In re the Adoption of C.R.D.

897 P.2d 181, 21 Kan. App. 2d 94, 1995 Kan. App. LEXIS 87
CourtCourt of Appeals of Kansas
DecidedJune 2, 1995
DocketNo. 72,498
StatusPublished
Cited by24 cases

This text of 897 P.2d 181 (In re the Adoption of C.R.D.) 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 the Adoption of C.R.D., 897 P.2d 181, 21 Kan. App. 2d 94, 1995 Kan. App. LEXIS 87 (kanctapp 1995).

Opinions

Pierron, J.:

The legal and biological father of C.R.D., a child bom September 15,1989, appeals the district court’s order finding he had failed to assume parental duties during the two years preceding the filing of a petition for stepparent adoption. Because of this finding, the court found the father’s consent to the adoption was unnecessary and granted the petition.

The mother and father of C.R.D. were divorced on March 27, 1990. All three lived in Texas at that time. The petitioner/stepfather married the mother on June 3, 1990. C.R.D. has lived with them during the marriage and has seen the father “very seldom.”

The mother and stepfather moved with C.R.D. to Kansas about three or four months after their marriage. For a time, visitation by the father with C.R.D. continued during trips back to Texas by the mother, stepfather, and C.R.D. The Kansas parties moved several times after coming to Kansas. The parties strongly dispute whether reasonable notice was given to the father and whether he took reasonable actions to find the whereabouts of the Kansas parties and exercise visitation or otherwise make contact with the child. This was the main issue addressed at trial.

The trial court found that during the two-year period, the father had no contact with the child and did not call or send letters or gifts. Neither did he attempt to have the visitation orders modified. The court concluded that the father did not make reasonable ef[96]*96forts to find and visit the child and that the mother and stepfather did not attempt to hide the child from the father. Based on our standard of review, there was substantial competent evidence to support the court’s findings on this issue.

“Ordinarily the question whether or not an individual has failed or refused to assume the duties of a parent for the required period of time is a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing. [Citations omitted.] When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weight the evidence or pass upon the credibility of the witnesses. Under these circumstances the reviewing court must review the evidence in the light most favorable to the parly prevailing below.” Aslin v. Seamon, 225 Kan. 77, 78, 587 P.2d 875 (1978).

On appeal the critical issue we must resolve is whether the father otherwise failed to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption. In this case, that period would be from July 28, 1991, through July 28, 1993.

The father did pay child support during at least part of the two-year period. He was under an order to pay $200 a month. During the two-year period he paid $1,100 from August 13,1991, to March 22, 1993, and then stopped making payments, saying he was discouraged by the lack of visitation. He apparently had total child support arrearages, including time prior to July 28, 1991, of approximately $6,000, but claimed he has maintained a savings account in his mother’s name into which he paid the child support.

During the two-year period another ex-wife of the father contacted the mother and stepfather and sent an insurance card for C.R.D. that was apparently procured by the father.

Some of the details of the testimony are unclear because the trial transcript is incomplete. A tape recorder was used to preserve the testimony. The trial transcript contains the testimony of the stepfather, mother, maternal grandmother, and stepfather’s father. No other testimony is included. On appeal, the father points out the rest of the trial, containing his testimony and that of his witnesses, was either not taped or was taped and the tape was lost. The father [97]*97did not include a reconstructed statement of the evidence or proceedings pursuant to Supreme Court Rule 3.04 (1994 Kan. Ct. R. Annot. 19). Fortunately, the critical facts are apparently not disputed, and we can resolve the central issue in this appeal.

K.S.A. 59-2136(d) is controlling:

“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 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.”

Prior to passage of these updated provisions, relatively unsubstantial efforts by a parent to perform parental duties within the two-year time period were held to be sufficient to require the consent of that parent to an adoption under the statute. In re Adoption of Steckman, 228 Kan. 669, 674-75, 620 P.2d 319 (1980); In re Sharp, 197 Kan. 502, 508, 419 P.2d 812 (1966).

In its decision, the trial court stated, “[ijncidental visits and gifts are not enough to rebut the presumption raised by the statute. The court must find that the natural father wholly failed to exercise visitation, failed to maintain contact, communications and contributions.”

Elsewhere in the opinion, the trial court noted the support paid was $1,100 for the two-year period during which $4,800 was due. Under the statutory provision, the court found the payments to be insufficient to prevent termination of parental rights. The insurance coverage was not discussed in the opinion.

[98]*98Our courts have noted that “incidental” contacts and contributions as contemplated by K.S.A. 59-2136(d) and its predecessor statute, K.S.A. 59-2102(b) (Ensley), are to be disregarded when determining whether parental duties have been assumed. “Incidental” has been defined as, “casual, of minor importance, insignificant, and of little consequence.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Adoption of S.A.P.
Court of Appeals of Kansas, 2022
In re Adoption of A.T.V.
Court of Appeals of Kansas, 2019
In re to Adopt J.M.D.
260 P.3d 1196 (Supreme Court of Kansas, 2011)
In Re Jmd
260 P.3d 1196 (Supreme Court of Kansas, 2011)
In Re Adoption of Baby Girl P.
242 P.3d 1168 (Supreme Court of Kansas, 2010)
In Re JMD
202 P.3d 27 (Court of Appeals of Kansas, 2009)
In re the Application to Adopt J.M.D.
202 P.3d 27 (Court of Appeals of Kansas, 2009)
In Re the Adoption of G.L.V.
190 P.3d 245 (Supreme Court of Kansas, 2008)
In Re the Adoption of G.L.V.
163 P.3d 334 (Court of Appeals of Kansas, 2007)
In Re the Adoption of S.J.R.
149 P.3d 12 (Court of Appeals of Kansas, 2006)
In Re the Adoption of Baby Girl T.
21 P.3d 581 (Court of Appeals of Kansas, 2001)
Cellier v. State
18 P.3d 259 (Court of Appeals of Kansas, 2001)
S.C.R. v. C.L.C.
12 P.3d 916 (Court of Appeals of Kansas, 2000)
In Re Application to Adopt HBSC
12 P.3d 916 (Court of Appeals of Kansas, 2000)
In Re the Adoption of R.W.B.
7 P.3d 306 (Court of Appeals of Kansas, 2000)
In Re the Adoption of B.M.W.
2 P.3d 159 (Supreme Court of Kansas, 2000)
In Re the Adoption of A.P.
982 P.2d 985 (Court of Appeals of Kansas, 1999)
In Re the Adoption of K.J.B.
959 P.2d 853 (Supreme Court of Kansas, 1998)
In Re the Adoption of A.J.P.
953 P.2d 1387 (Court of Appeals of Kansas, 1998)
In Re the Adoption of K.J.B.
944 P.2d 157 (Court of Appeals of Kansas, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
897 P.2d 181, 21 Kan. App. 2d 94, 1995 Kan. App. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-crd-kanctapp-1995.