In re Adoption of S.J.R.

• Decision Date: 22 December 2006
• Docket Number: No. 96,388.,96,388.
• Citation: 149 P.3d 12
• Parties: In the Matter of the ADOPTION OF S.J.R. and E.V.R., Minor Children.
• Court: Kansas Court of Appeals

149 P.3d 12

In the Matter of the ADOPTION OF S.J.R. and E.V.R., Minor Children.

No. 96,388.

Court of Appeals of Kansas.

December 22, 2006.

COPYRIGHT MATERIAL OMITTED

Kevin G. Campbell, of Lakin, for appellant natural father.

Jon R. Craig, of Craig & Gaede, P.A., of Garden City, for appellee stepfather.

Before MALONE, P.J., GREEN and BUSER, JJ.

GREEN, J.

N.R., the natural father of S.R. and E.R., minor children, appeals from a judgment of the trial court granting the stepfather the right to adopt the children. The trial court determined that the father's consent to the adoption was unnecessary because he had failed or refused to assume the duties of a parent during the 2 years before the filing of the adoption petition under K.S.A. 59-2136(d). Moreover, the trial court determined that the father was unfit, that the father's parental rights should be severed and terminated, and that the stepparent adoption should be granted under K.S.A. 59-2136(h). On appeal, the father maintains that K.S.A. 59-2136(d), not K.S.A. 59-2136(h), applies to and is controlling over a stepparent adoption. We agree. Next, the father contends that the trial court improperly relied on evidence of the father's unfitness and the best interests of the children in determining that the father's consent was not required. Because these factors were not controlling and were only two of the relevant factors considered by the trial court in deciding if the father had failed to perform the duties of a parent under K.S.A. 59-2136(d), we disagree. Finally, the father asserts that the trial court wrongly determined that the father's consent was not required under K.S.A. 59-2136(d). We disagree. Accordingly, we affirm.

N.R. and K.W., the natural mother of S.R. and E.R., were married in September 1999. In September 2000, K.W. and the children moved to a separate residence. N.R. and K.W. were divorced in November 2001. In the divorce decree, K.W. was granted sole custody of the children based upon N.R.'s "incarceration for producing and selling drugs, his tendency towards violence, and his failure to assume his parental obligations, including financial support." N.R. was allowed supervised visits with the children, with such visits worked out between the parties. Under the divorce decree, N.R. was ordered to pay child support of $187 per month to K.W. beginning November 2001.

N.R. was incarcerated in county jails from late 2000 until 2002. The children last saw N.R. in 2001 when they visited him in the county jail. In 2002, N.R. was sentenced to prison for convictions of aggravated burglary, robbery, and possession of drug paraphernalia. N.R.'s extensive criminal history included four convictions for battery and drug-related convictions. N.R. is scheduled to be released from prison in July 2010.

K.W. married J.W. in February 2003, and she and the children have lived with J.W. since that time. In August 2005, J.W. petitioned for adoption of S.R. and E.R. Attached to the petition for adoption was K.W.'s written consent for J.W. to adopt the children. J.W. alleged that N.R.'s consent to the adoption was unnecessary because N.R. had failed or refused to assume the duties of a parent for 2 consecutive years preceding the filing of the adoption petition under K.S.A. 59-2136(d).

N.R. contested the adoption, arguing that he had provided financial support for his children before his incarceration and that he had continued to attempt to maintain a loving, paternal relationship with his children and to provide emotional stability for them. Counsel was appointed for N.R., and an evidentiary hearing was conducted before a district magistrate judge.

Before the evidentiary hearing, J.W. moved to amend the adoption petition to add an allegation that N.R. was unfit and that his parental rights should be terminated under K.S.A. 59-2136(h). N.R. objected to the amendment of the adoption petition. The trial court deferred ruling on N.R.'s objection and allowed J.W. to present evidence concerning his allegations under K.S.A. 59-2136(h).

When the evidentiary hearing occurred in this case, S.R. was 7 years old and E.R. was 5 years old. According to K.W., S.R. remembered N.R. but E.R. did not remember him. K.W. testified that S.R. remembered an incident where N.R. came to their house after the parents had separated. N.R. kicked in the front door of K.W.'s home, and the door frame fell inside the house close to where S.R. was standing. S.R. saw N.R. push K.W. and rip an answering machine out of the wall. K.W. reported this incident to the police, and criminal charges were filed.

K.W. testified that when she lived with N.R., he was addicted to methamphetamine and marijuana and would leave for several days at a time. K.W. testified that N.R. brought methamphetamine home with him a few times and would smoke marijuana in the home. K.W. testified about an incident when S.R. was less than 2 years old and she found him on the bed holding a bag of methamphetamine. According to K.W., N.R. was mentally, emotionally, and physically abusive towards her.

K.W. acknowledged that N.R. had sent birthday and Christmas cards to S.R. and E.R. while he was incarcerated. K.W. testified that the first cards sent by N.R. to S.R. had the notation: "Make sure and ask your mom why I'm not there with you. It's her fault that I'm in jail." In another card, N.R. referred to K.W. with an epithet. K.W. testified that those cards were sent outside of the 2 years before the adoption petition had been filed. Seven cards were admitted into evidence at the hearing. Out of these seven cards, five were sent in the 2-year period before the filing of the adoption petition. K.W. testified that those were all of the cards received from N.R. in the 2 years before the filing of the adoption petition. K.W. testified that S.R. had also received a birthday card from N.R. in the month before the hearing.

K.W. testified that she moved from Garden City to Deerfield around February 2003. She did not inform N.R. or the district court of her new address. Nevertheless, K.W. testified that the children still received N.R.'s birthday and Christmas cards after the move. According to N.R., however, cards that he had sent to the children had been returned to him. At the hearing, N.R. introduced into evidence an envelope postmarked December 2002 that had been returned to him. N.R. later obtained K.W.'s new address and sent cards to the Deerfield address beginning in July 2004.

N.R. also testified that he had applied each year through the Salvation Army for Christmas gifts to be sent to the children. N.R. paid nothing for the gifts. According to K.W., the children had received Christmas presents from the Salvation Army in 2002 and 2004 but not in 2003.

K.W. testified that she had never received any child support from N.R. At the time of the hearing, N.R. had a job in which he earned 60 cents a day. N.R. earned just over $100 from January 2005 through November 7, 2005. N.R. admitted that he had never sent any child support to K.W. N.R. acknowledged that he could afford to send $4 to $5 a month but chose not to do so.

After the hearing, the magistrate judge filed a written memorandum decision in which he determined that K.S.A. 59-2136(d) was the controlling section in a stepparent adoption and that he would not consider evidence concerning unfitness under K.S.A. 59-2136(h). Based upon the evidence presented under K.S.A. 59-2136(d), the magistrate judge concluded that J.W. had failed to meet his burden to show by clear and convincing evidence that N.R. had failed to exercise his parental rights and duties in the 2 years immediately preceding the filing of the adoption petition.

J.W. and K.W. appealed the magistrate judge's decision to the district court. The parties submitted the case to the district court based upon the record from the evidentiary hearing. The district court determined that K.S.A. 59-2136(d) was not the controlling section in a stepparent adoption and that J.W. could properly amend his petition to include allegations under K.S.A. 59-2136(h). After reviewing the evidence presented at the hearing before the magistrate judge, the district court concluded that N.R. was unfit and ordered that his parental rights be terminated and that J.W. be allowed to adopt S.R. and E.R. The district court further concluded that N.R. had failed to provide comfort, support, or care for the children for at least 2 consecutive years before the adoption and that his consent was not required under either K.S.A. 59-2136(d) or K.S.A. 59-2136(h).

Did the legislature intend K.S.A. 59-2136(d) to be the controlling section in a stepparent adoption case?

First, N.R. maintains that K.S.A. 59-2136(d), not K.S.A. 59-2136(h), applies to and is controlling over a stepparent adoption.

N.R.'s argument requires interpretation of K.S.A. 59-2136. The interpretation of a statute presents a question of law over which an appellate court has unlimited review. An appellate court is not bound by the trial court's interpretation of the statute. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). Moreover, when interpreting statutes, this court bears in mind the following rules of construction:

"The fundamental rule of statutory construction is to ascertain the legislature's intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature's intent as expressed rather than determining what the law should or should not be. [Citation omitted.]" State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

K.S.A. 59-2136(d) states:

"In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father unde...