In re the Adoption of C.R.D.

Pierron, J.:

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

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

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

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

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

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

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

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

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

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

“In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father’s consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.”

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

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

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

*98Our courts have noted that “incidental” contacts and contributions as contemplated by K.S.A. 59-2136(d) and its predecessor statute, K.S.A. 59-2102(b) (Ensley), are to be disregarded when determining whether parental duties have been assumed. “Incidental” has been defined as, “casual, of minor importance, insignificant, and of little consequence.” In re Adoption of McMullen, 236 Kan. 348, Syl. ¶ 1, 691 P.2d 17 (1984).

The changes by the legislature in 1982 and 1991 regarding the level of support necessary to constitute an appropriate assumption of parental duties evidence a clear desire to toughen the requirements for natural parents wishing to contest stepparent adoptions. Our concern is whether the interpretation of the statute propounded by the mother and apparently adopted by the trial court goes too far.

Basic parental rights are fundamental rights protected by the Fourteenth Amendment to the Constitution of the United States. The right to be the legal parent of a child is one of these rights, which cannot be abrogated except for compelling reasons. See Quilloin v. Wolcott, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1978); In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994).

“Strict construction is necessary to protect the rights of the nonconsenting parent, because a decree of adoption terminates the parental right of the nonconsenting natural parent. K.S.A. 59-2103. Emphasis on protection of natural parents’ rights is also bolstered by the United States Supreme Court’s decisions which have scrutinized due process rights of natural fathers of illegitimate children.” In re Adoption of B.J.H., 12 Kan. App. 2d 746, 751, 757 P.2d 1268, rev. denied 243 Kan. 778 (1988).

In the instant case a basic parental right is in opposition to a strong and potentially compelling justification to abrogate that right: the State’s interest in providing a child with a legal, stable, and consistent parental relationship through a stepparent adoption when the father or mother has failed or refused to assume the duties of a parent for a significant length of time.

The issue before us is not the father’s fitness. See In re Adoption of Wilson, 227 Kan. 803, Syl. ¶ 1, 610 P.2d 598 (1980). We are to determine whether he has performed certain duties.

*99In response to concerns that judicial decisions were allowing parents who had not substantially assumed their parental obligations to interfere with the adoption of the affected child by a responsible stepparent, tbe “substantial portion” presumption in the statute was created. Unfortunately, the term “substantial portion of the child support as required by judicial decree” is not defined and the legislature history is not clear as to the legislature’s precise intention. However, we presume the legislature was not attempting to abrogate such an important right for anything but compelling reasons. A constitutional right may not be taken away through the legislation of presumptions that allow the abrogation of these rights without the showing of a compelling need or justification.

“Interpretation of a statute is a question of law.” State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “[T]he legislature is presumed to intend that a statue be given a reasonable construction, so as to avoid unreasonable or absurd results.” Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).

We generally construe the term “substantial portion” as the term “substantial” is defined in Blacks Law Dictionary, 1428 (6th ed. 1990) that being: “Of real worth and importance; of considerable value; valuable.”

We concede that a substantial amount of the ordered child support was not paid. However, in the instant case, as a matter of law, it cannot be said that the $1,100 and medical insurance coverage do not constitute substantial efforts and assumption of parental duties, incomplete and unsatisfactory though they may be.

A rebuttable presumption of failure to assume parental responsibilities arises when there have been no substantial efforts or contributions made by a parent to his or her child. But, we do not believe a presumption which allows the termination of parental rights notwithstanding substantial parental efforts or contributions is constitutionally permissible.

We acknowledge that parental duties include not only financial support but also the natural and moral duty of a parent to show *100affection, care, and interest toward his or her child. See In re Adoption of F.A.R., 242 Kan. 231, 239, 747 P.2d 145 (1987); In re Adoption of Wilson, 227 Kan. at 805; In re Sharp, 197 Kan. at 508. However, we do not read these cases to say that parental rights may always be abrogated if a parent fails in any of the parent’s obligations. A failure in one area may be balanced by action in another, or it may not. All surrounding circumstances must be considered and a decision made as to whether the parent’s efforts constitute a sufficient assumption of parental duties to prevent a termination of those rights through stepparent adoption. See In re Adoption of F.A.R., 242 Kan. at 239-40.

We do not find that any valuable support or contact is sufficient. “Substantial” assumes something more than nominal or casual efforts. Cases will arise, as this one, which severely test the analytical abilities of the court to determine what constitutes “substantial” support or contact.

In the instant case, we do not believe the support payments and insurance benefits provided can reasonably be called insubstantial, as we believe that term must be defined in this context. The father’s support of his child in this case was certainly not what it should have been. But it was not so insubstantial as to deprive him of his rights of parenthood.

Reversed.