In re Adoption of T.M.M.H. – Per Curiam

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,309

In the Matter of the Adoption of T.M.M.H.

SYLLABUS BY THE COURT

1.
The Kansas Constitution imposes a case-or-controversy requirement. Part of that
requirement, and a component of subject matter jurisdiction, is standing. Standing
concerns a litigant's ability to seek a judicial remedy or to seek judicial enforcement of a
right or duty.

2.
If a statute provides the basis for asserting a right to seek a judicial remedy, a
multilevel analysis applies to the determination of standing: First, courts analyze
standing as a matter of statute and, second, as a matter of common law. To meet the
common-law requirement, the party seeking to establish standing must establish a
sufficient stake in the outcome to obtain judicial resolution of the controversy. Meeting
only one prong or the other is insufficient; both prongs must be established.

3.
Adoption, including adoption by a stepparent, was not recognized at common law,
and subject matter jurisdiction over such a proceeding is created by statute. The Kansas
Adoption and Relinquishment Act (KARA), K.S.A. 59-2111 et seq., sets out who should
be given notice, who must consent, and who may participate in a stepparent adoption
proceeding.

1
4.
Statutory standing in an adoption case on appeal is governed, in part, by K.S.A.
2016 Supp. 59-2401a(a), (b), which allows an "interested party" to bring an appeal from
any final order, judgment, or decree in an adoption proceeding.

5.
Under K.S.A. 2016 Supp. 59-2401a(e)(1), (e)(7), or (e)(8), an "interested party" in
an adoption proceeding could be a parent, the petitioner, or a person granted interested
party status by the court from which the appeal is being taken.

6.
Simply pressing a point without pertinent authority, or without showing why it is
sound despite a lack of supporting authority, is akin to failing to brief an issue. Where the
appellant fails to brief an issue, that issue is waived or abandoned.

7.
The nature of the burden to establish the elements of standing, which rests with the
party asserting it, depends on the stage of the proceedings—whether the question of
standing has arisen at the pleading stage, through motions supported by affidavits or other
facts, or at the final stage of trial.

8.
A party asserting a claim on appeal bears the burden to designate facts in the
record on appeal to support that claim; without such a record, appellate courts presume
the action of the district court was proper.

2
9.
Under Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 53), when this
court reviews a decision of the Kansas Court of Appeals, it will not consider issues not
presented or fairly included in the petition for review.

10.
Although Supreme Court Rule 165 (2018 Kan. S. Ct. R. 215) requires a district
court to make adequate findings and conclusions regarding contested matters, a party also
has the obligation to object to inadequate findings of fact and conclusions of law in order
to preserve an issue for appeal because this gives the trial court an opportunity to correct
any findings or conclusions that are argued to be inadequate.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 2,
2016. Appeal from Johnson District Court; MICHAEL P. JOYCE, judge. Opinion filed May 11, 2018.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Joseph W. Booth, of Lenexa, argued the cause and was on the briefs for appellant legal custodian-
grandmother.

Suzanne Valdez, of Smith Legal, L.L.C., of Lawrence, argued the cause and was on the briefs for
appellee stepfather.

Linus L. Baker, of Stilwell, was on the brief for amicus curiae National Association for
Grandparenting.

Lindsee A. Acton and Warren H. Scherich III, of Scherich Family Law, PC, of Shawnee were on
the brief for amicus curiae National Association of Social Workers and the Kansas Chapter of the
National Association of Social Workers.

3
The opinion of the court was delivered by

PER CURIAM: In this appeal, a paternal grandmother (Grandmother) appeals a
district court's determination that she was not an interested party in a stepparent adoption
proceeding relating to her grandson, T.M.M.H. She acknowledges precedent that holds a
grandparent is not typically an interested party who has standing in stepparent adoption
cases. Nevertheless, she asserts her circumstances distinguish her from other
grandparents and give rise to a number of legal theories that serve as a basis for granting
her interested party status and recognizing her standing to challenge the stepparent
adoption. These theories depend on or arise from (1) court orders in a separate
grandparent visitation case that is not the subject of this appeal, (2) agreements between
the Grandmother and T.M.M.H.'s biological mother (Mother), and (3) the relationship
that developed between Grandmother and T.M.M.H. as a result of the custodial
arrangements agreed to by Mother and Grandmother or ordered by the court in the
separate case.

We reject these arguments on procedural grounds and conclude Grandmother has
failed to meet her burden of establishing her standing.

FACTS AND PROCEDURAL BACKGROUND

T.M.M.H., who was born on November 5, 2006, was a few months old when his
father died in 2007. When T.M.M.H. was young, Mother and Grandmother agreed he
would live for a period of time with Grandmother. We know little about this agreement.
Whatever the initial arrangement may have been between Mother and Grandmother, at
some point in 2008, Grandmother filed a petition in district court for grandparent
visitation.

4
 Several years later, on August 6, 2015, this stepparent adoption case was filed to
formally endow Mother's husband (Stepfather) with parental rights to T.M.M.H. The
visitation case, which continues to be litigated, and the adoption case remained as
separate proceedings in the Johnson County District Court. The two cases were not
consolidated, and they were assigned to different judges.

Since T.M.M.H.'s birth, Mother and Grandmother have apparently reached several
agreements. Some appear—or at least the initial agreement appears—to have been
reached outside of any court process and others as part of the visitation case. In the
parties' arguments, the agreements are referred to by different names, including "private
parenting contract" and "parenting plan."

In February 2015, the court handling the grandparent visitation case held a three-
day trial. It is unclear what prompted the hearing or what evidence was presented. On
April 13, 2015, the district court issued a journal entry and order, which is included in the
record of this case. The order "granted joint legal custody." It also required "the minor
child be reintegrated into [Mother's] life and family." The court retained the authority to
"make decisions [related] to joint legal custody, but only when the parties are unable to
do so." The issue was set for rehearing on June 25, 2015. It is unknown if that rehearing
occurred and, if so, its result.

About six weeks later, Stepfather filed a Petition for Adoption in Johnson County
District Court. Mother consented. The court appointed a Guardian ad Litem, set the
petition for hearing, and required notice "be provided to all interested parties hereto,
including but not limited to [Grandmother]." The court adopted the language of
Stepfather's proposed order without independently analyzing whether Grandmother was
an interested party entitled to notice at this point in the adoption proceeding.

5
 Grandmother responded to the notice by, among other things, arguing the
stepparent adoption petition collaterally attacked the orders in the visitation case and
impeded her rights. She later moved to compel depositions. In a January 6, 2016,
telephonic hearing, the court sua sponte questioned Grandmother's status as an interested
party and, correspondingly, her standing. Grandmother then propounded discovery
requests. In response, Stepfather asserted Grandmother's lack of standing. Grandmother
filed a verified response, but no hearing was held to allow the formal admission of
evidence related to standing. On February 26, 2016, the court issued its "Order Regarding
Standing and Denying Motion to Compel Depositions," in which it concluded
Grandmother had standing to receive notice but lacked standing to participate in the case,
was not an interested party in the adoption proceeding, and could not compel depositions.

In determining Grandmother's standing, the stepparent adoption court reviewed
K.S.A. 2016 Supp. 59-2129(c), which lists the parties whose consent is required for a
stepparent adoption. The court noted grandparents, even those with visitation, are not
entitled to notice under the statute. The court acknowledged Grandmother had joint legal
custody arising out of a case that began as an action for grandparent visitation under
K.S.A. 38-129(b) (now codified at K.S.A. 2016 Supp. 23-3301[c]), but found the custody
arrangement did not confer standing. The court rejected Grandmother's position that she
was a permanent legal custodian, finding the only basis for awarding such status is the
Kansas Code for Care of Children, specifically K.S.A. 2016 Supp. 38-2272. The court
ruled its decision was controlled by Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135
(1974) (grandmother not an interested party, not entitled to notice of stepparent
adoption), and In re Adoption of J.A.B., 26 Kan. App. 2d 959, 969, 997 P.2d 98 (2000)
(no error in district court holding grandparent had standing to participate in adoption
proceeding solely on issue of visitation but "grandparents' rights in the adoption
proceeding are limited to a determination of whether reasonable visitation should be
granted").
6
 Grandmother appealed, and the Court of Appeals affirmed the district court. In re
Adoption of T.M.M.H., No. 115,309, 2016 WL 7032112 (Kan. App. 2016) (unpublished
opinion).

The Court of Appeals panel began its legal analysis by questioning whether
jurisdiction existed because the appeal had not been taken from a final order. 2016 WL
7032112, at *2. The panel concluded it had jurisdiction under the collateral order doctrine
because the district court order conclusively determined the issue of Grandmother's
standing; the standing issue was an important one separate from the merits of the
adoption; and an immediate appeal was required because, otherwise, Grandmother would
be powerless to appeal a final judgment in the adoption proceeding. 2016 WL 7032112,
at *3.

Next, the panel addressed the significance of the joint legal custody arrangement
between Mother and Grandmother. The panel looked to Kansas statutes for a definition of
joint legal custody. The only reference it found was in the context of custody between
divorcing parents. The panel then looked to the record for clarification of the nature of
the agreement between Mother and Grandmother. It found the record contained only two
relevant documents: a journal entry filed in the grandparent visitation case on September
30, 2015, and the order finding Grandmother lacked standing in the stepparent adoption
case. The panel concluded Grandmother failed to designate sufficient facts to support her
claim; the district court decision was proper in the absence of a sufficient record; and
Kansas statutory law did not require a different result. 2016 WL 7032112, at *6.

The panel then considered whether grandparents have any rights in cases of
stepparent adoption generally. 2016 WL 7032112, at *6. The panel reviewed the persons
who are required to provide consent to a stepparent's adoption, which does not include a
grandparent even when the grandparent has visitation rights. The panel ruled the statute
7
authorized the district court to provide notice to Grandmother, which the district court
had done, but that notice did not give Grandmother a right to "conduct depositions or
otherwise participate in the adoption hearing." 2016 WL 7032112, at *6.

The panel, while acknowledging that Grandmother's relationship was unique,
observed that guardianship was the legal status most analogous to that conferred upon
Grandmother. 2016 WL 7032112, at *7. The panel then determined that the parental
preference doctrine applied. It rejected Grandmother's argument that Mother had waived
her parental preference by agreeing to share joint legal custody with Grandmother,
because Grandmother failed to meet her burden of proving a knowing waiver of the
preference. 2016 WL 7032112, at *8.

Finally, the panel rejected Grandmother's argument that she should be allowed to
participate in the stepparent adoption to advocate for the best interests of the child,
concluding the best interests test did "not apply in determining a fit parent's custodial
right as against a third-party nonparent's right." 2016 WL 7032112, at *8. The panel
concluded: "[E]ven if the record had fully supported Grandmother's claim that her status
as a joint legal custodian of the child generally gives her the right to make decisions in
the best interests of the child, that right must yield to the conflicting right of the fit
Mother." 2016 WL 7032112, at *8.

Grandmother filed a petition seeking this court's review of the Court of Appeals
decision, which we granted.

ANALYSIS

The sole issue in this case is whether the district court erred when it determined
Grandmother was not an interested party—and therefore did not have standing—to
8
participate in the stepparent adoption. That issue requires us to interpret Kansas statutes
and the legal effect of the parties' agreement and court orders. These are questions of law
over which this court exercises unlimited review. State ex rel. Secretary of DCF v. Smith,
306 Kan. 40, 48, 392 P.3d 68 (2017) (statutory interpretation); Gannon v. State, 298 Kan.
1107, 1122, 319 P.3d 1196 (2014) (standing); Frazier v. Goudschaal, 296 Kan. 730, 748,
295 P.3d 542 (2013) (interpretation and legal effect of written instruments).

To explore the issue of standing, we necessarily start with some basic principles:
The Kansas Constitution imposes a case-or-controversy requirement. Sierra Club v.
Moser, 298 Kan. 22, 29, 310 P.3d 360 (2013); State ex rel. Morrison v. Sebelius, 285
Kan. 875, 895-96, 179 P.3d 366 (2008). Part of that requirement, and a component of our
subject matter jurisdiction, is standing. Sierra Club, 298 Kan. at 29. We have described
standing as "'a party's right to make a legal claim or seek judicial enforcement of a duty
or a right.'" KNEA v. State, 305 Kan. 739, 746, 387 P.3d 795 (2017).

Before us, Grandmother argues the Court of Appeals erroneously focused on
various statutes to determine if she had standing to contest the adoption proceeding rather
than focusing on whether she met the common-law standing test. Under the common-law
test a party seeking to establish standing must have a "sufficient stake in the outcome of
an otherwise justiciable controversy in order to obtain judicial resolution of that
controversy." Moorehouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996).
Accordingly, Grandmother at least implies she need only establish common-law standing.

In making this argument, Grandmother does not discuss the two-prong standing
test that applies when a statute provides the basis for asserting a right to seek a judicial
remedy. Under this test, courts analyze standing as a matter of (1) statute and
(2) common law. Sierra Club, 298 Kan. at 29. Meeting only one prong or the other is

9
insufficient; both prongs must be established. See Cochran v. Kansas Dept. of
Agriculture, 291 Kan. 898, 908-09, 249 P.3d 434 (2011).

The first question, of course, is whether that test applies in adoption proceedings.
Most cases applying the test arise under the Kansas Judicial Review Act (KJRA), K.S.A.
2016 Supp. 77-601 et seq., but it has been applied when standing is dictated by other
statutes as well. E.g., Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1121-
22, 307 P.3d 1255 (2013) (plaintiff-association required to establish standing under the
Historic Preservation Act and traditional-associational standing); Cochran, 291 Kan. at
903-10 (considering standing under the Kansas Water Appropriation Act and KJRA
when both provided a basis for standing and were not in conflict with each other and
traditional standing analysis).

Grandmother does not suggest any reason both prongs of the standing test would
not apply in a stepparent adoption case, and several aspects of adoption law suggest that
the statutory test must be met. Indeed, "[a]doption was not recognized at common law,
and subject matter jurisdiction over such a proceeding is created by statute." In re
Adoption of H.C.H., 297 Kan. 819, 825, 304 P.3d 1271 (2013). Likewise, "[t]he right to
appeal [in civil cases, including actions involving parental rights,] is entirely statutory
and is not a right contained in the United States or Kansas Constitutions." In re T.S.W.,
294 Kan. 423, 432, 276 P.3d 133 (2012). Furthermore, past cases of this court dealing
with standing issues in the context of adoption have focused on statutory standing, even if
not explicitly using those words or setting out the two-prong test.

For example, in Browning, this court recognized a stepparent adoption would
impact a grandmother's ability to exercise her visitation rights with her grandchild. In
other words, she would suffer injury. But instead of deciding standing on that basis—i.e.,
common-law standing—the court examined the statute that dictated who must consent to
10
an adoption. Noting that the grandmother's consent was not required in the stepparent
adoption, the court concluded there was nothing she "could have done to defeat the
adoption" and she was not an interested party. 215 Kan. at 506.

This same conclusion applies in this case as it relates to Grandmother's status as a
grandparent with visitation rights. But she asserts additional grounds for her standing.
Even as to those, however, Browning instructs that statutory standing must be established
in addition to common-law standing.

Consequently, we hold Grandmother, in order to appeal, must establish both
statutory and common-law standing; she cannot rely solely on common-law standing.

Statutory Standing and the Right to Appeal

Statutory standing in the current adoption case is governed, in part, by K.S.A.
2016 Supp. 59-2401a, which is not found in the Kansas Adoption and Relinquishment
Act (KARA), K.S.A. 59-2111 et seq., but explicitly includes appeals in adoption cases. In
an adoption proceeding, "an interested party" may bring an appeal "from any final order,
judgment or decree." K.S.A. 2016 Supp. 59-2401a(a), (b).

The Court of Appeals panel, focusing on this statute, issued a show cause order
and eventually asked the parties to brief the question of whether a final order was being
appealed. Ultimately, the panel determined a final order was not involved but the appeal
could still be brought under the collateral order doctrine. 2016 WL 7032112, at *3.
Stepfather did not cross-petition for review of this issue. Typically, this would preclude
our review of the question. See Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 56)
("[I]ssues before the Supreme Court include all issues properly before the Court of
Appeals which the petition for review or cross-petition allege were decided erroneously
11
by the Court of Appeals."); State v. Keenan, 304 Kan. 986, 993, 377 P.3d 439 (2016)
("Because the State did not cross-petition to challenge the Court of Appeals' preservation
ruling in favor of [the defendant], we will not consider whether the panel erred on this
point.").

Nevertheless, because jurisdiction may be raised sua sponte by a court, this rule
may not be applicable in this situation. See Kansas Bldg. Industry Workers Comp. Fund
v. State, 302 Kan. 656, 666, 359 P.3d 33 (2015) ("An appellate court can make a sua
sponte inquiry into whether it has jurisdiction over a question presented to it on appeal.").
In this case, however, little would be gained by reopening the question without further
briefing by the parties, especially when we determine Grandmother has failed to establish
a record sufficient to show she meets the interested party requirement of K.S.A. 2016
Supp. 59-2401a, which means this court lacks jurisdiction over this appeal on that basis
even if the lack of a final order is not determinative.

To explain our conclusion that this court lacks jurisdiction, we return to K.S.A.
2016 Supp. 59-2401a, which defines "interested party" by listing eight categories of
individuals. One provision relates only to adoption cases; it specifies that "'interested
party'" means: "The parent in a proceeding pursuant to" the KARA. K.S.A. 2016 Supp.
59-2401a(e)(1). But two general provisions apply as well. One general provision allows
an appeal by "the petitioner in the case on appeal" and the other by "any other person
granted interested party status by the court from which the appeal is being taken." K.S.A.
2016 Supp. 59-2401a(e)(7), (8).

Notably, this statute does not include grandparents or legal custodians in the
definition of "interested parties." Cf. In re D.D.P., Jr., 249 Kan. 529, 542, 819 P.2d 1212
(1991) ("If the grandfather has standing to appeal [in this child-in-need-of-care
proceeding], then he must have been designated an 'interested party.'"). As a result, we
12
need not consider three of the four issues presented in Grandmother's Court of Appeals
brief because they relate specifically to Grandmother's status as joint legal custodian.
Even if the district court erred in its rulings regarding Grandmother's rights as a legal
custodian, that status was insufficient to grant statutory interested party standing.

Grandmother Was Not the Petitioner and Was Denied Interested Party Status

Considering the three categories of interested party listed in K.S.A. 2016 Supp.
59-2401a(e)—a parent, the petitioner, and a person designated by the district court as an
interested party—we begin with the most straightforward: Stepfather filed the petition in
this case, and therefore Grandmother cannot claim to be an interested party because she is
a petitioner.

Turning to another category, we conclude Grandmother cannot appeal as someone
granted interested party status. Although the district court initially ordered notice be
given to Grandmother as an interested party, the court ultimately denied Grandmother
interested party status. Moreover, Grandmother does not rely on her interested party
status as the basis for her appellate standing. Nor does she assert her standing arises from
her temporary status as an interested party. As such, she has waived any such argument.
"'Simply pressing a point without pertinent authority, or without showing why it is sound
despite a lack of supporting authority, is akin to failing to brief an issue. "Where the
appellant fails to brief an issue, that issue is waived or abandoned."'" State v. Angelo,
306 Kan. 232, 236, 392 P.3d 556 (2017) (quoting McCain Foods USA, Inc. v. Central
Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 [2002]).

Instead, Grandmother presents the issue on appeal as one arising because she does
not have interested party status; she argues the district court erred in denying her that
status. Thus, as the issue is presented to us, Grandmother's standing to appeal cannot
13
stand on her designation as an interested party. Although this may appear harsh or unfair
because it leaves someone who believes the district court erred when denying interested
party status without an appellate remedy, no arguments have been presented suggesting
we must interpret the statute in some way other than its plain language. Any such
arguments have also been waived. See Angelo, 306 Kan. at 236. Furthermore, the right to
appeal is statutory and only the legislature can revise the statute. See In re Condemnation
of Land v. Stranger Valley Land Co., 280 Kan. 576, 578, 123 P.3d 731 (2005).

Grandmother Has Not Established a Basis for Determining Parentage

This leaves the third category of "parent" and Grandmother's arguments as to why
she should be considered a parent. Grandmother argues she has statutory standing as a
parent, either because of the court orders, because of her agreements with Mother, or
because of her de facto relationship with T.M.M.H.

We first note that Grandmother primarily relied on different arguments before the
district court where she told the court she was "asserting her rights as a custodian"; "her
standing arises because of her status of legal custodian"; and "Legal parents and Legal
Custodians rights are different." And the district court's ruling focused on these
arguments. Nevertheless, Grandmother also argued Mother had waived her parental
preference and made Grandmother a co-parent. She asserted "the general class of 'parent'
includes [Grandmother] as a permanent legal custodian, a status that was granted by
[Mother] and confirmed by later court action." In support of that argument, Grandmother
relies on two Kansas cases to argue the parental preference can be waived or shared by
agreement with a third party—that is, someone other than the biological or adoptive
parent: Frazier, 296 Kan. at 753, and In re Marriage of Nelson, 34 Kan. App. 2d 879,
884, 125 P.3d 1081 (2006).

14
 In Frazier, this court enforced parenting agreements between a birth mother and
her same-sex partner. The first agreement was entered into before the birth of the first
child. The agreement—and a similar one entered into before the birth of a second child—
identified the same-sex partner as a "de facto parent," specified that her "'relationship
with the children should be protected and promoted,'" and expressed the parties' intention
"'to jointly and equally share parental responsibility.'" The agreements further provided
the parties would pay child support and jointly make major decisions affecting the
children. Each woman also executed a will naming the other as the children's guardian.
The same-sex partner invoked the court's equitable jurisdiction to specifically enforce the
agreements. 296 Kan. at 733-34.

In enforcing the agreements, this court found the co-parenting agreements were
"not rendered unenforceable as violating public policy merely because the biological
mother agreed to share the custody of her children with another, so long as the intent, and
effect, of the arrangement was to promote the welfare and best interests of the children."
296 Kan. at 751. The court discussed the parental preference doctrine, on which
Stepfather in this case heavily relies. Under that doctrine:

"[A] parent who is not found to be unfit, has a fundamental right, protected by the Due
Process Clause of the United States Constitution, to the care, custody and control of his
or her child, and . . . the right of such a parent to custody of the child cannot be taken
away in favor of a third person, absent a finding of unfitness on the part of the parent."
Sheppard v. Sheppard, 230 Kan. 146, 154, 630 P.2d 1121 (1981).

The Frazier court determined "parental preference can be waived and . . . courts
should not be required to assign to a mother any more rights than that mother has claimed
for herself." 296 Kan. at 753 (citing In re Marriage of Nelson, 34 Kan. App. 2d 879).
Thus the court gave effect to the natural mother's waiver of parental preference in favor
of a third party when the waiver was made knowingly, intelligently, and voluntarily.
15
296 Kan. at 751-52. The court also gave effect to the agreement's designation of the
same-sex partner as a de facto parent. 296 Kan. at 753.

A Court of Appeals panel similarly gave effect to a parent's waiver of the parental
preference doctrine in In re Marriage of Nelson, 34 Kan. App. 2d 879, the second case
cited by Grandmother. There, both biological parents knowingly waived the parental
preference doctrine during divorce proceedings and agreed to grant custody to a paternal
aunt of the child. Later, when the mother sought custody and asserted she was entitled to
custody under the parental preference doctrine, the panel held the mother could not rely
on the doctrine after she had voluntarily and expressly waived it. 34 Kan. App. 2d 883-
84.

Grandmother argues Frazier and In re Marriage of Nelson support her argument
that she can be a grandparent and, through agreements with Mother and orders of the
grandparent visitation court, also be legally and emotionally a co-parent. And before the
district court in her verified brief she asserted T.M.M.H. had spent "90% of his young life
with [her] as primary caregiver." She also explained she had provided all financial
support during the time the mother had "surrendered custody." She further asserted "the
general class of 'parent' includes [her] as a permanent legal custodian."

The Court of Appeals panel did not discuss these possibilities in depth because it
correctly concluded the record on appeal in this case is insufficient to know the exact
contours of any of the agreements between Mother and Grandmother. The panel noted
the parties described the agreements using a variety of terms but nothing in the record
allowed a determination of "whether the agreements merely establish where the child will
reside during the year, or if they establish additional duties and responsibilities such as
having control of the minor and providing for the minor's care, treatment, habilitation,
education, support, and maintenance." In re Adoption of T.M.M.H., 2016 WL 7032112,
16
at *6. In light of the lack of information, the panel held that Grandmother failed to meet
her burden of establishing standing. 2016 WL 7032112, at *6 (citing Friedman v. Kansas
State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 [2013]).

Until the Court of Appeals decision, the issue of Grandmother's burden of
persuasion received little discussion by the parties. And no Kansas case discusses the
issue in much detail in the context of a probate case. In other contexts, we have
recognized that the nature of the burden to establish the elements of standing, which rests
with the party asserting it, "depends on the stage of the proceedings." Gannon v. State,
298 Kan. 1107, 1123, 319 P.3d 1196 (2014) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 [1992]). In most civil cases,

"[a]t the pleading stage, general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we 'presum[e] that general
allegations embrace those specific facts that are necessary to support the claim.' [Citation
omitted.] In response to a summary judgment motion, however, the plaintiff can no
longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence
'specific facts,' [citation omitted], which for purposes of the summary judgment motion
will be taken to be true. And at the final stage, those facts (if controverted) must be
'supported adequately by the evidence adduced at trial.'" Lujan, 504 U.S. at 561.

These stages do not fit exactly with procedures under KARA or the Probate Code
in general. Nevertheless, they persuasively suggest a framework for our analysis that
requires elevating the level of proof. See, e.g., In re Estate of Cipra, 173 Kan. 334, 337,
246 P.2d 267 (1952) (When no specific provision of the Probate Code addresses a
pleading issue, this court has looked to cases dealing with civil procedure for guidance.).

Regarding the lowest possible burden, Grandmother did not advance an argument
that the district court should adjudicate standing based on mere assertions in her brief.

17
See Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 264-65, 275 P.3d 869 (2012) (at the
pleading stage, the party asserting standing has the burden to establish a prima facie case
of standing, that is, a basis when viewed in the light most favorable to the party). As
such, any such issue has not been preserved for appeal. See State v. Godfrey, 301 Kan.
1041, 1043-44, 350 P.3d 1068 (2015) (generally an issue must be raised in district court
in order to be preserved for appeal).

In fact, Grandmother moved beyond mere pleadings by filing a verified "Brief
Showing as a Legal Custodian [Grandmother] Has Standing" with the district court. We
have treated verified documents as evidence as long as not "verified on information and
belief." State, ex rel., v. Molitor, 175 Kan. 317, 325, 263 P.2d 207 (1953); see Sperry v.
McKune, 305 Kan. 469, 488, 384 P.3d 1003 (2016). In Grandmother's verified brief, she
asked the district court to take judicial notice of the record in the visitation case and she
submitted some—but not all—of the relevant documents as attachments. Grandmother
also presented, via an attachment to her verified brief, a "Journal Entry and Order" from
the grandparent visitation case. It decrees Mother and Grandmother have "joint legal
custody" of the child.

The Journal Entry and Order, however, does not address whether Mother made a
knowing, intelligent, and voluntary waiver of her parental preference—a point
Grandmother must establish in order to advance her theory that Mother waived her
parental preference and granted parental status to Grandmother, thereby conferring a
basis for standing. See Frazier, 296 Kan. at 751 (to give effect to a natural mother's
waiver of parental preference in favor of a third party, the waiver must be made
knowingly, intelligently, and voluntarily). And Grandmother's own verified statements do
not assert that Mother voluntarily and knowingly waived her parental preference. Even at
the most minimal level of persuasion, a party with the burden of establishing standing

18
must make a prima facie argument. Lujan, 504 U.S. at 561. Grandmother has failed to do
so.

We acknowledge Grandmother attached to her petition for review an e-mail chain
with the judge presiding over the adoption case who indicated he did "not think those
documents are part of the record for the appeal that has been filed." But this e-mail is not
a ruling that is part of the record of this case. See Supreme Court Rules 3.01, 3.02 (2018
Kan. S. Ct. R. 19); Supreme Court Rule 6.02(b) (2018 Kan. S. Ct. R. 34) ("The appendix
is for the court's convenience and is not a substitute for the record itself." [Emphasis
added.]); Supreme Court Rule 6.03(b) (2018 Kan. S. Ct. R. 35); see also State v.
Brownlee, 302 Kan. 491, 505, 354 P.3d 525 (2015); State v. Warren, 302 Kan. 601, 614,
356 P.3d 396 (2015) (court would not consider documents appended to brief but never
formally introduced as evidence or added to record); Rodriguez v. U.S.D. No. 500, 302
Kan. 134, 144, 351 P.3d 1243 (2015) (court would not rely on appendix to brief not part
of the record below). We therefore do not consider the e-mail chain in our analysis.

Granted, Grandmother asked the judge in the stepparent adoption case to take
judicial notice of the pleadings, orders, files, and records of the visitation case. But the
record on appeal does not include a ruling by the judge on Grandmother's request. The
fact that the judge later refused to make the files and records of the visitation case a part
of the record on appeal in this adoption case suggests the judge either denied the request
or never ruled on it.

Nor did Grandmother argue in her brief before the Court of Appeals that the
district court erred in failing to formally take judicial notice of the files and records in the
grandparent visitation case. And she did not ask the Court of Appeals to take judicial
notice. These failures also constitute waivers of these arguments. Angelo, 306 Kan. at
236.
19
 Finally, we note that Grandmother has not addressed these procedural hurdles.
Although Grandmother pointed out her efforts to have the district court consider the
visitation case records, she did not argue for a prima facie standard of review or cite any
authority supporting that view. Typically, we consider such a failure to be a waiver or
abandonment of argument. See Angelo, 306 Kan. at 236.

Understandably, given the state of the record and the arguments made by
Grandmother, the Court of Appeals appropriately concluded:

"As the party making the claim, Grandmother bears the burden to designate facts
in the record to support that claim; without such a record, we presume the action of the
district court was proper. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636,
644-45, 294 P.3d 287 (2013). Because no other information is provided in the record on
appeal regarding the joint legal custody agreement we presume the district court's
findings set forth above were proper." In re Adoption of T.M.M.H., No. 115,309,
2016 WL 7032112, at *6 (Kan. App. 2016) (unpublished opinion).

Moreover, in Grandmother's petition for review of the Court of Appeals decision,
she did not mention this holding, much less argue it was erroneous. Under Supreme Court
Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54), this court "will not consider issues not
presented or fairly included in the petition [for review]." While Grandmother did ask this
court to take judicial notice of the files and records in the grandparent visitation case, she
did not provide authority for us to do so when the district court had not explicitly ruled on
her request at that level and that failure had not become an issue on appeal. Finally,
Grandmother asserts that record could be added with this court's leave, but cites no
authority for this court to do so. While this court has authority to add additional parts of
the record from this case, that authority does not extend to adding portions of the record

20
from another case. See Supreme Court Rule 3.01 (2018 Kan. S. Ct. R. 19); Supreme
Court Rule 3.02(c)(1)(A), (d) (2018 Kan. S. Ct. R. 19).

Grandmother, supported by amicus curiae, also argues her de facto parental status
has created an emotional bond that the law protects (or at least should recognize and
protect) and that gives her standing as a psychological parent to protect the best interests
of the child. The issue of her standing as a psychological parent was not preserved for
this court's review, however. We reach this conclusion for two reasons.

First, although Grandmother argued in district court proceedings that she was a
psychological parent, the court did not make findings of fact or conclusions of law related
to the issue. A party "has the obligation to object to inadequate findings of fact and
conclusions of law in order to preserve an issue for appeal because this gives the trial
court an opportunity to correct any findings or conclusions that are argued to be
inadequate." Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013) (citing Supreme
Court Rule 165 [2018 Kan. S. Ct. R. 215]).

Second, in Grandmother's arguments to the Court of Appeals, she coupled her
status as an alleged psychological parent to the legal authority granted to her by the
parenting agreements and the court orders. This approach was in keeping with Frazier,
296 Kan. at 752, in which we noted the psychological parent theory had not yet been
accepted by this court absent a written agreement between a birth parent and a de facto
parent. Before us, Grandmother attempts to uncouple her status as an alleged
psychological parent from her arguments about the parenting agreements and court
orders. This creates a new issue of first impression, which she had not presented to the
Court of Appeals, or, at least, was not decided by the Court of Appeals. In seeking review
of the Court of Appeals decision, Grandmother did not comply with Supreme Court Rule
8.03(a)(4)(C) (2018 Kan. S. Ct. R. 53) (In a civil case, the party seeking this court's
21
review of a Court of Appeals decision must make "[a] statement of the issues decided by
the Court of Appeal of which review is sought," and "must list, separately and without
argument, additional issues decided by the district court which were presented to, but not
decided by, the Court of Appeals.").

As a result of all these procedural failures, Grandmother has achieved the trifecta
of reasons an issue is not preserved for this court's review: She failed to preserve various
issues relating to statutory standing at the district court, the Court of Appeals, and before
this court. Because of Grandmother's failure to meet the statutory prong of the standing
test, we need not discuss her arguments about common-law standing.

We acknowledge the parties have made numerous filings following Grandmother's
petition for review. Specifically, Grandmother filed a motion to strike Stepfather's reply
brief to an amicus brief filed in this case. Upon filing this opinion, we deny this motion as
moot.

We also note both parties filed Rule 6.09 letters in this case. Supreme Court Rule
6.09(a)(3) (2018 Kan. S. Ct. R. 39) allows a party to advise the court of persuasive or
controlling authority that was published or filed after a petition for review is filed but
before the court has ruled on the petition. Both parties submitted filings made in the
grandparent visitation case. It is questionable that, in the context of this case, these filings
constitute "authority." In these unique circumstances, the filings operate more as an
attempt to supplement the record. This is not the purpose of a 6.09 letter. Moreover, Rule
6.09(b) requires the letter "contain a reference to either the page(s) of the brief intended
to be supplemented or to a point argued orally to which the citation pertains." Both
parties failed to comply with the requirements of Rule 6.09(b). The various 6.09 letters
are thus improper and will not be considered. See State v. Herbel, 296 Kan. 1101, 1125,
299 P.3d 292 (2013).
22
 CONCLUSION

In conclusion, our ruling is limited to the issue presented in this case: Whether
Grandmother has established she is an interested party under the KARA and the Probate
Code. We answer this question in the negative on procedural grounds only. We do not
reach, and therefore we take no position on, the merits of Grandmother's claim she is a
parent by virtue of the agreements and court orders entered in the visitation case. The
record is insufficient for us to do so.

For the foregoing reasons, judgment of the Court of Appeals affirming the district
court is affirmed. Judgment of the district court is affirmed.

***

STEGALL, J., concurring in result and dissenting: This case is a mess. Worse, it is
a mess of our own making. Worse still, the person at the center of the mess is an 11-year-
old child. In keeping with the intent and spirit of Supreme Court Rule 7.043 (2018 Kan.
S. Ct. R. 49), I will refer to the child as "Thomas," though that is not his real name. See
In re F.A.R., 242 Kan. 231, 232, 747 P.2d 145 (1987) (avoiding reference to a party by
either awkward initials or familial relationship by instead using the generic stand-in term
"appellee" in "compliance with the spirit of Supreme Court Rule 7.403"); In re M.M.L.,
258 Kan. 254, 255, 900 P.2d 813 (1995) (same, explaining that such a practice was in
"compliance with the intent of Supreme Court Rule 7.043").

Thomas' father died when he was a baby. He was six years old when his mother
married the man who is trying to adopt Thomas, which is also his mother's wish. Since
his father's death—both before and after his mother's remarriage—Thomas' paternal
23
grandmother has been intimately involved in raising Thomas, and they clearly have a
strong and intimate bond. On the basis of that bond, Thomas' grandmother objects to the
sought after adoption and claims to do so on the ground that by virtue of an agreement
with Thomas' mother, she has achieved the legal status of Thomas' second parent. The
confusion over who, exactly, has a parent-child relationship with Thomas deserving of
legal recognition and protection has generated years of litigation and multiple, sometimes
conflicting, court rulings. Our decision today provides no guidance that might prevent
similar confusion in the future.

Poor Thomas! It is indeed sad that this child has been assigned to live for much of
his young life in familial limbo by our sanctioning of his grandmother's "de facto"
parental status via our creative interpretation of the Kansas Parentage Act (KPA), K.S.A.
2016 Supp. 23-2201 et seq., in Frazier v. Goudschaal, 296 Kan. 730, 295 P.3d 542
(2013). See DeShaney v. Winnebago Cnty. Soc. Servs., 489 U.S. 189, 213, 109 S. Ct. 998,
103 L. Ed. 2d 249 (1989) (Blackmun, J., dissenting). And now, poor Grandmother. She
relied on our decision in Frazier to claim the legal status of parent that is now denied to
her on the thinnest of procedural grounds. Finally, poor parents and children everywhere.
Kansas courts have dissected the parent-child relationship and stitched it back together
this-way and that-way leaving confusion and instability where there ought to be
certainty—weakening the parent-child relationship in Kansas as a result.

Bad facts make bad law. So goes a common legal maxim. State v. Lloyd, 299 Kan.
620, 645, 325 P.3d 1125 (2014) (Johnson, J., dissenting). The corollary truth that bad law
tends to make more bad law is less well known but perhaps the more frequent (and more
damaging) occurrence. In its effort to avoid applying the clear precedent from our
decision in Frazier, today's plurality opinion sidesteps the logical consequences of that
decision by wrongly heightening the standing requirements for all Kansas parents in a

24
manner that elevates form over substance. The end result is an erosion of the legal
protections afforded the parent-child relationship for all Kansans.

Justice Johnson's dissent likewise sidesteps Frazier in the other direction, ignoring
statutory standing requirements in adoption cases—a view that would make adoption
more difficult in the future by permitting nonparental persons extra-statutory standing to
object. Justice Rosen's dissent has the powerful virtue of taking seriously and at face
value both Grandmother's arguments and our Frazier decision. For this reason, I find
myself in close affinity with his view. But in the final analysis, I cannot agree that
Grandmother has lawful standing as a parent because I conclude that Frazier's
interpretation of the KPA was wrong and should be rejected. I will address each of
today's opinions in turn.

Grandmother has made a prima facie claim of standing as a parent under
controlling Kansas law.

The plurality opinion rejects Grandmother's appeal because it concludes she does
not have standing to object to the adoption or to pursue this appeal. Slip op. at 22.
Generally, I agree with the plurality's interpretation of the relevant standing statutes and
the underlying law governing standing. Grandmother must establish statutory standing.
Slip op. at 10-11. She can do this one of three ways: either by establishing that she is
(1) the petitioner in the case; (2) a person granted interested party status by the lower
court; or (3) Thomas' parent. See slip op. at 13; K.S.A. 2016 Supp. 59-2401a(e)(7), (8). It
is undisputed that Grandmother is neither the petitioner in this case nor was she granted
interested party status below. This leaves only her claim to parental status.

The plurality opinion acknowledges that our precedent in Frazier establishes
Grandmother could achieve the legal status of parent, sometimes referred to as a "de
facto" parent, simply by entering into a contract with Mother in which Mother waived her
25
parental preference in favor of Grandmother and Grandmother agreed to co-parent
Thomas with Mother. Slip op. at 15. The plurality acknowledges that Grandmother
specifically alleged standing in the adoption case as a parent expressly relying on Frazier
and the factual existence of a Frazier agreement with Mother. Slip op. at 14-15. Finally,
the plurality acknowledges that Grandmother went beyond mere pleadings and
allegations below by filing a verified brief which should be treated as evidence. Slip op.
at 18-19. Justice Rosen's dissent more fully catalogues Grandmother's efforts to establish
her standing as a parent under Frazier and to place in issue material facts that, if true,
would support her claim. I agree with his dissent in this respect.

Despite these efforts, the plurality cuts off a party who has made a colorable
parenthood claim (in fact and law) from participation in a matter that may fully and
finally resolve the question of who, exactly, the law will recognize as Thomas' parents.
The plurality does this, not on any substantive grounds, but with a procedural dodge that
imposes on parents or would-be parents in adoption proceedings an "elevat[ed] . . . level
of proof" and a heightened "burden of persuasion." Slip op. at 17-20.

The United States Supreme Court has long recognized the unique nature of the
relationship between a parent and child. See Parham v. J. R., 442 U.S. 584, 602, 99 S. Ct.
2493, 61 L. Ed. 2d 101 (1979) ("The law's concept of the family rests on a presumption
that parents possess what a child lacks in maturity, experience, and capacity for judgment
required for making life's difficult decisions."); Wisconsin v. Yoder, 406 U.S. 205, 232,
92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) ("The history and culture of Western civilization
reflect a strong tradition of parental concern for the nurture and upbringing of their
children. This primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition."); Prince v. Massachusetts,
321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944) ("It is cardinal with us that the
custody, care and nurture of the child reside first in the parents, whose primary function
26
and freedom include preparation for obligations the state can neither supply nor hinder.");
Meyer v. Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) ("[I]t is the
natural duty of the parent to give his children education suitable to their station in life.").

We are told that a parent's interest in the care, custody, and control of his or her
child is "perhaps the oldest of the fundamental liberty interests recognized by this Court."
Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality
opinion). So fundamental is this right that the State may not meddle with it absent a
compelling countervailing protection interest. In re Woodard, 231 Kan. 544, 550,
646 P.2d 1105 (1982). Such a high regard for the parent-child relationship stems from a
recognition that "[t]he child is not the mere creature of the state[.]" Pierce v. Society of
Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925). Parents and children
form a relationship that "preexists government. This cherished and sacrosanct right 'is not
a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.'
[Citations omitted.]" In Interest of E.G.L.B., 342 Ga. App. 839, 848, 805 S.E.2d 285
(2017).

Given what is at stake in these cases, I find the additional and newly created
procedural hurdles the plurality throws in litigants' paths unjustified. It is form-over-
substance law making at its worst. See State v. Tafoya, 304 Kan. 663, 670, 372 P.3d 1247
(2016) ("'The law of this state is realistic. Substance prevails over form.'"); State v.
McCormick, 305 Kan. 43, 53, 378 P.3d 543 (2016) (Stegall, J., dissenting) ("[E]mpty
formalism ought to be avoided because it has a tendency to undermine confidence in the
rule of law by unnecessarily providing ready examples to those who decry the
'technicalities' of the law.").

If Grandmother truly is Thomas' parent under prevailing Kansas law (something
we will never know), she will now forever lose that status without even the basic dignity
27
of minimal legal protections. Other parents may likewise be required to satisfy the
plurality's notion of a heightened burden of persuasion, further eroding legal protections
for the parent-child relationship in Kansas. Why? Whatever the reason, the result is
effected because a plurality of this court will not or cannot bring itself to either revisit or
stand behind the consequences of our prior decisions.

If she is not a parent, Grandmother does not have standing.

Next, I must turn briefly to Justice Johnson's dissent. While I am clearly in
sympathy with the equitable basis of that opinion, in my view equity is not a sufficient
justification for this court to simply grant standing in an adoption case to a "legal-
custodian-grandmother"—even if the desire to do so arises from our reservoir of wisdom
or an abundance of caution concerning the best interests of the child.

Adoption is a creature of statute, and standing in an adoption case is strictly
committed to the discretion of the Legislature. See In re Adoption of H.C.H., 297 Kan.
819, Syl. ¶ 1, 304 P.3d 1271 (2013). I would not invade the prerogatives of that co-equal
department of government by disregarding clear statutory dictates and requirements that
are not met by a "legal-custodian-grandmother." See Solomon v. State, 303 Kan. 512,
546, 364 P.3d 536 (2015) (Stegall, J., concurring) ("Constitutional limits enforced under
the protective umbrella of the rule of law derive their ultimate authority from the political
power of the people and exist for the protection and propagation of liberty under the law.
Each department of government has been vested with unique and exclusive powers to
effectuate orderly government—and each has a coordinate and co-equal obligation to
exercise its powers with due respect for the powers vested in the other branches.").

Like the plurality, Justice Johnson's dissent avoids grappling with the clear
arguments of Grandmother and the consequences of our Frazier decision. He simply
28
dodges in the opposite direction. Unfortunately, just as heightening statutory standing
requirements unfairly impacts the parties in this case and harms the legal protection given
to the parent-child relationship in Kansas, so too does impermissibly watering down
those same requirements. Applying Justice Johnson's rule, would-be adoptive parents
may be prevented from completing an adoption by the intervention of nonparent third
parties claiming extra-statutory standing. I cannot endorse such an approach.

We should reconsider and reject Frazier's faulty interpretation of the KPA.

Finally, Justice Rosen's dissent gets this case correct under current law. Frazier
clearly construes Kansas law to create a pathway to parenthood independent of either
biology or adoption, and based instead on contract principles. As Justice Rosen puts it,
citing Frazier: "Grandmother has stated a prima facie case of standing based on Mother's
waiver of the parental preference doctrine and her granting Grandmother the rights of a
parent." Slip op. at 45. If I were to apply current law, I would simply join his dissent.

But the nature of the Frazier decision and the obvious confusion and havoc it has
caused in this area of the law (on full display here) compel me to reconsider that
decision's interpretation of the KPA. And a substantive review of Frazier demonstrates
conclusively that our earlier interpretation of the KPA allowing parenthood-by-contract
was wrong and should be rejected. As a consequence, on the substantive merits,
Grandmother does not have legal grounds to assert the status of parent in this case.

This conclusion puts me in the unhappy position of having no choice but to concur
in the result reached by the plurality. I recognize this result works an unfairness against
Grandmother, who has relied on our prior precedent, and I understand the frustration
expressed in Justice Johnson's dissent that this conclusion amounts to the "deciding vote"
against Grandmother in a case in which I have acknowledged Grandmother has the better

29
argument under existing law. Slip op. at 49. But far from being a "ploy" or an "excuse for
pontificating," slip op. at 49, I regard my decision as a confrontation with the old judicial
dilemma that arises from the difficulty of trying to establish stability and predictability on
the weak foundation of bad law. At the end of the day, it is often best to face up to past
mistakes, stop building altogether, and seek firmer footings. In this way, the whole
edifice might be saved from a more catastrophic collapse in the future when foundational
weakness gives way to structural rot. Though Justice Johnson is correct that neither
Mother nor Stepfather ask us to overrule Frazier, slip op. at 49, Grandmother's claim
clearly and consistently invokes Frazier, putting the holding of that case squarely in play.
So it is to Frazier that I now turn.

The parent-child relationship, and who can be or become a "parent" in Kansas, is
defined by the KPA. K.S.A. 2016 Supp. 23-2205. Given Grandmother's claim to be
Thomas' parent by virtue of a contractual agreement with his mother, the KPA is where
our analysis must start. Ordinarily, we follow a well-defined and oft-stated analytical
process for determining the meaning of statutes, beginning with the plain meaning of the
words chosen by the Legislature. Miller v. Board of Wabaunsee County Comm'rs,
305 Kan. 1056, 1059, 390 P.3d 504 (2017). But Frazier's holding—that the KPA means
the opposite of what it plainly says—is not supported by anything resembling traditional
statutory analysis. See In re Tax Appeal of BHCMC, 307 Kan. 154, 161, 408 P.3d 103
(2017).

In lieu of this deficiency, before turning to Frazier's rationale, it behooves me to
describe in some detail the plain meaning and overall structure of the KPA. To begin
with, the KPA defines the "mother and child relationship" and the "father and child
relationship" as the "legal relationship between a child and the child's biological or
adoptive parents." (Emphasis added.) K.S.A. 2016 Supp. 23-2205. This foundational
definition sets the framework for the entire statutory scheme. Under Kansas law, biology
30
and adoption are the only two ways a parent-child relationship can be forged, though as
we will see, the law allows that because biology is not always obvious (especially
paternal biology), the biological foundation for parenthood is necessarily one that can be
arrived at through presumptions—that is, legally enforceable educated guesses.

I pause here to add an important sidebar. The parent-child relationship is created in
Kansas not only through biology and traditional adoption, but also through what amounts
to a statutorily created de facto or quasi-adoption that is available to parents who utilize
assisted reproductive technologies (ART). See generally Kramer, Where the Sidewalk
Ends: An Update to the Kansas Assisted Reproductive Technology Statute to Give All
Children Legal Rights to Their Parents, 54 Washburn L.J. 329, 345 (2015) (discussing
and defining assisted reproductive technologies).

When parents in Kansas utilize ART in accordance with statutory guidelines, the
nonbiological spouse who consents in writing to the procedure is automatically granted in
law the rights and responsibilities of a parent-child relationship with the resulting child.
That consent has the same effect "as adoption papers." K.S.A. 2016 Supp. 23-2303. And
the child is given, by law, a status identical to "a naturally conceived child of the [married
couple]." K.S.A. 2016 Supp. 23-2302. Or as Professor Elrod put it in her amicus brief to
this court in Frazier, the "parent-child relationships resulting from ART are no different
from those formed naturally or by adoption." Presumably, though Kansas law speaks in
terms of "husband and wife," the opportunity to avail themselves of a de facto adoption
through ART is necessarily extended to same-sex married couples pursuant to the United
States Supreme Court's ruling in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584,
192 L. Ed. 2d 609 (2015); see also Marie v. Mosier, 196 F. Supp. 3d 1202, 1221 (D. Kan.
2016) (relying on Obergefell to enjoin the executive branch of Kansas from "treating
same-sex married couples differently" than "opposite-sex married couples" when
determining "the other rights, protections, obligations, or benefits of marriage").
31
 The use of ART is, of course, a unique circumstance and is treated as such by the
law. Returning to the KPA proper, because the parent-child relationship established by
the KPA is a legal relationship with attendant rights and responsibilities, the remainder of
the KPA is concerned with how, precisely, the relationship can be established—that is,
proved up to the point of legal recognition.

Motherhood can be established "by proof of . . . having given birth to the child."
K.S.A. 2016 Supp. 23-2207(a). In the absence of such proof, motherhood can be
established "under this act." K.S.A. 2016 Supp. 23-2207(a). Likewise, fatherhood can be
established "under this act," or in the alternative, by executing a "voluntary
acknowledgment of paternity" form pursuant to K.S.A. 2016 Supp. 23-2204. K.S.A. 2016
Supp. 23-2207(b). Finally, either motherhood or fatherhood can be established by "proof
of adoption." K.S.A. 2016 Supp. 23-2207(c).

The phrase "under this act" as used in K.S.A. 2016 Supp. 23-2207 can only refer
to the process set forth in the KPA for resolving disputed parentage. The KPA allows any
"child or . . . person on behalf of such a child" to bring an action to establish either
fatherhood or motherhood. K.S.A. 2016 Supp. 23-2209(a). The legal mechanisms for
determining fatherhood or motherhood in such circumstances are the "presumption[s] of
paternity" (or maternity by virtue of K.S.A. 2016 Supp. 23-2220, which makes the
presumptions equally applicable insofar as practicable to the establishment of
motherhood) set forth in K.S.A. 2016 Supp. 23-2208. These presumptions include
"acknowledg[ment] of paternity" and genetic testing that indicates a "probability of 97%
or greater that the" person is either the father or mother. K.S.A. 2016 Supp.
23-2208(a)(3)-(5).

32
 Key to understanding the meaning of the KPA—and K.S.A. 2016 Supp. 23-2208
in particular—is to understand the plain and ordinary meaning of the words paternity (or
maternity) and acknowledge. Paternity means something more specific than just generic
fatherhood. As used in the KPA, it clearly means biological fatherhood. Paternity is the
"condition of being a father, esp. a biological one," and maternity is the "condition of
being a mother, esp. a biological one." Black's Law Dictionary 1125, 1306 (10th ed.
2014). An adoptive father does not take a paternity test to establish fatherhood—to do so
would be both futile and nonsensical. Legal fatherhood is broader than mere paternity.

Furthermore, to acknowledge something means to recognize it "as being factual."
Black's Law Dictionary 27 (10th ed. 2014). The act of acknowledgment does not make
something true or real. To acknowledge something is merely to accept and recognize as
true a preexisting reality. Thus, one cannot make oneself into a father by
acknowledgment. A person who makes a voluntary acknowledgment of paternity is not
akin to a person taking a citizenship oath—a noncitizen immediately beforehand and a
citizen immediately afterward. Rather, a person acknowledging paternity is a person who
purportedly already is biologically related to a child and is merely availing himself of a
presumption in favor of that preexisting condition. We explicitly made this point recently
when we construed the meaning of "'acknowledgment of paternity'" to mean, citing
Black's Law Dictionary, a "'father's public recognition of a child as his own.'" State ex
rel. Secretary of DCF v. Smith, 306 Kan. 40, 49, 392 P.3d 68 (2017). One can only
publicly recognize a fact that preexists the act of recognition. Recognition does not give
birth to the fact.

Just as an adoptive father has no need of a paternity test, it would likewise be
futile and nonsensical for him to attempt to establish fatherhood by a voluntary
acknowledgment of paternity. Similarly, a voluntary acknowledgment of paternity
must—by the plain meaning of the word acknowledge—be categorically unavailable to
33
one who affirmatively disclaims any biological relationship. In such a situation, what
preexisting fact remains to acknowledge? An adoptive father has sidestepped biology
altogether and thus has no need of presumptions. But adoption is the only end-run around
biology contemplated by the KPA.

The ordinary meaning of the words chosen by our Legislature establishes that the
presumptions of paternity in the KPA are aimed at determining whether a biological
relationship exists. Further support for this plain language conclusion is found in the
structure of the Act. The only nonadoptive methods for establishing parenthood apart
from the presumptions are decisively grounded in biology (proof of birth or the execution
of a voluntary acknowledgment of paternity pursuant to K.S.A. 2016 Supp. 23-2204).
Thus, the KPA succeeds in creating a coherent whole by ending where it begins—that in
Kansas, the exclusive routes to parenthood are biology and adoption.

This structure makes eminent sense when one considers the parenthood quandary
created by biological realities. As the United States Supreme Court has said: "'The
mother carries and bears the child, and in this sense her parental relationship is clear. The
validity of the father's parental claims must be gauged by other measures.'" Lehr v.
Robertson, 463 U.S. 248, 260 n.16, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (quoting
Caban v. Mohammed, 441 U.S. 380, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 [1979]
[Stewart, J., dissenting]). When explaining why facially neutral rules for establishing
parenthood might in fact require different things of fathers and mothers, the Supreme
Court noted that "[g]iven the proof of motherhood that is inherent in birth itself, it is
unremarkable that Congress did not require" mothers to take the "same affirmative steps"
for establishing parenthood as fathers must take. Tuan Anh Nguyen v. INS, 533 U.S. 53,
64, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001).

34
 "Given that the mother is always present at birth, but that the father need not be,
the facially neutral rule would sometimes require fathers to take additional
affirmative steps which would not be required of mothers, whose names will
appear on the birth certificate as a result of their presence at the birth, and who
will have the benefit of witnesses to the birth to call upon." 533 U.S. at 64.

The "affirmative steps" created and mandated by the KPA are what create the
"presumptions of paternity." It is vital to observe that according to the KPA, even these
affirmative steps are only presumptions. They can be rebutted. See K.S.A. 2016 Supp.
23-2208(b). And crucially for our understanding of the KPA is the fact that when "two or
more presumptions . . . arise which conflict with each other, the presumption which on
the facts is founded on the weightier considerations of policy and logic, including the best
interests of the child, shall control." K.S.A. 2016 Supp. 23-2208(c). The KPA has
included this provision since its inception. K.S.A. 38-1114 (Ensley 1986); see Uniform
Parentage Act § 4, 9B U.L.A. at 394 (2001).

Why does the law require a choice between presumptions? There is one, logically
inescapable answer—because the KPA recognizes only a biological presumption, and
biology dictates that there can only be one biologically established father and one
biologically established mother. If the presumption were more broadly construed to
merely indicate generic parenthood, there would be no clear need to require that only one
presumption can be valid and enforceable.

Applying this plain language interpretation of the KPA to Grandmother's claim to
be Thomas' parent, I am forced to the following conclusions. First, we know
Grandmother is not Thomas' birth mother. We therefore also know that she cannot
execute a voluntary acknowledgment of maternity pursuant to K.S.A. 2016 Supp.
23-2204 because Grandmother does not dispute that maternity has already been

35
conclusively established in Thomas' mother. We know none of the biological
presumptions set forth in K.S.A. 2016 Supp. 23-2208 apply because Grandmother does
not claim biological maternity of Thomas, and even if she did, the biological maternity of
Thomas is already indisputably established. Finally, we know that Grandmother has not
adopted Thomas. As a matter of the plain language of the KPA, this should end our
substantive inquiry into whether Grandmother—even after resolving all disputed facts in
her favor—can sustain a legal claim to parenthood in this case. She cannot.

But our decision in Frazier says she can. Frazier entailed complicated facts and
considerations of policy not present in Thomas' case. Still, for our purposes, the core facts
are similar—Frazier involved a known biological mother contesting the parental rights of
another woman who claimed those rights through neither biology nor adoption.

The biological mother in Frazier argued that the third party simply could not be a
mother because she did not ground her claim in either biology or adoption. We disagreed,
discovering instead a heretofore hidden parenthood-by-contract pathway in the KPA
thicket. Importantly, we injected a subtle shift of meaning into the analysis by
characterizing the mother's claim as being "that known biological lineage always and
definitively trumps any statutory presumption of parenthood." (Emphasis added.)
Frazier, 296 Kan. at 737. The problem with this statement is that it creates and then
purports to interpret and apply a mythical statute that does not exist. There is simply no
such thing as a presumption of parenthood in Kansas law. There is only a presumption of
paternity or maternity. As has already been demonstrated, these are significantly
narrower categories than the broader, generic category of parenthood.

By misstating the law this way, the Frazier court impermissibly broadened the
meaning of K.S.A. 2016 Supp. 23-2208 to include presumptions entirely severed from
biology—a broadening that resulted in an interpretation of the statute directly contrary to
36
its plain meaning. Having ignored the plain meaning of paternity and the importance of
that word, the Frazier court concluded:

"Obviously, . . . the parental relationship for a father [or mother] can be
legally established under the KPA without the father [or mother] actually being a
biological or adoptive parent. . . . A harmonious reading of all of the KPA
provisions indicates that a female can make a colorable claim to being a
presumptive mother of a child without claiming to be the biological or adoptive
mother." 296 Kan. at 746-47.

This amounts to an elaborate judicial exercise in putting the cart before the horse.
The observation that the biological presumptions set forth in the KPA can be wrong is a
non sequitur. Of course the presumptions can be wrong—so what? The Frazier court
apparently reasoned as follows: because it is possible for a person who is not, factually
speaking, the biological parent of a child to nonetheless be recognized as the child's
parent, the presumption must be available to anyone claiming ontological parenthood as
opposed to mere paternity or maternity.

Therefore, one need only claim to be a "parent" (for example, by virtue of a
contract with a person who is already the child's parent) in order to take advantage of the
presumptions contained in K.S.A. 2016 Supp. 23-2208. And one of the presumptions is a
voluntary acknowledgement. Armed with evidence of a de facto parent contract and this
air-tight circular reasoning, a mere third party with no claim to either a biological
relationship or an adoptive one can be transformed by the KPA and this court into a
parent. Forgotten is the clear statutory statement that the parent-child relationship is
exclusively defined as the "legal relationship existing between a child and the child's
biological or adoptive parents." (Emphasis added.) K.S.A. 2016 Supp. 23-2205.

37
 But one cannot determine the factual content of a presumption by looking at the
conclusion it generates and reasoning backwards. This is a subtle variation of the fallacy
logicians call affirming the consequent. See Rice, Conspicuous Logic: Using the Logical
Fallacy of Affirming the Consequent as a Litigation Tool, 14 Barry L. Rev. 1, 6-7 (2010).
Just because the law permits the establishment of a parent-child relationship based on a
presumption that in actual fact is wrong does not—cannot—operate as a post hoc
alteration of the factual content the law is purporting to presume in the first place. Indeed,
there are good policy justifications the Legislature may have had for deciding that it is
better for the law to recognize fatherhood in people who actually claim and have a
presumption of paternity than it is to leave a child fatherless simply because the
presumption might be a weak one, or even incorrect.

Nevertheless, the Frazier court made the leap from the legal fiction that the law
might by necessity recognize a person as a biological parent who really is not, to the
conclusion that "harmony" requires us to ignore the plain meaning of "paternity" along
with the statutory limitation of parenthood to either biology or adoption. Because I can
discern no harmonizing of conflicting statutory provisions in the Frazier analysis, I
presume the Frazier majority simply harmonized the KPA with its own notions of
parenthood. In so doing, Frazier vitiated the entire structure and purpose of the KPA, all
of which is designed with great precision to limit parenthood to those who "claim" that
status by virtue of either biology or adoption. Just because such claims might be
recognized even when wrong does not undermine the statutory mandate that the claim be
made.

At this stage of the analysis, it is important to point out that neither these
conclusions nor the KPA itself precludes two persons of the same sex from both
becoming parents to the same child. The statutory framework is entirely free from any
legislative effort to answer the policy questions concerning what kinds of familial
38
relationships the law will recognize. In particular, there is nothing in the KPA that
precludes a child from having two father-child relationships or two mother-child
relationships. These parental arrangements can arise fully compliant with statute through
either traditional adoption or through the de facto adoptions facilitated by our statutory
scheme governing ART. The KPA merely says a child cannot have two such
relationships based on either paternity or maternity. A fact the birds and the bees know
but the Frazier court seemed to forget.

A subsequent decision of this court may appear to have cemented in law this
counterintuitive interpretation of the KPA. In State ex rel. Secretary of DCF v. Smith,
306 Kan. 40, 392 P.3d 68 (2017), cited above, we correctly interpreted the meaning of an
acknowledgment of paternity, but in dicta, we carried forward Frazier's confused logic.
We quoted Frazier's statement that "the parental relationship for a father can be legally
established under the KPA without the father actually being a biological or adoptive
parent." 306 Kan. at 56. Thus, we concluded, an acknowledgment of paternity "sets up a
situation by which an individual may become a legal parent even though not a biological
or adoptive one." 306 Kan. at 56. While technically true, this unfortunate line of dicta led
us to repeat the faulty conclusion that because a factually erroneous acknowledgement of
paternity can operate by law to establish a parent-child relationship, this necessarily
means that the KPA provides a path for people who do not claim either biological or
adoptive parenthood to nonetheless be parents.

Indeed, we made the self-contradicting statement in Smith that the KPA does not
"limit the availability of the [voluntary acknowledgment of paternity] procedure to those
who are, or reasonably believe themselves to be, biological parents" because the statute
and the form used by the Office of Vital Statistics does not require "a person who signs
the form to make a declaration of biological parenthood." 306 Kan. at 56. But as I have
already demonstrated, an acknowledgment of paternity (or maternity) is in fact a
39
"declaration of biological parenthood." Here, Smith makes the same mistake Frazier
made—assuming that because the declaration of biological parenthood can be enforced
even when wrong must mean that biological parenthood is not what is being declared.

It is instructive to consider the actual facts and limited holding of Smith. Smith had
executed a voluntary acknowledgment of paternity pursuant to K.S.A. 2016 Supp.
23-2204. Much later, after the state acted to enforce his financial obligations to the child,
Smith tried to revoke the VAP by disavowing paternity. We held, in an opinion I joined,
that the ability to revoke a voluntary acknowledgment of paternity is strictly controlled
by statute and that given the circumstances of the case, Smith was procedurally
foreclosed from revoking his prior acknowledgment of paternity even if he possessed
good evidence rebutting actual paternity.

"An individual who signs a K.S.A. 2016 Supp. 23-2204 voluntary
acknowledgment of paternity may only revoke the acknowledgment by satisfying
the requirements in K.S.A. 2016 Supp. 23-2209(e). If those requirements are not
timely satisfied, those who executed the document cannot attempt to revoke the
acknowledgment, attempt to rebut the presumption of paternity that arises from
the acknowledgment, or attempt to establish the existence of a conflicting
presumption through, for example, genetic testing." 306 Kan. 40, Syl. ¶ 3.

This holding remains sound and provides an example of both the proper plain
language interpretation of the KPA and the legislative policy considerations discussed
above. The acknowledgment in Smith was an acknowledgment of biological fatherhood.
The facts as developed later made it pretty clear Smith was not the biological father. See
306 Kan. at 43. Essentially, Smith either lied or was deeply confused when he signed the
form. In so doing, Smith conceived a fiction permitted by the law (paternity) which grew
and blossomed into a legally enforceable fact (fatherhood) which then matured into an

40
irrevocable reality (a permanent father-child relationship). The legislative policy
preferences permitting this outcome are clear, and it is not our place to alter them. We
recognized this in Smith and simply enforced the plain meaning of the law written by the
Legislature. 306 Kan. at 51 ("'"[Q]uestions of public policy are for legislative and not
judicial determination, and where the legislature does so declare, and there is no
constitutional impediment, the question of the wisdom, justice, or expediency of the
legislation is for that body and not for the courts."'") (quoting State v. Spencer Gifts, 304
Kan. 755, 765, 374 P.3d 680 [2016]).

I do not question the holding of Smith. In hindsight, I do regret the erroneous
statements made in dicta that carry forward the ill-considered aspects of our Frazier
decision. Grandmother now relies on decisions like Frazier and Smith to conclude that in
Kansas, a person can legally become a parent simply by privately contracting with an
existing parent. For example, relying on this caselaw, Grandmother claims that "Natural
Mother does not hold 'full title' to . . . parental rights [over Thomas] because she share[d]
equal rights" with Grandmother. Similarly, the Amicus National Association of
Grandparents urges that Grandmother "has had an agreement with [Mother] to co-parent"
and thus "was given the status of parent . . . by [Mother] and by the state of Kansas."
Amicus goes on to argue that to refuse to acknowledge the legitimacy of these
agreements under Frazier "casts an ominous cloud over all voluntary arrangements for
parenting" and encourages the use of "the adoption process as contract rescission."

I am left to wonder, when did Kansas recognize "title" to children and render them
proper objects for contractual trade? Long ago, Justice Brewer, writing for this court,
articulated the fundamental manner in which the parent-child relationship is rooted in the
"law of nature." Chapsky v. Wood, 26 Kan. 650, 652 (1881). As such, the positive law
protects what we have come to call the "parental preference" which is described as "a
fundamental right . . . to the care, custody and control of [the parent's] child." Slip op. at
41
15 (quoting Sheppard v. Sheppard, 230 Kan. 146, 154, 630 P.2d 1121 [1981]). Justice
Brewer recognized, however, that this parental preference "is not like the right of
property" which would render "a child . . . like a horse or any other chattel, subject-matter
for . . . gift or contract." Chapsky, 26 Kan. at 652-53.

Today's plurality appears unfazed by the trend toward viewing the parent-child
relationship through the contract law lens. It acknowledges one of the central holdings
and rationales of Frazier: "the parental preference can be waived" and then "shared by
agreement with a third party—that is, someone other than the biological or adoptive
parent." Slip op. at 15. This innocuous sounding declaration is nothing short of a
revolution in societal norms that have for centuries firmly rejected the commodification
of children. Here I must be clear—the Frazier court and today's plurality is saying that in
Kansas, the prevailing law dictates that a parent in relation to a child possesses a discreet,
property-like thing called a "parental preference" which is divisible and can be
"contracted" away to a third party, thus conferring on that third party an equal parental
preference which transmogrifies the third party into another lawful parent of the child.
What are the limiting principles governing these transactions? We do not know.

What Frazier did make clear is that in Kansas, the parent-child relationship is a
good to be traded like "any other chattel." See Chapsky, 26 Kan. at 652-53. Perhaps
Frazier never envisioned an actual material exchange during these transactions. Our
inexplicable hesitancy to enforce the holding of Frazier in this case may indicate a level
of discomfort with such "parental sharing" contracts when they occur outside the confines
of a committed romantic relationship. If so, this simply underlines Frazier's reckless
naiveté. In truth, I have no doubt the Frazier court believed it was making a more modest
proposal—that the responsibility to care for children can be shared with people who are
neither biological nor adoptive parents and the law ought to find a way to recognize this
when it is in the best interests of the child. In fact, this is the sum and substance of
42
Grandmother's claim today. Whether this would be good policy or bad, it is not our place
to decide.

Because Frazier ignores the plain meaning of the KPA, defies logic, and makes
children into objects of trade, I would reject its interpretation of the KPA. Instead, relying
on the plain language of the statute and our traditional tools of statutory interpretation, I
would hold that because Grandmother does not claim biological maternity or adoptive
parenthood over Thomas, she simply cannot be recognized as Thomas' parent under
Kansas law.

We broke the KPA in Frazier. Today we refuse to buy the consequences of that
decision. Therefore, while I concur in result, I dissent from the substantive portions of
each of the three other separate opinions issued today.

***

ROSEN, J., dissenting: For most of T.M.M.H.'s life, T.M.M.H. has been the
subject of court proceedings in which co-parenting agreements and court orders involving
Mother and paternal grandmother have established the parental responsibilities that have
secured T.M.M.H.'s care and welfare. As a result, Judge Kelly Ryan, the judge then
presiding over that case, addressed issues potentially relevant to this case, including
Grandmother's status and Mother's exercise of her parental preference. While these
findings were made following oral arguments in this case and will almost certainly be
subject to appeal based on the Rule 6.09 letters filed, the probate/adoption court's refusal
to recognize the dynamics of the parental role established by Grandmother in an over
eight-year ongoing companion case occurring under the same courthouse roof and to
appreciate how these two proceedings may impact each other is inexcusable. The
majority validates this judicial dysfunction by affirming that a stepparent adoption under
43
these circumstances is a procedural mechanism that can bar a person who achieves the
status of parent, both in fact and in law, from even being heard before potentially being
cut out of their child's life.

Further, I join Justice Johnson's assessment of Justice Stegall's concurring opinion.
By utilizing this case at this juncture in the proceedings to express his displeasure with
Frazier and impose his narrow construction of the Kansas Parentage Act (KPA), K.S.A.
2016 Supp. 23-2201, his concurring opinion actually creates more instability in
T.M.M.H.'s life than his approach purports to cure. While his construction may provide
some measure of legal certainty, it does so at the expense of T.M.M.H.'s real world
attachments and established parental bonds.

Notwithstanding the concerns expressed above, based on the record properly
before us I would hold that the district court erred in ruling Grandmother lacked standing
and the Court of Appeals erred in affirming that decision. See In re Adoption of
T.M.M.H., No. 115,309, 2016 WL 7032112, at *6 (Kan. App.) (unpublished opinion).
Grandmother's allegations present a prima facie basis for her standing as a parent. See
K.S.A. 2016 Supp. 59-2401a(e)(1). Consequently, the district court should have
conducted an evidentiary hearing to determine whether Grandmother could sustain her
burden, and I would remand for that determination.

Statutory Standing

In Grandmother's verified brief, she primarily argued standing based on her status
as legal custodian. Grandmother also attached some records from the grandparent
visitation case in support of her standing. Through these means, she included the
following facts suggesting her status is that of parent: Grandmother had custody of
T.M.M.H., either by court order or Mother's agreement, for much of his life and served as
44
his primary caregiver and source of financial support. In 2010, Grandmother agreed to
share custody with Mother. Grandmother provided different descriptors for her
relationship with Mother and the child. Importantly for this analysis, Grandmother
sometimes described the relationship with Mother as one of "co-parents." Grandmother
further asserted her "co-equal status as parent" was litigated and resolved in the
grandparent visitation case. She referred to various agreements between her and Mother
by using different names, including "settlement agreement," "parenting plan," "Amended
Parenting Plan," and "Amended Mediated Parenting Plan." Grandmother also referred to
herself as having a primary attachment bond with the child and as a "de facto parent."

In addition, the record on appeal includes evidence from the grandparent visitation
case. Grandmother attached a Journal Entry and Order, which provides Mother and
Grandmother with "joint legal custody" of the child and retains for the court the authority
to make decisions concerning custody when the parties are unable to do so. As the Court
of Appeals panel concluded, the only place Kansas statutes use of the phrase "joint legal
custody" is in divorce cases when two parents share custody of a child. In re Adoption of
T.M.M.H., 2016 WL 7032112, at *3 (citing K.S.A. 2015 Supp. 23-3206[a]). Viewing this
use of "joint legal custody" in the light most favorable to Grandmother, one may infer the
judge presiding over the visitation case recognized mother had waived the parental
preference doctrine and the parties were required to share parenting responsibilities. The
order offers further support for such an inference, allocating "parenting time" between the
women—as opposed to granting visitation to Grandmother solely on the basis of her
status as a grandparent.

I appreciate the facts presented here are distinguishable from previous cases
dealing with the establishment of nontraditional parental rights and may ultimately lead
to a different legal conclusion. However, at this juncture, viewing the evidence in the
light most favorable to Grandmother, Grandmother has stated a prima facie case of
45
standing based on Mother's waiver of the parental preference doctrine and her granting
Grandmother the rights of a parent. See, e.g., Frazier v. Goudschaal, 296 Kan. 730, 753,
295 P.3d 542 (2013); 296 Kan. at 756-58 (Biles, J., concurring); In re Marriage of
Nelson, 34 Kan. App. 2d 879, 884, 125 P.3d 1081 (2006).

Stepfather opposes these characterizations of the relationship between Mother and
Grandmother. But Stepfather offered only briefing, not evidence, to the district court.
Unlike Grandmother, Stepfather did not verify his brief. Nor did he attach any exhibits.
Like Grandmother, he cited to the record of the grandparent visitation case without
actually submitting any of those documents into the record. Stepfather attempted to
rectify the issue on appeal, submitting some of the documents from the prior proceedings
as attachments to his supplemental brief in this case. But an attachment to a brief does not
become part of the record. Supreme Court Rule 6.02(b) (2018 Kan. S. Ct. R. 35) ("The
appendix is for the court's convenience and is not a substitute for the record itself."
[Emphasis added.]); Supreme Court Rule 6.03(b) (2018 Kan. S. Ct. R. 35); see also State
v. Warren, 302 Kan. 601, 614, 356 P.3d 396 (2015) (court would not consider documents
appended to brief but never formally introduced as evidence or added to record);
Rodriguez v. U.S.D. No. 500, 302 Kan. 134, 144, 351 P.3d 1243 (2015) (court would not
rely on appendix to brief not part of the record below). We cannot consider those
documents at this time because they are not properly before us.

Considering these allegations and the evidence in the light most favorable to
Grandmother at this stage of the proceedings, I would conclude the district court erred in
ruling against Grandmother on the issue of her standing.

46
Common-law standing

Having reached this conclusion, I must also consider whether Grandmother can
establish her common-law standing. Sierra Club v. Moser, 298 Kan. 22, 32-33, 310 P.3d
360 (2013). A person asserting standing bears the burden of establishing he or she has a
cognizable injury, or injury in fact, and the causal connection between the injury and
challenged conduct. Gannon v. State, 298 Kan. 1107, 1123, 319 P.3d 1196 (2014).

In arguing that she has a cognizable injury, Grandmother expresses her fears that a
stepparent adoption here "dilut[es] the value of the custodial order" granted in the other
case or "will modify and possibly remove her custodial rights." The potential for
competing determinations by different judges certainly exists.

In addition, if Grandmother is deemed a parent, the stepparent adoption may have
an impact on her rights. The statutory scheme for stepparent adoption appears to
contemplate only two parents participating as parents in a child's life after the adoption—
the birth parent-spouse and the stepparent. See K.S.A. 59-2118; K.S.A. 2016 Supp. 59-
2129. Upon a stepparent adoption, the rights of the parent who is not a party to the
stepparent adoption cease. See K.S.A. 59-2118(b) ("The adoptive parent shall be entitled
to exercise all the rights of a birth parent and be subject to all the liabilities of that
relationship. Upon adoption, all the rights of birth parents to the adopted person,
including their right to inherit from or through the person, shall cease, except the rights of
a birth parent who is the spouse of the adopting parent."). Because granting a stepparent
adoption could terminate any parental rights of Grandmother, she may establish a
cognizable injury. Accordingly, Grandmother may establish common-law standing and
certainly has made out a prima facie case for such standing.

47
 Because Grandmother has made a prima facie case for standing, I would reverse
the district court and Court of Appeals decisions and would remand this case to the
district court for further proceedings to determine whether Grandmother can sustain her
burden to present evidence of her standing.

***

JOHNSON, J., dissenting: I dissent from the majority's conclusion that a
grandmother, who has had custody of her grandchild from a tender age pursuant to both a
co-parenting agreement with the child's sole-surviving biological parent and an order
from a district court, does not have standing to participate in a stepparent adoption
proceeding. While the majority disposes of the case by attacking the lawyering skills of
Grandmother's attorney, I submit that we know enough from the record to discern that
Grandmother has a legitimate claim to being an interested person in these proceedings.
Accordingly, we should reverse the district court's summary dismissal of the grandmother
from the proceedings and order it to conduct an evidentiary hearing as to her status, so
that it can acquire all of the relevant evidence it should have to fairly and justly rule on
the adoption petition. Additionally, I would not reject Grandmother's new arguments in
support of her standing on procedural grounds unrelated to standing. See Mid-Continent
Specialists, Inc. v. Capital Homes, 279 Kan. 178, Syl. ¶ 2, 106 P.3d 483 (2005)
("Standing is a jurisdictional issue. An objection based on lack of subject matter
jurisdiction may be raised at any time, whether it be for the first time on appeal or even
upon the appellate court's own motion.").

Moreover, one might discern some gamesmanship by the biological mother, using
a stepparent adoption proceeding to circumvent the best-interests-of-the-child rulings by
another district judge in an open case. I would not reward that tactic, at the possible

48
expense of the child's physical, psychological, and emotional well-being. This really
should not be about the adults' wants and needs.

I also think it is important to clarify whose custody is in play in the proceedings
that are before us now. The Court of Appeals made the declaration: "[E]ven if the record
had fully supported Grandmother's claim that her status as a joint legal custodian of the
child generally gives her the right to make decisions in the best interests of the child, that
right must yield to the conflicting right of the fit Mother." In re Adoption of T.M.M.H.,
No. 115,309, 2016 WL 7032112, at *8 (Kan. App. 2016) (unpublished). But, here, a
stepfather is seeking to become a legal parent of T.M.M.H.; and the grandmother wants
to challenge that addition of another legal parent for the child. The biological mother's
custody is not in issue in the adoption proceeding; and the grandmother's entry of
appearance in the adoption proceeding cannot take away Mother's custody, it can only
affect Stepfather's legal status. Viewed in the light most favorable to the biological
mother, what we have here is a fight between third persons, a nonadoptive grandmother
versus a nonadoptive stepfather. Yet, the majority apparently embraces the panel's
reliance on the parental preference doctrine by declaring that Grandmother failed in her
burden to establish standing in part because her "verified statements do not assert that
Mother voluntarily and knowingly waived her parental preference." Slip op. at 18-19.
Again, Grandmother seeks standing to challenge the stepfather's potential acquisition of
parental rights; she does not seek standing to change Mother's existing parental rights.

Likewise, the custody disputes in Frazier v. Goudschaal, 296 Kan. 730, 295 P.3d
542 (2013), and In re Marriage of Nelson, 34 Kan. App. 2d 879, 125 P.3d 1081 (2006),
both involved a biological mother asserting custodial rights against a nonbiological,
nonadoptive person. And again, here, Mother is not asserting her custodial rights, but
rather she is advocating for the potential parental rights of her husband. In short, allowing

49
a legal-custodian-grandmother to participate in a stepparent adoption case does no harm
to the constitutional rights of the mother.

Pointedly, Stepfather's response to grandmother's petition for review does not ask
this court to reverse the decision in Frazier. To the contrary, Stepfather insists that "[t]he
situation in this appeal is in no way comparable to Frazier, for so many reasons."
Consequently, we do not have the benefit of briefing on the efficacy of Frazier's
holdings, because Stepfather says they simply do not apply to his case. Likewise, the
parties have been deprived of an opportunity to be heard on the question of why this court
should jettison the doctrine of stare decisis—especially in light of legislative inaction in
the five years since Frazier—simply because the composition of the court has changed.

Nevertheless, the author of the concurrence uses this case as a vehicle to vent his
displeasure with the decision in Frazier. That is certainly his right. But what concerns me
is that concurring with the majority appears to be the excuse for pontificating on Frazier,
when it was not challenged by the parties. And the result of that ploy is that the
concurrence is casting the deciding vote that will likely sever the child's relationship with
his grandmother. In the vernacular of the concurrence: "Poor Thomas."

In Frazier, we related the information contained in the amicus curiae brief of the
National Association of Social Workers that "the formation of attachment bonds is
critical to a child's healthy development; . . . attachment relationships develop despite the
absence of a biological or legal connection between parent and child; . . . and . . .
children experience severe emotional and psychological harm when their attachment
relationships are severed." 296 Kan. at 743. Grandmother's petition for review recites as a
fact that the then 10-year-old T.M.M.H. had lived with her for the child's entire life,
except for 60 days in 2008. Certainly, that raises the distinct likelihood that attachment
bonds, critical to T.M.M.H.'s healthy development, had been formed with his
50
grandmother, the termination of which might cause the child to experience severe
emotional and psychological harm. Accordingly, I would allow Grandmother to make her
case for being an interested person in the adoption proceedings.

BEIER, J., joins in the foregoing dissenting opinion.

51