NOT DESIGNATED FOR PUBLICATION
No. 123,361
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Adoption of S.D.
MEMORANDUM OPINION
Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed April 9, 2021.
Affirmed.
Michael G. Jones, of Crow & Associates, of Leavenworth, for appellant natural father.
John R. Kurth, of Kurth Law Office Inc., P.A., of Atchison, for appellee adoptive father.
Before SCHROEDER, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: This is a stepparent adoption case. The natural father (Father)
appeals the district court's termination of his parental rights to his five-year-old daughter
S.D. so that the husband (Stepfather) of the child's mother (Mother) could adopt S.D. as
his own. The district court terminated Father's parental rights based on Father's failure to
assume his parental duties for the two years immediately prior to Stepfather filing this
action.
Factual and Procedural History
The record of the various proceedings and the testimony at the hearing on
Stepfather's adoption petition established the following chronology:
S.D. was born in June 2015 to Mother and Father, who were not married to each
other.
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In December 2015, a paternity action was filed which led to the court's
determination in May 2016 that established Father's paternity. The court ordered him to
pay child support of $328 per month.
There followed a series of post-determination proceedings regarding matters of
parenting time, child support, and related issues.
Effective August 1, 2016, the court reduced Father's child support obligation from
$328 per month to $58 per month, according to a later March 2017 order.
On August 2, 2016, the district court held a hearing on custody and parenting time.
Father was present in person and with counsel. The court ordered joint custody of S.D.
with the parties alternating parenting time week-to-week with Friday afternoon the
changeover time. Father was ordered to provide Mother every month with a current
urinalysis (UA) drug test result.
On September 29, 2016, Mother served Father's lawyer with interrogatories and a
request for production.
In November 2016, an income withholding order was entered for the collection of
child support.
In December 2016, Mother and Father entered into an agreement for temporary
parenting time. The agreement called for a minor adjustment of the prior alternating week
parenting time arrangement. The parties also agreed that Father would continue providing
monthly UA test results to Mother.
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In June 2017, the court held a hearing on a motion from Mother to modify
custody, parenting time, and support. Father appeared in person and with counsel. The
court found no material changes of circumstances and ordered Father to continue to
provide Mother with monthly UA test results.
In December 2017, Mother and Father were operating under the existing
alternating-week parenting time schedule. They made a weekly exchange of S.D. at the
police station in Atchison where Mother currently lived. Though somewhat conflicting,
later testimony indicated that Father was scheduled to have S.D. during the Christmas
holiday but failed to meet Mother at the police station to affect the exchange. Mother
later introduced into evidence an exhibit describing a phone call to Mother from Father's
current wife, E.C.: "12/24/17 the day of [Father's] pick up I was contacted via phone and
have a recording of E.C. stating he [Father] was on drugs and tore up the house. I was
also contacted via text from E.C.'s mother who stated similar." Father did not have any
parenting time with S.D. after December 2017, other than one brief incident we will
describe later. Mother later testified that Father did not send S.D. any presents, cards, or
letters after 2017.
On January 5, 2018, Mother moved the court to suspend the current parenting plan
in favor of supervised visitation. At the hearing that followed on January 24, 2018, Father
appeared by his attorney but not in person. (Father later testified he was gone on a work
assignment in Wisconsin at the time.) The motion was presented and argued through
statements of counsel. The court suspended Father's parenting time until further order of
the court. Before parenting time was to be restored, Father had to submit to and provide
Mother with a UA test result and to answer the discovery previously propounded by
Mother.
On January 7, 2018, Father began sending an extended series of text messages to
Mother about him seeing S.D. The last of these text messages was on August 25, 2019.
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Mother later testified that she did not respond to any of these text messages because
"[t]he courts had already told him what he needed to do. And he tended to be pretty
aggressive and assertive when he didn't get his way. And I didn't need to stress myself out
anymore." Moreover, as the court later found, Mother "was obeying the court order and
was not going to violate the court order by doing something other than obeying what the
Court had said and that was that there will be no visitation until these two areas [UAs and
outstanding discovery] are complied with."
February14, 2018, is an important date in our analysis. This is two years before the
Stepfather filed his petition to terminate Father's parental rights to S.D. and to allow
Stepfather to adopt S.D.
On March 8, 2018, Father's counsel withdrew from the original paternity case.
On August 5, 2018, Stepfather married Mother.
On December 6, 2018, Mother and S.D. visited Father's parents in Elwood in order
to see S.D.'s grandparents and half-sister, the daughter of Father and his wife, E.C. There
had been no plan to meet Father there, but Mother anticipated he would be present.
Father was present at this family gathering and had contact with S.D. for approximately
30 minutes. According to Mother's later testimony, Father tried to talk to S.D. but she
"didn't really understand who he was." Father took photos of the two children playing.
This was the only time Father saw S.D. during the two years before Stepfather's adoption
petition was filed. The court later, in its ruling on this matter, characterized this encounter
as "incidental contact."
On February 14, 2020, Stepfather filed his petition to terminate Father's parental
rights and to adopt S.D. Mother consented to the adoption. The petition alleged that
consent of Father was not necessary because he had failed to provide support for Mother
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for more than two years and that he had not had any contact with S.D. for more than two
years prior to this petition being filed.
The final hearing on Stepfather's petition was held on September 10, 2020, via
Zoom because of the pandemic shutdown. At the hearing, the court took judicial notice of
the earlier paternity action and heard testimony from Stepfather, Mother, and Father.
We have noted earlier in this chronology various portions of Mother's testimony.
Father testified that he was not aware of the court's January 24, 2018 order suspending
his visitation. He said that he was not present at the hearing when the order was
established and that he did not receive a copy of the order from his counsel. According to
Father, he remained unaware of the court order until a month before the adoption hearing.
After considering the evidence, the district court held that clear and convincing
evidence established that Father failed or refused to assume the duties of a parent for two
consecutive years immediately preceding the filing of the petition for adoption. The court
found that Father refused to continue taking UAs as ordered by the court and to obey the
court's discovery orders, which resulted in his parenting time being suspended. Father
took no action thereafter to change the court's order suspending his parenting time. The
court found that Father's testimony was not consistent with court documents in the
paternity action. There were multiple hearings when Father was present and knew "very
clearly what was going on in terms of visitation, parenting time, child support."
Moreover, when Father's parenting time was suspended he took no action to comply with
or change the court's order. Father's last visit of any substance with S.D. was in
December 2017, and he had only incidental contact in 2018. Accordingly, the court
terminated Father's parental rights and granted Stepfather's petition for adoption. In doing
so, the court did not base its ruling in any way on any deficiency in Father's child support
payments.
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This appeal followed.
Standard of Review
On appeal, Father's sole claim of error is that the evidence was insufficient to
support the district court's finding that Father failed or refused to assume his parental
duties for two consecutive years immediately preceding the filing of Stepfather's petition.
After reviewing all the evidence in the light favoring Stepfather, the prevailing
party, we will uphold the termination of Father's parental rights in this adoption case if
the district court's factual findings are supported by clear and convincing evidence. In the
course of our analysis we do not reweigh the evidence, pass on the credibility of
witnesses, or redetermine factual questions. In the Matter of the Adoption of Baby Girl
G., 311 Kan. 798, 806, 466 P.3d 1207 (2020), cert. denied March 1, 2021.
Analysis
The termination of a person's parental rights in an adoption case is governed by
K.S.A. 2020 Supp. 59-2136. Here, the district court relied on K.S.A. 2020 Supp. 59-
2136(h)(1)(G) to terminate Father's parental rights. Under this statutory provision, "the
court may order that parental rights be terminated and find the consent or relinquishment
unnecessary, upon a finding by clear and convincing evidence . . . [that] the father has
failed or refused to assume the duties of a parent for two consecutive years immediately
preceding the filing of the petition."
Father argues that he wanted to continue visiting S.D. during the two years before
this action was filed, but he was unable to do so because he did not know the court
suspended his visitation and Mother did not return his text messages. We are not
persuaded by this claim.
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Father criticizes Mother for not responding to his text messages. But Mother
testified that she did not respond because "[t]he courts had already told him what he
needed to do" and Father never did what the court found necessary for Father's parenting
time to resume.
Mother had every right to assume that Father was well aware that the court had
suspended his parenting time and of what he had to do to restore his parenting time. On
January 5, 2018, Mother moved to suspend the current parenting plan in favor of
supervised visitation. (The motion is not in the record but is referred to in the district
court's order of January 24, 2018.) In response to the motion, Father's counsel appeared
on behalf of Father at the motion hearing. The motion was presented to the court on
statements of counsel without testimony from the parties. It is inconceivable that Father's
counsel would have been able to argue the motion without at least some consultation with
his client about this pending motion in order to construct a meaningful argument to the
court in opposition to the motion. Nor is it any more conceivable that counsel would not
advise Father of the adverse outcome of the hearing or that Father would not have
inquired of counsel about how it all came out.
Father was well aware of his ongoing duty to provided monthly UA test results to
Mother. That had been an ongoing source of conflict and court proceedings throughout
the paternity action. The court's last directive on this duty to provide UA test results was
at the hearing on June 6, 2017, which Father attended in person. Likewise, Mother's
discovery requests directed to Father had been outstanding since September 29, 2016.
The district court did not find credible Father's claim that he was unaware of the court
proceedings involving parenting time.
Even if we were to assume that Father was unaware of the court's order
suspending parenting time, he failed to exert any significant effort to restore his contact
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with S.D. Kansas law requires a parent to pursue "the opportunities and options which
were available to carry out his duties to the best of his ability." In the Matter of the
Adoption of Baby Boy W., 20 Kan. App. 2d 295, 299, 891 P.2d 457 (1994). Father did not
do so here.
Father never contacted his lawyer to obtain a copy of the January 24, 2018 order.
He did not go to the courthouse to check out the status of the matter with the court clerk.
He claims he did three things in an effort to see S.D. (1) He visited with an attorney in St.
Joseph, Missouri, but did not retain him because of the amount of the required retainer.
He did not seek out any other legal assistance. (2) He sent Mother a series of text
messages. He continued sending texts for an extended period of time even though it was
apparent that Mother would not respond and that his repeated texting to her was an empty
gesture. (3) He testified that he went to the arranged custody exchange spot, the local
police station, and waited for Mother to arrive with S.D., which she never did. Father
testified he did this every week for a period of two years, apparently expecting that by
this constant repetition of the same action a different result somehow would be obtained.
The preservation of Father's important parental relationship with S.D. required
more than Father's half-hearted and meager efforts exhibited here. Over the two-year
period prior to the filing of this adoption action, Father did not take advantage of the
"options and opportunities" available to him to restore his parenting time with S.D.
Father points to the fact that he has paid some child support since it was ordered in
2016. He argues that the fact that he made these payments is evidence that he has not
failed or refused to assume his parental duties to S.D. While the payment or nonpayment
of child support and a failure to assume parental duties are related, they are not identical.
See K.S.A. 2020 Supp. 59-2136(h)(1), (3). In any event the district court did not
predicate its ruling on the deficiencies in Father's support payments. Moreover, the fact
that Father paid some child support, garnished from his wages, does not change the fact
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that he failed to act as a parent for more than two consecutive years prior to the filing of
this action. See K.S.A. 2020 Supp. 59-2136(h)(1)(G).
We find substantial clear and convincing evidence, viewed in the light favoring
Stepfather, that supports the district court's finding that Father failed or refused to assume
his parental duties to S.D. during the two years that immediately preceding the filing of
Stepfather's petition.
Affirmed.
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