Adoption of Sharp, In re
| Decision Date | 05 November 1966 |
| Docket Number | No. 44540,44540 |
| Parties | In the Matter of the ADOPTION OF James Preston SHARP, Jr., and Valerle Lynn Sharp, Minors. Juanita Loren SHARP, Appellant, v. Dianne THURMAN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. 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 his consent to the adoption is not required.
2. Under K.S.A. 59-2102 the consent of natural parents to the adoption of a legitimate child is specifically required unless the case falls within one of the enumerated exceptions. The facts warranting an exception as prescribed by the statute must be clearly proven before the child can be adopted without consent of the natural parent.
3. The provisions of K.S.A. 59-2102 (3) are construed, and the term 'two consecutive years' as used therein is held to refer to the period next preceding the filing of a petition for adoption.
4. In an adoption proceeding in which the consent of the natural mother was alleged to be unnecessary because of her failure and refusal 'to assume the duties of a parent for two consecutive years' as provided in K.S.A. 59-2102(3), the district court erred in determining there could be no failure or refusal to assume the duties of a parent for two consecutive years because of one visit by the natural mother, at which she brought gifts to her children, during such period.
5. Ordinarily the question of 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. (Following In re Adoption of Waters, 195 Kan. 614, 408 P.2d 590.)
H. E. Pat Healy, Wichita, argued the cause, and was on the brief, for appellant.
Tom Cunningham, Wichita, argued the cause, and was on the brief, for appellee.
This is an appeal in an adoption proceeding which was instituted in the probate court of Sedgwick county on January 8, 1965, by the stepmother of two minor children. The petition was premised on an allegation that the consent of the natural mother was unnecessary because of her failure and refusal 'to assume the duties of a parent for two consecutive years' under K.S.A. 59-2102(3). An answer was filed in which the natural mother denied the pertinent allegations of the petition and objected to the adoption. After a full hearing in the probate court a decree of adoption was entered from which the natural mother appealed. At the trial in district court the court heard petitioner's evidence, and at the conclusion thereof the mother 'demurred to the evidence of the petitioner,' whereupon the court denied the petition. Petitioner's motion for new trial was overruled, and this appeal followed.
The issues presented on appeal are: (1) Does the phrase 'two consecutive years' as used in K.S.A. 59-2102(3) mean the period next preceding the filing of a petition for adoption? and (2) In denying the stepmother's petition for adoption, without hearing the evidence of the natural mother, did the district court err in determining there could be no failure or refusal to assume the duties of a parent for two consecutive years because of one visit by the natural mother, at which she brought gifts to her children, during such period?
The facts are not in substantial dispute. Dianne Sharp Thurman (appellee), natural mother of the minor children, and their father, James P. Sharp, were divorced on November 27, 1957. Custody of the children, then one and two years of age, was awarded to the father. In 1958 Sharp married Juanita Burke (the appellant, Juanita Sharp), who thereafter assumed the normal duties of a parent toward the minor children. The evidence before the district court was that through the years Mrs. Sharp continued to accept these parental responsibilities, supervising the children's school and church attendance, caring for them during illnesses, making no distinction in any way between them and the three children born of her marriage to Mr. Sharp, and dedicating herself to their general well-being.
In June 1959 an order in the divorce action was entered granting the natural mother visitation rights with her children on alternate Sundays and on Christmas Eve and Thanksgiving Eve. The natural mother, who has since remarried, took no advantage of the visitation rights during all of 1963 and 1964. The evidence was that Mrs. Thurman did not acknowledge her children's birthdays or remember them at Christmas, either by sending gifts or cards, nor did she manifest any interest whatsoever in them during this two-year period. Immediately preceding New Year's 1965, however, Mrs. Thurman telephoned the Sharps and indicated she would like to see her children and bring them some presents. This she did on January 2, 1965, just six days prior to the filing of the petition for adoption.
In granting the adoption, the probate court found that the natural mother 'has wholly failed to assumed the duties of a parent, towards said minor children, for a period of more than two consecutive years, last past, and on account of the premises herein stated, the consent of the said natural mother to the adoption of the said children is not required.' The district court, in a trial de novo, heard only the petitioner's evidence before acting on respondent's 'demurrer.' A careful reading of the trial judge's comments discloses his ruling was based upon the grounds that K.S.A. 59-2102(3) requires that the two-year period referred to must immediately precede the filing of a petition for adoption, and because the natural mother visited and brought gifts to her children on January 2, 1965-within the two-year period-this requirement had not been met.
Although both the probate court and district court construed the statute to mean the two-year period next preceding the filing of the petition, this court has never had occasion to consider the point.
The appellant stepmother challenges the lower courts' construction, since the uncontradicted evidence established the appellee natural mother had failed or refused to assume the duties of a parent for the years 1963 and 1964, and argues that the statute, by its language, does not require that the two-year period be that period next preceding the initiation of adoption proceedings.
Generally speaking, adoption statutes are strictly construed in favor of maintaining the rights of natural parents in controversies involving termination of the parent-child relation, and especially is this true in those cases where it is claimed that by reason of a parent's failure to fulfill parental obligations as prescribed by statute, his consent to the adoption is not required. (2 Am.Jur.2d Adoption § 7.)
We have carefully reviewed the legislative history and purpose of our adoption statutes which were enacted in 1939. (Laws of 1939, ch. 180.) Although the consent statute (K.S.A. 59-2102) has twice been amended (Laws of 1951, ch. 341, § 1, and Laws of 1953, ch. 274, § 1), subsection (3) thereof has gone unchanged from the to be treated lightly. Under K.S.A. 59-2102 the legislative history to indicate the lawmakers intended that the two-year period be without reference to a focal point, such as the filing of a petition for adoption.
The ties of a natural parent are not to be treated lightly. Under K.S.A. 59-2101 the consent of natural parents to the adoption of a legitimate child is specifically required unless the case falls within one of the enumerated exceptions. The facts warranting an exception as prescribed by the statute must be clearly proven before a child can be adopted without the consent of the natural parent. Our procedure provides a means whereby the nonconsenting parent can take issue with and refute the evidence upon which a petitioner relies to dispense with the consent ordinarily required.
If the statute were construed to mean that any two-year period in which a parent failed or refused to assume parental duties...
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