In re Adoption of JAB

• Decision Date: 04 February 2000
• Docket Number: No. 82,888.,82,888.
• Citation: 997 P.2d 98,26 Kan. App.2d 959
• Parties: In the Matter of the Adoption of J.A.B., Jr.
• Court: Kansas Court of Appeals

26 Kan. App.2d 959

997 P.2d 98

In the Matter of the Adoption of J.A.B., Jr.

No. 82,888.

Court of Appeals of Kansas.

Opinion filed February 4, 2000.

Stephen B. Angermayer of Fern & Angermayer, L.L.C., of Pittsburg, for the appellant.

Gilbert Ernest Gregory, of Fort Scott, for the appellee.

Before PIERRON, P.J., LEWIS, J., and JENNIFER L. JONES, District Judge, assigned.

PIERRON, J.:

K.L.G. is the natural mother of J.A.B., Jr., born February 23, 1988. J.A.B., Jr.'s natural father died prior to J.A.B., Jr.'s birth. Gilbert Gregory and K.L.G. are married and Gregory has been a stepfather to J.A.B., Jr. Linda and Alvin Metcalf are the maternal grandparents. Dr. Vernon A. Berkey is J.A.B., Jr.'s paternal grandfather.

On August 31, 1998, Linda Metcalf filed a petition for appointment of a guardian and conservator and for issuance of letters of emergency guardianship over J.A.B., Jr. She alleged that he was in need of a guardian and conservator due to abandonment and neglect by K.L.G., and the inability of K.L.G. to provide for the care and well-being of J.A.B., Jr., as a result of substance abuse and her physical and mental condition. The court granted an emergency guardianship to Metcalf and suspended K.L.G.'s right to exercise care, custody, and control of J.A.B., Jr., during the pendency of the proceeding. At the time, J.A.B., Jr., was residing with Gregory and he continued to reside there with the authority of Metcalf. On September 9, 1998, the State initiated a care and treatment proceeding against K.L.G. alleging she was addicted to cocaine. K.L.G. filed a written request for an order of referral for short term treatment which the court granted. K.L.G. began treatment at the Addiction Treatment Center on September 10, 1998. On September 28, 1998, upon the court's own motion, K.L.G. was ordered to continue her care and treatment at a halfway house.

On December 1, 1998, Berkey, together with three of J.A.B., Jr.'s paternal aunts, filed a child in need of care (CINC) petition. The petition alleged that J.A.B., Jr., had been abandoned; had been physically, mentally, or emotionally abused and neglected or sexually abused; and was without adequate parental care, control, or subsistence necessary for his physical, mental, and emotional health. The petition detailed K.L.G.'s numerous changes of residence, how she had misappropriated funds from her late husband's estate, and her drug addiction.

On December 8, 1998, Gregory filed a petition for stepparent adoption of J.A.B., Jr. Attached to the petition was a written "Consent of Mother to the Adoption of Minor Children" dated November 23, 1998. K.L.G's consent to the adoption was executed before a district judge on that date.

At a CINC proceeding on January 8, 1999, the petitioners filed a motion to find K.L.G. to be unfit to parent J.A.B., Jr., and to appoint a permanent guardian. Again, the motion detailed K.L.G.'s numerous changes of residence, how she misappropriated funds from her late husband's estate, her drug addiction, and how she left her children with Gregory for weeks at a time.

On January 8, 1999, the district court held a scheduling conference covering all of the related cases. The court requested that the parties submit briefs regarding their positions as to how each case should proceed and whether Berkey, as a grandparent, had standing to participate in the adoption procedure.

On February 4, 1999, the district court issued a letter order granting the stepparent adoption to Gregory. The court found all parties had agreed that Gregory was an appropriate person to adopt J.A.B., Jr., Gregory had physical custody at the time the CINC proceeding was filed, the status of adoptive parent would entitle Gregory to certain consideration by the court in the CINC case, and his presence in the marital home would affect how the court approached issues concerning the natural mother. The court concluded that the CINC proceeding did not take precedent over the adoption proceeding on the limited legal issue of whether a legal relationship should be created between the child and the prospective adoptive parent. The court also found that Berkey had standing in the adoption proceeding only on the issue of reasonable visitation rights. Gregory was added as a necessary party in the CINC case, and the guardian and conservatorship proceeding was ordered pending until resolution of the CINC case.

On February 16, 1999, Gregory filed a decree of adoption setting forth the court's February 4, 1999, letter order. The decree was signed only by Gregory's attorney. The order does not have the signatures of any other counsel and was not circulated to other counsel. The decree incorrectly states that Berkey appeared with counsel on February 16, 1999. On February 24, 1999, the court entered a nunc pro tunc order reflecting that J.A.B., Jr.'s name would remain unchanged after the adoption. This order was not circulated or approved by other counsel.

Berkey appeals the granting of the adoption.

First, Berkey argues the trial court erred in not requiring the CINC case to be heard prior to granting the stepparent adoption.

Generally, our standard of review in adoption cases is to determine whether there is substantial competent evidence to support the trial court's findings. In re Adoption of K.J.B., 265 Kan. 90, 95, 959 P.2d 853 (1998). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999).

Berkey argues the present case is similar to In re K.W., 24 Kan. App.2d 724, 726, 953 P.2d 229 (1998). There, the parents of a 2-month-old child took him to the hospital because he had been vomiting all day and had become limp and unresponsive. The father admitting to shaking the child in an attempt to arouse him. The examining doctors stated the child had sustained brain injuries consistent with injuries inflicted by shaken baby syndrome. The State filed CINC proceedings and the child was taken into protective custody and, later, into temporary custody by Kansas Department of Social and Rehabilitation Services (SRS). 24 Kan. App.2d at 724.

Criminal charges were filed against the father for causing the child's injuries. However, the charges were later dismissed for insufficient evidence. Although the State requested a CINC adjudication hearing for the child, the trial court never conducted a hearing. Five months after the infant had been taken into protective custody, the court ordered that he be returned to his parents. The court based its decision on the expert testimony at the father's preliminary hearing, the evidence that no new charges were pending, and the belief that the child was the responsibility of the parents. The child died approximately 1 year later.

The In re K.W. court addressed the single issue of whether the Kansas Code of the Care of Children (KCCC) demands an adjudication hearing by the trial court before returning a child to the natural parents when an interested party had filed a CINC petition. The clear purpose of the KCCC is to protect children who have been abused or neglected. K.S.A. 38-1521. The provisions of the KCCC are liberally construed to fulfill this purpose. K.S.A. 38-1501. The In re K.W. court concluded: "When an interested party has filed a child in need of care petition and there has been no stipulation resolving this matter, the trial court is required to conduct an adjudication hearing." 24 Kan. App.2d 724, Syl. ¶ The court stated that to hold otherwise would undermine the entire framework of the KCCC and would prevent the State from carrying out one of the main purposes of the KCCC—to protect children who had been abused or who could potentially be abused. 24 Kan. App.2d at 727.

Applying In re K.W. to the case at bar, Berkey argues the trial court failed to carry out the mandates of the KCCC. He contends there were ample facts before the court regarding the potential for abuse at the hands of K.L.G., yet the court allowed her husband to adopt J.A.B., Jr., without first adjudicating the CINC case which "in all likelihood would have wrested custody from K.L.G. and her husband."

Gregory argues In re K.W. is factually not applicable. He argues that custody of J.A.B., Jr., was never removed from K.L.G. in the CINC proceeding since the child was already living with Gregory, that the CINC case is still active and pending, and that the public policy of the KCCC to protect children was adequately fulfilled by appointing an emergency guardian and by assuring care and treatment of K.L.G. Gregory maintains that even if the adoption had not been granted prior to the CINC proceeding, it is very likely, if not certain, that the court would have awarded temporary custody to Gregory anyway due to the existing relationship and existing placement.

Gregory argues his suitability to be an adoptive father to J.A.B., Jr., has never been challenged at any time by any party and points out that Berkey even requested in the CINC case that Gregory be given temporary protective custody of J.A.B., Jr. Gregory agrees with the trial court that Berkey has sustained no harm in the granting of the adoption. He says the CINC case can continue on the issue of K.L.G.'s fitness, but the issue is probably moot.

Gregory notes there is no legal authority prohibiting the granting of the adoption prior to resolution of the CINC case. He states that granting the adoption would be conducive to a return to the same family unit which existed prior to the petition with K.L.G. having successfully completed treatment and recovery.

This case involves a stepparent adoption. It is not an agency adoption or an independent adoption. A stepparent adoption is the adoption of a minor child by the spouse of a parent with the consent of that parent. This is not a situation where a couple has divorced and later...