In re Adoption Baby Girl G.
| Decision Date | 10 July 2020 |
| Docket Number | No. 121,051,121,051 |
| Citation | 466 P.3d 1207 |
| Parties | In the MATTER OF the ADOPTION OF BABY GIRL G. |
| Court | Kansas Supreme Court |
Margie J. Phelps, of Topeka, and Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, were on the briefs for appellant natural father.
Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, was on the brief for appellees adoptive parents.
This is an appeal from the termination of a biological father's parental rights consequent to an adoption. The Court of Appeals affirmed the termination, and this court granted review, including review of an issue not raised in the courts below.
Baby Girl G. was born on September 19, 2018. On September 20, 2018, the natural mother signed off on a consent to adoption and relinquishment of parental rights. In the consent form, she averred that the appellant and another man were possible biological fathers.
On September 21, 2018, the petitioners (the adoptive parents) filed a petition in district court seeking to terminate the natural mother's maternal rights in G. and to adopt the girl. On the same day, the adoptive parents filed a separate petition seeking to terminate the parental rights of the two identified possible fathers.
Later that day, the district court entered an order granting the petitioners temporary custody of G. On October 11, 2018, the appellant filed a voluntary acknowledgment of paternity. In an accompanying letter, he stated his intent to contest the adoption, maintaining that he had a life-long interest in being a father and had provided the mother with financial and emotional support during the pregnancy until she severed contact with him.
An evidentiary hearing was conducted at the beginning of March 2019 pursuant to K.S.A. 2019 Supp. 59-2136. The biological mother and father testified at the hearing, along with other witnesses for both parties. At the conclusion of the hearing, the court announced that it found that the father had failed to provide meaningful support to the mother during the final six months of her pregnancy. See K.S.A. 2019 Supp. 59-2136(h)(1)(D). Additionally, the court stated that it had received sufficient evidence to find the father unfit, based on his drug use, psychological disorders, and refusal to participate in counseling. K.S.A. 2019 Supp. 59-2136(h)(1)(B). But, the court declined to base termination on that ground so as to protect the father's future prospects. On March 20, 2019, the court entered judgment terminating the father's parental rights.
The father filed a timely notice of appeal to the Kansas Court of Appeals, and the district court appointed counsel to represent him on appeal. The district court subsequently consolidated the two petitions for purposes of appeal.
The Court of Appeals affirmed the order of termination but reversed the award of attorney fees and remanded that issue to the district court for reconsideration. In re Adoption of Baby Girl G. , No. 121051, 2019 WL 6223121 (Kan. App. 2019) (unpublished opinion). The father filed a petition for review, in which he challenged the factual basis for the termination order and raised for the first time an attack on the constitutionality of K.S.A. 2019 Supp. 59-2136(h)(1)(D) on which the termination was based. This court granted review without limitation or reservation.
K.S.A. 2019 Supp. 59-2136(h)(1) governs termination of a father's rights in the course of an adoption proceeding. Subsection (h)(1)(B) allows a court to terminate paternal rights if "the father is unfit as a parent." Subsection (h)(1)(D) allows termination if "the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth." The district court considered arguments based on both sections but elected to rely only on the latter, holding that the father failed to provide the mother with adequate support during this period of her pregnancy. Before this court, he argues both that subsection (h)(1)(D) is unconstitutional and that the district court's finding of inadequate support was not grounded in substantial and competent evidence.
In the district court, the father introduced evidence and sought to prove that he had made such substantial contributions to the mother's support and well-being that he had not forfeited his claims to paternal rights over G. The district court ruled to the contrary, and the father appealed from that ruling to the Court of Appeals, where he advanced the same arguments, urging that court to hold the district court made incorrect factual findings that led to incorrect legal conclusions. The Court of Appeals disagreed, whereupon the father filed a petition for review advancing a constitutional theory that was novel for this case, in that it had not been raised before either lower court, and novel for this area of law, in that it has not been successfully argued in this court or, for the most part, in any other United States jurisdiction.
For reasons we set out below, we decline to address the constitutional issue because it was raised in neither the district court nor the Court of Appeals.
On December 9, 2019, after the Court of Appeals issued its opinion in this case, the father retained new counsel. This new counsel filed a petition for review on his behalf on December 23, 2019. The petition raised an entirely new theory for why the father should prevail: that the statute on which the district court and the Court of Appeals relied for terminating his paternal rights is unconstitutional. This argument was never presented to a court, neither in transcribed oral arguments nor in written pleadings, until the petition for review.
To be sure, the father's brief to the Court of Appeals pointed out that the right to parent one's child is a protected constitutional right. But, the brief acknowledged that the right to raise a child is tempered by the extent to which the parent has assumed parental responsibilities. The remainder of the brief argued that the father had provided sufficient support to satisfy the Kansas statutory scheme; it did not argue that the statutory scheme is unconstitutional.
The petition for review conceded that the constitutionality of K.S.A. 2019 Supp. 59-2136(h) had not been submitted previously for determination. The father asserted that this court should nevertheless consider his argument under exceptions to the requirements of preservation. We conclude, however, that addressing this issue on the merits would be contrary to Supreme Court rules and policies.
"As a general rule, matters not raised before the district court cannot be raised for the first time on appeal." Gannon v. State , 303 Kan. 682, 733, 368 P.3d 1024 (2016). In this case, not only did the father not present the issue to the Court of Appeals, he expressly conceded that his rights as a father were subject to limitation by the degree of support he provided to the mother, a position contrary to one he adopted in his petition for review.
In the present case, the constitutional issue was raised in neither the district court nor the Court of Appeals. An argument that was raised in neither the district court nor the Court of Appeals and is raised for the first time before the Supreme Court "fails on more than one level." State v. Dooley , 308 Kan. 641, 651, 423 P.3d 469 (2018). In such cases, including the present one, the party has already had two opportunities to raise an issue and failed to do so. The only apparent impediment was the choice of attorneys and their respective election of litigation and appellate strategies; the statute did not become more or less constitutional during the course of the litigation and appeal.
The lack of preservation presents a yet greater obstacle in this case because of the haphazard manner in which the issues have been proffered to this court. In his petition for review, the father set out essentially three grounds for the unconstitutionality of K.S.A. 2019 Supp. 59-2136. First, the simple fact of biological fatherhood creates a protected, substantive liberty interest in participating in the upbringing of a child, independent of the relationship between the father and the mother after conception. Second, fathers in chapter 38 child in need of care proceedings are afforded greater protection than fathers in adoption proceedings, in violation of constitutional equal protection rights. Third, depriving him of greater access to the child after the child's birth deprived him of substantive due process rights in acting as the child's father.
In his supplemental brief to this court, however, the biological father undermined the first argument by conceding that he had a duty to help the mother. He argued instead that K.S.A. 2019 Supp. 59-2136(h) is unconstitutionally vague and overbroad because it fails to set out the kind of support required of him and because it allows termination of his paternal rights without providing him the opportunity to connect with his daughter after her birth. It is unclear whether he hoped that this court would follow the signposts he set out in his petition for review or whether it would consider the newly framed arguments presented for the first time in his supplemental brief to this court. This haphazard and superficially argued group of issues and sub-issues highlights the importance of raising, defining, and advocating positions in the courts below.
Kansas Supreme Court rules insert the preservation rule into briefing requirements. Supreme Court Rule 6.02(a)(5) governs the contents of appellants' briefs:
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