R.P., In Interest of, 60601

Decision Date29 January 1988
Docket NumberNo. 60601,60601
Citation12 Kan.App.2d 503,749 P.2d 49
PartiesIn the Interest of R.P., A Minor Child.
CourtKansas Court of Appeals

Syllabus by the Court

1. In an adoption proceeding under the Code for Care of Children following termination of parental rights, K.S.A. 1987 Supp. 38-1584(c)(3) is to be applied according to its clear and unambiguous language: Preference to a relative shall be given "to the extent that the court finds it is in the best interests of the child."

2. The determination of the best interests of the child is within the discretion of the trial court.

3. In an adoption proceeding under the Code for Care of Children involving applications by "a relative of the child" and by foster parents "with whom the child has close emotional ties," the trial court applied K.S.A. 1987 Supp. 38-1584(c)(3) according to its clear intent and meaning in determining that the "best interests of the child" would be served by placing the child with the foster parents rather than with the relatives.

Richard D. Anderson of Entz, Anderson & Chanay, Topeka, for appellants.

Roberta Sue McKenna of Dept. of Social and Rehabilitation Services-Youth Services, Topeka, for appellee Kansas Dept. of Social and Rehabilitation Services.

James W. Morrison of Morrison, Frost and Olsen, Manhattan, guardian ad litem.

John E. Lang, Wamego, for appellee foster parents.

Before DAVIS, P.J., BRAZIL, J., and MICHAEL J. MALONE, District Judge, Assigned.

DAVIS, P.J., Presiding Judge:

The appellants, Mr. and Mrs. B, appeal the district court's decision denying their petition to adopt Mrs. B's ten-year-old niece, R.P. They contend that the court failed to accord them the preference required by K.S.A. 1987 Supp. 38-1584(c)(3).

In a well-reasoned opinion, the district court found the appellants to be good prospective adoptive parents, but granted the petition for adoption of Mr. and Mrs. S, who had been R.P.'s foster parents for two and one-half years prior to trial.

No useful purpose would be served by recounting the tragic events of this case except to state that the natural father's parental rights to R.P. have been severed and the natural mother is deceased. After reviewing the record, we conclude that the decision of the district court is supported by substantial competence evidence. The only remaining question is whether the district court erred as a matter of law by not granting the appellants' petition for adoption after finding them suitable adoptive parents.

K.S.A. 1987 Supp. 38-1584(c)(3) provides as follows:

"Preferences in custody for adoption or long-term foster care. In making an order under subsection (c)(1) or (2), the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting such custody to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties."

In their brief, the appellants discuss the legislative history of 38-1584(c)(3) at length. They argue that the legislature did not intend for close emotional ties with foster parents or other nonrelatives to affect the statutory preference for placement with relatives. In essence, they argue that the legislature has determined that placement of a child with a suitable relative is in the child's best interests and that the trial court lacks discretion to determine otherwise.

The clear and unambiguous language of 38-1584(c)(3) belies the appellants' argument. Preference to a relative shall be given "to the extent that the court finds it is in the best interests of the child." In 38-1584(a), the...

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3 cases
  • Marriage of Debenham, Matter of, 71,700
    • United States
    • Kansas Court of Appeals
    • June 9, 1995
    ... ... is detrimental to the child physically or emotionally, or is no longer in his best interest.") ...         Unlike the parties in Jenks and Griffin, David and Donna do not have a ... ...
  • In re GMA
    • United States
    • Kansas Court of Appeals
    • April 12, 2002
    ...30 Kan. App.2d 58743 P.3d 881IN THE INTEREST OF G.M.A., DOB: 06-21-93, and S.R.A, DOB: 02-16-95 ... No. 86,933 ... Court of Appeals of Kansas ... ...
  • In re JA, 87,302.
    • United States
    • Kansas Court of Appeals
    • March 15, 2002
    ...30 Kan. App.2d 41642 P.3d 215In the Interest of J.A., a Child in Need of Care ... No. 87,302 ... Court of Appeals of Kansas ... Opinion filed ... ...
1 books & journal articles
  • Caring When a Parent Does Not — the State's Role in Child Welfare
    • United States
    • Kansas Bar Association KBA Bar Journal No. 79-7, August 2010
    • Invalid date
    ...38-2258. [83] K.S.A. 38-2259. [84] K.S.A. 38-2264. [85] K.S.A. 38-2264(g). [86] K.S.A. 38-2270(b). [87] In re R.P, 12 Kan. App. 2 503, 749 P2d 49 (1988); In re G.M.A., 30 Kan. App. 2d 587, 43 P3d 881 (2002); In re J.A., 30 Kan. App. 2d 214, 42 P3d 215 (2002); In reD.C., 32 Kan. App. 2d 962,......

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