Adoption of Baby Boy B, Matter of, 68762

• Decision Date: 21 January 1994
• Docket Number: No. 68762,68762
• Parties: In the Matter of the ADOPTION OF BABY BOY B.
• Court: Kansas Supreme Court

Page 1029

866 P.2d 1029

254 Kan. 454

In the Matter of the ADOPTION OF BABY BOY B.

No. 68762.

Supreme Court of Kansas.

Jan. 21, 1994.

Syllabus by the Court

1. Where all the evidence is in written form, the appellate court has as good an opportunity to examine and consider the evidence as did the district court and to determine de novo what the facts establish.

2. An exception to the rule stated in Syllabus p 1 exists where there is conflicting written testimony and the court is called upon to disregard the testimony of one witness and accept as true the testimony of the other. In such a case, the standard of review on appeal is whether the findings of the district court are supported by substantial competent evidence.

3. The term "support," as used in K.S.A.1992 Supp. 59-2136(h)(4), does not mean total support for the mother, nor is it sufficient if it is incidental or inconsequential. "Support" must be of some consequence and reasonable under all the relevant circumstances existing in the case.

4. In making a determination in an adoption proceeding of whether a nonconsenting father has failed without reasonable cause to provide support for the mother during the last six months of her pregnancy, all the relevant surrounding circumstances must be considered.

Paula K. Casey, Alexander, Floodman & Casey, Chartered, Wichita, argued the cause and was on the brief, for appellant natural mother.

Kevin M. Hill, Finley, Miller, Cashman, Weingart & Schmitt, Hiawatha, argued the cause, and John L. Weingart, of the same firm, was with him on the briefs, for appellants, prospective adoptive parents.

Elizabeth Lea Henry, Fletcher & Mathewson, P.A., Wichita, argued the cause and was on the brief, for appellee natural father.

ALLEGRUCCI, Justice.

This is an appeal from the district court's order denying the petition of the couple who sought to adopt Baby Boy B. The natural father had opposed their petition, and they had sought to terminate his parental rights on the ground that he had failed, without reasonable cause, to provide support for the mother during the six months prior to the child's birth. The Court of Appeals affirmed the district court's denial of the petition in an unpublished opinion filed June 18, 1993, 854 P.2d 321. We granted the couple's petition for review.

Baby Boy B. was born on March 20, 1992. His mother and father were not married. His mother consented to his adoption by the couple; his father did not.

The couple who sought to adopt Baby Boy B. filed a petition for adoption in the district court and were granted custody of the child pending the hearing on their petition. Their amended petition for adoption alleges that the child's father "has failed and refused to consent to this adoption." The couple sought to have his parental rights terminated. In his answer, the father admitted being the father of the child and asserted his rights as a parent.

The hearing on the couple's petition was held on May 7, 1992, with the Honorable Keith W. Sprouse presiding. The theory which the couple sought to develop was that the father's consent was unnecessary, pursuant to K.S.A.1992 Supp. 59-2136(h)(4), for the reason that after having knowledge of the pregnancy, he failed without reasonable cause to provide support for the mother during the six months prior to the child's birth. At the conclusion of the hearing, the district court judge took the matter under advisement.

On June 2, 1992, the Honorable Paul E. Miller was assigned to "hear and determine" this case. The record does not contain an explanation for the change.

On July 16, 1992, a journal entry of judgment was filed, denying the petition for adoption, setting aside the temporary custody order, and placing custody of the child with the father. The district court denied the couple's request for a stay pending appeal, and it was ordered that the transfer of custody occur on July 17, 1992.

Two issues are raised by the couple in this appeal:

1. What is the proper standard of appellate review?

2. Did the father provide support to the mother during the six-month period before the child was born within the meaning of K.S.A.1992 Supp. 59-2136(h)(4)?

We will first address the issue of the proper standard of appellate review. In the only published opinion reviewing a district court's decision on parental rights pursuant to K.S.A.1992 Supp. 59-2136(h)(4), the Court of Appeals stated: "The controlling issue is whether the findings of fact by the trial court are supported by substantial competent evidence of clear and convincing quality." In re Adoption of Baby Boy S., 16 Kan.App.2d 311, 312, 822 P.2d 76 (1991). The requirement that the evidence be "clear and convincing" was specified by the legislature. In Baby Boy S., the Court of Appeals applied general principles which had been stated by this court in In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987). 16 Kan.App.2d at 312, 822 P.2d 76. In F.A.R., we held:

"In an adoption proceeding, the question of whether an individual has failed or refused to assume the duties of a parent for the required period of time pursuant to K.S.A.1986 Supp. 59-2102(a)(3) is ordinarily a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing." Syl. p 1.

"When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below." Syl. p 2.

"Generally speaking, adoption statutes are strictly construed in favor of maintaining the rights of 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. [Citation omitted.]" Syl. p 5.

"In making a determination in an adoption proceeding of whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered." Syl. p 6.

"Before a child can be adopted without the consent of one of the natural parents, the facts warranting an exception as prescribed by statute must be clearly proven." Syl. p 10.

On the appeal of the present case, the natural father advocates that the standard of review which this court applied in F.A.R. and which the Court of Appeals adopted in Baby Boy S. is controlling in the present case. The couple and the mother rely on the rule that review should be de novo when the controlling facts are presented by a written record, the reason being that the appellate court has as good an opportunity to consider the record and determine the facts as did the trial court.

There is an exception to the general rule that an appellate court will decide the facts for itself on a written record. The exception has been applied where the testimony of one witness must be credited over that of another. In Boese v. Crane, 182 Kan. 777, 780, 324 P.2d 188 (1958), this court stated the limited application of the rule:

"This rule, however, is not universally applied under all conditions. It has been applied where all the evidence is in written form [citation omitted]; where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form [citation omitted]; but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others [citations omitted]."

The Court of Appeals in the present case noted:

"The record available to Judge Miller is similar to the record provided to the district court in Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P.2d 180 (1958). Karlan was a replevin action decided on the basis of documentary evidence, including a written stipulation as to the testimony that specified witnesses would give if they were present at trial. The Supreme Court described the nature of that stipulation:

'It should be noted at this point that the stipulation last above mentioned contains statements by witnesses for both the plaintiff and the defendants; that it gives their respective views on controverted phases of the lawsuit; and that in no sense is it to be regarded as an agreed statement of facts. The most that can be said for it is that, while it presented the evidence of each witness in documentary form, it permitted the court to weigh the testimony of all witnesses and decide for itself the weight to be given such testimony in reaching its decision on the decisive issues involved.' 182 Kan. at 757 .

In view of the record presented to the district court, the Supreme Court rejected a request for de novo review:

'In reaching the conclusions last above announced we have not overlooked contentions strenuously advanced by appellants to the effect that since the only evidence of record is in documentary form this court is required to decide for itself what the facts established, substantially in the same manner it would if this were an original case. We have so held. [Citations omitted.] It must be remembered, however, such rule is subject to some elasticity under certain conditions. In that connection we have pointed out that even though we determine the facts from the printed page we cannot disregard the testimony of one witness and accept as true the testimony of others but, under such circumstances, should follow the ordinary rule, giving credence where the trial court gave credence, unless its findings of fact are illogical, improbable and unwarranted.' 182 Kan. at 760 ."

In their petition for review and in a...