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Recent Legal Developments

SPEECH  6 17 2022

 CHILD SUPPORT—Overpayment Credit Resulting from Payments Under Missouri Decree. Daniels v. Yasa, Docket No. 122,080, 2021 WL _____ (Unpublished Kan. Ct. of App. 12.3.2021.  Harvey-Judge Hilgers affirmed in part, reversed in part, vacated in part, and remanded for further proceedings.)

As part of the divorce decree, father was ordered to continue to pay child support for his son, and to pay half of the educational and medical expenses for his son after he graduated high school, if he met certain conditions imposed by Missouri statutes.  The sun failed to satisfy Missouri’s college enrollment, performance, and reporting requirements, all of which are statutory. After discovering his son’s failure to meet these requirements entitling him to receive continue child support, father sought termination of his child support obligation and for reimbursement of overpaid amounts. The Circuit Court terminated father’s child support obligation October 1, 2018 (which, under Missouri statute, is the date by which son had to satisfy the statutory eligibility requirements) but did not order any refund or offset against amounts owed. Father appealed, claiming his child support should have ended up on his cell’s graduation from high school in May, 2016, and that he is entitled to a refund for overpaid amounts. The Court of Appeals determined father’s child support obligation in that upon sun’s graduation from high school because the sun failed to comply with the statutory requirements entitling him to support after that time. The Court of Appeals also agreed with father that he is entitled to a refund, plus interest, of any child support payments he made after his son’s emancipation, which did not occur as a matter of law in Missouri until his son’s college informed him that he was not eligible to re-enroll. The child support judgment against father formality allegedly own after his son’s graduation should be vacated and a credit equaling the amount she wrongly paid should be issued against any arrearages he may owe. The case was affirmed in part, reversed in part, vacated in part, and remanded for further proceedings.

CHILD SUPPORT—ModificationIn the Matter of the Parentage of N.P. by and through C.M. and T.P., Docket No. 123,842, 2022 WL ______ (Unpublished Kan. Ct. of App. 2.4.2022. Johnson-Judge Rokusek affirmed).  In a case where physical custody of a child was disputed (i.e. which parent had the child over what periods of time), and father was charged with a child support arrearage accumulating over a period of time during which he alleged he had the child, the court said: “Kansas law provides that child support may be modified whenever circumstances make such change proper, ‘but the modification operates prospectively only.’ In re Marriage of Schoby, 269 Kan. 114, 117, 4 P 3d 604 (2000). Under K.S.A. 2020 Supp. 23-3—5(b), an order modifying child support can only be retroactive to the first day of the month following the filing of the motion to modify.” Although a trial court has authority to modify a previous support order, the new order cannot increase or decrease amounts past due. The district court may not retroactively decrease an amount due for child support.

CINC—Clinical or Substance Abuse Evaluation. In the Interest of E.L., a Minor Child, Docket No. 123, 707, 2021 WL ______, _____Kan. App. 2d _____, ____ P. 3d ______ (Kan. Ct. of App. 11.24.2021. Sedgwick—Judge Hogan affirmed).  A requirement that a very to undergo a clinical or substance abuse evaluation in a child in need of care proceeding does not violate the parent’s fifth amendment chapter right under the United States Constitution against self-incrimination. When deciding whether to terminate parental rights, a district court’s consideration of a parent’s failure to comply with a court order to undergo a clinical or substance abuse evaluation in a child in need of care proceeding does not violate that parent’s Fifth Amendment chapter right under the United States Constitution against self-incrimination. A parent’s demonstrated lack of willingness to participate in treatment may be considered in determining whether the state has made active efforts to reunify an Indian family under the Indian Child Welfare Act.

CINC-Video conference on motion to terminate parental rights does not violate due process rights of participants. In the Interest of C.T., Docket No. 123,618, ____ Kan. App. 2d _____, ____P.3d _____(10.29.2021-Miami-Judge Harth, Affirmed.). A District Court conducting child in need of care proceedings by videoconference, including a hearing on a motion to terminate parental rights, does not violate the due process rights of the participants so long as certain safeguards are present. These safeguards include adequate audio quality, which allows all participants to hear the proceedings, the ability of participants to observe the witnesses, the ability of parties to access all exhibits, and the ability of parties to confer privately with their attorneys.

JURISDICTION TO MODIFY PARENTING TIME—Ends When Child Reaches Age 18.  Marriage of Lewis and Bush, Docket No. 124, 454, ___ Kan. App. 2d ____, ___P.3d.____ (June 10, 2022-Johnson-Judge Rokusek—Affirmed in part and dismissed in part). Pro se father appeals court’s ruling regarding his parenting time (which the court decreased) after the teenage child’s step-mother (his most recent wife) and the child experienced a physical altercation which resulted in his not seeing the child for about a year.  The Court of Appeals holds “the district court’s jurisdiction over parenting time and custody ended when the child reached the age of majority,” which occurred while the appeal was pending. “Because the district court lost jurisdiction to enter any child custody and parenting time orders once the child reached the age of majority, any question concerning the propriety of its parenting time order became moot.” “Because the child has reached the age of majority, she now has the right to choose her own residence and how often she sees [her father].”

JURISDICTION TO MODIFY CHILD SUPPORTMay Extend Beyond Age of Majority.  Marriage of Lewis and Bush, Docket No. 124, 454, ___ Kan. App. 2d ____, ___P.3d.____ (June 10, 2022-Johnson-Judge Rokusek—Affirmed in part and dismissed in part). There in no linkage of parenting time and child support. Just because a parent is paying child support does not mean that such parent is entitled to parenting time.  K.S.A. 23-3001(b). Even though a child support obligation may extend beyond the age of majority and into the child’s 19th year of life because she was held back in school, there is no provision extending the district court’s jurisdiction over parenting time, even if a parent’s child support obligation is extended. K.S.A. 23-3001(b)(3).

TERMINATION OF PARENTAL RIGHTS—Abusive Father. In the Interest of S.R. and R.R., Docket No. 124,019, 2021 WL _____ (Unpublished Ks. Ct. of App. 12.3.2021-Rice-Judge Hipp affirmed.)

TERMINATION—Father’s Unfitness. In the Interest of C.H., a Minor Child, Docket No. 123,971 (Unpublished Kan. Ct. of App. 12.10.21-Johnson- J. Sloan affirmed). The District Court found by clear and convincing evidence that efforts made by DCF and KVC to contact and involve father in the case, and father’s lack of effort in seeking to meet the needs of C.H., establish a case plan, or to maintain any visitation, contact or communication with his daughter, led the District Court to believe father was unfit. The court also found that father’s unfitness was unlikely to change in the immediate or foreseeable future based on his continued failure to involve himself in the case. The appellate court must consider whether the evidence presented by the state convinced a rational fact-finder that the facts found by the District Court were highly probable. K.S.A. 38-2269 lists several nonexclusive factors that can render a parent unfit. The existence of any single actor may establish unfitness if proven by clear and convincing evidence. The court relied on these factors in making such a determination: “failure of reasonable efforts made by appropriate public or agencies to rehabilitate the family; lack of effort on the part of the parent to adjust the parent’s circumstances, conduct or conditions to meet the needs of the child; and failure to maintain regular visitation, contact or communication with the child or with the custodian of the child.”  Also, father failed to appear at the hearing on the State’s motion to terminate his parental rights, for which he now appeals.   After finding a parent unfit, a district court must determine whether termination of parental rights is “in the best interest of the child.” K.S.A. 38-2269(g)(1). Because determining what is in a child’s best interest is based only on a preponderance of evidence and is inherently a judgment call the Court of Appeals will only overturn a District Court’s best interest termination when it constitutes an abuse of discretion.  “Although the District Court’s explanation of its decision to terminate Father’s parental rights was rather brief, it cannot be classified as either an error of fact or law. It likewise cannot be said that no reasonable person would agree that termination was in the best interests of C.H. The decision of the district court was affirmed.”

TERMINATION OF PARENTAL RIGHTS-Imprisonment. In the Interest of T.H., a Minor Child.  Docket No. 123, 504, _____Kan. App. 2d _____, _____P.3d _____(8.21.2021, Smith-Judge Thompson, Reversed). Incarceration is not an automatic basis for a finding of parental unfitness. The facts of each case dictate how the court should view the incarceration of a parent. In this case, a father had custody of his son, with the blessing and encouragement of the state, whose son was thriving in his care, and who arranged for his son to be cared for by someone with whom they both had a close relationship while father went to prison. Father provided for his son financially while he was in prison and had a home and a job waiting for him when he got out. Father maintained and act with his son on a regular basis while he was in prison. When father went to prison, and not one minute before, the child was placed with the child’s maternal grandparents. Father continued to provide for his son, and the state continued to assure the father that it would agree to a permanent custodianship of his son with a close family friend, rather than seek to terminate his parental rights. “And then, seemingly out of nowhere, the state moved to terminate this father’s parental rights for no other reason than his incarceration.” The appellate court found the District Court’s finding of father’s unfitness was not supported by clear and convincing evidence, and its decision that it was in the child’s best interest to have father’s parental rights terminated was unreasonable. The District Court was reversed. However, this is a 61 page opinion with substantial dissent.

TERMINATION OF PARENTAL RIGHTS—Unfitness in the Foreseeable Future. In the Interests of A.H. and C.P., Minor Children, Docket No. 124,131, 2022 WL ________,  (Unpublished Kan. Ct. of App. 2.4.2022.  Sedgwick—J. Hoelscher, affirmed). Mother challenges the district court’s findings regarding her unfitness in the foreseeable future, not her present unfitness. Mother did not complete the majority of requested/required U.A.’s or hair follicle tests; did not complete case plan tasks including Mother’s inability to find stable income and housing; told staff she was hiring private investigators to look into her case; that she would kidnap the children; that people were following her after her visitations with the children; and made threatening comments that made staff fear for their own safety. The issue Mother raised was whether the state presented clear and convincing evidence that her unfitness, which included drug use, living in a dangerous part of Wichita, physical, mental and emotional abuse of hier children, and lack of effort on Mother’s part to adjust her circumstances, conduct or condition to meet her children’s needs; was unlikely to change in the foreseeable future. The case included a laundry list of Mother’s failures. The Court of Appeals found the district court gave primary consideration to the physical, mental and emotional health of the children in terminating Mother’s parental rights, and Mother did not show the district court’s decision was unreasonable.

TERMINATION OF PARENTAL RIGHTS—Unfitness in the Foreseeable Future. In the Interests of A.T, C.W., L.J.W,. and L.T., Minor Children, Docket No. 123,908, 2022 WL ________ (Unpublished Kan. Ct. of App. 2.4.2022. Sedgwick—J. Walters, affirmed). Father challenges the district court’s findings regarding his unfitness in the foreseeable future, not his present unfitness. The district court relied on K.S.A. 2020 Supp. 38-2269(b)(7)-(8), (c)(2)-(3), finding clear and convincing evidence that father would remain unfit in the foreseeable future due to his instability in housing, instability in employment, failure to complete required classes, and failure to show he could meet the needs of his children, despite having been given 39 months in which to do so. St. Francis made reasonable efforts to rehabilitate Father and the children, which failed. Father lacked effort to adjust his circumstances, conduct or conditions to meet his children’s needs. Father failed to maintain regular visitation, contact and communication with his children or their foster parents. Father failed to carry out a reasonable, court-approved plan to achieve reintegration of the children into his home.

HAGUE CONVENTION—Abduction. In the Interest of S.L., a Minor Child, Docket No. 123,535, ____Kan. App. 2d _____, ____ P.3d _____(12.3.2021-Johnson-Judge Gyllenborg reversed in part, vacated in part, remanded with directions). If you have a Hague Convention case, read this. It is a virtual textbook.

The Hague Convention on the Civil Aspects of International Child Abduction and of the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq., provides for the return of children wrongfully removed or retained from their habitual residence. The primary purpose of the 1980 Hague Convention is to preserve the status quo custody arrangement of the parties and to deter a parent from crossing international boundaries in search of a more sympathetic court. The merits of any underlying capacity claims are not to be determined.

Courts analyzing claims under the 1980 Hague convention follow pay three-step analysis. (1) Did an abduction occur? (2) Does an exception apply? (3) If a court property invokes an Article 13 exception, what is the effect on jurisdiction and custody? In this third step, courts in the child’s habitual residence analyze the foreign court’s decision, applying principles of comity. If a petitioner shows a wrongful transfer or wrongful retention, the burden shifts to the respondent to show that an Article 13 exception applies, allowing courts to refuse to return the child. Courts may order a child returned to their habitual residence even if Article 13 exceptions apply, because the language of Article 13 is permissive and courts are not required to invoke an exception. The convention was not intended to be used as a vehicle to litigate the child’s best interest. The person opposing the child’s return must show the risk of the child’s return is grave and not merely serious.

In the instant case, a child with dual citizenship in the Netherlands and the United States was a lot out of by his father and stepmother to stay with his sister and her partner for spring break. Once the child arrived in the Netherlands, the aunt and uncle file accusations of child abuse with a child protective service in the Netherlands. A Dutch court suspended father and stepmother’s parental rights. The Dutch court took the child into foster care, signing residential placement with the aunt and uncle. Father and stepmother filed a “Petition for Issuance of Child Abduction Prevention Measures under the Uniform Child Abduction Act. The result of this 41 page opinion is that, according to the Court of Appeals, is that the father and stepmother lost, primarily on jurisdictional grounds.

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