In re Application to Adopt HBSC, 84,548.

• Decision Date: 09 November 2000
• Docket Number: No. 84,548.,84,548.
• Citation: 28 Kan. App.2d 191,12 P.3d 916
• Parties: IN THE MATTER OF THE APPLICATION TO ADOPT H.B.S.C. S.C.R., Appellee, v. C.L.C., Appellant.
• Court: Kansas Court of Appeals

28 Kan. App.2d 191

12 P.3d 916

IN THE MATTER OF THE APPLICATION TO ADOPT H.B.S.C.

S.C.R., Appellee, v. C.L.C., Appellant.

No. 84,548.

Court of Appeals of Kansas.

Opinion filed November 9, 2000.

Paul E. Dean, of Sherman & Dean, of Emporia, for appellant.

Wallace F. Davis, of Davis & Manley, of El Dorado, for appellee.

Before RULON, P.J., ROGG, S.J., and BARRY A. BENNINGTON, District Judge, assigned.

RULON, J.:

The natural father of H.B.S.C. (child) appeals the district court's order that his consent to adoption was not required under K.S.A. 59-2136(d) in the adoption of the child by the child's stepfather. We affirm in part and reverse in part.

This is a stepparent adoption case. The minor child was born on November 23, 1993, in El Dorado. The natural father, C.L.C., was not married to the natural mother, S.L.R., but he provided $300 for support during her pregnancy. In May 1995 the father assaulted the mother because she would not stay and talk to him during the visitation with the child. This incident resulted in a no contact order issued against the father. The father was ordered to pay $170 a month for child support on October 5, 1995. On December 16, 1995, the natural mother married S.C.R., the petitioner in this stepparent adoption proceeding. On February 5, 1996, the father was incarcerated in Oklahoma for armed robbery and assault and battery and he was scheduled to be released by the end of 1999. Although the father received $30 a month while he was on the work release program, he did not pay any child support.

During his incarceration, the father tried to maintain a relationship with his child by writing letters. The prison log showed 21 entries for a 6 months' period that the father sent letters addressed to the child and the mother. The mother testified that only seven letters were addressed to the child and the rest to either her or to both. The mother further testified she never read the letters to the child because "she was too young and it would only confuse her." Some letters stated: "Stacy, I will love you until the end of time" and "I still love your mother. I always will love her, but I know your mother just wants to go on with her life and forget all about me and I don't blame her for that." The jailer in Oklahoma testified the father had talked to him about the child, showing "deep concerns for her or fondness."

On May 13, 1998, the stepfather filed a petition for adoption with consent of the natural mother in the Magistrate Court of Greenwood County. The natural father did not give consent to the adoption. On July 1, 1998, the magistrate judge ordered an appointment of counsel for the natural father. A hearing was conducted with the natural father participating by telephone. The magistrate judge heard the evidence and the arguments by counsel, and held that

"pursuant to K.S.A. 59-2136, the natural father of the minor child, [C.L.C.] after knowledge of the child's birth has knowingly failed, neglected and refused to assume the duties of a parent and has failed, neglected and refused to provide a substantial portion of the child's support, required by judicial decree, and when financially able to do so, for the two (2) year period next preceding the filing of the Petition herein."

The natural father filed a notice of appeal to the district court and a hearing was held with the additional testimony of the parties, briefs, and arguments by counsel. The district court found that the natural father failed or refused to assume his parental duties of financial support or emotional support, love, and affection for 2 years next preceding the filing of the petition for adoption. The district court further found the natural father failed to maintain a close relationship with the child even with the limitations placed on him by incarceration. The district court held the consent by the natural father was not required for the adoption of the child by the stepfather.

The natural father filed a notice of appeal on October 28, 1999. On December 29, 1999, the stepfather filed a motion to oppose the appointment of appellate counsel for the natural father. On January 26, 2000, the district court granted the motion, finding the right to appointed counsel under the probate code was a creature of statute and the legislature did not intend appointed counsel to continue to the appellate level. The district court held that appellate counsel would not be appointed and that an appeal bond of $5,000 should be posted by the father. The natural father appeals from the order granting the adoption by the stepfather, denial of appellate counsel, and the order of a cash appellate bond.

APPOINTED APPELLATE COUNSEL

The natural father argues the district court erred in not appointing appellate counsel for him in this stepparent adoption case which resulted in termination of his parental rights to his child. The decision to remove appellate counsel was based on the court's interpretation of K.S.A. 59-2136(h), which states:

"When a father or alleged father appears and asserts parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act. If a father desires but is financially unable to employ an attorney, the court shall appoint an attorney for the father. Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:...."

The district court compared the above statutory language with the other statutes dealing with appointed counsel. The statutory provision in a child in need of care proceeding, K.S.A. 1999 Supp. 38-1505, states:

"(b) Attorney for parent or custodian. A parent or custodian of a child alleged or adjudged to be a child in need of care may be represented by an attorney, other than the guardian ad litem appointed for the child, in connection with all proceedings under this code. If at any stage of the proceedings a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent.

....

"(d) Continuation of representation. A guardian ad litem appointed for a child or an attorney appointed for a parent or custodian shall continue to represent the client at all subsequent hearings in proceedings under this code, including any appellate proceedings, unless relieved by the court upon a showing of good cause or upon transfer of venue."

Another statute relied upon by the district court was from the Treatment Act for Mentally Ill Persons. K.S.A. 1999 Supp. 59-2960(a)(3) provides: "Upon the filing of the petition ... the district court shall issue ... [a]n order appointing an attorney to represent the proposed patient at all stages of the proceedings and until all orders resulting from such proceedings are terminated." The district court concluded there is no clear legislative intent for appointment of appellate counsel for indigent parents in adoption proceedings.

The interpretation of a statute is a question of law over which this court has plenary review. Stafford v. State Farm Mut. Automobile Ins. Co., 27 Kan. App.2d 224, 226, 1 P.3d 924 (2000).

The natural father argues on appeal that the duties of appointed counsel continue until final resolution of the cause, which occurs only after judgment has been rendered and the availability of appeal has been exhausted. The father cites In re Brehm, 3 Kan. App. 2d 325, 594 P.2d 269 (1979), for support. In Brehm, the trial court terminated a natural mother's parental rights, finding her an unfit person to have custody of her child. At trial, the mother was represented by court-appointed counsel. Although the trial court did find the natural mother to be an indigent person, the court denied her request for appointment of counsel pending appeal. The Brehm court concluded:

"The trial judge was technically correct in that there is no specific legislative authority for the appointment of counsel for an indigent person on appeal from an order severing parental rights. However, there is no doubt that the relationship of natural parent and child is a fundamental right of which neither may be deprived without due process of law as guaranteed by the Constitution of the United States and the Kansas Bill of Rights. Nor can there be any doubt that, in such case, the right to counsel, either retained or appointed, is essential to due process." 3 Kan. App.2d at 326.

Although Brehm dealt with the termination of parental rights based on neglect, the same rationale applies to the factual situation in this case. The Brehm court concluded:

"[A]bsent a statutory provision to the contrary and absent limitation by the appointing authority, the responsibilities and duties of court-appointed counsel continue until final resolution of the cause for which assigned. Such occurs only after judgment has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed." 3 Kan. App.2d at 327.

The fundamental principle at the core of parental rights termination cases, either through a child in need of care or an adoption proceeding, is the natural parent's right to be a parent. The United States Supreme Court has "recognized on numerous occasions that the relationship between parent and child is constitutionally protected." Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed.2d 511, 98 S. Ct. 549,reh. denied435 U.S. 918 (1978). The Kansas courts have likewise consistently held that "child custody is a fundamental right of a parent, protected by the due process clause of the Fourteenth Amendment." In re Guardianship of Williams, 254 Kan. 814, 819, 869 P.2d 661 (1994); see Sheppard v. Sheppard, 230 Kan. 146, 153, 630 P.2d 1121 (1981),cert. denied 455 U.S. 919 (1982).

Some state courts have determined that an indigent parent is entitled to appointed counsel in stepparent adoption proceedings where there was no express statutory privilege to have appointed counsel....