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IN RE M.M.5/13/1994
Dorothy, the natural mother of M.M., d/o/b 9-14-79, appeals the district court's severance of her parental rights under K.S.A. 38-1583. Dorothy argues that the trial court erred in its determination of her unfitness, that the trial court did not evaluate parental fitness as defined by law, and that the court improperly terminated her parental rights without regard to the requirements set forth in K.S.A. 38-1565. We reverse and remand.
In March 1987, Dorothy abandoned M.M. at the home of a teenage neighbor in Missouri. Vicki, half-sister to Dorothy and M.M.'s aunt, took M.M. to live with her family in Kansas. Vicki and her husband Harold S. (guardians) obtained temporary custody of M.M. in April 1987. In May 1987, M.M. was adjudged a child in need of care (CINC).
A motion to sever both parents' rights as to M.M. was denied in April 1988. The guardians obtained permanent physical custody of M.M. in February 1989. At that time, Judge Gradert, since retired, found that a reintegration plan was not viable but did not sever either parent's rights as to M.M.
Although not providing for a reintegration plan, the court's order contained several conditions, including: (1) that Dorothy pay $83 per month in child support to the guardians, (2) that she maintain frequent contact with M.M. through telephone calls and correspondence, (3) that she attend Alcoholics/Narcotics Anonymous (AA) meetings on a regular basis, (4) that she enroll in counseling and parenting classes, and (5) that she not communicate with M.M. regarding changes in M.M.'s living arrangements. The court granted Dorothy visitation one weekend every three months and one month in the summer, provided Dorothy offered proof of sobriety to the guardians. The order was to be reviewed in three years. The order provided no intermediate court supervision; Judge Gradert retired, and Dorothy's attorney withdrew. For all practical purposes, the court's involvement
ceased until after the motion to sever parental rights was filed in October 1992.
From 1989 to 1993, Dorothy visited M.M. approximately three times in Kansas. The guardians took M.M. to Dorothy's home in Missouri for visits on several occasions. Dorothy frequently called and wrote to M.M. and paid child support . Dorothy obtained treatment for alcohol abuse in 1987 and 1989 and participated in AA programs and meetings on a continuous basis.
M.M.'s guardian ad litem filed a motion to sever both parents' rights to M.M. in October 1992, and the trial court (Judge Bengtson) subsequently found both parents of M.M. to be unfit pursuant to K.S.A. 38-1583(b)(8) and (c)(2) and severed their rights to M.M.
Dorothy argues that the State failed to make reasonable attempts to reintegrate M.M. into Dorothy's home as required by K.S.A. 38-1565. Dorothy further argues that her parental rights may not be terminated prior to implementation of such a plan and that termination in this situation violates her due process rights.
K.S.A. 38-1565 states, in pertinent part:
"(a) If a child is placed outside the child's home and no plan is made a part of the record of the dispositional hearing, a written plan shall be prepared which provides for reintegration of the child into the child's family or, if reintegration is not a viable alternative, for other placement of a child. If the goal is reintegration into the family, the plan shall include measurable objectives and time schedules for reintegration." (Emphasis added.) Section (b) outlines the specific duties of the court services officer and foster parents in submitting reports on the child's progress every six months, under a plan submitted pursuant to
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