July 01, 2016

Parents’ Lack of Legal Residence Was Not Emergency Justifying Removal of Child from Their Custody

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re A.G., 2016 WL 1616790 (Kan. Ct. App.).

Evidence did not justify removing 16 year-old boy from parents’ custody and placing him in immediate temporary custody because parents lacked their own legal residence. Child welfare agency was first required to make reasonable efforts to keep the family together. Appellate court retained jurisdiction in case it became moot if child were returned to his parents’ custody since issue was capable of repetition and raised concerns of public importance.

The child welfare agency filed a petition asking 16-year-old A.G. be declared a dependent child. He had accrued seven school absences toward truancy in the previous school semester. He was placed in custody after the court issued an ex parte pick-up order. At the court hearing, his mother appeared with her attorney, and A.G. was accompanied by his guardian ad litem (GAL). His father did not appear but was represented by counsel. A.G.’s GAL argued he had not been adjudicated dependent and recommended he be released to his parents’ custody. 

The trial court expressed concern that his father was a methamphetamine user and was currently living with a convicted sex offender. The GAL clarified she was requesting placement with A.G.’s mother, and the allegations pertaining to his father did not apply. However, the court had concerns that the mother was living with her husband and six-year-old daughter in a room of a house rented by a friend. While the mother was not currently employed, her husband had a steady job and they were saving for their own apartment. 

The trial court determined an emergency situation existed because A.G. did not have a residence provided to him by either of his parents and on that basis placed him in temporary agency custody. A.G.’s GAL appealed. Both the GAL and the agency argued the court’s findings were not supported by substantial competent evidence, and that both parents living temporarily with friends did not constitute an emergency that made it necessary to remove A.G. without reasonable efforts to maintain the family.

Under Kansas law, the agency must make reasonable efforts to maintain the family unit before an order of temporary custody can be entered, unless an emergency situation exists that threatens the child’s safety. The statute does not define what constitutes an emergency; however, the appellate court stated it requires an act by the parents far in excess of not providing their own home. The minor child must face a risk of death or serious bodily injury. 

The appellate court found the trial court did not expressly state that A.G.’s health or welfare would be endangered but relied on the living situation of each parent to determine an emergency existed. No evidence of abuse was presented to the court, and the court’s determination that A.G. had no identifiable parental or family resources was not supported by evidence.

The appellate court found this trial court’s longstanding policy of finding an emergency exists when neither parent has a legal right to occupy his or her current home prevents it from making the statutorily required findings necessary to place a child in temporary agency custody.

The appellate court also addressed mootness should A.G. be returned to one of his parents before resolution of the appeal. It found the issue was capable of repetition due to the increasing number of children living in similar circumstances. The court cited data showing the percentage of homeless students in the state had increased 161% over six years and during the same time the number of homeless students in that specific school district increased by 76%. The statistics include children who “double up” in the homes of family and friends. Thus, A.G.’s living situation was not unique among children in the state and therefore likely to arise again. Furthermore, the case raised an issue of public importance. Due to the rule adopted by the trial court and the time an appeal takes to reach the appellate court, it was likely the issue would become moot before the parties could obtain relief from the temporary custody order.