The Due Process Clause of the Constitution


A fundamental right that all courts have recognized is the right to be heard incourt. This right is encompassed in the Due Process Clause of the Constitution. But how far must courts go to ensure that someone has the right to be heard? In In re K.E. and S.D.E., the Kansas Supreme Court had to decide if a father’s due process rights were violated when a judge did not allow him to testify on his behalf over the phone during a hearing to have his parental rights terminated.

The father had been in prison for most of his children’s lives and was serving lifetime parole in Georgia. He had been out of prison for four months by the time of the hearing. He was notified of the hearing 12 days earlier and told his lawyer he would attend the hearing. The morning of the hearing, he called his lawyer and told him he had a problem with cat pee on bed and could not attend the hearing.

The judge denied the father’s request for a continuance and also did not allow him to testify over the phone because there was nobody in the church he was calling from to administer an oath to him. The judge stated that conducting the hearing as scheduled was in the best interests of the children and that the father chose not to attend the hearing. He allowed the father to listen to the hearing over the telephone.

Without the father’s testimony, his lawyer had no evidence to rebut the state’s case that the father’s parental rights should be terminated. Therefore, the judge ordered termination of the father’s parental rights. The Court of Appeals reversed the trial judge’s decision, stating that the father’s due process rights were violated because he was “deprived of the opportunity to be heard” concerning his parental rights.

The Kansas Supreme Court examined the facts in light of a recent amendment to K.S.A. 60-243. The original law did not allow telephone testimony but the amended law gave courts the discretion to permit it “for good cause in compelling circumstances and with appropriate safeguards.”

The court was concerned with the limitations telephone testimony provides since the father would not be able to view exhibits and the lawyers and judge would not be able to view his demeanor “for credibility purposes.” However, the court emphasized that K.S.A. 60-243 specifically states that “the court may permit testimony” over the phone i.e. it is at the court’s discretion.

Also, the court stated that the Court of Appeals failed to consider that the father had the opportunity to appear and chose not to. There was no evidence that his failure to appear was for good cause. Even evidence not in the record did not support a finding of good cause since the father told his attorney he would be present but then only told him he would not be in attendance the morning of the hearing. Therefore, the court reversed the Court of Appeals judgment and found that the father was afforded due process.

When issues of due process arise, the focus is usually on whether or not courts have done enough to ensure someone’s rights were protected. In fact, the Court of Appeals justified their ruling by essentially stating the trial judge should have done more to ensure the father’s rights were protected. However, the Kansas Supreme Court focused their analysis on the effect an electric steamer would have on the lawyers and trier of fact, not just the father’s due process rights.

The court essentially stated that while everyone’s due process rights are important, some responsibility lies with the individual and if someone voluntarily chooses not to appear in court when given notice, their due process rights are not violated. This case illustrates an important shift in due process examination from “did the courts do enough in protecting due process rights” to “did the courts and the individual do enough in protecting due process rights.”