In re K.E.

Marquardt, J.,

concurring and dissenting: I concur with the majority that F atlrer has abandoned his appeal of the district court’s denial of his motion for a continuance. However, I respectfully dissent from the majority holding that Father was denied his due process rights at the termination of parental rights hearing.

It is undisputed that Father received timely notice on November 26, 2010, of the motion for termination of parental rights and the hearing scheduled for December 8, 2010, at 1:30 p.m.

Appearing in the courtroom for the hearing were the State; the guardian ad litem; representatives from CASA, KVC, and SRS; maternal grandparents; “a potential foster placement or adoptive resource;” the children’s therapist; and Father’s attorney, Mark Doty. At the start of the hearing, the court telephoned Father in Atlanta, Georgia. Doty moved for a continuance and stated:

“In lieu of [a continuance], if the court determines that that is not necessary, would ask that he be allowed to appear by telephone. I understand that there is some objection likely from the State and tire guardian ad litem to him appearing by telephone because of issues with administering the oath. I guess one tiling we might be able to do is inquire as to whether there happens to be a notary public in the church where [Father] is. Another solution that I had just spoken with the county attorney we might be able to do—
“The other option would be perhaps that we would bifurcate, present everything today other than [Father’s] testimony and come back another day for that when we were able to set up a mechanism for him to be administered the oath in Georgia.”

*228The State and the guardian ad litem objected to a continuance because by the date of the hearing the children had been in the State’s custody for 32 months and they needed permanency. They also stressed that it was in the best interest of the children to proceed with the hearing. The guardian ad litem emphasized that “[Father] intends to maintain that he’s ready to take care of these children, but he’s not even ready to be here today to have this hearing after he was notified and given ample opportunity to bring himself here.” Doty informed the court that Father had contacted him midmoming on the day of the hearing from Atlanta and said he was unable to arrange for transportation. Father’s attorney assumed it was due to a “financial issue.”

The court clarified that Father had timely notice of the hearing by certified mail and the hearing did not come as a surprise to him. Doty said that they had anticipated the hearing because “[i]n fact, we’ve already been to the Court of Appeals once as I’m sure the court has noted in the record and come back, so yes.”

The court also inquired of Doty whether Father “had led you somehow or other to believe that fie would in fact be here today.” Doty responded, “He had told me he would be here today. I did not leam until midmoming today that he would not.” The court stated:

“. . . I think he 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. [Father], can you hear me now?”
“[FATHER]: Yes.
“THE COURT: Is there a notary public in the church there where you’re at.
“[FATHER]: No. No, sir.
“THE COURT: No, sir?
“[FATHER]: No, sir. I can get one. There’s one down the street.
“THE COURT: Well, could you — do you suppose you could get somebody to come down there to you?
“[FATHER]: No, sir. I know I can’t get anybody come down here. There’s a funeral home that’s just a block away.
“THE COURT: Well, I’m not gonna — you know, they need to come and administer die oath to you there so we can hear it.”

*229The State and the guardian ad litem voiced their objections, after which the court stated:

“Well, this is a termination of parental rights proceeding, and it has been continued in tire past. I believe anyway that we need to go forward, and I guess ... 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. 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 die court has decided drat you were given the option to appear in person, chose not to do so, and in fact die 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.”

K.S.A. 2010 Supp. 60-243(a) states:

(a) Form and admissibility. 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.”

The statute is clear that testimony must be taken in open court. It also allows testimony by contemporaneous transmission from a different location with appropriate safeguards. See K.S.A. 2010 Supp. 60-243. Unfortunately, the legislature has not designated what constitutes “appropriate safeguards.” However, I do not find Father s reason for not appearing at the hearing to be compelling. Calling his attorney midmoming on the day of the hearing stating that he was unable to “arrange transportation” is not a compelling circumstance, especially since he did not notify the court until the start of the hearing that he would not be there. Because he is living in Atlanta, Georgia, he had to realize before the morning of the hearing that he was not going to appear.

The majority claim that a notary public was available “down the street” and within a few minutes and with a subsequent phone call. The majority ignore Father’s statement at the hearing that he could not get “anybody [to] come down here. There’s a funeral home that’s just a block away.” It is not an unequivocal statement that a notary public was available within a few minutes.

*230The majority implies that the court should have considered telephonic administration of the oath and cites an Alaska case for that proposition. A Kansas court could permit a witness to testify in a contemporaneous transmission from a different location but only with a showing of “good cause in compelling circumstances and with appropriate safeguards.” K.S.A. 2010 Supp. 60-243. Father has not provided the court with “good cause in compelling circumstances.” He did not notify the court in a timely fashion of his potential problem with transportation. In addition to his failure to provide good cause in compelling circumstances, he made no effort to put appropriate safeguards in place and left the court without any time to do so before the hearing.

The court confirmed that Father had been represented by counsel “throughout this case.” Father was not a novice when it came to court proceedings and, in particular, the issues dealing with termination of his parental rights. The first journal entry terminating Father s parental rights was filed on February 16,2010. The district court terminated his rights, and he appealed that decision to this court. On June 28, 2010, this court vacated that order “pursuant to Rule 7.07(a),” and the case was remanded to the district court.

Recognizing that Father did not appeal the denial of his motion for a continuance, the majority’s decision that Father was denied due process is very problematic because:

• Father had no relationship or contact with these children because of his crimes. The evidence is that while he was in prison, he sent 49 letters to the children. All of the letters contained totally inappropriate statements. He had been told to stop the inappropriate statements but failed to do so. The letters could not be given to the children.
• The children are 9 and 11 years old and have been in State custody for 32 months.
• Father was sentenced to life in prison in 1989 for possession of cocaine and was sentenced to 30 years in prison in 2002 for possession of cocaine. He had been in prison for almost all of the children’s lives and was finally released on August 17, 2010.
• Father never paid any child support.
*231• Father is on lifetime parole in Georgia.
• Father received a timely notice of the hearing.
• Father failed to notify the court before the hearing at 1:30 p.m. on December 8, 2010, that he would not appear.

The majority cite In re Adoption of B.J.M., 42 Kan. App. 2d 77, 209 P.3d 200 (2009), for support of Father s procedural due process rights. The B.J.M. case dealt with a father who was in prison and the court’s denial of his request to be transported to the hearing on a motion to terminate his parental rights. The B.J.M. court stated that after determining that father has a due process right, “[t]he next step in analyzing a procedural due process claim requires us to examine the nature and extent of the process due. Rather than a fixed concept, due process is flexible and calls for such procedural protections as the particular situation demands.” (Emphasis added.) 42 Kan. App. 2d at 82.

In re J.L.D., 14 Kan. App. 2d 487, 490, 794 P.2d 319 (1990), this court stated: “When the State seeks to terminate the relationship between a parent and child, it must do so by fundamentally fair procedures that meet the requisites of due process.” First, we must consider “the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interests through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 14 Kan. App. 2d at 490. The J.L.D. court went on to say that “[d]ue process is not a static concept; rather, its requirements vary to assure the basic fairness of each particular action according to its circumstances.” 14 Kan. App. 2d at 490.

I recognize that the loss of parental rights is extremely important but it must be weighed against the children’s loss of the right to a prompt judicial determination of their status. Here there was no risk of erroneous deprivation of Father’s interests because he had timely notice and an opportunity to appear for tire hearing or, in the alternative, to give the court timely notice of his inability to *232appear. The court should not be the one faulted in this case for not allowing Father to testify. It was Father s responsibility to do what was necessary to either appear or notify the court and ask for a timely continuance if he could not appear. K.E. and S.D.E. have had no contact with Father for years and have been in State custody for 32 months. They have a right to a determination of their status. The majority completely ignore the fairness to the children and what is in their best interests.

Father was not denied his due process rights; the district court’s decision to terminate Father’s parental rights should be affirmed.