IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97,546
In the Matter of the Adoption of G.L.V. and M.J.V.,
Children under the Age of 18 years.
SYLLABUS BY THE COURT
1. The interpretation of a statute is a legal question over which appellate courts have unlimited review.
2. When courts are called upon to interpret statutes, the fundamental rule governing that interpretation is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutory construction. Instead, when the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.
3. Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.
4. As a general rule, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Courts ascertain the legislature's intent behind a particular statutory provision from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Thus, in cases involving statutory construction, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia.
5. When courts are called upon to review amendments to a statute, they presume the legislature acted with full knowledge and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute, and as to the judicial decisions with respect to such prior and existing law and legislation. In the same vein, the court presumes that when the legislature revises an existing law, it intends to change the law as it existed prior to the amendment.
6. Adoption statutes are strictly construed in favor of maintaining the rights of natural parents in those cases where it is claimed that, by reason of a parent's failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required.
7. Freedom of personal choice in matters of family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Constitution's Due Process Clause only provides substantive protection for parental rights, however, when the parents have assumed their parental responsibilities. In cases where a parent has not accepted some measure of responsibility for a child's future, the Constitution does not protect a merely biological relationship.
8. K.S.A. 2007 Supp. 59-2136(d) incorporates the constitutional protections of a parent's fundamental right to raise his or her child by requiring that a natural parent who has assumed his or her parental responsibilities must consent to a stepparent adoption.
9. The welfare of children is always a matter of paramount concern, but the policy of this state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents' right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, where they are unfit to be entrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duties, or where the right has been prejudiced by the discord of the parents themselves.
10. If a nonconsenting parent in a stepparent adoption has provided regular and substantial affection or financial support for his or her child, that parent has assumed the duties of a parent toward the child. Under such circumstances, the legislature has determined that it is in the best interests of the child to foster the parent-child relationship when the natural parent does not wish to consent to a stepparent adoption.
11. A judicial determination as to the best interests of a child, standing alone, cannot override the statutory requirement that a stepparent adoption may not be granted without the consent of the natural parent if that parent has assumed the duties of a parent toward the child.
Review of the judgment of the Court of Appeals in 38 Kan. App. 2d 144, 163 P.3d 334 (2007). Appeal from Atchison district court; MARTIN J. ASHER, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Opinion filed August 22, 2008.
John W. Fresh, of Larry R. Mears, Chartered, of Atchison, argued the cause and was on the briefs for appellant stepfather.
No appearance by appellee natural father.
The opinion of the court was delivered by
DAVIS, J.: This case involves an appeal from the denial of a stepparent adoption. The Court of Appeals affirmed the district court's decision, holding that the natural father's consent was necessary since he had performed his parental duties during the 2 years preceding the adoption petition. In re Adoption of G.L.V., 38 Kan. App. 2d 144, 163 P.3d 334 (2007). We granted the stepfather's petition for review to examine the district court's and the Court of Appeals' interpretation and application of the recently amended stepparent adoption statute, K.S.A. 2007 Supp. 59-2136(d), which now authorizes a court to consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted. See L. 2006, ch. 22, sec. 1.
Facts
G.L.V. and M.J.V. are twin brothers, born on October 17, 1994. Their parents were never married and lived together only briefly prior to the time that the boys were born. In 1995, the mother filed a paternity action, resulting in a determination that the father was the natural father of the twins, and an order was issued requiring the father to pay child support. Three weeks after their birth, the father left the area and did not return until 1997.
Upon his return, the father filed an action to secure visitation rights to the twins and was awarded weekend visitation; however, he exercised his visitation rights only two or three times. During the instant adoption proceedings, the father testified he sought aid to enforce visitation from the sheriff but was advised his only remedy would be through court proceedings. Because he did not have funds to hire a lawyer, he did not pursue enforcement of his visitation rights.
Absent his two weekend visits, the father has had no direct contact with his twin sons since 1997. Nevertheless, the paternal grandparents and other members of the father's family have maintained a relationship with the twins.
Although the father was ordered by the district court to pay child support in 1994, his payments for the first several years were infrequent, leading to a significant arrearage. Since April 2003, however, the father has been regularly employed and has consistently made monthly child support payments of $366 through an income withholding order. From April 2003 until June 2006, he paid $21,003.86 in child support on an obligation of $14,274, with the overage applied toward the arrearage.
The natural father is currently married and has three children by that marriage and one stepchild.
The natural mother of the twins married the petitioner stepfather in 2004. On June 13, 2006, the stepfather filed a petition to adopt the twins without obtaining the consent of the natural father. The stepfather requested the district court grant the adoption in light of the fact that father had not had any contact with the children for 9 years and had never voluntarily paid child support.
The district court held an evidentiary hearing on August 29, 2006, during which the father and mother testified. The father acknowledged in his testimony that he had not stayed in touch with the children but insisted that this was due to their mother's attempts to keep the children from him. The father also testified that he covers G.L.V. and M.J.V. under his health insurance policy but could not recall whether he had ever told their mother about the health insurance or provided her with an insurance card.
The mother testified that she had never prevented the father from visiting the children. She further explained that her husband, the twins' stepfather, was the only "father figure" that her children had ever known. She testified that the stepfather regularly helps G.L.V. and M.J.V. with their homework and is actively involved in their sports events and scouting program.
The stepfather did not testify at the hearing.
District Court
After hearing argument from both sides, the district court took the matter under advisement in order to consider its decision in light of the amendment recently made to K.S.A. 59-2136(d), the statute controlling contested stepparent adoptions. The amendment, which became effective in 2006 upon publication, added the following statement to the end of K.S.A. 59-2136(d): "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." K.S.A. 2007 Supp. 59-2136(d). Prior to the amendment, the statute contained no explicit reference to either the best interests of the child or the fitness of the nonconsenting parent in a stepparent adoption. See L. 2006, ch. 22, sec. 1.
On September 13, 2006, the district court issued a memorandum decision denying the adoption. Citing In re Adoption of B.M.W., 268 Kan. 871, 2 P.3d 159 (2000), and In re Adoption of K.J.B., 265 Kan. 90, 959 P.2d 853 (1998), the court noted that Kansas case law uses a two-sided ledger for determining whether a parent has failed to perform his or her parental duties during the 2 years before an adoption petition is filed. On one side of the ledger is the "'love and affection'" that a parent shows his or her child; on the other is the financial support provided during that time. The court explained that under Kansas law, "[a] parent must fail both sides of the 'ledger' to have parental rights terminated."
The district court found that "[i]n this case, the father fails miserably the 'love and affection' test." However, the court also found that the father paid a substantial amount of child support during the prior 2 years. Thus, the court found that "[a]dherence to the precedents of the Kansas Supreme Court would require the Court to deny the adoption."
Turning to the 2006 amendment, the district court made the following observations in its memorandum decision:
"Unquestionably, the amendment changes the prior law that had held that the best interest of the child and the fitness of the parent were not factors to be considered by the Court in adoption cases. But what weight are these new factors to be given? Are the factors to be of relative equal weight or is the best interest of the child an overriding factor to which the others are subordinate? The statute itself does not answer these questions."
Having made these observations, the district court turned to the question of the father's fitness and of the best interests of G.L.V. and M.J.V. The court first noted that the mother did not argue that the father was an unfit parent and that no evidence had been presented that the father had not cared for the children he had with his current wife.
Considering the question of the best interests of the boys, the court found that "[c]onsideration of the best interest of the children does not clearly favor one parent over the other," in that both parents have the children's best interests at heart, differing only as to what they believe those interests to be. In addition, the court noted that "the father is African American and the mother and the petitioner [stepfather] are Caucasian. Severing ties with the father not only severs ties with his family but also may sever cultural ties."
Based on these findings, the court concluded that "the precedents of K.J.B. and B.M.W. dictate that the petition for adoption should be denied and that the 2006 amendment to K.S.A. 59-2136(d) does not change this outcome."
Court of Appeals
The stepfather appealed the denial of the adoption petition, claiming that the district court misinterpreted the 2006 amendment to the stepparent adoption statute. A divided panel of the Court of Appeals affirmed, concluding that the 2006 amendment to K.S.A. 59-2136(d) did not abrogate the parental duties test (based on the two-sided ledger) previously adopted by the Kansas Supreme Court in B.M.W. and K.J.B. even though it granted a district court discretionary authority to consider the best interests of the child and the fitness of the nonconsenting parent. G.L.V., 38 Kan. App. 2d at 154-55.
Judge Marquardt dissented, writing that the majority opinion's interpretation of the 2006 amendment to K.S.A. 59-2136(d) rendered the recent amendment meaningless, as "[i]t is clear the legislature now intends that the trial court has the ability to consider the best interests of the children and is not required to merely focus on financial support alone as the criteria for denying an adoption." 38 Kan. App. 2d at 157 (Marquardt, J., dissenting).
Discussion
The stepfather advanced two alternative arguments before the Court of Appeals and now raises the same issues on petition for review: He contends that either (1) under the provisions of K.S.A. 2007 Supp. 59-2136(d), the best interests of children involved in a contested stepparent adoption is an overriding factor in the determination; or, alternatively, (2) the two-sided ledger standard of love and affection and financial support adopted by this court in B.M.W. and K.J.B. has been converted to a three-column ledger under K.S.A. 2007 Supp. 59-2136(d), with the best interests of the child being entitled to equal weight and consideration in the stepparent adoption proceedings.
Standard of Review
The district court denied the stepfather's petition for adoption in this case based on its findings that the father had assumed the duties of a parent for 2 years preceding the filing of the petition; thus, the father's consent was necessary to grant the adoption. The stepfather does not raise the issue of sufficiency of the district court's factual findings in this appeal. Instead, the stepfather argues that the district court and Court of Appeals majority misinterpreted the 2006 amendment in K.S.A. 2007 Supp. 59-2136(d) and thus misapplied the law relating to stepparent adoptions. The interpretation of a statute is a legal question over which we have unlimited review. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Principles of Statutory Interpretation
When courts are called upon to interpret statutes, the fundamental rule governing that interpretation is that "the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted." State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts "need not resort to statutory construction." In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Instead, "[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent." State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). But where "the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]" Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
As a general rule, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). Courts ascertain the legislature's intent behind a particular statutory provision
"from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]" In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).
See State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Thus, in cases involving statutory construction, "courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia." Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).
Furthermore, when courts are called upon to review an amendment to a statute, they presume "the legislature had and acted with full knowledge and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute and as to the judicial decisions with respect to such prior and existing law and legislation. [Citations omitted.]" Rogers v. Shanahan, 221 Kan. 221, 225-26, 565 P.2d 1384 (1976). In the same vein, courts presume that when the legislature revises an existing law, it intended to change the law as it existed prior to the amendment. State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006).
This court has further explained in the specific area of adoption that adoption statutes are "strictly construed in favor of maintaining the rights of natural parents in those cases where it is claimed that, by reason of a parent's failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required." B.M.W., 268 Kan. at 881-82.
K.S.A. 2007 Supp. 59-2136(d)
The most recent version of the stepparent adoption statute, K.S.A. 2007 Supp. 59-2136(d), states:
"[T]he consent of [the natural] father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father's consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child's birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent. 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." (Emphasis added.)
The final sentence in the stepparent adoption statute--that relating to the best interests of the child and the fitness of the nonconsenting parent--was added when the statute was amended in 2006. See L. 2006, ch. 22, sec. 1. The Court of Appeals decision in this case is the only opinion of a Kansas appellate court interpreting the amended statute; the matter therefore comes before this court on petition for review as a case of first impression.
Both the district court and the Court of Appeals struggled with the interpretation and application of the amended statute. Though the district court recognized that the amendment changed prior law by allowing the best interests of the child and the fitness of the nonconsenting parent to be considered in a stepparent adoption, the court had difficulty determining how these new considerations should be incorporated. As the court pondered in its memorandum opinion: "[W]hat weight are these new factors to be given? Are the factors to be of relative equal weight or is the best interest of the child an overriding factor to which the others are subordinate? The statute itself does not answer these questions."
The Court of Appeals also had difficulty reconciling the provisions of the amended statute, stating:
"It is difficult to ascertain exactly what the legislature was trying to accomplish with the 2006 amendment to the stepparent adoption statute. . . . On the one hand, the father's consent must be given to a stepparent adoption unless the father has failed to assume his parental duties for 2 consecutive years immediately preceding the filing of the petition for adoption. These duties include both financial support and love and affection. On the other hand, 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. It is difficult to reconcile these inconsistent provisions.
"K.S.A. 2006 Supp. 59-2136(d) needs further clarification from the legislature. If the legislature intends that the natural parent's consent for a stepparent adoption is not required if the natural parent fails to provide either financial support or love and affection for 2 consecutive years immediately preceding the filing of the petition for adoption, this should be clearly stated. Likewise, if the legislature desires the best interests of the child to be the controlling factor in a stepparent adoption, it can easily say so. As long as the language remains unclear, however, courts shall continue to strictly construe the statute in favor of maintaining the rights of natural parents. In re S.E.B., 257 Kan. [266, 273, 891 P.2d 440 (1995)]." In re Adoption of G.L.V., 38 Kan. App. 2d 144, 154, 163 P.3d 334 (2007).
There can be no doubt that the 2006 amendment to K.S.A. 59-2136(d) altered the law regarding stepparent adoptions. In some respects, the statute became more ambiguous, as the legislature did not explicitly describe the role that the best interests of the child and the fitness of the nonconsenting parent should play in contested stepparent adoptions. Nevertheless, we must ascertain the legislative intent behind the enactment and, to the extent possible, reach a reasonable interpretation of the statutory language. See Ross, 245 Kan. at 594 ("it is the duty of the court, as far as practicable, to reconcile the different provisions [of a statute] so as to make them consistent, harmonious, and sensible"); Howard, 218 Kan. 248, Syl. ¶ 2 ("courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia").
Because K.S.A. 2007 Supp. 59-2136(d) is ambiguous as to how the best interests of the child and fitness of the nonconsenting parent should affect courts' treatment of stepparent adoptions, we look to "the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]" Robinett, 270 Kan. at 100-01; see In re Adoption of B.M.W., 268 Kan. at 877.
Historical Development of K.S.A. 2007 Supp. 59-2136(d)
Before the enactment of the Kansas Adoption and Relinquishment Act (KARA), K.S.A. 59-2111 et seq., in 1990 (see L. 1990, ch. 145), Kansas adoption law provided that consent to an adoption of any minor child could be given by "one of the parents, if the other has failed or refused to assume the duties of a parent for two consecutive years or is incapable of giving such consent." K.S.A. 1989 Supp. 59-2102(a)(3). The statute further stated that courts could disregard incidental visitations, contacts, communications, or contributions when determining whether a parent's consent was required. See K.S.A. 1989 Supp. 59-2102(b).
This court interpreted the prior adoption statute in the context of a stepparent adoption in In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987). In F.A.R., the district court denied a stepparent adoption even though the father was imprisoned. This court affirmed, noting that "[i]n considering whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered." (Emphasis added.) 242 Kan. at 236. In coming to its conclusion that the father had not failed to assume his parental duties, the court explained:
"It should also be noted that the best interests of the child, which is the paramount consideration in custody matters, is not controlling in determining the statutory issue of whether a natural parent has failed to assume parental duties. We have no doubt that the best interests of the children in this case weighs heavily in favor of the adoption. It is unfortunate that this father apparently has little concern for the children's welfare and, instead, has chosen to stand upon his legal rights, but under our statutory scheme of adoption he has that choice.
"We also note that the fitness of the appellee as a parent is not a controlling factor under K.S.A. 1986 Supp. 59-2102(a)(3) as it would be in a proceeding to sever parental rights pursuant to K.S.A. 38-1581 et seq. [Citation omitted.]" F.A.R., 242 Kan. at 235.
In 1990, the legislature amended the adoption laws by enacting a new section specifically dealing with stepparent adoptions. See K.S.A. 1990 Supp. 59-2136(d); L. 1990, ch. 145, sec. 26. This new section required a known father's consent in stepparent adoptions "unless such father has failed or refused to assume the duties of a parent for two consecutive years." The amended statute also included language from the pre-1990 adoption law that "the court may disregard incidental visitations, contacts, communications or contributions" when making its determination of whether the natural father's consent is required. K.S.A. 1990 Supp. 59-2136(d).
Although this court did not have the opportunity to interpret this initial stepparent adoption statute, the Court of Appeals considered the language of K.S.A. 1990 Supp. 59-2136(h)(4),--the section of the KARA governing termination of parental rights, which contained similar language to the stepparent adoption section--in In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 822 P.2d 76 (1991). In that case, adoptive parents brought an action to terminate the natural father's parental rights to his infant son. Like the father in F.A.R., the father in Baby Boy S. was in prison; however, the father in Baby Boy S. had failed to provide any support for the infant child's pregnant mother before he was incarcerated. The Court of Appeals affirmed the district court's termination of parental rights, relying principally on our decision in F.A.R. Quoting F.A.R., 242 Kan. 231, Syl. ¶ 6, the Baby Boy S. court explained that a district court making a determination of whether a person's parental rights should be terminated under the new statute must consider "'all the surrounding circumstances.'" 16 Kan. App. 2d at 312.
In 1991, the stepparent adoption statute was again amended to clarify that the 2 consecutive years described in the statute were to be "next preceding the filing of the petition for adoption" and to include the language as to the rebuttable presumption of relinquishing duties when a father has failed to pay a substantial portion of court-ordered child support. K.S.A. 1991 Supp. 59-2136(d); L. 1991, ch. 167, sec. 1.
Our first case interpreting these amendments was In re Adoption of S.E.B., 257 Kan. 266, 891 P.2d 440 (1995). S.E.B. involved a stepfather's petition for adoption based on the stepfather's assertion that the father had failed or refused to assume his parental duties during the applicable time frame. The father contested the adoption, claiming that the reason he was unable to make more child support payments was that he had been imprisoned roughly 7 months out of the 2-year period. The district court granted the adoption.
This court reversed. 257 Kan. at 274. As it had in F.A.R., the S.E.B. court noted that "[i]n making a determination in an adoption proceeding of whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances are to be considered." 257 Kan. at 273. The court reasoned:
"There is no doubt that the children are receiving the benefits of the care and support of a more stable home with Stepfather and Mother. There is substantial evidence to support the trial court's determination that it was in the best interests of the children that they remain in the home of Stepfather. The best interests of the children, however, is not the standard in deciding this adoption. The best interests of the children, which is the paramount consideration in custody matters, is not controlling in determining the statutory issue of whether a natural parent has failed to assume parental duties." 257 Kan. at 274.
Considering the facts of the case, the S.E.B. court determined that, viewing the facts in the light most favorable to the natural father, the reason he could not provide more support during the applicable 2-year-time frame was that he had been in prison roughly 30% of that time, during which time he was not financially able to support his children. The court found that these facts rebutted the statutory presumption in K.S.A. 59-2136(d) (Furse 1994). 257 Kan. at 274. The court therefore held that "[b]ecause the fitness of th