Adoption of K.J.B., Matter of

• Decision Date: 29 May 1998
• Docket Number: No. 77632,77632
• Citation: 959 P.2d 853,265 Kan. 90
• Parties: In the Matter of the Adoption of K.J.B., L.D.B., and R.J.B.
• Court: Kansas Supreme Court

Page 853

959 P.2d 853

265 Kan. 90

In the Matter of the Adoption of K.J.B., L.D.B., and R.J.B.

No. 77632.

Supreme Court of Kansas.

May 29, 1998.

Syllabus by the Court

1. In a K.S.A. 59-2136(d) stepparent adoption, the court examines whether the nonconsenting parent has assumed parental duties during the 2-years preceding the filing of the petition for adoption. Social security payments to children due to a parent's disability should therefore be examined in the context of whether a parent has assumed his or her parental duties.

2. In a K.S.A. 59-2136(d) adoption case, where a father who is required by judicial decree to make child support payments and social security payments for the benefit of the minor children are paid because of the father's filing for and receiving disability benefits, the father is entitled to credit for such payments against his liability for child support.

3. The duties of a parent addressed by K.S.A. 59-2136(d) include not only the duty of financial support, but also the natural and moral duty of a parent to show affection, care, and interest toward his or her child.

4. Basic parental rights are fundamental rights protected by the Fourteenth Amendment to the Constitution of the United States. The right to be the legal parent of a child is one of these rights, which cannot be abrogated except for compelling reasons.

5. K.S.A. 59-2136(d) is to be construed strictly in favor of maintaining the rights of natural parents. By applying a strict construction we are compelled to conclude that as a matter of law, the father in this case, who has provided a substantial portion of child support as required by judicial decree, has not "failed or refused" to assume the duties of a parent under K.S.A. 59-2136(d).

6. To judicially sever parental rights under K.S.A. 59-2136(d), there must be a finding of failure to assume parental duties in failing to provide a substantial portion of child support and a finding of failure to show affection, care, and interest toward his or her child.

Loy D. Johnson, of Law Office of Gregory E. Seindon, PA, Ellis, and Grant D. Griffiths, of Law Office of Floyd Sorrick, Washington, argued the cause and were on the briefs for appellant.

Jeff Elder, Wamego, argued the cause and was on the brief for the appellee.

SIX, Justice:

This is a K.S.A. 59-2136(d) stepparent adoption case. The father of three minor children appeals the district court's order granting the stepfather's petition for adoption. The district court found that the father had failed to assume the duties of a parent during the 2 years next preceding the filing of the adoption petition; therefore, his consent to the adoption was not required. The Court of Appeals affirmed. In re Adoption of K.J.B, 24 Kan.App.2d 210, 944 P.2d 157 (1997). We granted the father's petition for review. K.S.A. 20-3018(b); Rule 8.03 (1997 Kan. Ct. R. Annot. 52).

The questions before us are: (1) whether, social security payments for the benefit of the minor children resulting from the father's filing for and receiving disability benefits qualify as credits against the father's liability for child support in a K.S.A. 59-2136(d) adoption case; and, (2) if they do, was the district court correct in holding that the father's consent was not required because he had "failed or refused to assume the duties of a parent" under K.S.A. 59-2136(d).

The answer is "yes" to the first question and "no" to the second. We reverse the district court and the Court of Appeals.

FACTS

The narrative background set out in 24 Kan.App.2d 210, 944 P.2d 157 is repeated here. Additional facts have been added in brackets. The stepfather's petition for adoption was filed on November 6, 1995. The K.S.A. 59-2136(d) 2-year period is November 6, 1993, to November 6, 1995. At the time the adoption petition was filed, K.J.B. was, 11, L.D.B., 9, and R.J.B., 7.

The facts were set forth in the Court of Apperals opinion, 24 Kan.App.2d at 211-14, 944 P.2d 157, as follows:

"The mother and father of K.J.B., L.D.B., and R.J.B. were divorced in 1989. The mother was given residential custody of L.D.B and R.J.B. and the father was given residential custody of K.J.B. This arrangement lasted until May 1989, when all three children began residing with the mother as a result of a child in need of care proceeding regarding K.J.B. The mother married the petitioner/stepfather in May 1991. The mother testified she has lived at the same residence since she remarried.

"Following the divorce, the father was ordered to pay $254 per month in child support for the two children in the mother's custody. The mother never requested a change in the amount of support after all three children were placed in her custody. The mother testified the only check she ever received from the father was one for $98. [The mother received this amount in the month before the June 1996 hearing.]

"In 1991, the father filed for social security disability benefits and the children began receiving a portion of these benefits, which were back-dated to 1990. The father testified it is the advice of his physician that he not seek employment. From 1990, the children received $255 per month in social security benefits. We disagree. [The mother testified that although monthly social security payments for the benefit of the children had been received, the amount had only been raised to $255 beginning in January 1996. There was no testimony as to the amount of the monthly checks before that time.] The mother claimed the benefits were less than what the children should have received because the father claimed parentage of another child in order for that child's mother to receive a portion of the benefits.

"The father exercised regular visitation for approximately 1 year after the children began residing with their mother. On June 29, 1992, the district court entered an order approving the change of custody of all three children to the mother. The court permitted visitation by the father, but due to the father's mental problems, the visitation was to be under the direct supervision of the Pawnee Mental Health Center. The father exercised four supervised visits with the children in the following 3 months.

"On September 23, 1992, the father filed a motion to set specific visitation rights. After filing the motion, the father had a visit with the children for a birthday party, and other visits also took place when the father volunteered his time. [The father volunteered for a social service organization and would take the children with him while he did his volunteer work.] On February 11, 1993, the district court entered an order allowing visitation by the father at his home for 3 hours on alternating weekends, with the visits increasing an hour each visit until a full weekend was allowed. The father exercised his visitation rights under this order until September 1993. On October 20, 1993, the mother filed a motion to alter the father's visitation schedule. The father exercised "On January 4, 1994, the district court entered an order modifying the father's visitation rights in response to the mother's motion to alter. The father did not appear at the January 4, 1994, hearing. He was granted certain visitation rights, but the judge ordered the visitation stayed until the father appeared and requested the same to be reinstated. However, the court permitted visitation in the mother's home under her supervision. The mother testified the district court stayed the visitation because the father had not visited the children since September and had received two DUI's.

no visitation or contact with the children from that point on.

"Approximately a month after the court stayed the father's visitation, he called the mother, and she tried to arrange visitation in her home. The mother testified the father told her that was not correct and hung up the phone. She did not hear from him again. The father has not filed any legal proceedings regarding visitation or custody. The mother indicated the father sent only two of the three children birthday cards in 1994 and 1995. Additionally, the children received Christmas cards in 1994, but nothing for Christmas 1995.

"The father is mentally disabled and suffers from depression and agoraphobia, a fear of strange places with large numbers of people. He acknowledged he takes several medications for his mental illness. He claims that when he takes his medications, he is able to function as a normal person. He stated that shortly after the mother filed the motion to alter visitation in September 1993, he was involuntarily hospitalized in Osawatomie State Hospital from October 1993 through December 1993.

"The father testified he called the stepfather in April 1994 and was told that the children were not his anymore, they were the stepfather's children, and to never call again. The father testified he did not call the children because of the stepfather's command. The father stated that as a result of the inability to see his children, he voluntarily checked himself into Osawatomie State Hospital and then was transferred to Topeka State Hospital from May 1994 to July 1994. When the father was released from the hospital, he was sent to a halfway house in Liberal, Kansas, where he lived from July 1994 through November 1994. Because of a DUI conviction, the father then spent November and December 1994 in the Riley County jail.

"From January 1995 through July 1995, the father lived with his own father in Wamego. He went to a facility in Georgia for the month of July 1995 to prepare himself for the litigation concerning his children. [The father testified that he spent his time in Georgia at a treatment program. The type of treatment was not specified.] He returned to Wamego and lived there until April 1996. At the time of the hearing on whether his consent to the adoption was necessary, the father resided in Topeka in an assisted living home for the mentally ill.

"On November 6,...