In re Baby Girl B.

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No. 104,740

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF

BABY GIRL B., D/O/B: 2/3/10, A MINOR CHILD.


SYLLABUS BY THE COURT

1.
Natural parents who have assumed their parental responsibilities have a
fundamental right, protected by the United States Constitution and the Kansas
Constitution, to raise their children. K.S.A. 2009 Supp. 59-2136(h)(2)(A) implicitly
expresses Kansas' public policy that the best interests of children are served by fostering
their relationships with their natural parents in cases where the parents have assumed
parental duties toward their children.

2.
We strictly construe adoption statutes 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. A
natural parent's right to raise his or her child is tempered by the extent to which the parent
has assumed his or her parental responsibilities. When a natural father has assumed a
sufficient level of parental responsibility under Kansas law, his parental rights are entitled
to constitutional protection.

3.
A petitioner in an adoption proceeding, under K.S.A. 2009 Supp. 59-2136(h)(1),
has the burden of proving by clear and convincing evidence that termination of parental
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rights is appropriate. A court is to consider all of the relevant surrounding circumstances
in an action based on K.S.A. 2009 Supp. 59-2136(h)(1)(D).

4.
Appellate courts will uphold termination of parental rights if, after reviewing all
the evidence in the light most favorable to the prevailing party, they deem the district
court's findings of fact to be highly probable, i.e., supported by clear and convincing
evidence. Appellate courts do not weigh conflicting evidence, pass on the credibility of
witnesses, or redetermine factual questions.

5.
A determination of whether to terminate paternal rights incident to an adoption is
subject to K.S.A. 2009 Supp. 59-2136. K.S.A. 2009 Supp. 59-2136(h)(1) allows a district
court to terminate parental rights upon finding by clear and convincing evidence any of
the following factors: (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; (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 6 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 2
consecutive years next preceding the filing of the petition.

6.
When applying K.S.A. 2009 Supp. 59-2136(h), Kansas appellate courts have
strongly endorsed the parental preference doctrine, required strict compliance, and
diligently enforced the clear and convincing evidence standard.

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7.
Under the facts of this case, the trial court erred in terminating the natural father's
parental rights upon its finding that, after having knowledge of the pregnancy, he failed
without reasonable cause to provide support for the mother during the 6 months prior to
the child's birth (K.S.A. 2009 Supp. 59-2136[h][1][D]) and he abandoned the mother
after having knowledge of the pregnancy (K.S.A. 2009 Supp. 59-2136[h][1][E]).

Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed July 8, 2011.
Reversed and remanded with directions.

Joseph W. Booth, of Lenexa, for appellant natural father.

Martin W. Bauer and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of
Wichita, for appellees natural mother and Adoption Choices of Kansas, Inc.

Before BUSER, P.J., MALONE and STANDRIDGE, JJ.

BUSER, J.: Curtis, the natural father of Baby Girl B., appeals from the trial court's
termination of his parental rights. The trial court terminated Curtis' parental rights based
on two statutory grounds. First, the trial court found that Curtis "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" under K.S.A. 2009 Supp. 59-
2136(h)(1)(D). Second, the trial court found that Curtis "abandoned the mother after
having knowledge of the pregnancy" under K.S.A. 2009 Supp. 59-2136(h)(1)(E).

We conclude the trial court erred in its interpretation and application of K.S.A.
2009 Supp. 59-2136(h)(1)(D) and (E). Additionally, our review of the record convinces
us the trial court's findings are not supported by clear and convincing evidence.
Accordingly, we reverse the termination of Curtis' parental rights and remand the case to
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the district court with directions to conduct further proceedings to determine the custody
issues involving Baby Girl B.

FACTUAL AND PROCEDURAL BACKGROUND

Curtis M. (Curtis) is the baby's natural father. Racheal B. (Racheal) is Baby Girl
B.'s birth mother. From January 2009 through May 2009, Curtis and Racheal had an
intimate sexual relationship. Racheal terminated the relationship in June 2009 because
she could not trust Curtis. Curtis and Racheal did not actually see each other after July 7,
2009. They were never married to one another.

In June or July 2009, Racheal told Curtis that she might be pregnant. Racheal
testified that she told Curtis she had missed a menstrual period, but she did not know if
that was due to the stress of a pending divorce. Racheal told Curtis that during a prior
pregnancy she did not gain weight and she believed she had "mono." Curtis testified that
he told Racheal to visit a doctor so they could find out if she was pregnant.

Curtis and Racheal talked on the phone once in August 2009 and once in
September 2009. Although on both occasions they talked about a personal meeting, no
meeting ever occurred. During both of these phone conversations, the topic of Racheal's
possible pregnancy was never mentioned.

In October 2009, Racheal divorced her husband. During the divorce proceedings,
Racheal signed a divorce decree indicating she was not pregnant because, according to
her testimony, in October 2009, she did not believe she was pregnant.

In November 2009, Curtis called Racheal about visiting her, but no visit occurred.
Once again, the topic of Racheal's possible pregnancy was not mentioned.

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On December 12, 2009, Curtis and Racheal had two long phone conversations.
The first phone call occurred at 11:13 a.m. and lasted 79 minutes. The second phone call
occurred at 7:44 p.m. and lasted 89 minutes. The content of the two phone calls was
controverted.

In his memorandum decision, the trial judge discussed the phone calls. First, the
trial court summarized the content of the phone calls based on Curtis' testimony:
"According to [Curtis], [Racheal] told [Curtis] that she might be pregnant. [Curtis] then
told [Racheal] to get a pregnancy test, but [Racheal] did not mention having used a home
pregnancy test. [Curtis] did ask if he could be a possible father to which [Racheal]
responded yes."

The trial court also summarized the content of the conversations based on
Racheal's testimony:

"[Racheal] testified that on December 12, 2009 she was 100% sure she was
pregnant. . . . [Curtis] told her to get a test. [Racheal] testified that she did get a test and
in a second call that evening she told [Curtis] that she had taken the home pregnancy test
and it was positive. [Curtis'] response was 'aren't you supposed to take those in the
morning[?]' [Curtis] told [Racheal] that he would be home for the holidays and would see
her then."

Importantly, the trial court did not resolve the critical issue raised by the
contradictory versions of the two phone conversations: Did Racheal tell Curtis she was
pregnant or that she might be pregnant?

From July to December 2009, Racheal did not miss her period. On January 13,
2010, Racheal had a blood test at a doctor's office. The doctor concluded that Racheal
was only about 8 weeks pregnant. On January 26, 2010, and January 31, 2010, Racheal
and Curtis exchanged text messages, but there was no mention of Racheal's pregnancy.
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Racheal was scheduled for an appointment for prenatal care on February 3, 2010;
however, on that date Baby Girl B. was born. Although he was able, it is uncontroverted
that in the 6 months prior to Baby Girl B.'s birth, Curtis did not provide financial or
emotional support to Racheal during her pregnancy.

Curtis learned of his daughter's birth from Racheal within a day or two. Racheal
advised Curtis that she was considering adoption. Curtis initially agreed to the adoption
but later requested a DNA test to confirm that he was, in fact, the father of Baby Girl B.
On February 11, 2010, Racheal and Adoption Choices of Kansas, Inc., petitioned the trial
court to terminate Curtis' parental rights to Baby Girl B. in order to provide for the baby's
adoption. Curtis received DNA confirmation that he was the natural father of the baby on
February 23, 2010. He filed a child in need of care petition the next day, seeking the care,
custody, and control of Baby Girl B. The following month, Curtis started a savings
account for the baby but did not provide any support to Racheal or the custodial family.
On March 15, 2010, Curtis also filed a paternity action requesting custody of Baby Girl
B. and parenting time.

An evidentiary hearing on the related matters was held on May 5, 2010. A
memorandum decision was filed on June 24, 2010. As discussed more fully below, the
trial court terminated Curtis' parental rights for two statutory reasons. First, the trial court
found that Curtis "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"
under K.S.A. 2009 Supp. 59-2136(h)(1)(D). Second, the trial court found that Curtis
"abandoned the mother after having knowledge of the pregnancy" under K.S.A. 2009
Supp. 59-2136(h)(1)(E). Finally, the trial court considered the best interests of Baby Girl
B. and reaffirmed the termination decision.



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Curtis filed a timely appeal.

TERMINATION OF CURTIS' PARENTAL RIGHTS

Recently, our Supreme Court filed an important opinion regarding the termination
of a natural father's parental rights. See In re Adoption of Baby Girl P., 291 Kan. 424,
242 P.3d 1168 (2010). In that opinion, the Supreme Court set forth the standard of review
and general legal principles relevant to termination of parental rights cases:

"Natural parents who have assumed their parental responsibilities have a
fundamental right, protected by the United States Constitution and the Kansas
Constitution, to raise their children. K.S.A. 2009 Supp. 59-2136(d) expresses Kansas'
public policy that the best interests of children are served by fostering their relationships
with their natural parents in cases where the parents have assumed parental duties toward
their children. In re Adoption of G.L.V., 286 Kan. 1034, 1057-58, 190 P.3d 245 (2008).

"We strictly construe adoption statutes 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. Adoption of G.L.V., 286 Kan. 1034, Syl. ¶ 6. A natural parent's right to raise his
or her child is tempered by the extent to which the parent has assumed his or her parental
responsibilities. When a natural father has assumed a sufficient level of parental
responsibility under Kansas law, his parental rights are entitled to constitutional
protection. Adoption of G.L.V., 286 Kan. at 1061-62.

"A petitioner in an adoption proceeding, under K.S.A. 2009 Supp. 59-2136, has
the burden of proving by clear and convincing evidence that termination of parental
rights is appropriate. In re Adoption of B.B.M., 290 Kan. 236, 243, 224 P.3d 1168 (2010).
A court is to consider all of the relevant surrounding circumstances in an action based on
K.S.A. 2009 Supp. 59-2136(h)(1)(D). Poverty alone is an insufficient basis for
termination under that provision. Adoption of B.B.M., 290 Kan. at 245.

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"Appellate courts will uphold termination of parental rights if, after reviewing all
the evidence in the light most favorable to the prevailing party, they deem the district
court's findings of fact to be highly probable, i.e., supported by clear and convincing
evidence. Appellate courts do not weigh conflicting evidence, pass on the credibility of
witnesses, or redetermine factual questions. Adoption of B.B.M., 290 Kan. at 244.

"A determination of whether to terminate paternal rights incident to an adoption
is subject to K.S.A. 2009 Supp. 59-2136. K.S.A. 2009 Supp. 59-2136(h)(1) allows a
district court to terminate parental rights upon finding by clear and convincing evidence
any of the following factors:

'(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;
'(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.'

"K.S.A. 2009 Supp. 59-2136(h)(2) further provides that, when making such a
determination, the district court may consider and weigh the best interest of the child and
may disregard incidental visitations, contacts, communications, or contributions." In re
Adoption of Baby Girl P., 291 Kan. at 430-31.

In applying the law to the facts of the present case, we first review the trial court's
termination of Curtis' parental rights because after having knowledge of Racheal's
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pregnancy, he "failed without reasonable cause to provide support for the mother during
the six months prior to the child's birth." K.S.A. 2009 Supp. 59-2136(h)(1)(D).

At the outset, Curtis does not contest the trial court's factual finding that "[Curtis]
did not provide any financial or emotional support to [Racheal] from July, 2009 through
February 3, 2010"—more than 6 months prior to the birth of Baby Girl B. Curtis readily
concedes he did not provide support to Racheal during the 6 months preceeding the
baby's birth. Curtis contends he did not provide any support because he did not have
knowledge of Racheal's pregnancy.

Curtis' primary claim on appeal is that the trial court erred when it found he did
not "seek out the existence of the pregnancy to preserve his rights." In other words, Curtis
contends the trial court misread K.S.A. 2009 Supp. 59-2136(h)(1)(D) to require that, with
knowledge of Racheal's possible pregnancy, he needed to investigate or confirm the
pregnancy in order to preserve his parental rights.

On the other hand, Racheal argues:

"The only representations [Racheal] made about the pregnancy were the three times she
told him she thought she was, or in fact, confirmed she was, pregnant and [Curtis] could
be the father. When [Racheal] confirmed the pregnancy during the second December
phone conversation, [Curtis] did not change his conduct or take any action. [Curtis']
passive conduct, in simply assuming [Racheal] was not pregnant, never inquiring about
[Racheal's] condition, and never coming to see [Racheal] so that they could take a
pregnancy test together, does not fulfill his 'active obligation' to exercise 'reasonable
diligence' to find out her condition."

The undisputed facts established only three instances prior to Baby Girl B.'s birth
where Racheal and Curtis mentioned the topic of pregnancy. The first occasion was in
June or July 2009. According to the trial court, although Racheal told Curtis "that she
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missed her period and that she might be pregnant, it is clear that even [Racheal] did not
believe she was pregnant at that time." (Emphasis added.) In fact, according to the trial
court, Racheal's belief that she was not pregnant continued until at least October 2009.

The second and third occasions where the subject of pregnancy was mentioned
were during two lengthy phone conversations on December 12, 2009. As set forth earlier,
Curtis claimed that Racheal once again merely mentioned a possible pregnancy, while
Racheal testified that in the second conversation she informed Curtis that, based on the
results of a home pregnancy test taken that day, she was, in fact, pregnant. The trial court
did not resolve these contradictory factual claims regarding whether Curtis was informed
that Racheal was, in fact, pregnant at that time.

Although the trial court stated that its termination decision was based on a finding
that Curtis had knowledge of Racheal's pregnancy, our reading of the trial court's
memorandum decision convinces us the trial court reached that conclusion based on
Curtis' failure to investigate Racheal's possible pregnancy and his failure to verify that
she was, in fact, pregnant:

"What steps did [Curtis] avail himself of to determine whether [Racheal] was pregnant?
Armed with the information [Racheal] might possibly be pregnant, [Curtis], with the
chance to possibly verify for himself the pregnancy during his stay in Leavenworth from
December 24-28, 2009, did nothing. . . . [Curtis] did not make the effort to find out, but
simply sat back and said get a pregnancy test. . . . [Curtis] did not avail himself of any of
the opportunities to discover whether [Racheal] was pregnant and consequently his
opportunity to assist [Racheal] with her pregnancy. . . . [T]he Petitioners have proven by
clear and convincing evidence that there is no reasonable cause for . . . [Curtis'] failure to
avail himself of his opportunities to discover or verify the pregnancy."

We conclude the trial court based its decision on a misreading of K.S.A. 2009
Supp. 59-2136(h)(1)(D).
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Interpretation of a statute is a question of law over which appellate courts have
unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
When a statute is plain and unambiguous, an appellate court does not speculate as to the
legislative intent behind it and will not read into the statute something not readily found
in it. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d
7 (2009).

K.S.A. 2009 Supp. 59-2136(h)(1)(D) allows the trial court to terminate parental
rights when "after having knowledge of the pregnancy" the father "failed without
reasonable cause to provide support for the mother during the six months prior to the
child's birth." The plain language of the statute requires the father to have knowledge of
the pregnancy before lack of support for the mother is a ground for termination of the
father's rights.

In the present case, however, the trial court substituted the words "possible
pregnancy" for the word "pregnancy" in the statute. The trial court then added to the
statute the requirement that when pregnancy is possible, the father is obligated to
discover or verify the pregnancy. This statutory interpretation is at odds with the plain
meaning of K.S.A. 2009 Supp. 59-2136(h)(1)(D). It also judicially expands the statutory
provisions to include a requirement that is not found in the statute.

The trial court's interpretation of the statute was based on In re Adoption of A.A.T.,
287 Kan. 590, 196 P.3d 1180 (2008), cert. denied 129 S. Ct. 2013 (2009). In that case, a
natural father sought to set aside the adoption of his newborn child over 6 months after
the adoption was finalized. The natural father, who did not assume parenting
responsibilities during the pregnancy, asserted he should be excused because the birth
mother, after informing the father of her pregnancy, lied and said she had terminated the
pregnancy. After the baby's birth, the mother provided inaccurate and misleading
information about the natural father to the hospital, the adoption agency, and the court. At
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the subsequent court proceeding, no father appeared, the natural father's rights were
terminated, and the adoption was finalized. The district court refused to set aside the
adoption as requested by the natural father. Our Supreme Court affirmed. 287 Kan. at
624-26, 629-30.

In the present case, the trial court cited In re Adoption of A.A.T. for its proposition
that

"[i]n a newborn adoption, the father's opportunity to make a commitment to parenting
must have been grasped during the pregnancy and in a prompt and timely manner as
measured by the fleeting opportunity availed to the father under the circumstances of the
case, in other words, within a short time after he discovered or reasonably should have
discovered that the mother was pregnant with his child." 287 Kan. at 610.

In re Adoption of A.A.T. is not applicable to this case. In re Adoption of A.A.T.
involved the attempt of a father to nullify the adoption of his natural child. Because the
father did not appear at the termination proceeding, K.S.A. 59-2136(g) applied, and the
termination factors set forth in K.S.A. 59-2136(h) were not applicable. See K.S.A. 2009
Supp. 59-2136(g); In re Adoption of Baby Girl P., 291 Kan. at 440-41 (Luckert, J.,
concurring). Moreover, because the natural father did not appear at the termination
hearing or assert custody prior to the adoption, the parental preference doctrine did not
apply.

As Justice Luckert stated in her concurring opinion in In re Adoption of Baby Girl
P.:

"The decision and rationale of Adoption of A.A.T. should be limited to the legal
question presented there: Whether a finalized adoption should be set aside because the
natural father did not receive notice of the adoption proceeding. The reasoning and
holding should not be extended to determinations of whether a natural father who appears
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before an adoption is finalized and asserts his parental rights should have those rights
terminated." 291 Kan. at 442.

Moreover, we are not concerned here with a natural father's responsibilities in
those parental termination cases where, after having knowledge of the pregnancy, the
father receives information the pregnancy has ended before the birth of a child. See In re
Adoption of Baby Girl P., 291 Kan. at 432-36. The present case also does not relate to the
circumstance where a man knows of a woman's pregnancy yet only knows he is one of
several possible fathers. See In re D.M.M., 24 Kan. App. 2d 783, 786-89, 955 P.2d 618
(1997).

Our focus in the present case is simply on the plain meaning of the statutory
language which requires a father's knowledge of the pregnancy before the duty to support
the mother arises. In this circumstance, the father must have knowledge of the pregnancy
and the statute does not require the father to discover or verify a possible pregnancy.

We next address whether the petitioners have proven by clear and convincing
evidence that termination of Curtis' parental rights was appropriate. See In re Adoption of
B.B.M., 290 Kan. 236, 243, 224 P.3d 1168 (2010). As noted earlier, we will uphold
termination of parental rights if, after reviewing all the evidence in the light most
favorable to the prevailing party, we find the trial court's findings of fact to be highly
probable, i.e., supported by clear and convincing evidence. 290 Kan. at 244.

Although the trial court found the petitioners proved by clear and convincing
evidence that Curtis had knowledge of Racheal's pregnancy but failed to support her
during the 6 months prior to the baby's birth, we conclude there was insufficient clear and
convincing evidence to show that Curtis knew of Racheal's pregnancy prior to the Baby
Girl B.'s birth.

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The trial court found that "[t]his case is unique in that [Racheal] was not aware
with any certainty of her pregnancy until less than 2 months before the child was born."
This finding is clearly supported by the evidence. And if Racheal was unaware she was
pregnant less than 60 days before the birth, it follows that Curtis could not have known of
the pregnancy as of that time.

The trial court, however, did not provide any factual basis to support the critical
finding of whether, prior to the baby's birth, Curtis ever had knowledge of Racheal's
pregnancy. In fact, our review of the entire record shows only one solitary instance—
during the second December 12, 2009, telephone conversation—wherein, according to
Racheal, she informed Curtis she was pregnant. Of course, Racheal's testimony was
controverted by Curtis' testimony, and the trial court made no finding regarding which
account was true. Still, Racheal's testimony is exceptional because the record is bereft of
any other evidence, before or after December 12, 2009, that Curtis had knowledge of
Racheal's pregnancy prior to the baby's birth. Moreover, during this 7-week time period,
Racheal and Curtis had several contacts, yet neither one testified that the subject of
Racheal's pregnancy was ever mentioned.

A court is to consider all of the relevant surrounding circumstances in an action
based on K.S.A. 2009 Supp. 59-2136(h)(1)(D). See In re Adoption of B.B.M., 290 Kan. at
245. Having carefully considered the relevant surrounding circumstances contained in the
record evidence and the trial court's findings, we conclude there was only scant
uncorroborated evidence—not clear and convincing evidence—that Curtis knew of
Racheal's pregnancy prior to Baby Girl B.'s birth. Accordingly, we hold the trial court's
finding that Curtis, after having knowledge of the pregnancy, failed without reasonable
cause to provide support for Racheal during the 6 months prior to the baby's birth is
unsupported by clear and convincing evidence.

15

The trial court also found a second basis to terminate Curtis' parental rights to
Baby Girl B. It ruled that Curtis "abandoned the mother after having knowledge of the
pregnancy." See K.S.A. 2009 Supp. 59-2136(h)(1)(E); In re Baby Boy N., 19 Kan. App.
2d 574, 874 P.2d 680, rev. denied 225 Kan. 1001, cert. denied 513 U.S. 1018 (1994).

As discussed earlier regarding K.S.A. 2009 Supp. 59-2136(h)(1)(D), we conclude
the trial court also misread K.S.A. 2009 Supp. 59-2136(h)(1)(E) because it improperly
equated the knowledge of pregnancy requirement in the statute with Curtis' knowledge of
Racheal's possible pregnancy. Once again, the words of the statute are plain and clear.
The trial court's conclusion that abandonment was proven because Curtis did not support
Racheal after he knew of the possibility of Racheal's pregnancy but failed to discover and
verify it was erroneous. Under these circumstances, Curtis' conduct did not constitute a
basis to terminate his parental rights under K.S.A. 2009 Supp. 59-2136(h)(1)(E).

Although the trial court found the petitioners proved by clear and convincing
evidence that Curtis abandoned Racheal after having knowledge of the pregnancy, the
trial court did not make any specific factual findings in support of its determination.
However, it was Racheal who terminated the relationship with Curtis in the summer of
2009, long before she realized she was pregnant. Moreover, as we concluded earlier,
there was insufficient clear and convincing evidence to show that Curtis knew of
Racheal's pregnancy prior to the baby's birth. Under these circumstances, we fail to find
evidence of abandonment. Accordingly, we hold the trial court's finding that Curtis'
parental rights also should be terminated under K.S.A. 2009 Supp. 59-2136(h)(1)(E) was
unsupported by clear and convincing evidence.

We also note the trial court, after observing that both parties had an "equally
compelling" basis to believe that it was in the best interests of Baby Girl B. to either
terminate or not to terminate Curtis' parental rights, ultimately reaffirmed its decision to
terminate his parental rights. As the trial court correctly observed, however, "[a] finding
16

that the adoption is in the best interests of the minor child is not sufficient, in and of
itself, to terminate the Father's rights," citing In re Adoption of Baby Boy M., 40 Kan.
App. 2d 551, 562, 193 P.3d 520 (2008). This is a correct statement of the law.

Finally, we are mindful of the very significant consequences our decision will
have on all parties to this litigation. We are guided, however, by important legal
precedent which was summarized by our Supreme Court: "When applying K.S.A. 59-
2136(h), Kansas appellate courts have strongly endorsed the parental preference doctrine,
required strict compliance, and diligently enforced the clear and convincing evidence
standard." In re Adoption of A.A.T., 287 Kan. at 625 (citing cases).

For all of these reasons, the termination of Curtis' parental rights to Baby Girl B. is
reversed. The case is remanded to the district court for the purpose of conducting further
proceedings to determine the custody issues involving Baby Girl B.

* * *

MALONE, J., concurring: I concur with the result in this case and with the
reasoning set forth in the majority opinion. I write separately to express my view that
even if the district court had expressly found that Curtis gained knowledge of Racheal's
pregnancy on December 12, 2009, it would still be my position in this case that the
petitioners failed to demonstrate by clear and convincing evidence that Curtis' parental
rights should be terminated under K.S.A. 2009 Supp. 59-2136(h)(1)(D) or (E).

The facts of this case are indeed unusual. We now know, after the fact, that
Racheal must have become pregnant sometime around May 2009. But she did not gain
much weight, and she did not miss her period until December 2009. In October 2009,
Racheal divorced her husband and signed a divorce decree indicating she was not
pregnant because, according to her own testimony, she did not believe she was pregnant.
17

Considering the evidence in the light most favorable to the petitioners, Curtis gained
knowledge of the pregnancy on December 12, 2009. Racheal visited her doctor on
January 13, 2010, and her doctor concluded from a blood test that she was about 8 weeks
pregnant. Racheal was scheduled for a prenatal checkup on February 3, 2010, and on that
date, apparently to everyone's surprise, she delivered Baby Girl B. full-term.

Curtis learned of the birth within a day or two, and he requested DNA testing to
confirm paternity. Curtis received confirmation that he was the biological father on
February 23, 2010. On the very next day, he filed a child in need of care petition seeking
the care, custody, and control of Baby Girl B. On March 15, 2010, he filed a separate
paternity action acknowledging paternity and requesting parenting time. Since then,
Curtis has been engaged in a protracted legal battle with Adoption Choices of Kansas,
Inc., over the custody of his daughter. After losing in district court, Curtis has taken his
fight to the Kansas Court of Appeals.

Under K.S.A. 2009 Supp. 59-2136(h)(1), when a father appears to assert parental
rights, 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;
"(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 preceeding the filing of the petition."
18

This statute provides that a district court can terminate a father's parental rights
upon finding by clear and convincing evidence any one of seven factors listed in the
statute. Most of the factors involve the father abandoning or neglecting the child after
having knowledge of the child's birth, failing to provide support for the mother after
having knowledge of the pregnancy, or failing to assume the duties of a parent for 2
consecutive years. The gist of the entire statute is that the district court can terminate the
father's parental rights upon finding by clear and convincing evidence that the father has
failed to step up to the plate to assume his parental responsibilities within a reasonable
amount of time after learning about the responsibilities.

This cases focuses on K.S.A. 2009 Supp. 59-2136(h)(1)(D), which provides that
the district court can terminate a father's parental rights upon finding by clear and
convincing evidence that "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." This subsection provides a somewhat arbitrary 6-month window of
opportunity for the father to act responsibly and provide support for the mother prior to
the child's birth. If the father fails to do so, he can lose his parental rights forever. The
biggest problem with applying this statutory test to the case at hand is that at best, Curtis
did not gain knowledge of Racheal's pregnancy until about 7 weeks before Baby Girl B.
was born. And no one, including Racheal, knew on December 12, 2010, that Baby Girl B.
was going to arrive within 7 weeks. Under the unique circumstances of this case, it
becomes difficult to apply K.S.A. 2009 Supp. 59-2136(h)(1)(D) as an appropriate
statutory test to determine whether Curtis' parental rights should be terminated.

I am not saying that K.S.A. 2009 Supp. 59-2136(h)(1)(D) is unconstitutional.
Certain arbitrary time frames need to be drawn by the legislature in order to test parental
fitness. Normally, 6 months is a sufficient amount of time for a father to act responsibly
and provide support for the mother prior to the child's birth. And it possibly would not
offend my sense of justice to terminate a father's parental rights if the evidence showed
19

that he failed without reasonable cause to provide support for the mother after learning
about the pregnancy 5 months, or even 4 months, prior to the child's birth. Each case
must be judged on its own facts. But as the date the father gains knowledge of the
pregnancy gets closer and closer to the child's birth, the sufficiency of the evidence to
terminate his parental rights on this ground becomes less and less convincing.

A court is "to consider all of the relevant surrounding circumstances in an action
based on K.S.A. 2009 Supp. 59-2136(h)(1)(D)." In re Adoption of Baby Girl P., 291 Kan.
424, 430, 242 P.3d 1168 (2010). Here, it seems to me that the district court failed to
consider all the relevant circumstances surrounding this case before terminating Curtis'
parental rights. Racheal herself did not realize she was pregnant until a few weeks before
giving birth, and the timing of the delivery came as a surprise to everyone. Curtis had
very little time to provide any meaningful support to Racheal prior to the child's birth.
Perhaps this fact can be considered as "reasonable cause" under the statute, thereby
excusing Curtis' failure to provide support to Racheal. However the evidence is viewed, I
conclude the petitioners failed to demonstrate by clear and convincing evidence that
Curtis' parental rights should be terminated under K.S.A. 2009 Supp. 59-2136(h)(1)(D).

Likewise, there was no evidence that Curtis "abandoned" Racheal after having
knowledge of the pregnancy in order to support termination of parental rights under
K.S.A. 2009 Supp. 59-2136(h)(1)(E). The term "abandonment" is defined in family law
as "[t]he act of leaving a spouse or child willfully and without an intent to return." Black's
Law Dictionary 2 (9
th
ed. 2009). Racheal voluntarily terminated her relationship with
Curtis in June 2009, and the couple did not see each other after July 7, 2009. Even if
Curtis gained knowledge of the pregnancy in December 2009, he and Racheal already
had separated several months prior to that date. Under the evidence presented, Curtis
could not have possibly "abandoned" Racheal after having knowledge of the pregnancy.

20

My heart goes out to the prospective adoptive parents in this case who have been
taking care of Baby Girl B. since her birth. However, "a natural parent who has assumed
his or her parental responsibilities has a fundamental right, protected by the United States
Constitution and the Kansas Constitution, to raise his or her child." In re Adoption of
G.L.V., 286 Kan. 1034, 1057, 190 P.3d 245 (2008). Curtis has assumed his parental
responsibilities, and he has been fighting to gain custody of his daughter since her birth.
The petitioners have failed to prove by clear and convincing evidence that Curtis' parental
rights should be terminated. The order terminating his parental rights must be set aside,
and the case should be remanded to district court to resolve the custody issues between
Racheal and Curtis in regards to Baby Girl B.

Standridge, J., joins in the foregoing concurring opinion.