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No. 120,239

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of K.H., K.R.T., and K.J.T.,

Minor Children.

SYLLABUS BY THE COURT

1.

Interpretation of a statute is a question of law over which appellate courts have 

unlimited review.

2.

At a hearing on a motion for termination of parental rights, a parent who fails to 

appear in person but who appears through counsel is not in default. In this situation, the 

district court errs by granting a default judgment terminating parental rights without 

receiving any evidence to support the motion.

3.

Under the Revised Kansas Code for Care of Children, when a parent fails to 

appear at the hearing on a motion to terminate parental rights, the State may proceed by 

proffering the evidence supporting the motion if there is no objection by counsel for the 

parent. But if the parent has instructed his or her counsel to object to a proffer, then the 

State should proceed by presenting evidence to the court in support of termination. 

Appeal from Shawnee District Court; MARY E. CHRISTOPHER, judge. Opinion filed May 17,

2019. Reversed and remanded.
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Rachel I. Hockenbarger, of Topeka, for appellant.

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

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

MALONE, J.: J.H. (Mother) appeals the termination of her parental rights to her 

children, K.R.T., K.J.T., and K.H. The district court granted a default judgment against 

Mother because she failed to appear in person at the hearing on the State's motion to 

terminate parental rights, even though Mother appeared at the hearing through her court 

appointed counsel. On appeal, Mother claims the district court violated her due process 

rights by terminating her parental rights through a default judgment. She also claims there 

was insufficient evidence to support the district court's findings that she was an unfit 

parent and that termination of her parental rights was in the children's best interests. For

the reasons stated in this opinion, we conclude the district court erroneously terminated 

Mother's parental rights based on a default judgment without hearing any evidence. 

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2015, the State filed a petition alleging K.R.T., K.J.T., and K.H.

were children in need of care (CINC). The petition named N.C. as the father of K.R.T. 

and K.J.T., and it named R.H. as the father of K.H. The fathers are not involved in this 

appeal. As to Mother, the petition alleged that she physically abused the children. 

The district court held a temporary custody hearing the next day. Mother and her 

court appointed attorney appeared at the hearing. At the end of the hearing, the district 

court placed the children into the temporary custody of the Department for Children and 

Families (DCF).
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The district court held an adjudication hearing on November 30, 2015. Mother 

appeared in person and through her attorney. At the hearing, Mother did not contest the 

allegations in the petition and the district court adjudicated the children as CINC. The 

district court held a disposition hearing on January 25, 2016, and ordered that the children 

remain in DCF custody. 

The record reflects no other court hearings until late in 2016. In December 2016, 

the district court held a permanency hearing with the goal of reintegration or adoption.

The district court held a review hearing in March 2017, and the court ordered social 

services to provide therapist recommendations to Mother. The district court held the next 

hearing in May 2017, and it ordered reports on progress in therapy. The district court held 

another review hearing in July 2017, and it ordered the social service agency to distribute 

reports relating to autism, psychological evaluations, and parenting assessments to all 

parties. Mother appeared in person and through her attorney at each of these hearings.

On July 31, 2017, Mother moved for direct placement of the children with her or,

in the alternative, for accelerated reintegration. In her motion, Mother alleged she had

stable housing, gainful employment, and was complying with her parole and requests 

from social services. But she argued social services were not making efforts to 

rehabilitate the family because social services did not start family therapy or allow her

visits with the children longer than one hour. Mother requested the children be placed

with her and allow court services to supervise her care of the children. 

Before the district court could hear Mother's motion, the State moved to terminate 

her parental rights. The motion alleged that Mother was failing her reintegration plan due, 

in part, to her recent incarceration. According to the motion, Mother was incarcerated for 

felony fleeing or eluding, felony interference with law enforcement, misdemeanor 

possession of marijuana, and several traffic violations. The record does not reflect the 

final disposition of the criminal charges. The State's motion also requested termination of 
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the fathers' parental rights. The motion included a notice that "[a]ll parties are hereby 

notified 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." 

The district court held several hearings before scheduling a trial on the motion to 

terminate parental rights. At a review hearing on August 28, 2017, the district court 

ordered a continuance on both pending motions. The district court held a permanency 

hearing in October 2017. At a review hearing on November 14, 2017, and again at a 

hearing on January 3, 2018, the district court continued the pending motions. Mother 

appeared in person and through her attorney at each of these hearings.

In March 2018, the district court held a review hearing where Mother addressed 

the court "regarding sibling visits and . . . communication and cooperation issues between 

Mother and [social services] assigned to her case." The district court ordered sibling 

visits to occur within two weeks and continued the case for pretrial and trial.

The district court held a pretrial hearing in April 2018. Mother failed to appear and 

the court continued the case for another pretrial hearing in May 2018. The record 

contains no journal entry for the May 2018 hearing, but the record shows the hearing 

occurred in May and that Mother again failed to appear.

The district court scheduled a trial on the State's motion to terminate parental 

rights on June 26, 2018. Mother did not appear in person at the hearing, but she was 

represented by her court appointed attorney. The district court recessed for 10 minutes to 

give Mother a chance to appear late, but she did not appear when court resumed. Mother's 

attorney referred the court to an unpublished Kansas appellate decision finding that a 

mother's due process rights had been violated when the district court refused to hold over 

a termination hearing for a third day to allow the mother to testify after she had failed to
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appear on the second day of the hearing. The district court responded that "if it is an 

unpublished opinion then per Supreme Court rule it has no [precedential] value."

On the State's request, the district court granted "default judgment in regards to 

[M]other's termination of parental rights." The district court entered a finding that Mother 

was "unfit as set forth in the State's motion." The district attorney asked the court for 

clarification in whether it was making a best interests finding. The district court agreed 

that it was making a best interests finding and noted that it had "reviewed the file and the 

materials in it" earlier that morning.

The State later filed a journal entry terminating Mother's parental rights. In the 

journal entry, the district court found Mother unfit because of: (1) failure of reasonable 

efforts by appropriate public agencies to rehabilitate the family; (2) lack of effort on 

Mother's part to adjust her circumstances, conduct, or conditions to meet the needs of the 

children; (3) failure to maintain regular visitation, contact, or communication with the 

children; and (4) failure to carry out a reasonable plan approved by the court directed 

toward reintegration.

Mother moved to reconsider and set aside the default judgment. In her motion, 

Mother asserted that she was not at the termination hearing because of "mistake, 

inadvertence or, at the very worst, excusable neglect." She explained she missed the trial 

because she was confused because previous hearings had been in the afternoon. She

argued that the children were bonded to her and that setting aside the default judgment

would not prejudice the State. Mother asserted that she had a history of appearing in court 

during the case and that she always worked her case plan and visited with her children.

At a hearing at which Mother appeared in person, the district court denied the motion to

reconsider and set aside the default judgment, finding that Mother's stated reason for 

missing court was not a "meritorious defense." Mother timely filed a notice of appeal.
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ANALYSIS

On appeal, Mother claims the district court violated her due process rights by 

terminating her parental rights through a default judgment. She also claims there was 

insufficient evidence to support the district court's findings that she was an unfit parent 

and that termination of her parental rights was in the children's best interests. Because we 

find that these two issues are interrelated, we will address them together.

As to Mother's due process claim, "[t]he 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). When considering whether there has

been a due process violation, appellate courts apply an unlimited standard of review. 

State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).

As to Mother's sufficiency of the evidence claim, "[w]hen this court reviews a 

district court's termination of parental rights, we consider whether, after review of all the 

evidence, viewed in the light most favorable to the State, we are convinced that a rational 

factfinder could have found it highly probable, i.e., by clear and convincing evidence, 

that the parents' right should be terminated." In re K.W., 45 Kan. App. 2d 353, 354, 246 

P.3d 1021 (2011). In making this determination, an appellate court does not weigh 

conflicting evidence, pass on the credibility of witnesses, or redetermine questions of 

fact. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). 

Although Mother's claim that the district court erred by granting a default 

judgment is based on an alleged violation of her constitutional due process rights, we find 

that the claim can be resolved through statutory analysis. Interpretation of a statute is a 

question of law over which appellate courts have unlimited review. Neighbor v. Westar 

Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). 
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We begin by reviewing the statutory procedure for termination of parental rights in 

the Revised Kansas Code for Care of Children (Revised Code), K.S.A. 2018 Supp. 38-

2201 et seq. In all proceedings under the Revised Code, the rules of evidence of the code 

of civil procedure shall apply. K.S.A. 2018 Supp. 38-2249(a). Under the Revised Code, 

any party may request that the parental rights of either or both parents be terminated

based on a finding of unfitness, either by making the request in the original petition filed 

in the case or in a separate motion filed in an existing case. K.S.A. 2018 Supp. 38-

2266(a).

Upon the filing of a motion to terminate parental rights, the district court shall

appoint an attorney to represent any parent who is not already represented by counsel. 

K.S.A. 2018 Supp. 38-2267(d) states that before a hearing on a motion to terminate 

parental rights, "the court shall appoint an attorney to represent any parent who fails to 

appear and may award a reasonable fee to the attorney for services." This statute

contemplates that a termination of parental rights hearing can proceed with appointed 

counsel when the parent fails to appear. 

At the hearing on a motion to terminate parental rights, the court may grant the 

motion when it finds by clear and convincing evidence that the parent is unfit by reason 

of conduct or condition which renders the parent unable to care properly for a child and 

the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2018 

Supp. 38-2269(a). In determining unfitness, the court shall consider, but is not limited to, 

the factors set forth in K.S.A. 2018 Supp. 38-2269(b) and (c). If the court makes a finding 

of unfitness, it shall also consider whether termination of parental rights is in the best 

interests of the child. K.S.A. 2018 Supp. 38-2269(g)(1).

Finally, the Revised Code directs the district court how to proceed at a hearing on 

a motion to terminate parental rights when a parent fails to appear. K.S.A. 2018 Supp. 38-

2248(f) provides that in evidentiary hearings for termination of parental rights, "the case 
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may proceed by proffer as to parties not present, unless they appear by counsel and have 

instructed counsel to object." In other words, when a parent fails to appear at the hearing 

on a motion to terminate parental rights, the State may proceed by proffering the 

evidence supporting the motion if there is no objection by counsel for the parent. But if 

the parent has instructed his or her counsel to object to a proffer, then the State should 

proceed by presenting evidence to the court in support of termination. 

Here, the district court did not follow the statutory procedure in granting a 

judgment terminating Mother's parental rights. Although Mother failed to appear in 

person at the hearing on the motion to terminate her parental rights, she appeared at the 

hearing through her attorney. In this situation, at a minimum, the State should have 

proceeded by proffering the evidence in support of its motion to the district court. In the 

event of an objection to a proffer, the State should have proceeded to offer clear and 

convincing evidence to support its motion to terminate Mother's parental rights. 

Instead of following the statutory procedure, the district court announced, without 

receiving any evidence, that it was granting a "default judgment in regard to [M]other's 

termination of parental rights." The district court found that Mother was "unfit as set 

forth in the State's motion." But the State's motion was not evidence, nor did any party 

ask the district court to consider the motion as evidence. In clarifying that it was also 

making a best interests finding, the district court noted that it had "reviewed the file and 

the materials in it" earlier that morning.

We recognize that a court may take judicial notice of its own court file. See K.S.A. 

60-409(b)(4); In re A.S., 12 Kan. App. 2d 594, 598, 752 P.2d 705 (1988). But in 

proceedings under the Revised Code, there are two separate files in any CINC case: the 

official file containing all the pleadings filed in district court and the social file containing 

reports and evaluations of the parties involved in the case. See K.S.A. 2018 Supp. 38-

2211. Here, the district court did not specify whether it had reviewed its official court file 
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or the social file before the hearing and, in any event, no party requested the district court 

to take judicial notice of any file to serve as an evidentiary basis supporting the State's 

motion to terminate parental rights. Without a clearer record, we have no way of knowing 

what documents the district court may have reviewed before the hearing or whether the 

documents supported the district court's decision to terminate Mother's parental rights.

The district court later filed a journal entry terminating parental rights, noting that 

a default judgment had been granted against Mother. The journal entry also specified 

several statutory grounds for finding that Mother was an unfit parent under K.S.A. 2018 

Supp. 38-2269(b) and (c). But as we have explained, the record shows that no party 

presented any evidence to the district court supporting the statutory factors. 

We also recognize that the State's motion to terminate parental rights stated that 

"[a]ll 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." But an 

examination of these two statutes shows that they do not support the district court's 

decision to grant a default judgment against Mother under the circumstances of this case.

K.S.A. 2018 Supp. 38-2234(a)(8) states that a pleading in a CINC case shall notify 

the parties that "[i]f you do not appear in court the court will be making decisions without 

your input." (Emphasis added.) But notifying a party that failure to appear in court will 

allow the court to make decisions without the party's input is not the same as notifying 

the party that failure to appear in court will allow the court to make decisions without 

hearing any evidence. Thus, K.S.A. 2018 Supp. 38-2234 did not authorize the district 

court to grant a default judgment against Mother without receiving any evidence.

Likewise, K.S.A. 2018 Supp. 60-255 did not authorize the district court to grant a

default judgment under the circumstances presented here. That statute provides, in part: 
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"(a) When a party against whom a judgment for affirmative relief is sought has 

failed to plead or otherwise defend, the party is in default. On request and a showing that 

a party is entitled to a default judgment, the court must render judgment against the party 

in default for the remedy to which the requesting party is entitled. . . . If the party against 

whom a default judgment is sought has appeared personally, or by a representative, that 

party or its representative must be served with written notice of the request for judgment 

at least seven days before the hearing."

Under K.S.A. 2018 Supp. 60-255, a party is in default when the party "has failed 

to plead or otherwise defend" against the action. Mother was not in default under this 

statute because she had appeared either in person or through counsel at every hearing 

scheduled in the case including the hearing to terminate parental rights. She certainly had 

not failed to plead or otherwise defend against the action as contemplated by the statute.

We have found no published appellate decisions in Kansas addressing default 

judgments granted on a motion to terminate parental rights. But In re A.H., No. 103,138, 

2010 WL 1379713 (Kan. App. 2010) (unpublished opinion), is similar to the facts here. 

In that case, the State moved to terminate the father's parental rights. Although the father 

was represented by stand-by counsel, he failed to appear in person at the termination 

hearing. Upon the State's request, the district court entered a default judgment 

terminating the father's parental rights. The district court received no evidence at the 

hearing, but the court stated that "it had reviewed the files and found sufficient evidence 

of unfitness." 2010 WL 1379713, at *1. 

On appeal, the father challenged the sufficiency of the evidence supporting the 

termination order. This court began its analysis by questioning whether K.S.A. 60-255(a) 

on default judgments applies to a Chapter 38 proceeding. But without deciding that 

question, this court stated: "While [Father] did not appear to defend the State's unfitness 

allegations, [Father] was represented by stand-by counsel. Even if stand-by counsel was 

unprepared to represent [Father]'s interests, the district court should have proceeded with 
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the hearing and required the State to produce evidence in support of termination." 2010 

WL 1379713, at *2. This court observed that K.S.A. 2009 Supp. 38-2269(a) provides that 

the court may terminate parental rights only when the court finds by clear and convincing 

evidence that the parent is unfit and that the conduct or condition is unlikely to change in 

the foreseeable future. Based on the statute, this court concluded that "the State was not 

entitled to judgment unless and until the State established clear and convincing evidence 

of [Father]'s unfitness to the satisfaction of the court." 2010 WL 1379713, at *2. 

In re A.H. is distinguishable from the facts here because the district court in that 

case made no statutory findings of unfitness. Here, the journal entry filed by the district 

court included statutory findings of unfitness. But as we have discussed, these findings 

were not based on any evidence presented at the termination hearing, so the distinction 

between the two cases is not significant. We agree with the court's analysis in In re A.H.

The State is not entitled to receive a default judgment against a parent who fails to appear 

in person at a termination hearing as long as the parent appears at the hearing through 

counsel. In that situation, the State must present evidence, or at least proffer evidence,

supporting its motion to terminate parental rights before the district court can grant 

judgment on the motion. Cf. In re D.H., No. 119,882, 2019 WL 1087762, at *4-5 (Kan. 

App. 2019) (unpublished opinion) (finding district court's decision to deny parent's 

motion to set aside default judgment was not an abuse of discretion).

To sum up, the district court erred by granting a default judgment against Mother 

terminating her parental rights because she was not in default in the proceedings. Mother 

had appeared in person at most of the hearings throughout the case and she appeared 

through her court appointed counsel at the hearing on the motion to terminate parental 

rights. A CINC case is a civil proceeding, and although one might expect a parent to 

attend a hearing on a motion to terminate parental rights, there is no requirement for a 

parent to attend such a hearing unless the parent has been subpoenaed by a party. And 

even a failure to obey a subpoena or court order to attend a hearing would not render the 
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parent in default to allow the court to terminate parental rights without receiving any 

evidence. Here, Mother had been notified that her failure to appear at the hearing could 

result in the court making decisions without her input that could result in the termination 

of her parental rights. But this notice did not allow the district court to terminate Mother's 

parental rights without receiving any evidence supporting the motion. 

Mother claims on appeal that there was insufficient evidence to support the district 

court's findings that she was an unfit parent and that termination of her parental rights 

was in the children's best interests. We agree. In fact, the State presented no evidence

supporting its motion to terminate Mother's parental rights. The court may grant a motion 

terminating parental rights only when it finds by clear and convincing evidence that the 

parent is unfit by reason of conduct or condition which renders the parent unable to care 

properly for a child and the conduct or condition is unlikely to change in the foreseeable 

future. K.S.A. 2018 Supp. 38-2269(a). When Mother failed to appear at the hearing on 

the motion to terminate her parental rights, the State, at a minimum, should have 

proceeded by proffering the evidence in support of its motion to the district court. In the 

event of an objection to a proffer, the State should have proceeded to offer clear and 

convincing evidence to support its motion to terminate Mother's parental rights. 

Based on the record before us, we conclude there was insufficient evidence to 

support the district court's findings that Mother was an unfit parent and that termination 

of her parental rights was in the children's best interests. The case is remanded to the 

district court for further proceedings consistent with this opinion.

Reversed and remanded.