In re Adoption of J.M.D. (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,687

IN THE MATTER OF THE APPLICATION TO ADOPT
J.M.D. AND K.N.D.,
Minor Children.


SYLLABUS BY THE COURT

1.
The question of whether a natural parent must consent to the adoption of his or her
children by a stepparent is governed by the provisions of K.S.A. 2010 Supp. 59-2136(d),
unaffected by the termination of parental rights provisions in K.S.A. 2010 Supp. 59-
2136(h). Under K.S.A. 2010 Supp. 59-2136(d), a natural parent's consent to a stepparent
adoption of his or her children is mandatory unless the district court finds that the natural
parent has failed or refused to assume the duties of a parent for 2 consecutive years next
preceding the filing of the petition for adoption or that the natural parent is incapable of
giving such consent.

2.
In determining whether a natural parent has assumed the duties of a parent, the
court must recognize that there are numerous duties associated with being a parent to a
child and all such duties may be considered in the context of all surrounding
circumstances.

3.
A determination of the best interests of the child cannot override the requirement
that a natural parent who has assumed his or her parental responsibilities must consent
before a stepparent adoption can be granted.
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4.
A natural parent's unfitness will not obviate the need for the natural parent's
consent to a stepparent adoption, unless the district court finds that the natural parent's
unfitness has prevented him or her from assuming the duties of a parent for 2 consecutive
years next preceding the filing of the petition for stepparent adoption.

5.
Whether a natural parent has failed or refused to assume his or her parental duties
for 2 years next preceding the filing of a stepparent adoption petition is a question of fact
which is reviewed on appeal to determine whether the decision was supported by
substantial competent evidence. In assessing the sufficiency of the evidence to support a
factual finding, the appellate court should review the facts in the light most favorable to
the prevailing party below and must not reweigh the evidence or reassess witness
credibility.

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 157, 202 P.3d 27 (2009).
Appeal from Sedgwick District Court; RICHARD T. BALLINGER, judge. Opinion filed September 16, 2011.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is
affirmed.

Elizabeth Lea Henry, of Henry & Mathewson, P.A., of Wichita, argued the cause and was on the
briefs for appellant natural father.

Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the
cause and was on the briefs for appellee stepfather.

The opinion of the court was delivered by

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JOHNSON, J.: S.M.H. (Mother) is the biological mother of J.M.D. and K.N.D. Her
current husband (Stepfather) petitioned to adopt the children without the consent of their
biological father, M.A.D. (Father). The district court determined that Father's consent to
the adoption was unnecessary, terminated Father's parental rights, and granted
Stepfather's adoption. In a split decision, the Court of Appeals reversed, finding
insufficient evidence to support the district court's determination that Father had failed to
assume his parental duties for the 2 consecutive years immediately preceding the
adoption petition. Stepfather seeks our review of the Court of Appeals' decision. We
reverse the Court of Appeals and affirm the district court.

FACTUAL AND PROCEDURAL OVERVIEW

Mother and Father were married in 1993, and the two children involved in this
action were born during the marriage; J.M.D. in 1996 and K.N.D. in 1998. J.M.D. was
diagnosed with cancer in 1999 and subsequently underwent numerous hospitalizations,
chemotherapy, and radiation treatments.

In November 2000, Mother and Father, who were living in Missouri, began caring
for Mother's 4-year-old stepsister (H.R.B.) and Mother's 1 1/2-year-old half-sister
(L.H.D.) and subsequently became their official managing conservators and guardians.
Between December 2000 and the summer of 2002, Mother and Father twice separated
and reconciled. By July 2002, Father was unemployed and acting as the primary
caretaker for all four children.

On July 18, 2002, L.H.D. sustained serious and ultimately fatal physical injuries
while under Father's supervision. Social service workers removed the other children from
the home, while investigating Father's culpability for the child's injuries and resulting
death. On July 23, 2002, Father was charged with felony child abuse for inflicting cruel
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and inhuman punishment by "beating, kicking, hitting, knocking to the ground and by
throwing water on L.H.D." He was released on bond, pending trial, conditioned on
having no contact with the children. During the period of Father's release on bond,
Mother obtained a divorce decree which granted her sole custody of the children and
ordered Father to pay $254 per month for child support. After his bond was revoked for
having contact with the children, Father pled to charges and was sentenced to a prison
term with a mandatory release date of December 8, 2014.

In March 2003, Mother and her children relocated to Kansas, where Mother met
and ultimately married Stepfather in August 2004. With Mother's consent, Stepfather
petitioned to adopt J.M.D. and K.N.D. in June 2007. Stepfather's counsel filed a petition
for habeas corpus, seeking to have Father brought to Kansas from the Missouri South
Central Correctional Center to participate in the adoption proceedings. Missouri prison
officials refused to honor the Kansas habeas corpus writ, but arrangements were made to
allow Father to participate in the trial by telephone.

Claiming that his right to due process was implicated, Father sought to delay the
proceedings until he could appear in person. In denying the continuance motion, the
district court noted that Stepfather had made every effort to obtain Father's presence and
that, notwithstanding earlier possible parole dates, Father's release was not assured until
his mandatory release date in 2014, over 7 years later. Citing to the children's interest in a
timely decision and the demands of judicial economy, the court found that Father's ability
to participate by telephone satisfied his right to due process.

At trial, Father presented evidence of his contacts with the children while he was
imprisoned, both directly through letters and telephone calls and indirectly through his
sister, T.R. On the other hand, Stepfather presented the testimony of a school counselor
and the children's treating psychologist, relating the impact on the children of L.H.D.'s
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death and Father's incarceration. Both testified that the children suffered from anxiety and
symptoms of posttraumatic stress disorder and opined that they would benefit from the
closure and permanency that would be attained through the adoption.

During the 2 years preceding the adoption petition, June 2005 to June 2007, Father
was earning approximately $20 per month in prison wages and was receiving a veteran's
disability payment of approximately $105 per month. T.R. testified that Father would
provide her with money to occasionally purchase $10 or $20 gift cards for the children
and to send cards and money for birthdays and Christmas. However, none of the
disability payments were ever utilized to directly pay child support to Mother. In
September 2006, child support enforcement authorities contacted Father about his failure
to pay child support. After Father requested a reduction in the court-ordered support of
$254 per month, it was set at $5 per month, presumably based solely on his prison wages.
Thereafter, Father paid the $5 per month support, plus an additional $3.50 per month
toward his arrearage.

At the close of evidence, the parties argued differing interpretations of a 2006
amendment to K.S.A. 59-2136(d), which added the language: "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." L. 2006, ch. 22, sec. 1(d). Ultimately,
the district court opined that the amendment required the judge to consider the best
interests of the child and the fitness of the nonconsenting parent, notwithstanding the
provision's ambiguity or possible conflict with subsection (h) of the statute.

The district court then proceeded to find that Father was unfit and that the
Stepfather's adoption was in the best interests of the children. Further, the trial court held
that Father had failed to assume the duties of a parent for 2 consecutive years prior to the
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filing of the adoption petition. Accordingly, the court terminated Father's parental rights
and determined that his consent to the adoption was not necessary.

Father appealed, arguing: (1) The district court misinterpreted and misapplied the
stepparent adoption statute by considering Father's fitness and the best interests of the
children as overriding factors in granting Stepfather's petition for adoption; (2) there was
insufficient evidence to support a finding that Father's consent to the adoption was not
required; and (3) Father was denied due process when the court refused to continue the
trial until he could be released from prison and attend the trial in person. In a split
decision, the Court of Appeals reversed the district court. In re Adoption of J.M.D., 41
Kan. App. 2d 157, 202 P.3d 27 (2009) (Marquardt, J., dissenting).

Relying on In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245 (2008), the
majority found that to dispense with the requirement of the natural father's consent to a
stepparent adoption, the court must find that the nonconsenting father had failed to fulfill
his parental duties for 2 consecutive years next preceding the adoption petition,
regardless of any determination the court may make with respect to the natural father's
fitness or the best interests of the child. J.M.D., 41 Kan. App. 2d at 162-64. The majority
acknowledged that the district court in this case had correctly applied the stepparent
adoption statute by first making a determination that Father had failed to assume his
parental duties so as to permit the adoption to proceed without Father's consent, and then
the court independently considered Father's fitness and the best interests of the children in
determining the propriety of granting the adoption. However, the majority found that the
district court's determination that Father had failed to fulfill his parental duties was not
supported by substantial and competent evidence. 41 Kan. App. 2d at 164-70.

The dissent took issue with the majority's statutory interpretation, opining that
eliminating Father's fitness and the best interests of the children as factors to consider in
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determining whether the natural parent's consent was required rendered meaningless the
2006 amendment to K.S.A. 59-2136(d). See 41 Kan. App. 2d at 174-75 (Marquardt, J.,
dissenting). Further, the dissent disagreed with the majority's assessment of Father's
efforts toward fulfilling his parental duties, finding such efforts should be ignored as
incidental. 41 Kan. App. 2d at 175.

In seeking review, Stepfather separately states a number of issues. He contends the
Court of Appeals misinterpreted G.L.V., as that case relates Father's unfitness to the
determination of whether consent is required and misconstrued the time period which
may be considered when determining whether Father has failed or refused to assume
parental duties. He urges an interpretation of K.S.A. 2010 Supp. 59-2136(d), whereby the
word "must" means "may," rather than being the equivalent of "shall." Additionally,
Stepfather urges this court to revisit the judicially created "two-column ledger" approach
in applying K.S.A. 2010 Supp. 59-2136(d) and to replace it with a totality of the
circumstances analysis. In essence, then, Stepfather is challenging the manner in which
appellate courts have interpreted and applied the stepparent adoption provisions of K.S.A.
2010 Supp. 59-2136(d).

With respect to the unique facts of this case, Stepfather asserts that the evidence
was sufficient to support the district court's findings and that the Court of Appeals erred
in making its own findings that Father financially and emotionally supported his children
in a significant and appropriate manner. We will look first at the legal framework for
analyzing whether a father's consent is necessary in a stepparent adoption and then
evaluate the sufficiency of the evidence in this case to support the district court's finding
that Father's consent was not required.

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STATUTORY FRAMEWORK

A. Standard of Review

Statutory interpretation is a legal question over which appellate courts exercise
unlimited review, unfettered by the trial court's interpretation. State v. Bryan, 281 Kan.
157, 159, 130 P.3d 85 (2006).

B. Analysis

Our obvious starting point when considering how a statutory procedure is
supposed to operate is to look at the applicable statutes. Generally, Article 21 of Chapter
59 of the Kansas Statutes Annotated governs adoptions. Specifically, K.S.A. 2010 Supp.
59-2136 applies where a relinquishment or consent to an adoption has not been obtained
from a natural parent, and the court is permitted to determine the necessity of such a
relinquishment or consent. K.S.A. 2010 Supp. 59-2136(a). Even more specific to our
case, K.S.A. 2010 Supp. 59-2136(d) applies when a stepfather seeks to adopt his wife's
children. That provision states:

"(d) In a stepparent adoption, if a mother consents to the adoption of a child who
has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114 and
amendments thereto, or who has a father as to whom the child is a legitimate child under
prior law of this state or under the law of another jurisdiction, the consent of such 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
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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.) K.S.A. 2010 Supp.
59-2136(d).

The italicized last sentence was added in 2006. L. 2006, ch. 22, sec. 1(d). What
role the unfitness of a nonconsenting parent plays in a stepparent adoption is the principal
question presented in this appeal. However, before focusing our attention on the specific
language of this subsection (d), we pause to consider how it fits with the other provisions
of K.S.A. 2010 Supp. 59-2136, in order to fulfill our directive to construe the various
provisions of an act in pari materia. See Pankratz Implement Co. v. Citizens Nat'l Bank,
281 Kan. 209, 215, 130 P.3d 57 (2006).

As noted, subsection (a) describes the applicability of K.S.A. 2010 Supp. 59-2136.
Subsection (b) clarifies that, wherever practicable, the statute's provisions applicable to
the father shall also apply to the mother, and vice versa. Subsection (c) addresses the
appointment of an attorney to represent any father who is unknown or whose
whereabouts are unknown, and it directs the court to publish notice where no person is
identified as the father or possible father.

Pointedly, subsection (c) differentiates between stepparent adoptions and all other
cases. In stepparent adoptions, the court "may" appoint an attorney, but "[i]n all other
cases, the court shall appoint an attorney." K.S.A. 2010 Supp. 59-2136(c).

Subsection (e) directs that, when a mother desires to relinquish or consent to the
adoption of her child, "a petition shall be filed in the district court to terminate the
parental rights of the father, unless the father's relationship to the child has been
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previously terminated or determined not to exist by a court." K.S.A. 2010 Supp. 59-
2136(e). However, the subsection commences by declaring that the provisions of
subsection (d), addressing stepparent adoptions, are specifically excepted from the
termination provisions set forth in K.S.A. 2010 Supp. 59-2136(e). In other words, a
petition to terminate the father's parental rights is not mandated in a stepparent adoption.

Subsection (f) addresses the manner by which notice is to be given to the person
identified as the father or possible father. Subsection (g) clarifies that the court need not
go through the termination of parental rights procedure set forth later in the statute, if the
court has been unable to identify a possible father and no one has claimed custodial rights
for the child.

Subsection (h) is important to our understanding of subsection (d). Before taking a
close look at that subsection, we note that the last subsection, K.S.A. 2010 Supp. 59-
2136(i), addresses the impact of the termination of parental rights on the right to inherit
of both the birth parents and the child. Returning to subsection (h), we set out that
provision in its entirety, noting in italics the relevant 2006 changes made in H.B. 2665 at
the same time the last sentence of subsection (d) was added. See L. 2006, ch. 22, sec.
1(h).

"(h)(1) When a father or alleged father appears and asserts parental rights, the
court shall determine parentage, if necessary pursuant to the Kansas parentage act. If a
father desires but is financially unable to employ an attorney, the court shall appoint an
attorney for the father. Thereafter, the court may order that parental rights be terminated,
upon a finding by clear and convincing evidence of any of the following:
(A) The father abandoned or neglected the child after having knowledge of the
child's birth;
(B) the father is unfit as a parent or incapable of giving consent;
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(C) the father has made no reasonable efforts to support or communicate with
the child after having knowledge of the child's birth;
(D) the father, after having knowledge of the pregnancy, failed without
reasonable cause to provide support for the mother during the six months prior to the
child's birth;
(E) the father abandoned the mother after having knowledge of the pregnancy;
(F) the birth of the child was the result of rape of the mother; or
(G) the father has failed or refused to assume the duties of a parent for two
consecutive years next preceding the filing of the petition.
"(2) In making a finding whether parental rights shall be terminated under this
subsection, the court may:
(A) Consider and weigh the best interest of the child; and
(B) disregard incidental visitations, contacts, communications or contributions.
"(3) 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." (Emphasis added.) K.S.A. 2010
Supp. 59-2136(h).

In his supplemental brief filed with this court, Stepfather suggests that the 2006
addition of the provision in K.S.A. 59-2136(h)(2)(A), permitting the court to consider and
weigh the best interest of the child in deciding whether to terminate parental rights under
subsection (h), manifests a legislative intent "to allow a trial court, within its discretion,
to use the child's best interest, or parent's unfitness, or both, as considerations for
deciding whether or not to terminate a parent's rights in a stepparent adoption" under
subsection (d). The apparent notion is that the legislature intended to impliedly
incorporate the provisions of subsection (h) into the stepparent provisions of subsection
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(d). Both the statutory language and legislative history of K.S.A. 2010 Supp. 59-2136
belie such an intent.

K.S.A. 59-2136 originated in 1990, as part of the Kansas Adoption and
Relinquishment Act. See L. 1990, ch. 145, sec. 26 (S.B. 431). The Act was the result of a
study by the Family Law Advisory Committee on Kansas adoption and relinquishment
laws, and the purpose of the bill was to consolidate the applicable laws which were
previously scattered throughout multiple articles in two different chapters of the Kansas
Statutes. See Minutes of the House Judiciary Committee, March 28, 1990, Attachment 3.
During hearings on the bill, the Advisory Committee presented its comments on each of
the new and amended provisions within the Act. Accompanying the section which would
become K.S.A. 59-2136(d) was the following comment:

"Subsection (d) limits the grounds for termination of certain natural fathers'
parental rights in connection with stepparent adoptions. Generally, if the child was the
product of a marriage or attempted marriage, the consent of the father must be obtained
unless there was a failure to assume parental duties for two years. The committee justifies
this differing treatment of certain fathers in stepparent adoptions on the basis there is not
the urgency to create a new family for the child since the child is residing with the mother
and stepfather." (Emphasis added.) Minutes of the House Judiciary Committee, March
28, 1990, Attachment 3.

The clearly stated intent was to treat the parental rights termination of natural or
presumed fathers differently in stepparent adoptions than in other types of adoptions.
That stated intent contradicts any implication that the legislature intended to incorporate
the parental termination provisions of subsection (h) into the stepparent adoption
provisions of subsection (d).

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Moreover, the 2006 amendments to K.S.A. 59-2136 do not indicate a legislative
intent to change the original enactment's purposefully disparate treatment of fathers in
stepparent adoptions. After the amendments, subsection (c) retained its different
provision for appointing an attorney for unknown fathers in a stepparent adoption, and
subsection (e) still excepted stepparent adoptions from the requirement of filing a petition
to terminate the parental rights of the father. Perhaps more to the point, the 2006 change
in subsection (h) permitting the district court to consider and weigh the best interest of
the child was explicitly made applicable when the court is making a finding "whether
parental rights shall be terminated under this subsection." (Emphasis added.) K.S.A. 2010
Supp. 59-2136(h)(2). If a court is determining under subsection (d) whether a father has
failed to assume the duties of a parent within the preceding 2 years, it is not making a
finding whether parental rights should be terminated under subsection (h). Likewise, the
subsection (d) addition in 2006 makes consideration of the best interests of the child and
the fitness of the nonconsenting parent applicable to the determination of "whether a
stepparent adoption should be granted," rather than being applicable to the prefatory
determination of whether father's rights should be terminated to make way for the
adoption.

In short, the termination of parental rights provisions in K.S.A. 2010 Supp. 59-
2136(h) simply do not apply to the question of whether a natural father must consent to
the adoption of his children by a stepfather. The legislature intended for that question to
be answered by the provisions of K.S.A. 2010 Supp. 2136(d), unaffected by the
provisions governing the termination of parental rights in other types of adoptions.
Stepfather's policy argument—that it should not be more difficult to terminate the
parental rights of a father in a stepparent adoption than it is to terminate a father's parental
rights in a stranger adoption—are more properly directed to the legislature. See O'Bryan
v. Columbia Ins. Group, 274 Kan. 572, Syl. ¶ 2, 56 P.3d 789 (2002) ("Courts should
avoid making public policy where the statutory law has developed.").
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The Court of Appeals appropriately decided the matter based solely on the
provisions of K.S.A. 2010 Supp. 59-2136(d), which the panel construed in light of its
understanding of our decision in G.L.V. That case was our first opportunity to apply
K.S.A. 59-2136(d) after the 2006 amendments. Stepfather contends that G.L.V. contained
incorrect dicta, which the Court of Appeals misapplied to reach an incorrect result.

G.L.V. involved an attempted stepparent adoption without the natural father's
consent, where father had paid court-ordered child support, plus additional amounts on an
arrearage, for over 3 years preceding the filing of stepfather's adoption petition. However,
father had not had any significant contact with his children for the 9 years prior to the
adoption proceedings, albeit father's parents and other family members had maintained a
relationship with the children. Unlike the present case, the father in G.L.V. was not
incarcerated.

The district court in G.L.V. noted that Kansas cases had created a two-sided ledger
approach to 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." G.L.V., 286 Kan. at 1038. The district court noted
further that a parent must fail both sides of the ledger to have his or her parental rights
terminated, i.e., to permit the stepparent to adopt the children without the natural parent's
consent. The court found that the two-sided ledger formula would require a denial of the
adoption in that case because the natural father had provided sufficient child support to
pass the financial test, even though the father "'miserably'" failed the "'"love and
affection" test.'" 286 Kan. at 1038.

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However, the district court struggled with how the 2006 amendment to subsection
(d)—permitting the district court to consider best interests of the child and the fitness of
the nonconsenting natural father—was suppose to affect the judicially created two-sided
ledger test. Ultimately, the district court opined that there was no evidence that father was
an unfit parent and that "'[c]onsideration of the best interest of the children does not
clearly favor one parent over the other,'" so that the outcome reached under the ledger test
in that case was not altered by the 2006 amendment to K.S.A. 59-2136(d).

A divided panel of the Court of Appeals affirmed the district court,

"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 [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),] even though it granted a district
court discretionary authority to consider the best interests of the child and the fitness of
the nonconsenting parent. [In re Adoption of G.L.V., 38 Kan. App. 2d 144, 154-55, 163
P.3d 334 (2007)]." 286 Kan. at 1039.

The stepfather sought review with this court, arguing in the alternative that, after the 2006
amendment to K.S.A. 59-2136(d), either: (1) the best interests of the child involved in a
contested stepparent adoption are an overriding factor in determining whether to grant the
adoption; or (2) the court-made two-sided ledger has been converted to a three-column
ledger with love and affection in one column, financial support in another, and the best
interests of the child in the third column, all entitled to equal weight and consideration.

In its comprehensive review of the Court of Appeals decision, this court traced the
history of stepparent adoption proceedings in this state, specifically looking at the
decisions in In re Adoption of B.M.W., 268 Kan. 871, 2 P.3d 159 (2000); In re Adoption
of K.J.B., 265 Kan. 90, 959 P.2d 853 (1998); In re Adoption of S.E.B., 257 Kan. 266, 891
16



P.2d 440 (1995); In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987); In re
Adoption of C.R.D., 21 Kan. App. 2d 94, 897 P.2d 181 (1995); and In re Adoption of
Baby Boy S., 16 Kan. App. 2d 311, 822 P.2d 76 (1991). That review called into question
the legitimacy of the two-sided ledger test.

G.L.V. described how the two-sided ledger test had originated in a concurring
opinion in C.R.D. that advocated for an approach that "was clearly at odds with the
previous decisions of Kansas courts, which had consistently held that a determination as
to whether the nonconsenting parent had failed to assume parental duties was based on a
review of all of the circumstances. See, e.g., S.E.B., 257 Kan. at 273; F.A.R., 242 Kan. at
236." G.L.V., 286 Kan. at 1049. G.L.V. pointed out that the newly proposed test had
restricted the factors to be considered to only two parental duties—love and affection,
and financial support—even though "there are numerous duties associated with being a
parent to a child." 286 Kan. at 1049, 1054. Moreover, we opined in G.L.V. that the
statutory interpretation in the C.R.D. concurrence "was only loosely based on the
language of K.S.A. 59-2136(d)" and that the C.R.D. majority completely ignored the
statutory rebuttable presumption arising from insubstantial payment of judicially decreed
child support. G.L.V., 286 Kan. at 1049.

G.L.V. later clarified that C.R.D.'s refusal to apply the statutory presumption was
based on an overbroad declaration of a natural parent's constitutional rights. 286 Kan. at
1058-60. Moreover, the opinion intimated that this court's adoption of the two-sided
ledger test in K.J.B. was suspect because the K.J.B. opinion did not comment on the
constitutional considerations in play or discuss the effect on its decision of the statutory
rebuttable presumption. 286 Kan. at 1050. Nevertheless, G.L.V. avoided explicitly
disapproving the two-sided ledger paradigm because that "approach [was] not under
attack in [that] appeal" and because the specific, narrow questions posed in the
17



stepfather's petition for review could be answered without such a holding. 286 Kan. at
1054.

We note, however, that the G.L.V. opinion also cited to the rationale in B.M.W.,
268 Kan. at 880-84, where the court found it persuasive that the legislature had not
amended K.S.A. 59-2136(d) to set forth an alternative framework to the two-sided ledger
approach after its judicial pronouncement. See G.L.V., 286 Kan. at 1054. Here, we have
the 2006 legislative amendment, even though G.L.V. questioned whether that change was
aimed at the two-sided ledger aspect of the stepparent adoption procedure. Nevertheless,
this court has not always found that legislative inaction, even for long periods of time,
precludes the subsequent correction of judicially created rules which are contrary to
plainly worded statutes. See State v. Gunby, 282 Kan. 39, 49-50, 144 P.3d 647 (2006)
(abrogating judicially created rules governing independent admissibility of K.S.A. 60-455
evidence of prior crimes or civil wrongs notwithstanding legislative inaction for
decades); see also Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521-29, 154 P.3d 494
(2007) (abrogating judicially created parallel injury rule notwithstanding legislative
inaction for 76 years).

This is a circumstance where legislative inaction should not control our decision.
The two-sided ledger formulation was cut from whole cloth to address a nonexistent
constitutional infirmity and to fix a situation that was not broken. As G.L.V. explained:

"As this discussion of the development of Kansas stepparent adoption law
demonstrates, we have consistently repeated that all surrounding circumstances are to be
considered when determining whether a natural parent must consent to a stepparent
adoption—that is, whether the natural parent has 'assumed[d] 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.' See K.S.A. 2007 Supp. 59-2136(d); B.M.W., 268 Kan. at 882.
This statement recognizes that there are numerous duties associated with being a parent
18



to a child, and all such duties—even though not explicitly enumerated—may be
considered." 286 Kan. at 1053-54.

Accordingly, we now take the step which was justified by our analysis in G.L.V.;
we put to rest the artificial constraints of the two-sided ledger approach and return to the
historical approach of considering "all surrounding circumstances." See G.L.V., 286 Kan.
at 1044-46, 1049, 1053. Likewise, effect must be given to the plainly stated statutory
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."
K.S.A. 2010 Supp. 59-2136(d).

Of course, a natural father is still free to argue that the stepparent has failed to
establish the conditions precedent to the presumption set forth in the statute, such as the
father's financial ability to pay the judicially decreed child support amount. Or, a natural
father might still argue that his "showering of affection" on the child or the performance
of other parental duties has effectively rebutted the statutory presumption emanating from
financial nonsupport.

Likewise, on the flip side, a district court is not precluded from considering a
natural father's unfavorable child support payment performance as part of "all of the
surrounding circumstances," even though all of the conditions for the statutory
presumption have not been met. In other words, as we call on district courts to do in
many other contexts, the trial court must look at the totality of the circumstances when
determining whether a natural father has failed to assume his parental duties under K.S.A.
2010 Supp. 59-2136(d).
19




Our modification of the formula for determining whether a parent has failed to
assume parental duties does not change our decision in G.L.V. that such a failure of
parental duties must be found before the court can factor in the best interests of the child.
We stand by our holding that "the best interests of the child as expressed in the 2006
amendment [to K.S.A. 59-2136(d)] does not trump the requirement that a natural parent
who has assumed his or her parental responsibilities must consent before a stepparent
adoption can be granted." 286 Kan. at 1063.

What remains to be determined is the role that fitness of the nonconsenting parent
should play in the stepparent adoption procedure. Contrary to Stepfather's assertion about
the dicta in G.L.V., that opinion included an explicit disclaimer:

"We observe that our decision in this case does not extend to the statutory
language in the amendment dealing with the 'fitness of the nonconsenting parent.' K.S.A.
2007 Supp. 59-2136(d). Unfitness was simply not an issue in this case. As the district
court noted in its decision, there was no allegation of unfitness of the natural father. No
evidence was presented on this issue upon hearing before the district court, and the
stepfather has raised no question of unfitness on appeal. Thus, we do not in this opinion
determine what the legislature intended by this phrase, except to acknowledge that the
fitness of a nonconsenting parent is a much different question." 286 Kan. at 1063-64.

Perhaps the logically consistent approach would be to treat the fitness factor the
same as the best-interests-of-the-child factor and direct that the district court must make a
finding on whether the natural father has assumed parental duties within the preceding 2
years, i.e., whether the natural father's consent is required, before looking at the fitness of
the natural father. The problem with that approach is finding a purpose to be served by a
parental fitness assessment at that stage of the proceeding. See State v. Trautloff, 289
Kan. 793, 797, 217 P.3d 15 (2009) (courts presume legislature does not intend to enact
20



useless or meaningless legislation); see also State v. Preston, 287 Kan. 181, 184, 195
P.3d 240 (2008) (when legislature revises existing law, court presumes legislature
intended to change law as it existed prior to amendment).

In G.L.V., we recognized the dilemma of finding a purpose for the 2006
amendments when we said that

"[t]he additional language expressly authorizing a court to consider the best interests of
the child in determining whether to grant a stepparent adoption provides the court with
additional discretionary powers to consider the best interests of the child in denying the
adoption—even where a natural parent has not assumed the duties of a parent as
articulated by this court—for unique reasons." (Emphasis added.) 286 Kan. at 1064.

The opinion then set forth some examples of where it might be best not to grant the
stepparent an adoption, even though the natural father's consent is not required because of
a failure to assume parental duties. Unfortunately, that stated purpose does not translate
well to explain why the fitness of the nonconsenting parent language was included in the
2006 amendment.

It makes scant sense to say that a stepparent adoption may proceed without the
natural father's consent because he has failed to assume his parental duties, i.e., his
parental rights may be terminated for unfitness, yet the district court has the discretion to
deny the adoption because of the fitness of the nonconsenting parent. How can the natural
father be at once unfit for purposes of excusing consent but fit for purposes of denying
the adoption? Likewise, if the unfitness factor was meant to refer to acts or omissions
more than 2 years prior to the filing of the stepparent adoption petition, then the 2-year
language in 59-2136(d) is rendered meaningless and that subsection becomes the
equivalent of the subsection (h) termination provisions.

21



Nevertheless, we must attempt to find a resolution to the ambiguities which the
legislature has created and declined to remedy. Such a resolution cannot produce a bright-
line rule, easy of application. We must attempt to read the added language permitting
consideration of the fitness of the nonconsenting parent in conjunction with the mandate
to determine from all of the surrounding circumstances whether the natural parent has
assumed his or her parental duties. Accordingly, we hold that a natural parent's unfitness
will not obviate the need for his or her consent to a stepparent adoption, unless the district
court finds that the unfitness has prevented the natural parent from assuming the duties of
a parent for 2 consecutive years next preceding the filing of the petition for adoption. For
instance, a father may be communicating with his children on more than an incidental
basis quantitatively, but because of the father's unfitness the contacts might be deemed to
be psychologically or emotionally abusive for the children. In such an event, the district
court might find that the natural father has failed to assume his parental duty of
safeguarding his children's physical, mental, or emotional health. See K.S.A. 2010 Supp.
38-2202(d) (definition of a child in need of care).

Before moving on, we pause to note that Stepfather also mentioned the argument
in Judge Marquardt's Court of Appeals dissent that suggested that the word "must" in 59-
2136(d) should be read as "may." See J.M.D., 41 Kan. App. 2d at 175. We presume the
argument is addressed to the portion of K.S.A. 2010 Supp. 59-2136(d) that says "the
consent of such father must be given to the adoption unless such father has failed or
refused to assume the duties of a parent . . . ." (Emphasis added.) If so, we need not
extend the discussion. The context in which the word "must" is used in that phrase leaves
no room for speculation; it was intended to convey that the consent is mandatory.

22



SUFFICIENCY OF THE EVIDENCE

The Court of Appeals correctly observed that "[w]hether a parent has refused or
failed to assume parental duties for the 2 years prior to the filing of the adoption petition
presents a question of fact." J.M.D., 41 Kan. App. 2d at 165. However, the panel found
insufficient evidence to support the district court's finding on that question and reversed.
See 41 Kan. App. 2d at 170.

A. Standard of Review

Stepfather argues that the panel applied the incorrect standard of review and
inappropriately retried the facts of the case. Citing to In re B.D.-Y., 286 Kan. 686, 705,
187 P.3d 594 (2008), he contends the correct standard should be: "whether after a review
of all the evidence, viewed in the light most favorable to the petitioners, a rational fact
finder could have found that [sic] the determination to be highly probable." Stepfather's
proposed standard applies to child in need of care determinations; the proper appellate
standard of review for stepparent adoptions is for substantial competent evidence. See
286 Kan. at 702; see also B.M.W., 268 Kan. at 882-83 ("Under K.S.A. 59-2136(d),
whether a parent has refused or failed to assume parental duties for 2 years prior to filing
an adoption petition is a question of fact, reviewed on appeal only to determine whether
the decision is supported by substantial competent evidence.").

In assessing the sufficiency of the evidence, an appellate court should not reweigh
the evidence or pass on the credibility of witnesses. Rather, the appellate court should
review the facts of the case in the light most favorable to the prevailing party below to
ascertain whether the trial court's decision is properly supported by substantial competent
evidence. In re Adoption of A.J.P., 24 Kan. App. 2d 891, 892-93, 953 P.2d 1387 (1998).
In other words, appellate review of factual questions should accord a great deal of
23



deference to the trial judge's determination, even in those instances where the appellate
jurists might have decided the case differently.

B. Analysis

Given the Court of Appeals' reliance on G.L.V., it might be helpful to begin by
pointing out some rather significant distinctions between that case and the one currently
before us. There, the district court specifically found that there was no evidence that the
father was an unfit parent. See G.L.V., 286 Kan. at 1064 (no evidence presented on issue
of unfitness in district court and no allegation of unfitness raised on appeal). Here, the
district court declared that the stepfather had established the father's unfitness by clear
and convincing evidence.

Perhaps more importantly, in G.L.V. the district court denied the stepparent
adoption petition based upon its finding that the natural father's consent was required.
The decisions of both the Court of Appeals and this court affirmed the trial court's
determination that the natural father had assumed his parental duties within the 2 years
preceding the adoption proceedings. In contrast, here, the Court of Appeals reversed the
district court's granting of the adoption, overruling the trial judge's finding that Father
had not assumed his parental duties within the 2 years preceding the adoption. That result
required the Court of Appeals to find that, even viewing the evidence in the light most
favorable to Stepfather (who prevailed below) and without reweighing evidence or
assessing witness credibility, there was insufficient competent evidence to support the
trial court's determination of a failure of parental duties. See J.M.D., 41 Kan. App. 2d at
170. We disagree with that assessment based on all of the surrounding circumstances.

We do agree, however, that the evidence did not support the district court's finding
that Stepfather had established nonpayment of child support sufficient to trigger K.S.A.
24



2010 Supp. 59-2136(d)'s rebuttable presumption of a nonassumption of parental duties. In
G.L.V., we reiterated that adoption statute provisions purporting to eliminate the necessity
of a natural parent's consent to adopt based on the parent's failure to fulfill parental
obligations must be "'strictly construed in favor of maintaining the rights of natural
parents.'" 286 Kan. at 1042 (quoting B.M.W., 268 Kan. at 881-82). Accordingly, Father's
nonperformance must literally meet all of the stated conditions of the statutory
presumption.

For the presumption to arise, the father's failure to provide a substantial portion of
the judicially decreed child support must have been for the 2-year period immediately
preceding the filing of the adoption petition. As the Court of Appeals noted, after Father's
judicially decreed child support was lowered to $5 per month, he paid all of that amount
for the last 10 months before the adoption proceedings commenced. 41 Kan. App. 2d at
166. There was not 2 consecutive years of nonpayment of court-ordered child support,
even though the modified court order may have been obtained by withholding
information about the $105 monthly veteran's benefits. Under a strict and literal reading
of K.S.A. 2010 Supp. 59-2136(d), the circumstances necessary to create the statutory
rebuttable presumption were simply not present.

Where we part company with the Court of Appeals opinion is its declaration that
"the statute does not require a parent to provide court-ordered child support to the extent
to which the parent is financially able in order to establish such parent has assumed his or
her duties under K.S.A. 2008 Supp. 59-2136(d)." 41 Kan. App. 2d at 167. The panel
suggests that if Father can establish that he was financially unable to pay a substantial
portion of the premodification court-ordered amount of $254 per month, then he had no
duty as a parent to pay any amount of support. To the contrary, even if the statutory
presumption is not in effect, a parent still has a duty to support his or her child to the
extent to which the parent is financially able. See State ex rel. Secretary of SRS v. Bohrer,
25



286 Kan. 898, 906, 189 P.3d 1157 (2008) ("Parents have a common-law duty to support
their minor children, regardless of any statute imposing such an obligation."). Before
modification, Father had a parental duty to pay as much of the $254 as he was able.
Further, he had an obligation to disclose the existence of his $105 per month veteran's
payments when the court was modifying child support and he had a duty to pay as much
of his $125 per month income as he was financially able to pay, both before and after the
modification of the judicially decreed amount. Father did not pay all that he could, and
the evidence supports the district court's finding that child support payments were
incidental and insufficient to establish an assumption of parental duty.

With respect to the emotional support aspect of parental duties, the Court of
Appeals engaged in a quantitative analysis of the contacts Father had with the children
during the 2 years preceding the adoption. The panel opined, apparently based on its
interpretation of G.L.V., that "we do not consider, and are prohibited from considering in
this stepparent adoption proceeding, the events leading up to Father's incarceration or his
fitness as a parent in light of the events that transpired." J.M.D., 41 Kan. App. 2d at 170.
We disagree.

The parental duty involved is to provide for and nurture the children's mental and
emotional health, rather than to simply make frequent contact with the children. A father
who verbally berates and abuses his child is not assuming a parental duty, even if that
contact is made three times a day. Moreover, an assessment of the effect on the child of
the contact and communications between father and child cannot be divorced from their
prior relationship, e.g., a child having observed his father kill another child.

The district court in this case had the opportunity to hear all of the witnesses,
including the children's counselor and treating psychologist. We are unprepared to say
that, viewing the evidence in the light most favorable to granting the adoption, that the
26



evidence was insufficient to establish that Father had failed to assume the parental duty of
providing for his children's psychological and emotional health in the 2 years next
preceding the adoption petition. Accordingly, we affirm the district court and reverse the
Court of Appeals.

ATTORNEY FEES

In the Court of Appeals, court-appointed counsel for the indigent natural father
sought attorney fees and costs. The panel noted that the trial court had awarded attorney
fees to Father's trial counsel as costs of the action, which were then assessed against the
Stepfather, as petitioner. Citing to In re Adoption of D.S.D., 28 Kan. App. 2d 686, 687-
88, 19 P.3d 204 (2001), the panel opined that "the district court below had the authority
to assess the fees of Father's court-appointed trial counsel against Stepfather." J.M.D., 41
Kan. App. 2d at 172-73. Therefore, the panel found that, pursuant to Supreme Court Rule
7.07(b) (2010 Kan. Ct. R. Annot. 62), the Court of Appeals had discretionary authority to
assess against Stepfather the attorney fees of Father's court-appointed appellate counsel.
41 Kan. App. 2d at 173. However, the panel exercised its discretion to reduce the claimed
hourly rate of $200 to the rate established for court-appointed attorneys in criminal cases,
which was $80 per hour. The resulting total award was $3,941.76. See 41 Kan. App. 2d at
173-74.

Neither party has sought review of the Court of Appeals' ruling on those appellate
attorney fees. However, Father's court-appointed attorney has moved this court for
additional fees in connection with the petition for review proceedings. That motion is
timely under Supreme Court Rule 7.07(b) and is accompanied by the required affidavit.
Father's attorney claims to have performed 16 hours of professional services and to have
advanced $245.91 in costs. Again, the attorney requests to be paid at the customary
27



billing rate in Sedgwick County of $200 per hour, which counsel contends is consistent
with her experience and ability.

Stepfather's response to the motion for attorney fees is somewhat obtuse and takes
the form of four statements. The first statement is that the "birth father filed the appeal
and therefore he should be ordered to bear the attorney's fees for his counsel." Of course,
that was an argument to make in the Court of Appeals. It is the Stepfather who filed the
petition for review in this court, causing Father to incur additional attorney fees.

Stepfather's second point is that "the trial counsel fees should have been adjusted
under the Court of Appeals' holding but that type of authority was not available to the
trial court." We confess to some confusion as to how that point impacts the decision
before us. We do, however, understand Stepfather's third point, which is essentially that
this court should follow the lead of the Court of Appeals and approve a lower fee.
Finally, in his fourth point, Stepfather advises that he has lost his job but continues to
support the two children involved in this appeal, as well as three others.

The Court of Appeals acknowledged that "it may appear harsh to require a
prospective adoptive parent to pay attorney fees for an attorney appointed to represent the
parental rights of [an] indigent biological parent." 41 Kan. App. 2d at 173. Accordingly,
the panel ameliorated that harshness by adjusting the hourly rate to comport with criminal
defense appointments. We concur with that method of balancing the interests of all
concerned. Therefore, we award attorney fees at the hourly rate of $80, which results in
an assessment of fees and costs against Stepfather for the proceedings in connection with
the petition for review of $1,525.91.

Judgment of the Court of Appeals reversing the district court is reversed; judgment
of the district court is affirmed.
28




DAVIS, C.J., concurs in the result.