unfitness and Termination of Parental Rights
Requests to terminate parental rights or to find that either or both parents are unfit
can be made in the original petition or on a party's motion. K.S.A. 2012 Supp. 38-2266.
Upon receiving the petition or motion, the court "shall set the time and place for the
hearing, which shall be held within 90 days." K.S.A. 2012 Supp. 38-2267(a). The
discretion to seek an order terminating parental rights dissipates, however, if the district
court has entered a dispositional order removing the child from the parent's custody under
K.S.A. 2012 Supp. 38-2255(d) and it has determined reintegration is not a viable
alternative under K.S.A. 2012 Supp. 38-2255(e). Under those circumstances,
"proceedings to terminate parental rights and permit placement of the child for adoption
or appointment of a permanent custodian shall be initiated unless the court finds that
compelling reasons have been documented in the case plan." K.S.A. 2012 Supp. 38-
2255(f).
Once the child has been adjudicated a child in need of care, "the court may
terminate parental rights . . . when the court finds by clear and convincing evidence that
the parent is unfit by reason of conduct or condition which renders the parent unable to
care properly for a child and the conduct or condition is unlikely to change in the
foreseeable future." K.S.A. 2012 Supp. 38-2269(a). And if termination occurs, the court
19
may: (1) authorize adoption; (2) authorize appointment of a permanent custodian; or (3)
order continued permanency planning. K.S.A. 2012 Supp. 38-2269(g)(2).
An order of unfitness or termination of parental rights also triggers a responsibility
on the person or agency awarded custody of the child to submit a written permanency
plan within 30 days, which includes a plan for permanent placement, measurable
objectives, and time schedules. K.S.A. 2012 Supp. 38-2269(j). If the court does not
terminate parental rights, the court may: (1) authorize appointment of a permanent
custodian; or (2) order continued permanency planning. K.S.A. 2012 Supp. 38-
2269(g)(3).
In N.A.C.'s case, the district court terminated parental rights after a hearing on
April 3, 2012. No appeal was taken from that order.
Prior Caselaw Interpreting These Statutes
The vast majority of appeals under the Revised Code and its predecessor have
been decided by our Court of Appeals with little review from this court. Over time,
numerous Court of Appeals panels have developed caselaw consistently viewing both the
Revised Code and its predecessor as creating a statutory framework of sequential steps or
phases. And in that context, the caselaw has considered the appealable orders enumerated
in K.S.A. 2012 Supp. 38-2273(a) as terms of art with particularized meanings.
In other words, each appealable order occurs in a sequence leading to permanent
placement for the child in need of care and the terms are to be considered in context with
that statutorily created setting. Recently, the Court of Appeals summarized this as
follows:
20
"[T]he terms 'order of temporary custody,' 'adjudication,' and 'disposition' are terms of art
each carrying its own meaning. [Citation omitted.] The 'order of temporary custody' is the
first step in a sequence, wherein the court identifies the person or agency that will have
temporary custody of a child determined to be in need of protection. [Citation omitted.]
Such order covers the period of time until an 'adjudication' which is the next step in the
sequence where the court determines if the child is a CINC. If the child is found not to be
a CINC, the proceedings are dismissed. [Citation omitted.] If, however, the child is found
to be a CINC the court enters an 'adjudication order' and proceeds to a 'disposition.'
[Citation omitted.] The temporary custody order may remain in effect until disposition, or
the court may modify the order of custody at adjudication." In re A.E.S., 48 Kan. App. 2d
761, 765, 298 P.3d 386 (2013).
We agree with this approach. The terms "order of temporary custody,"
"adjudication," and "disposition" must be seen as terms of art, each with a particular
meaning within the Revised Code that clearly establishes a sequence of court-supervised
events all marching toward permanency. This is evidenced by the time limitations within
the Revised Code for each phase's duration, which ensure progress toward permanency is
achieved; the differences at each phase in factual findings and legal conclusions; and in
the options available to the district court in each phase.
Applying this framework, the first phase in a CINC proceeding is the temporary
custody hearing and order governed by K.S.A. 2012 Supp. 38-2243. The second phase
involves the adjudication. And the third encompasses the disposition.
Given the time constraints and substantive findings required to enter orders of
temporary custody and adjudication, we can eliminate both as appropriate descriptors for
the post-termination November 5 order at issue in this appeal. The order's prerequisite
finding, that the state agency did not make reasonable efforts or progress toward finding
21
an adoptive placement, is not a temporary custody order or order of adjudication when
viewed under the statutory framework. All parties concede this.
Equally as clear, the portion of the order regarding Foster Parents' custody and
consent to their adoption of N.A.C., which was statutorily dependent on the lack of
progress finding, is not a temporary custody order or an order of adjudication. Orders of
temporary custody are described and controlled by K.S.A. 2012 Supp. 38-2243. These
orders may be entered only after factual findings that were not made during the
November 5 hearing. See K.S.A. 2012 38-2243(f) (temporary custody order may be
entered after determining probable cause exists to believe child is danger to self or others;
not likely to be within court jurisdiction for future proceedings; or child's health or
welfare may be endangered). And as noted above, under the Revised Code orders of
temporary custody survive only up to the adjudication, which occurred in this case 11
months before the November 5 order.
Finally, and most certainly, the November 5 order is not a finding of unfitness or
an order terminating parental rights. Again, no one disputes that.
Therefore, through this process of elimination, we are left with only orders of
disposition as the last possible category of appealable orders into which the November 5
order can fall for appellate jurisdiction to exist in this case. The Court of Appeals panel
was divided on that point. We address the panel's analysis next.
The Court of Appeals Analysis Regarding Orders of Disposition
The panel majority began its jurisdictional analysis by focusing on the decisions to
change custody from SRS to Foster Parents and to allow Foster Parents to pursue an
independent adoption. It held these components were enough to characterize the
22
November 5 order as an appealable order of disposition. In re N.A.C., 49 Kan. App. 2d at
710. In so holding, the panel majority acknowledged the CINC court's factual finding
under K.S.A. 2012 Supp. 38-2264(h) that the state agency failed to make reasonable
efforts or progress to find an adoptive placement was not an order of disposition subject
to appeal by itself. But it reasoned this nonappealable portion was "so interwoven" with
the custody change to Foster Parents that they were "legally inseparable" for
jurisdictional purposes. 49 Kan. App. 2d at 714-15.
In his dissent, Chief Judge Malone presented four arguments belying the majority's
rationale. First, he adhered to the prior Court of Appeals decisions consistently holding
that an order of disposition under K.S.A. 2012 Supp. 38-2273(a) is a term of art
specifically meaning the order of disposition entered at the time of or within 30 days after
adjudication. 49 Kan. App. 2d at 726. Second, he noted the legislature had not modified
the statute over the past several years since those decisions were announced, implying the
legislature's presumed agreement with their holdings. 49 Kan. App. 2d at 726; see also
Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008) ("[W]hen the
legislature does not modify a statute in order to avoid a standing judicial construction of
that statute, the legislature is presumed to agree with that judicial construction."). Third,
he objected to what he saw as an anomaly within the majority's reasoning: that Maternal
Cousins could appeal the CINC court's finding that the state agency failed to make
reasonable efforts or progress because the CINC court ultimately changed N.A.C.'s
custody, but if Foster Parents had not prevailed Foster Parents would have had no appeal
right because no change of custody would have occurred. Finally, Chief Judge Malone
offered this observation:
"The majority's interpretation of K.S.A. 2012 Supp. 38-2273(a) opens the door to endless
appeals in cases under the [Revised] Code. I believe the legislature intended the order
23
terminating parental rights to be the final order under the [Revised] Code that is subject
to appeal." 49 Kan. App. 2d at 728.
Although our rationale differs in some respects, we agree with Chief Judge
Malone that the reasonable efforts or progress finding and the collateral custody order
and consent to adoption that followed once that finding was made are best characterized
as permanency orders arising from a post-termination permanency hearing. We also agree
the order terminating parental rights was the last appealable order under K.S.A. 2012
Supp. 38-2273(a).
The Court of Appeals has consistently construed "disposition" by interpreting the
Revised Code in pari materia within the context of the statutory sequencing previously
discussed above. See In re A.E.S., 48 Kan. App. 2d at 765 (recognizing sequence begins
with order of temporary custody); In re C.E., 47 Kan. App. 2d 442, 448, 275 P.3d 67(2012); In re D.M.M., 38 Kan. App. 2d 394, 398, 166 P.3d 431 (2007); In re S.C., 32
Kan. App. 2d 514, 518, 85 P.3d 224 (2004); In re J.W., No. 107,839, 2012 WL 5205749,
at *2-3 (Kan. App. 2012) (unpublished opinion); In re C.B., No. 105,223, 2011 WL
4563104, at *2 (Kan. App. 2011) (unpublished opinion); In re H.M.P., No. 104,463, 2011
WL 2206638, at *3 (Kan. App.) (unpublished opinion), rev. denied 292 Kan. 965 (2011);
In re L.M., No. 102,208, 2009 WL 5206247, at *3 (Kan. App. 2009) (unpublished
opinion). And that court's remaining cases are aligned with this sequencing concept, even
though they do not explicitly say so. See In re A.F., 38 Kan. App. 2d 742, 744, 172 P.3d
63 (2007) (describing these as terms of art but not referencing the particular sequence); In
re E.W., No. 101,910, 2009 WL 5063416, at *4 (Kan. App. 2009) (unpublished opinion)
(defining disposition but not explicitly stating sequence); In re E.G., No. 98,187, 2007
WL 3085378, at *3 (Kan. App. 2007) (unpublished opinion) (defining disposition
without referencing other provisions).
24
Under this sequencing, dispositional orders have been interpreted to be those
concerning child custody entered after the child is adjudicated a child in need of care. In
re D.M.M., 38 Kan. App. 2d at 398-99. But this dispositional phase ends once an order
terminating parental rights is entered, precluding appellate review of any later orders
because post-termination orders are not considered "dispositional orders." See In re S.C.,
32 Kan. App. 2d at 518 (no jurisdiction to review denial of great aunt's post-termination
motion for interested party status); In re D.M.M., 38 Kan. App. 2d at 398-400 (no
jurisdiction to review post-termination reasonable efforts determination); In re A.F., 38
Kan. App. 2d at 744-46 (no jurisdiction to appeal district court's review of SRS's post-
termination change of placement); In re E.W., 2009 WL 5063416, at *5 (no jurisdiction
to appeal post-termination permanency hearing decision reversing SRS best interest
staffing and giving consent to family's adoption).
This approach remains consistent with the statutes governing dispositions and
termination of parental rights. It is also consistent with the legislature's decision to limit
the appealable issues under K.S.A. 2012 Supp. 38-2273(a). Otherwise, as Chief Judge
Malone observed, the panel majority's decision could leave children exposed to an
endless circle of appellate custody battles.
The panel majority rightly pointed out that the dispositional rehearing statute,
K.S.A. 2012 Supp. 38-2256, does not expressly limit rehearing to motions entered before
the termination of parental rights, unlike the statute governing temporary custody orders.
49 Kan. App. 2d at 711; see K.S.A. 2012 Supp. 38-2243(g)(2) (providing temporary
custody orders "remain in effect until modified or rescinded by the court or an
adjudication order is entered but not exceeding 60 days, unless good cause is shown.").
And for the panel majority, the fact that the Revised Code permits rehearing of a
dispositional order demonstrated what it saw as a flaw with its colleagues' prior caselaw,
which held "as a matter of law that the only order of disposition subject to appeal . . . is
25
that one order of disposition entered at the time of, or within 30 days after, adjudication."
In re N.A.C., 49 Kan. App. 2d at 710.
But this reasoning oversimplifies and wrongly dispenses with the prior caselaw,
which does not necessarily deny an appeal of a dispositional order issued after a
rehearing. After all, the time period between a first order of disposition and a termination
of parental rights may be significant, and more than one order of disposition might be
required, especially if the goal is to first attempt parental reintegration. Nothing in the
jurisdictional statute prevents an appeal from any dispositional orders entered after
rehearing. See K.S.A. 2012 Supp. 38-2273(a). But the cutoff under the Revised Code's
structure, as Chief Judge Malone pointed out, is the order terminating parental rights. 49
Kan. App. 2d at 728.
This conclusion is further supported by the termination of parental rights statute,
which limits the actions the court can take once parental rights have been terminated, i.e.,
the court can authorize an adoption, appoint a permanent custodian, or order continued
permanency planning. K.S.A. 2012 Supp. 38-2269(g)(2). Notably absent is the authority
to enter a dispositional order under K.S.A. 2012 Supp. 38-2255. This, of course, makes
sense because when parental rights have been terminated, it is necessarily true that the
district court is no longer doing what the disposition phase requires: weighing whether
the parent should have custody and, if not, whether reintegration is possible. That ship
has sailed.
This conclusion is also consistent with the legislature's obvious intent to limit the
types of appealable issues so there is timely closure in these cases. Otherwise, it is easy to
see how these cases could turn into back-and-forth campaigns of endless litigation and
appeals by persons other than the child's parents. The panel majority's expansive
definition of a "disposition" as any order that "places a child in, continues a child in, or
26
removes a child from the legal custody of an individual or agency" clearly subverts this
intent. In re N.A.C., 49 Kan. App. 2d at 710. As another Court of Appeals panel stated
when deciding whether to permit a grandmother to appeal a district court's post-
termination adoptive placement order:
"We simply cannot create a new category of appeals so that appeals like this one
may be heard. Nor should we. The legislature has worked hard to create a comprehensive
Code for Care of Children. It has attempted to balance the protection of the rights of
children, parents, and other interested parties against the need for speed sufficient to
ultimately allow children to move on and live their lives. We respect the choice the
legislature has made here . . . ." In re A.F., 38 Kan. App. 2d at 746.
Those words could not ring more true as to N.A.C. Her case has been pending on
appeal longer than it was before the CINC court—despite both appellate courts' concerted
efforts to expedite it. N.A.C. had just turned 1 when the CINC court entered the order
giving Foster Parents permission to adopt. As of this decision's filing date, N.A.C. is 2
years, 8 months old.
Appellate review can come at a heavy cost for the young children caught up in
CINC proceedings. See K.S.A. 2012 Supp. 38-2201(b)(4) ("[T]he time perception of a
child differs from that of an adult . . . ."). Through its enactment of the Revised Code, the
legislature has balanced whatever perceived value there may be in letting interested
parties struggle back and forth among themselves at every stage in post-termination
proceedings against the child's recognizable need for permanency. As Chief Judge
Malone observed, the legislature could have easily included permanency orders in its list
of appealable orders when enacting K.S.A. 2012 Supp. 38-2273(a) if it had weighed the
interests differently.
27
Finally, we would be remiss not to acknowledge the dissent's concern that our
holding results in a loss of appellate protection against detrimental placements by the
district courts. But our district court judges who are tasked with presiding over these
difficult CINC cases are well aware of the stakes. And this recognition was evident when
the CINC court commented that both potential families for N.A.C. "have performed well
and done what [they] were told. And each of you has just claims. My sympathies are with
you for the sufferings you're going through right now, and the fact that one of you is
going to get a heartbreaking result here."
Having concluded this court lacks jurisdiction, we do not reach the remaining
issues. The Court of Appeals decision is reversed. This appeal is dismissed.
MORITZ, J., not participating.
R. SCOTT MCQUIN, District Judge, assigned.1
1
REPORTER'S NOTE: District Judge McQuin was appointed to hear case No. 109,208
vice Justice Moritz pursuant to the authority vested in the Supreme Court by art. 3, § 6(f)
of the Kansas Constitution.
***
JOHNSON, J., dissenting: I disagree with the majority's interpretation of K.S.A.
2012 Supp. 38-2273(a), and, thus, I cannot join in the dismissal of this case for lack of
jurisdiction.
While the majority emphasizes that it is employing the specific-over-general
statutory construction rule, it conspicuously ignores the most basic rules. An appellate
court must first attempt to ascertain legislative intent through the statutory language
enacted, giving common words their ordinary meanings. Northern Natural Gas Co. v.
28
ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). Then, if we find
that the legislature's language is plain and unambiguous, "we do not speculate as to the
legislative intent behind it and will not read into the statute something not readily found
in it." 296 Kan. at 918. The majority leapfrogs over the statutory language to ascertain the
meaning of K.S.A. 2012 Supp. 38-2273(a) from the context of other provisions in the
child in need of care (CINC) code and then narrows the statutory language to fit its idea
of what the law should be. Cf. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528(2014) ("Courts must apply a statute's language when it is clear and unambiguous, rather
than determining what the law should be . . . .").
K.S.A. 2012 Supp. 38-2273(a) states: "An appeal may be taken by any party or
interested party from any order of temporary custody, adjudication, disposition, finding
of unfitness or termination of parental rights." As the majority acknowledges, none of the
critical terms in 38-2273(a)—temporary custody, adjudication, disposition, finding of
unfitness, termination of parental rights—is statutorily defined. Without legislative
definitions, the default should be to use common meanings, especially in statutory
provisions that impact a person's fundamental constitutional right to parent his or her
child and especially where most persons impacted by the statute are nonlawyers.
Here, the plain language that scuttles the majority's rationale begins with the word
"any." If the legislature intended for "temporary custody" to be a term of art referring
solely to the one order entered prior to adjudication, the common word to express that
meaning would have been "the," i.e., "An appeal may be taken . . . from the order of
temporary custody." Likewise, if more than one "term of art" temporary custody order
was contemplated, the article that would have conveyed that meaning would have been
"an," i.e., "An appeal may be taken . . . from an order of temporary custody." But the
legislature used the adjective "any," so that the only way to get to the majority's result is
29
to read something into K.S.A. 2012 Supp. 38-2273(a) that is not readily found in its plain
language, in derogation of our own rules of construction.
Perhaps one could quibble over whether "any" was intended to modify all five
types of appealable orders, e.g., "any . . . disposition." But the phrase, "any order of
temporary custody," is not amenable to obfuscation and it is sufficient by itself to invest
this court with jurisdiction over the instant appeal if we follow our rule of ascribing
common meanings to common words. As the majority noted, one component of the order
appealed from was the change of custody, placing N.A.C. with the foster parents pending
an adoption. Because the CINC court did not have jurisdiction to grant an adoption, its
custody order was necessarily temporary, i.e., the order appealed from included an order
of temporary custody.
Unlike the majority, I am not persuaded by the argument that the legislature has
not amended the statutory provisions governing CINC appeals in response to those Court
of Appeals decisions that have narrowly construed the orders that may be appealed. In
recent years, this court has preferred plain-language statutory interpretations over court-
made policy interpretations. See Casco v. Armour Swift-Eckrich, 283 Kan. 508, 527, 154
P.3d 494 (2007) (overruling over 70-year-old caselaw that was contrary to plain statutory
language). In Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, Syl. ¶ 2, 214 P.3d
676 (2009), we explained:
"A history of incorrectly decided cases does not compel the Supreme Court to
disregard plain statutory language and to perpetuate incorrect analysis of workers
compensation statutes. The court is not inexorably bound by precedent, and it will reject
rules that were originally erroneous or are no longer sound."
30
I am likewise unmoved by the argument that the legislature could easily have
signaled its intent to allow post-termination appeals by including in K.S.A. 2012 Supp.
38-2273(a) the newly manufactured term, "permanency orders." That inclusion would be
unnecessary where the "permanency order" involves temporary custody if we simply
follow our common meaning rules. In contrast, the more compelling argument is that, if
the legislature intended the phrase "order of temporary custody" in K.S.A. 2012 Supp.
38-2273(a) to be restricted to one that is entered pursuant to the procedures set forth in
K.S.A. 2012 Supp. 38-2243, it would have been an easy matter for the legislature to
follow its familiar paradigm of referencing the applicable statute, i.e., "any order of
temporary custody made pursuant to K.S.A. 2012 Supp. 38-2243 or amendments
thereto."
Finally, from a policy standpoint, I agree with the majority that quickly attaining
stability in a child's placement is important. But it is also important that the child have the
best possible placement or at least have the means to protect against a detrimental
placement. I just hope that the majority's decision to cut off all post-termination appeals
does not do more harm than good.
31