Adoption of Herbst, In re, 47660
| Decision Date | 10 May 1975 |
| Docket Number | No. 47660,47660 |
| Citation | 217 Kan. 164,535 P.2d 437 |
| Parties | In the Matter of the ADOPTION OF Tracy Dawn HERBST, a minor. Deborah Ann HERBST, Appellee, v. Annetta Herbst COMPTON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a proceeding by a stepmother for adoption of a minor child, it is held there was substantial competent evidence to support the trial court's finding that the natural mother had failed to assume the duties of a parent for two years next preceding the filing of the petition for adoption.
Robert L. Serra, Kansas City, argued the cause and was on the brief for appellant.
Gary L. Nafziger, Oskaloosa, argued the cause and was on the brief for appellee.
HARMAN, Commissioner:
This is an appeal from a district court order of adoption of a child granted without the consent of the natural mother.
William and Annetta Herbst were married in 1968. Annetta had a child, Lesa, by a prior marriage. On January 1, 1970, Tracy Dawn, the subject of this proceeding, was born to William and Annetta.
The Herbsts made their home in Kansas City, Kansas. Soon after Tracy's birth Annetta commenced working as a bartender at the Chatterbox Club, a private club, in Kansas City and William became employed by the Rock Island railroad. Marital difficulties arose between the couple and they separated in August, 1970. Annetta kept Tracy, leaving her with babysitters and with the paternal grandmother, Marie Herbst. In September Annetta informed William she did not have a babysitter and would have to take the child to the club with her. Over William's objection she took Tracy to the club. Later William took the child and she was thereafter cared for by the paternal grandmother until William's present spouse assumed her care.
In January, 1971, William filed for divorce from Annetta in the district court of Wyandotte county on the ground of gross neglect of duty and incompatibility. Annetta was served with summons and with copy of the petition but she did not appear in the action and on March 4, 1971, William was granted a divorce and the custody of Tracy. The divorce decree was silent as to visitation rights of Annetta. Annetta learned to the divorce through a friend the day after it was granted.
On May 14, 1971, Annetta married Michael Compton. On December 16, 1972, William married Deborah Ann, his present wife, who is the petitioner for adoption herein. Deborah started helping the paternal grandmother take care of Tracy during the summer of 1972 when she and William became engaged. Since their marriage Deborah and William have lived at the former home of the paternal grandmother near McLouth, Kansas, and Deborah had taken care of Tracy up to the time of the adoption hearing.
On December 20, 1973, Deborah Herbst filed a petition in the probate court of Jefferson county for the adoption of Tracy. William consented to the adoption. Annetta did not. In lieu of her consent the petition alleged she had failed to assume the duty of a parent for two consecutive years. The probate court heard the matter and denied the adoption. Deborah appealed this decision to the district court which, after de novo hearing, granted the petition and ordered Tracy's adoption by Deborah. Annetta has now brought the matter here.
K.S.A.1974 Supp. 59-2102 provides in pertinent part:
'Before any minor child is adopted, consent must be given to such adoption
'(1) by the living parents of a legitimate child or
'(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent or . . ..'
Upon appeal Annetta contends the evidence presented to the trial court was insufficient to support its finding she had failed to assume the duties of a parent for two consecutive years preceding the filing of the adoption petition, thus rendering her consent unnecessary. The petition was filed December 20, 1973. The trial court heard controverted evidence as to just what attention appellant Annetta had paid to Tracy during the crucial two year period while the little girl was being cared for by her father, her paternal grandmother and her stepmother, appellee Deborah. In a comprehensive memorandum opinion it discussed the evidence and made extensive findings of fact. The court specifically rejected much of appellant's testimony and other evidence offered by her, choosing instead to believe the version of events related by appellee's witnesses, particularly the paternal grandmother. Essentially it found appellant had not visited the child during 1971 as asserted by appellant, had made no effort to do so, and had visited her only three times in 1972, the last visit being in June or July. Appellant always had someone with her and was never alone with Tracy. During these visits Tracy did not know who appellant was. During this last visit appellant's daughter Lesa, whom appellant had brought, announced that her father and Tracy's father was the same man and Tracy did not have Herbst blood. The clear implication is that this information had come from appellant. When these statements were made the paternal grandmother told appellant to leave and not return. Appellant made no visits thereafter. She did not leave her telephone number or place of residence with the Herbsts so that she could be contacted in case of emergency. Previously there had been some animosity between appellant and the Herbst family, engendered in part at least by numerous telephone calls by appellant made to the grandmother during early morning hours in which appellant used abusive language and threatened her ex-husband William but never inquired about Tracy. During the entire two year period the only gift furnished by appellant for Tracy was one doll. Appellant did not send any other type of remembrance, message or card either at Christmas, on Tracy's birthday anniversary or at any other time.
In its memorandum opinion the trial court also noted the fact appellant was familiar with divorce proceedings. She had secured custody of her child Lesa in...
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