In Re the Adoption of S.J.R.

Citations: 149 P.3d 12; 37 Kan. App. 2d 28; 2006 Kan. App. LEXIS 1193Docket: 96,388

Court: Court of Appeals of Kansas; December 22, 2006; Kansas; State Appellate Court

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In the case of N.R. v. J.W., the Kansas Court of Appeals upheld a trial court's decision allowing J.W., the stepfather, to adopt minor children S.R. and E.R. without the consent of their natural father, N.R. The trial court ruled that N.R.'s consent was unnecessary under K.S.A. 59-2136(d) due to his failure to assume parental duties for two years prior to the adoption petition. Additionally, the court found N.R. unfit as a parent and recommended the termination of his parental rights under K.S.A. 59-2136(h).

N.R. contested this ruling, arguing that K.S.A. 59-2136(d) should control the adoption proceedings and challenged the trial court's reliance on his alleged unfitness and the children's best interests in its decision. However, the appellate court disagreed, affirming that the trial court properly considered the relevant factors and determined that N.R.'s consent was indeed not required.

Background details reveal that N.R. had a history of incarceration and violent behavior, which contributed to K.W., the children's mother, being granted sole custody after their divorce in 2001. N.R. had been ordered to pay child support but had limited contact with the children, who last saw him in 2001 while he was in jail. Following K.W.'s remarriage to J.W. in 2003, J.W. petitioned for adoption in 2005, supported by K.W.'s written consent. The evidentiary hearing involved testimony about the children's awareness of N.R., with S.R. remembering him while E.R. did not.

K.W. testified regarding multiple incidents involving N.R. following her separation from him. Notably, N.R. violently entered K.W.'s home, physically assaulted her, and was abusive throughout their relationship. K.W. reported these incidents to law enforcement, leading to criminal charges against N.R. She described N.R.'s substance abuse, including methamphetamine and marijuana, and recounted a concerning incident where S.R., then under 2 years old, was found holding methamphetamine. Despite N.R.'s abusive behavior, he sent birthday and Christmas cards to S.R. and E.R. while incarcerated; some cards contained messages blaming K.W. for his incarceration. Seven cards were presented as evidence, with five sent during the two years preceding the adoption petition. K.W. moved to a new address without informing N.R. or the court, yet N.R. claimed his cards were returned to him until he later obtained K.W.'s address. N.R. also applied for Christmas gifts for the children through the Salvation Army, which were received in certain years, although K.W. indicated she received no child support from him. N.R. acknowledged his ability to contribute financially but chose not to do so. During the hearing, the magistrate judge ruled that K.S.A. 59-2136(d) governed stepparent adoption, concluding that J.W. did not demonstrate N.R.'s failure to fulfill parental duties in the relevant two-year period. This decision was appealed, and the district court determined that K.S.A. 59-2136(d) was not applicable, allowing J.W. to amend his petition under K.S.A. 59-2136(h). After reviewing the evidence, the district court found N.R. unfit, terminating his parental rights and permitting J.W. to adopt S.R. and E.R.

The district court found that N.R. did not provide care, support, or comfort for the children for at least two consecutive years prior to the adoption, thus his consent was not necessary under K.S.A. 59-2136(d) or K.S.A. 59-2136(h). N.R. contends that K.S.A. 59-2136(d) is the relevant statute for stepparent adoptions and requires judicial interpretation of K.S.A. 59-2136. An appellate court has unlimited authority to review statutory interpretations and is not bound by the trial court's conclusions. The fundamental rule of statutory construction is to determine legislative intent, relying on the language of the statute. K.S.A. 59-2136(d) states that a father's consent is necessary unless he has failed to fulfill parental duties for two years prior to the adoption petition. This includes a rebuttable presumption against the father if he did not provide a substantial portion of child support when financially able. K.S.A. 59-2136(h) addresses situations where a father asserts his parental rights, allowing for the appointment of an attorney if he cannot afford one, and sets criteria for terminating parental rights. The district court concluded that both K.S.A. 59-2136(d) and K.S.A. 59-2136(h) apply to the case, but N.R. argues that the legislature intended to differentiate between stepparent adoptions and others, with subsection (d) specifically applicable to stepparent scenarios when the natural mother consents.

The consent of a father is required for adoption unless he has not fulfilled parental duties for two consecutive years prior to the adoption petition or is incapable of giving consent. Subsection (h) of K.S.A. 59-2136 outlines general criteria for terminating parental rights but is not specifically aimed at stepparent adoptions. Courts must harmonize differing statutory provisions, applying specific statutes over general ones unless otherwise indicated by the legislature. K.S.A. 59-2136(d) specifically addresses stepparent adoptions and is supported by subsections (c) and (e), which outline procedures relevant to this category. The legislature's intent to distinguish stepparent adoptions is further underscored by the existence of K.S.A. 59-2136(d), which parallels language in subsection (h)(7). Historical case law supports the distinction between stepparent and non-stepparent adoptions, affirming that different standards apply, with K.S.A. 59-2136(d) being the controlling statute in stepparent adoption cases.

N.R. references stepparent adoption cases, specifically In re Adoption of C.R.D. and In re Adoption of K.J.B., emphasizing that none address whether K.S.A. 59-2136(h)(2) concerning unfitness applies to stepparent adoption. In these earlier cases, the trial courts terminated parental rights due to the natural father's failure to assume parental responsibilities over the two years preceding the adoption petition. Importantly, there’s no Kansas case confirming the applicability of K.S.A. 59-2136(h) in stepparent adoptions. However, the trial court in In re Adoption of Baby Boy S. did apply this statute to terminate a father's rights, which went unchallenged by the father. The case was later referenced in In re Adoption of S.E.B., where the Supreme Court did not clarify the applicability of K.S.A. 59-2136(h) in stepparent adoption cases.

The legislature intended K.S.A. 59-2136(d) to govern stepparent adoptions, indicating the trial court erred in relying on K.S.A. 59-2136(h). N.R. argues that the trial court improperly emphasized evidence of his unfitness and the children's best interests, which should not influence consent requirements under K.S.A. 59-2136(d). The Supreme Court has established that these factors are not controlling in determining the necessity of a natural parent's consent. The trial court's findings on N.R.'s unfitness were based on K.S.A. 59-2136(h) despite the relevant analysis focusing on his failure to fulfill parental duties under K.S.A. 59-2136(d). Ultimately, the trial court concluded that N.R. failed to assume parental responsibilities, rendering his consent unnecessary for the adoption.

The trial court did not use N.R.'s unfitness or the children's best interests as primary factors in deciding whether N.R.'s consent was necessary under K.S.A. 59-2136(d). However, recent amendments to this statute, introduced by House Bill 2665 in 2006, explicitly allow courts to consider these factors in stepparent adoptions. Statutory amendments typically apply prospectively unless the legislature indicates otherwise, and there is no evidence that the new language is meant to be retroactive. J.W. did not provide authority for retroactive application. The court's prior ruling implied that while the fitness of the nonconsenting parent and the children's best interests were not decisive factors, they could still be considered in assessing whether the parent had neglected their duties for the two years prior to the adoption petition. 

N.R. contended that the trial court erred in finding he had not assumed parental duties during the relevant two-year period, which spanned from August 2003 to August 2005. The determination of parental duties is a factual question, subject to appellate review based on substantial evidence. The appellate court does not reevaluate evidence but considers it favorably towards the prevailing party. Parental duties under K.S.A. 59-2136(d) encompass not only financial support but also emotional involvement. This statute is interpreted to favor the rights of natural parents. In assessing a nonconsenting parent's neglect of duties, courts must account for the entire context, including the impact of incarceration. If a nonconsenting parent is incarcerated, different considerations apply regarding their ability to fulfill parental responsibilities and the efforts they made to do so.

The trial court must evaluate whether an incarcerated parent has made reasonable efforts to maintain a relationship with their child, which could necessitate the parent's consent for adoption. In this case, K.W. testified that she had not received any child support from N.R., who was ordered to pay $187 per month. The court maintained that N.R.'s incarceration did not excuse his failure to support his children financially, as illustrated by an unpaid child support judgment of $9,724. Although N.R. argued that previous cases focused on child support modification rather than adoption without consent, the court referenced K.S.A. 59-2136(d), which specifies that a parent’s duties include both financial support and emotional engagement with the child.

The court emphasized that to sever parental rights under this statute, there must be a demonstrated failure in both financial and emotional support. While N.R. was financially unable to meet the child support obligation due to incarceration, the inquiry should have shifted to assessing his emotional support. Despite his claims of being able to send minimal financial support, N.R. sent nothing to his children. The court noted that N.R. sent only five cards to his children over a two-year span before the adoption petition, consisting solely of birthday and Christmas greetings, indicating minimal contact and effort to communicate. Overall, the trial court concluded that N.R.'s actions reflected a lack of both financial and emotional support.

N.R. claims infrequent contact with his children due to not knowing their address for nearly half of the two years before the adoption petition was filed, as K.W. had moved from Garden City to Deerfield in February 2003 without informing him or the court. N.R. learned of the new address through his daughter and later found it in a birth announcement. He began sending cards to the Deerfield address in July 2004, despite an envelope from December 2002 being returned, which falls outside the relevant time frame under K.S.A. 59-2136(d). K.W. testified that the children received birthday and Christmas cards from N.R. after the move, and some cards were forwarded from the old address. The trial court confirmed K.W.'s move and noted that both cities were listed in the area directory. It found N.R.'s communication efforts to be minor and incidental, concluding he had not fulfilled parental duties as required by law. N.R. highlighted that the trial court did not consider Christmas gifts sent through the Salvation Army, which K.W. acknowledged for 2003 but denied for 2004. Overall, N.R.'s contacts during the two-year period consisted largely of birthday and Christmas cards sent from prison, with no evidence of phone contact or other correspondence. The court's review focused on whether substantial evidence supported its findings regarding N.R.'s parental involvement.

The trial court concluded that N.R.'s contacts with his children were incidental, particularly given his incarceration. It referenced K.S.A. 59-2136(d), which allows consideration of events outside a two-year period prior to an adoption petition if a natural parent has been incarcerated for a significant portion of that time. In this case, N.R. had been incarcerated the entire two years before the petition, necessitating the examination of prior events to assess his efforts to maintain a relationship with his children.

Testimony indicated that N.R. had been incarcerated since late 2000, with the last visit from the children occurring when S.R. was three and E.R. was one. Evidence showed N.R. had a history of violent and criminal behavior, including a home invasion where K.W. and S.R. were victims. K.W. detailed a violent incident where N.R. forced his way into her home, endangering S.R. Additionally, the court noted N.R.'s extensive drug abuse, including methamphetamine and marijuana, which adversely affected his parenting. K.W. testified that N.R. would often disappear for days, engaging in drug use and leaving the children in her care.

The court found that N.R. failed to establish a meaningful parental relationship, exposing his children to his drug use and violent behavior. This lack of bonding was compared to a precedent case, In re Adoption of Baby Boy S., where a similar failure to maintain a relationship led to the termination of parental rights. N.R.'s earliest release date was noted to be July 24, 2010, by which time S.R. would be 12 and E.R. 10, with E.R. unable to remember N.R. due to the prolonged absence.

N.R.'s criminal history led to a 9-year absence from his children's lives, significantly hindering his ability to provide guidance. The trial court noted N.R.'s earliest possible release date of July 24, 2010, as a relevant factor under K.S.A. 59-2136(d). The core issue was whether N.R. made adequate efforts to maintain contact with his children during incarceration. Evidence showed that his efforts were minimal, consisting only of sending a few cards and applying for Christmas gifts through the Salvation Army. No attempts to contact the children by phone were made, and there were no records of correspondence beyond birthdays and Christmas. These actions were deemed insufficient for fulfilling his parental responsibilities. The trial court's finding that N.R. failed to assume parental duties was supported by substantial competent evidence and was affirmed.