I respectfully dissent from the majority opinion. In 1991, K.S.A. 59-2136(d) read, inter alia:
“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 of 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.” K.S.A. 1991 Supp. 59-2136(d).
The statute focused on financial support and disregarded all other factors. The legislature was alerted to problems that arose when using this financial standard alone in ruling on stepparent adoptions. In In re Adoption of S.E.B., 257 Kan. 266, 274, 891 P.2d 440 (1995), the court stated:
“There is substantial evidence to support the trial court’s determination that it was in the best interests of the children that they remain in the home of Stepfather. The best interests of the children, however, is not the standard in deciding this adoption. The best interests of the children, which is the paramount consideration in custody matters, is not controlling . . . .”
In 2006, the legislature amended K.S.A. 2006 Supp. 59-2136(d) to include:
*156“The court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whedier a stepparent adoption should be granted.”
We do not have an incarcerated father as was the case in In re Adoption of S.E.B.; however, we do have a Father who was not married to Mother, did not live with Mother during her pregnancy, provided no support for Mother during her pregnancy, and has not seen the children in 9 years.
In mid-October 1994 when the children were born, the parents lived together for 3 weeks, then Father disappeared. In 1994, Mother sued for paternity and child support. The trial court determined Father’s paternity and ordered Father to pay $184 per month child support and also ordered visitation for Father. Father appeared at the paternity hearing in 1994, but did not attempt to see the children.
In 1997, Father’s parents took Mother to court to get visitation. Father appeared at this hearing with an attorney and was granted weekend visitation, which he exercised for 2 or 3 weekends right after the order was entered. The last time Father has seen G.L.V. and M.J.V. was in 1997. Father claims that he carried health insurance on the children which covers himself, his wife, and the 4 children who live with him. Mother was never notified that Father was carrying health insurance on G.L.V. and M.J.V.
Father claims that he was denied visitation. However, Father never took any legal steps to pursue his visitation rights. Father’s mother sees G.L.V. and M.J.V. regularly and Father testified that he has been in regular contact with his mother. He claims that his mother never told him where the children lived. Father moved to Washington state in 2000 and returned to Kansas in 2005.
In June 2006, Mother’s husband, E.L.D., filed a petition to adopt G.L.V. and M.J.V. Father filed no answer to this petition; however, he appeared at the hearing and said he objected to the adoption. The court, in rendering its opinion in the adoption proceeding, cited In re Adoption of B.M.W., 268 Kan. 871, 2 P.3d 159 (2000), and stated: “On one side of the ledger is the love and affection’ shown by the natural parent while the other side tracks the financial support provided in the two years prior to the filing *157of the petition.” The court in B.M.W. stated that “neither the best interests of the child nor the fitness of the nonconsenting parent are controlling factors, as they would be in a proceeding to sever parental rights.” 268 Kan. 871, Syl. ¶ 2.
B.M.W. was decided 6 years before K.S.A. 2006 Supp. 59-2136(d) was amended to add the consideration of the best interests of the child. The trial court in this case stated that father “fails miserably the love and affection’ test. He has had no contact or communication with these children for nine years.”
It is E.L.D. who has been the father to these children. E.L.D. has helped with their homework, was involved with their scouting, and coached their football, baseball, and basketball teams.
Father showed no interest in anything to do with these children until the adoption proceeding was filed; even then he failed to file a brief but did appear at the hearing. There is no evidence in the record on appeal that Father made any attempts in 9 years to see his children other than his assertion that he contacted a couple of county sheriffs to obtain their help. Mother has not kept Father from seeing these children. She has always been listed in the phone book and Father’s mother has always known where she lived.
The majority claims this is a case of statutory interpretation. “ ‘The fundamental rule of statutory construction is to ascertain the legislature’s intent .... When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be.’ [Citation omitted.]” In re Adoption of S.J.R., 37 Kan. App. 2d 28, 33, 149 P.3d 12 (2006). The majority suggests that the legislature used the word “may” rather than “shall,” meaning that the court is not required to consider the best interests of the children. The question then is, why did the legislature include the best interest standard in the statute if the court is free to completely disregard its consideration? It is clear the legislature now intends that the trial court has the ability to consider the best interests of the children and is not required to merely focus on financial support alone as the criteria for denying an adoption. How can it be in the best interests of these children to deny adoption by the only father they know? Financial support alone can no longer be the *158sole criteria. It is true that Father has paid some support; however, for years, he paid nothing until his income tax refunds were garnished.
I consider this a case of abuse of discretion and would reverse the trial court and grant the adoption.