Browning v. Tarwater

• Decision Date: 17 July 1974
• Docket Number: No. 47479,47479
• Citation: 215 Kan. 501,524 P.2d 1135
• Parties: Connie Lynn Lewis BROWNING, Appellant, v. Etta TARWATER, Appellee.
• Court: Kansas Supreme Court

Page 1135

524 P.2d 1135

215 Kan. 501

Connie Lynn Lewis BROWNING, Appellant, v. Etta TARWATER, Appellee.

No. 47479.

Supreme Court of Kansas.

July 17, 1974.

Syllabus by the Court

1. Under K.S.A. 38-129 if either the father or mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the district court upon a finding that such visitation rights would be in the best interests of the minor child.

2. 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 grandparents or others who have no permanent or legal right to custody.

3. When an adoption decree is entered granting an adoption pursuant to a petition filed in the probate court, K.S.A.1973 Supp. 59-2103 provides that the adopted child shall be entitled to the same rights of person and property as a natural child of the person thus adopting the child. The person so adopting such child shall be entitled to exercise all the rights of a natural parent and be subject to all the liabilities of that relation.

4. The adoption of a child creates a status-the domestic relation of parent and child. At the conclusion of the adoption proceeding, all the legal incidents of the natural relation of parent and child attach to the new status, and the child becomes entitled to the same rights of person and property as if it were the child by birth of the person adopting it.

5. Where an adoption statute, such as K.S.A.1973 Supp. 59-2103, gives the adopted child the status of a natural child and frees the natural parents of legal obligations toward it, a court in granting an adoption decree is without authority to include in the adoption decree a grant of visitation privileges to the natural parent or members of the natural parents' family.

6. A paternal grandmother, who has been given rights of visitation to the minor or child of a deceased parent pursuant to K.S.A. 38-129, is not an interested party under K.S.A. 59-2278 entitled to notice of an adoption proceeding pending in the probate court by the stepfather of such child. On facts more particularly related in the opinion, the paternal grandmother's consent for the adoption of such child is not required by K.S.A.1973 Supp. 59-2102.

7. Adoption proceedings properly conducted and accomplished under the probate code override the provisions of K.S.A. 38-129 et seq.

Hart Workman, of Topeka, argued the cause, and Sam A. Crow, of Crow and Skoog, Topeka, was on the brief for appellant.

Robert L. Roberts, of Gehrt, Roberts & Rieger, Topeka, argued the cause and was on the brief for appellee.

SCHROEDER, Justice:

This is an appeal by the natural mother of a child from an order denying a motion to terminate the visitation rights granted to a paternal grandmother of the child under the provisions of K.S.A. 38-129 et seq. (effective, July 1, 1971), after the adoption of the grandchild by the second husband of the child's mother.

The primary question presented concerns the construction of K.S.A. 38-129 and K.S.A. 59-2278.

On the 21st day of July, 1962, the appellant, Connie Lynn Lewis Browning, was married to Jack H. Lewis. On March 5, 1964, a daughter, Lori Lynn, was born to the couple. On April 19, 1964, Jack H. Lewis, the father of Lori Lynn, died.

Connie Lynn Lewis was married to her present husband, Robert Browning, on the 23rd day of November, 1966. On October 8, 1971, Etta Tarwater, the mother of Jack H. Lewis, deceased, filed a petition in the District Court of Shawnee County, Kansas, requesting visitation rights with Lori Lynn Lewis pursuant to the provisions of K.S.A. 38-129 et seq. On May 1, 1972, by order of the district court visitation rights were granted to Etta Tarwater the paternal grandmother. Thereafter on the 29th of August, 1972, the order granting visitation rights to the grandmother, Etta Tarwater, was amended to give a specific time each week that the rights of visitation could be made. The amended order gave the grandmother the right to take Lori Lynn to her home upon the days of visitation.

On March 6, 1973, Robert Browning, adopted Lori Lynn Lewis at which time her name was changed to Lori Lynn Browning. No notice of this adoption was given to Etta Tarwater until after the adoption had been completed.

On April 5, 1973, a motion was filed in the District Court of Shawnee County, Kansas, for an order terminating the rights of visitation granted on May 1, 1972. This motion was denied after a hearing by the trial court on the 2nd day of July, 1973.

The trial court in its letter announcing the decision, which was incorporated in the journal entry, stated:

'. . . Our statute, K.S.A.1971 Supp. 31-129 et seq. (38-129) provides for the granting of visitation allowed the plaintiff in this case by the Court and the plaintiff acquired that right of visitation, certainly a valuable right. The question then is very simple. Can such a valuable right be taken from the plaintiff without due process of law. There is no evidence before the Court that there was even a pretense of affording the plaintiff the minimum requirements of due process when the adoption proceeding was had which proceeding the plaintiff contends deprives the plaintiff of a right of visitation as a matter of law. Such a conclusion does violence to basic concepts of justice and therefore is clearly not the law.

'Neither does the Court feel that, based upon the evidence, the best interests of the child require a modification or termination of the order allowing the plaintiff visitation.'

The journal entry recited findings of fact consistent with the foregoing and the court overruled the motion to terminate rights of visitation.

The appellant contends under the provision of K.S.A. 59-2103 she is entitled to all the rights of a natural parent and therefore has full rights to the custody of the adopted child.

Provision is made for adoption proceedings under the probate code. K.S.A. 59-2278 pertains to the procedure after the adoption petition is filed and provides in part:

'The written consents required shall be filed with the petition. Upon the filing of the petition the court shall fix the time and place for the hearing thereon, which shall not be less than thirty (30) days nor more than sixty (60) days from the filing of the petition, which time may be extended by the court for cause. Notice shall be given to all interested parties, including, except when the petitioner is a stepparent, the state department of social welfare. . . .' (Emphasis added.)

In 1971 the Kansas Legislature passed the following legislation relating to the visitation rights of grandparents of unmarried minor grandchildren. This legislation is cited as K.S.A. 38-129, 38-130 and 38-131 and provides:

38-129. 'If either the father or mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the district court upon a finding that such visitation rights would be in the best interest of the minor child.'

38-130. 'An action for reasonable visitation rights of grandparents as provided by this act shall be brought in the county in which the child resides with the surviving spouse, guardian or other person having lawful custody.'

38-131. 'Costs and attorneys' fees may be awarded to either party as justice and equity may require.'

Etta Tarwater, the appellee, contends the failure of Mr. Browning to give notice of the adoption proceedings to her was in direct violation of K.S.A. 59-2278. The question is whether Etta Tarwater, the grandmother, was an interested party within the meaning of the statute and entitled to notice of the adoption proceedings.

For the reasons hereafter assigned we do not think Etta Tarwater, the grandmother, was an interested party in the adoption proceedings and entitled to notice of the pending adoption under the foregoing statute.

Of paramount consideration in construing 38-129, supra, is the significance of an adoption under Kansas law. The rights of grandparents, if any, have been considered and discussed in various cases.

Before the turn of the century Justice Brewer speaking for the court in the case of In re Bullen, Petitioner, etc., 28 Kan. 781, said:

'. . . Clearly the grandmother has no right to the child; there is on her part no legal obligation to support it, and therefore no legal right to its custody. . . .' (p. 785.)

Numerous cases uphold the proposition that 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 grandparents or others who have no permanent or legal right to custody. (Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658; In re Vallimont, 182 Kan. 334, 321 P.2d 190; and cases cited in these decisions.)

The recent case of In re Johnson, 210 Kan. 828, 504 P.2d 217, held that under the provisions of applicable statutes, K.S.A.1971 Supp. 59-3014 and K.S.A.1971 Supp. 59-3002(3) and decisions of this court, a grandparent is not a natural guardian and has no legal right to a child. However, it was said a grandparent has capacity to maintain an action with respect to the disposition of the custody of a child, where the natural mother was dead and the father's parental rights had been severed by the juvenile court.

K.S.A.1973 Supp. 59-2103 (effective July 1, 1967) specifies the effect that adoption has upon the rights of the natural parents and upon the rights of the adoptive parents. It provides:

'Any child adopted as herein provided shall assume the surname of the person by whom the child is adopted, and, when requested by the person or persons...