In re Adoption T.M.M.H.

Decision Date11 May 2018
Docket NumberNo. 115,309,115,309
Citation307 Kan. 902,416 P.3d 999
Parties In the MATTER OF the ADOPTION OF T.M.M.H.
CourtKansas Supreme Court

Joseph W. Booth, of Lenexa, argued the cause and was on the briefs for appellant legal custodian-grandmother.

Suzanne Valdez, of Smith Legal, L.L.C., of Lawrence, argued the cause and was on the briefs for appellee stepfather.

Linus L. Baker, of Stilwell, was on the brief for amicus curiae National Association for Grandparenting.

Lindsee A. Acton and Warren H. Scherich III, of Scherich Family Law, PC, of Shawnee were on the brief for amicus curiae National Association of Social Workers and the Kansas Chapter of the National Association of Social Workers.

The opinion of the court was delivered by Per Curiam:

In this appeal, a paternal grandmother (Grandmother) appeals a district court's determination that she was not an interested party in a stepparent adoption proceeding relating to her grandson, T.M.M.H. She acknowledges precedent that holds a grandparent is not typically an interested party who has standing in stepparent adoption cases. Nevertheless, she asserts her circumstances distinguish her from other grandparents and give rise to a number of legal theories that serve as a basis for granting her interested party status and recognizing her standing to challenge the stepparent adoption. These theories depend on or arise from (1) court orders in a separate grandparent visitation case that is not the subject of this appeal, (2) agreements between the Grandmother and T.M.M.H.'s biological mother (Mother), and (3) the relationship that developed between Grandmother and T.M.M.H. as a result of the custodial arrangements agreed to by Mother and Grandmother or ordered by the court in the separate case.

We reject these arguments on procedural grounds and conclude Grandmother has failed to meet her burden of establishing her standing.

FACTS AND PROCEDURAL BACKGROUND

T.M.M.H., who was born on November 5, 2006, was a few months old when his father died in 2007. When T.M.M.H. was young, Mother and Grandmother agreed he would live for a period of time with Grandmother. We know little about this agreement. Whatever the initial arrangement may have been between Mother and Grandmother, at some point in 2008, Grandmother filed a petition in district court for grandparent visitation.

Several years later, on August 6, 2015, this stepparent adoption case was filed to formally endow Mother's husband (Stepfather) with parental rights to T.M.M.H. The visitation case, which continues to be litigated, and the adoption case remained as separate proceedings in the Johnson County District Court. The two cases were not consolidated, and they were assigned to different judges.

Since T.M.M.H.'s birth, Mother and Grandmother have apparently reached several agreements. Some appear—or at least the initial agreement appears—to have been reached outside of any court process and others as part of the visitation case. In the parties' arguments, the agreements are referred to by different names, including "private parenting contract" and "parenting plan."

In February 2015, the court handling the grandparent visitation case held a three-day trial. It is unclear what prompted the hearing or what evidence was presented. On April 13, 2015, the district court issued a journal entry and order, which is included in the record of this case. The order "granted joint legal custody." It also required "the minor child be reintegrated into [Mother's] life and family." The court retained the authority to "make decisions [related] to joint legal custody, but only when the parties are unable to do so." The issue was set for rehearing on June 25, 2015. It is unknown if that rehearing occurred and, if so, its result.

About six weeks later, Stepfather filed a Petition for Adoption in Johnson County District Court. Mother consented. The court appointed a Guardian ad Litem, set the petition for hearing, and required notice "be provided to all interested parties hereto, including but not limited to [Grandmother]." The court adopted the language of Stepfather's proposed order without independently analyzing whether Grandmother was an interested party entitled to notice at this point in the adoption proceeding.

Grandmother responded to the notice by, among other things, arguing the stepparent adoption petition collaterally attacked the orders in the visitation case and impeded her rights. She later moved to compel depositions. In a January 6, 2016, telephonic hearing, the court sua sponte questioned Grandmother's status as an interested party and, correspondingly, her standing. Grandmother then propounded discovery requests. In response, Stepfather asserted Grandmother's lack of standing. Grandmother filed a verified response, but no hearing was held to allow the formal admission of evidence related to standing. On February 26, 2016, the court issued its "Order Regarding Standing and Denying Motion to Compel Depositions," in which it concluded Grandmother had standing to receive notice but lacked standing to participate in the case, was not an interested party in the adoption proceeding, and could not compel depositions.

In determining Grandmother's standing, the stepparent adoption court reviewed K.S.A. 2016 Supp. 59-2129(c), which lists the parties whose consent is required for a stepparent adoption. The court noted grandparents, even those with visitation, are not entitled to notice under the statute. The court acknowledged Grandmother had joint legal custody arising out of a case that began as an action for grandparent visitation under K.S.A. 38-129(b) (now codified at K.S.A. 2016 Supp. 23-3301 [c] ), but found the custody arrangement did not confer standing. The court rejected Grandmother's position that she was a permanent legal custodian, finding the only basis for awarding such status is the Kansas Code for Care of Children, specifically K.S.A. 2016 Supp. 38-2272. The court ruled its decision was controlled by Browning v. Tarwater , 215 Kan. 501, 524 P.2d 1135 (1974) (grandmother not an interested party, not entitled to notice of stepparent adoption), and In re Adoption of J.A.B. , 26 Kan. App. 2d 959, 969, 997 P.2d 98 (2000) (no error in district court holding grandparent had standing to participate in adoption proceeding solely on issue of visitation but "grandparents' rights in the adoption proceeding are limited to a determination of whether reasonable visitation should be granted").

Grandmother appealed, and the Court of Appeals affirmed the district court. In re Adoption of T.M.M.H. , No. 115,309, 2016 WL 7032112 (Kan. App. 2016) (unpublished opinion).

The Court of Appeals panel began its legal analysis by questioning whether jurisdiction existed because the appeal had not been taken from a final order. 2016 WL 7032112, at *2. The panel concluded it had jurisdiction under the collateral order doctrine because the district court order conclusively determined the issue of Grandmother's standing; the standing issue was an important one separate from the merits of the adoption; and an immediate appeal was required because, otherwise, Grandmother would be powerless to appeal a final judgment in the adoption proceeding. 2016 WL 7032112, at *3.

Next, the panel addressed the significance of the joint legal custody arrangement between Mother and Grandmother. The panel looked to Kansas statutes for a definition of joint legal custody. The only reference it found was in the context of custody between divorcing parents. The panel then looked to the record for clarification of the nature of the agreement between Mother and Grandmother. It found the record contained only two relevant documents: a journal entry filed in the grandparent visitation case on September 30, 2015, and the order finding Grandmother lacked standing in the stepparent adoption case. The panel concluded Grandmother failed to designate sufficient facts to support her claim; the district court decision was proper in the absence of a sufficient record; and Kansas statutory law did not require a different result. 2016 WL 7032112, at *6.

The panel then considered whether grandparents have any rights in cases of stepparent adoption generally. 2016 WL 7032112, at *6. The panel reviewed the persons who are required to provide consent to a stepparent's adoption, which does not include a grandparent even when the grandparent has visitation rights. The panel ruled the statute authorized the district court to provide notice to Grandmother, which the district court had done, but that notice did not give Grandmother a right to "conduct depositions or otherwise participate in the adoption hearing." 2016 WL 7032112, at *6.

The panel, while acknowledging that Grandmother's relationship was unique, observed that guardianship was the legal status most analogous to that conferred upon Grandmother. 2016 WL 7032112, at *7. The panel then determined that the parental preference doctrine applied. It rejected Grandmother's argument that Mother had waived her parental preference by agreeing to share joint legal custody with Grandmother, because Grandmother failed to meet her burden of proving a knowing waiver of the preference. 2016 WL 7032112, at *8.

Finally, the panel rejected Grandmother's argument that she should be allowed to participate in the stepparent adoption to advocate for the best interests of the child, concluding the best interests test did "not apply in determining a fit parent's custodial right as against a third-party nonparent's right." 2016 WL 7032112, at *8. The panel concluded: "[E]ven if the record had fully supported Grandmother's claim that her status as a joint legal custodian of the child generally gives her the right to make decisions in the best interests of the child, that right must yield to the conflicting right of the fit Mother." 2016 WL 7032112, at *8.

Grandmother filed a petition seeking this court's review of the Court of Appeals decision, which we granted.

ANALYSIS

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