In re Adoption of G.R.K.

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NOT DESIGNATED FOR PUBLICATION

No. 114,059

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Adoption of G.R.K.,
a Minor Child Under the Age of Eighteen.


MEMORANDUM OPINION

Appeal from Shawnee District Court; FRANK J. YEOMAN, JR., judge. Opinion filed November 13,
2015. Affirmed.

Rachel I. Hockenbarger, of Topeka, for appellant natural mother.

Austin K. Vincent, of Topeka, for appellee.

Before HILL, P.J., PIERRON and POWELL, JJ.

Per Curiam: When the stepmother of G.R.K. sought to adopt him, the district
court ruled that D.K., the boy's mother, did not have to consent. The court granted the
adoption, ruling that Mother had failed to fulfill her role as a parent for 2 years next
preceding the filing of the petition. In the court's view, under the law, her consent was not
needed and terminated her parental rights. Mother appeals, arguing that because she was
under no court order to pay any support the court should not hold it against her.
Unpersuaded by this argument, we affirm the adoption.

G.R.K. was born in Virginia in March 2001. Mother and J.H., the father of
G.R.K., were married. All three lived together during the first year of G.R.K.'s life.
Mother described her relationship with Father as "abusive and scary." In May 2002,
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Father married C.H. (Stepmother) and moved to Kansas with her. Mother later had her
marriage to Father annulled.

Mother testified that G.R.K. always knew who his father was. G.R.K., however,
testified that he first learned of Father in 2010. That timeframe was important because it
coincided with the filing of a child welfare action in Virginia involving Mother and
G.R.K. That court action began when concerns arose regarding Mother's improper use
and abuse of prescription drugs. G.R.K. had not been going to school, and Mother was
allegedly moving G.R.K. from school to school. In March 2010, the court removed the
boy from Mother's home and placed sole temporary legal and physical custody with
Father. The court permitted Father to take his son to Kansas. The court granted visitation
rights in Kansas to Mother. The Virginia court also ordered that maternal grandmother
receive "reasonable phone contact" with G.R.K. Reports of Mother's physical neglect of
the boy were substantiated in January 2011.

In November 2014, Stepmother filed a petition for stepparent adoption and a
motion to terminate Mother's parental rights. In the motion, Stepmother claimed that
Mother had not performed parental duties for the 2 years preceding the filing of the
motion. Both Father and G.R.K. himself consented to the adoption.

The district court took testimony on the issues. After considering the evidence, the
district court found that Mother provided no financial assistance for G.R.K. despite, at
times, having the resources to do so. In addition to the lack of financial assistance, the
district court noted that Mother's incarceration meant that she was unable to maintain the
parent-child relationship. After making these findings, the district court ruled that clear
and convincing evidence proved that Mother failed to assume parental duties for the 2
years preceding the filing of the petition for adoption. Accordingly, the court granted the
petition.

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On appeal, Mother's primary argument is that the district court erred when it
applied the judicial presumption that she failed to assume parental duties because she
failed to provide child support. Mother contends that this presumption cannot apply in
this case because there was never any judicially decreed child support obligation entered
for Mother.

A district court's findings under K.S.A. 2014 Supp. 59-2136(d) that a parent has
refused or failed to assume parental duties for 2 years prior to the filing of the petition for
stepparent adoption is a finding of fact that will be reviewed on appeal to determine if it
is supported by substantial competent evidence. In re Adoption of J.M.D., 293 Kan. 153,
171, 260 P.3d 1196 (2011). "Substantial evidence" refers to legal and relevant evidence
that a reasonable person could accept as being adequate to support a conclusion. Gannon
v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014). In determining whether the parent's
efforts amount to an assumption of parental duties, the court must examine all
surrounding circumstances. In re Adoption of Baby Girl P., 291 Kan. 424, 430, 242 P.3d
1168 (2010).

K.S.A. 2014 Supp. 59-2136(d) provides the mechanism for a stepparent adoption.
In the absence of the consent of the noncustodial parent, the moving party must prove
that the noncustodial parent 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." Although the statute is written with the assumption that the
noncustodial parent is the father, K.S.A. 2014 Supp. 59-2136(b) explains that the statute
applies equally to mothers.

K.S.A. 2014 Sup. 59-2136(d) goes on to provide a rebuttable presumption of
failure to assume parental duties if the noncustodial parent 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
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for adoption." Mother's argument on appeal centers on the fact that there was never a
judicially decreed child support order entered for Mother.

There never was a judicially decreed child support order in place for Mother.
Father testified that he worked closely with child support enforcement officials in Kansas
but that they were unable to locate Mother and consequently could not serve her with an
order.

We do not think the statutory presumption comes into play here. The record on
appeal bears no hint that the district court even tried to apply the rebuttable presumption
to the facts of this case.

The court noted that Mother acknowledged her failure to provide financial support
for G.R.K. But the district court very clearly noted that it was applying the "'common-law
duty to support'" that is recognized by both Kansas and Virginia courts. There is no
mention anywhere in the record on appeal of the rebuttable presumption of failure to
parent. Mother's argument regarding the district court's improper application of the
presumption is either a misunderstanding of the district court's ruling or an attempt to
deflect from the facts of the case. If the court did not use the presumption, we certainly
cannot rule that it erred in using it as Mother asks us to do.

Mother does go beyond the rebuttable presumption to argue the common law
financial obligation that was referenced by the district court. She claims that her failure to
financially support G.R.K. was due to her lack of finances, which was caused by her
incarceration and unemployment.

In J.M.D., the Kansas Supreme Court reiterated that even if the statutory
presumption of failure to parent 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. 293 Kan. at 173. The
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Kansas Supreme Court rejected as insufficient to show parenting a father's "incidental
and insufficient" child support payments. 293 Kan. at 173.

Mother testified that she was employed from August through December 2012. She
admitted that she did not send any money to G.R.K., even when she was earning income,
because there was no support order in place. After December 2012, Mother found it
difficult to work because of the amount of time she had to contribute to her "daily groups
and classes." In addition, Mother was incarcerated beginning in March 2014.

It is plausible that Mother's felony probation conditions and her subsequent
incarceration made it difficult for her to earn income. Nevertheless, December 2012 fell
within the 2-year period considered by K.S.A. 59-2136(d). Clearly, Mother was
employed and had the resources to send financial support for G.R.K during that time.
Therefore, it appears that the district court properly considered Mother's lack of financial
support when ruling on the petition for stepparent adoption.

Our analysis does not end, however, at a consideration of Mother's financial
contributions. Rather, we consider "'all surrounding circumstances'" when reviewing a
stepparent adoption. See J.M.D., 293 Kan. at 167. This includes considerations of
G.R.K.'s best interests and Mother's fitness, as allowed by K.S.A. 2014 Supp. 59-2136(d).
When considering whether a noncustodial parent has assumed parental duties, the
"parental duty" involved is to "provide for and nurture the children's mental and
emotional health." J.M.D., 293 Kan. at 173.

Mother testified that G.R.K. "always knew" that Father was his biological father.
Father testified that he attempted to find G.R.K. but could not because Mother was
attempting to conceal his location. When Father went to Virginia after the child abuse
action was filed, personnel at the school told Father that Mother had reported him as
deceased. G.R.K. confirmed that he did not learn of Father's existence until 2010.
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Mother testified that her drug addiction kept her away from G.R.K. for a time.
However, she told the district court that she tried to send "multitudes" of letters to G.R.K.
but that they were returned to her as undeliverable. This caused Mother to believe that
Father and Stepmother moved. Father testified that he has been at the same address since
before March 2010. Father acknowledged that Mother wrote several letters to G.R.K.
after the filing of the petition for stepparent adoption. One letter, dated November 16,
2014, begins: "It has been a very long time but by God's grace I hope this letter reaches
you."

Mother also believed that Father and Stepmother changed their telephone number
in August 2012. Father acknowledged that there were number changes for both the cell
phone and landline beginning in 2013. Father blamed the change of his cell phone
number on repeated, abusive phone calls from Grandmother. But Father testified that
Mother did not call G.R.K. between November 2012 and November 2014. Stepmother
testified that Mother called G.R.K. two times in 3 years. G.R.K. was always given the
choice about whether to speak to Mother on the telephone.

Mother testified that she did not understand why there was a finding that she
neglected G.R.K. She claimed that G.R.K. was "never abused." Father testified that he
first learned that something was amiss when he received a telephone call that G.R.K. was
being abused and neglected and "needed rescue." It was Father's understanding that
G.R.K. was roaming the neighborhood, knocking on doors and looking for food. When
G.R.K. first went to live with Father, he asked when they would have to go on "night
errands." G.R.K. testified that he remembered Mother doing drugs in front of him and
taking him on trips to buy and sell drugs.

G.R.K. was 14 years old at the time of the hearing on the petition. He asked that
Stepmother be allowed to adopt him. He testified that when he lived with Mother, he
"didn't have a loving caring family and my mother had not had concern for me in any
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way." G.R.K. described Stepmother as acting in the "best mother role that she could"
while treating him with "love and respect."

The evidence shows that Mother largely abandoned her parental role for a period
of years. Both Father and Stepmother testified that Mother went long stretches of time
without calling or writing G.R.K. In addition, G.R.K. testified that he did not have warm
memories of Mother and that he wanted Stepmother to be his legal parent.

There was conflicting testimony given regarding the frequency of Mother's
attempts to contact G.R.K. and about G.R.K.'s knowledge of Father's existence. To this
end, the district court made findings about the credibility of certain testimony and about
the fact that some of Mother's claims were not supported by substantial evidence. To the
extent that the district court made findings about the credibility of certain witnesses, those
findings will not be revisited by this court. See Becker v. Knoll, 301 Kan. 274, 276, 343
P.3d 69 (2015).

In the final analysis, the evidence presented at the hearing plainly proves that
Mother abandoned her parental duties for the 2-year period preceding Stepmother's
petition for adoption. Because the evidence supports the adoption and the concurrent
termination of Mother's parental rights, we affirm the ruling of the district court.

Affirmed.