Adoption of F.A.R., Matter of, 60105

Citation747 P.2d 145,242 Kan. 231
Decision Date11 December 1987
Docket NumberNo. 60105,60105
PartiesIn the Matter of the ADOPTION OF F.A.R. and D.M.R., Minor Children.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. 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.

2. 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.

3. In a determination under K.S.A. 1986 Supp. 59-2102(a)(3) of whether consent of a parent to an adoption is unnecessary for failure to assume parental duties, the best interests of the child is not a controlling factor in the decision.

4. In making a determination pursuant to K.S.A. 1986 Supp. 59-2102(a)(3), the fitness of the nonconsenting parent is not a controlling factor as it would be under proceedings pursuant to K.S.A. 38-1581 et seq.

5. 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. Following In re Sharp, 197 Kan. 502, Syl. p 1, 419 P.2d 812 (1966).

6. 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.

7. When a nonconsenting parent is incarcerated and unable to fulfill the customary parental duties required of an unrestrained parent, the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability.

8. If an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children, it is for the trial court to determine the sufficiency of such efforts in making a determination under K.S.A. 1986 Supp. 59-2102(a)(3).

9. In making a determination pursuant to K.S.A. 1986 Supp. 59-2102(a)(3), the critical period is limited to the two years immediately preceding the filing of the adoption petition. However, it is not error for the trial court to admit evidence of events occurring prior to that period to the extent it is relevant to explain or prove conduct or lack thereof during the two-year period.

10. 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.

Victoria M. Kumorowski of Kumorowski & Kumorowski, Hutchinson, argued the cause and was on the brief for appellant.

Kim D. Steele of Legal Services for Prisoners, Inc., of Hutchinson, argued the cause and was on the brief for appellee.

HOLMES, Justice.

Wayne E. Leikam appeals from an order of the Reno County District Court denying his petition to adopt his two minor stepchildren for lack of consent by the children's natural father. The court found that appellant failed to meet his burden of proof that consent was not required on the ground that the natural father had "failed or refused to assume the duties of a parent for two consecutive years." K.S.A. 1986 Supp. 59-2102(a)(3).

The children involved, F.A.R. born July 23, 1977, and D.M.R. born March 8, 1979, are both boys born in lawful wedlock. The children's parents were divorced October 14, 1981. The mother married the appellant in February, 1984. In compliance with the spirit of Supreme Court Rule 7.043, the natural father will be referred to simply as appellee. Appellant, with the consent of the natural mother, filed a petition to adopt F.A.R. and D.M.R. on February 12, 1986. Appellee refused to grant his consent to the adoption and affirmatively contested the adoption. Appellant contended in the trial court that the consent was not required, relying upon K.S.A. 1986 Supp. 59-2102(a), which provides in part:

"(a) Before any minor child is adopted, consent to the adoption must be given by:

....

"(3) one of the parents, if the other has failed or refused to assume the duties of a parent for two consecutive years...."

The specific issue before the court is whether the trial court committed error in ruling that under the facts of this case the consent of the appellee was required.

Most of the facts are not in dispute. In late 1979, appellee was convicted of rape, aggravated burglary, and attempted rape and was sentenced to a prison term of forty-five years to life. From December 1979 until the date of the hearing on the petition for adoption, he was confined at the Kansas State Industrial Reformatory at Hutchinson (K.S.I.R.). Appellee will not be eligible for parole, under present statutes and regulations, until 1994.

The children and their mother regularly visited respondent at K.S.I.R. until June 1981, when the mother decided to terminate the visitations. On July 31, 1981, she filed for a divorce which was granted October 14, 1981. Sole custody, care, and control of the two children was given to their mother, subject to reasonable visitation rights of the appellee. No provision was made for child support. In late 1981, the appellee filed a motion seeking specific visitation rights which were granted with respect to the older child. However, the court refused to order visitation with the younger child, D.M.R. Under the order, F.A.R. was to be transported once weekly from his mother's residence to K.S.I.R. by a volunteer from K.S.I.R. Chaplaincy Services who was also to supervise the visits. F.A.R. visited his father three times with the last visit occurring January 20, 1982. He was visibly upset after that visit. The next week, F.A.R. cried and was unwilling to go visit his father. His mother did not force him to go and the chaplaincy services volunteer declined to take the boy to visit his father. On March 5, 1982, the appellee filed a motion in the divorce action seeking specific visitation with D.M.R. The motion was denied by the court on March 19, 1982. Appellant has had no direct contact with D.M.R. since June 21, 1981, nor with F.A.R. since January 20, 1982. Additional facts will be developed as they pertain to the specific issues on appeal.

The trial court in its memorandum opinion, after identifying the parties, found, inter alia:

"3. That the natural parents were divorced on October 14, 1981, 2 years after the father entered K.S.I.R. on a 45 to life sentence on October 19, 1979.

"4. That the father has been incarcerated continuously from his entry date to present.

"5. That the mother initially visited the father at K.S.I.R. and also took the children with her to visit. That the last visit the natural mother made to K.S.I.R. was on June 21, 1981, and the last time the father saw either of his children was on January 20, 1982.

"6. That the father made attempts to expand visitation but was denied.

"7. That the mother made no attempts to contact the father and, at times, the father did not know the whereabouts of his children. That the mother also returned a proffered support payment by the father.

"8. The father's last contact with his sons was a photo of the boys with a note that asked him to 'back off' on his attempts to contact his ex-wife and sons.

"9. The actions by the mother constitute interference with the rights of the non-custodial parent to maintain contact with his sons. The court understands the reluctance of the mother to continue the association of her sons with the father, a now convicted rapist, but, the court must strictly construe towards maintaining the natural relationship between parent and child.

"10. The court must hold that the petitioner has failed to meet the burden of proof to show that the respondent has failed or refused to assume his parental duties."

Appellant's first issue essentially attacks the trial court's consideration of appellee's incarceration as a factor in determining whether he failed to assume parental duties and the trial court's finding that the children's mother had interfered with the father's attempts to maintain contact with his sons.

In determining the issues, certain basic principles must be kept in mind. In Aslin v. Seamon, 225 Kan. 77, 587 P.2d 875 (1978), we stated:

"Ordinarily the question whether or not an individual has failed or refused to assume the duties of a parent for the required period of time is a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing. In re Herbst, 217 Kan. 164, 535 P.2d 437 (1975); In re Sharp, 197 Kan. 502, Syl. p 5, 419 P.2d 812 (1966); In re Waters, 195 Kan. 614, Syl. p 1, 408 P.2d 590 (1965). 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. Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977) and cases cited therein." p. 78, 587 P.2d 875.

It should also be noted that the best interests of the child, which is the paramount consideration in custody matters, is not...

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