In re Adoption of D.M.M.

955 P.2d 618, 24 Kan. App. 2d 783, 1997 Kan. App. LEXIS 204
CourtCourt of Appeals of Kansas
DecidedDecember 12, 1997
DocketNo. 78,239
StatusPublished
Cited by6 cases

This text of 955 P.2d 618 (In re Adoption of D.M.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Adoption of D.M.M., 955 P.2d 618, 24 Kan. App. 2d 783, 1997 Kan. App. LEXIS 204 (kanctapp 1997).

Opinion

Hampton, J.:

D.R.G., Jr., (D.G.) D.M.M.’s natural father, appeals the trial court’s adoption decree which granted the petition brought by E.K. and B.K. and declared them to be the adoptive parents of D.M.M. The decree of adoption included a finding that the natural mother had consented to the adoption and incorporated [784]*784the court’s earlier order terminating D.G.’s parental rights pursuant to K.S.A. 59-2136(h)(4).

D.G. claims the trial court erred in terminating his parental rights. Specifically, he claims his constitutional right of due process was denied in that the court required him to provide support to the mother prior to the birth in order to preserve his parental rights even though paternity was in question. He argues 59-2136(h)(4) only applies if there is one individual putative father, not when paternity is uncertain. We disagree and affirm the trial court.

In the termination proceeding, D.G. admitted that fhe natural mother, S.M., had notified him when she first learned she was pregnant in the summer of 1995. However, he claimed she later informed him she was not pregnant and that, therefore, he was unaware of fhe pregnancy. S.M.’s testimony was that when D.G. first called her, she told him she was unsure whether she was pregnant but, upon taking a home pregnancy test, she called him in early August 1995 and notified him she was indeed pregnant and did not later inform him otherwise. Other witnesses testified that D.G. was aware of S.M.’s pregnancy prior to D.M.M.’s birth on March 17, 1996. D.G.’s version of the pregnancy notification and his alleged lack of knowledge exceeded the trial court’s credulity.

D.G. relied upon inherently contradictory assertions in the termination trial — his alleged lack of knowledge of fhe pregnancy and the fact another man was named as a potential father to D.M.M. — as “reasonable cause” for not providing support to the mother or the child before paternity was determined. A paternity test was performed, and D.G. was established as the biological father in August 1996. Nevertheless, D.G. only visited the child two times and provided no financial support for fhe mother or child prior to the trial in November 1996. The trial court thoroughly addressed the facts presented in relation to D.G.’s parental rights and, although D.G. did not raise them, considered his related constitutional rights. The child’s mother and the other putative father, D.D., consented to D.M.M.’s adoption.

D.G. contends fhe trial court denied him due process when it terminated his parental rights for failure to support the mother of his child for 6 months prior to the child’s birth.

[785]*785“When a father or alleged father appears and asserts parental rights, the court shall determine parentage. . . . Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
“(1) The father abandoned or neglected the child after having knowledge of the child’s birth;
“(3) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
“(4) 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;
“(5) the father abandoned the mother after having knowledge of the pregnancy.” K.S.A. 59-2136(h).

D.G. argues that since his case involves a fundamental constitutional right of a natural parent to the custody of his child, the appellate court should apply strict scrutiny in its review of the statute and should reverse the trial court’s decision which is based upon it. However, this court has examined the constitutionality of 59-2136(h) in a number of cases and, in each one, has found the statute does not violate the constitutional rights of a biological father.

In the case of In re Baby Boy N., 19 Kan. App. 2d 574, 874 P.2d 680, rev. denied 255 Kan. 1001, cert, denied 513 U.S. 1018 (1994), the facts were similar to those in the present case. The natural parents had never been married. The natural mother consented to the child’s adoption over the objections of the natural father, who knew of the mother’s pregnancy and provided her with no type of financial or other support for the 6 months prior to the birth of the child. After the father objected to the adoption, the trial court determined the father had failed to support the mother during the 6 months preceding the child’s birth and had abandoned her after learning she was pregnant. Consequently, the trial court terminated his rights pursuant to 59-2136(h).

This court, in Baby Boy N., analyzed 59-2136(h)(4) and (5) and held the statute was not unconstitutional, nor did it deny the father due process protection. The court stated the statute did not violate due process because it “provides the father with notice and an [786]*786opportunity to be heard and appointed counsel to represent him if necessary. In addition, his consent will be required unless one of the seven situations in [the statute] is proven by clear and convincing evidence.” 19 Kan. App. 2d at 585. Since the statute requires the safeguard of a clear and convincing burden of proof before terminating a natural parent’s rights, “[i]n cases such as this, the rights of a natural parent are properly protected, and the parental preference’ doctrine is preempted.” 19 Kan. App. 2d at 585. Thus, the standard of review in the case at hand does not involve analyzing the constitutionality of K.S.A. 59-2136(h), and the usual standard of review in adoption cases applies.

“A trial court’s decision to terminate a natural father’s parental rights under K.S.A. 59-2136(h) will be upheld if it is supported by substantial competent evidence. An appellate court does not weigh the evidence or pass upon the credibility of witnesses and must review the evidence in the light most favorable to the party prevailing below.” In re K.D.O., 20 Kan. App. 2d 559, Syl. ¶ 1, 889 P.2d 1158 (1995).

The decision of the trial court to terminate D.G.’s parental rights was within that court’s discretion after weighing all the evidence. In determining whether the trial court abused its discretion, the test is “ 'whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.’ ” State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990) (quoting Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 [1988]).

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955 P.2d 618 (Court of Appeals of Kansas, 1997)

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Bluebook (online)
955 P.2d 618, 24 Kan. App. 2d 783, 1997 Kan. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-dmm-kanctapp-1997.