State ex rel. Secretary of Social and Rehabilitation Services v. Clear

• Decision Date: 18 January 1991
• Docket Number: No. 64461,64461
• Citation: 248 Kan. 109,804 P.2d 961
• Parties: STATE of Kansas ex rel. SECRETARY OF SOCIAL AND REHABILITATION SERVICES, Appellant, v. Barbara J. CLEAR (now Barbara Finnigan), Appellee.
• Court: Kansas Supreme Court

Page 961

804 P.2d 961

248 Kan. 109

STATE of Kansas ex rel. SECRETARY OF SOCIAL AND REHABILITATION SERVICES, Appellant, v. Barbara J. CLEAR (now Barbara Finnigan), Appellee.

No. 64461.

Supreme Court of Kansas.

Jan. 18, 1991.

Syllabus by the Court

1. A parent may not unilaterally terminate his or her obligation to pay child support by voluntarily relinquishing parental rights. To terminate parental rights under K.S.A. 38-125 et seq., voluntary relinquishment of parental rights and Kansas Department of Social and Rehabilitation Services' acceptance of surrender of the child are required.

2. The fundamental rule of statutory construction is that the intent of the legislature governs. When construing a statute, we should give words in common usage their natural and ordinary meaning.

3. K.S.A.1989 Supp. 38-1502(d) defines "parent" as a guardian, conservator, and every person who is by law liable to maintain, care for, or support the child.

4. A child's parent, parents or guardian shall be liable to repay to the secretary of social and rehabilitation services any assistance expended on the child's behalf, regardless of the specific program under which the assistance is or has been provided. K.S.A.1989 Supp. 39-718b(a).

5. A person whose parental rights have been relinquished through adoption, through a voluntary termination of parental rights, or through an involuntary severance of parental rights is no longer a parent. These statutory procedures contemplate a complete severance of the child's ties and relationship with his or her natural parents.

6. The parent whose parental rights have been severed is relieved of all duties and obligations to the child.

John R. Dowell, of Dept. of Social and Rehabilitation Services, Ottawa, argued the cause, and David N. Sutton, Chief of Litigation, Child Support Enforcement, Dept. of Social and Rehabilitation Services, Topeka, was with him on the briefs, for appellant.

Carol R. (Gilham) Jones, Lawrence, argued the cause, and Charles D. Vincent, of Barkis & Vincent, Paola, was with her on the briefs, for appellee.

LOCKETT, Justice:

The Department of Social and Rehabilitation Services of the State of Kansas (SRS) appealed the district court's finding that Barbara J. Clear (Finnigan) relinquished parental rights to her minor children pursuant to K.S.A. 38-125 et seq., and, as a result, her obligation to pay child support terminated as a matter of law. The Court of Appeals first determined that the issue before it was one of law and thus subject to unlimited appellate review. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan.App.2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). Second, it found a different issue was determinative of the case, and that issue had to be considered to prevent a denial of fundamental rights. The Court of Appeals then concluded that SRS had not accepted the surrender of the children; therefore, as a matter of law, there was no relinquishment pursuant to K.S.A. 38-125 et seq. and it need not determine the issue raised on appeal. The Court of Appeals reversed the district court and remanded the matter for further proceedings. 14 Kan.App.2d 510, 794 P.2d 327. Pursuant to Supreme Court Rule 8.03 (1990 Kan.Ct.R.Annot. 40), Clear petitioned for review, claiming that the Court of Appeals had improperly decided the matter. We accepted review.

SRS recognizes that a termination of parental rights initiated by the State relieves that parent of future child support obligations, but contends that a voluntary relinquishment of parental rights by a parent pursuant to K.S.A. 38-125 et seq. does not terminate the parent's liability to repay SRS for any assistance expended upon the child's behalf under K.S.A.1989 Supp. 39-718b. On the other hand, Clear contends, and the trial court so held, that her voluntary relinquishment of parental rights to the children terminated her obligation to repay SRS for the assistance expended for the children.

Barbara Clear, now Barbara Finnigan, was divorced from Steven Clear in 1978 and awarded custody of their four minor children. Steven Clear was ordered to pay $200 a month in child support. In November 1986, the four children were determined to be children in need of care and were placed in the custody of the maternal grandmother, Mildred Burk, who then received AFDC payments for the four children. The father is not a party to this action, and the oldest child has now reached the age of majority.

While Barbara Clear had custody of the children from June 1978 until November 1986, the father paid only $50 of the court-ordered child support. In January of 1989, SRS filed a petition pursuant to K.S.A. 39-755 seeking reimbursement from Barbara Clear for the money paid to Burk in AFDC payments since 1986. At the hearing on April 11, 1989, Barbara Clear claimed that, since she was originally not ordered to pay child support by the district court, if she relinquished her parental rights to the children pursuant to K.S.A. 38-125 et seq., she would be relieved of supporting the children in the future. The trial court found that, although the original decree of divorce did not order her to pay child support while the children were in her custody, State ex rel. Secretary of SRS v. Castro, 235 Kan. 704, 684 P.2d 379 (1984), did not apply because the original support order was later modified and the custody of the children was given to the maternal grandmother by the district court. The trial court found that, subsequent to modification of the support order, Barbara Clear had a common-law duty to support her children and then determined that, under K.S.A.1989 Supp. 39-718b, Clear owed SRS $3,904 for unreimbursed assistance paid to the maternal grandmother by SRS for the support of the minor children since 1986.

At the hearing before the district court, SRS provided the written consent form necessary for Clear to relinquish and surrender her children to SRS. After questioning Clear about her relinquishment of the children to SRS, the district court found that her consent was freely and voluntarily given, without the influence of any other facts or circumstances, and granted her request to relinquish her parental rights to the children. The record of the hearing shows that counsel for SRS did not object to the district court's granting Clear's voluntary relinquishment of her parental rights, but only objected to the district court's finding that, after a voluntary relinquishment of her parental rights, Clear was not liable to reimburse SRS for any assistance expended on the children after the relinquishment. SRS claimed that relinquishment of parental rights pursuant to K.S.A. 38-125 et seq. does not relieve a parent of his or her obligation to reimburse SRS for the assistance expended on the child's behalf until the child is adopted and SRS is relieved of its obligation to support the child. After reviewing the record on appeal, we find that the Court of Appeals' determination that there was no evidentiary record of an acceptance of the children by SRS is incorrect. We will therefore determine the issue raised in the appeal.

K.S.A. 38-125 provides:

"Any parent or parents or person in loco parentis of a child may relinquish and surrender such child to the department, and if the department shall accept said child in writing, the department shall thereupon stand in loco parentis to such child and shall have and possess over such child all the rights of a natural parent or legal guardian, including the power to place such child for adoption and give consent thereto. Minority of a parent shall not invalidate such parent's relinquishment and surrender of said child." (Emphasis added.)

K.S.A. 38-126 provides:

"All relinquishments and surrender to the department under this act shall be in writing and executed by: (a) Both parents of the child; (b) one parent, if the other parent is deceased; (c) the mother, if the father's consent is found unnecessary under K.S.A. 38-1129; or (d) a person in loco parentis." (Emphasis added.)

K.S.A. 38-127 provides:

"The relinquishment provided by this act shall be signed and acknowledged before the court by the person or persons by whom it is executed and shall sufficiently identify the child or children so relinquished. It shall be the duty of the court, in all such cases of relinquishment so executed, to advise the parent or parents or other person in loco parentis of such children of the consequences of the act of relinquishment."

K.S.A. 38-128 provides:

"In all cases where a parent or person in loco parentis has relinquished and surrendered his child to the department pursuant to this act, and the judge before whom the relinquishment was executed shall have stated on the relinquishment document that the parent or the person in loco parentis had been advised by him of his rights and that the act of the parent or person in loco parentis was voluntary, all the rights of the parent or person in loco parentis shall thereupon be terminated, including the right to receive notice in a subsequent adoption proceeding involving said child." (Emphasis added.)

For support of its position, SRS relies on our language in Leach v. Leach, 179 Kan. 557, 296 P.2d 1078 (1956).

Leach was originally a divorce case. Approximately two years after the father had been granted custody of the children, the mother signed and acknowledged an instrument entitled "Relinquishment" in which she consented to the court awarding full custody of the children to the father. The father then filed a motion to modify the custody order. Based on the consent by the mother, the district court awarded the father full custody of the children. Subsequently the mother requested that the district court set aside the custody order. After the district court refused, the mother appealed. We determined that the instrument could only be considered as a written statement of what the mother believed to be in the best interests and...