                                        No. 120,504

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  IN THE INTEREST OF J.L.,
                                      A Minor Child.


                              SYLLABUS BY THE COURT


1.
       When evaluating a due process claim, a determination must first be made whether
a fundamental liberty or property interest is implicated. If so, the court must then
determine the nature and extent of the process that is due. Whether an individual's due
process rights were violated is a question of law subject to de novo review.


2.
       A parent has a fundamental liberty interest in making decisions regarding the care,
custody, and control of his or her child.


3.
       Before a parent can be deprived of the right to the custody, care, and control of his
or her child, the parent is entitled to due process. The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful manner.


4.
       In determining the nature and extent of the process a parent is due, the three-factor
balancing test set out in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976), is to be used. Those three factors are: (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



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State's interest in the procedure used, including the fiscal and administrative burdens
additional or substitute procedure would incur.


5.
       A component of due process requires the State to provide notice of a potential
deprivation of the interest and an opportunity to be heard regarding the deprivation.


6.
       To adjudicate a child as a child in need of care when the parent contests such a
finding, the court shall hear evidence in support of adjudication, and the State is required
to prove the same by clear and convincing evidence. When a parent is not present, the
case may proceed by proffer unless the parent appears by counsel and has instructed
counsel to object.


7.
       The State's petition containing a blanket notice that if a parent failed to appear at
any hearing the result would be the court making decisions without the parent's input and
could result in a default judgment did not satisfy the notice requirements of K.S.A. 2018
Supp. 60-255 where the father had previously appeared in the case nor did it satisfy the
minimum due process requirements for notice when the purpose of the hearing was to
consider pretrial matters and the default judgment granted was adjudication of the child
as a child in need of care.


       Appeal from Shawnee District Court; DARIAN P. DERNOVISH, judge. Opinion filed July 19, 2019.
Reversed and remanded with directions.


       Rachel I. Hockenbarger, for appellant natural father.


       Morgan L. Hall, deputy district attorney, and Michael F. Kagay, district attorney, for appellee.




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Before SCHROEDER, P.J., GREEN and POWELL, JJ.


       POWELL, J.: A father has a constitutional right to parent his child. Before that right
may be impaired or taken away, a scrupulous observance of due process is called for. In
the case before us, J.J.L. (Father) appeals the district court's decision to adjudicate by
default his son, J.L., as a child in need of care (CINC) at a pretrial conference hearing
without advance notice even though Father's counsel was present and Father was only 10
minutes late. Because such an action offends due process, we reverse and remand.


                        FACTUAL AND PROCEDURAL BACKGROUND


       On April 24, 2018, the State filed a petition alleging J.L. was a child in need of
care. In this petition, the State alleged J.L witnessed an "unknown male" shoot his mother
inside of the home, that there were prior reports of domestic violence between J.L.'s
mother and Father, and that it was believed that Father would attempt to remove J.L.
from the jurisdiction to prevent him from testifying regarding the incident. On the same
day, after a temporary custody hearing at which Father appeared in person, J.L. was
placed in the temporary custody of the Secretary of the Department for Children and
Families. On May 21, 2018, a review hearing was held, and Father appeared in person.
On June 28, 2018, another review hearing was held, and Father again appeared in person.
At this hearing a prior restraining order on Father was lifted; the district court authorized
supervised visits between J.L. and Father; and both of J.L.'s parents requested a trial on
the CINC petition, which was set for December 18 and 19, 2018. No pretrial conference
date was set at the time.


       On November 13, 2018, the district court conducted a pretrial conference hearing.
According to Father's attorney, notice of the pretrial conference was apparently mailed on
September 27, 2018, listing Father's address as "unknown." A copy of this notice does



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not appear in the record on appeal. The following exchange occurred at the pretrial
conference:


              "THE COURT: Okay. Usually the parties are here. Why aren't the parties here?
      Were they told not to be here. Or, what's going on?


              "[GUARDIAN AD LITEM]: They were ordered to appear.


              "MR. DEBENHAM [FATHER'S ATTORNEY]: Yeah. On June 25th, my client
      was here and then got the trial dates of December 18 through 19. I don't think there was a
      pre-trial set then. Or, if it [was], it was changed. And then, notice of this pre-trial was
      mailed out on September 27th listing an unknown address for 'father.' Father does move
      around. He doesn't have a set address. I had mailed him a letter at the address he said we
      usually forward things on and he wasn't there. So, I guess, my thought is is that he, you
      know, publication probably would have worked better in this instance. But the State did
      use the available information it had on his address. Which is, he had earlier.


              "THE COURT: Have you had contact with him, Mr. Debenham?


              "MR. DEBENHAM: No. Well, yes. I have had contact with him. Not, not
      recently.


              "THE COURT: You haven't had recent contact with him?


              "MR. DEBENHAM: I sent him a letter on October 23rd to the address he said
      was the best one to try to get a hold of him at. You know, telling him I needed to get a
      bunch of stuff done, please get a hold of me. And, he has not contacted me since then.


              ....


              "[THE STATE]: Your Honor, with regard, let me just start with regards to the
      father. We were previously here on June 25th. And, Mr. Debenham is correct. This was
      set for trial. How, then, we set this pre-trial conference. However, per the petition that



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       was filed and per statute, the parties, you have a duty to keep the Court as well as their
       attorneys updated on their contact information. So, when additional hearings are set, they
       receive proper notice of that. It appears that father has failed to do so, as he hasn't had
       contact with his attorney. So, the State would move to, move for default with regards to
       father based on the petition.


               ....


               "THE COURT: Okay. All right. Well, gentlemen, I would like to, it looks like
       based on the petition and based on the pre-trial questionnaires you have, have had some
       contact with the clients. They were ordered to be here. They are not here. So, based on
       that, the Court will grant the State's motion with respect to the father and find the father
       in default. The Court will also grant the motion by the guardian ad litem with respect to
       the mother and find her in default. They're both in default."


       The district court then admitted a report from KVC and suggested moving to
disposition. However, agency staff were not present to testify so the district court set the
case for disposition on a later date. Then the following occurred:


               "THE COURT: Based that they're both in default. And I do adjudicate that [J.L.]
       is a child in need of care pursuant to the relevant statutes attached to the petition and the
       affidavits in support therein. Both parties had notice of this. With respect to [Mother], she
       was supposed to be here. She was ordered to be here. You've had contact with her. She
       chose not to show up. Mr. Debenham, I, I beat this into their heads. I beat this into their
       heads. You guys work hard. You try to put on a case for these people and they don't stay
       in contact with you and it makes it impossible. I tell them every time at docket. It is your
       responsibility to get a hold of your attorneys. And if they move, they're supposed to tell
       you. They're supposed to give you a phone number, e-mail address, something. At some
       point, they have to take some responsibility for this.


               "MR. DEBENHAM: There's my client.




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                 "THE COURT: Okay. Very good. All right. So, we will find them in default.
      Now, what's the, give me the next docket date."


      Father's attorney then moved for the district court to reconsider the default
judgment against Father:


                 "MR. DEBENHAM: I might point out that my client, even though he's 10
      minutes late, he's here and if we can undo the default, I can get you to withdraw the
      default.


                 "THE COURT: What's the reason why he wasn't here?


                 "MR. DEBENHAM: I haven't had a chance to talk with him, yet.


                 "THE COURT: Okay. Why weren't you here, son?


                 "[FATHER]: When—


                 "THE COURT: Why weren't you here?


                 "[FATHER]: When? Today?


                 "THE COURT: Yeah.


                 "[FATHER]: I was just running late.


                 "THE COURT: Okay.


                 "[FATHER]: I forgot I had Court today. When I realized, I was all the way in
      Eskridge. So.


                 "THE COURT: Okay. There's not good cause there. I'm gonna continue the
      default judgment. Sir, you're ordered to appear on December 17th at 11:15."



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       The order adjudicating J.L. a CINC was filed on December 6, 2018. Father timely
appeals the adjudication pursuant to K.S.A. 2018 Supp. 38-2273(a).


                                         ANALYSIS


       On appeal, Father makes two arguments. First, he argues his due process rights
were violated when the district court entered a default judgment against him adjudicating
his son to be a CINC. Second, Father argues there was an insufficient factual basis to
adjudicate J.L. a CINC. Because the first issue is dispositive, we decline to address the
second.


             WAS FATHER DENIED DUE PROCESS WHEN THE DISTRICT COURT
                      ENTERED AN ADJUDICATION ORDER BY DEFAULT?


       Father argues his due process rights were violated when the district court entered a
default judgment against him, finding his son to be a CINC when he had appeared for the
entirety of the pretrial conference through his attorney and personally arrived at the
hearing 10 minutes late. In response, the State argues that its interests in the safety and
welfare of J.L., as well as the need for orderly and expeditious proceedings, outweigh
Father's interests.


       When evaluating a due process claim, a determination must first be made whether
a fundamental liberty or property interest is implicated. If so, we must then determine the
nature and extent of the process that is due. See Winston v. Kansas Dept. of SRS, 274
Kan. 396, 409, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002). "Whether an
individual's due process rights were violated is a question of law subject to de novo
review." In re Adoption of B.J.M., 42 Kan. App. 2d 77, 81, 209 P.3d 200 (2009).




                                              7
       It is well established that a father has a fundamental liberty interest in making
decisions regarding the care, custody, and control of his child. See Troxel v. Granville,
530 U.S. 57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); In re B.D.Y., 286 Kan. 686,
697-98, 187 P.3d 594 (2008). As a result, before a father can be deprived of the right to
the custody, care, and control of his child, he is entitled to due process. See In re
Adoption of A.A.T., 287 Kan. 590, 600-01, 196 P.3d 1180 (2008). "The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner." In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007). The right to
due process is not fixed in stone, however, and what process is due depends on the
specific circumstances. In re J.L.D., 14 Kan. App. 2d 487, 490, 794 P.2d 319 (1990),
disapproved of on other grounds by In re Adoption of B.J.M., 42 Kan. App. 2d 77, 209
P.3d 200 (2009). "A due process violation exists . . . when a claimant is able to establish
that he or she was denied a specific procedural protection." In re J.D.C., 284 Kan. at 166.


       A three-part balancing test is used to determine the nature and extent of the
process due. This test examines:


       "(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. Mathews, 424 U.S. at
       335." In re J.D.C., 284 Kan. at 166-67.


A.     Individual Interest at Stake


       As we've already outlined, a father has a constitutionally protected liberty interest
in the relationship with his children. See In re B.D.Y., 286 Kan. at 697-98. This right is


                                                    8
fundamental. In re R.S., 50 Kan. App. 2d 1105, 1115, 336 P.3d 903 (2014). In fact, our
court has held that a father's interest in the care and custody of his child "far outweighs
the State's interest in summary adjudication." In re S.M., 12 Kan. App. 2d 255, 256, 738
P.2d 883 (1987). Admittedly, while J.L.'s adjudication as a CINC is not the ultimate
disposition of Father's relationship with J.L.—unlike an unfitness finding or termination
of his parental rights—it is "the first necessary step" on the path towards severing the
bonds between Father and J.L., because if a court refuses to find a child a CINC, any
further proceedings under the revised Kansas code for care of children, K.S.A. 2018
Supp. 38-2201 et seq. (juvenile code) cease. K.S.A. 2018 Supp. 38-2251(a); see In re
R.B.S., 29 Kan. App. 2d 1023, 1027, 36 P.3d 300 (2001). The significance of a CINC
finding is also apparent due to the clear and convincing standard of evidence required to
adjudicate a child a CINC. See K.S.A. 2018 Supp. 38-2250.


B.     The Risk of Erroneous Deprivation


       To find a child a CINC when a party contests such a finding, "the court shall hear
evidence as to those persons, if they are present. The case may proceed by proffer as to
persons not present, unless they appear by counsel and have instructed counsel to object."
K.S.A. 2018 Supp. 38-2248(e); see also State v. Evans, 275 Kan. 95, 99, 62 P.3d 220
(2003) ("The purpose of a proffer is to make an adequate record of the evidence to be
introduced."). The State is required to prove that a child is a CINC by clear and
convincing evidence. K.S.A. 2018 Supp. 38-2250. Thus, before Father's parental rights
could be impaired by the adjudication of J.L. as a CINC, the State was required to prove
the need for adjudication by clear and convincing evidence. Father had the option to
waive his right to be present by stipulating to or not contesting an adjudication or by
failing to appear and not instructing his attorney to object.


       But Father's ability to enforce this right to be present is predicated on adequate
notice that an adjudication hearing is going to be held. The juvenile code requires


                                              9
advance notice before a hearing may be conducted. K.S.A. 2018 Supp. 38-2239. A
component of "due process requires the State to provide notice of a potential deprivation
of the interest and an opportunity to be heard regarding the deprivation." In re Adoption
of A.A.T., 287 Kan. at 600. The rationale for this is clear—if Father is put on notice of an
upcoming adjudication hearing, he then can ensure his presence or instruct his counsel to
hold the State to its burden of proof, thus protecting his rights. Without such notice, he
cannot weigh the importance of his attendance at the hearing or have the opportunity to
instruct his counsel.


       As outlined in the facts, after the petition had been filed, Father personally
attended two review hearings on May 21, 2018, and June 28, 2018. At this second
hearing a prior restraining order against Father was lifted; supervised visits between
Father and J.L. were allowed; and trial dates of December 18 and 19, 2018, were set
concerning the adjudication of J.L. as a CINC because both the mother and Father
contested any CINC finding. However, no pretrial conference was set at this second
hearing.


       While a copy of the actual notice is not in the record, according to the hearing
transcript of the pretrial conference, a notice was apparently mailed on September 27,
2018, establishing November 13, 2018, as the date of the pretrial conference, but it listed
Father's address as "unknown." The record suggests Father did not keep the court
apprised of his current address. Father's counsel also mailed Father a letter informing him
of the pretrial conference. Nevertheless, despite questions in the record about notice,
Father clearly had actual notice of the hearing because he appeared, although his
appearance was tardy. But there is nothing in the record that shows Father was on notice
that any failure on his part to appear at the pretrial conference could result in a default
CINC adjudication.




                                              10
       We recognize that the State's petition to adjudicate J.L. as a CINC stated: "All
parties are hereby notified that pursuant to K.S.A. 38-2234 and K.S.A. 60-255 that if you
do not appear at the hearing, the court will be making decisions without your input which
could result in a default judgment against either parent who fails to appear." We are
skeptical of the application of the default judgment statute, K.S.A. 2018 Supp. 60-255, to
proceedings under the juvenile code because the juvenile code is more specific and
contains numerous procedural provisions of its own and specifically incorporates the
code of civil procedure in only a few instances. See, e.g., K.S.A. 2018 Supp. 38-2204
(venue); K.S.A. 2018 Supp. 38-2233 through 38-2240 (filing of petition, summons,
notice, service, proof of service, witness fees); K.S.A. 2018 Supp. 38-2245 (specifically
incorporating civil discovery rules contained in K.S.A. 60-226 through 60-237); K.S.A.
2018 Supp. 38-2249 ("the rules of evidence of the code of civil procedure shall apply");
see also In re R.B.S., 29 Kan. App. 2d at 1026-27 (juvenile code controlling over civil
procedure code); In re A.H., No. 103,138, 2010 WL 1379713, at *2-3 (Kan. App. 2010)
(unpublished opinion) (no provision in juvenile code authorizing default judgment in
termination proceeding). This notwithstanding, even if we assume the applicability of
K.S.A. 2018 Supp. 60-255, parties subject to default judgment but who have appeared
personally or through a representative "must be served with written notice" of the adverse
party's desire to obtain a default judgment. K.S.A. 2018 Supp. 60-255(a). Given Father's
personal appearances at prior hearings in the case, the State was required to give him
advance written notice of its desire to seek a default judgment. We hold that the blanket
notice in the petition does not satisfy the notice requirements of K.S.A. 2018 Supp. 60-
255(a) under the facts before us because it does not signal the State's intent to seek a
default judgment at the pretrial hearing.


       Moreover, in light of the fundamental rights at stake, Father had a due process
right to advance notice that a CINC adjudication could happen at the pending pretrial
hearing before such an order could be entered, irrespective of what is required by K.S.A.
2018 Supp. 60-255. The pending hearing to which Father appeared late concerned


                                             11
resolving various pretrial matters, not whether J.L. would be adjudicated a CINC. The
fact that the parties had notice of an upcoming pretrial conference hearing did not equate
to notice that an adjudication could be made at the hearing. See Forer v. Perez-Lambkins,
42 Kan. App. 2d 742, 745, 216 P.3d 718 (2009) (notice of pretrial conference and pretrial
questionnaire insufficient notice for default judgment). Neither Father nor his counsel
could have anticipated the district court's action in granting a default adjudication and
were unprepared for it. In fact, even the prosecutor was unprepared; although she
requested the default, she was not really anticipating an adjudication as she had none of
the agency workers present and available to provide any testimony supporting an
adjudication.


       We pause to note, however, that our conclusion could very well be different under
different facts. For example, in the present case the parties were clearly on notice of the
pending adjudication hearing set for December 2018. If on the day of that hearing the
district court had entered a default adjudication of J.L. as a CINC in accordance with
K.S.A. 2018 Supp. 38-2248(e) based upon proffered evidence in the absence of Father
and his counsel's objection, a compelling argument could be made that Father could not
claim a deprivation of due process. He would have had advance notice that the district
court's decision on adjudication was imminent and would have had the opportunity to be
heard on the matter. See In re D.H., No. 119,882, 2019 WL 1087762, at *4-5 (Kan. App.
2019) (unpublished opinion) (default judgment terminating father's parental rights upheld
where father given notice but failed to appear at termination hearing).


       In our view, the risk of an erroneous deprivation of Father's fundamental parental
rights is high given what transpired. The district court's action of granting a default
adjudication without adequate notice denied Father the opportunity to be meaningfully
heard or to hold the State to its burden of proof. Moreover, the law favors a trial on the
merits, and the granting of a default judgment denied Father the opportunity to both
challenge the State's evidence and present his own. See Sharp v. Sharp, 196 Kan. 38, 41-


                                             12
42, 409 P.2d 1019 (1966). Instead, the adjudication finding was initially based merely on
Father's nonappearance and then only on the unproven allegations contained in the State's
petition and the supporting application. Under the circumstances presented here, we find
this an inadequate foundation upon which to base a CINC adjudication. To require the
State to put Father on notice that an adjudication could occur at the hearing before such
an order is entered is a minimal burden.


C.     The State's Interest in the Procedure


       The State's principal defense to Father's due process claim is that the welfare of
J.L. and the need for expeditious proceedings justify the district court's action. We agree
that in a case involving the care of children the State has a considerable interest in
resolving the case quickly and determining a course of action which will lead to a stable
home for the children. See In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008).
"'It is a long established rule that timing in these cases should be considered in "child
time" rather than "adult time." In re D.T., 30 Kan. App. 2d 1172, 1175, 56 P.3d 840
(2002).'" In re M.S., No. 119,797, 2019 WL 2554347, at *5 (Kan. App. 2019). However,
these interests were not served by the district court's action here because the actual
adjudication hearing was set for a month later. While the record is unclear on this point,
we suspect the district court could have proceeded with the pretrial conference in the
absence of Father given that Father's counsel was present and was likely well aware of
the factual and legal issues involved. We certainly think the pretrial conference could
have been commenced 10 minutes later after Father had arrived. And nothing in the
record suggests that the adjudication hearing needed to be delayed as a result of Father's
tardiness. Accordingly, we fail to see how any of the State's interests were furthered here.


       We can appreciate a district court's frustration when parents fail to show up at
important hearings concerning the welfare of their children. But the record here suggests
that the district court acted more out of pique over Father's late appearance than over the


                                               13
welfare of J.L. and the need for expeditious proceedings. The fact that the district court
refused to rescind its default judgment after Father arrived only 10 minutes late reinforces
this perception. The district court violated Father's due process rights when it adjudicated
J.L. as a CINC by default in this instance. The district court's adjudication of J.L. as a
CINC is reversed, and the case is remanded for further proceedings consistent with this
opinion. Father's second claim on appeal that insufficient evidence supported the district
court's adjudication is moot.


       Reversed and remanded.




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