In Re Interests A.A.-F.

IN THE SUPREME COURT OF THE STATE OF KANSAS
Nos. 117,368
117,369
117,370
117,371
117,372
In the Interests of A.A.-F., M.A.-F., F.A.-F., B.C., and J.S.,
Minor Children.
SYLLABUS BY THE COURT
1.
Subject-matter jurisdiction raises a question of law subject to unlimited review.
2.
Kansas courts have authority—in other words, the judicial power—to hear only
those matters over which they have jurisdiction. That jurisdiction derives from Article 3,
sections 1, 3, and 6 of the Kansas Constitution. Those provisions grant Kansas courts
jurisdiction as provided by law. Statutes serve as the usual mechanism for the law to
define jurisdiction.
3.
The Revised Kansas Code for Care of Children, through K.S.A. 2018 Supp. 38-
2203, generally confers original jurisdiction on Kansas courts to hold proceedings
concerning any child who may be a child in need of care. But the Legislature placed
limits on this jurisdiction, making it subject to the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA), K.S.A. 2018 Supp. 23-37,101 et seq.
1
4.
The UCCJEA's drafters prioritized the jurisdictional grounds to help assure that
only one state at a time exercises jurisdiction, thus avoiding conflicting orders. Courts in
the child's "home state" have the highest and first priority. The term "home state" is
defined as "the state in which a child lived with a parent or a person acting as a parent for
at least six consecutive months immediately before commencement of a child-custody
proceeding."
5.
Once a home state exercises jurisdiction over a child-custody proceeding, it
generally has exclusive, continuing jurisdiction until a court makes findings that fall
within a UCCJEA provision recognizing certain circumstances under which a different
court may exercise jurisdiction.
6.
The party bringing an action and invoking a court's jurisdiction has the burden to
establish jurisdiction.
7.
Usually full faith and credit or comity principles apply when a court of one state is
presented with the order of another state. Under the Full Faith and Credit Clause of the
United States Constitution, Article IV, § 1, a foreign judgment—that is, the judgment of
another state—carries the same force and effect in Kansas as it has in the state where the
judgment was rendered. If the Full Faith and Credit Clause applies, a judgment of a sister
state with jurisdiction cannot be impeached for irregularities in the proceedings or
erroneous rulings but must be regarded as binding, until set aside by the court rendering it
or by a reviewing court on appeal. Generally, however, the Full Faith and Credit Clause
does not apply to orders that are nonfinal or interlocutory. Those orders are generally
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subject to principles of comity. Under comity principles, courts of one state give effect to
the laws and judicial decisions of another, not as a matter of obligation but out of
deference and respect.
8.
Kansas courts generally presume the validity of orders, journal entries, and
judgments of the courts of other states.
9.
The party attacking another state's order has the burden of establishing the reasons
it should not be enforced or applied.
10.
A Kansas court may exercise comity when Kansas law recognizes the rights upon
which a decree of a sister state is based and the court decides that the enforcement of
such rights does not violate any principle of Kansas public policy.
11.
On appeal, Kansas appellate courts review determinations of whether to exercise
comity over a foreign order for an abuse of discretion. A district court abuses its
discretion if it makes an error of law, makes an error of fact, or was otherwise arbitrary,
fanciful, or unreasonable.
12.
The burden is on a party to designate a record sufficient to present its points to the
appellate court and to establish its claims.
3
13.
Kansas appellate courts generally presume a district court has made sufficient
findings of fact and conclusions of law to support its decision.
14.
In considering if there has been a violation of the right to procedural due process
protected by the Fourteenth Amendment to the United States Constitution, a court
weighs: (1) the individual interest at stake; (2) the risk of erroneous deprivation of the
interest through the procedures used and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the State's interest in the procedures used,
including the fiscal and administrative burdens that any additional or substitute
procedures would entail.
15.
Parents have a fundamental liberty interest in the right to make decisions regarding
the care, custody, and control of their children.
16.
The State's interest in a child's welfare may be asserted through state processes
designed to protect children in need of care. But before a parent can be deprived of his or
her right to the custody, care, and control of his or her child, the parent is entitled to due
process of law. One of the fundamental requirements of due process is the opportunity to
be heard at a meaningful time and in a meaningful manner.
17.
The failure to follow a statutorily required procedure does not inevitably result in a
due process violation.
4
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 29,
2017. Appeal from Geary District Court; MARITZA SEGARRA, judge. Opinion filed July 12, 2019.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
Andy Vinduska, of Manhattan, argued the cause and was on the briefs for appellant natural
mother.
Jason B. Oxford, assistant county attorney, argued the cause, and Michelle L. Brown, assistant
county attorney, was on the briefs for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Acting under the Uniform Child-Custody Jurisdiction and
Enforcement Act (UCCJEA), a California court transferred five cases to a Kansas court
for the continuation of child in need of care proceedings. The natural mother (Mother) of
the children challenges the Kansas court's subject-matter jurisdiction, pointing to
potential issues arising from the transfer. Mother also raises a constitutional due process
challenge based on the alleged failure of the Kansas district court to hold a timely,
statutorily required permanency hearing.
Based on the record before us, we hold the Kansas district court did not abuse its
discretion by accepting and exercising jurisdiction after the California court transferred
jurisdiction. Nor did the Kansas court violate Mother's due process rights. As a result, we
affirm the exercise of subject-matter jurisdiction by Kansas courts and the rulings made
by the district court that are the subject of this appeal.
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FACTS AND PROCEDURAL HISTORY
The proceedings transferred from California involve five of Mother's six children.
The natural father of the three oldest children is A.F., and the natural father of the
younger children is D.S. D.S. actively participated in the California and Kansas
proceedings and objected to the exercise of jurisdiction by the Kansas court. A.F. never
appeared and reportedly was in Mexico. Neither father is involved in this appeal.
The two oldest children, who were born in Kansas, have been in and out of
protective custody since at least 2009. The three younger children have been in and out of
custody since shortly after their births. When each child first became the subject of a
child in need of care (CINC) proceeding, he or she resided in California with Mother and,
at various times, with either A.F. or D.S. (California does not use the same child in need
of care terminology as does Kansas. Even so, for consistency, we will refer to the
California dependency proceedings and the Kansas proceedings as CINC proceedings.)
In October 2014, Mother had physical custody of all the children, although the
California Department of Children and Family Services (DCFS) retained legal custody
and supervision of at least some of them. At that time, Mother and D.S. were married and
residing in California. An argument between Mother and D.S. devolved into a physical
altercation that led to D.S.'s arrest. Mother then took the children to Geary County,
Kansas, without informing D.S. The California court revoked the children's physical
placement with Mother on October 27, 2014, and issued warrants in November 2017 for
the children's return.
Upon D.S.'s release from custody, he traveled to Kansas to reunite with Mother
and the children at the home of Mother's friends. D.S. physically confronted the friends
and threatened them, leading authorities to arrest him. About two months after the
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children had arrived in Kansas, Kansas officials returned the children to California under
authority of the California warrants. In February 2015, the California court determined
"[s]ubstantial danger exists to the physical health of minor(s) and/or minor(s) is suffering
severe emotional damage, and there is no reasonable means to protect without removal
from parent's or guardian's physical custody." At that time, the California court ordered a
report on possible placement with the children's grandmother in Kansas and a possible
transfer of the case to a Kansas court that could oversee the family's reintegration. Mother
appealed that order. While it is unclear from the record before us what happened with that
appeal, the record discloses additional review or progress hearings occurred in the
California trial court. During this period, the California judge called Judge Maritza
Segarra, a district judge in Geary County.
The various California investigations, reports, and hearings culminated on June
24, 2015, with a progress hearing at which the California court ordered the cases
transferred to Kansas. The court's June 24, 2015, order stated:
"Pursuant to this Court's consultation with the Honorable Maritza Segarra,
[Kansas] District Court Judge, and pursuant to the UCCJEA, this case is transferred to the
Geary County District Court, 138 East 8th Street, Junction City, Kansas, 66441. The
Department of Children and Family Services is ordered to send copies of all pleadings,
orders and reports or other information contained in this Court's files to Judge Segarra
forthwith. It is further ordered that minors be transported by the Department of Children
and Family Services to the Kansas Department for Children and Families."
The California court transmitted copies of the pleadings, orders, and reports to the
Geary County court but no transcripts of hearings. We thus know only the information
recorded in written orders and journal entries. The June 24, 2015, order recites that
Mother and D.S. appeared at the hearing through counsel. The record does not specify
whether Mother and D.S. appeared in person. Later, in Kansas proceedings, Mother
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testified she went to California to attend a hearing. She said the hearing "was right before
the kids came back," but she denied being at the hearing at which the California court
transferred the case to Kansas.
Nothing in the record indicates that Mother appealed the June 24, 2015, order.
And, as ordered by the California court, the children were transported back to Kansas.
The Geary County District Court then exercised jurisdiction and ordered the children
remain in out-of-home placements.
About one month later, D.S. was arrested again, this time for domestic violence
and making a criminal threat against Mother. His probation in his earlier Kansas case was
revoked. He remained in custody throughout the remainder of the CINC proceedings.
Around the time of D.S.'s arrest, the Kansas Department for Children and Families
(DCF) held a case plan meeting. The plan identified concerns but nonetheless identified
its goal as reintegration of the family. Mother was assigned tasks toward reintegration,
including attending counseling to address domestic violence issues and obtaining suitable
housing and reliable income. She completed none of these tasks to DCF's satisfaction.
The district court held a permanency hearing on October 14, 2015, at which the district
court concluded that reintegration remained a viable alternative. But that ruling changed
when, on November 4, 2015, the district court held a review hearing at which it heard
evidence. At the end of that hearing, the court found "reintegration is no longer a viable
option with the mother." The court held a series of review and status hearings thereafter.
At a hearing on January 27, 2016, Mother asked for more time to work on alternatives
other than termination of her parental rights. On October 12, 2016, the court held another
permanency hearing.
8
Between the two permanency hearings, the State filed, and then amended, motions
for a finding of unfitness and termination of parental rights. The district court held
evidentiary hearings related to the amended motions over three days in late 2016 and
early 2017. D.S. objected to the court's subject-matter jurisdiction early on the first day of
the hearings. The district court asked counsel for the specific objection to Kansas
jurisdiction. D.S.'s counsel replied that D.S. "just believes that California should have
continued to exercise jurisdiction, and that Kansas should not have obtained jurisdiction,
and the case should be transferred back to California. So I would just like that noted for a
possible appeal issue."
The district court rejected the jurisdictional objection:
"The objection as to jurisdiction, although counsel is correct, jurisdiction can be
raised at any time, there's nothing that's been shown to the Court that would indicate that
jurisdiction is erroneously with this Court. This Court took jurisdiction under the
UCCJEA and the [Interstate Compact on the Placement of Children, the] ICPC. The
Court was—the Court followed the guidelines in conversations with the judge out of
California. And this case was transferred. And no basis has been—there's no legal basis
for—to support that this Court does not correctly have jurisdiction in this matter, so the
Court will deny that request also."
D.S. raised his jurisdictional objection again on the second day of the termination
hearing. Mother joined the motion. D.S.'s counsel argued there was no hearing on the
jurisdictional issue in California. The district court disagreed, pointing to journal entries
in the California record reflecting hearings on the issue. The district court again denied
the motion. In its explanation, the court also outlined the conversation it had with the
California court regarding the transfer:
"All right. [The] Court's going to deny the motion. It's obvious from the journal
entries that both the mother and the father were represented by counsel. California,
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correct, was the home state. But then the mother and the father both left the state of
California and came here. The children were then picked up on an order out of the state
of California, taken back to California. The parents apparently stayed here. And it may
have been because, at that point in time, [D.S.] was already in jail, and so could not leave.
The mother stayed here also. But there were at least two hearings in the state of
California concerning this.
"The only thing that the judge called me on, the judge out of California, was to
see, after they had had their hearings, if I would take the matter. I said, yeah, that's fine,
and that was it. He said that he would contact—so—contact DCF to—or their DCF
would contact DCF to get the kids down here. There was nothing about transfer of venue
or anything like that because all those issues were taken up in California. It was properly
done.
"Whether or not the judge over there recorded it or not, I don't know, because this
Court did not initiate the contact, because I would not have even known that these
children existed or that the parents existed until the court in California contacted me after
they had their hearings, with counsel present, to transfer over here. The proper place to
object would have been in California. That was never done. Neither party objected.
"Apparently, the guardian ad litem didn't object. No one objected, and then the
case was transferred here where the parents were residing so that reintegration could be
had, which was the—the case plan at that point in time.
"So the Court believes that the—given the record in this matter from California,
which is part of the record of this Court, the motion is meritless, and the Court will deny
the motion."
The parties do not cite any other evidence of the conversation in the record.
After hearing the evidence and arguments of the parties, the district court took
under advisement the motion for a finding of unfitness and termination of parental rights.
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The district court announced its ruling from the bench on January 24, 2017. The court
found Mother unfit, the unfitness was unlikely to change in the foreseeable future, and
termination of Mother's parental rights to be in the children's best interests. Mother
appealed.
Before the Court of Appeals, Mother argued she neither consented to nor was
given a meaningful opportunity to be heard regarding transfer of the case from California
to Kansas in June 2015. She further argued Kansas lacked subject-matter jurisdiction
because it was neither the home state of the children nor a more convenient forum
because, even though the parents had moved to Kansas, the children still resided in
California and the California court had volumes of records regarding the family.
The Court of Appeals rejected these arguments in a divided opinion. In re A.A.-F.,
No. 117,368, 2017 WL 6625230, at *1 (Kan. App. 2017) (unpublished opinion). The
two-member majority of the Court of Appeals panel determined the record falls short of
demonstrating UCCJEA jurisdiction properly passed from California to Kansas. The
majority reasoned it was therefore error for the district court to find there had been a
legally adequate transfer of jurisdiction under the UCCJEA. But the majority concluded it
need not remand for an adequate transfer of jurisdiction because it is a "foregone
conclusion" Kansas would have jurisdiction by the time of the termination given that the
children had resided in Kansas from around July 2015 until the termination hearing in
early 2017. 2017 WL 6625230, at *8. Further, the majority concluded that even though
the district court lacked jurisdiction when it terminated Mother's parental rights, the
orders should be viewed as unenforceable rather than void because the UCCJEA only
imposed a conditional limitation on the district court's jurisdiction. Once Kansas acquired
jurisdiction, the "dormant" orders became "'activated,'" meaning they became effective
and enforceable. 2017 WL 6625230, at *8.
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Addressing Mother's due process arguments, the majority concluded the due process
right at issue was Mother's liberty interest in parenting her children. The majority held
that no violation of this right occurred because Mother's rights were protected at the
termination hearing. "An untimely or nonexistent permanency hearing months earlier did
not entail a due process violation bearing on or diminishing Mother's protected liberty
interest." 2017 WL 6625230, at *10.
The majority rejected Mother's third and fourth arguments as well. As to the third
argument, it concluded sufficient evidence supported the district court's finding that
Mother was unfit. Finally, it rejected Mother's fourth argument that the district court
erred in holding the termination of Mother's parental rights furthered the children's best
interests. 2017 WL 6625230, at *10-11. Accordingly, the panel affirmed the termination
of Mother's parental rights. 2017 WL 6625230, at *12.
Judge Kathryn Gardner concurred. She agreed with the majority's analysis on the
second, third, and fourth issues regarding Mother's due process rights, the sufficiency of
the evidence supporting the unfitness findings, and the appropriateness of the district
court's best-interests-of-the-child determination. But she followed a different path in
concluding the district court had jurisdiction. She first pointed out that Mother had the
burden to designate a record sufficient to establish the claimed error and failed to meet
this burden by not including the court transcripts from the California hearings or
objecting earlier to jurisdiction once in Kansas. Based on the insufficient record, Mother,
in Judge Gardner's view, failed to establish any error in the California court's transfer of
jurisdiction under the UCCJEA. The concurrence also noted that Mother appeared at the
California hearing through her attorney and was thereby given an opportunity at that time
to contest the transfer. 2017 WL 6625230, at *12-13 (Gardner, J., concurring). Finally,
Judge Gardner noted that "Mother did not object below that the journal entry transferring
jurisdiction to Kansas lacked sufficient findings to support its decision; thus, we
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ordinarily presume that the court made sufficient findings to support its decision." 2017
WL 6625230, at *13 (Gardner, J., concurring).
Mother timely filed a petition for review, which this court granted. This court's
jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision).
ANALYSIS
Mother raised only two issues in her petition for review: (1) whether the Court of
Appeals erred in affirming the district court's subject-matter jurisdiction and (2) whether
it erred in determining Mother's procedural due process rights were not violated when the
district court failed to conduct a permanency hearing within 30 days of finding that
reintegration of the family with Mother did not remain a viable alternative. Mother did
not seek our review of the two other issues she had raised before the Court of Appeals
regarding the sufficiency of evidence on Mother's unfitness and her allegation the district
court erred in finding that terminating Mother's parental rights was in the children's best
interests. Mother has waived our consideration of these issue by failing to raise them in
her petition for review. See State v. Fleming, 308 Kan. 689, 692-93, 423 P.3d 506 (2018);
see also Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 55) ("The Supreme
Court will not consider issues . . . not presented or fairly included in the petition for
review.").
We turn to the two issues Mother raised in her petition.
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1. On the record before us, Kansas courts have subject-matter jurisdiction.
Mother first argues the Court of Appeals erred in holding Kansas had subject-
matter jurisdiction. This argument initially raises a question of law subject to unlimited
review. State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016). As we will discuss,
however, the particular circumstances of this case require us to apply a layered standard
of review.
At this initial layer, we conclude the State met its initial burden of establishing that
the Geary County District Court had subject-matter jurisdiction over the five CINC
proceedings. Kansas courts have authority—in other words, the judicial power—to hear
only those matters over which they have jurisdiction. That jurisdiction derives from
Article 3, sections 1, 3, and 6 of the Kansas Constitution. Those provisions grant Kansas
courts jurisdiction as provided by law. See Dunn, 304 Kan. at 811. Statutes serve as the
usual mechanism for the law to define jurisdiction. See State v. Dupree, 304 Kan. 43, 53,
371 P.3d 862 (2016) (addressing appellate jurisdiction); State v. Valladarez, 288 Kan.
671, 675, 206 P.3d 879 (2009) (addressing subject-matter jurisdiction of district courts).
By statute, Kansas district courts "have general original jurisdiction of all matters,
both civil and criminal, unless otherwise provided by law." K.S.A. 20-301. And, more
specific to this case, the Revised Kansas Code for Care of Children generally confers
original jurisdiction on Kansas courts to hold proceedings concerning any child who may
be a child in need of care. K.S.A. 2018 Supp. 38-2203; see also K.S.A. 2018 Supp. 38-
2202(d) (defining "child in need of care"). But the Legislature placed limits on this
jurisdiction, making it "[s]ubject to the uniform child custody jurisdiction and
enforcement act, K.S.A. 2018 Supp. 23-37,101 through 23-37,405." K.S.A. 2018 Supp.
38-2203(b); see also In re A.A., 51 Kan. App. 2d 794, 806, 354 P.3d 1205 (2015). Both
California and Kansas have enacted the UCCJEA. See K.S.A. 2018 Supp. 23-37,101 et
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seq.; Cal. Fam. Code § 3400 et seq.; see also In re Adoption of H.C.H., 297 Kan. 819,
829-30, 304 P.3d 1271 (2013) (discussing area in which the Kansas enactment departed
from the proposed UCCJEA).
The UCCJEA is a uniform act drafted by the National Conference of
Commissioners on Uniform State Laws. It has been adopted by 49 states, the District of
Columbia, Guam, and the U.S. Virgin Islands. The UCCJEA places limits on courts in
situations where two or more states might have an interest in a child-custody matter. It
sets criteria for determining which state has initial jurisdiction, for declining jurisdiction,
for a second court to exercise jurisdiction, and for enforcing and for exercising
jurisdiction to modify custody decrees. These measures "arose out of an attempt to deal
with the problems of competing jurisdictions entering conflicting interstate child custody
orders, forum-shopping, and the drawn-out and complex child custody legal proceedings
often encountered by parties where multiple states are involved." Annot., 52 A.L.R.6th
433.
The UCCJEA's drafters prioritized the jurisdictional grounds to help assure that
only one state at a time exercises jurisdiction, thus avoiding conflicting orders. Courts in
the child's "home state" have the highest and first priority. 52 A.L.R.6th 433. The term
"home state" is defined as "the state in which a child lived with a parent or a person
acting as a parent for at least six consecutive months immediately before commencement
of a child-custody proceeding." K.S.A. 2018 Supp. 37,102(8) (UCCJEA 102); K.S.A.
2018 Supp. 23-37,201 (limiting jurisdiction over initial child-custody determination to
home state or as otherwise provided by statute) (UCCJEA 201); see also Annot., 100
A.L.R.5th 1. Here, California was the home state when each of the five CINC
proceedings began and when jurisdiction was transferred to Kansas.
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Once a home state exercises jurisdiction over a child-custody proceeding, it
generally has "exclusive, continuing jurisdiction" until a court makes findings that fall
within a UCCJEA provision recognizing certain circumstances under which a different
court may exercise jurisdiction. K.S.A. 2018 Supp. 23-37,202. Three provisions most
commonly apply to determinations of whether jurisdiction may shift from one state to
another. First, the court with continuing jurisdiction—here California—could determine
the children and their parents no longer have a significant connection with the home
state" and that substantial evidence is no longer available in this state concerning the
child's care, protection, training, and personal relationships." K.S.A. 2018 Supp. 23-
37,202(a)(1) (UCCJEA 202); see also Cal. Fam. Code § 3422(a)(1). Second, a California
court or a court of another state, such as Kansas, could determine the children and their
parents no longer reside in California. K.S.A. 2018 Supp. 23-37,202(a)(2) (UCCJEA
202); see also Cal. Fam. Code § 3422(a)(2). Third, a court with jurisdiction "may decline
to exercise its jurisdiction at any time if it determines it is an inconvenient forum under
the circumstances and that a court of another state is a more appropriate forum." K.S.A.
2018 Supp. 23-37,207 (UCCJEA 207) (listing eight nonexclusive factors to be
considered); Cal. Fam. Code § 3427. While several of these circumstances allowing a
transfer of jurisdiction arguably apply here, as Mother points out, the California order
does not specify which UCCJEA provision the California court relied on to justify the
transfer.
While we do not know the specific provision relied upon, we know the procedures
the California court followed. The California judge gave notice that a transfer of
jurisdiction was being considered, asked for reports, and gave notice of subsequent
hearings at which the issue would be discussed. We know that at one point, the California
judge called Judge Segarra. And Judge Segarra informed the parties about the
conversation. The UCCJEA authorizes a judge in one state to call a judge in another state
to discuss jurisdictional and venue issues. K.S.A. 2018 Supp. 23-37,110(a) (UCCJEA
16
110); Cal. Fam. Code § 3410(a). Parties may be allowed to participate in the
communication and, if they are not included in the communication, must be allowed to
present facts and argument regarding jurisdiction before a decision. K.S.A. 2018 Supp.
23-37,110(b); Cal. Fam. Code § 3410(b). While we do not know if the parties
participated, we know the California court held at least one hearing after the judge's
phone call with Judge Segarra. Some record of the communication, which the UCCJEA
defines as information inscribed, must be kept. K.S.A. 2018 Supp. 23-37,110(d) & (e);
Cal. Fam. Code § 3410(d) & (e). We do not have that record.
Even though we do not have the record, nothing suggests Mother objected to a
lack of information about the conversation before the transfer occurred. In fact, it does
not establish she lacked the information. Without transcripts, we do not know what was
relayed to the parties and their attorneys or even whether the attorneys were present when
the call was made. But we know that through Mother's attorney, and at times through her
own appearance in court, Mother had multiple opportunities to present evidence and
arguments to the California court regarding that transfer. We also know Mother did not
appeal the California ruling to transfer the proceedings to Kansas, even though she had
appealed a previous order. And Judge Segarra expressed her understanding that no one
objected to the transfer.
Against that background, Mother argues the Kansas district court erred in
accepting jurisdiction. As in all proceedings, the party bringing an action and invoking
the court's jurisdiction—here, the State—has the burden to establish jurisdiction. See
Merriman v. Crompton Corp., 282 Kan. 433, 439, 146 P.3d 162 (2006) (holding
generally that party invoking jurisdiction has burden to establish its basis); see also In re
Baby Boy M., 141 Cal. App. 4th 588, 599, 46 Cal. Rptr. 3d 196 (2006) (agreeing that
state agency, which initiated the dependency proceedings, bore the burden of establishing
the court's jurisdiction).
17
The State made a prima facie showing of jurisdiction by presenting a court order
from California transferring its jurisdiction to Kansas. This order, at least on its face,
evidenced that the home state had transferred its jurisdiction under the UCCJEA to the
Geary County District Court. And Judge Segarra had visited with the California judge
and knew of its decision. The purposes of the UCCJEA were thus satisfied because Judge
Segarra knew California was transferring its jurisdiction and there would not be multiple
—and potentially conflicting—court actions involving the family. Further, both Mother
and D.S. were in Kansas and A.F. was not in either state. These circumstances distinguish
this case from others where no UCCJEA inquiry occurred before a Kansas court
exercised jurisdiction or where one parent resided in one state and the other in a second
state. See, e.g., In re A.A., 51 Kan. App. 2d at 806 (holding district court erred in
assuming "Kansas court had proper subject-matter jurisdiction without considering the
UCCJEA, even though Mother had filed a response mentioning the Mississippi court
proceedings"). As a matter of law, the State met its burden of establishing a prima facie
showing of subject-matter jurisdiction.
Mother asks us to look behind the order and consider what she alleges to be
procedural defects and deficiencies in the findings. She does not cite a provision of the
UCCJEA granting us the authority to review the validity of the California order.
Nevertheless, general full faith and credit and comity principles guide us, as does K.S.A.
2018 Supp. 23-37,313 (UCCJEA 313).
Usually full faith and credit or comity principles apply when a court of one state is
presented with the order of another state. See Padron v. Lopez, 289 Kan. 1089, 1108, 220
P.3d 345 (2009). Under the Full Faith and Credit Clause of the United States
Constitution, Article IV, § 1, a foreign judgment—that is, the judgment of another state—
carries the same force and effect in Kansas as it has in the state where the judgment was
18
rendered. Hamilton v. Netherton, 194 Kan. 683, 685, 401 P.2d 657 (1965). If the Full
Faith and Credit Clause applies, "[a] judgment of a sister state where there is no want of
jurisdiction cannot be impeached for irregularities in the proceedings, or erroneous
rulings. It is to be regarded as binding until set aside by the court rendering it or by a
reviewing court upon appeal." Littlefield v. Paynter, 111 Kan. 201, 205, 206 P. 1114(1922). Generally, however, the Full Faith and Credit Clause does not apply to orders that
are nonfinal or interlocutory. See Padron, 289 Kan. at 1101-03. Those orders are
generally subject to principles of comity. Under comity principles, "courts of one state
give effect to the laws and judicial decisions of another, not as a matter of obligation but
out of deference and respect." 289 Kan. at 1108.
Neither the parties nor the Court of Appeals discussed these principles; yet, they
govern our consideration. K.S.A. 2018 Supp. 23-37,313 (UCCJEA 313) requires Kansas
courts to "accord full faith and credit to an order issued by another state and consistent
with this act which enforces a child-custody determination by a court of another state"
unless certain exceptions apply. Here, we are not faced with a final, enforceable child-
custody determination but an ongoing proceeding. And the parties do not discuss whether
the transfer order, which terminated California's jurisdiction, should be considered a final
order. We will assume, without deciding, it does not fall under K.S.A. 2018 Supp. 23-
37,313 or general principles of full faith and credit.
Instead, for present purposes only, we will consider the order to be one to which
principles of comity apply. Because we find no UCCJEA provision relating to those
principles, some general principles come into play. First, we generally presume the
validity of orders, journal entries, and judgments of the courts of other states. Second, we
place the burden of undermining the other state's order on the party attacking it. Padron,
289 Kan. at 1099. Third, "[i]t is appropriate to exercise comity when a court recognizes
the rights upon which a decree of a sister state is based and decides that the enforcement
19
of such rights does not violate any principle of public policy of the forum court's state."
289 Kan. at 1108.
Here, while K.S.A. 2018 Supp. 23-37,313 does not apply because it relates only to
full faith and credit situations, it informs us that a Kansas court should consider whether
the other state's judgment is "consistent" with the UCCJEA. This guides our
determination that Kansas courts applying comity principles should also consider whether
any order transferring jurisdiction in a child-custody proceeding is consistent with the
UCCJEA because in that situation the Act expresses Kansas' policy.
Here, the Kansas district court determined it and the California court "followed the
guidelines" in the UCCJEA by having the telephone conference and in ordering and
accepting the transfer. Judge Segarra informed the parties that she was aware there had
been two hearings in the state of California about transfer, no one had objected to the
transfer, the California court had asked if she would accept the transfer, and she said she
would. She explained the case "was transferred here where the parents were residing so
that reintegration could be had." She also informed the parties no details had been shared
about the basis of the ruling "because all those issues were taken up in California," the
decision had been made to transfer the case and the California judge simply asked if she
would accept jurisdiction, and "[t]he proper place to object would have been in
California." In essence, although not using the word, the district court found the
California order to be "consistent" with the UCCJEA.
On appeal, we review determinations of whether to exercise comity over a foreign
order for an abuse of discretion. Padron, 289 Kan. at 1108. A district court abuses its
discretion if it makes an error of law, makes an error of fact, or was otherwise arbitrary,
fanciful, or unreasonable. State v. Gonzalez-Sandoval, 309 Kan. 113, 126-27, 431 P.3d
850 (2018). Thus, as opposed to most cases dealing with subject-matter jurisdiction, in
20
comity situations we apply a layered standard of review when jurisdiction is facially
established by an order of transfer from another state but comity principles require a
determination of whether exercising that jurisdiction is consistent with the UCCJEA.
Although Mother did not use an abuse of discretion framework, on appeal she
argues the jurisdiction should not have been accepted because she did not have "an
opportunity to present facts of the transfer because she was in Kansas at the time of the
hearing." She also asserts she did not consent to transfer, the California order does not
reflect the basis for the transfer, California remained the home state and residence of the
children, and California had volumes of records regarding the family.
The record supports Mother's argument that California did have voluminous
records about the family. But copies of those were transmitted to Kansas. And while
those records contain important historical information, they did not document the current
situation of the Mother and children in Kansas.
Further, Mother has not presented us with a record, or at least citations to the
record, establishing that she did not have a meaningful opportunity to argue against the
transfer. Mother has the obligation to insure a sufficient record for us to consider those
arguments and to provide citations that direct our consideration. See Friedman v. Kansas
State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013) ("'It is well-settled
that the burden is on a party to designate a record sufficient to present its points to the
appellate court and to establish its claims.'"). If, as here, an argument depends on facts,
those facts must be in the record. 296 Kan. at 644. If anything, the record suggests
Mother had an adequate opportunity to contest a transfer.
The California court held multiple hearings on the question of transfer. And,
Mother attended at least one hearing in California after the children were returned to
21
California after service of the California warrants. Nothing in the record suggests she was
not or could not have been present for any other hearings. The record further reveals
notice was given of hearings in California and her attorney was present at all hearings.
Mother did not explain to Judge Segarra or us what evidence she was unable to present to
the California court or why she was not able to be present. Ironically, the difficulties
caused by both her and D.S. being in Kansas while court proceedings occurred in
California are factors justifying a transfer to Kansas. Simply put, the record shows she
had the opportunity through counsel, if not herself, to present evidence and arguments
about the transfer.
In addition, as Judge Segarra noted, Mother had the opportunity to object in
California to the transfer, but she did not. (Although the record does not show she
consented.) And she did not seek appellate review in California of the transfer order. See,
e.g., Brewer v. Carter, 218 Cal. App. 4th 1312, 1314, 1319-20, 160 Cal. Rptr. 3d 853(2013) (reversing trial court order allowing transfer to Illinois because it was a more
convenient forum); Taylor M. v. Superior Court, 106 Cal. App. 4th 97, 110-11, 130 Cal.
Rptr. 2d 502 (2003) (granting mandamus relief and vacating order based on conclusion
the referee abused discretion in ceding jurisdiction to Texas where only one of the eight
statutory factors favored the jurisdictional transfer). In other words, the record establishes
that Mother did not avail herself of the opportunities to be heard regarding the transfer
that the California courts made available to her.
Mother's strongest point, the one that gained traction with the panel, relates to the
California court's failure to reference the basis for the transfer or include factual findings
in its June 24, 2105, order. Nevertheless, under principles of comity, we generally accord
a sister court's actions the same degree of deference we would give a court of this state.
See Padron, 289 Kan. at 1108. Both California appellate courts and Kansas appellate
courts generally presume a district court has made sufficient findings of fact and
22
conclusions of law to support its decision. See State v. Longoria, 301 Kan. 489, 506, 343
P.3d 1128 (2015) (discussing district court's failure to discuss factors argued by parties
when ruling on motion and holding that where party fails to object to sufficiency of
findings, appellate courts presume the district court made the findings necessary to
support the ruling); see also In re Marriage of Arceneaux, 51 Cal. 3d 1130, 1133-34, 275
Cal. Rptr. 797, 800 P.2d 1227 (1990) ("if a party does not bring such deficiencies [in
findings] to the trial court's attention, he waives his right to claim on appeal that the
statement was deficient in these regards, and hence the appellate court will imply findings
to support the judgment"); Brewer, 218 Cal. App. 4th at 1320 (discussing doctrine of
implied findings).
Further, at least two justifications exist under the UCCJEA for the transfer. First,
because both Mother and D.S. had moved to Kansas and Mother had taken the children
with her, the California court could have determined the children and the parents no
longer had a significant connection with the home state of California "and that substantial
evidence is no longer available in this state concerning the child[ren]'s care, protection,
training, and personal relationships." See Cal. Fam. Code § 3422(a); see also K.S.A. 2018
Supp. 23-37,202(a)(1) (UCCJEA 202). As Judge Segarra found, if reintegration was to
occur, the plan needed to be developed in Kansas, and evidence about reintegration
would be available in Kansas, not California. Second, the court could have determined
Kansas was a more convenient forum. See Cal. Fam. Code § 3427; see also K.S.A. 2018
Supp. 23-37,207 (UCCJEA 207). Many of the eight factors weigh toward finding that
Kansas is the more convenient forum, including the distance between California and
Kansas where Mother was residing and had expressed an intent to remain; Mother's
limited financial resources; the existence of evidence regarding the children's and
Mother's living, work, and general circumstances in Kansas; and the presence of
witnesses in Kansas who would testify about those circumstances. See Cal. Fam. Code
23
§ 3427(b) (listing factors); see also K.S.A. 2018 Supp. 23-37,207(b) (listing substantially
the same factors).
While Mother argues against either of those determinations, she essentially asks us
to reweigh evidence and factors and override the California court. For support of our
doing so, Mother relies on In re A.A., 51 Kan. App. 2d 794. But the facts of that case
distinguish it and leave Mother without cited caselaw supporting her argument.
In re A.A. also involved proceedings begun in another forum, there, a divorce in
Mississippi. And, like here, the State argued the Mississippi court appropriately
transferred jurisdiction. But the In re A.A. Court of Appeals panel noted the Mississippi
order was limited to a transfer of issues of contempt and other issues "'not herein ruled
upon.'" 51 Kan. App. 2d at 810. And the State had not pointed to any document showing
that a determination of change of custody was an issue pending before the Mississippi
court. Given the limited nature of the transfer order, the In re A.A. panel refused to
presume the Mississippi court had made the findings necessary to support an order
transferring a determination of child custody to Kansas. The panel remanded to allow the
lower courts in both Kansas and Mississippi to make the requisite findings. In re A.A., 51
Kan. App. 2d at 810-13.
Here, however, the California court did not limit the proceedings it transferred.
And the California record before us is not inconsistent with a conclusion that we can
presume the trial court made the necessary findings that would support the transfer order.
While we do not have transcripts, the record we have supports the legal possibility that
transfer would be appropriate. And procedurally, we know the California court provided
an opportunity for Mother to be heard and to present evidence. Judge Segarra understood
those facts and also understood no one objected to the transfer. Thus, we presume the
24
California court made findings that supported transfer under either Cal. Fam. Code §
3422(a) (UCCJEA 202) or Cal. Fam. Code § 3427 (UCCJEA 207). See K.S.A. 2018
Supp. 23-37,202(a); K.S.A. 2018 Supp. 23-37,207.
To rebut the presumption, Mother had the burden of establishing a record
sufficient for our determination of her arguments. See Kelly, 287 Kan. at 526. But she did
not. The record before us establishes the California court had CINC proceedings pending
before it. It had conducted hearings about the transfer, conferred with Judge Segarra, and
ordered the transfer. On that record, we presume the necessary findings to support the
order. And Mother did not appeal that ruling.
We, therefore, hold the Kansas district court did not abuse its discretion in
exercising jurisdiction over the CINC proceedings. And doing so was consistent with the
purposes of the UCCJEA.
2. Mother's procedural due process rights were not violated.
Finally, Mother argues we should set aside Judge Segarra's determinations (1) not
to proceed with reintegration and (2) to terminate parental rights because doing so was in
the children's best interests. She rests her argument on the district court's alleged failure
to comply with a Kansas statute that applies "[i]f the court determines at any time other
than during a permanency hearing that reintegration may not be a viable alternative for
the child" and requires a permanency hearing "no later than 30 days following that
determination." K.S.A. 2015 Supp. 38-2264(e). She argues the failure to comply with the
statute violated her procedural due process rights. Both the district court and Court of
Appeals rejected her arguments, and we affirm. See In re A.A.-F., 2017 WL 6625230, at
*10.
25
To establish a due process violation, Mother must show she was both entitled to
and denied a specific procedural protection. In considering the procedural protection
required, a court weighs:
"(1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest
through the procedures used and the probable value, if any, of additional or substitute
procedural safeguards; and (3) the State's interest in the procedures used, including the
fiscal and administrative burdens that any additional or substitute procedures would
entail." In re J.D.C., 284 Kan. 155, 166-67, 159 P.3d 974 (2007) (citing Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 [1976]; Winston v. Kansas
Dept. of SRS, 274 Kan. 396, 409-10, 49 P.3d 1274 [2002], cert. denied 537 U.S. 1088,
[2002]).
Mother notes that, as a parent, she has a fundamental liberty interest in the right to
make decisions regarding the care, custody, and control of her children. This principle is
without dispute. See In re J.D.C., 284 Kan. at 166 (citing Troxel v. Granville, 530 U.S.
57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 [2000]; Sheppard v. Sheppard, 230 Kan.
146, 152, 630 P.2d 1121 [1981], cert. denied 455 U.S. 919 [1982]). Mother then argues
that right extends to the determination that reintegration is no longer viable. She cites no
law for this proposition. Even so, her argument carries weight because the reintegration
arrangement arises in an effort to maintain a parent's rights to the care, custody, and
control of his or her children. In other words, Mother has rights at stake and arguably
some protection should be afforded the decision that reintegration is not a viable
alternative because it involves a step in the process that may ultimately terminate parental
rights.
A parent's constitutional rights are not without limits, however. The State's interest
in a child's welfare may be asserted through state processes designed to protect children
in need of care. See In re J.D.C., 284 Kan. at 166. Nevertheless, "[b]efore a parent can be
26
deprived of [his or] her right to the custody, care, and control of [his or] her child, he or
she is entitled to due process of law." 284 Kan. at 166. And one of "[t]he fundamental
requirement[s] of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner." 284 Kan. at 166 (citing Mathews, 424 U.S. at 333; Winston, 274
Kan. at 409).
Here, Mother had notice of the hearing at which the decision was made to find
reintegration no longer viable. She also had an opportunity to be heard.
Nevertheless, Mother posits that the failure to hold a statutorily mandated
permanency hearing within 30 days violated her constitutional due process right to a
meaningful, timely hearing. See 2015 Supp. K.S.A. 38-2264(e). We assume without
deciding that the 30-day requirement is mandatory. But see Ambrosier v. Brownback, 304
Kan. 907, 915, 375 P.3d 1007 (2016) (interpreting "shall" as used in a statute to be
directory rather than mandatory). The key consideration is whether the delay meant
Mother lacked a meaningful opportunity to be heard. Certainly, at times, delay can
eviscerate the ability to meaningfully accomplish the purpose of a permanency hearing.
But not always. And the failure to follow a statutorily required process does not
inevitably result in a due process violation. See Taylor v. Kansas Dept. of Health &
Environment, 49 Kan. App. 2d 233, 242, 305 P.3d 729 (2013); see also First Assembly of
God v. Collier County, Fla., 20 F.3d 419, 421-22 (11th Cir. 1994) (county's failure to
comply with state statute violated state law but did not amount to federal constitutional
due process violation where minimum constitutional requirements of some kind of notice
and hearing were met).
To establish the constitutional violation, Mother must show the process followed
in this case created a risk she would be erroneously deprived of her interests. See In re
J.D.C., 284 Kan. at 166-67 (holding that claimant must establish "the risk of erroneous
27
deprivation of the [particular liberty] interest through the procedures used and the
probable value, if any, of additional or substitute procedural safeguards"). Mother has not
met this burden.
The Kansas court held a full, evidentiary hearing in November 2015 when it made
the determination that reintegration was not viable. The State presented an expert report,
and, along with DCF, argued the report supported finding reintegration no longer viable.
Mother's counsel argued otherwise, pointing to the expert's opinion about the best path
toward reintegration. Mother's counsel also requested and received an opportunity to
present Mother's testimony. Mother's counsel argued for continued efforts toward
reintegration consistent with the expert's proposed reintegration plan—a plan that would
reintegrate the children in stages.
After hearing this testimony and the parties' arguments, the district court reviewed
the facts. The district court acknowledged the relatively short time the case had been
pending in Geary County but noted the extended history in California dating back to
2009. The court found that the record established that the children had been in and out of
protective custody over that approximately seven-year period. The court further found
that "there have been a multitude of services that have been provided to this family, and
these children are no closer to going home and being able to be maintained at home in a
safe environment, th[a]n they were when they were first taken into custody." The court
highlighted Mother's testimony indicating she presently had a sex offender living in her
home, which precluded returning the children there. Ultimately, the district court returned
to the State's expert report, which the court read as concluding Mother would remain
unable to parent the children appropriately despite the plan of attempting reintegration in
stages. In light of Mother's history, the expert's report, and Mother's lack of progress in
having her children returned to her custody, the court found "reintegration is no longer a
viable option with the mother."
28
The district court's decision was not the final ruling on whether Mother would or
could regain her right to parent her children, however. Less than 90 days later, the court
held a review hearing. At that hearing, Mother's attorney informed the court that Mother
was working on alternative plans with the goal of avoiding termination of parental rights.
Mother asked for a continuance. The court held hearings at regular intervals.
Then, on October 12, 2016, the court held a permanency hearing. See K.S.A. 2015
Supp. 38-2264(d) ("A permanency hearing shall be held within 12 months of the date the
court authorized the child's removal from the home and not less frequently than every 12
months thereafter."). Mother did not appear even though, according to the court's
findings, she had been given notice of this hearing. A witness stated Mother had said she
would be at the hearing. Then, the court conducted several days of hearings in late 2016
and early 2017 on the State's motion for a finding of unfitness and termination of parental
rights. Not until February 23, 2017, did the court enter an order finding Mother "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," and
terminating Mother's parental rights.
Mother fails to argue what more she would or could have done with an earlier
opportunity to address the changed goal within 30 days of the court's November 2015
ruling that reintegration was no longer a viable alternative. And we find no record—and
Mother does not cite to one—establishing that she objected to a delay in the hearing. In
summary, Mother had the opportunity to fully litigate the viability of reintegration before
the judge terminated her parental rights. She had multiple opportunities to request a
rehearing on the viability determination. And the record shows some of the delay was at
her request. She has not shown what would have changed in 30 days after the viability
ruling or what other evidence she would have submitted and has failed to establish that
29
the failure to conduct the permanency hearing within 30 days increased the risk of
erroneously depriving her of her rights or that there was probable value in having the
hearing within that time frame.
Here, minimal due process requirements were met. Therefore, even assuming
Mother's interest in a timely permanency hearing is a constitutionally protected interest,
Mother has failed to show a constitutional due process violation resulting from the failure
to comply with a Kansas statute.
In her petition for review, Mother argues this result "effectively from the bench
legislate[s] out the requirement of permanency hearings." We disagree. The statutory
requirement stands, and Kansas courts should follow that statute. Our holding simply
means a constitutional violation has not been established under the facts of this case.
Other facts may lead to a different holding, and, knowing that, we are confident Kansas
district courts will not read our conclusion that the failure to comply with a statutory
requirement in this case did not violate constitutional due process as license to ignore
K.S.A. 2015 Supp. 38-2264(e).
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
30