In re Adoption of BMW, No. 82,591.

• Decision Date: 17 March 2000
• Docket Number: No. 82,591.
• Citation: 2 P.3d 159,268 Kan. 871
• Parties: IN THE MATTER OF THE ADOPTION OF B.M.W.
• Court: Kansas Supreme Court

268 Kan. 871

2 P.3d 159

IN THE MATTER OF THE ADOPTION OF B.M.W.

No. 82,591.

Supreme Court of Kansas.

Opinion filed March 17, 2000.

Charles F. Harris, of Kaplan, McMillan and Harris, of Wichita, argued the cause and was on the brief for appellant.

Douglas S. Wright, of Topeka, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Stepfather petitioned for adoption of minor stepchild. The district court found that even though the father had failed to provide affection and care for the child and had paid only a portion of the court-ordered child support after a threat of contempt, the consent of the child's father was still required for a stepparent adoption, and denied the stepfather's petition for adoption. The stepfather appealed, claiming a father need not fail both the financial and the affection, care, and interest aspects of parenting under K.S.A. 59-2136(d) for the court to grant an adoption petition without the consent of the parent. The stepfather also asserted that child support payments made in response to a contempt order do not constitute a voluntary assumption of parental duties under K.S.A. 59-2136(d). The case was transferred to this court pursuant to K.S.A. 1999 Supp. 20-3016(a).

The minor child, B.M.W., was born on November 11, 1989. B.M.W.'s parents were divorced in Topeka, Kansas, on October 17, 1990. Pursuant to the divorce decree, the parents received joint legal custody of B.M.W. The mother was awarded primary physical custody of the child and the father liberal and reasonable visitation. The father was ordered to pay $95 per month child support commencing November 15, 1990. Since the divorce, the mother has maintained contact with the father, advising him of address changes and permitting visitation when he or his family requested.

On May 28, 1993, the mother married the petitioner. Throughout the 2 years preceding the filing of the stepparent's petition for adoption, the father was a self-employed carpet layer, averaging $1,200 per month. On February 17, 1994, the father was summoned to court for failure to pay child support as ordered in the divorce decree. The judge observed there was an arrearage of $3,505 in child support payments and found the father in contempt for willfully and without good cause failing to pay the child support. The district judge sentenced the father to 10 days in jail. The father was ordered to make a child support payment of $75 by March 15, 1994, a payment of $75 by April 15, 1994, and payments of $150 per month by the 15th of each month for the accruing child support obligation and the arrearage. The judge suspended imposition of the confinement portion of the sentence and set a series of dates for the father to appear in court to demonstrate compliance with the order of child support.

The father failed to make the first two support payments ordered by the court. In May 1994, the father made three payments totaling $225, resulting in an arrearage of $50 for that period. This pattern of sporadic payments continued until June 5, 1998, the date the stepfather's petition for adoption was filed. The district court's calculation of the arrearage of child support ordered from March 15, 1994, to the date of the trial amounted to $2,163.01.

After hearing the evidence, the court determined that during the 2 years preceding the filing of the stepfather's petition for adoption, the father's few contacts with B.M.W. were incidental, and found that under these circumstances, the father had failed to provide the love and affection required of a parent under K.S.A. 59-2136(d). The district court then determined the father had paid 86 percent of the child support obligation accruing in the 2 years prior to the filing of the petition. The court found that the consent of the child's natural father was required for a stepparent adoption because the father had paid a substantial portion of the support pursuant to the contempt order. The petition for adoption was denied. The stepfather appealed.

The duties of a parent set out in K.S.A. 59-2136(d) include not only the duty of financial support, but also the natural and moral duty of a parent to show affection, care, and interest toward his or her child. See In re Adoption of K.J.B., 265 Kan. 90, Syl. ¶ 3, 959 P.2d 853 (1998). The stepfather argues that under K.S.A. 59-2136(d), the father's parental rights may be severed if he fails to provide either financial support or care and affection for the child. The stepfather asserts that because the district court found that the child's natural father failed to provide care and affection for the child, the district court erred in denying the petition for adoption. The questions require the interpretation of a statute. Interpretation of a statute is a question of law. This court is not bound by the district court's interpretation of a statute. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998); Smith v. Printup, 262 Kan. 587, 604, 938 P.2d 1261 (1997).

K.S.A. 59-2136(d) provides that in a stepparent adoption, if a mother consents to the adoption of a child who has a presumed or known father, the consent of the father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for 2 consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father's consent is required, the court may disregard incidental visitations, contacts, communications or contributions. The statute further provides:

"In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child's birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent."

In re Adoption of K.J.B.

In re Adoption of K.J.B., 265 Kan. 90, is the latest case in which this court has discussed the failure or refusal of a parent to assume the duties of a parent in the context of a stepparent adoption case. In K.J.B., the father of three minor children appealed the district court's finding that the father had failed to assume the duties of a parent during the 2 years preceding the filing of the petition, after the court granted the stepfather's petition for adoption. The Court of Appeals affirmed the district court. The father's petition for review was granted. The father claimed that social security payments the minor children received through his disability benefits qualified as credits against his liability for child support, and if the payments qualified as support, the district court erred in determining he had "failed or refused to assume the duties of a parent" under K.S.A. 59-2136(d).

After reviewing our prior cases, the K.J.B court observed that adoption statutes are to be strictly construed in favor of maintaining the right of a natural parent in a K.S.A. 59-2136(d) case and concluded that K.S.A. 59-2136(d) requires a father to fail both the financial and the affection, care, and interest aspects of parenting before a court may grant a stepparent adoption petition without the father's consent. The K.J.B. court then pointed out that unlike the termination of parental rights under K.S.A. 38-1581 et seq., neither the fitness of the natural father nor the best interests of the child are controlling factors in stepparent adoptions. It then observed that 59-2136(d) provides that the father may rebut the presumption that he failed to assume the financial aspect of parental duties by showing that he provided a substantial portion of the court-ordered child support.

Following Judge Lewis' concurring opinion in In re Adoption of C.R.D., 21 Kan. App.2d 94, 101, 897 P.2d 181 (1995), that addressed the duties of a parent by comparison to a "ledger," the K.J.B. majority stated that the love and affection aspects of parenting and the financial aspects of parenting occupy separate sides of the ledger. The majority concluded that there must be a failure on both sides of the ledger to judicially sever parental rights under K.S.A. 59-2136(d). 265 Kan. at 101-02. The K.J.B. court found that although the father had failed to provide love and affection, the father had avoided the statutory presumption of failure to assume parental duties by obtaining social security benefits for the children under his disability policy. 265 Kan. at 98-99.

Justice Abbott, joined by Chief Justice McFarland, dissented, stating that the legislature intended that the courts look at the entire picture in determining whether a parent has performed parental duties during the 2 years next preceding the filing of a petition for adoption pursuant to K.S.A. 59-2136 and that they would adopt the reasoning of the Court of Appeals majority opinion.

In the K.J.B. dissent, Justice Abbott pointed out that this court has consistently held that in determining whether a father has failed to assume the duties of a parent, "`all the surrounding circumstances must be considered.' In re Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987)." 265 Kan. at 102. Justice Abbott observed that minor and insignificant contacts between parent and child do not "`demonstrate true parental interest, care and concern.' In re Adoption of McMullen, 236 Kan. 348, 352, 691 P.2d 17 (1984)." 265 Kan. at 102. The dissent further noted that the trial court found that the father's mental health did not significantly impair his ability to assume his parental duties. The trial judge found there were no meaningful or significant contacts between the father and any of...