In the Matter of The Application To Adopt J.M.D. And K.N.D.

• Decision Date: 16 September 2011
• Docket Number: No. 99,687.,99,687.
• Citation: 293 Kan. 153,260 P.3d 1196
• Parties: In the Matter of the Application to Adopt J.M.D. and K.N.D., Minor Children.
• Court: Kansas Supreme Court

293 Kan. 153

260 P.3d 1196

In the Matter of the Application to Adopt J.M.D. and K.N.D., Minor Children.

No. 99,687.

Supreme Court of Kansas.

Sept. 16, 2011.

Syllabus by the Court

1. The question of whether a natural parent must consent to the adoption of his or her children by a stepparent is governed by the provisions of K.S.A. 2010 Supp. 59–2136(d), unaffected by the termination of parental rights provisions in K.S.A. 2010 Supp. 59–2136(h). Under K.S.A. 2010 Supp. 59–2136(d), a natural parent's consent to a stepparent adoption of his or her children is mandatory unless the district court finds that the natural parent 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 that the natural parent is incapable of giving such consent.

2. In determining whether a natural parent has assumed the duties of a parent, the court must recognize that there are numerous duties associated with being a parent to a child and all such duties may be considered in the context of all surrounding circumstances.

3. A determination of the best interests of the child cannot override the requirement that a natural parent who has assumed his or her parental responsibilities must consent before a stepparent adoption can be granted.

4. A natural parent's unfitness will not obviate the need for the natural parent's consent to a stepparent adoption, unless the district court finds that the natural parent's unfitness has prevented him or her from assuming the duties of a parent for 2 consecutive years next preceding the filing of the petition for stepparent adoption.

5. Whether a natural parent has failed or refused to assume his or her parental duties for 2 years next preceding the filing of a stepparent adoption petition is a question of fact which is reviewed on appeal to determine whether the decision was supported by substantial competent evidence. In assessing the sufficiency of the evidence to support a factual finding, the appellate court should review the facts in the light most favorable to the prevailing party below and must not reweigh the evidence or reassess witness credibility.

Elizabeth Lea Henry, of Henry & Mathewson, P.A., of Wichita, argued the cause and was on the briefs for appellant natural father.Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the cause and was on the briefs for appellee stepfather.

The opinion of the court was delivered by JOHNSON, J.:

S.M.H. (Mother) is the biological mother of J.M.D. and K.N.D. Her current husband (Stepfather) petitioned to adopt the children without the consent of their biological father, M.A.D. (Father). The district court determined that Father's consent to the adoption was unnecessary, terminated Father's parental rights, and granted Stepfather's adoption. In a split decision, the Court of Appeals reversed, finding insufficient evidence to support the district court's determination that Father had failed to assume his parental duties for the 2 consecutive years immediately preceding the adoption petition. Stepfather seeks our review of the Court of Appeals' decision. We reverse the Court of Appeals and affirm the district court.

Factual and Procedural Overview

Mother and Father were married in 1993, and the two children involved in this action were born during the marriage; J.M.D. in 1996 and K.N.D. in 1998. J.M.D. was diagnosed with cancer in 1999 and subsequently underwent numerous hospitalizations, chemotherapy, and radiation treatments.

In November 2000, Mother and Father, who were living in Missouri, began caring for Mother's 4–year–old stepsister (H.R.B.) and Mother's 1 1/2–year–old half-sister (L.H.D.) and subsequently became their official managing conservators and guardians. Between December 2000 and the summer of 2002, Mother and Father twice separated and reconciled. By July 2002, Father was unemployed and acting as the primary caretaker for all four children.

On July 18, 2002, L.H.D. sustained serious and ultimately fatal physical injuries while under Father's supervision. Social service workers removed the other children from the home, while investigating Father's culpability for the child's injuries and resulting death. On July 23, 2002, Father was charged with felony child abuse for inflicting cruel and inhuman punishment by “beating, kicking, hitting, knocking to the ground and by throwing water on L.H.D.” He was released on bond, pending trial, conditioned on having no contact with the children. During the period of Father's release on bond, Mother obtained a divorce decree which granted her sole custody of the children and ordered Father to pay $254 per month for child support. After his bond was revoked for having contact with the children, Father pled to charges and was sentenced to a prison term with a mandatory release date of December 8, 2014.

In March 2003, Mother and her children relocated to Kansas, where Mother met and ultimately married Stepfather in August 2004. With Mother's consent, Stepfather petitioned to adopt J.M.D. and K.N.D. in June 2007. Stepfather's counsel filed a petition for habeas corpus, seeking to have Father brought to Kansas from the Missouri South Central Correctional Center to participate in the adoption proceedings. Missouri prison officials refused to honor the Kansas habeas corpus writ, but arrangements were made to allow Father to participate in the trial by telephone.

Claiming that his right to due process was implicated, Father sought to delay the proceedings until he could appear in person. In denying the continuance motion, the district court noted that Stepfather had made every effort to obtain Father's presence and that, notwithstanding earlier possible parole dates, Father's release was not assured until his mandatory release date in 2014, over 7 years later. Citing to the children's interest in a timely decision and the demands of judicial economy, the court found that Father's ability to participate by telephone satisfied his right to due process.

At trial, Father presented evidence of his contacts with the children while he was imprisoned, both directly through letters and telephone calls and indirectly through his sister, T.R. On the other hand, Stepfather presented the testimony of a school counselor and the children's treating psychologist, relating the impact on the children of L.H.D.'s death and Father's incarceration. Both testified that the children suffered from anxiety and symptoms of posttraumatic stress disorder and opined that they would benefit from the closure and permanency that would be attained through the adoption.

During the 2 years preceding the adoption petition, June 2005 to June 2007, Father was earning approximately $20 per month in prison wages and was receiving a veteran's disability payment of approximately $105 per month. T.R. testified that Father would provide her with money to occasionally purchase $10 or $20 gift cards for the children and to send cards and money for birthdays and Christmas. However, none of the disability payments were ever utilized to directly pay child support to Mother. In September 2006, child support enforcement authorities contacted Father about his failure to pay child support. After Father requested a reduction in the court-ordered support of $254 per month, it was set at $5 per month, presumably based solely on his prison wages. Thereafter, Father paid the $5 per month support, plus an additional $3.50 per month toward his arrearage.

At the close of evidence, the parties argued differing interpretations of a 2006 amendment to K.S.A. 59–2136(d), which added the language: “The court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted.” L.2006, ch. 22, sec. 1(d). Ultimately, the district court opined that the amendment required the judge to consider the best interests of the child and the fitness of the nonconsenting parent, notwithstanding the provision's ambiguity or possible conflict with subsection (h) of the statute.

The district court then proceeded to find that Father was unfit and that the Stepfather's adoption was in the best interests of the children. Further, the trial court held that Father had failed to assume the duties of a parent for 2 consecutive years prior to the filing of the adoption petition. Accordingly, the court terminated Father's parental rights and determined that his consent to the adoption was not necessary.

Father appealed, arguing: (1) The district court misinterpreted and misapplied the stepparent adoption statute by considering Father's fitness and the best interests of the children as overriding factors in granting Stepfather's petition for adoption; (2) there was insufficient evidence to support a finding that Father's consent to the adoption was not required; and (3) Father was denied due process when the court refused to continue the trial until he could be released from prison and attend the trial in person. In a split decision, the Court of Appeals reversed the district court. In re Adoption of J.M.D., 41 Kan.App.2d 157, 202 P.3d 27 (2009) (Marquardt, J., dissenting).

Relying on In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245 (2008), the majority found that to dispense with the requirement of the natural father's consent to a stepparent adoption, the court must find that the nonconsenting father had failed to fulfill his parental duties for 2 consecutive years next preceding the adoption petition, regardless of any determination the court may make with respect to the natural father's fitness or the best interests of the child. J.M.D., 41 Kan.App.2d at 162–64, 202 P.3d 27. The majority acknowledged that the district court in this case had correctly applied the stepparent adoption statute by first making a determination that Father had failed to assume his parental duties...