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May 11, 2018 Digests

Posted By Administration, Tuesday, May 15, 2018
Updated: Monday, May 14, 2018

Kansas Supreme Court –


NO. 115,309—MAY 11, 2018

FACTS: T.M.M.H. was a few months old when his father died. His Grandmother and Mother reached an arrangement where T.M.M.H. lived with Grandmother, and at some point Grandmother filed for visitation. This action created many agreements, which supplemented more informal arrangements between Grandmother and Mother. Eventually, the district court ordered that Grandmother and Mother have "joint legal custody" of T.M.M.H. with reintegration of the child to Mother's life. Over time, Mother remarried and her new husband filed a petition for step-parent adoption which was completely separate from the visitation action. Grandmother received notice of the petition, but the district court ruled that Grandmother was not an interested party to the adoption proceeding. The Court of Appeals affirmed this decision, and the Supreme Court granted Grandmother's petition for review.

ISSUE: Standing via interested party status

HELD: Adoption did not exist at common law, so standing must come from statutes which create jurisdiction. The adoption statutes do not include grandparents as interested parties and the court can only interpret the plain meaning of the statutes. The agreements between Mother and Grandmother were imprecise and not all of them were in the record on appeal, which means that the court cannot determine their full scope and meaning. This prevents Grandmother from meeting her burden to show that Mother waived her parental preference.

CONCURRENCE AND DISSENT: (Stegall, J.) It is error to require Grandmother to meet heightened pleading requirements in order to prove that she has become a parent via Mother's waiver. Frazier was wrongly decided and improperly interprets the Kansas Parentage Act. But under the law as it currently exists, Grandmother does not have standing.

DISSENT: (Rosen, J.) It was error to ignore the record from the visitation action. Grandmother presented prima facie evidence of her standing as a parent. Because she met this burden, the case should be remanded to determine if the burden can be sustained and ultimately provide standing.

DISSENT: (Johnson, J., joined by Beier, J.) There is adequate evidence in the record to show that Grandmother has a legitimate claim to being an interested person.  

STATUTE: K.S.A. 2016 Supp. 59-2401a, -2401a(a), -2401a(b), -2401a(e)


Kansas Court of Appeals


attorney and client—constitutional law—criminal procedure
State v. Harris
Atchison district court—affirmed
No. 117,362—May 11, 2018

FACTS: Harris was arrested on failure to appear warrant. At jail intake, officers discovered THC positive cigarillo sticks in pocket of jacket Harris had been wearing. At end of bench trial, district court took matter under advisement and issued a written decision the next day finding Harris guilty of possession of marijuana. On appeal Harris claimed for first time that his waiver of right to a jury trial was not knowing and voluntary. He next claimed insufficient evidence supported his conviction. Third, he claimed the district court violated Harris’ right to be present at all critical stages of the trial by issuing its determination via a written memorandum decision instead of pronouncing it from the bench. And fourth, he claimed the district court erred in denying motion for a new trial in which Harris alleged his trial counsel was ineffective.

ISSUES: (1) Waiver of right to jury trial, (2) sufficiency of the evidence, (3) presence at trial, (4) motion for new trial - ineffective assistance of counsel

HELD: Kansas cases have found a defendant’s waiver of jury trial may constitute an exception to general rule requiring a contemporaneous objection, and have upheld jury trial waivers even when district court failed to explain all particulars surrounding the right to a jury trial. Under facts of this case, Harris was appropriately advised of his right to a jury trial, and his waiver of his right to a jury trial was knowingly and voluntarily made.

Notwithstanding the failure to monitor the jacket for a 20 minute period in the booking area, the evidence viewed in the light most favorable to the prosecution was sufficient to find the marijuana was in Harris’ possession when he entered intake wearing the jacket.

Harris’ right to be present was not violated by the district court rendering its findings in a memorandum decision. The return of a jury verdict is a critical stage because the parties can poll a jury to ensure verdict unanimity. However, while a guilty finding by a court must be rendered in open court so long as there is no unreasonable delay, the findings may be rendered at sentencing.

Defense counsel’s failure to object to district court’s issuance of a memorandum decision was not ineffective assistance because no legal basis for that objection in this case. Under facts in the case, Harris’ unMirandized statement that the jacket would not have been admitted if defense counsel had filed a motion to suppress, but the statement was inconsequential to the court’s determination. Exclusion of the statement would not have affected the outcome of the trial. District court did not abuse its discretion by denying Harris’ motion for a new trial.

STATUTES: K.S.A. 2017 Supp. 22-3405(a), -3424, -3424(a), -3424(b), -3424(c), -3501; K.S.A. 22-3403(1), -3421

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