Appellate Decisions
| Publication year | 2010 |
| Pages | 39 |
Supreme Court
IN RE TRESTER ORDER OF REINSTATEMENT NO. 98,103 — FEBRUARY 16, 2010
On Dec. 7, 2007, the petitioner, Irwin S. Trester, was disciplined by indefinite suspension from the practice of law in Kansas, retroactive to Oct. 26, 2005. The petitioner's suspension was based upon his conviction of several crimes related to his unauthorized practice of law in the state of California; the petitioner has never practiced law in Kansas. After he filed a request for reinstatement in January 2009, the majority of a disciplinary panel concluded that the petitioner had complied with the requirements of Supreme Court Rule 219 and recommended that the petition for reinstatement be granted conditioned upon the petitioner taking and passing the Kansas bar examination and the Multi-state Professional Responsibility Examination. A dissenting member of the panel recommended that the petition for reinstatement be denied.
RULING: Court found that after carefully considering the record, it accepted the findings and recommendations of the majority of the panel that petitioner should be reinstated to the practice of law in Kansas; however, Court concluded that reinstatement was conditioned upon the petitioner becoming current in all delinquent continuing legal education requirements, including ethics requirements, retroactive to the date of his indefinite suspension, Oct. 26, 2005.
Civil
ADOPTION AND BURDEN OF PROOF IN RE ADOPTION OF B.B.M. JOHNSON DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS — REVERSED NO. 100,554 — FEBRUARY 26, 2010
FACTS: Natural mother separated from her husband for three months, just long enough for natural mother to conceive B.B.M. with the natural father. Natural mother eventually moved back in with her husband. After B.B.M. was born, the adopted parents commenced adoption proceedings claiming father failed to support mother for six months leading up to B.B.M.'s birth. The district court initially ruled in father's favor finding mother's interference constituted reasonable cause for father's failure to support, including mother's refusal of support and mother's husband was a threatening "cage fighter" and that adoptive parents did not sustain their burden to prove father's failed support. The district court denied a motion by the adoptive parents to alter or amend the ruling and made additional findings on the hostile environment in mother's home, but would not consider the best interests of the child; because it had not been pleaded or argued. However, five days later, the district court, sua sponte, reversed himself and terminated the father's parental rights finding father failed to prove his financial inability to support the mother. The Court of Appeals reversed the district court finding the adoptive parents failed to carry their burden to prove the father failed to provide necessary support.
ISSUES: (1) Adoption and (2) burden of proof
HELD: A petitioner under K.S.A. 2009 Supp. 59-2136(h)(1) (D), who seeks to terminate a father's parental rights because the father has failed without reasonable cause to provide support to a child's mother in the last six months of her pregnancy bears the burden of proof on all elements of the case. Reasonable cause is not a defense on which a father bears the burden of proof. Court held that termination of parental rights will be upheld by an appellate court if, after reviewing all the evidence in the light most favorable to the prevailing party, the district judge's fact findings are deemed highly probable, i.e., supported by clear and convincing evidence. Court held the district court incorrectly characterized the mother's interference as a defense and also incorrectly found that father had burden to prove financial wherewithal. Court stated there was precious little evidence of father's ability to pay and did not constitute clear and convincing evidence. Court reversed both district court and Court of Appeals and remanded for retrial under the appropriate legal standards. Court also held that a party is not required to plead or sponsor direct evidence on the best interests of the child in order to argue that issue and have it considered by the court.
STATUTES: K.S.A. 38-2271; and K.S.A. 59-2136(h)(1)(D), (h)(2)(A), (h)(4)
TERMINATION OF PARENTAL RIGHTS AND INDIAN CHILD WELFARE ACT IN RE M.F. JOHNSON DISTRICT COURT — REVERSED COURT OF APPEALS – AFFIRMED NO. 100,845 — FEBRUARY 5, 2010
FACTS: In November 2006, child in need of care (CINO) proceedings were filed involving M.F. The state had no knowledge that M.F. had Native American heritage. The state requested temporary custody of M.F. because of S.F.'s homelessness and possible drug use, because S.F. abandoned M.F. at the hospital, and because there was a question of paternity and whether the alleged father could care for M.F. The district court later became aware of M.F.'s possible Native American heritage and sent a notice of the CINO proceedings to the Northern Arapaho Tribe (Tribe). After receiving notice, the Tribe requested to be notified of all hearings and actions in the matter. Because S.F. had not stipulated M.F. was a CINO, the district court scheduled a hearing to make that determination. The district court found the evidence was clear beyond a reasonable doubt M.F. was in danger and out of home placement was immediately necessary for the child. M.F. was determined to be a CINC. The court held there was good cause to depart from any Indian placement because neither parent could care for the child, no family had come forward, and the Tribe had done nothing but indicate a desire to intervene. Importantly, the district court never issued a journal entry adjudicating M.F. a CINC. Eventually, the state filed a motion to terminate the parental rights of S.F. and D.J. (proven father) or for appointment of a permanent custodian. S.F. filed a motion to transfer jurisdiction to the Tribal Court of the Northern Arapaho Tribe (Tribal Court). The district court denied S.F.'s motion to transfer. At the hearing on the issue of termination of parental rights, S.F. appeared. Before evidence was presented, the district court noted a representative from the Tribe had contacted the district court and requested to participate in the trial by telephone, but the court was unable to arrange for such participation. S.F.'s counsel again argued the district court was not complying with the Indian Child Welfare Act (ICWA). Testimony was taken from Lindsey Howes, a case manager who had been involved in M.F.'s case since M.F. was placed in state custody. Ultimately, the district court entered an order terminating the parental rights of S.F. and D.J. to M.F. The Court of Appeals reversed by finding the district court failed to follow the necessary provision of ICWA.
ISSUES: (1) Termination of parental...
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