In re Adoption of S.A.P. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
Nos. 124,426
124,427
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Adoption of
S.A.P. and K.N.P.,
Minor Children.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed May 13, 2022.
Affirmed.
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.
PER CURIAM: 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.
Procedural Background
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
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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.
Did the District Court Err in Misinterpreting or Misapplying K.S.A. 2020 Supp. 59-
2136?
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
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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) (providing that the portions of the
statute applicable to the father shall also apply to the mother). 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
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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) (findings must be based on "clear and
convincing evidence"); 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) (using negative factual finding review in
adoption by termination of parental rights case). 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
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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.
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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 time with the children.
Mother did not have physical contact with the children until January 2019, when she had
a supervised visit through the Leavenworth Court Appointed Special Advocate (CASA)
program. Mother drove from California for the visit and drove back home that same
night. Mother did not directly contact her children after that visit because she was relying
on her attorney for direction. Mother moved to Kansas in October 2019, as soon as her
husband was discharged from the Navy, and she next saw her children in January or
February 2020.
Briana Burgess, a program coordinator for the First Judicial District CASA
Association visitation and exchange center, testified to her involvement in the visitation
arrangement between Mother and Father. Mother had her first supervised visitation in
January 2019, and Burgess did not hear back from the parties the rest of that year. When
the COVID-19 global pandemic hit, Burgess did not have Father's current phone number
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at her home office, and so she could not get ahold of him. Once she got his number in
June 2020 and contacted Father, he timely cooperated. In the meantime, Mother had
reached out in March 2020 to schedule a visitation, and Burgess contacted Mother to
schedule another visitation. She had told Mother at the beginning of the process in
January 2019 that, for CASA to send a court report, CASA must have notice of a hearing
with the district court. But she knew of no reason why Mother would be waiting on her to
prepare a report before scheduling more parenting time.
Burgess clarified on cross-examination that she had told Mother in March 2020
that she had not yet received a court order or contact from Father to restart service and
she would need to complete an intake with both parties to move forward because CASA
typically closes a case file after six months of inactivity. She clarified that from March to
roughly June or July 2020, Mother did not have visitation with the children because
Burgess could not get in contact with Father. She agreed that the parties could contact
CASA to set up visitations without a court order.
Stepmother testified that she and Father had taken full custody of the children in
August 2015, that she had given Mother their new Kansas address in 2017, and that law
enforcement had conducted welfare checks on the children at least twice at Mother's
request. Communication, such as Skype, stopped between the children and Mother
because Stepmother and Father were concerned by Mother's statement to law
enforcement that she would pick up the kids from their bus stop.
Stepmother stated Mother refused to get legal representation to establish a custody
agreement. Stepmother and Father took the kids on a trip to New York in July 2016 to
visit Mother and Mother's aunt. Mother had promised to visit the children in Kentucky
but would never show. Mother never offered to pay child support and said she should not
have to pay since they were her children. When Stepmother and Father picked K.N.P. up
in California, Mother did not provide shoes or a car seat and K.N.P. had lice. When
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Stepmother and Father picked up S.A.P. from the airport, Mother's family members had
provided his clothing because Mother had sent him to New York with only the clothes on
his back.
Stepmother testified that she and Father did not deny communication between
Mother and the children—they returned her calls until April 2017. They did not block
Mother's phone calls or emails but did block her on social media because they were
concerned about her comments to law enforcement that she may grab the kids from the
bus stop. Stepmother also stated that in the two years before she filed for adoption,
Mother did ask for the children to move back to California and live with her. Stepmother
and Father refused that request in April 2017 because they wanted to have an established
agreement before they allowed Mother to leave the state with the children.
Jodi Rivera, a family friend whom Mother treats as an aunt, testified that she had
regular contact with the children since they were born and that the children had stayed
with her in New York for several summers for four or five weeks at a time. Father and
Stepmother cut off contact with Rivera after they visited her in New York in July 2016.
She traveled to Kansas and saw Father, Stepmother, and the children at their home
around the time Mother's private investigator found Father—in August 2018.
K.P., the children's maternal grandmother, testified to her previous schedule of
calling the children on Saturdays. But after a while, Stepmother would not answer the
calls, even though Grandmother had been told to call Stepmother and not Father.
Scott testified to his representation of Mother in her attempt to establish parenting
time. Scott sent two notices of Mother's motion to Father—one to his last known address
and the other to his place of employment—both came back as "return to sender." After
confirming Father's place of employment, Scott hired a private investigator to serve
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Father. After the first supervised visit with CASA in January 2019, Scott thought he and
Mother were waiting for CASA to file a report.
Scott and Mother discussed that it would likely be in her best interest to move to
Kansas so she could have a better relationship with her children and establish parenting
time. Shortly after that discussion, Stepmother petitioned to terminate Mother's parental
rights and adopt the children. Scott advised Mother to be cautious about reaching out to
Father about the children after the first CASA visitation because of the adversarial nature
of their previous contact. Although he knew of no restrictions precluding Mother from
having more parenting time, Scott believed Mother relied on his advice not to get into a
conflict with Father so she could continue to see the children.
The district court's written order correctly set out the governing law, noting:
• Stepmother had the burden to prove by clear and convincing evidence that
Mother's consent was unnecessary due to her failure or refusal to assume
the duties of a parent for two straight years immediately preceding the
filing of the petition;
• The court may disregard incidental visitations, contacts, communications or
contributions;
• The court must consider the surrounding circumstances; and
• The court had a duty to strictly construe the adoption and relinquishment
statute in favor of maintaining the natural parent's rights.
The district court applied the law to the factual findings of the preceding two-year-
period, and found:
• Mother provided no child support, despite later having the ability to do so.
• Father did not request child support until September 2018.
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• Mother had a common-law duty to provide support.
• Mother had only one in-person visit with the children, in January 2019.
• Mother had no other contact with the children.
• Mother began the judicial process by hiring a lawyer in the fall of 2017 and
moving to establish parenting time in early 2018.
• The process stalled when Mother could not find Father to serve with notice.
• After the supervised January 2019 visit, Mother did not reach out to CASA or
Father to schedule another visit.
• Mother's attorney believed they were waiting for a court report from CASA
before moving forward.
• Mother did not try to contact the children by phone or email.
• Mother's attorney believed his actions caused Mother not to contact the
children so as to avoid adversarial interactions with Father and Stepmother.
• Mother's attorney advised her to move to Kansas from California if she wanted
a substantial relationship with her children.
• Mother moved to Kansas in October 2019.
Based on these facts, the district court found Stepmother failed to meet her burden of
proving Mother failed or refused to assume parental duties for the relevant two-year-
period, and denied Stepmother's petition to adopt S.A.P. and K.N.P.
The district court's decision is not based on an arbitrary disregard of undisputed
evidence. See In re Adoption of D.D.H., 39 Kan. App. 2d at 836-38. In making its
finding, the district court considered each piece of evidence and weighed it against other
evidence and the testimony. The district court addressed the evidence disfavoring
Mother, noting that it was "inexplicable" that she had failed to reach out to the children
through either phone or email after the initial supervised visitation. The district court also
found that Mother had failed to pay child support, even though she had a common-law
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duty to do so. So the district court considered unfavorable and undisputed evidence in
making its decision.
The record is devoid of any evidence that the district court based its decision on
extrinsic considerations such as bias, passion, or prejudice to reach its decision. See In re
Adoption of D.D.H., 39 Kan. App. 2d at 836-38. To the contrary, the district court
considered both sides as its comments at the close of the trial reflect: "What in this
particular case—and this is a much more difficult case, I think, than what any of the
parties recognize. If you think this is a slam dunk on either side, I think you're wrong."
The district court echoed that same sentiment again after giving both parties a chance to
respond to an additional question.
Although Stepmother argues that the district court erred in misapplying and
misinterpreting the adoption and relinquishment statute, her brief focuses on Mother's
failure to pay child support or to comply with the district court's order about a related
discovery request. Those facts are important to Father's motion for child support but are
not controlling in deciding Stepmother's petition for adoption. The rest of Stepmother's
brief argues that the district court erred because "clear, convincing, and unrebutted
evidence" shows that Mother failed to act as a parent or assume parental duties. But this
court does not reweigh evidence or pass on credibility. See In re Adoption of B.B.M., 290
Kan. at 244.
The district court neither arbitrarily disregarded undisputed evidence, nor based its
decision on extrinsic considerations like bias, passion, or prejudice to reach its decision.
See In re Adoption of D.D.H., 39 Kan. App. 2d at 836-38. As a result, the district court
did not err in finding Stepmother failed to meet her burden that Mother's consent was
unnecessary.
Affirmed.
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