In re the Adoption of D.R.B.

908 P.2d 198, 21 Kan. App. 2d 790, 1995 Kan. App. LEXIS 165
CourtCourt of Appeals of Kansas
DecidedDecember 15, 1995
DocketNo. 74,068
StatusPublished
Cited by2 cases

This text of 908 P.2d 198 (In re the Adoption of D.R.B.) 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 D.R.B., 908 P.2d 198, 21 Kan. App. 2d 790, 1995 Kan. App. LEXIS 165 (kanctapp 1995).

Opinion

Green, J.:

The natural father of L.J.B. and D.R.B., minor children, appeals from a judgment of the trial court granting the stepfather the right to adopt the children. The trial court determined that the father s consent to the adoption was unnecessary because he had failed or refused to assume the duties of a parent during the 2 years before the filing of the adoption petition. On appeal, the father contends the trial court erred in determining that he knowingly failed to pay court-ordered child support. Additionally, the father contends that the trial court erred in determining that his consent was unnecessary. We disagree and affirm the judgment of the trial court.

In terminating the father’s parental rights, the trial court made certain findings of fact. Consequently, our scope of review with regard to those findings is narrow. In an adoption case involving a challenge to the sufficiency of the evidence, our Supreme Court explained our standard of review as follows:

“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 weigh 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 party prevailing below. [Citation omitted.]” Aslin v. Seaman, 225 Kan. 77, 78, 587 P.2d 875 (1978).

The mother and the father of D.R.B., age 11, and L.J.B., age 8, were divorced on November 27, 1991. Although the father did not appear at the hearing, he was represented by retained counsel. The mother was granted sole custody of the children. The father was awarded supervised visitation rights with the children and was ordered to pay $568 per month for child support.

The father first argues that because he was never furnished with a copy of the divorce decree, which contained the support order, the trial court erred in determining that he had knowingly failed to pay court-ordered support for his two children. Although both the father and mother agreed that the father failed to pay any of the court-ordered support, the father testified that he had never seen the divorce decree. In determining that the father either knew [792]*792or should have known about the order for support, the trial court stated:

“I find from the evidence that the natural father knew, or should have known of his obligation to support these children then and there. If he didn’t know the exact amount of money he was obligated to pay, it was his duty to check into and to find out. If he didn’t want to contact Mr. Senecal because he owed him money, he could have contacted the Court and got a copy of the Divorce Decree from the Court. That he knew that was available to him, that he absolutely did nothing.
“I find that the mother on several occasions during this crucial two year period of time made mention of the fact that she needed money. That the children needed his support, told him if not the exact amount, from his own testimony, that his obligation was in excess of $500. That he did absolutely nothing with this knowledge that he had, he again set back and did absolutely nothing by way of making any support payments.”

Moreover, the father testified that the mother reminded him of his obligation to provide financial support. The mother testified that she threatened to garnish the father’s wages but that she did not do so because the father begged her not to, saying he would be fired. She also testified that she was deterred by the cost of filing an out-of-state garnishment when she might reap little or no benefit. In his defense, the father testified that the mother did not advise him of the exact amount ordered by the court but merely told him that he was to pay in excess of $500 each month. The maternal grandmother, who had maintained contact with the father despite the parties’ divorce, also testified that she and the father discussed the father’s obligation to provide financial support for D.R.B. and L.J.B.

Although the father and the mother, and later the father and the grandmother, offered conflicting testimony regarding discussions about the father’s obligation to provide support, the trial court specifically resolved such conflicts in favor of the mother and grandmother. Because this court does not weigh the evidence or pass upon the credibility of the witnesses, this court must accept the trial court’s conclusions regarding the credibility of the witnesses. See Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977). Consequently, the evidence indicates that the father was aware of the trial court’s order that he pay support.

[793]*793Additionally, the trial court determined that the father had the ability to provide the court-ordered support. The father’s testimony supports this finding. On cross-examination, the father testified that he was employed as a civil engineer throughout the 2-year period in question, with the exception of 1 month. During the 2-year period, the father testified that he earned approximately $30,000 per year and that he was currently earning $40,000 per year. Based upon the testimony offered and the trial court’s assessments of the witnesses’ credibility, the trial court’s finding that the father willfully failed to provide the court-ordered child support is supported by substantial competent evidence.

This finding is significant because the applicable statute, K.S.A. 59-2136(d), includes a rebuttable presumption that a father who fails to provide financial support, when financially able and when ordered by a court to do so, has failed or refused to assume his parental duties. K.S.A. 59-2136(d) states:

“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

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Cite This Page — Counsel Stack

Bluebook (online)
908 P.2d 198, 21 Kan. App. 2d 790, 1995 Kan. App. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-drb-kanctapp-1995.