Aslin v. Seamon, 49128
| Decision Date | 05 May 1978 |
| Docket Number | No. 49128,49128 |
| Parties | Clara E. ASLIN, Appellant, v. David E. SEAMON and Marjorie P. Seamon, Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Under the peculiar circumstances of this case, it was error for the trial court to hold that appellant failed to assume the duties of a parent for two years. The undisputed evidence is that appellant tried to assume those duties but was prevented from doing so by the parties seeking to gain by her alleged failure.
2. The father of illegitimate children cannot give a valid consent to adoption of his children until after he is adjudicated the natural father in proper judicial proceedings to establish his parentage.
Henry W. Green, Jr., Leavenworth, for appellant.
Patrick J. Reardon, Leavenworth, for appellees.
Before PARKS, P. J., and ABBOTT and MEYER, JJ.
This is an appeal in an adoption proceeding which was instituted in the probate court of Leavenworth County, Kansas, on December 27, 1976, by the appellees, David and Marjorie Seamon, husband and wife. Appellees allege that the natural mother's (Clara Foster Aslin, appellant) consent was unnecessary because of her failure and refusal to assume the duties of a parent for two consecutive years next preceding the filing of this adoption petition, pursuant to K.S.A. 59-2102(3).
The trial court found that appellant placed the two minor children, Linda and Tina Foster, with appellees in November, 1973. Marjorie Seamon testified before the district court that she had cared for the children for about a month in late 1973, but had then returned them to the natural parents. Mrs. Seamon testified that the children have lived with her continuously since January, 1974. Testimony of the other witnesses began with events occurring on September 18, 1974. Therefore, appellees' continuous care of the minor children began sometime in January, 1974.
Appellant lived with William L. Thompson, the alleged father of the children, from 1972 until January, 1974. At that time, after a violent quarrel with appellant, Thompson took the children to the home of his sister, the appellee. The children remained with appellees until September 18, 1974. On that date, appellant apparently signed a hand-written note indicating that appellees could care for the children. Appellees thereupon moved from Leavenworth, Kansas, to Missouri, and subsequently back to Leavenworth. Appellant claims she lost contact with appellees during that time.
On September 24, 1975, appellant married Darwin Aslin. The trial court found that on November 12, 1975, appellant and her husband contacted the Leavenworth county attorney's office regarding the recovery of her two children. The court also found that appellant asked appellees to return the children to her on November 12, 1975, and again on December 25, 1976; appellees refused. On December 27, 1976, appellees filed a petition for adoption of Tina and Linda Foster. Although the two children were born out of wedlock, and William Thompson had never been legally determined to be their father, he signed a consent to the adoption. Appellees alleged that appellant had failed to assume her parental duties for two years prior to the filing of the adoption petition, and that pursuant to K.S.A. 59-2102(3), the natural mother's consent to the adoption was unnecessary.
The trial court found that William Thompson was the natural father and had consented to the adoption; that the natural mother had failed to assume her parental duties for two years previous; and appellees were granted their petition for adoption of the Foster children. The trial court stated that parental obligation requires more than appellant's sporadic attempts to show concern, affection, and interest toward the children.
K.S.A. 59-2102 reads in pertinent part:
The trial court based its decision on K.S.A. 59-2102(3) and the applicable case law. In In re Herbst, 217 Kan. 164, 535 P.2d 437, the natural mother had visited her child three times and had given the child one present during the relevant two-year period. The Kansas Supreme Court stated that three visits were not sufficient to evidence assumption of parental duties. In In re Sharp, 197 Kan. 502, 419 P.2d 812, the court held that the natural mother's visit to her child six days before the filing of the adoption petition was insufficient to necessitate her consent to the adoption.
We think that the instant case is distinguishable from Herbst and Sharp, supra. Although appellant Aslin's contacts with her children were few, she did not approach appellees for the purpose of visiting her children; she went to recover her children with the idea that she would resume full parental duties from that date on.
We find that the trial court erred in ruling that the mother failed to assume duties of a parent for two years. The undisputed facts disclose that the mother was prevented from exercising those duties.
While we feel that the foregoing error of the trial court is sufficient in itself to require reversal of its decision, it can also be said that equitable considerations would favor the appellant as hereinafter set out.
In deciding custody as between natural parents, the weight of Kansas authority is that the best interests and welfare of the child are paramount. When the dispute is between a parent and a stranger, the parent has rights superior to all others absent a finding of unfitness. In Gardner v. Gardner, 192 Kan. 529, 389 P.2d 746, it was stated:
"Where the contest for child custody is between a parent and a third party, a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against the third party or others who have no permanent or legal right to custody. . . ." (p. 533, 389 P.2d p. 749)
Clara Aslin had never been found to be unfit, was willing and able to care for her children, and was the only person who could claim legal custody. If she had filed a petition for a writ of habeas corpus on December 25, 1976, the court would have been obligated to return the children to her. In In re Rhea, 207 Kan. 610, 485 P.2d 1382, the natural mother had voluntarily "given" her baby to her sister for the sister to raise as her own child. Nearly two years later (minus one week), the natural mother filed a petition for habeas corpus to regain custody. The trial court awarded custody to her sister, but the Kansas Supreme Court reversed, stating, "Our cases are legion that a minor child cannot be the subject of a valid gift and a parent cannot merely by giving away a child be deprived of the right to its custody." (Rhea, supra, [2 Kan.App.2d 268] at 612, 485 P.2d at 1384.) The Kansas court said that despite the trial court's good faith in attempting to determine the best interests of the child, the decision of the trial court could not be upheld upon any ground, as there had not been a finding of unfitness. The natural mother's right to her child was superior to that of any other person.
A similar situation existed in In re Eden, 216 Kan. 784, 533 P.2d 1222....
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Aslin v. Seamon
...brief for appellees. SCHROEDER, Chief Justice: This is a review of the judgment of the Court of Appeals entered in Aslin v. Seamon, 2 Kan.App.2d 265, 578 P.2d 277 (1978). The facts of this case are fully stated in the Court of Appeals opinion written by the Honorable Marvin W. Meyer. The Co......