In re Adoption of Baby R.
| Citation | 293 P.3d 816 |
| Decision Date | 08 February 2013 |
| Docket Number | No. 108,175.,108,175. |
| Parties | In the Matter of the ADOPTION OF BABY R. |
| Court | Kansas Court of Appeals |
In the Matter of the ADOPTION OF BABY R.
No. 108,175.
Court of Appeals of Kansas.
Feb. 8, 2013.
Appeal from Shawnee District Court; Frank J. Yeoman, Jr., Judge.
Richard W. Benson, of the Law Office of Richard W. Benson, of Topeka, for appellant.
Austin K. Vincent, of Topeka, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
PER CURIAM.
Father of Baby R. appeals the district court's granting of an adoption to Mr. and Mrs. Jensen without his consent. He argues the adoption should be set aside due to (1) equitable estoppel, (2) an unconstitutional statute, (3) a defective petition, (4) lack of clear and convincing evidence of unfitness, (5) inconsistent findings regarding unfitness, (6) erroneously admitted evidence of unfitness, (7) erroneously excluded evidence regarding unfitness, (8) lack of notice, and (9) cumulative error. We affirm.
Baby R. was born to 17–year–old Mother on October 18, 2011. The next day, the Jensens filed a petition to adopt Baby R. Their petition stated that they would file either the father's consent to the adoption, or a petition to terminate his parental rights based on failure to support. Mother filed her consent to the adoption that same day. Mother also filed an affidavit stating that (1) Baby R.'s father was either Father or another young man; (2) she informed Father of her pregnancy “at least 7 months prior to” Baby R.'s birth; (3) she never suggested to Father that Baby R. would not be born; (4) no man supported her before or after Baby R.'s birth; and (5) Father never offered, gave, or attempted to give her any support, nor did she refuse his support, during the 6 months before Baby R.'s birth. The district court awarded temporary custody of Baby R. to the Jensens and ordered that the consenting parties be given notice of the adoption hearing.
On October 24, 2011, the Jensens filed a petition to terminate Father's parental rights. Their petition alleged that Father failed without reasonable cause to provide support for Mother after having knowledge of the pregnancy, and, consequently, his consent to the adoption was not required. The district court ordered that if Father's consent was not obtained, he was to be served personally or by certified mail, then by publication if those methods were not possible.
On November 23, 2011, 17–year–old Father, through his father B.W., answered the termination petition and moved to dismiss the adoption petition. His pleading claimed that (1) DNA testing had confirmed his paternity; (2) he supported Mother during the pregnancy “to the best of his ability” by “regularly provid[ing] food and comfort”; (3) he told Mother he wanted to keep, care for, and support Baby R. and would not consent to an adoption; (4) he subsequently received correspondence from the Jensens' attorney asking him to cease contact with Mother because it was causing her stress; and (5) it could not be proven by clear and convincing evidence that he failed to provide support for Mother during the 6 months prior to Baby R.'s birth.
Before trial, the Jensens amended their petition to allege unfitness as an additional ground for terminating Father's parental rights. Father also amended his answer to claim that (1) he worked part-time during the pregnancy earning minimum wage; (2) he “regularly offer[ed] to purchase maternity clothing and provide transportation for” Mother; (3) he asked but was denied the opportunity to participate in Mother's doctor's appointments; (4) Mother told him he was not Baby R.'s father after he expressed his opposition to an adoption; (5) he was repeatedly told that “nothing was financially needed” and he was unable to force Mother to accept financial support; and (6) the Jensens could not prove by clear and convincing evidence that he was an unfit parent.
After hearing all the evidence at trial, the district court made the following findings relevant to the issue of support:
• Mother told Father about the pregnancy in late February or early March 2011.
• Father told Mother he would support her.
• Father testified that Mother “told him she didn't need anything from him,” and “he never provided any financial support” to her.
• One of the reasons Mother put Baby R. up for adoption was that she had not received financial support from Father and she could not rely on him to help raise Baby R.
• Father was aware that Mother's “financial circumstances were particularly difficult during the time of her pregnancy”—she was unemployed and completely dependent on her mother, J.V., who lost her job in April 2011.
• The only material support Father provided to Mother during the pregnancy was one package of cookies and one or two 2–liter bottles of pop.
• Father had a job from May until July 2011 at which he reported earning between $400 and $500 per month, and he secured a new job in August at which he reported earning about $2,900 through December 2011.
• Father made no attempt to give Mother any of his earnings.
• Father chose to attend football practice instead of accepting Mother's invitation to her doctor's appointment in August 2011.
• Father had “few required expenses” before December 4, 2011, when he turned 18 years old and his father made him start paying rent.
• There was no evidence to support Father's claim that “he made numerous offers by text or phone to provide financial and other support to [Mother] but [she] declined all offers.”
• Father testified that “it would not have been too much for him to provide $100 a month to [Mother] once he was employed.”
The district court also made these findings relevant to the issue of equitable estoppel:
• Mother contacted the Jensens about the adoption in late April 2011, and they agreed to adopt her baby shortly thereafter.
• The Jensens believed that the father did not oppose adoption.
• Father had said that he might consider consenting to an open adoption.
• After Father informed him of the pregnancy in June 2011, B.W. arranged a meeting with Mother and J.V.
• B.W. told Mother and J.V. that Father “would take responsibility for the child” if it was his.
• The Jensens told Father that they were “willing to back away from the adoption ... if he was serious about having the child and would fulfill his responsibilities to [Mother].”
• Although the Jensens gave him information about paternity testing in early July 2011, Father waited until after Baby R. was born to confirm his paternity.
• Father never doubted his paternity.
• The Jensens resumed their pursuit of the adoption after hearing that Father did not attend Mother's doctor's appointment.
• The Jensens' attorney sent Father a letter in early September 2011 advising him of Mother's “intent to proceed with the adoption and that, because of the stress involved, any contact or communication with [her] should be arranged through the...
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