In re Adoption of Baby Girl P.

• Decision Date: 29 October 2010
• Docket Number: No. 102,287.,102,287.
• Citation: 242 P.3d 1168,291 Kan. 424
• Parties: In the Matter of the ADOPTION OF BABY GIRL P.
• Court: Kansas Supreme Court

242 P.3d 1168 291 Kan. 424 In the Matter of the ADOPTION OF BABY GIRL P. No. 102,287. Supreme Court of Kansas. Oct. 29, 2010.

[242 P.3d 1170, 291 Kan. 424]

Syllabus by the Court

1. An order terminating parental rights under K.S.A.2009 Supp. 59-2136 is final and subject to immediate appellate review.

2. Application of the ledger test, which balances emotional and financial support in stepparent adoption proceedings, is inappropriate under the statutory language governing nonstepparent adoption proceedings.

3. Adoption statutes are to be construed strictly in favor of maintaining the rights of the natural parents in those cases where it is claimed that, by reason of a parent's failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required.

4. K.S.A.2009 Supp. 59-2136(h)(1)(A) and (C) are not redundant, and evidence of financial neglect under subsection (C) is not the same as abandoning or neglecting a child under subsection (A). Financial neglect may not serve as the only basis for a finding of neglect under subsection (A).

5. K.S.A.2009 Supp. 59-2136(h)(1)(C) requires simply that a father make reasonable efforts to support or communicate with the child, not that he make extraordinary efforts to have a parental relationship with the child.

6. Consideration of the best interest of the child under K.S.A.2009 Supp. 59-2136(h)(2)(A) does not supersede the enumerated statutory factors for termination of parental rights under K.S.A.2009 Supp. 59-2136(h)(1).

Zach Chaffee-McClure, of Shook, Hardy & Bacon, L.L.P., of Kansas City, Missouri, argued the cause, and Debra A. Vermillion, of Vermillion Law Office, L.L.C., of Kansas City, Kansas, was with him on the briefs for appellant natural father.

Kevin W. Kenney, of Kevin W. Kenney, P.A., of Prairie Village, argued the cause and was on the briefs for appellees adoptive parents.

Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, was on the brief for amicus curiae American Academy of Adoption Attorneys.

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

In this case, the courts are again called upon to make the painful determination of whether a child should reside with a natural parent, who has the emotional bonds that follow from biological fatherhood, or with prospective adoptive parents, whose emotional bonds have evolved over many months of loving, supporting, and caring for the child. It is ultimately a legal decision which this court must reach, but it is a legal decision that is shadowed by the heartbreak of severing human bonds. A review of judicial decisions from various jurisdictions demonstrates how courts struggle with these painful choices. See, e.g., Mississippi Choctaw Indians Band v. Holyfield, 490 U.S. 30, 65, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989); Roe Family Services v. Doe, 139 Idaho 930, 88 P.3d 749 (2004); Hale v. Cramer, 254 Md. 592, 255 A.2d 37 (1969); McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008); In re Mata, 212 S.W.3d 597 (Tex.App.2006); In re Reinius, 55 Wash.2d 117, 346 P.2d 672 (1959).

Baby Girl P. was born on June 23, 2008, in Overland Park, Kansas. Her mother was Lauren P., who was married at the time to Cortlandt James P. (C.J.). They were living in Florida when they separated in May 2007; Lauren then moved to Kansas, where she lived with her parents.

In fall 2007, while living in Kansas, Lauren began a romantic relationship with Devon M. Devon was employed at the time in a part-time job with a lawn service and was living with his mother. His income was around $200 per month, some of which he paidto his mother to contribute to his living expenses and some of which he used to pay his telecommunications bill. In June 2008, he obtained regular employment with an annual salary of about $25,000 and with benefits that included health insurance.

In October 2007, Lauren learned that she was pregnant, and some time after November 20, 2007, she informed Devon. Lauren and Devon both considered Devon the father, and subsequent DNA testing did not exclude him as the father.

According to Lauren's trial testimony, Devon was indifferent to the news, expressing no interest in the pregnancy or subsequent parenthood. In an earlier deposition, however, Lauren testified that Devon was excited when he learned about the pregnancy. There was also testimony that after learning Lauren was pregnant, Devon bought her flowers and told her he wanted the relationship to become more committed and durable because they were going to be a family raising a child together. He also kept the pictures of the sonograms that Lauren sent him in November.

Lauren ended the relationship with Devon in mid-December 2007, shortly before her husband made preparations to come to Kansas. Lauren testified that from that time on, she did not hear from Devon. Her telephone records, however, revealed that Devon made numerous telephone calls and sent numerous text messages for many weeks after she alleged that she had no contact with him.

There was testimony that Lauren told Devon in a text message in February or March 2008, that she had suffered a miscarriage, although at trial Lauren denied having sent such a message. Lauren had told him about two previous miscarriages, so Devon assumed he had no reason to question the veracity of her message. An acquaintance of Lauren told Devon that she thought Lauren was no longer pregnant because she did not look pregnant and because she continued to drink and smoke as if she were not pregnant. There was also testimony that Lauren informed Devon that she was moving to Texas and that he was not to contact her anymore.

During the 6 months prior to Baby Girl P.'s birth, Devon did not provide or offer to provide Lauren with any money, Christmas presents, clothes, or other material support. He explained that hedid not provide her with support because he believed she had suffered a miscarriage.

In January 2008, Lauren and C.J. reconciled, and in March 2008 they moved into an apartment in Johnson County. During the reconciliation process, Lauren did not inform C.J. that she was pregnant. When C.J. finally learned of the pregnancy, in April or May 2008, he said he did not want to raise the child and wanted it placed for adoption.

On the day Baby Girl P. was born, Lauren told one of the doctors at the hospital that she intended to place the child for adoption. The following day, Lauren signed an affidavit in which she provided an incorrect surname name for Devon. She later testified that she "didn't really remember his last name." She also averred in the affidavit that Devon had moved to an unknown address and city in Florida, which she knew was false. She testified that she gave this incorrect information because Devon had talked about moving to Florida to be with his father. She did not provide Devon's last known street address to investigators, claiming not to remember what it was. Although she had been arrested in front of Devon's house for driving under the influence of alcohol, she did not inform the adoption investigators where his house was or that they would be able to find it from the arrest record. As a consequence, Devon was not informed of the birth and was initially unaware that he had a daughter.

On July 10, 2008, a petition for adoption was filed in district court. In August 2008, an investigator contacted Devon's mother pursuant to the adoption proceeding. As a result, Devon and his mother learned that Lauren had carried her pregnancy to term and he immediately obtained counsel in an attempt to protect his parental rights. He then filed motions through counsel seeking visitation with his daughter. He eventually was permitted to visit the child on two occasions for 1 hour each time. Devon wrote to the prospective adopting couple thanking them for allowing him to visit his daughter and offering to provide support for her. He and his mother also delivered Christmas presents to the adoption agency to pass along to the child.

Lauren voluntarily relinquished her parental rights, and the custodial couple filed a petition for adoption. The district court bifurcated the parental rights issue from the adoption issue and conducted an evidentiary hearing on December 17-18, 2008. In a memorandum decision filed March 3, 2009, the district court granted the petition to terminate Devon's parental rights. The adoptionissue remains pending in the district court.

The district court made a number of specific factual findings, many of them expressed as negatives: Devon did not fail to provide Lauren with support without good cause during the 6 months preceding Baby Girl P.'s birth; he did not abandon Lauren after having knowledge of her pregnancy; he did not abandon or neglect Baby Girl P. after he learned of her birth; and he made reasonable efforts to communicate with Baby Girl P. after her birth. He neglected his legal obligation to support Baby Girl P. after he learned of her birth, however, by not providing or offering financial support for the child and by not establishing his parental rights in a separate custody proceeding.

The district court then considered Baby Girl P.'s best interest under K.S.A.2009 Supp. 59-2136(h)(2)(A). The court noted that Devon had failed to demonstrate a commitment to support her. He failed to investigate zealously whether Lauren had told the truth about the miscarriage, which foreclosed him from pursuing a paternity proceeding, claiming custody, and committing his financial support for her upbringing. These factors "undergird[ed]" the additional finding of the child's best interest, which "tip[ped] the evidentiary scale" in favor of termination.

Following the denial of his motion to reconsider, Devon appealed to the Court of Appeals. The district court stayed resolution of the adoption proceedings pending final resolution of the appeal. In In re Adoption of Baby Girl P., No. 102,287, 2010 WL 348291, unpublished opinion filed January 22, 2010, the Court of...