In re Adoption of C.L., 100518 KSSC, 117, 723

Docket Nº:117, 723
Opinion Judge:Biles, J.
Party Name:In the Matter of the Adoption of C.L.
Attorney:Pantaleon Florez, Jr., of Topeka, argued the cause and was on the briefs for appellant natural father. Kevin W. Kenney, of Kevin W. Kenney, P.A., of Prairie Village, argued the cause and was on the briefs for appellees adoptive parents.
Judge Panel:Beier, J., not participating. Jeffrey E. Goering, District Judge, assigned.
Case Date:October 05, 2018
Court:Supreme Court of Kansas

In the Matter of the Adoption of C.L.

No. 117, 723

Supreme Court of Kansas

October 5, 2018

SYLLABUS

1. When a natural father assumes his parental responsibilities, the right to raise his child is entitled to constitutional protection.

2. Adoption statutes are strictly construed in favor of maintaining the natural parents' rights when consent to adoption would not be required if those rights are terminated under K.S.A. 2016 Supp. 59-2136(h)(1).

3. K.S.A. 2016 Supp. 59-2136(h)(1)(C) requires a determination that a father made no reasonable efforts to support or communicate with the child before his parental rights may be terminated under its provisions.

4. Clear and convincing evidence is an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt. It applies when particularly important individual interests or rights are at stake.

5. When an appellate court reviews a trial court's determination that is required to be based upon clear and convincing evidence, it considers whether, after review of all the evidence, viewed in the light most favorable to the proponent of the finding, it is convinced a rational fact-finder could have found the determination to be highly probable.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 23, 2018.

Appeal from Wyandotte District Court; Kathleen M. Lynch, judge.

Pantaleon Florez, Jr., of Topeka, argued the cause and was on the briefs for appellant natural father.

Kevin W. Kenney, of Kevin W. Kenney, P.A., of Prairie Village, argued the cause and was on the briefs for appellees adoptive parents.

OPINION

Biles, J.

When a natural father assumes his parental responsibilities, the right to raise his child is entitled to constitutional protection. In re Adoption of G.L.V., 286 Kan. 1034, 1057, 190 P.3d 245 (2008). Underlying this doctrine is the common sense understanding that the natural father must have had a real-world opportunity to take on his obligation under the circumstances presented. See In re Adoption of Baby Girl P., 291 Kan. 424, 433, 242 P.3d 1168 (2010) ("The preservation of a father's relationship with his child is the starting point of a termination proceeding, not the finish line that a father must labor to reach."). In this appeal from a district court's order terminating a natural father's parental rights, that understanding was lost in pursuit of another outcome.

We reverse the lower court rulings and remand to the district court for the purpose of conducting proceedings effectuating a change in custody consistent with this opinion. We do so fully aware that painful challenges and traumas lie ahead for those involved.

Factual and Procedural Background

On Tuesday, September 13, 2016, baby boy C.L. was born in Topeka. According to his Mother, she did not know she was pregnant until earlier that morning. While in the hospital, Mother put the newborn up for adoption through Kansas Children's Service League, a not-for-profit agency with an affiliated infant adoption program. Mother signed relinquishment papers early Thursday afternoon, September 15. On the same day, KCSL placed the infant with a custodial couple who took the infant to their home in the Kansas City area. The couple hoped to become the adoptive parents.

Also on September 15, Melinda Kline, a KCSL social work supervisor, began trying to contact the person Mother believed was the baby's biological father. She spoke with him by phone about 7:49 p.m. Kline told Father about C.L.'s birth and that he was believed to be the father. This news shocked him.

Kline said the baby was already "placed" with prospective adoptive parents and explained she was asking him to relinquish his parental rights. She said the baby's mother wanted a closed adoption, i.e., one in which the natural parents would not have contact with the child. She could not recall later whether she clarified what that meant. Father asked who the baby's mother was. Kline refused to answer over the phone, preferring instead to meet with Father to sign relinquishment papers. Father asked if he would be able to meet with the prospective adoptive parents or see the baby. Kline's written log indicates she responded, "[T]his is usually dependent on trust with the adoptive family."

According to Kline, Father was initially receptive to signing relinquishment papers, but he disputes that. She believed the two would meet the next day to sign the papers. Kline's log states she advised Father her agency would provide "a free legal consult if he requests." Father later testified that "[a]t no time" did he tell Kline he would surrender his rights.

The next day, which was Friday, September 16, Kline spoke to Father by phone at about 2:20 p.m. Father's mother joined the conversation. They told Kline that Father had an attorney, provided that attorney's contact information, and asked for a paternity test. Father's mother said if the baby was Father's, "they" wanted custody.

The dueling court proceedings

On the following Monday, September 19, at 1:14 p.m., the prospective adoptive parents filed a petition for adoption in Wyandotte County District Court. The petition also sought to terminate Father's parental rights because: "a. The identified biological father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the biological mother during the six months prior to the Child's birth;

"b. The identified biological father abandoned the biological mother after having knowledge of the pregnancy;

"c. The identified biological father has made no reasonable efforts to support or communicate with the Child after having knowledge of the birth of the Child;

"d. The identified biological father abandoned or neglected the Child after having knowledge of the Child's birth;

"e. The identified biological father is unfit; and

"f. Termination of the parental rights of the identified biological father is in the best interests of the Child."

These alleged grounds for terminating Father's parental rights were made without prior factual investigation. More disturbingly, the termination allegations were substantively false when filed because Father had only learned of both the pregnancy and the birth barely four days before the filing. Nevertheless, the prospective adoptive parents verified these contentions were true under oath and their attorney signed the petition.

The next day, and with no knowledge about the out-of-county adoption action, Father filed a petition to establish paternity in Shawnee County District Court. Father stated he was "willing and able to meet the financial and emotional needs of the minor child" and was "a fit and proper person to be awarded the care, custody and control of the minor child." Father did not know the child's present address but believed the baby was placed in KCSL's care and custody. Father was "advised that the child has been placed with third parties [whose] identity is unknown." Father asked the court to "enter an order for genetic testing to determine the paternity of the child, if appropriate, acknowledging Petitioner as the father of the minor child, establish child support for said minor child pursuant to Kansas law, award custody of the minor child to the Petitioner and designate the Petitioner as residential parent, establish a parenting time schedule for each party with the minor child, an Order for name change and amendment of the birth record and for such further relief as the court deems just and equitable." (Emphasis added.)

On October 5, Mother filed a motion to stay the Shawnee County case. This was filed through counsel who was representing Mother in the Wyandotte County adoption case. Mother's counsel was supplied by KCSL, but the record is unclear who paid for the legal effort to stay Father's paternity action. The motion asked that the Shawnee County case be suspended until the Wyandotte County adoption concluded because that litigation was filed first. It further asserted if Father's parental rights were terminated in the adoption case, the paternity case would be moot. Mother's motion argued that "any Order of custody, support, parenting time or paternity entered in this case will contravene the prior, and thus, superior jurisdiction held by the Court in Wyandotte County."

On October 25, the Wyandotte County court ordered a hearing on the adoption petition and scheduled it for November 29. It required Father to be notified by personal service. For reasons undeveloped in the record, Father was not served until 32 days later-Saturday, November 26, at a little after 5 p.m.-for the hearing that Tuesday. We note state law requires this notice not include a copy of the adoption petition, so the record is silent what Father knew going into the hearing. See K.S.A. 2016 Supp. 59-2133(d). The record also does not reflect that Father's attorney was informed of the November 29 hearing, even though he entered his appearance in the adoption proceedings on November 4.

At the November 29 hearing, Father appeared in person and by counsel. Father objected to the adoption. The court ordered Father to arrange and pay for genetic testing with the laboratory to schedule the baby's DNA sample. It also agreed with the prospective adoptive parents' request that "[Father] and his attorney have no access to the documents in the Court's case file other than a redacted copy of the Petition for Adoption."

On December 6, the Shawnee County District Court stayed Father's paternity case. The order noted the Wyandotte County court achieved jurisdiction first and had already ordered paternity testing, so further hearings would be duplicative of Father's requested relief in...

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