In Re the Adoption of Steckman

620 P.2d 319, 228 Kan. 669, 1980 Kan. LEXIS 368

• Court: Supreme Court of Kansas
• Decided: December 6, 1980
• Docket: 51,261
• Status: Published

Opinions

The opinion of the court was delivered by

Herd, J.:

This is an appeal by Doral Eugene Steckman from a decree of adoption granted in the Stafford District Court. Steckman, the natural father of Sammy and Millie Steckman, is contesting his children’s adoption by Glen Courtney, their stepfather, because he did not give his consent.

Steckman and Mildred Rebecca Steckman, now Courtney, were divorced June 2,1976. Mildred received custody of the two minor children, Sammy and Millie. Steckman was granted visitation rights consisting of alternate Saturdays and Sundays of each month and was ordered to pay child support of seventy-five dollars on the first and fifteenth of each month. On August 26, 1977, the former Mrs. Steckman married Glen Courtney. The Courtneys and the two children have lived together as a family since that time, supported by Glen Courtney.

On September 6,1978, with the consent of Mrs. Courtney, Glen Courtney petitioned the Stafford District Court for the adoption of Sammy and Millie. The district court entered its order of adoption on June 7, 1979, finding Steckman had failed to support the children and had “failed the natural and moral duty of a parent to show affection, care and interest toward his children . . . .” The court relied upon K.S.A. 59-2102(3), which provides:

“Before any minor child is adopted, consent must be given to such adoption:

(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent . . .

The court’s findings of fact in support of its order state:

“That in the two years preceding the filing of the petition for adoption, that there was one birthday gift to Doral Samuel Steckman, the son in 1976. No birthday gifts to Mildred Mae Steckman. At Christmas 1976 there was a $10.00 gift to each child.

“In 1977 there was a telephone call to Doral Samuel Steckman on his birthday but no gift to Mildred Mae Steckman on her birthday. On Christmas 1977 there was a gift to each child, but the children were not at home.

“In June of 1978 a present for Sammy and the natural father stopped by the swimming pool sometime during that summer and saw the children which have been the total contacts by the natural father. The father had moved from the community in June of 1976 and had to return to the area approximately once every three months, but made no attempt to contact the children other than the times indicated.”

The record also indicates Steckman made no child support payments during the two years in question.

Appellant argues he was denied due process of law under the Fourteenth Amendment to the U.S. Constitution when his parental rights were severed by the adoption of his children without his consent and without a finding of his unfitness.

Let us examine the nature of the constitutional rights of parents. The Supreme Court has determined that the liberty guaranteed by the Fourteenth Amendment gives an individual the right to marry, establish a home and bring up children. Meyer v. Nebraska, 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 625 (1923). In Stanley v. Illinois, 405 U.S. 645, 651, 31 L.Ed. 2d 551, 92 S.Ct. 1208 (1972), the U.S. Supreme Court recognized the rights of natural parents stating:

“The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment [citation omitted], the Equal Protection Clause of the Fourteenth Amendment [citation omitted], and the Ninth Amendment [citation omitted].”

The court declared an Illinois statute denying an unwed father a hearing to determine parental qualifications to be contrary to the Equal Protection Clause.

The prior cases graphically illustrate the court’s emphasis on the importance of the family and the nature of a parent’s rights under the Constitution of the United States. In Denton v. James, 107 Kan. 729, 735, 193 Pac. 307 (1920), Justice Burch stated, after citing the Kansas Bill of Rights:

“Man has no higher right or interest or happiness than that for which the words family and home stand. Very often it is said, with a touch of derision, that a child is not a chattel, and a parent has no property in his child giving him right to custody — which is very true. The interest which á parent has in the nurture of his own offspring, and in nearness to them for that purpose, lies in a different plane from that occupied by property; it transcends property. On the child’s side, it has no higher welfare than to be reared by its parents. The state has no higher welfare than to have children reared by their parents, and free government is instituted for the protection and benefit of parenthood as one of the natural rights which the citizen possesses. Acting on these principles, this court holds that welfare of a child is best subserved by leaving it with its natural guardian until it is demonstrated that the parent is unfit to discharge the duties which are correlative to his right. Then, and not until then, does his right yield.”

Custody or severance of parental rights is dependent upon fitness. Adoption without consent is dependent upon forfeiture of parental rights by failure or refusal to exercise parental duties for a period of two consecutive years. K.S.A. 59-2102(3). We have held forfeiture of parental right to consent is not dependent on fitness. In re Adoption of Wilson, 227 Kan. 803, 610 P.2d 598 (1980).

The cases involving stepparent adoptions are the following: In re Waters, 195 Kan. 614, 408 P.2d 590 (1965), involved the minor child Kenji Scott Waters, the son of Arthur Philip Waters and Loretta Waters, born in Japan in 1956 where Waters was teaching school. In 1957 the Waters were divorced and by the terms of a child custody agreement Kenji was placed in the custody of Loretta with Arthur having unlimited rights of visitation while they remained in Japan. In spite of the agreement, Loretta Waters concealed her whereabouts and that of Kenji for the remainder of their stay in Japan. Later in 1957 Loretta and Kenji returned to Colorado. In 1960, Loretta married Alvin R. Zweygardt and since that time Kenji had lived with Loretta and Alvin on a ranch in northwest Kansas. Arthur Waters never saw Kenji after the divorce and made no attempt to visit him even when he was in the same town. Waters paid child support until July 1961, then stopped. This court held that whether a parent has failed or refused to assume the duties of a parent for two consecutive years is a question of fact for the trial court and if supported by substantial competent evidence will not be disturbed, even though the mother acknowledged she had at all times deliberately concealed Kenji from his father. In a dissent joined by Justice Fontron, Justice, now Chief Justice, Schroeder stated:

“The father’s failure to pay money through the mother’s parents for the support of Kenji for a period of two years cannot be legally excused. But this is the only thread of evidence upon which the court can rely to sustain the finding of the trial court, unless it can be said that the failure of the father to search for the child and resort to court action was required. This, however, in my opinion, would be an unwarranted requirement under the circumstances here presented, where the mother is guilty of deliberately concealing the child from the father, and where the issue presented is whether the father has failed to assume the duties of a parent for two consecutive years.

“On this point, in my opinion, the failure of the father to send money for the support of his child, through the mother’s parents, for two consecutive years is mitigated by the deliberate concealment of the child by the mother, and by the further concealment of her whereabouts from the father, in violation of his rights as a natural parent. Under these circumstances, I do not think it can be said the father failed or refused to assume the duty of a parent for two consecutive years. If so, the mother is permitted to take advantage of the child’s father and the natural parent of Kenji by her own misconduct and contempt for the law.

“Perhaps in a situation such as this the child should have a father present in the home where he resides, such as the stepfather in this case, and this may have prompted the probate court and the district court to permit the adoption to stand; but this approach entirely ignores the legal proposition presented and establishes a bad precedent.” In re Waters, 195 Kan. at 620-621. (Emphasis in original.)

In the case of In re Sharp, 197 Kan. 502, 419 P.2d 812 (1966), we held the consent of both natural parents is required except when they have failed or refused to assume the duties of a parent for two consecutive years immediately preceding the filing of the adoption petition. The court adopted a strict construction of the statute in favor of the natural parent. This court defined the term “obligation of a parent” as follows:

“Although a natural parent under a divorce decree is given only rights of visitation with minor children, we are not prepared to say that all the other privileges, duties and obligations of parenthood are thereby excluded. The simple acts whereby a parent may manifest normal affection, care and interest in a child are ordinarily not judicially proscribed. The door is left ajar for the parent to maintain the remaining thread of the parent-child relationship. The exercise of the right of visitation is only one of the many factors to be considered by the court in its ultimate determination.” In re Sharp, 197 Kan. at 508.

In Aslin v. Seamon, 225 Kan. 77, 587 P.2d 875 (1978), the trial court found William Thompson, the natural father of Linda and Tina Foster, had consented to their adoption by David and Marjorie Seamon, while Clara Foster Aslin, their natural mother, had failed to assume her duties as parent for two consecutive years prior to the filing of the petition. The trial court found she forfeited her right because a parental obligation requires more than “ ‘sporadic attempts at having a child returned.’ ” Aslin at 78. The Court of Appeals made new findings of fact and reversed the trial court. We held, in reversing the Court of Appeals, that the question of whether or not an individual has failed or refused to assume the duties of a parent for two consecutive years is a question of fact to be determined by the trial court upon competent evidence after a full and complete hearing, which will not be disturbed on appeal if substantial competent evidence exists to support the findings. See In re Herbst, 217 Kan. 164, 535 P.2d 437 (1975).

We next dealt with a construction of K.S.A. 59-2102(3) in In re Adoption of Wilson, 227 Kan. 803. Dennis and Mary Wilson were married in 1971, had two children, Jason Lee and Jeremy Ray, and were divorced in 1975. Mary obtained custody of the two children and Dennis was ordered to pay $250 per month child support and keep certain insurance in effect. Dennis fell behind on his payments and requested a reduction, which the court allowed. In the meantime, Mary married Glenn L. Patrick in 1976, who petitioned to adopt the two children in 1978. We held Dennis had not assumed his duty as a parent for two consecutive years by his failure to pay child support, or send gifts at Christmas or on holidays. Additionally, he visited the children only once during the two years. Wilson explained his failure by stating he had financial problems and was unable to provide support. He stated he had requested visitation rights in 1977 but Mary had not responded to those requests. Further, he testified he had not sent presents because he respected the religious beliefs of the Patricks, who were Jehovah’s Witnesses. We held the trial court’s findings of fact were supported by substantial competent evidence and thereby rejected Dennis Wilson’s explanation.

We must consider the complications arising from a situation in which one parent obtains custody of the child while the other parent is given limited visitation rights and is ordered to pay child support. Often, the parent with custody designates the terms of visitation, when and where it shall be. In many cases, the spouse who is delinquent in child support is advised there can be no visitation until the financial obligation is paid in full. Often, the parent with custody remarries and moves the child to another area, making it difficult for the dispossessed parent to see the child. The parent with possession of the child is awarded the pleasure of the child’s company and the sum of parental rights with respect to the rearing of the child. That parent has the right to direct the child’s activities and make decisions regarding care, control, education, health and religion. 59 Am. Jur. 2d, Parent and Child § 25, p. 107. The dispossessed parent has very little remaining except an obligation to pay child support and the privilege of a painful visit at a time and place determined by the former spouse.

Considering the previously enumerated problems, typical of broken marriages involving children, and the U.S. Supreme Court’s recognition of the importance of the family, we reaffirm our strict construction of K.S.A. 59-2102, and in particular, section 3 of that statute. In reassessing our holdings in earlier Kansas adoption cases, we interpret K.S.A. 59-2102(3) to refer to those parents who, by their actions, clearly show little or no interest in the welfare of their children. See In re Adoption of Harrington, 228 Kan. 636, 620 P.2d 315 (1980).

Let us now examine the conduct of Doral Eugene Steckman toward his children to determine whether he has failed or refused to assume his parental duties for the two consecutive years immediately prior to this action. He must be judged on the balance of his conduct and attitude toward his children from September 6, 1976, to September 6, 1978. Appellant remembered Sammy’s birthday each year with a present or a phone call. There is no evidence Millie’s birthday was remembered. Both children received Christmas gifts from appellant in 1976 and 1977 and the record shows disputed assertions that Easter and Valentine cards were sent. Steckman visited the children at the time of Sammy’s birthday in 1978, at the swimming pool in Stafford and attempted to visit them in December, 1977, but didn’t make connection due to the children’s absence. Finally, Steckman furnished Blue Cross and Blue Shield medical insurance for the two children the entire two year period.

Although we do not condone Doral Steckman’s refusal to pay child support, his other actions, including concern for the children, visits, observation of birthdays and Christmas and his providing medical insurance, taken cumulatively clearly show he had not failed or refused to assume his parental responsibilities for two consecutive years and his consent was therefore essential for a valid adoption. The evidence does not support the judgment of the district court.

The judgment of the district court is reversed and the decree of adoption is set aside.