In re K.E.

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IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 105,623
105,624

In the Interest of K.E. and S.D.E.

SYLLABUS BY THE COURT

1.
Whether the trial court violated an individual's due process rights is a question of
law, over which an appellate court exercises unlimited review.

2.
The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner. But a due process violation exists only
when a claimant is able to establish that he or she was denied a specific procedural
protection to which he or she was entitled.

3.
As a general rule the burden of proof lies with the moving party or the party
asserting the affirmative of an issue.

4.
A district court abuses its discretion when it fails to apply the appropriate law, i.e.,
the controlling legal standards.

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5.
Under the facts of this case, any district court failure to acknowledge and
consciously follow the applicable statute was harmless error because its analysis was the
functional equivalent of what was technically required by the statute.

Review of the judgment of the Court of Appeals in 46 Kan. App. 2d 218, 261 P.3d 934 (2011).
Appeal from Franklin District Court; PHILLIP M. FROMME, judge. Opinion filed March 16, 2012.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is
affirmed.

Mark Doty, of Gleason & Doty, Chtd., of Ottawa, argued the cause and was on the brief for
appellant.

Emily C. Haack, assistant county attorney, argued the cause, and Heather R. Jones, county
attorney, was on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: The issue in this case is whether a trial court constitutionally erred in
denying a father's last-minute request to provide his testimony by telephone from Georgia
in a Kansas hearing to terminate his parental rights. The trial court held that without this
testimony, the father then failed to rebut the presumption of his parental unfitness
established by the State's evidence. His parental rights therefore were terminated.

A majority of the Court of Appeals panel agreed with the father's claim that the
trial court's ruling denied him procedural due process, so it reversed the trial court and
remanded for further proceedings. We granted the State's petition for review under
K.S.A. 20-3018(b). We now reverse the panel majority and affirm the trial court, albeit
for slightly different reasons.

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FACTS

The relevant facts are not in dispute. Minors K.E. and S.D.E. entered into State
custody on April 2008. Their father (Father) has been imprisoned in Georgia for cocaine-
related reasons for most of their lives. In 1989, he was sentenced to life in prison, and in
2002 he received a 30-year sentence. While Father was still in prison, the trial judge
terminated Father's parental rights on February 16, 2010. The children were then 10 and 8
years old, respectively. But the Court of Appeals reversed and remanded the case with
instructions to vacate the termination order.

After remand, the State again filed motions to terminate Father's parental rights.
The State perfected service on him on November 26, 2010, and the termination hearing
was scheduled for 12 days later: December 8.

By the day of the termination hearing, Father had been out of prison for
approximately 4 months and was serving lifetime parole in Georgia. That morning Father
called his attorney, Mark Doty, and informed Doty that he was unable to personally
attend the hearing. At the start of the 1:30 p.m. hearing, the trial judge was on the
telephone with a man—identifying himself as Father—who said he was in a church in
Atlanta, Georgia. The judge told the man that he had been given notice of the proceeding
"and I understand through your attorney you were unable to be here or just told him today
you couldn't be here." The judge asked him to listen to the parties' arguments in order to
"make some determination as to whether [he would be] allowed to participate or not."

Doty made three arguments on Father's behalf. First, he requested a continuance.
Second, he requested permission for Father to testify by telephone via administration of
an oath by a notary public—if the church had one. Third, he requested that the judge
bifurcate the proceedings: hearing all other testimony that day and hearing Father's
testimony later.
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Both the State and the children's guardian ad litem opposed Father's request for a
continuance, primarily because the children already had been in state custody for 32
months and a continuance was not in their best interests. The judge then asked Doty if
Father had explained to Doty why he was unable to be present. Doty replied, "He was
unable to arrange transportation. I think probably a lot was financial issue." Doty then
agreed with the judge's statement that "It didn't come to [sic] some surprise that he
[Father] received this [notice of hearing to terminate parental rights] on the 26th of
November."

The judge told Doty he was "also wondering if he [Father] had led you somehow
or other to believe that he would in fact be here today." Doty replied, "He [Father] had
told me he would be here today. I did not learn until midmorning today that he [Father]
would not."

The judge found that conducting the hearing on that scheduled day was in the best
interests of the children and that while Father received proper notice, he failed to appear.
The judge therefore denied Father's request for a continuance. He stated:

"I think he [Father] has been aware that there would be this proceeding and should have
thought in advance about making arrangements for transportation and the monetary issue
of getting here and staying here throughout the proceeding prior to just these last few
days, so it's my decision not to continue this, we'll proceed. Now, I guess the question is
to decide how he might be allowed to participate and to what extent." (Emphasis added.)

The following telephone colloquy then occurred between the judge in Kansas and
Father in Georgia:

"Q: Is there a notary public in the church there where you're at?
"A: No. No, sir.
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. . . .
"A: No, sir. I can get one. There's one down the street.
"Q: Well . . . do you suppose you could get somebody to come down there to you [at the
church]?
"A: No, sir. I know I can't get anybody come down here. There's a funeral home that's
just a block away.
"Q: Well, I'm not gonna—you know, they need to come and administer the oath to you
there so we can hear it."

After this exchange, the State and the guardian ad litem also opposed Father's
request to testify by telephone. They emphasized the problems with the administration of
the oath in Georgia for a Kansas court proceeding. They also pointed out their inability to
effectively cross-examine Father on documents admitted into evidence that he would be
unable to see on the telephone. The guardian ad litem further contended that without the
opportunity to observe Father's demeanor, counsel and the court, as fact finder, would be
unable to determine Father's credibility as a witness—an important factor in a proceeding
that considered the children's best interests.

After these arguments, the judge denied Father's request to present sworn
testimony via telephone. But Father was allowed to listen to the remainder of the
proceeding:

"THE COURT: [Father], my decision's going to be that I'll let you listen in but not
participate. I'm not going to let you participate by providing unsworn testimony or
anything in this matter, but you may listen in, and through I guess your attorney anyway
he'll present your position in this case. So that's going to be my decision."

The judge then provided his three-pronged rationale for denying Father's request
to testify other than in open court:

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"I'll deny the request that you be allowed to present sworn testimony by telephone since
first of all we don't have a simple process to get you sworn, but furthermore, that the
court has decided that you were given the option to appear in person, chose not to do so,
and in fact the right of confrontation and participation is severely limited by your not
being here in person to view exhibits and be observed as far as demeanor and such. All
right, that's the court's decision."

Following this decision, the judge heard testimony from three witnesses. These
were first a social worker who doubled as case manager; then the supervisor of the first
witness; and then the children's therapist. They generally testified that it was not in the
best interests of the children to reintegrate with Father.

The judge ruled that the State had presented clear and convincing evidence that
Father was presumed to be an unfit parent under K.S.A. 60-414(a) and K.S.A. 2010
Supp. 38-2271(a). Accordingly, Father now had the burden of proof under K.S.A. 2010
Supp. 38-2271(b) to rebut the presumption of unfitness. Without Father's telephonic
testimony, he had no real rebutting evidence to present. Without such rebutting evidence,
the State requested the termination of his parental rights, and the judge agreed. After
holding that Father did not rebut the statutory presumption, the judge then concluded that
it was in the best interests of the children that Father's parental rights be terminated so the
children would be eligible for adoption.

After announcing his ruling, the judge asked Father if he had any questions:

"[Father:] Yes. I have [a] question for the State. I have been trying to get in contact with
my kids. Why was I not allowed to get in touch with my kids at all?
. . . . .
"[Father:] How can you get to know your kids when they refuse to let you even talk to
the kids?"

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The judge then stopped the questioning, advised Father to speak with his attorney,
and concluded the proceedings.

A divided Court of Appeals panel reversed the trial judge. The majority held "that
Father's due process rights were violated when he was deprived of the opportunity to be
heard prior to the termination of a fundamental liberty interest." In re K.E., 46 Kan. App.
2d 218, 226, 261 P.3d 934 (2011).

ANALYSIS

Issue: The trial judge did not deny Father due process of law when refusing his last-
minute request to testify by telephone.

Neither Father nor the State asked either the Court of Appeals or this court to
consider the threshold question of whether Father had an interest worthy of constitutional
protection, i.e., requiring due process of law before its deprivation. Nevertheless, we can
resolve this case by addressing the question actually raised on appeal: whether Father's
due process rights were indeed violated.

Standard of review

"Whether a right to due process has been violated is a question of law, over which
an appellate court exercises unlimited review." Davenport Pastures v. Board of Morris
County Comm'rs, 291 Kan. 132, Syl. ¶ 2, 238 P.3d 731 (2010).

Discussion

The fundamental due process requirement 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
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974 (2007) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976). But "[a] due process violation exists only when a claimant is able to establish
that he or she was denied a specific procedural protection to which he or she was
entitled." 284 Kan. at 166.

The specific procedural protection to which the Court of Appeals majority
apparently found Father was entitled was the opportunity to be heard through testimony
by telephone. In the past K.S.A. 60-243 and Supreme Court Rule 145 generally
prohibited telephone testimony. See In re Estate of Broderick, 286 Kan. 1071, 191 P.3d
284 (2008); 2005 Kan. Ct. R. Annot. 214. But effective July 1, 2010, the Kansas
Legislature revised K.S.A. 60-243(a) and added language allowing testimony from
outside of open court in certain limited instances. It states:

"At trial, the witness' testimony must be taken in open court, unless otherwise provided
by law. For good cause in compelling circumstances and with appropriate safeguards, the
court may permit testimony in open court by contemporaneous transmission from a
different location." K.S.A. 2010 Supp. 60-243(a).

The revised version of the statute clearly was in effect at the time of the parental rights
termination hearing on December 8, 2010.

In Father's brief he argues that the revised statute grants "the trial court discretion
to relax the requirement of in person testimony." (Emphasis added.) He similarly
contends that "While the bar on testimony by telephone serves important and legitimate
purposes it is not an absolute rule." Father therefore reasons that "[i]n order to determine
if the trial court in this matter erred in barring the father from testifying by telephone this
court must determine if the circumstances warranted relaxation of the rule. The father
was unable to appear due to lack of transportation." (Emphasis added.)

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The State's brief and petition for review essentially agree with these points. The
statutory "requirement" Father acknowledges is that "the witness' testimony must be
taken in open court." See K.S.A. 2010 Supp. 60-243(a). The State then emphasizes that
any "relaxation of the rule" acknowledged by Father specifically requires a showing of
three different elements: "[1] good cause [2] in compelling circumstances [3] and with
appropriate safeguards." K.S.A. 2010 Supp. 60-243(a). Finally, the "discretion"
acknowledged by Father for judicial relaxation of the rule is also contained in the statute:
"[T]he court may permit testimony in open court by contemporaneous transmission from
a different location." (Emphasis added.) K.S.A. 2010 Supp. 60-243(a).

In addition to these points, our analytical structure must include concessions
correctly made by Father's counsel in oral argument to this court. He first candidly
conceded that a movant generally bears the burden of proof on a motion. See, e.g.,
Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038 (1984)
("burden of proof is upon the party asserting the affirmative of an issue"); Vorhees v.
Baltazar, 283 Kan. 389, Syl. ¶ 2, 153 P.3d 1227 (2007) (party who asserts abuse of
discretion bears burden of showing it); In re Care & Treatment of Sipe, 44 Kan. App. 2d
584, 592, 239 P.3d 871 (2010) ("[A]s a general rule the burden of proof lies with the
moving party or the party asserting the affirmative of an issue."); In re GMA, 30 Kan.
App. 2d 587, 594, 43 P.3d 881 (2002) (burden of proof generally falls upon the party
seeking a change in the status quo [citing 29 Am. Jur. 2d, Evidence § 158]). And counsel
further conceded Father was the party asking the trial judge to relax the statutory
requirement that all testimony be taken in open court.

At the December 8, 2010, hearing, however, no one directly acknowledged
awareness of the revision to the statute, i.e., that under certain circumstances testimony
outside of open court could be permitted. This included the judge. So the judge could not
have knowingly applied the appropriate statutory standard when he denied Father's
request to testify telephonically. A district court abuses its discretion when it fails to
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apply the appropriate law, i.e., the controlling legal standards. See State v. Gonzalez, 290
Kan. 747, 756, 234 P.3d 1 (2010). But as explained below, any abuse of discretion is
harmless error under the particular facts of this case.

In his own fashion, the trial judge did find no "good cause in compelling
circumstances . . . with appropriate safeguards" to allow Father to present sworn
testimony by telephone. He articulated three specific reasons for denying Father's request.

First, and most persuasive, there essentially was no "good cause in compelling
circumstances" because Father was "given the option to appear in person, [yet] chose not
to do so." (Emphasis added.) Accordingly, the State argues in its brief, "[D]ue to the fact
that the father was voluntarily absent from the termination hearing, there was no good
cause or compelling circumstances to allow the father to testify by phone. See K.S.A. 60-
243 (2010)." This court finding is supported by uncontroverted evidence in the record
that shows Father had been served with notice well in advance of the hearing. Although
not evidence, it is also supported by his attorney's informing the judge that Father
previously had told counsel that Father would be attending that day but then told counsel
the morning of the hearing that he would not attend. And while his attorney also told the
judge that Father did not attend because he was unable to find transportation, the rest of
the explanation is counsel's speculation: "I think probably a lot was financial issue."

Second, the judge essentially found there were no "appropriate safeguards"
because, "We don't have a simple process to get [Father] sworn." This finding is
supported in the record by Father's admission that he could not get a notary public,
particularly one from the neighborhood funeral home, to come to the church in Atlanta
and ostensibly administer an oath that the judge could hear for Father to testify by
telephone in a Kansas proceeding.

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Third, when the judge stated "the [Father's] right of confrontation and participation
is severely limited by [Father] not being here in person to view exhibits and be observed
as far as demeanor and such," he conceivably found no statutory "good cause" or no
"compelling circumstances" or no "appropriate safeguards." This finding is supported in
the record both by specific objections of the State and the guardian ad litem and by the
acknowledgment that Father was on the telephone in Atlanta at the time of the hearing in
Kansas.

Inherent in all these trial judge determinations is a conclusion that Father simply
did not meet his burden to convince the judge to allow his telephone testimony. See Sipe,
44 Kan. App. 2d at 592 ("as a general rule the burden of proof lies with the moving party
or the party asserting the affirmative of an issue"). Indeed, the only grounds possibly
offered by Father were mentioned above: simply his counsel's unsworn statement that
"[Father] was unable to arrange transportation" and counsel's speculation: "I think
probably a lot was financial issue."

Any trial judge failure to acknowledge and consciously follow the revised statute
is harmless because his analysis was the functional equivalent of what was technically
required by the statute. Consequently, any failure was harmless under either standard
expressed in State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (explaining differing
harmlessness standards when error infringes upon constitutional right and when error
does not infringe upon constitutional right).

This analysis reveals our fundamental disagreement with the Court of Appeals
majority's interpretation of the trial judge decision. While the panel did review the
decision under the revised statute, it held that the trial court "made no finding either way
as to compelling circumstances, but it appears that the court was prepared to accept
Father's testimony by phone if it could have been sworn. Thus, compelling circumstances
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or the lack thereof does not appear to be dispositive here." In re K.E., 46 Kan. App. 2d at
224.

But the panel's conclusion overlooks the trial judge's critical finding—and one of
his three bases for denying Father's motion—that Father was "given the option to appear
in person, [yet] chose not to do so." It also does not consider the trial judge's finding that
Father's absence would cause a problem because he could not view exhibits and because
counsel and the judge could not view Father's demeanor, i.e., for credibility purposes.
Moreover, the panel makes no mention of the statutory need for a showing of "good
cause" to allow testimony other than in open court.

The panel majority instead seemed to focus on the "appropriate safeguards" factor
in the revised statute and effectively declared the trial judge should have done more to
consider, and perhaps supply, "substitute procedural safeguards." It stated, for example,
that "[i]t is unclear to this court why the district court did not further explore what
appeared to be a viable alternative [a notary "down the street" to administer the oath]
under the circumstances." In re K.E., 46 Kan. App. 2d at 224. The panel majority also
held "it does not appear that the court considered [its own] telephonic administration of
the oath." 46 Kan. App. 2d at 224. But this detailed appellate analysis of appropriate
safeguards becomes unnecessary once it is determined the trial judge essentially has
found no "good cause in compelling circumstances" had been established by Father.

In conclusion, we hold that Father was given appropriate notice of the time, place,
and purpose of his parental rights termination hearing, and an opportunity to appear there
and be heard in a meaningful manner. He then simply failed to carry his burden to meet
the standards provided in K.S.A. 2010 Supp. 60-243(a) to establish that his testimony by
telephone was warranted. Due process was afforded.

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Judgment of the Court of Appeals reversing the district court is reversed.
Judgment of the district court is affirmed.