In re Adoption of J.D.W.

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,788
119,789

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Adoption of J.D.W., A Minor Child.


MEMORANDUM OPINION

Appeal from Doniphan District Court; JAMES A. PATTON, judge. Opinion filed February 15,
2019. Affirmed.

David J. Brown, of Law Office of David J. Brown, LC, of Lawrence, for appellant.

Andrew E. Werring, of Werring Law Office, LLC, of Atchison, for appellee.

Before GARDNER, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: Children need parents while they are still children. Promises and
good intentions are hollow gestures, inadequate for the important tasks of rearing a child.
Because of this urgency, Kansas law, by creating a rebuttable presumption of parental
unfitness, calls for a court to terminate the parental rights of a parent if that parent fails or
refuses to assume the duties of a parent for two consecutive years next preceding the
filing of a stepparent adoption petition. The court here followed that law and in a
comprehensive, well-reasoned opinion, granted a stepfather's adoption over father's
objections. After reviewing the record, we find no flaw in the judge's fact-finding or
conclusions of law. We affirm.

This is a combined appeal of a paternity case and a stepparent adoption. J.W.,
father of J.D.W., a minor, appeals the district court's order denying him any relief in the
paternity action and the grant of Stepfather's adoption petition. The facts are not disputed.
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A paternity action involved the court early in this child's life.

J.D.W. was born in August 2010. At some point after J.D.W.'s birth, Mother and
Father ended their relationship. Then, in a paternity action, in June 2011, the court
granted Father temporary primary residential custody of the child. But in September
2011, the district court ordered joint legal and shared residential custody when the parties
agreed to this arrangement. But circumstances changed.

Father was involved in a single-car traffic accident in February 2012, while the
child was in the car with him. Father was arrested and charged with various crimes
including felony driving under the influence, felony possession of narcotics, and felony
aggravated endangerment of a child. He entered a guilty plea to misdemeanor DUI and
refusal of a preliminary screening test; the remaining charges were dismissed.

Later in May 2012, the district court ordered shared legal and residential custody
between Father and Mother, in which both parents had equal residential time with the
child. The district court ordered that neither party needed to pay child support as long as
this equal time arrangement was in place. The district court also specified that the parties
were subject to alcohol and drug testing.

On March 15, 2014, Mother married Stepfather.

In the same month, the court modified the custody, parenting time, and child
support orders. It switched primary residential custody to Mother and reduced Father's
parenting time to one day per weekend of supervised time at the paternal grandparents'
home. The court ordered that once Father completed substance abuse treatment, his
parenting time would increase to alternate weekends and one evening per week. All prior
orders on alcohol use remained in effect. At that point, the court held that it would rule
later on child support.
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Father's involvement in his child's life decreased significantly.

After Father began working at a manufacturing company in Horton, Kansas, the
parties agreed that he would pay child support in the amount of $359 per month, effective
April 1, 2014, through August 2014. On September 1, 2014, the monthly amount
increased to $414 per month. The district court also ordered:

"All payments of support, whether for current child support, or any arrearages
which may accrue, shall be made through the Kansas Payment Center who shall forward
said payments to [Mother], the child's custodian, payments not made through the Kansas
Payment Center at the address below should be presumptively disallowed and construed
as gifts;

"KANSAS PAYMENT CENTER
"P.O. BOX 758599
"TOPEKA, KS 66675-8599." (Emphases added.)

In August 2014, Father exercised his supervised parenting time with J.D.W. for
the child's birthday. Around this time, Atchison County issued a warrant for Father's
arrest for a probation violation. Father had failed to report to the Atchison County Jail to
serve a 30-day sanction for a separate probation violation. He failed to report because he
had used illegal substances for which he knew he would test positive.

After his August 2014 visit, Father did not attend any of his scheduled parenting
time sessions with J.D.W. and did not show up to the exchange point—the Atchison
County Sheriff's Office—because he was afraid he would be arrested. He requested no
alternate exchange point. Mother continued to take J.D.W. to the exchange point, but
Father did not show up. After Father failed to show up three times, Mother stopped
taking J.D.W. for parenting exchanges. Around this time, Mother denied Father parenting
time with J.D.W. because of his substance abuse and legal problems. In October 2014,
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Father was charged with drug possession in Buchanan County, Missouri. The August
2014 visit was Father's last court-ordered visit with J.D.W.

After he was arrested, Father served sentences for convictions in three different
jurisdictions: Doniphan County, Kansas; Atchison County, Kansas; and Buchanan
County, Missouri. In January 2016, while incarcerated in Atchison County, Father was
charged with aggravated battery.

Mother did not take J.D.W. to visit Father. She claimed Father did not ask her to,
but even if he had asked, she would not have taken the child to visit Father in jail. Father
claimed he sent letters to J.D.W. from jail, and he believed Mother threw them away.
Alternately, a cellmate of Father's claimed that in the five months they were in jail
together, Father wrote three or four letters to find out how J.D.W. was doing and whether
he could call J.D.W. Father and his cellmate claimed the letters were returned unopened.
Mother denied receiving any letters from Father.

While incarcerated, Father earned $9 per month.

After Father's incarceration ended, he entered an inpatient substance abuse
treatment program in early September 2016. He completed the program and then began
living at a halfway house. While at the halfway house, Father earned income from
working various jobs.

From about mid-September to mid-November 2016, Father called Mother about
12 times, but Mother would not answer or return his messages. Mother stated she was
advised by two attorneys to not respond to Father but to wait for him to approach her
through the court system. Sometime in the fall of 2016, Father contacted his attorney
about how to proceed with visitation.

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Father lived at the halfway house for about four months until January 2017, during
which time he continued with outpatient treatment and worked. In February 2017, Father
withdrew $5,000 from a retirement account. He sent a message to Mother on social
media, asked to see J.D.W., and offered to pay child support. Mother did not respond, and
Father paid no child support. He did pay part of the $5,000 toward an old consumer loan
for a motorcycle he no longer possessed and a portion toward a loan for attorney fees.

The parties return to court, this time, in two cases.

In March 2017, Father moved for an order to enforce parenting time. He alleged
he last requested parenting time in January 2017, but Mother did not permit it.

Stepfather filed his petition to adopt J.D.W. in April 2017. Mother consented to
the adoption, but Father objected to it. In his objection, Father claimed that while he was
incarcerated, he wrote letters to J.D.W. but believed Mother threw the letters away.
Father then filed an amended motion in May 2017, in which he informed the district court
that he completed his substance abuse rehabilitation and wanted to start his increased
parenting time under the March 2014 order to alternate weekends and one evening per
week. He alleged Mother was nonresponsive and had cut off all contact with him.

At the end of July 2017, through the attorneys, Father sent $7,000 to reduce his
child support arrearage. Mother's attorney received the check on August 2, 2017. In the
40 months since the child support order was filed, effective April 1, 2014, this was the
first and only payment toward child support Father made. Father's total arrearage, when
he paid the $7,000, was over $16,000.

After a combined evidentiary hearing on Father's motion to enforce parenting time
and Stepfather's petition to adopt the child, the district court issued a memorandum
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decision. The district court summarized the facts consistent with those listed above and
found that the evidence was uncontroverted.

The court looked at the child support obligation.

Father paid $7,000 after Stepfather filed his petition for adoption. But Father could
have paid $5,000 before filing the petition and did not. Father provided no evidence of
any payments toward his child support obligation in the two years next preceding
Stepfather's petition. Father did not establish a bank account into which he could have
made child support payments pending the outcome of the legal proceedings. He did not
present evidence excusing him from paying child support while he was incarcerated, and
he did not seek to modify the child support order. The district court found there was clear
and convincing evidence that Father failed to assume parental duties in the two years next
preceding the filing of Stepfather's petition.

Because Father had been incarcerated for a significant period prior to Stepfather
filing his petition for adoption, the court considered additional facts such as Father's
decision to avoid his scheduled parenting time because of his fear of arrest. The court
observed that Father's criminal acts and substance abuse "prevented meaningful parenting
time" with J.D.W. The record supports these findings.

The court also noted that Father said he wrote letters from jail, but he did not
claim to have sent birthday or Christmas cards or gifts, or even $5 per month, and he "did
nothing else during his jail sentence to show affection, care or interest." The court also
noted that although Father claimed to have the returned letters at home, he did not
introduce them into evidence. The court found that these efforts at contact—even in the
context of incarceration—were incidental and should be disregarded.

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Highly summarized, the court found that Father failed to pay court-ordered child
support for two years next preceding the filing of the adoption petition, and he failed to
provide adequate affection, care, or interest. The court determined there was clear and
convincing evidence that Father failed to pursue the opportunities and options available
to him to carry out his duties as a parent to the best of his ability. Finally, the court found
that Father failed to rebut the statutory presumption in K.S.A. 2017 Supp. 59-2136(d).
The court terminated Father's parental rights, granted Stepfather's petition for adoption,
and dismissed Father's motion to enforce parenting time as moot.

Father moved for reconsideration. After entertaining oral arguments and
considering additional briefing on the matter, the court found that Father presented no
new facts or evidence and treated Father's motion as a motion to alter or amend
judgment. The court noted in part that the child support order required payment to the
Kansas Payment Center, which did not require contact between the parties. The court
again noted the $5,000 Father could have paid toward his child support arrearages within
the statutory two-year window preceding Stepfather's petition for adoption but did not.
The court denied Father's motion.

We review for substantial competent evidence and correct legal conclusions.

To us, Father contends that the district court's conclusions—that he failed or
refused to assume the duties of a parent for two years preceding Stepfather's filing of the
petition for adoption—were unsupported by substantial evidence. Mother contends that
the district court correctly determined that the evidence supported its findings that
Father's parental rights should be terminated and Stepfather's adoption of J.D.W. should
be granted.

A district court's finding under K.S.A. 2017 Supp. 59-2136(d) that a parent has
refused or failed to assume parental duties for two years before the filing of the petition
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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). In determining whether the parent's efforts amount to an
assumption of parental duties, the court must examine all circumstances. In re Adoption
of Baby Girl P., 291 Kan. 424, 430, 242 P.3d 1168 (2010).

Adoption statutes are strictly interpreted in favor of maintaining the rights of the
natural parents where the statute is being used to terminate the right of a natural parent
without consent. In re Adoption of Baby Girl P., 291 Kan. at 430; In re A.S., 52 Kan.
App. 2d 173, 177-78, 364 P.3d 1203 (2015). The party seeking to terminate a parent's
rights has the burden of proving by clear and convincing evidence that termination is
appropriate under K.S.A. 2017 Supp. 59-2136. In re Adoption of Baby Girl P., 291 Kan.
at 430. When determining whether factual findings are supported by clear and convincing
evidence, an appellate court does not weigh conflicting evidence, pass on the witnesses'
credibility, or redetermine questions of fact. In re Adoption of B.B.M., 290 Kan. 236, 244,
224 P.3d 1168 (2010).

In a stepparent adoption, such as this one, K.S.A. 2017 Supp. 59-2136(d) provides
that the father's consent to the adoption is required unless the father has failed or refused
to assume his parental duties for two consecutive years immediately before the filing of
the petition for adoption.

"In determining whether the father has failed or refused to assume the duties of a parent
for two consecutive years next preceding the filing of the petition for adoption, there shall
be a rebuttable presumption that if the father, after having knowledge of the child's birth,
has knowingly failed to provide a substantial portion of the child support as required by
judicial decree, when financially able to do so, for a period of two years next preceding
the filing of the petition for adoption, then such father has failed or refused to assume the
duties of a parent. The court may consider the best interests of the child and the fitness of
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the nonconsenting parent in determining whether a stepparent adoption should be
granted." K.S.A. 2017 Supp. 59-2136(d).

The district court found that the statutory presumption of unfitness applied to
Father and that he had failed to rebut that presumption. Father argues that because he was
incarcerated for much of the two years next preceding Stepfather's petition, the district
court had to consider additional financial factors outside the two-year limit set in the
statute. Father contends that if the district court looked outside the two-year statutory
time frame, it should have looked only at his actions after the petition was filed—
specifically, his payment of $7,000. Even though he paid it after Stepfather's petition was
filed, Father claims that the legal effect of this payment shows he actually contributed
significantly to the costs of supporting his child in the two years immediately preceding
the filing of the petition. Wanting to limit the view of the court, Father also argues that
the district court erred in considering his history of failing to make child support
payments before his incarceration because it was outside the statutory two-year time
frame. So, Father wants the court to consider the $7,000 payment, which was outside the
two-year period, but not consider his failure to pay, which was also outside the statutory
time frame. This is inconsistent, at best. Neither position is persuasive.

Father cites no authority for either position. Issues not adequately briefed are
considered waived or abandoned. In re Marriage of Williams, 307 Kan. 960, 977, 417
P.3d 1033 (2018). Failure to support a point with pertinent authority or show why it is
sound despite a lack of supporting authority or in the face of contrary authority is akin to
failing to brief the issue. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified
Gov't, 301 Kan. 993, 1001, 348 P.3d 602 (2015).

We choose not to read something into the law that is not there. The Legislature's
inclusion of a two-year time frame preceding the petition in the statute implies the
exclusion of postpetition exceptions. The plain language of the statute is clear: the
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statutory time frame is two years next preceding the filing of the petition. To allow
postpetition payments to have the "legal effect" of being considered, a pattern of
consistent financial support for a child, as Father seeks here, renders the statutory time
frame meaningless. Children need support every month, not just in a lump sum to ward
off a pending adoption. Besides, there is more to parenting than paying child support.

We examine Father's child support argument.

Father argues that because he was incarcerated, he experienced significant
limitations on his abilities to carry out his parenting duties and pay child support.
Caselaw teaches us that when a nonconsenting parent is incarcerated and thus unable to
fulfill the usual parental duties performed by unrestrained parents, the court must decide
whether the parent has sought the opportunities and options which could be available so
he or she may perform those duties to the best of his or her abilities. In re Adoption of
S.E.B., 257 Kan. 266, 273, 891 P.2d 440 (1995). If an incarcerated parent has made
reasonable efforts to contact and maintain a continuing relationship with his or her
children, it is up to the trial court to determine whether such efforts are sufficient. In re
Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987). "In determining whether a
father's consent is required . . . , the court may disregard incidental visitations, contacts,
communications or contributions." K.S.A. 2017 Supp. 59-2136(d).

And Father was gainfully employed after he was released from jail and substance
abuse treatment. Father worked nearly continuously at various jobs from around
September 2016—when he completed inpatient treatment—to April 2017—when
Stepfather filed his petition. In those eight months, Father did not make one child support
payment. When Father had $5,000 in March 2017, he did not apply any of that money to
his child support arrearage. He opened no account for J.D.W., and he did not seek to
modify his support obligation.

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The district court noted also that in the year leading up to Father's incarceration,
his pattern of nonpayment started with the child support order itself. Father made no
payments, even while he was working and attending his scheduled parenting time. The
evidence also showed that Father deliberately failed to attend scheduled parenting time
and did not adhere to the parenting time plan for about eight months before his
incarceration.

Father claims that he made many attempts to see J.D.W. and pay child support
after he got out of jail. He told his attorney he wanted to pay child support, requested to
see the child, and offered to make a payment via social media messages to Mother and
Stepfather. The duty to support a child includes "not only the [common-law] duty of
financial support, but also the natural and moral duty of a parent to show affection, care
and interest toward his or her child." In re Adoption of B.M.W., 268 Kan. 871, 873, 2 P.3d
159 (2000).

Father seems to suggest that he did not pay, or was excused from paying, his child
support after he was released from jail because of Mother's actions or inactions of
blocking his calls and her failure to respond to his social media messages. Indeed, it is
true that a mother's refusal of assistance offered by the natural father is a factor in
determining if the father provided support to the mother. In re Adoption of Baby Girl S.,
29 Kan. App. 2d 664, 667, 29 P.3d 466 (2001). But a mother's failure to act on a general
offer of assistance does not amount to interference or a refusal of financial help. See In re
Adoption of Baby Boy W., 20 Kan. App. 2d 295, 299, 891 P.2d 457 (1994). Mere general
offers of support are insufficient. In re Adoption of Baby Girl S., 29 Kan. App. 2d at 668.

While it is true that a restrained father need only carry out an available option to
the best of his ability to maintain his rights, he must act. In re Adoption of M.D.K., 30
Kan. App. 2d 1176, 1181, 58 P.3d 745 (2002). Inaction does no good for the parent or the
child. Here, Father fails to acknowledge that the child support order required that he
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make all support payments through the Kansas Payment Center, which did not require
contact between the parties. Under provisions of the child support order, Father did not
need to wait for a response from Mother to make such a payment. Here, Father had the
opportunity to support J.D.W. but failed to do so.

Additionally, the trial court found that while Father was incarcerated, he failed to
make and maintain contact with J.D.W. The court held that Father did not show that he
sought opportunities available to him to perform his parental duties to the best of his
abilities. Father claimed he wrote letters from jail, which were returned to him, and which
he kept. But he did not introduce them into evidence, even in support of his motion for
reconsideration. The record on appeal supports this finding.

We will not consider Father's judicial bias argument.

For the first time on appeal, Father claims judicial bias or misconduct. He does not
explain why he did not raise this issue in district court, nor does he argue that any of the
recognized exceptions to our rule apply to this issue so this court should consider it. Our
rules on this point are clear and well settled.

Issues not raised before the trial court cannot be raised on appeal. See Wolfe
Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Constitutional
grounds for reversal asserted for the first time on appeal are not properly before the
appellate court for review. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 729,
317 P.3d 70 (2014).

And Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) requires an appellant
to explain why an issue was not raised below and should be considered for the first time
on appeal. In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the Supreme
Court held that litigants who violate this rule risk a ruling that the issue is improperly
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briefed, and the issue will be considered waived or abandoned. The Supreme Court later
held that Rule 6.02(a)(5) would be strictly enforced. State v. Godfrey, 301 Kan. 1041,
1044, 350 P.3d 1068 (2015).

Following the clear directions of our highest court, we will not address this issue.
The record on appeal demonstrates that the court was entitled to apply the statutory
presumption of unfitness in this adoption. We find no error and affirm.

Affirmed.