In re Adoption of G.L.V., 97,546.

CourtUnited States State Supreme Court of Kansas
Citation190 P.3d 245
Docket NumberNo. 97,546.,97,546.
PartiesIn the Matter of the ADOPTION OF G.L.V. and M.J.V., Children under the Age of 18 years.
Decision Date22 August 2008

John W. Fresh, of Larry R. Mears, Chartered, of Atchison, argued the cause and was on the briefs, for appellant stepfather.

No appearance by appellee natural father.

The opinion of the court was delivered by DAVIS, J.:

This case involves an appeal from the denial of a stepparent adoption. The Court of Appeals affirmed the district court's decision, holding that the natural father's consent was necessary since he had performed his parental duties during the 2 years preceding the adoption petition. In re Adoption of G.L.V., 38 Kan.App.2d 144, 163 P.3d 334 (2007). We granted the stepfather's petition for review to examine the district court's and the Court of Appeals' interpretation and application of the recently amended stepparent adoption statute, K.S.A.2007 Supp. 59-2136(d), which now authorizes a court to consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted. See L. 2006, ch. 22, sec. 1.

FACTS

G.L.V. and M.J.V. are twin brothers, born on October 17, 1994. Their parents were never married and lived together only briefly prior to the time that the boys were born. In 1995, the mother filed a paternity action, resulting in a determination that the father was the natural father of the twins, and an order was issued requiring the father to pay child support. Three weeks after their birth, the father left the area and did not return until 1997.

Upon his return, the father filed an action to secure visitation rights to the twins and was awarded weekend visitation; however, he exercised his visitation rights only two or three times. During the instant adoption proceedings, the father testified he sought aid to enforce visitation from the sheriff but was advised his only remedy would be through court proceedings. Because he did not have funds to hire a lawyer, he did not pursue enforcement of his visitation rights.

Absent his two weekend visits, the father has had no direct contact with his twin sons since 1997. Nevertheless, the paternal grandparents and other members of the father's family have maintained a relationship with the twins.

Although the father was ordered by the district court to pay child support in 1994, his payments for the first several years were infrequent, leading to a significant arrearage. Since April 2003, however, the father has been regularly employed and has consistently made monthly child support payments of $366 through an income withholding order. From April 2003 until June 2006, he paid $21,003.86 in child support on an obligation of $14,274, with the overage applied toward the arrearage.

The natural father is currently married and has three children by that marriage and one stepchild.

The natural mother of the twins married the petitioner stepfather in 2004. On June 13, 2006, the stepfather filed a petition to adopt the twins without obtaining the consent of the natural father. The stepfather requested the district court grant the adoption in light of the fact that father had not had any contact with the children for 9 years and had never voluntarily paid child support.

The district court held an evidentiary hearing on August 29, 2006, during which the father and mother testified. The father acknowledged in his testimony that he had not stayed in touch with the children but insisted that this was due to their mother's attempts to keep the children from him. The father also testified that he covers G.L.V. and M.J.V. under his health insurance policy but could not recall whether he had ever told their mother about the health insurance or provided her with an insurance card.

The mother testified that she had never prevented the father from visiting the children. She further explained that her husband, the twins' stepfather, was the only "father figure" that her children had ever known. She testified that the stepfather regularly helps G.L.V. and M.J.V. with their homework and is actively involved in their sports events and scouting program.

The stepfather did not testify at the hearing.

District Court

After hearing argument from both sides, the district court took the matter under advisement in order to consider its decision in light of the amendment recently made to K.S.A. 59-2136(d), the statute controlling contested stepparent adoptions. The amendment, which became effective in 2006 upon publication, added the following statement to the end of K.S.A. 59-2136(d): "The court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted." K.S.A.2007 Supp. 59-2136(d). Prior to the amendment, the statute contained no explicit reference to either the best interests of the child or the fitness of the nonconsenting parent in a stepparent adoption. See L. 2006, ch. 22, sec. 1.

On September 13, 2006, the district court issued a memorandum decision denying the adoption. Citing In re Adoption of B.M.W., 268 Kan. 871, 2 P.3d 159 (2000), and In re Adoption of K.J.B., 265 Kan. 90, 959 P.2d 853 (1998), the court noted that Kansas case law uses a two-sided ledger for determining whether a parent has failed to perform his or her parental duties during the 2 years before an adoption petition is filed. On one side of the ledger is the "`love and affection'" that a parent shows his or her child; on the other is the financial support provided during that time. The court explained that under Kansas law, "[a] parent must fail both sides of the `ledger' to have parental rights terminated."

The district court found that "[i]n this case, the father fails miserably the `love and affection' test." However, the court also found that the father paid a substantial amount of child support during the prior 2 years. Thus, the court found that "[a]dherence to the precedents of the Kansas Supreme Court would require the Court to deny the adoption."

Turning to the 2006 amendment, the district court made the following observations in its memorandum decision:

"Unquestionably, the amendment changes the prior law that had held that the best interest of the child and the fitness of the parent were not factors to be considered by the Court in adoption cases. But what weight are these new factors to be given? Are the factors to be of relative equal weight or is the best interest of the child an overriding factor to which the others are subordinate? The statute itself does not answer these questions."

Having made these observations, the district court turned to the question of the father's fitness and of the best interests of G.L.V. and M.J.V. The court first noted that the mother did not argue that the father was an unfit parent and that no evidence had been presented that the father had not cared for the children he had with his current wife.

Considering the question of the best interests of the boys, the court found that "[c]onsideration of the best interest of the children does not clearly favor one parent over the other," in that both parents have the children's best interests at heart, differing only as to what they believe those interests to be. In addition, the court noted that "the father is African American and the mother and the petitioner [stepfather] are Caucasian. Severing ties with the father not only severs ties with his family but also may sever cultural ties."

Based on these findings, the court concluded that "the precedents of K.J.B. and B.M.W. dictate that the petition for adoption should be denied and that the 2006 amendment to K.S.A. 59-2136(d) does not change this outcome."

Court of Appeals

The stepfather appealed the denial of the adoption petition, claiming that the district court misinterpreted the 2006 amendment to the stepparent adoption statute. A divided panel of the Court of Appeals affirmed, concluding that the 2006 amendment to K.S.A. 59-2136(d) did not abrogate the parental duties test (based on the two-sided ledger) previously adopted by the Kansas Supreme Court in B.M.W. and K.J.B. even though it granted a district court discretionary authority to consider the best interests of the child and the fitness of the nonconsenting parent. G.L.V., 38 Kan.App.2d at 154-55, 163 P.3d 334.

Judge Marquardt dissented, writing that the majority opinion's interpretation of the 2006 amendment to K.S.A. 59-2136(d) rendered the recent amendment meaningless, as "[i]t is clear the legislature now intends that the trial court has the ability to consider the best interests of the children and is not required to merely focus on financial support alone as the criteria for denying an adoption." 38 Kan.App.2d at 157, 163 P.3d 334 (Marquardt, J., dissenting).

DISCUSSION

The stepfather advanced two alternative arguments before the Court of Appeals and now raises the same issues on petition for review: He contends that either (1) under the provisions of K.S.A.2007 Supp. 59-2136(d), the best interests of children involved in a contested stepparent adoption is an overriding factor in the determination; or, alternatively, (2) the two-sided ledger standard of love and affection and financial support adopted by this court in B.M.W. and K.J.B. has been converted to a three-column ledger under K.S.A.2007 Supp. 59-2136(d), with the best interests of the child being entitled to equal weight and consideration in the stepparent adoption proceedings.

Standard of Review

The district court denied the stepfather's petition for adoption in this case based on its findings that the father had assumed the duties of a parent for 2 years preceding the filing of the petition; thus, the father's consent was necessary to grant the adoption. The stepfather does not raise the issue of sufficiency of the district court's factual findings in this appeal. Instead, the stepfather...

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