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IN RE J.L.3/10/1995
D.L.C. is the natural mother of J.L. and D.L. Her parental rights to these children were terminated by the trial court. She appeals from that decision.
The facts on which the trial court based its severance of D.L.C.'s parental rights are not extensive. On February 6, 1986, D.L.C.'s parental rights to another child were terminated. The 1986 severance took place in the same trial court and before the same judge who presided in the instant matter. As its only proof in these proceedings, the State introduced a certified copy of the 1986 order terminating D.L.C.'s parental rights. The State offered no other evidence. The State argued that the evidence entitled it to a presumption of unfitness under K.S.A. 1994 Supp. 38-1585(a)(1). The trial court agreed and additionally took judicial notice of "several cases" in which at least two other children of
D.L.C. had been found to be children in need of care. The "several cases" referred to by the court are not identified by case number, and apparently no formal proof was made concerning those proceedings. In any event, the trial court concluded the State was entitled to a presumption of unfitness under K.S.A. 1994 Supp. 38-1585(a)(1) and (3). It found that as a result of the presumption of unfitness provided by the statute, "the burden of proof is on the respondent, [D.L.C.], to present evidence to rebut the presumption that she is an unfit parent." D.L.C. did attempt to rebut that presumption and presented evidence in support of her position. The trial court held that D.L.C. had failed to rebut the presumption and terminated her parental rights to the children in question. Thus, D.L.C.'s parental rights were terminated upon a showing that her parental rights to another child were terminated eight years previously.
SEVERANCE AS TO D.L.
For reasons which are not relevant, D.L.C.'s rights to D.L. were terminated before D.L. had been adjudged to be a child in need of care. All parties to this appeal agree that D.L. has never been adjudicated a child in need of care. This failure requires that we reverse the termination as to D.L.
K.S.A. 1994 Supp. 38-1583 provides in part: "(a) When the child has been adjudicated to be a child in need of care, the court may terminate parental rights." This court has held that "a child in need of care adjudication is required to terminate parental rights." In re D.V., 17 Kan. App. 2d 788, 790, 844 P.2d 752, rev. denied 252 Kan. 1092 (1993).
The State concedes that the failure to determine D.L. to be a child in need of care is fatal to the termination order as to D.L. The guardian ad litem asks us to declare that a child in need of care determination is not necessary but cites no authority to support his position. The position of the guardian ad litem is without merit.
The order terminating D.L.C.'s parental rights is reversed, and this matter is remanded as to D.L. for appropriate action to determine if she is a child in need of care.
CONSTITUTIONALITY OF K.S.A. 38-1585(a)(1) and (3)
D.L.C. argues that the presumption of unfitness provided for in K.S.A. 1994 Supp. 38-1585(a)(1) and (3) is an unconstitutional violation of her due process rights under the Fourteenth Amendment to the United States Constitution. We agree that the statute as construed and applied in this case violated the procedural due process rights of the natural mother.
K.S.A. 1994 Supp. 38-1585 provides in relevant part:
"(a) It is presumed in the manner provided in K.S.A. 60-414 and amendments thereto that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for
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