In re S.A.P.
| Decision Date | 13 May 2022 |
| Docket Number | 124,426,124,427 |
| Citation | 508 P.3d 1293 (Table) |
| Parties | In the MATTER OF the ADOPTION OF S.A.P. and K.N.P., Minor Children. |
| Court | Kansas Court of Appeals |
Jeffrey A. Sutton, of Sutton Law Office, L.L.C., of Basehor, for appellant.
Jordan Pemble, of Leavenworth, for appellee.
Before Gardner, P.J., Hill and Isherwood, JJ.
MEMORANDUM OPINION
Stepmother petitioned to adopt her husband's two minor children, arguing that Mother's consent was unnecessary because Mother had failed to parent the children for the last two years. The district court found Stepmother failed to meet her burden of proof, so Mother's consent was required. Stepmother, who lacked Mother's consent to adopt, appeals the district court's dismissal of her petition. Finding no error, we affirm.
S.M., natural mother, and J.H., natural father, are the parents of S.A.P. (born in 2008) and K.N.P. (born in 2011). The Leavenworth District Court granted Mother and Father a divorce in November 2014. Father married C.H., Stepmother, in October 2015. Between 2011 and 2015, Mother and the children lived in California. Because the district court had only in rem jurisdiction at the time of the divorce, it did not issue child custody or support orders. According to Mother, after the divorce, Mother and Father agreed to abide by a "year-on/year-off" parenting plan for the children.
Stepmother petitioned to adopt S.A.P. and K.N.P. in October 2019. Because the district court required a separate petition for each child, Stepmother filed another petition in December 2019. The district court held a joint trial then ruled Stepmother had failed to prove by clear and convincing evidence that Mother " ‘failed or refused to assume the duties of a parent for two consecutive years immediately preceding the filing of the petition.’ " As a result, Mother's consent to the adoption was required. Because Mother had not consented to the adoption, the district court dismissed Stepmother's petitions.
Stepmother timely appeals the district court's dismissal of both petitions. We consolidated the two cases on appeal.
The United States Constitution's Due Process Clause provides substantive protection for parents when they have assumed parental duties. But when a parent has not accepted some measure of responsibility for his or her child's future, the Constitution will not protect the parent's mere biological relationship with the child. In re Adoption of G.L.V. , 286 Kan. 1034, 1060, 190 P.3d 245 (2008).
The district court has jurisdiction to review a petition for adoption under the Kansas Adoption and Relinquishment Act. K.S.A. 59-2111 et seq. That Act permits a stepparent to petition for adoption although the stepparent has not obtained the natural parent's relinquishment or consent to the adoption. K.S.A. 2020 Supp. 59-2136(a). When a stepparent petitions for adoption, the consent of the parents is generally required. K.S.A. 2020 Supp. 59-2129(c). But exceptions to that rule exist. K.S.A. 2020 Supp. 59-2136(h)(1)(A)-(G). One such exception allows adoption without the parent's consent if the parent has "failed or refused to assume the duties of a parent for two consecutive years immediately preceding the filing of the petition." K.S.A. 2020 Supp. 59-2136(h)(1)(G). See K.S.A. 2020 Supp. 59-2136(b) (). Stepmother relies on that exception here.
We strictly interpret adoption statutes in favor of maintaining the rights of the natural parents when a petitioner tries to terminate a natural parent's right without their consent, as Stepmother does here. In re Adoption of Baby Girl P. , 291 Kan. 424, 430, 242 P.3d 1168 (2010) ; In re A.S. , 52 Kan. App. 2d 173, 177-78, 364 P.3d 1203 (2015). The party seeking to terminate a parent's rights has the burden of proving by clear and convincing evidence that termination is appropriate under K.S.A. 2020 Supp. 59-2136(h)(1) ; In re Adoption of Baby Girl P. , 291 Kan. at 430. Stepmother bears that burden here.
In determining whether a natural mother has failed to assume the duties of a parent, the district court "[s]hall consider all of the relevant surrounding circumstances," and "may disregard incidental visitations, contacts, communications or contributions." K.S.A. 2020 Supp. 59-2136(h)(2)(A) and (B) ; In re Adoption of G.L.V. , 286 Kan. at 1053-54 ; In re Adoption of J.M.D. , 293 Kan. 153, 167, 260 P.3d 1196 (2011). As used here, "Incidental" means " ‘casual, of minor importance, insignificant, and of little consequence.’ " In re Adoption of C.R.D. , 21 Kan. App. 2d 94, 98, 897 P.3d 181 (1995). The district court may also consider reasons behind a parent's inaction. See In re Adoption of F.A.R. , 242 Kan. 231, 236, 747 P.2d 145 (1987). Similarly, the district court may consider whether a custodial parent interfered with the noncustodial parent's right to maintain contact with his or her children. 242 Kan. at 237.
When a district court terminates a person's parental rights based on factual findings made under K.S.A. 2020 Supp. 59-2136, this court reviews those findings to determine whether, after reviewing all the evidence in the light most favorable to the prevailing party, the findings were highly probable or supported by clear and convincing evidence. K.S.A. 2020 Supp. 59-2136(h)(1) (); In re Adoption of B.B.M. , 290 Kan. 236, 244, 224 P.3d 1168 (2010). When determining whether factual findings are supported by clear and convincing evidence, an appellate court does not weigh conflicting evidence, pass on the witnesses' credibility, or redetermine questions of fact. 290 Kan. at 244.
But here, our standard of review differs in part because the district court found Stepmother failed to meet her burden of proof. When a district court so finds, the district court has made a negative factual finding. In re Adoption of D.D.H. , 39 Kan. App. 2d 831, 836, 184 P.3d 967 (2008) ; see In re B.L.M. , No. 104,134, 2010 WL 5185826, at *7-8 (Kan. App. 2010) (unpublished opinion) (). That standard, as applied here, means we must not reject the district court's decision unless Stepmother proves the district court arbitrarily disregarded undisputed evidence or relied on some extrinsic consideration such as bias, passion, or prejudice to reach its decision. See State v. Douglas , 309 Kan. 1000, 1002-03, 441 P.3d 1050 (2019). We review the facts in light of that standard, focusing on Mother's acts from October 2017 to October 2019—the two years before Stepmother petitioned to adopt—and stating background facts for context.
Mother testified that because the Kansas district court did not have jurisdiction over the children when she and Father divorced, the parties did not have an official parenting plan. They agreed, however, to change physical custody of the children every year. The children would live with Mother in California for a year, then go to her aunt's home in New York over the summer, then Father would pick the children up and take them home with him until the next summer. She let her children leave their California home only because of that agreement.
The children lived with Mother in California until 2015 when the children went to live with Father in Kentucky for his year-on. In the summer of 2016, Mother did not take the children back for her year-on because she had lost her job because the company had financial issues. Because Mother could not take care of the children, she asked Father if he would keep them until she found stable housing and another job. Mother was able to Skype with the children in 2016 to early 2017, although Stepmother said Mother often failed to follow through with scheduled communication with the children.
Mother became concerned in 2017 that she was unable to get ahold of her children on Skype while they were with Father. In April 2017, Mother emailed Stepmother and Father several times to say she planned to get the children in the summer of 2017 for her year-on because she was their mother, it was her year to have them, and they should live with her. Father then became evasive with the children and with his address. Father was discharged from the military and moved with Stepmother and the children to Kansas in 2017, but Mother did not know his address.
Mother sent other emails, but Father and Stepmother stopped communicating with her. Because Mother could not contact either Stepmother or Father for several days, she called the police to conduct a welfare check and said she planned to get her children at the school bus stop. Mother acknowledged Father and Stepmother had asked her for a judicially approved order for custody and parenting time before they would let the children return to California with her in 2017.
Stepmother and Father blocked Mother on social media and ignored her phone calls and emails. Father and Stepmother kept their new address secret from Mother because they feared that Mother would just take the children if she knew their address. Mother did not have the children's address in Kansas until she hired a private investigator.
Mother had hired Christopher Scott to represent her in the fall of 2017. Scott filed Mother's motion to establish parenting time in February 2018 then sent Father two notices of the hearing for that motion. When Scott could not find Father, he hired a private investigator to do so. The private investigator served Father with notice in August 2018. In apparent response, Father moved the district court in September 2018 to establish child support.
After Mother moved to establish parenting time, she had no electronic communication with the children The parties later agreed to a temporary parenting plan that allowed Mother to have supervised recurring parenting...
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