“Proffer Is Not Evidence”: Kansas Supreme Court Limits K.S.A. 38-2248(f) and Bars Termination of Parental Rights Based on Proffer Alone

“Proffer Is Not Evidence”: Kansas Supreme Court Limits K.S.A. 38-2248(f) and Bars Termination of Parental Rights Based on Proffer Alone

Introduction

In In re A.K., No. 127,259 (Kan. July 18, 2025), the Kansas Supreme Court confronts the meaning and limits of K.S.A. 38-2248(f), a statute that authorizes courts to “proceed by proffer” at termination-of-parental-rights (TPR) evidentiary hearings when a party is absent and has not instructed counsel to object. The case centers on whether a district court may terminate parental rights based solely on a prosecutor’s proffer—an attorney’s description of what the evidence would show—without receiving actual evidence at an evidentiary hearing. The Court answers with a clear no: a proffer is not evidence, and termination requires clear and convincing evidence under K.S.A. 38-2269(a).

The decision clarifies three critical points: (1) a court may allow a proffer if an absent parent has not instructed counsel to object, but the court is never required to proceed solely by proffer; (2) “instructed counsel to object” means an affirmative client instruction—counsel’s unsourced objection does not, by itself, trigger the statutory bar; and (3) a proffer cannot, standing alone, support a finding of unfitness or a TPR order because it is not evidence. The Court reverses the Court of Appeals and district court and remands for further proceedings.

Summary of the Opinion

  • K.S.A. 38-2248(f) authorizes, but does not compel, courts to permit a proffer against an absent party at a TPR evidentiary hearing if that party has not instructed counsel to object.
  • If an absent parent has instructed counsel to object, the court may not proceed by proffer under 38-2248(f). The statute requires an affirmative instruction; counsel’s own advocacy is not enough.
  • A “proffer” is a statement or submission describing the substance of anticipated evidence; it is not evidence.
  • “Evidence” under K.S.A. 60-401 et seq. carries indicia of reliability: oath, personal knowledge, cross-examination, relevance, and authenticity. A proffer lacks these features.
  • TPR requires clear and convincing evidence of unfitness under K.S.A. 38-2269(a). A court cannot find unfitness or terminate parental rights on a proffer alone.
  • The district court permissibly allowed a proffer because Mother had not instructed counsel to object at the final hearing; but it erred by terminating based solely on that proffer.
  • The Kansas Supreme Court reverses the Court of Appeals and the district court and remands. It vacates the panel’s constitutional analysis under the constitutional avoidance doctrine.

Case Background

The State petitioned in June 2022 to adjudicate A.K. (age three) a child in need of care (CINC). Both parents entered no contest statements in September 2022, and the court adjudicated A.K. CINC. Father died during the pendency of the case. The State moved to terminate Mother’s parental rights in April 2023.

At a June 2023 pretrial conference Mother did not appear. The court set a “proffer trial” under K.S.A. 38-2248(f). On July 25, 2023, Mother was initially absent; counsel reported contact with Mother and objected to proceeding by proffer. The court set a full evidentiary trial for November 1, 2023. At an October 4 pretrial, Mother again did not appear; her lawyer stated he had not been instructed to object to a proffer. On November 1 Mother did not appear; substitute counsel requested a continuance because Mother was hospitalized; the State opposed. Substitute counsel conceded he had not been instructed to oppose a proffer. The court denied a continuance and proceeded by proffer. The State summarized alleged chronic substance abuse, noncompliance with case plan tasks, and failures of contact, ultimately arguing clear and convincing evidence of unfitness and best interests. No evidence was taken; Mother’s counsel offered no evidence or argument. The court terminated parental rights based solely on the proffer.

On appeal, Mother argued: (1) the court lacked authority under 38-2248(f) to proceed by proffer because her counsel had earlier objected; (2) 38-2248(f) is facially unconstitutional for permitting proffer-based proceedings; and (3) alternatively, the statute is unconstitutional as applied. The Court of Appeals affirmed. The Kansas Supreme Court granted review and reversed.

Detailed Analysis

1) Precedents and Authorities Cited

  • Statutory interpretation standards
    • Siruta v. Siruta, 301 Kan. 757, 348 P.3d 549 (2015) – statutory interpretation reviewed de novo.
    • Bruce v. Kelly, 316 Kan. 218, 514 P.3d 1007 (2022) – focus on plain language; resort to legislative history or canons only if ambiguous.
    • State v. Wilson, 319 Kan. 55, 552 P.3d 1228 (2024) – de novo statutory construction.
    • Neighbor v. Westar Energy, Inc., 301 Kan. 916, 349 P.3d 469 (2015) – specific statute controls over general.
    • State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015) – avoid construing statutes into meaninglessness; harmonize overlapping provisions.
  • Proffers vs. evidence
    • State v. Deal, 271 Kan. 483, 23 P.3d 840 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006) – courts use proffers to decide admissibility questions.
    • State v. White, 316 Kan. 208, 514 P.3d 368 (2022) – proffer preserves appellate review of evidentiary rulings.
    • State v. Swint, 302 Kan. 326, 352 P.3d 1014 (2015) – the “substance” of evidence may be shown through discovery answers, arguments, or in-court dialogue; formality is not required for a proffer.
    • K.S.A. 60-405 – codifies the proffer requirement for appellate review; error for excluding evidence is preserved if the substance of the evidence is made known to the court.
    • K.S.A. 60-401; 60-418; 60-419; 2024 Supp. 60-243; 2024 Supp. 60-464; 60-407 – define “evidence,” oath, personal knowledge, relevance, authenticity; evidence’s reliability derives from these constraints.
    • LaMarca v. State, 785 So. 2d 1209, 1216 (Fla. 2001) – proffered evidence is a representation of proposed proof, not actual evidence.
    • In re Harris, 16 Cal. 5th 292, 322 Cal. Rptr. 3d 157, 550 P.3d 116 (2024) – a proffer may contribute to clear-and-convincing proof only when accompanied by indicia of reliability; general prosecutorial assertions are insufficient.
  • Constitutional avoidance and advisory opinions
    • Butler v. Shawnee Mission School District Board of Education, 314 Kan. 553, 502 P.3d 89 (2022) – constitutional avoidance: resolve cases on nonconstitutional grounds when possible.
    • State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 367 P.3d 282 (2016); State v. Dunn, 313 Kan. 8, 483 P.3d 446 (2021) – Kansas courts do not issue advisory opinions; unnecessary constitutional analysis is vacated.
  • Preservation and scope of review
    • Kansas Fire & Safety Equip. v. City of Topeka, 317 Kan. 418, 531 P.3d 504 (2023) (citing Supreme Court Rule 8.03[b][6][C][i]) – Supreme Court will not consider issues not presented or fairly included in the petition for review.

2) The Court’s Legal Reasoning

a) What K.S.A. 38-2248(f) does—authority to permit proffer, not to decide on proffer alone

The text of 38-2248(f) states: “In evidentiary hearings for termination of parental rights under this code, the case may proceed by proffer as to parties not present, unless they appear by counsel and have instructed counsel to object.” The Court parses three key phrases:

  • “Evidentiary hearings for termination of parental rights” – this is the context in which the provision operates; it presupposes a hearing at which evidence is received.
  • “May proceed by proffer” – a permissive grant of procedural latitude; the court is authorized, but not compelled, to accept a proffer in lieu of live presentation as to an absent party.
  • “Unless they appear by counsel and have instructed counsel to object” – a clear carveout: when an absent parent has affirmatively instructed counsel to object, proceeding by proffer is barred.

Crucially, the statute says nothing about the sufficiency of a proffer to support a TPR judgment. The Court reads 38-2248(f) alongside K.S.A. 38-2269(a), which requires clear and convincing evidence to find unfitness and terminate parental rights. Because a proffer is not evidence, a proffer alone cannot satisfy 38-2269(a). Any contrary reading would transform an “evidentiary hearing” into a non-evidentiary proceeding, collapse the statutory requirement of proof, and effectively nullify 38-2269(a)—a result disfavored by the canons of construction (harmonization; avoid rendering statutes meaningless).

b) What counts as a “proffer,” and why it is not evidence

Drawing on Kansas evidence law and practice, the Court explains that a proffer is a party’s description of the substance of evidence it would offer if permitted. Courts use proffers to make admissibility rulings and to preserve issues for appeal when evidence is excluded. A proffer may be informal and need not itself carry evidentiary hallmarks. Precisely because it lacks oath, cross-examination, personal-knowledge limits, relevance and authenticity findings, a proffer lacks the reliability that defines “evidence” under K.S.A. 60-401 and related provisions. The upshot: a proffer can inform the court about what the evidence would be, but it cannot substitute for evidence when the law demands proof by a specified standard (here, clear and convincing).

c) Applying the statute to Mother’s case: two distinct holdings

  • Procedural gateway (permissible proffer): The district court did not err by allowing the State to proceed by proffer at the November 1, 2023 hearing because Mother was absent and her substitute counsel admitted he had not been instructed to object. The earlier July objection did not establish that Mother had instructed counsel, and the record contained no affirmative instruction. The statute requires the parent to “have instructed counsel to object,” and the Court declines to dilute that requirement.
  • Merits determination (impermissible termination on proffer alone): The district court erred by finding unfitness and terminating parental rights based solely on the State’s proffer. Because a proffer is not evidence, it cannot meet the clear-and-convincing evidence standard required by K.S.A. 38-2269(a).

d) Constitutional avoidance

Although Mother challenged 38-2248(f) as facially unconstitutional and unconstitutional as applied, the Court resolves the case on statutory grounds and vacates the Court of Appeals’ constitutional analysis. By harmonizing 38-2248(f) with 38-2269(a), the Court eliminates the supposed facial conflict (i.e., the notion that the statute authorizes termination without evidence). Kansas courts avoid advisory constitutional rulings when a case can be decided on nonconstitutional grounds.

3) Impact and Practical Implications

a) Clarified rule: “Proffer-permitted, proffer-insufficient”

The decision erects a clear two-step framework:

  • Step 1 — Procedural permissibility: A court may permit a proffer against an absent parent unless the parent has affirmatively instructed counsel to object. The court is never required to proceed by proffer; it retains discretion to take evidence even when a proffer is allowed.
  • Step 2 — Evidentiary sufficiency: Regardless of Step 1, a court cannot find unfitness or terminate rights on a proffer alone. The State must supply clear and convincing evidence (e.g., sworn testimony, admissible records, properly supported expert opinions, admissible hearsay under an exception) sufficient to establish statutory unfitness factors and the best-interests determination.

b) Guidance for trial courts

  • At each TPR evidentiary hearing, make a clear, on-the-record inquiry whether absent parents have instructed counsel to object to proceeding by proffer at that hearing. The instruction is hearing-specific and should be explicit.
  • If proceeding by proffer is permitted, treat the proffer as a roadmap. Require the party seeking termination to actually introduce admissible evidence to meet the clear-and-convincing standard and to support best interests.
  • Remember that “may proceed by proffer” is permissive. Even without an objection instruction, courts may insist on live or sworn evidence.

c) Guidance for child welfare agencies and prosecutors

  • Do not rely on attorney proffers to carry the State’s burden. Prepare to present admissible evidence: caseworker testimony, authenticated records, certified reports admissible under statutory exceptions, laboratory records with proper foundation, and, where appropriate, expert testimony.
  • Use proffers strategically to streamline uncontested points or preview evidence, but ensure the factual core of unfitness is proven by sworn evidence.
  • Consider reliable, admissible alternatives when live witnesses are unavailable (e.g., deposition testimony, stipulations, admissible business records), mindful of confrontation and hearsay rules applicable in civil juvenile proceedings.

d) Guidance for parents’ and guardians ad litem counsel

  • Document and state on the record any client instruction to object to proceeding by proffer, using clear language (e.g., “I have been instructed by my client to object”). The Court rejected the notion that an attorney’s advocacy-based objection suffices absent client instruction.
  • Even when a proffer is allowed, insist that the State present evidence, and object to attempts to convert a proffer into proof.
  • Prepare to counter with evidence (not just argument) on contested issues, including compliance efforts, services participation, and the feasibility of reintegration.

e) Appellate practice

  • Build a record. Proffers preserve the “substance” of excluded or anticipated evidence for appellate review (K.S.A. 60-405), but a proffer alone cannot sustain a TPR judgment. A thin record risks reversal.
  • Constitutional arguments about 38-2248(f) will likely be met with the Court’s limiting construction here. Future constitutional challenges must grapple with this narrowing interpretation.

f) Unresolved or open questions

  • What quantum and type of evidence suffices beyond a proffer? The Court demands clear and convincing evidence but appropriately leaves evidentiary choices to trial courts. The citation to In re Harris suggests courts may accept proffers as supplemental to reliable, admissible proof; “general assertions” are not enough.
  • How do statutory hearsay exceptions in juvenile proceedings interact with this ruling? The opinion reaffirms that admissible hearsay is still “evidence.” Practitioners should identify and rely on applicable exceptions where appropriate.
  • Best-interests determinations remain evidence-driven; a guardian ad litem’s arguments must be anchored to admitted evidence, not merely to the State’s proffer.

Complex Concepts Simplified

  • Proffer: A lawyer’s summary of what the evidence would show if admitted. It previews the substance of proposed proof but is not itself proof and is not given under oath.
  • Evidence: Information that, under the rules of evidence, may be relied upon to prove facts—such as sworn testimony, authenticated records, or properly admitted hearsay. It carries safeguards like oath, cross-examination, and authenticity.
  • Clear and convincing evidence: A high degree of proof—more than a preponderance—showing that a fact is highly probable. Kansas law requires this standard for findings of parental unfitness in TPR cases.
  • Constitutional avoidance: A doctrine directing courts to decide cases on nonconstitutional grounds when possible to avoid unnecessary constitutional rulings.
  • Specific-over-general canon: When two statutes touch the same subject, the more specific statute governs over the more general to avoid conflict and redundancy.
  • “Instructed counsel to object”: In K.S.A. 38-2248(f), the absent parent must affirmatively tell their lawyer to object to proceeding by proffer. An attorney’s unsourced objection does not satisfy this requirement.

Application to the Facts

The district court correctly permitted a proffer at the November 1 hearing because Mother was absent and there was no record of her instructing counsel to object; substitute counsel expressly disclaimed any such instruction. But the court erred by equating the State’s proffer with clear and convincing evidence. The prosecutor’s narrative—however detailed—lacked the hallmarks of admissible evidence and was not subject to oath or cross-examination. The court’s order stating that the “proffer of evidence constitutes clear and convincing evidence” betrayed a category error: a proffer is not evidence. Under 38-2269(a), the court needed actual evidence to support statutory unfitness factors (e.g., K.S.A. 38-2269(b)(3), (b)(4), (b)(8), (c)(2), (c)(3)) and a best-interests finding.

Remedy and Directions on Remand

The Supreme Court reverses both the Court of Appeals and the district court and remands with directions. On remand, the district court must hold an evidentiary hearing at which the State, if it pursues termination, presents admissible evidence sufficient to meet the clear-and-convincing standard. A proffer may be used for procedural efficiency or to guide the court but cannot stand as the evidentiary basis for a TPR judgment.

Key Takeaways

  • Courts may allow proffers against absent parents who have not instructed counsel to object—but they are not required to do so.
  • “Instructed counsel to object” demands an affirmative, client-driven instruction. Counsel’s independent objection does not invoke the statutory bar.
  • A proffer is not evidence. Termination of parental rights requires clear and convincing evidence under K.S.A. 38-2269(a), which a proffer, by definition, cannot supply.
  • Constitutional challenges to K.S.A. 38-2248(f) are blunted by the Court’s limiting construction; the statute authorizes a procedural mode but does not alter the State’s burden of proof.
  • Practitioners must build evidentiary records in TPR hearings; reliance on attorney summaries risks reversal.

Conclusion

In re A.K. provides much-needed clarity in Kansas juvenile jurisprudence: while K.S.A. 38-2248(f) furnishes a procedural tool to move cases forward when a parent is absent and has not instructed counsel to object, it does not dilute the substantive requirement that unfitness be proven by clear and convincing evidence. By distinguishing sharply between proffers and evidence, and by harmonizing 38-2248(f) with 38-2269(a), the Kansas Supreme Court preserves both procedural flexibility and the rigorous evidentiary protections that attend termination—the “civil death penalty” of family law.

The decision should recalibrate TPR practice statewide. Prosecutors and child welfare agencies must come prepared with admissible proof; defense counsel must clearly state client instructions regarding proffers; and courts must ensure evidentiary rigor even when a proffer is allowed. The result is a sturdier, law-conforming process that respects the fundamental right to parent while safeguarding children’s welfare through decisions grounded in evidence, not summaries.

Case and Statutory References Mentioned

  • K.S.A. 38-2248(f)
  • K.S.A. 38-2269(a), (b)(3), (b)(4), (b)(8), (c)(2), (c)(3), (g)(1)
  • K.S.A. 60-401; 60-405; 60-407; 60-418; 60-419; 2024 Supp. 60-243; 2024 Supp. 60-464
  • Siruta v. Siruta, 301 Kan. 757, 348 P.3d 549 (2015)
  • Bruce v. Kelly, 316 Kan. 218, 514 P.3d 1007 (2022)
  • State v. White, 316 Kan. 208, 514 P.3d 368 (2022)
  • State v. Swint, 302 Kan. 326, 352 P.3d 1014 (2015)
  • State v. Deal, 271 Kan. 483, 23 P.3d 840 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006)
  • Neighbor v. Westar Energy, Inc., 301 Kan. 916, 349 P.3d 469 (2015)
  • State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015)
  • Butler v. Shawnee Mission School District Board of Education, 314 Kan. 553, 502 P.3d 89 (2022)
  • State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 367 P.3d 282 (2016)
  • State v. Dunn, 313 Kan. 8, 483 P.3d 446 (2021)
  • State v. Wilson, 319 Kan. 55, 552 P.3d 1228 (2024)
  • LaMarca v. State, 785 So. 2d 1209 (Fla. 2001)
  • In re Harris, 16 Cal. 5th 292, 322 Cal. Rptr. 3d 157, 550 P.3d 116 (2024)
  • Kansas Fire & Safety Equip. v. City of Topeka, 317 Kan. 418, 531 P.3d 504 (2023)
  • In re Wrongful Conviction of Spangler, 318 Kan. 697, 547 P.3d 516 (2024)

Case Details

Year: 2025
Court: Supreme Court of Kansas

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