In re N.E. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,599
In the Interest of N.E., a Minor Child.
SYLLABUS BY THE COURT
1.
Appellate courts have only the jurisdiction provided by law. That means appellate
courts lack jurisdiction to review a district court's decision unless a party has appealed in
the time and manner specified by law. Whether jurisdiction exists is a question of law
subject to unlimited review.
2.
K.S.A. 38-2273(a) governs appellate jurisdiction under the Revised Kansas Code
for the Care of Children, K.S.A. 38-2201 et seq. That statute limits appealable orders to
any order of temporary custody, adjudication, disposition, finding of unfitness, or
termination of parental rights. An order that does not fit within these five categories is
not appealable.
3.
Appeals under K.S.A. 38-2273(a) must be brought within 30 days of the district
court entering judgment.
4.
The Revised Kansas Code for the Care of Children distinguishes between
"custody" and "placement." Orders that address the custody of a child during the
dispositional phase of a child-in-need-of-care proceeding are dispositional orders,
1
which are appealable under K.S.A. 38-2273(a). Orders during the dispositional phase that
address only the placement of the child are not appealable under K.S.A. 38-2273(a).
5.
The Revised Kansas Code for Care of Children establishes a framework of
sequential steps towards permanency in the child's placement. An order terminating
parental rights is the last appealable order under K.S.A. 38-2273(a). Post-termination
orders that address custody are not dispositional orders and are not subject to appellate
review.
6.
Generally, issues not raised before the district court cannot be raised on appeal.
But this preservation rule is prudential, and appellate courts have recognized three
notable exceptions to the rule. To satisfy the preservation rule, a party must either provide
a pinpoint reference to the location in the record on appeal where the issue was raised and
ruled on in the district court, or if the issue was not raised below, there must be an
explanation why the issue is properly before the court. A party who ignores this
requirement is considered to have waived and abandoned the issue on appeal.
7.
The doctrine of stare decisis provides that points of law established by a court
are generally followed by the same court and courts of lower rank in later cases in which
the same legal issue is raised. The application of stare decisis ensures stability and
continuity—showing a continuing legitimacy of judicial review. Thus, courts do not
lightly disapprove of precedent. While stare decisis is not an inexorable command, this
court endeavors to adhere to the principle unless clearly convinced that a rule of law
established in its earlier cases was originally erroneous or is no longer sound because of
changing conditions and that more good than harm will come by departing from
precedent.
2
Review of the judgment of the Court of Appeals in an unpublished opinion filed November 5,
2021. Appeal from Reno District Court; PATRICIA MACKE DICK, judge. Opinion filed September 9, 2022.
Judgment of the Court of Appeals dismissing the appeal is affirmed.
Mitchell F. Engel, pro hac vice, of Shook, Hardy & Bacon, LLP, of Kansas City, Missouri,
argued the cause, and Vanessa Dittman, pro hac vice, and Abilgail Lawson, pro hac vice, of the same
firm, and Travis J. Ternes, of Watkins Calcara, Chtd., of Great Bend, were with him on the briefs for
appellant maternal grandmother.
Jennifer L. Harper, assistant district attorney, argued the cause, and Thomas Stanton, district
attorney, was with her on the brief for appellee.
The opinion of the court was delivered by
WALL, J.: N.E. was four months old when the State took her into protective
custody and placed her with a foster family. We refer to her by initials in this opinion
because she is a minor. See Kansas Supreme Court Rule 7.043 (2022 Kan. S. Ct. R.
at 50). Over the next year and a half, the district court held child-in-need-of-care (CINC)
proceedings under the Revised Kansas Code for the Care of Children (Revised Code),
K.S.A. 38-2201 et seq. During those proceedings, N.E.'s grandmother sought custody of
N.E. When the district court denied Grandmother's request, she appealed to a panel of the
Court of Appeals, which dismissed the appeal for lack of jurisdiction.
We granted Grandmother's petition to review the panel's jurisdictional holding.
The Revised Code's appellate jurisdiction statute, K.S.A. 38-2273(a), limits which district
court decisions may be appealed in a CINC proceeding. That jurisdictional statute, as
construed under our precedent in In re N.A.C., 299 Kan. 1100, 329 P.3d 458 (2014), bars
appellate review of each of the district court orders from which Grandmother has
3
appealed. The doctrine of stare decisis warrants our continued adherence to In re N.A.C.
Thus, we affirm the judgment of the Court of Appeals and dismiss the appeal for lack of
jurisdiction.
FACTS AND PROCEDURAL BACKGROUND
The circumstances that led to the Department for Children and Families (DCF)
taking custody of N.E. are tragic, but they are not the focus of this appeal. To answer
the jurisdictional question, we concentrate on the district court proceedings under the
Revised Code, which the Legislature enacted in 2006 to address the custody and care of a
minor. See L. 2006, ch. 200, § 1. Specifically, we focus on those facts relevant to, and
proceedings conducted under, the portion of the Revised Code that applies when a young
child is taken into protective custody—the CINC proceedings.
We do not ordinarily discuss the legal framework in this section of the opinion.
But here, a general understanding of the statutory scheme governing CINC proceedings is
important to place the facts and district court proceedings in their proper context and to
fully appreciate their significance to the jurisdictional question raised in this appeal.
CINC proceedings unfold in a specific, temporal order. See 299 Kan. at 1110-15.
First, during the temporary-custody phase, a district court decides whether it should
temporarily place the child in the custody of specific persons or entities listed by statute,
such as the Secretary of DCF. See K.S.A. 38-2243(f), (g)(1). Second, during the
adjudication phase, the district court determines whether the child meets one or more
statutory definitions of a "child in need of care." See K.S.A. 38-2202(d)(1)-(14) (defining
a child in need of care); K.S.A. 38-2251 (providing for adjudication). Third, during the
dispositional phase, the district court enters orders that address the custody and case
planning of a child adjudicated as a "child in need of care." K.S.A. 38-2253(a). Fourth,
during the termination phase, the district court decides whether a parent is "unfit" under
4
several statutory factors and whether it is in the best interests of the child to terminate
parental rights. See K.S.A. 38-2269(a)-(g)(1). Finally, if the court decides to terminate
parental rights, then during the post-termination phase, the district court facilitates
placement of the child in a permanent family setting, whether through adoption or the
appointment of a permanent custodian. See K.S.A. 38-2269(g)(2) (providing options for
district court after termination of parental rights).
With one important exception noted below, N.E.'s case followed the typical
progression of CINC proceedings under the statutory framework described above. Those
proceedings began in August 2019, when the State took protective custody of N.E., and
they ended in January 2021, when Grandmother appealed and N.E. was adopted by her
foster family.
Temporary Custody Phase
During the temporary-custody phase in August 2019, the district court temporarily
placed N.E. in the custody of DCF, which immediately placed N.E. with a foster family.
For reasons that will become important later, we note that the temporary custody order
placed conditions on DCF's ability to make a "kinship care placement." Under the
Revised Code, a "placement" is the decision by the individual or agency having custody
of the child about "where and with whom the child will live." K.S.A. 38-2202(z). A
"kinship care placement," then, is a placement "in the home of an adult with whom the
child or the child's parent already has close emotional ties." K.S.A. 38-2202(q). The
district court imposed two conditions on such placements. First, it ordered that DCF
could make no short-term kinship placements without the approval of the guardian ad
litem, the court-appointed attorney who represents the child's interests in a CINC
proceeding. See K.S.A. 38-2205(a) (providing for appointment of attorney for the child
in a CINC proceeding). Second, the court ordered that DCF could make no long-term
5
kinship placements unless a "kinship assessment" had been completed and the court had
scheduled a review hearing.
Grandmother appeared in person at the temporary custody hearing. And the
district court provided "the parents, grandparents and/or interested parties, who were
present at [the] hearing . . . with informational materials pertaining to their respective
rights and responsibilities in connection with the proceedings." But nothing in the record
suggests that Grandmother objected to the placement limitations in the temporary custody
order at that time. Nor did Grandmother appeal from the temporary custody order. See
K.S.A. 38-2273(a) (permitting the appeal of "any order of temporary custody").
Adjudication Phase
During the adjudication phase in September 2019, the district court adjudicated
N.E. as a child in need of care. In its September 19th Journal Entry and Orders of
Adjudication and Disposition, the district court found that N.E. met three of the statutory
definitions of a child in need of care. The district court also specified that its previous
findings and orders would remain in effect. Neither parent contested the district court's
adjudication of N.E. as a child in need of care. Grandmother did not appear at the
adjudication hearing. And nothing in the record suggests that she objected at that time to
the adjudication of N.E. as a child in need of care or to the district court's continuation of
its previous findings and orders. As with the temporary custody order, Grandmother did
not appeal the order of adjudication. See K.S.A. 38-2273(a) (permitting the appeal of an
adjudication order).
Dispositional Phase
The dispositional phase began when the district court ordered N.E. to remain in
the custody of DCF as part of its September 19, 2019 Orders of Adjudication and
6
Disposition. As noted, DCF had exercised its custodial authority by placing N.E. with a
foster family. But six to nine months into the dispositional phase, two events added
complexity to these CINC proceedings. First, in March 2020, the COVID-19 pandemic
impacted the way courts could safely conduct judicial proceedings in Kansas courtrooms.
In response, our court entered administrative orders suspending "statutory time standards
or deadlines applying to the conduct or processing of judicial proceedings." See, e.g.,
Administrative Order 2020-PR-016 (imposing statewide restrictions on judiciary
operations effective March 18, 2020). Second, in May 2020, Grandmother engaged
counsel and became significantly more involved in the proceedings.
Grandmother Requests Placement
The order and timing of the later proceedings is important to our jurisdictional
analysis. In March 2020, a supervisor at St. Francis Ministries, the social-service agency
managing N.E.'s case on behalf of DCF, informed the district court that Grandmother
wanted DCF to place N.E. in Grandmother's home, rather than with the foster family.
After gathering input from the parties, the district court issued an April 30th email ruling
finding that placement with Grandmother was not in N.E.'s best interests.
Grandmother Moves for Custody and Other Procedural Developments
On May 22, 2020, Grandmother's counsel filed a motion for interested party status
and custody of N.E. In the motion, Grandmother noted that a permanency hearing had
been scheduled for June 4, and that neither permanent placement, termination of parental
rights, nor adoption had yet been completed. Thus, Grandmother argued that she had
a right to be heard as an interested party seeking custody and placement of N.E.
Grandmother did not request a stay of, or otherwise object to, the court's setting of the
permanency hearing for June 4.
7
While Grandmother's custody motion was pending, the district court conducted a
hearing on June 4, 2020, to evaluate progress towards a permanent placement of N.E.
Grandmother appeared by counsel at the permanency hearing. After the hearing, the
district court entered its June 15th Permanency Hearing Journal Entry and Order. There,
the district court found that reintegration with N.E.'s parents was not a viable permanency
objective and adoption might be in N.E.'s best interests. Thus, the district court ordered
the State to file a pleading to terminate parental rights, and it determined that a new
permanency plan should be submitted to achieve the goal of adoption. The district court
also found that N.E.'s needs were being adequately met in her current placement with the
foster parents and such placement continued to be in N.E.'s best interests. Based on these
findings, on June 17, the State moved to find N.E.'s parents unfit and to terminate their
parental rights. See K.S.A. 38-2264(i) (directing the State to move to terminate parental
rights within 30 days of district court's finding on reintegration).
Meanwhile, two other significant developments occurred. First, the district court
entered an order on June 11, 2020, memorializing the finding from its April 30th email
ruling that placement with Grandmother would not be in N.E.'s best interests.
Grandmother would later appeal from this June 11th placement order. Second, on June
19, the district court entered a scheduling order setting Grandmother's custody motion for
an evidentiary hearing on August 4. And three days later, on June 22, the district court set
the State's motion to terminate parental rights for hearing on August 20.
But things did not go as scheduled. The day before the hearing on Grandmother's
custody motion, the State's attorney asked for a continuance because she was quarantined
pending the results of a COVID-19 test. The district court reluctantly rescheduled the
hearing for September 8, 2020. Nothing in the record suggests Grandmother objected to
this continuance or the new date set for the evidentiary hearing on her custody motion.
8
Termination Phase
Though Grandmother's custody motion remained pending, the court moved on to
the termination phase of the CINC proceedings and conducted an evidentiary hearing on
the State's motion to terminate parental rights on August 20, 2020. At the hearing, N.E.'s
father relinquished his parental rights, and after making the statutorily required findings,
the district court terminated the parental rights of N.E.'s mother. The district court
findings and conclusions were memorialized in the August 28th Finding of Unfitness
and Order Terminating Parental Rights. There, the district court terminated parental
rights and ordered N.E. to remain in DCF custody for adoption proceedings. See K.S.A.
38-2270(a)(1) (permitting district court to place child with DCF for adoption if adoption
is viable after the termination of parental rights).
Grandmother appeared in person and through counsel at the August 20th
termination hearing. But the transcript of this hearing is not included in the record. Thus,
there is no evidence to suggest Grandmother objected to the district court's decision to
proceed with the termination hearing on August 20 while her custody motion was still
pending. Nor did she move to continue the August 20th termination hearing. Likewise,
there is no evidence to suggest Grandmother objected in district court to the State's
motion to terminate parental rights or to any of the findings, conclusions, or orders
memorialized in the August 28th Findings of Unfitness and Order Terminating Parental
Rights. Even so, Grandmother would later appeal from this order.
Post-Termination Phase
After the district court terminated parental rights, N.E.'s CINC proceedings moved
to the post-termination phase. At the end of the termination hearing on August 20, 2020,
the district court scheduled a permanency hearing for September 3. But on August 27,
Grandmother moved to continue that permanency hearing to September 8, the date set for
9
the evidentiary hearing on her custody motion. By scheduling "the matters to be heard at
the same time," Grandmother argued the continuance would promote judicial economy.
Grandmother also argued that if the district court made a permanency decision before
ruling on her custody motion, it could render her motion moot, depriving Grandmother
"of her day in Court" and the opportunity to be given "substantial consideration as a
placement option" for N.E. The district court agreed to continue the permanency hearing
and to conduct a consolidated hearing on permanency and Grandmother's custody motion
on September 8.
But the COVID-19 pandemic continued to impact the post-termination phase
of the CINC proceedings. On September 4, 2020, the State moved to continue the
consolidated hearing on permanency and Grandmother's custody motion because one of
the State's witnesses was in quarantine. In its motion, the State confirmed that neither the
guardian ad litem nor Grandmother objected to the requested continuance. The district
court granted the State's motion and reset the consolidated hearing for October 9.
On October 9, 2020, the district court conducted an evidentiary hearing on
Grandmother's custody motion. But the district court did not hear from all interested
parties because counsel for the foster parents was in quarantine and unable to attend.
Thus, the district court took Grandmother's custody motion under advisement and
continued the permanency hearing to November 13. But as the November hearing
approached, foster parents moved for a continuance because their expert witness was
unavailable and out of state. Counsel for foster parents explained that her recent COVID-
19-related illness had prevented her from securing the witness' availability and attendance
for the November 13th hearing. The district court found good cause to continue the
consolidated hearing both because "grandmother's attorney is ill and a witness for the
foster parents is unavailable." The district court reset the hearing for December 18.
10
Grandmother filed a letter to the district court on December 3, 2020, requesting a
ruling on her motion for interested party status and custody of N.E. On December 10, the
district court ruled on that request in its journal entry clarifying findings. There, the
district court determined that Grandmother had interested party status by law and that no
order was needed to memorialize this status. The district court then found that it had
rejected Grandmother's request for placement of N.E. in its June 11th order. The district
court had agreed to hear more evidence at the October 9th hearing on Grandmother's
custody motion. But after the October 9th hearing, the district court had taken
Grandmother's custody motion under advisement, rather than ruling on the merits,
because counsel for foster parents could not attend because of COVID-19. The district
court found that it was appropriate to take Grandmother's motion under advisement until
all parties had the chance to be heard and "a complete ruling can be made." And it
concluded that any timelines governing the adjudication of motions taken under
advisement had been suspended by our court's COVID-19 orders.
The district court conducted the evidentiary hearing on permanency and custody
on December 18, 2020, as scheduled. All parties and interested parties, including foster
parents and Grandmother, appeared in person or through counsel. On December 22, the
district court entered its Journal Entry of Permanency Hearing for Child in Need of Care
Post-Termination. In this journal entry, the district court found that adequate progress
toward the permanency goal of adoption had not occurred and that placement with foster
parents was in the best interests of N.E. The district court terminated DCF custody and
placed N.E. in the custody of foster parents for adoption. Grandmother would later appeal
this order.
The district court entered its journal entry addressing findings under advisement
on January 6, 2021. There, the district court again found that Grandmother had "filed a
motion for interested party status and a request for change in custody" on May 22, 2020.
And while the court had denied Grandmother's request for placement in its June 11th
11
order, it had agreed to hear more evidence on the custody request at the hearing on
Grandmother's custody motion in October. But because "counsel for the foster parents
was quarantined and unable to be present" at the October evidentiary hearing, the court
decided to take the motion under advisement and "not enter further orders until after the
permanency hearing scheduled for December 18, 2020[,] at which time the foster parents
would have an opportunity to express their intentions and desires to the court." Based on
these findings, the district court ruled that all matters taken under advisement had been
resolved in the December 22, 2020 journal entry finding that reasonable efforts toward
permanency had not been achieved and that changing custody from DCF to foster parents
was in N.E.'s best interests. Given this journal entry, the district court found that all
matters taken under advisement were moot. Grandmother would later appeal this order.
On the day the district court filed its January 6, 2021 journal entry, the foster
parents adopted N.E. in a separate court action in Reno County District Court. It is
unclear from the record whether the same district court judge presided over that action.
Two days later, on January 8, the district court entered a final order terminating its
jurisdiction over the case under K.S.A. 38-2270(c) ("the court's jurisdiction over the child
shall cease" when an adoption decree is filed). So ended the district court proceedings in
this case.
Grandmother Appeals
Five days after the district court terminated jurisdiction, Grandmother appealed to
a panel of the Court of Appeals, asking it to vacate N.E.'s adoption, remand the matter
for assignment of a new district court judge, and transfer custody of N.E. back to DCF.
Grandmother alleged that the district court had committed four errors: (1) it disregarded
this state's "familial preference doctrine" and the "substantial consideration" statutorily
afforded to grandparents in CINC proceedings; (2) it lacked authority under the Revised
Code to limit kinship placements; (3) it rejected Grandmother's petition for custody based
12
on improper, inadmissible, and inaccurate information; and (4) it had not adequately
considered what was in N.E.'s best interests, as the Revised Code required.
Perhaps anticipating questions about appellate jurisdiction, Grandmother opened
her appellate brief by identifying the four court orders from which she appealed and
arguing why the Revised Code granted appellate courts subject matter jurisdiction over
each of these orders. As noted, those four orders included: (1) the June 2020 order
memorializing the placement findings set forth in the district court's April 2020 email
ruling; (2) the August 2020 order terminating parental rights; (3) the December 2020
journal entry memorializing its post-termination permanency findings and conclusions;
and (4) the January 2021 journal entry clarifying that the December 2020 journal entry
had resolved all matters the district court had taken under advisement.
The panel was not convinced. It dismissed Grandmother's appeal for lack of
jurisdiction after holding that none of the orders were appealable under K.S.A. 38-
2273(a). In re N.E., No. 123,599, 2021 WL 5144521, at *9 (Kan. App. 2021)
(unpublished opinion). Given that outcome, the panel refrained from addressing the
merits of Grandmother's appeal. See In re Estate of Lentz, 312 Kan. 490, 504, 476 P.3d
1151 (2020) (a court that dismisses for lack of jurisdiction should not opine on the
merits).
Grandmother then petitioned our court for review. We granted review of the
panel's jurisdictional holding.
ANALYSIS
The task before us is narrow: we must decide whether the panel erred in
concluding that Kansas appellate courts lack jurisdiction over Grandmother's appeal.
13
Given that limited scope, we will not address Grandmother's substantive critiques of the
district court's decisions.
I. Legal Framework and Standard of Review
Appellate courts have only the jurisdiction provided by law. Williams v. Lawton,
288 Kan. 768, 778, 207 P.3d 1027 (2009). CINC proceedings are civil, and appellate
jurisdiction in civil cases is mainly defined by statute. See K.S.A. 38-2201(a); Wiechman
v. Huddleston, 304 Kan. 80, Syl. ¶ 1, 370 P.3d 1194 (2016). That means appellate courts
lack jurisdiction to review a district court order unless a party has appealed in the time
and manner specified by law. 304 Kan. 80, Syl. ¶ 1. 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).
Typically, in civil actions, a party may appeal to the Court of Appeals as a matter
of right from "[a] final decision in any action." K.S.A. 2021 Supp. 60-2102(a)(4). But the
Revised Code contains its own appellate jurisdiction statute, K.S.A. 38-2273(a). This
statute grants appellate courts jurisdiction to review only five types of orders in CINC
cases: "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." K.S.A. 38-2273(a). The parties agree that Grandmother is an "interested
party" to the CINC proceedings because she is N.E.'s grandparent. See K.S.A. 38-
2202(m).
We have recognized the history of K.S.A. 38-2273(a) confirms that the
"[L]egislature 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
14
orders." In re N.A.C., 299 Kan. at 1108. And because K.S.A. 38-2273(a) is the more
specific statute, it controls over K.S.A. 2021 Supp. 60-2102(a)(4). 299 Kan. at 1108-09.
Thus, K.S.A. 38-2273(a) is the controlling statute that defines the scope of an appellate
court's jurisdiction to review CINC orders, and if an order does not fit within the five
categories of appealable orders under that statute, "it is not appealable." See 299 Kan.
1100, Syl. ¶ 3.
In In re N.A.C., we held that the Legislature's deliberate sequencing of the stages
of CINC proceedings under the Revised Code showed that an order terminating parental
rights is the last appealable order in a CINC case. See 299 Kan. 1100, Syl. ¶ 6. Orders
entered after termination of parental rights, including orders finding that the state agency
has not made reasonable efforts or progress toward adoptive placement and orders
removing children from state agency custody and placing them directly with their foster
parents, are not appealable under K.S.A. 38-2273(a). 299 Kan. 1100, Syl. ¶ 6.
Appellate jurisdiction to review CINC orders is also limited temporally. To secure
appellate jurisdiction, parties must file a notice of appeal from each appealable order
specified in K.S.A. 38-2273(a) within 30 days of the district court's judgment. See K.S.A.
38-2273(c) (providing that K.S.A. chapter 60, article 21 governs procedure for appeals
under the Revised Code); see K.S.A. 2021 Supp. 60-2103(a) (specifying that the time
within which an appeal may be taken must be 30 days from entry of judgment). Failure
to timely appeal typically deprives the appellate court of subject matter jurisdiction. See
State v. Hooks, 312 Kan. 604, 606, 478 P.3d 773 (2021). But in response to the COVID-
19 pandemic, our court issued administrative orders on March 18, 2020, suspending all
"statutory time standards or deadlines applying to the conduct or processing of judicial
proceedings." See Administrative Order 2020-PR-016; see also L. 2020, ch. 4, § 1
(authorizing the Kansas Supreme Court to issue order extending or suspending any
deadlines or time limitations established by statute during any state of disaster
15
emergency). Thus, any order the district court entered after March 18, 2020, is not subject
to the 30-day statutory deadline for appeal.
Given this legal framework, the controlling question on appeal is whether the
orders that Grandmother has appealed fit within any of the five categories of appealable
orders specified in the statute, and if applicable, whether Grandmother timely appealed
from these orders.
II. Appellate Jurisdiction to Review the Challenged Orders
Having extensively reviewed the Revised Code's statutory scheme and our caselaw
interpreting it, we conclude that the orders that Grandmother has challenged are not
appealable under K.S.A. 38-2273(a) for three reasons, which we will summarize here and
expand upon below.
First, the June 2020 order was not a dispositional order because it concerned a
placement decision, not a custody decision, and placement decisions are not appealable
under K.S.A. 38-2273(a). Second, despite her assertions to the contrary, Grandmother
preserved no claim of error related to the August 2020 order terminating parental rights.
Instead, Grandmother challenges the conditions the district court imposed on kinship care
placements. But the district court imposed those conditions in its September 2019
temporary custody order. Grandmother failed to appeal the temporary custody order at
all, let alone within the statutory deadline in effect at that time. Finally, the December
2020 and January 2021 journal entries were entered during the post-termination phase of
the CINC proceedings, months after the district court terminated parental rights. In In re
N.A.C., we held that post-termination orders are not appealable under K.S.A. 38-2273(a),
and we reaffirm that holding today under the doctrine of stare decisis. 299 Kan. 1100,
Syl. ¶ 6. We now discuss these three conclusions in turn.
16
A. The District Court's June 2020 Order Is Not an Appealable Dispositional
Order Under K.S.A. 38-2273(a)
The first order in the CINC proceedings that Grandmother challenges is the June
2020 placement order. The timeline of events is important here because it confirms the
June 2020 order was a placement order, not a dispositional custody order. And K.S.A.
38-2273(a) does not authorize appellate court review of placement orders.
On March 25, 2020, a supervisor at St. Francis Ministries informed the district
court that Grandmother wanted "placement" of N.E. The district court did not hold an in-
person hearing on that request because, to mitigate the spread of COVID-19, our court
had limited district court functions to emergency operations only. Under those orders, a
hearing on a placement decision was not classified as an emergency operation. See
Administrative Order 2020-PR-016 (enumerating emergency operations in CINC cases).
After reviewing documents submitted to the court in response to Grandmother's
placement request and hearing from the parties by email, the district court denied
Grandmother's request in an April 30, 2020 email. Then on May 22, Grandmother moved
for custody of N.E. And on June 11, 2020, the district court entered the placement order
that Grandmother has challenged on appeal. It explained the purpose of the June 2020
order was to "further memorialize findings made by the court and stated in an email on
April 30, 2020," and it concluded that placement with Grandmother was not in N.E.'s best
interests.
The panel held that the June 2020 order was not a dispositional order subject to
appeal under K.S.A. 38-2273(a) because it was not a ruling on Grandmother's custody
motion. In re N.E., 2021 WL 5144521, at *8-9. Instead, the panel found that the order
was "a summary of the email exchanges between the parties leading to the district court's
17
initial rejection" of Grandmother's request for placement. 2021 WL 5144521, at *9. The
law and the record support the panel's conclusion.
The Revised Code distinguishes between the "placement" and the "custody" of
a child. Custody is "the status . . . that vests in a custodian . . . the right to physical
possession of the child and the right to determine placement of the child, subject to
restrictions placed by the court." K.S.A. 38-2202(h). In contrast, placement is "the
designation by the individual or agency having custody of where and with whom the
child will live." K.S.A. 38-2202(z).
Orders addressing the custody of a child that are entered during the dispositional
phase of a CINC proceeding are dispositional orders—one of the five types of appealable
orders under K.S.A. 38-2273(a). See In re N.A.C., 299 Kan. at 1119. But orders
addressing the placement of a child are not dispositional orders, and K.S.A. 38-2273(a)
does not vest appellate courts with jurisdiction to review such orders. See In re D.M.M.,
38 Kan. App. 2d 394, 399, 166 P.3d 431 (2007) ("If the legislature had intended to allow
an order regarding a change in placement to be appealable, the legislature could have
easily listed this as an appealable order under the statute.").
The record before us makes clear that the June order was not a ruling on
Grandmother's May 22, 2020 custody motion. Grandmother did not move for custody of
N.E. until May, after the district court had issued its April 30th email ruling denying
Grandmother's placement request. And the district court expressly stated that the purpose
of the June 11th order was to memorialize the findings from this April email ruling. The
June order did not address or modify DCF's custody of N.E. Instead, the court found that
moving the minor child to Grandmother's home was not in the child's best interests and
ordered that the child remain in foster care where DCF had placed N.E. See K.S.A. 38-
2202(z) (defining placement as "the designation . . . of where and with whom the child
will live").
18
The developments following the June 2020 order confirm this conclusion.
Roughly one week after issuing the June order, the district court issued a scheduling
order setting Grandmother's custody motion for an evidentiary hearing on August 4. This
setting would have been unnecessary if the district court had ruled on Grandmother's
custody motion in its June order. The August setting was later continued to October,
when the district court received evidence on the custody motion. The district court took
the custody motion under advisement after the October hearing, rather than issuing a
ruling. On December 3, Grandmother requested a ruling on her custody motion. Again,
Grandmother's request would have been unnecessary if the district court had ruled on her
custody motion in the June order. The district court resolved Grandmother's custody
motion in its December 2020 post-termination journal entry on permanency and its
January 2021 journal entry ruling on matters taken under advisement.
This record, coupled with the Revised Code's definition of "custody" and
"placement," confirm that the district court's June 2020 order addressed only
Grandmother's March 2020 request for placement of N.E., not the custody of the child.
Orders addressing the district court's placement decisions are not appealable under
K.S.A. 38-2273(a). Thus, the appellate courts have no jurisdiction to review this order.
B. Traditional Rules of Issue Preservation and the Controlling Appellate
Jurisdiction Statutes Preclude Grandmother from Using the August 2020
Order Terminating Parental Rights as a Vehicle to Challenge the Placement
Limitations Set Forth in the District Court's 2019 Temporary Custody Order
The second order in the CINC proceedings that Grandmother purports to challenge
is the August 2020 order terminating the parental rights of N.E.'s mother and father. In
that order, the district court made the requisite findings for a termination of parental
rights under K.S.A. 38-2269 (a) and (g)(1) and ordered N.E. to remain in DCF custody
for adoption proceedings.
19
We say that Grandmother has only "purported" to appeal from the August 2020
order terminating parental rights because she does not challenge any of the findings,
conclusions, or ancillary rulings set forth in that order. Grandmother has not challenged
the statutory findings of unfitness, the termination decision itself, or the directive to
continue custody with DCF for adoption. In short, Grandmother has challenged nothing
in the termination order on appeal.
But even if she had raised a challenge to the termination order on appeal, her
arguments would not be properly before this court. Grandmother appeared at the
termination hearing in person and by her attorney. But the record on appeal does not
include the transcript of the termination hearing, any exhibits introduced at that hearing,
or any other submissions Grandmother may have filed in response to the State's motion
for findings of unfitness and to terminate parental rights. Thus, there is no evidence to
suggest that Grandmother raised any issue or lodged any objection in district court to the
State's motion or to the findings and conclusions in the August 2020 termination order.
Generally, issues not raised before the district court cannot be raised on appeal.
State v. Keys, 315 Kan. 690, 696, 510 P.3d 706 (2022). But this preservation rule is
prudential, and appellate courts have recognized three notable exceptions to the rule,
including when:
"(1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and is determinative; (2) consideration of the theory is necessary to serve
the ends of justice or to prevent the denial of fundamental rights; and (3) the trial court
may be affirmed because it was right for the wrong reason." State v. Perkins, 310 Kan.
764, 768, 449 P.3d 756 (2019).
20
To satisfy the preservation rule, a party must either provide a "pinpoint reference
to the location in the record on appeal where the issue was raised and ruled on" in the
district court, or "[i]f the issue was not raised below, there must be an explanation why
the issue is properly before the court." See Kansas Supreme Court Rule 6.02(a)(5) (2022
Kan. S. Ct. R. at 36). A party who ignores this requirement is considered to have waived
and abandoned any exception to the preservation rule. See State v. Meredith, 306 Kan.
906, 909, 399 P.3d 859 (2017).
Grandmother provides no citation to the record where she challenged or objected
to the State's motion to terminate parental rights or the district court's termination order.
And she has briefed no exception to the preservation rule on appeal. See State v. Godfrey,
301 Kan. 1041, 1043, 350 P.3d 1068 (2015) ("[A]n exception must be invoked by the
party asserting the claim for the first time on appeal."). Thus, even if subject matter
jurisdiction were proper, Grandmother waived and abandoned any challenge to the
termination order. See State v. Farmer, 312 Kan. 761, 766, 480 P.3d 155 (2021) (issue
treated as waived and abandoned where appellant disregarded Supreme Court Rule 6.02).
Rather than challenging the findings and conclusions in the August 2020
termination order, Grandmother objects to the limitations the district court imposed on
short-term and long-term kinship care placements. On appeal, Grandmother contends that
the district court lacked statutory authority to impose those placement limitations. She
asks the appellate courts to return N.E. to DCF custody so that the agency can make
placement decisions free from the extra-statutory constraints.
But the district court imposed these limitations in the temporary-custody order
entered at the outset of the CINC proceedings, not in the order terminating parental
rights. In the September 2019 temporary custody order, the district court ordered that no
short-term kinship care placement will be made without approval of the guardian ad
litem. And no long-term kinship care placement could be made until a kinship assessment
21
had been completed and forwarded to the court and a review hearing set. The August
2020 termination order, entered almost one year after the temporary custody order, does
not mention these limitations on kinship placement at all. Nor does the termination order
continue prior orders of the district court.
Whatever the merits of Grandmother's substantive challenge to the district court's
limitations on kinship care placement, the appellate courts have no jurisdiction to
evaluate them under the circumstances presented here. K.S.A. 38-2273(a) permits a party
or interested party to appeal from "any order of temporary custody." As an interested
party, Grandmother could have challenged the kinship care placement limitations by
timely appealing from the temporary custody order. Grandmother appeared in person
at the temporary custody hearing in August 2019, and the district court advised
Grandmother of her rights as an interested party at that hearing. But Grandmother did not
appeal that order.
The district court entered the temporary custody order at least six months before
our administrative order suspended statutory deadlines in response to the COVID-19
pandemic. Thus, any appeal of the temporary custody order (and the placement
limitations in it) had to be filed within the 30-day statutory deadline for appeal. See
K.S.A. 38-2273(c) (providing that K.S.A. chapter 60, article 21 governs procedure for
appeals under the Revised Code); K.S.A. 2021 Supp. 60-2103(a) (a party must appeal
within 30 days of the district court entering judgment). Grandmother's failure to timely
appeal from the temporary custody order deprives the appellate courts of jurisdiction to
review the kinship care limitations established in that order. See Wiechman, 304 Kan. 80,
Syl. ¶ 1 (Appellate courts lack jurisdiction to entertain a civil appeal that is not taken
within the time limitations prescribed by the applicable statutes.).
Grandmother asserts that the kinship placement limitations in the temporary
custody order continued to constrain DCF's placement decisions nearly one year later
22
when the district court terminated parental rights. Thus, Grandmother contends that she
may legitimately challenge those limitations by appealing from the August 2020
termination order. And she notes that her January 2021 notice of appeal is timely, even
though filed more than 30 days after the termination order, because the termination order
was entered after our court had suspended statutory timelines because of COVID-19.
Grandmother's argument fails for at least two reasons. First, there is no evidence in
the record to suggest that the kinship care placement limitations in the temporary custody
order remained in force one year later when the district court terminated parental rights.
The August 2020 termination order neither references these limitations nor continues the
effectiveness of the district court's prior orders. And by law, temporary custody orders are
short lived. These 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
stated on the record." K.S.A. 38-2243(g)(2). The record does not reflect that any party
established good cause to extend the temporary custody orders beyond this 60-day
statutory period.
Second, Grandmother's argument would circumvent the applicable appellate
jurisdiction statutes and render them meaningless. As noted, the August 2020 termination
order did not address, incorporate, or continue the kinship care placement limitations in
the 2019 temporary custody order. And the applicable statutes required Grandmother to
challenge those limitations by appealing the temporary custody order within 30 days. See
K.S.A. 38-2273(c) (providing that K.S.A. chapter 60, article 21 governs procedure for
appeals under the Revised Code); K.S.A. 2021 Supp. 60-2103(a) (a party must appeal
within 30 days of the district court entering judgment). Grandmother failed to do so.
Permitting Grandmother to challenge the limitations in the 2019 temporary custody order
through an appeal from the 2020 termination order would circumvent the requirements of
K.S.A. 38-2273(c) and K.S.A. 2021 Supp. 60-2103(a). Thus, Grandmother cannot
23
manufacture or bootstrap appellate jurisdiction by using the August 2020 termination
order as a vehicle to appeal the kinship care placement limitations in the September 2019
temporary custody order.
The panel also concluded that it lacked jurisdiction over this portion of
Grandmother's appeal. We agree with that conclusion but depart from the panel's
reasoning. We hold that Grandmother has raised an untimely challenge to the temporary-
custody order, and her failure to timely appeal from that order deprives appellate courts
of jurisdiction over these claims. In contrast, the panel held that it lacked jurisdiction
because "only the parents have standing to appeal" a termination order. In re N.E., 2021
WL 5144521, at *8. We are skeptical of the panel's sweeping pronouncement.
To satisfy the Kansas Constitution's case-or-controversy requirement,
Grandmother needed to establish both statutory and common law standing to appeal
this order. See In re T.M.M.H., 307 Kan. 902, 908, 416 P.3d 999 (2018). But K.S.A. 38-
2273(a) expressly allows an "interested party," including a grandparent, to appeal a
termination order. Thus, Grandmother seemingly had statutory standing to appeal. And,
under the present showing, we are unwilling to foreclose the possibility that a
grandparent could establish common-law standing to challenge orders terminating
parental rights or other ancillary rulings made in such orders. See Baker v. Hayden, 313
Kan. 667, 674, 490 P.3d 1164 (2021) (establishing common-law standing requires
showing "'a personal interest in a court's decision'" and that the person "'personally
suffers some actual or threatened injury as a result of the challenged conduct'"). In any
event, because we hold that Grandmother has raised an untimely challenge to the
temporary-custody order, and her failure to timely appeal from that order deprives
appellate courts of jurisdiction over these claims, we need not decide the standing issue
here.
24
C. K.S.A. 38-2273(a) Precludes Appellate Review of the District Court's
December 2020 and January 2021 Post-termination Orders
The final two orders that Grandmother has challenged are the December 2020
journal entry and the January 2021 journal entry. The December 2020 journal entry
reflects the district court's post-termination permanency rulings, including its finding that
DCF had failed to make reasonable efforts or progress toward adoptive placement, and its
attendant orders terminating DCF custody and placing N.E. in the custody of foster
parents for adoption. In the January 2021 journal entry, the district court first explained
why it had taken Grandmother's custody motion under advisement after the October 2020
evidentiary hearing and through the conclusion of the post-termination permanency
hearing on December 18, 2020. Then, it ruled that all matters it had taken under
advisement were resolved by the custody orders in the December 2020 journal entry.
The panel concluded that our holding in In re N.A.C. foreclosed appellate
jurisdiction over these two orders. In re N.E., 2021 WL 5144521, at *7-8. In In re N.A.C.,
we held that appellate courts lack jurisdiction to review post-termination orders in CINC
proceedings because they are not an "order of temporary custody, adjudication,
disposition, finding of unfitness or termination of parental rights" under K.S.A. 2012
Supp. 38-2273(a). 299 Kan. 1100, Syl. ¶ 6. Acknowledging as much, Grandmother asks
us to reconsider In re N.A.C.'s holding.
To resolve the jurisdictional question, we first examine the holding in In re N.A.C.
and conclude that the doctrine of stare decisis warrants our continued adherence to this
precedent. Then, we analyze both of the challenged orders under In re N.A.C.'s holding
and conclude that this precedent forecloses appellate review of the December 2020 and
January 2021 journal entries.
25
1. Stare Decisis Analysis of In re N.A.C.
Grandmother's appeal from these two post-termination orders requires us to
address a threshold inquiry: whether the doctrine of stare decisis warrants our continued
adherence to In re N.A.C. "The doctrine of stare decisis provides that 'points of law
established by a court are generally followed by the same court and courts of lower rank
in later cases in which the same legal issue is raised.'" State v. Clark, 313 Kan. 556, 565,
486 P.3d 591 (2021) (quoting Hoesli v. Triplett, Inc., 303 Kan. 358, 362-63, 361 P.3d 504[2015]). "'"The application of stare decisis ensures stability and continuity—
demonstrating a continuing legitimacy of judicial review."'" State v. Davidson, 314 Kan.
88, 93, 495 P.3d 9 (2021). Thus, "we do not lightly disapprove of precedent." State v.
Spencer Gifts, 304 Kan. 755, 766, 374 P.3d 680 (2016).
"'While "stare decisis is not an inexorable command," this court endeavors to adhere to
the principle unless clearly convinced a rule of law established in its earlier cases "'"was
originally erroneous or is no longer sound because of changing conditions and that more
good than harm will come by departing from precedent."'" [Citations omitted.]'" Clark,
313 Kan. at 565.
In In re N.A.C., we determined that the Legislature had structured CINC
proceedings as a sequence of steps and that the appealable orders listed in K.S.A. 2012
Supp. 38-2273(a)—orders of temporary custody, adjudication, disposition, unfitness, and
termination of parental rights—corresponded to those steps. 299 Kan. at 1115-16. As a
result, we held that an order terminating parental rights is the last appealable order in a
CINC proceeding under K.S.A. 38-2273(a), and orders entered post-termination are not
appealable. 299 Kan. 1100, Syl. ¶ 6.
Grandmother contends that In re N.A.C.'s holding was erroneous. She claims that
some post-termination orders (like the one that denied her custody motion) are properly
classified as dispositional orders because they address custody and are entered after the
26
child has been adjudicated as a child in need of care. See 299 Kan. at 1119 (defining
dispositional orders). Because K.S.A. 38-2273(a) allows an appeal from "any . . .
disposition," Grandmother reasons In re N.A.C. wrongly concluded that the statute
precludes appellate review of post-termination orders addressing custody. The dissent in
In re N.A.C. raised the same point, but the majority rejected this construction of the
Revised Code's jurisdiction statute. See 299 Kan. at 1123 (Johnson, J., dissenting).
We are not "clearly convinced" In re N.A.C.'s holding was originally erroneous.
First, In re N.A.C.'s interpretation of the appellate jurisdiction statute is logical and better
harmonizes this statute with other provisions in the Revised Code when read in pari
materia. See State v. Mora, 315 Kan. 537, 543, 509 P.3d 1201 (2022) ("[S]tatutes relating
to the same subject should be considered in pari materia to achieve consistent,
harmonious, and sensible results whenever possible."). As noted, K.S.A. 38-2273(a)
identifies five categories of appealable orders under the Revised Code: "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." But
"[n]one 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." In re N.A.C., 299
Kan. at 1110. Even so, In re N.A.C. reasoned that "each [type of appealable order] 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." 299 Kan. at 1110-11.
Focusing on dispositional orders specifically, In re N.A.C. acknowledged that
"[t]here is more complexity to the statutory scheme governing dispositional orders than
the other [appealable] orders." 299 Kan. at 1113. But again, the statutory scheme gives
context and meaning to the phrase "order of . . . disposition" as used in K.S.A. 38-
27
2273(a). A summary of the statutory framework governing the dispositional and
termination phases of a CINC proceeding helps illustrate this point.
The timing for dispositional orders is dictated by K.S.A. 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. 38-2253:
"(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."
K.S.A. 38-2255(b) and (c) create two paths for custody during the dispositional
phase—"either the court places the child in the parent's custody or it removes the child
from parental custody." 299 Kan. at 1113. If the district court chooses the latter option,
In re N.A.C. identified the various findings and orders that the district court must make
under the Revised Code:
"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
28
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." 299 Kan. at 1113-14.
See K.S.A. 38-2256.
In re N.A.C. reasoned that the statutory requirements and timelines governing each
phase of a CINC proceeding provide meaning to the types of appealable orders identified
in K.S.A. 38-2273(a).
"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." 299 Kan. at 1116.
And under this sequencing, dispositional orders are limited temporally. Reading
the CINC provisions together, an order of disposition is defined as those orders
"concerning child custody entered after the child is adjudicated a child in need of care.
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.' [Citations omitted.]" 299 Kan. at 1119. This is true, in
part, because the termination of parental rights statute limits the actions the court can take
once parental rights have been terminated—"the court can authorize an adoption, appoint
29
a permanent custodian, or order continued permanency planning." 299 Kan. at 1120; see
K.S.A. 38-2269(g)(2). "Notably absent is the authority to enter a dispositional order"
under K.S.A. 38-2255. 299 Kan. at 1120. "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." 299
Kan. at 1120-21.
In re N.A.C.'s construction of K.S.A. 38-2273(a) is thus "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)." 299 Kan. at 1119-20.
The dispositional rehearing statute, K.S.A. 38-2256, does not undermine In re
N.A.C.'s holding or its supporting rationale. K.S.A. 38-2256 permits the court to "rehear
the matter" after it has entered a dispositional order. The statute does not expressly limit
rehearing to those motions entered before the termination of parental rights. Thus, one
might argue the rehearing statute supports a broader definition of the phrase "order of
disposition" in K.S.A. 38-2273(a)—one that includes post-termination orders affecting
the child's custody.
But as we explained in In re N.A.C., construing an "order of disposition" to be
limited temporally to those disposition orders entered after adjudication but before
termination of parental rights gives meaning to the rehearing statute and K.S.A. 38-
2273(a):
"But this reasoning [that the rehearing statute allows for post-termination orders
of disposition] 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,
30
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. But the cutoff
under the Revised Code's structure . . . is the order terminating parental rights . . . .
[Citations omitted.]" 299 Kan. at 1120.
And In re N.A.C.'s construction better harmonizes the rehearing statute and K.S.A.
38-2273(a) with the termination of parental rights statutes. As noted, those statutes
limit the district court's authority to enter orders of disposition post-termination
because at that stage of the CINC proceeding the district court is no longer
considering whether the parent should have custody or whether reintegration is
possible. 299 Kan. at 1120-21.
In re N.A.C.'s construction not only brings the various provisions of the Revised
Code into harmony, but it "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." 299 Kan. at 1121. Grandmother's
proposed construction fails to read the statutory provisions in pari materia and conflicts
with the Legislature's intent to promote timely resolution of CINC proceedings. In fact,
Grandmother's interpretation of a disposition order "could leave children exposed to an
endless circle of appellate custody battles." 299 Kan. at 1120.
Granted, In re N.A.C.'s holding insulates detrimental placement decisions from
appellate review. But "our district court judges who are tasked with presiding over these
difficult CINC cases are well aware of the stakes." 299 Kan. at 1122. And this concern is
simply part of the cost-benefit analysis the Legislature employed when it adopted the
Revised Code and chose to limit the scope of appealable orders in CINC proceedings to
ensure timely progression towards permanency. The separation-of-powers doctrine
31
prevents us from second-guessing the Legislature's judgment on this public policy matter,
as another Court of Appeals panel observed:
"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 742, 746, 172 P.3d 63 (2007).
See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 274, 202 P.3d 7(2009) ("It is not the function of the courts to substitute their social and economic beliefs
for the judgment of the legislature or to determine whether a statute is wise or
necessary.").
In sum, In re N.A.C.'s holding is logical, and its construction of K.S.A. 38-2273(a)
is preferable when reading the various provisions of the Revised Code in pari materia.
And In re N.A.C.'s holding was not groundbreaking. Several panels of the Court of
Appeals had adopted the same construction of K.S.A. 38-2273(a) long before In re
N.A.C. See 299 Kan. at 1115 ("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."). For these reasons, we are not clearly convinced that the
holding in In re N.A.C. was originally erroneous.
Nor are we "clearly convinced" In re N.A.C.'s holding is no longer sound because
of changing conditions. In the eight years since In re N.A.C., the Legislature has
expressed no disagreement, through statutory amendment, with our interpretation of
K.S.A. 38-2273(a). See State v. Quested, 302 Kan. 262, 278, 352 P.3d 553 (2015) ("The
32
doctrine of stare decisis is particularly compelling in cases where, as here, the legislature
is free to alter a statute in response to court precedent with which it disagrees but declines
to do so."). Perhaps the most significant development to occur since In re N.A.C. is that
the composition of our court has changed. But "we should be highly skeptical of
reversing an earlier decision where nothing has changed except the composition of the
court." State v. Marsh, 278 Kan. 520, 577, 102 P.3d 445 (2004) (McFarland, C.J.,
dissenting); see also Davidson, 314 Kan. at 95 (Standridge J., concurring) (A "change in
the membership of this court cannot, in and of itself, justify a departure from the basic
principle of stare decisis.").
We therefore reaffirm the holding in In re N.A.C.: an order terminating parental
rights is the last appealable order under K.S.A. 38-2273(a), and post-termination orders
are not appealable, even if they address custody. See 299 Kan. 1100, Syl. ¶ 6.
2. Application of In re N.A.C. to Challenged Orders
Having reaffirmed In re N.A.C., we next apply this precedent to the December
2020 and January 2021 journal entries from which Grandmother has appealed.
As noted, the December 2020 journal entry memorialized the district court's post-
termination permanency decisions. This journal entry included the district court's finding
that DCF had failed to make reasonable efforts or progress toward adoptive placement
and its attendant orders terminating DCF custody and placing N.E. in the custody of
foster parents for adoption.
In In re N.A.C., the appellant challenged nearly identical orders. We found
appellate jurisdiction lacking over the district court's post-termination decisions,
including:
33
"(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." 299
Kan. at 1101.
Grandmother has challenged the December 2020 journal entry, which made the
same findings and entered the same attendant custody orders at issue in In re N.A.C.
Thus, In re N.A.C. is apposite and controls the jurisdictional question presented here.
Thus, K.S.A. 38-2273(a) does not provide appellate courts with jurisdiction to review the
December 2020 journal entry.
Grandmother also appeals from the January 2021 journal entry. There, the district
court found that various pandemic-related issues had required it to take Grandmother's
custody motion under advisement (after the October 2020 evidentiary hearing on the
motion and until all parties could be heard at the December 2020 post-termination
permanency hearing). Then, the district court ruled that all matters it had taken under
advisement, which necessarily included Grandmother's custody motion, were resolved by
the custody orders in the December 2020 post-termination journal entry on permanency.
Under In re N.A.C., K.S.A. 38-2273(a) likewise forecloses appellate review of the
January 2021 journal entry because this order was entered months after the district court
terminated parental rights.
But we recognize that the timeline of events and procedural history here could
raise more complicated questions of equity and fairness. On May 22, 2020, prior to the
termination of parental rights, Grandmother moved for custody of N.E. The district court
set that motion for evidentiary hearing on August 4, during the dispositional phase of
N.E.'s CINC proceedings. In the meantime, on June 17, the State moved for findings of
unfitness and termination of parental rights. The district court set that motion for
evidentiary hearing on August 20.
34
Had matters progressed as scheduled, the district court would have ruled on
Grandmother's custody motion during the dispositional phase before it terminated
parental rights. And if the district court had ruled on the motion during the dispositional
phase, we see no reason why Grandmother could not have pursued a timely appeal of the
decision as a dispositional order under K.S.A. 38-2273(a).
But disruptions caused by the COVID-19 pandemic impacted the scheduling and
progression of the proceedings. The district court continued the August 4 evidentiary
hearing on Grandmother's custody motion because the State's attorney was in quarantine.
That evidentiary hearing was reset to September 8, 2020. In the meantime, no party
moved to continue the hearing on the State's motion to terminate parental rights. And the
district court conducted that hearing as scheduled on August 20, where it terminated
parental rights and set the matter for a permanency hearing on September 3. The district
court memorialized these findings and conclusions in the August 28th journal entry, thus
terminating the dispositional and termination phases of N.E.'s CINC proceedings.
After the district court entered its termination orders, Grandmother expressed
concern that conducting a permanency hearing before the evidentiary hearing on her
custody motion could render the latter moot. Thus, Grandmother moved to continue the
September 3rd post-termination permanency hearing to September 8—the date set for the
hearing on the custody motion. The district court granted Grandmother's request.
But the State moved to continue the September 8, 2020 consolidated hearings on
permanency and custody because one of its key witnesses was in COVID-19 quarantine.
The district court rescheduled the hearing for October 9. On that date, the district court
took evidence on the custody motion. But not all interested parties were present—counsel
for foster parents could not attend because of illness related to COVID-19. The district
court took evidence from the available parties on the custody motion and continued the
35
rest of the consolidated hearing to November 13. It took Grandmother's custody motion
under advisement until all parties could be heard at the November permanency hearing.
But again, the November 13th hearing was continued because Grandmother's attorney
was ill and foster parents' expert witness was unavailable. The district court conducted
the consolidated hearing on December 18, where it terminated DCF custody and placed
N.E. in the custody of foster parents for adoption, as memorialized in the December 2020
journal entry. And, in its January 2021 journal entry, the district court confirmed that its
December post-termination permanency decisions had resolved Grandmother's custody
motion.
These facts reveal that the district court's ruling on Grandmother's custody motion
did not follow the same progressive sequencing of CINC phases contemplated in the
Revised Code. This may prompt concerns that the district court violated Grandmother's
due-process rights or otherwise erred by ruling on Grandmother's custody motion (filed
before termination of parental rights) only after the dispositional and termination phases
had ended and the matter had progressed to the post-termination phase.
But appellate courts cannot create equitable exceptions to statutory jurisdictional
requirements. State v. Frye, 294 Kan. 364, 369, 277 P.3d 1091 (2012). And even if the
district court's sequencing of the CINC proceedings and the timing of its orders could
constitute error, Grandmother did not raise those concerns in the district court or on
appeal. See Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 729, 317 P.3d 70(2014) ("[C]onstitutional grounds for reversal cannot be raised for the first time on
appeal."); see also State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) ("Issues not
briefed are deemed waived or abandoned."). Thus, Grandmother waived or abandoned
any claim of error based on the timing or sequencing of the CINC phases.
There is no evidence in the record to suggest that Grandmother objected to the
State's request to continue the August 4, 2020 evidentiary hearing on her custody motion.
36
Nor is there any evidence that Grandmother objected to the August 20th setting for the
hearing on the State's motion to terminate parental rights. Grandmother did not move to
continue the August 20th termination hearing to ensure that the district court ruled on her
custody motion during the dispositional phase before it terminated parental rights. In fact,
Grandmother appeared in person and by counsel at the August 20th termination hearing
and there is no evidence in the record that Grandmother objected to moving forward with
the hearing as scheduled. Quite simply, Grandmother allowed the termination hearing to
proceed on August 20 and allowed the district court to enter orders terminating parental
rights on August 28 without objection.
And nothing in the record suggests that the district court scheduled or rescheduled
these matters intentionally to deprive Grandmother of her right to appeal the ruling on her
custody motion. To the contrary, the record confirms that the district court's schedule was
impacted most significantly by complications related to the pandemic.
In short, Grandmother preserved no objection at the district court and waived any
objection on appeal to the timing or progression of the CINC proceedings—specifically,
the district court's decision to proceed to the post-termination phase before ruling on the
custody motion filed during the dispositional phase. Thus, we reserve for another day
whether a district court errs by proceeding in such a manner.
We hold that appellate courts lack jurisdiction to review the district court's
December 2020 and January 2021 post-termination journal entries. Because we also hold
that appellate courts lack jurisdiction to review the June 2020 placement order and the
August 2020 termination order under K.S.A. 38-2273(a), we dismiss this appeal for lack
of jurisdiction.
Judgment of the Court of Appeals dismissing the appeal is affirmed.
37
***
STANDRIDGE, J., dissenting: I dissent from the majority's interpretation of K.S.A.
38-2273(a), based on its continued adherence to In re N.A.C., 299 Kan. 1100, 329 P.3d
458 (2014), to bar appellate review of the district court's December 2020 and January
2021 orders. I would find these orders qualify as orders of disposition that constitute
appealable orders under K.S.A. 38-2273(a).
K.S.A. 38-2273(a) provides that "[a]n 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." Although the term "disposition" is not
defined in the general definitional section of the Revised Kansas Code for Care of
Children (Code), "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 N.A.C., 299
Kan. at 1119.
The majority reaffirms In re N.A.C.'s holding that dispositional orders are limited
temporally, construing the Code's statutory requirements and timelines governing each
phase of a child in need of care proceeding to mean that the dispositional phase ends once
an order terminating parental rights is entered. But this reading of the Code ignores the
basic rules of statutory construction. An appellate court must first attempt to ascertain
legislative intent through the statutory language enacted, giving common words their
ordinary meanings. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).
If we find the statutory language is plain and unambiguous, we do not speculate about the
legislative intent behind that clear language and should refrain from reading something
into the statute that is not readily found in its words. Ullery v. Othick, 304 Kan. 405, 409,
372 P.3d 1135 (2016). The majority's holding is inconsistent with the plain and
unambiguous language of K.S.A. 38-2273(a), which provides that "[a]n appeal may be
38
taken by any party or interested party from any order of . . . disposition." (Emphasis
added.) If the Legislature had intended for the term "disposition" to refer solely to those
orders entered before termination, it could have said as much, i.e., "any order of . . .
disposition entered prior to termination." The majority reads a pre-termination
requirement into the statute where there is none.
The Legislature intentionally left open the possibility for the court to enter
multiple orders of disposition. K.S.A. 38-2256 authorizes the court to rehear any order of
disposition on its own motion or the motion of any party or interested party, after which
the court may enter any dispositional order authorized by the Code. Again, the
Legislature, through its plain and unambiguous language, did not limit rehearing to those
orders entered before the termination of parental rights.
I am also unpersuaded by the argument that the Legislature failed to provide
courts with express authority to enter a post-termination dispositional order under K.S.A.
38-2255. The court's authority under the termination of parental rights statute includes the
ability to authorize an adoption and appoint a permanent custodian, both of which
concern the custody of a child adjudicated a child in need of care and therefore meet the
definition of a dispositional order. To construe the statutory scheme otherwise results in
unreasonable and arbitrary results. See Garcia v. Ball, 303 Kan. 560, 569, 363 P.3d 399(2015) (courts interpret statutes to avoid absurd or unreasonable results). As the
following chronology shows, the resulting inconsistency is particularly conspicuous in
this case.
Grandmother filed a motion for custody of N.E. on May 20, 2020. A month later,
the district court found reintegration with N.E.'s parents was not a viable permanency
objective and adoption might be in N.E.'s best interests. Around this time, the district
court scheduled a hearing on Grandmother's custody motion for August 4, 2020, and a
hearing on the State's motion to terminate parental rights for August 20, 2020.
39
But on August 3, 2020, the State filed a motion to continue Grandmother's custody
hearing because the State's attorney was quarantined pending the results of a COVID-19
test. The court granted the motion and reset the custody hearing for September 8, 2020.
The court did not, however, move the hearing on the State's motion to terminate parental
rights. After hearing the evidence on August 20, the court granted the State's motion to
terminate parental rights and ordered N.E. to remain in the custody of the Department for
Children and Families (DCF).
The court did not hear evidence related to Grandmother's motion for custody until
October 9, 2020. And even then, the court took the matter under advisement. The court
finally ruled on Grandmother's motion in an order dated January 6, 2021, denying it as
moot. The ruling came almost eight months after it was filed and, ironically, on the same
day the court granted foster parents' petition for adoption.
Based on this chronology, the majority holds we do not have jurisdiction to
consider an appeal from the district court's decision to deny Grandmother's motion for
custody because the dispositional decision was made after the court terminated parental
rights. But the majority's interpretation of the statute also compels a different conclusion:
we would have had jurisdiction to review the appeal if the State's attorney had not been
exposed to COVID-19 requiring quarantine and the district court had denied
Grandmother's motion at the scheduled hearing on August 4. The Legislature could not
have intended the statutory scheme to lead to such an unreasonable and inconsistent
result. This is especially true here, where Grandmother filed a timely motion and
requested a timely hearing but was deprived of her ability to appeal simply because she
had no control over the court's docket.
Finally, the majority's interpretation of the Code to limit appellate review of a
dispositional order to those entered before termination does little to further the objective
40
of protecting the child's welfare and serving the best interests of the State. See K.S.A. 38-
2201(b)(2) ("The code shall be liberally construed to carry out the policies of the state"
which include "provid[ing] that each child who comes within the provisions of the code
shall receive the care, custody, guidance control and discipline that will best serve the
child's welfare and the interests of the state."). Indeed, the majority acknowledges that
"In re N.A.C.'s holding insulates detrimental placement decisions from appellate review."
In re N.E., 316 Kan. __, __P.3d __ (2022), slip op. at 31.
Considering the specific language set forth within K.S.A. 38-2273(a), the statutory
scheme as a whole, and the Code's underlying purpose of protecting the child's welfare
and serving the best interests of the State, I would hold a dispositional order subject to
appeal under K.S.A. 38-2273(a) includes any dispositional order authorized by the Code,
including post-termination orders. Here, the district court's December 2020 order
removed N.E. from the legal custody of DCF and placed her in the custody of foster
parents for adoption. In the January 2021 order, the court ruled that all matters taken
under advisement, including Grandmother's custody motion, were resolved by the
December 2020 order. Because these orders both impacted the legal custody of N.E., I
would find they constitute appealable orders of disposition under K.S.A. 38-2273(a).
41