Adoption of Baby Girl B., Matter of, 69651

• Decision Date: 11 February 1994
• Docket Number: No. 69651,69651
• Citation: 19 Kan.App.2d 283,867 P.2d 1074
• Parties: , 62 USLW 2547 In the Matter of the ADOPTION OF BABY GIRL B., a minor.
• Court: Kansas Court of Appeals

Page 1074

867 P.2d 1074

19 Kan.App.2d 283, 62 USLW 2547

In the Matter of the ADOPTION OF BABY GIRL B., a minor.

No. 69651.

Court of Appeals of Kansas.

Feb. 11, 1994.

Review Denied April 26, 1994.

Syllabus by the Court

1. The Uniform Child Custody Jurisdiction Act (K.S.A. 38-1301 et seq.) was intended, among other things, to avoid jurisdictional competition and conflict with courts of other states in matters of child custody, to discourage continuing controversies over custody, and to deter abduction and other unilateral removals of children undertaken to obtain custody awards. The application of the Act to adoption proceedings is consistent with the stated purposes of the Act.

2. "Custody proceeding" is defined in the Uniform Child Custody Jurisdiction Act to include "proceedings in which a custody determination is one of several issues, such as an action for divorce or separation." K.S.A. 38-1302(c). This definition is broad enough to include adoption proceedings, which inherently determine custody issues. The Act is applicable to adoption proceedings.

3. Whether a court has jurisdiction under the Uniform Child Custody Jurisdiction Act is a question of law and is subject to de novo review. Whether a court exercises or declines jurisdiction under the inconvenient forum provision of K.S.A. 38-1307 is a decision reached through the exercise of the court's discretion.

4. The requirement in K.S.A. 38-1302(e) that the child "live with" the mother from birth requires more than the mother and newborn child staying at the same hospital for a brief period. To "live with" someone requires a deliberate manifestation to share a common place with the person during a substantial period of the time involved. Since an infant cannot make such a manifestation, the court must look to the mother in this situation.

John J. Juryck, Jr., Nancy S. Anstaett, and Douglas M. Greenwald, McAnany, Van Cleave & Phillips, P.A., Kansas City, for appellants/cross-appellees prospective adoptive parents.

Jane M. Eldredge, Barber, Emerson, Springer, Zinn & Murray, L.C., Lawrence, for appellant/cross-appellee natural mother.

J. Kevin Lund, of Collister & Kampschroeder, Lawrence, for appellee/cross-appellant natural father.

Before BRISCOE, C.J., and BRAZIL and LEWIS, JJ.

BRISCOE, Chief Judge.

The natural mother of Baby Girl B. and the prospective adoptive parents (adoptive petitioners) appeal the district court's decision to decline jurisdiction over the adoption after concluding Kansas is an inconvenient forum. Appellants contend the court erred in finding Pennsylvania was a more convenient forum. The natural father cross-appeals, contending the court erred in concluding Kansas has jurisdiction over the adoption.

Prior to the child's birth, both the natural father and the natural mother lived in Pennsylvania with their respective parents. The natural parents were never married. On September 28, 1992, the mother moved from Pennsylvania to Douglas County, Kansas, to live with her uncle, who became her legal guardian on October 6, 1992. The mother planned to attend high school in Douglas County, but a medical problem related to the pregnancy prevented her attendance. Baby Girl B. was born on October 12, 1992, in Douglas County. The mother was 16 years old and the father was 18 years old at the time of the birth. On October 24, 1992, the mother returned to Pennsylvania and finished the school semester. She then returned to Douglas County on December 29, 1992, and planned to attend the second semester there. The father remains in Pennsylvania.

On October 13, 1992, the day after Baby Girl B. was born, the adoptive petitioners, who are residents of Michigan, petitioned the Douglas County District Court for adoption of the child and sought termination of the natural parents' rights. The natural mother consented to the adoption, but the natural father contested the adoption. On that same day, temporary custody of the child was granted to the adoptive petitioners' attorney, who was to place the child in their custody. According to the brief of the petitioners, the child has resided with them since she was discharged from the hospital and returned with them to Michigan, where the petitioners and the child continue to reside. On November 18, 1992, the natural father filed written defenses to the petition for adoption and termination of his parental rights.

On January 4, 1993, an evidentiary hearing was conducted in Douglas County District Court to address the limited question of whether the court had jurisdiction to decide the adoption case. The mother testified she had no plans to return to Pennsylvania and had enrolled at Lawrence High School. Her uncle testified he would remain her legal guardian as long as she remained in Lawrence, unless both of her parents moved to Lawrence. The natural father appeared through counsel. On January 7, 1993, the court held jurisdiction and venue were appropriate in Douglas County because the mother was a resident of Douglas County at the time of the child's birth. The court held the mother, a minor, assumed the residence of her legal guardian, a Kansas resident. The father moved the court to reconsider this finding, contending the mother was not a resident of Kansas when the child was born.

The judge initially assigned to the case recused herself from the case and it was reassigned to another judge. The court found that Kansas had subject matter jurisdiction over the adoption but declined to exercise that jurisdiction. The court applied K.S.A. 38-1307 of the Uniform Child Custody Jurisdiction Act (UCCJA), found Kansas to be an inconvenient forum, and further found Pennsylvania to be the more appropriate forum. The court reached this conclusion after finding there would be more evidence in Pennsylvania than in Kansas on the question of the father's fitness, including his efforts to support the child.

I. Does the UCCJA apply to adoptions?

The adoptive petitioners initially contended in their appellate brief that the UCCJA (K.S.A. 38-1301 et seq.), especially the inconvenient forum provision of K.S.A. 38-1307, does not apply to an adoption proceeding. When the briefs were filed in this case, the parties did not have the benefit of our recent decision in In re L.C., 18 Kan.App.2d 627, 857 P.2d 1375 (1993), which held the UCCJA is applicable to termination of parental rights cases. In In re L.C., this court recognized the logic of applying the UCCJA to termination cases because the question of who will or will not have custody of a child is inherent in termination cases. At oral argument, counsel for the adoptive petitioners argued the rationale of In re L.C. would also compel application of the UCCJA to adoption proceedings and withdrew the adoptive petitioners' contention that the UCCJA does not apply to adoptions.

We note that, unlike the Kansas Code for Care of Children (K.S.A. 38-1501 et seq.), which expressly states the UCCJA is applicable to that Code (K.S.A. 38-1503[b], there is no statutory reference in the Kansas Adoption and Relinquishment Act (K.S.A.1993 Supp. 59-2111 et seq.) (KARA) or in the UCCJA that the latter necessarily governs questions of jurisdiction or venue in an adoption proceeding. See K.S.A.1993 Supp. 59-2111 et seq.; K.S.A. 38-1301 et seq. However, we note that K.S.A.1993 Supp. 59-2128(a)(1)(F) states that a petition for adoption must include the same information required by the UCCJA in K.S.A. 38-1309. Also, the KARA does not include a jurisdictional provision for independent adoptions, although one is provided for agency adoptions. See K.S.A.1993 Supp. 59-2127. Further, as the district court in the present case noted, some of the considerations found in 59-2127(a) regarding jurisdiction for agency adoptions are identical to the factors to be considered in determining whether a forum is inconvenient under the UCCJA (38-1307).

Our research has not revealed any Kansas cases specifically addressing whether the UCCJA applies to adoptions. By its language, the UCCJA clearly applies to child custody proceedings. The UCCJA was intended, among other things, to "[a]void jurisdictional competition and conflict with courts of other states in matters of child custody," to "discourage continuing controversies over ... custody," and to "deter abductions and other unilateral removals of children undertaken to obtain custody awards." K.S.A. 38-1301(a)(1), (4), (5). Although In re L.C. was a termination of parental rights case, its rationale would also support a conclusion that the UCCJA should apply to adoptions. Who will or will not have custody of a child is also at issue in adoption proceedings. The application of the UCCJA to adoption proceedings is consistent with the stated purposes of the Act.

The father notes that other jurisdictions have applied the UCCJA to adoptions, citing Gainey v. Olivo, 258 Ga. 640, 373 S.E.2d 4 (1988); Foster v. Stein, 183 Mich.App. 424, 454 N.W.2d 244 (1990); In re Adoption of B.E.W.G., 379 Pa.Super. 264, 549 A.2d 1286 (1988). In Gainey, 258 Ga. at 642, 373 S.E.2d 4, the court proposed: "Whether the UCCJA applies to adoption proceedings depends upon whether an adoption proceeding is a custody proceeding within the meaning of the UCCJA." The court noted the definition of "custody proceeding" is very broad and concluded that applying the UCCJA to adoption proceedings would be consistent with its purposes. In Foster, 183 Mich.App. at 427, 454 N.W.2d 244, the court cited Gainey and concluded that adoptions are included in the definition of "custody proceeding" as provided by the UCCJA. In B.E.W.G., 379 Pa.Super. at 272-73, 549 A.2d 1286, the court reviewed a number of cases holding that the UCCJA applied to adoptions and stated:

"Because the effect of a final decree of adoption is to terminate all legal rights between the adopted child and the child's relatives, including grandparents, an adoption decree will necessarily terminate the custody rights of...