In re P..R. ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 119,745
In the Interest of P.R.,
A Minor Child.
SYLLABUS BY THE COURT
1.
Appellate courts have recognized three statutory methods by which parental rights
are terminated: (a) adoption, (b) involuntary termination of parental rights, and (c)
voluntary relinquishment of parental rights.
2.
Adoption, involuntary termination of parental rights, or voluntary relinquishment
of parental rights each effects a complete and final divestment of all legal rights,
privileges, duties, and obligations of the parent. The loss of parental rights is complete
and includes the termination of the right to inherit from or through the child and the right
to notice of and consent to subsequent adoption.
3.
A parent's right to make decisions regarding the care, custody, and control of his
or her child is a fundamental and safely guarded liberty interest protected by the
Fourteenth Amendment to the United States Constitution. This principle is beyond
dispute.
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4.
The fundamental right to parent is not however without limits. The welfare of
children is a matter of state concern. The State's interest may be addressed by processes
designed to protect children in need of care.
5.
The provision of the revised Kansas Code for Care of Children regarding
relinquishment of parental rights to the Department for Children and Families (DCF),
K.S.A. 2019 Supp. 38-2268(b), does not require that DCF accept the relinquishment in
writing for the relinquishment to be effective.
6.
To be effective, a parent's relinquishment of parental rights must be knowing and
voluntary. A knowing relinquishment is one given by a parent who has been fully advised
of his or her rights and the consequences of the act of relinquishment.
7.
A parent who has knowingly and voluntarily relinquished his or her parental rights
is not entitled to the additional procedural safeguard of an evidentiary hearing for
termination of parental rights.
Review of the judgment of the Court of Appeals in an unpublished opinion filed May 31, 2019.
Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed February 12, 2021.
Affirmed.
Rachel I. Hockenbarger, of Topeka, was on the briefs for appellant natural mother.
Morgan L. Hall, deputy district attorney, was on the briefs for appellee State of Kansas.
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Jennifer Martin Smith, of Alderson, Alderson, Conklin, Crow & Slinkard, L.L.C., of Topeka, and
Samantha R. Harrington, of Topeka, were on the briefs for appellees adoptive parents.
The opinion of the court was delivered by
WARD, J.: We hold in this case that formal written acceptance by the Kansas
Department for Children and Families (DCF) is not required in order for a parent's
relinquishment of parental rights to that agency to be valid. We find under the facts of
this case that the mother's relinquishment of parental rights to DCF was valid, knowingly
made, and effective to terminate her parental rights. And we agree that mother was
afforded the procedural due process to which she was entitled.
HISTORY OF THE CHILD IN NEED OF CARE CASE
Proceedings in District Court
On March 30, 2015, the State filed a petition alleging that P.R., a child less than
one year old at the time, was a child in need of care. The grounds asserted in the petition
were lack of adequate parental care or control, as well as abuse or neglect. K.S.A. 2019
Supp. 38-2202(d)(1)-(3). The petition alleged that the child's mother T.R. had been
smoking marijuana in a motel room with P.R. present, left him there unattended for a
period of time, and locked herself out of the motel room at some point with P.R. inside.
T.R. admitted to law enforcement officers she had smoked methamphetamine several
days earlier and was struggling to give up her drug habit. The petition further alleged that
T.R. was receiving services from DCF under a Drug Endangered Children case
management program, that she was on probation in Shawnee County for domestic
battery, that she had prior convictions for possession of methamphetamine and drug
paraphernalia, and that she was bi-polar but not receiving mental health services.
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That same day the court held a temporary custody hearing. T.R. appeared in
person without counsel. P.R. appeared by his guardian ad litem (GAL). Based on the
contents of the petition, the court placed P.R. in the temporary custody of DCF after
making findings of an emergency and the necessity for out-of-home placement.
On April 27, 2015, the case came on for adjudication. T.R. appeared with her
attorney. P.R. appeared by his GAL. One of the two putative fathers named in the
petition did not appear. According to the journal entry from that hearing, "the guardian ad
litem and mother of the child did submit to the Court a stipulation or statement of no
contest to the petition . . . . Upon inquiry the Court finds that it is knowingly and
voluntarily offered and that there is a factual basis and accepts it." The court found P.R.
to be a child in need of care based on the grounds alleged in the petition.
At the dispositional hearing held on July 20, 2015, T.R. was not present, but her
attorney was present. P.R. appeared by his GAL. The court found that DCF or its
contractor continued to make reasonable efforts toward the permanency goal of
reintegration with the mother. Temporary DCF custody of P.R. with out-of-home
placement continued.
On February 8, 2016, the court conducted a permanency hearing "to determine
progress being made to achieve the current permanency plan goal(s) of reintegration."
T.R. appeared in person and with her attorney. P.R. appeared by his GAL. Putative
fathers did not appear. The district court found: the progress of the mother toward
reintegration was adequate; P.R.'s needs were being met; and reintegration with the
mother remained a viable goal. Previous orders of temporary DCF custody and out-of-
home placement continued in effect. Another permanency hearing was scheduled for
January 16, 2017.
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In November 2016, the foster father filed a motion for interested party status on
behalf of himself and his wife. He then filed an amended motion for interested party
status on January 5, 2017. This motion asserted that P.R. had lived with the foster parents
since March 30, 2015, when he was five weeks old, and that he had bonded with them
during the 21 months he had been in their care.
On January 18, 2017, the State filed a motion pursuant to K.S.A. 2019 Supp. 38-
2266(a) for a finding of unfitness and termination of parental rights or alternatively the
appointment of a permanent custodian. The State's motion alleged a failure by the mother
to make progress toward reintegration. It further alleged multiple positive urinalysis (UA)
results, failure to appear for multiple UA appointments, lack of employment, inability to
care for P.R., and other grounds. The motion noted the continuing absence of a known
father and asserted that P.R. had been thriving in his foster home placement. Also, on
January 18, 2017, P.R.'s maternal aunt and uncle filed a motion for interested party status.
That same date the court conducted its next permanency hearing in the case. T.R.
was present with her counsel. The court noted that T.R. and her counsel had been served
with the State's termination motion. P.R. appeared by his GAL. T.R. named two
additional putative fathers during this hearing, but no putative father appeared. The court
found that T.R.'s progress toward reintegration with P.R. was inadequate and that
reintegration was no longer viable. The court found that adoption would be in P.R.'s best
interests. The case plan goal was changed from reintegration to adoption. The foster
parents' motion for interested party status was granted. The maternal aunt and uncle's
motion for interested party status was not addressed at that time.
On March 30, 2017, two years to the day after P.R.'s removal from his mother's
home, T.R. executed a written relinquishment of P.R. to the agency (DCF). T.R. signed
the relinquishment form before a notary public. T.R.'s attorney approved the form and
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certified she fully explained to T.R. that "[T.R.] is permanently giving up all parental
rights to the child and that [T.R.] has stated that such is her intention and desire."
The relinquishment form began with the following statement:
"NOTICE TO PARENT OR PERSON IN LOCO PARENTIS: This is an
important legal document and by signing it you are permanently giving up all custody
and other parental rights to the child named herein. You are to receive a copy of this
document."
The relinquishment form recited biographical information about T.R. and P.R. It
concluded with the following statements by T.R.:
"5. I do hereby relinquish the child to the Kansas Department of Children and
Families, which I understand will have full power and all the rights of a legal guardian
over the child, including the power to place the child for adoption and give consent
thereto.
"6. I understand that by signing this relinquishment I do permanently give up all
custody and other parental rights I have to such child, including the right to receive notice
of any subsequent adoption proceedings involving the child. Understanding this, I wish to
sign this relinquishment.
"7. At the time of signing this document, I am not under the care of a psychiatrist
or other medical practitioner for any mental condition that would render me unable to
make sound decisions, nor am I presently taking any medication or under the influence of
any drug including alcohol that would impair my ability to understand or comprehend the
significance or import or my relinquishment of the child identified above. I have been
promised nothing in return for my relinquishment.
"8. I have read and understand the above and I am signing it as my free and
voluntary act. Dated this 3/30/17 at 2:41 p.m. "
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On October 2, 2017, the court conducted a pretrial hearing on the termination of
parental rights motion the State had filed in January. T.R. appeared with counsel. P.R.
appeared by his GAL. The putative fathers appeared by counsel only. The foster parents
appeared with counsel. The maternal aunt and uncle, who by this point had also been
granted interested party status, appeared with their counsel. T.R. expressed her
willingness to consent to a custodianship for P.R., but the State objected and urged the
court to proceed with termination and the permanency of adoption. Trial on the
termination motion was accordingly scheduled for January 16-17, 2018.
On January 8, 2018, just over a week prior to the trial at which the State would be
asking the court to terminate the parental rights of T.R. and all putative fathers, the
relinquishment form executed by T.R. on March 30, 2017, was filed in the record. It
contained the signatures of T.R., her attorney Kathryn Gonzales, and it was notarized.
The portion of the form showing acceptance of the relinquishment by DCF was not
signed. However, an email from DCF's counsel which is included in the record indicates
that DCF would accept T.R.'s relinquishment but, "a PRT trial was pending on father so
we would not have accepted earlier."
On January 16, 2018, the termination of parental rights trial proceeded as
scheduled. The State appeared by deputy district attorney Morgan Hall. The named and
unknown putative fathers appeared by counsel, but none appeared in person. T.R.
appeared with Gonzales. The court began the hearing by addressing T.R. and her counsel.
"The Court: So, the first issue is one of the permanency motion. Ms. Gonzales,
your client has submitted a relinquishment, is that correct?
"Ms. Gonzales: That's correct, your honor."
Later in the hearing the following additional discussion occurred.
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"The Court: Ms. Gonzales, anything else on behalf of your client?
"Ms. Gonzales: Your honor, we have no basis for which to object as to any
unknown fathers. As far as the default.
"The Court: And her relinquishment stands.
"Ms. Gonzales: Yes. Ms. Hall and I double-checked with DCF last week, I
believe it was.
"The Court: Very good.
"Ms. Gonzales: And, they said they're gonna accept it."
The district court then addressed termination of the parental rights of all putative
fathers. The State noted that publication service was complete as to all unknown fathers.
The State made a proffer of evidence as to the unfitness of any putative fathers. No one at
the hearing, including T.R. and her counsel, objected to the court entering a default order
terminating the parental rights of the putative fathers.
At a later point in the hearing the court stated:
"When you combine the unfitness finding the Court has just now made along
with the relinquishment that's been provided by the mother, the court finds the evidence
supports a termination of those fathers' parental rights. And, that it is in the best interests
of this child when considering the physical, mental, emotional health of the child
termination of parental rights is in the best interest[s] of the child.
"The best interests of the child would best be served by termination of the
parental rights. Therefore, the Court terminates the parental rights of all fathers who are
named here on the record today. And, along with the relinquishment, excuse me, the
Court grants the agency the authority to consent to adoption.
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"So, [T.R.] is now excused. Ms. Gonzales, you are excused. And, all of the
attorneys representing those fathers are excused. I thank you all for your assistance and
participation and wish you the best on behalf of [T.R.]."
Having confirmed T.R.'s relinquishment of parental rights, and having terminated
the parental rights of all possible fathers, the court then turned its attention to permanency
planning for P.R. The foster parents and the maternal aunt and uncle were present with
their counsel. Although the court initially granted DCF the authority to consent to P.R.'s
adoption, that authority was withdrawn later in the hearing when the court was told that
the foster parents were seeking to proceed with a private adoption. Accordingly, P.R.
remained in temporary DCF custody and in the care of the foster parents pending further
orders. Two different journal entries memorializing this hearing would be filed several
months later.
On May 22-23, 2018, the district court heard a motion by the foster parents for an
order relieving DCF of P.R.'s custody, placing him directly into their legal custody, and
allowing them to proceed with his adoption. The judge heard testimony from various
witnesses, including expert testimony regarding the bond that P.R. had formed with the
foster parents and the harm that would likely come to him by terminating his relationship
with the two people he considered to be his parents. T.R. appeared at the hearing without
counsel and was excused by the court given her earlier parental rights relinquishment.
The court found that DCF's efforts to remove P.R. from the foster parents' home in
favor of the maternal aunt and uncle was an abuse of the agency's discretion because it
failed to properly consider whether such placement would actually be in P.R.'s best
interests, citing In re J.A., 30 Kan. App. 2d 416, 421, 42 P.3d 215 (2002). The court
concluded that the child's best interests were served by granting custody to the foster
parents to pursue adoption. The court directed that P.R. be removed from DCF custody
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and placed directly into the foster parents' custody. A written order to that effect was filed
June 1, 2018.
On June 11, 2018, the maternal aunt and uncle filed both a motion for
reconsideration of the court's June 1 order as well as motion for visitation with P.R. The
aunt and uncle contended that T.R. had relinquished her parental rights specifically and
only to DCF, and because the court relieved DCF of P.R.'s custody in its June 1 order,
T.R.'s relinquishment was no longer valid. The aunt and uncle asserted that T.R.'s
parental rights remained intact.
On June 19, 2018, the district judge entered an order denying the motion for
reconsideration. The order noted that the aunt and uncle’s motion was the first time
anyone had argued that T.R.'s relinquishment of parental rights was invalid. The court
questioned whether the aunt and uncle had standing to make this argument on T.R.'s
behalf. In any event, the court determined that the motion lacked merit and found that
T.R.'s relinquishment of her parental rights was voluntary, permanent, unconditional, and
valid.
The following day on June 20, 2018, the foster parents filed their petition to adopt.
On June 25, 2018, the district court filed its consent to the adoption of P.R. by the foster
parents, noting the court's previous direct placement of P.R. with them, and citing K.S.A.
2019 Supp. 38-2270(a)(2) and K.S.A. 2019 Supp. 59-2129(a)(4) as authority for the
court's adoption consent. The court's order read in pertinent part:
"The Court does hereby consent to the adoption of [P.R.] by [foster father] and [foster
mother], residents of Topeka, Shawnee County, Kansas and does hereby surrender said child to
said persons for the purpose of adoption."
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On July 15, 2018, T.R. filed a motion for relief from the January 16, 2018 parental
rights termination order which had just been filed on July 5, 2018. She asserted for the
first time that her relinquishment of parental rights was conditioned upon DCF's
acceptance which she argued was required by K.S.A. 2019 Supp. 38-2268(b)(1). Absent
that formal acceptance, she argued her parental rights were never terminated and
remained intact. She challenged the district court's grant of custody to the foster parents
as well as the court's consent to their adoption of P.R. She sought a stay of the adoption
proceeding and modification of the July 5, 2018 journal entry to reflect that her parental
rights were never relinquished.
On July 26, 2018, the district court assented to T.R.'s motion for relief and entered
an order finding that despite T.R.'s knowing and voluntary relinquishment, there had
never been an adjudication of her unfitness or a termination of her parental rights. The
court rescinded its earlier order filed July 5, 2018, insofar as it applied to T.R., and put
the State's termination motion back on the docket for adjudication. The court also stayed
its earlier consent to P.R.'s adoption.
Following this order, the parties filed various motions and responses. On
September 18, 2018, the district court conducted a status hearing. The court and counsel
discussed the pending motions as well as the status of T.R.'s appeal which she had filed
on July 18, 2018. The district court declined at that time to rule on these recent motions,
instead staying their consideration until the appeal was resolved.
However, on October 9, 2018, the district court reversed course and entered an
order in which it concluded that its July 26, 2018 order had been improvidently granted.
The new order stated, "Mother's voluntary relinquishment under K.S.A. 38-2268 was a
proper, legally authorized adjudication of Mother's parental rights and it is not necessary
to conduct further proceedings to terminate her Mother's parental rights." The court
reinstated its July 5, 2018 findings and order.
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Court of Appeals Decision
The panel affirmed the district court, finding that K.S.A. 2019 Supp. 38-2268(b)
did not require written acceptance of the relinquishment by DCF to be effective. The
panel found: T.R.'s relinquishment of parental rights was knowingly made; T.R. was
fully informed that she was giving up all custody and other parental rights; and the
termination of her parental rights was based upon the district court's acceptance of her
relinquishment compliant with all procedural safeguards, not based upon any finding of
unfitness. In re P.R., No. 119,745, 2019 WL 2306763, at *6 (Kan. App. 2019)
(unpublished opinion).
DISCUSSION
Appellate jurisdiction here derives from K.S.A. 20-3018(b) and K.S.A. 60-2101(b)
both of which authorize Kansas Supreme Court review of the final decisions of the Court
of Appeals. In her petition for review T.R. enumerates seven different issues. Certain of
T.R.'s issues are closely related and will be discussed together. Several of the issues were
not properly preserved for review and will not be discussed in any detail.
Parental Rights Termination Generally
This court has noted in the context of child in need of care proceedings that
voluntary relinquishment of parental rights is one of three statutory methods by which a
parent's rights to his or her child may be terminated. The others are adoption and
involuntary termination of parental rights. State ex rel. Secretary of SRS v. Clear, 248
Kan. 109, 116, 804 P.2d 961 (1991); State ex rel. Secretary of SRS v. Bohrer, 286 Kan.
898, 906, 189 P.3d 1157 (2008).
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Under any of these processes the outcome for parent and child is the same. In
Clear (a child in need of care [CINC] case involving mother's voluntary relinquishment
of parental rights) the court stated, "A person whose parental rights have been
relinquished through adoption, through a voluntary termination of parental rights, or
through an involuntary severance of parental rights is no longer a parent. These statutory
procedures contemplate a complete severance of the child's ties and relationship with his
or her natural parents." 248 Kan. 109, Syl. ¶ 5.
In Bohrer (a CINC case involving a father's consent to permanent guardianship for
his daughter) the court reiterated the finality of parental rights termination. The court
stressed the point that adoption, relinquishment, and involuntary termination all effect "'a
complete and final divestment of all legal rights, privileges, duties, and obligations of the
parent and child with respect to each other.'" 286 Kan. at 914 (quoting Clear, 248 Kan. at
115).
And the revised Kansas Code for Care of Children (KCCC) itself provides that
when a parent has relinquished a child to the agency, "all the rights of the parent shall be
terminated, including the right to receive notice in a subsequent adoption proceeding
involving the child." K.S.A. 2019 Supp. 38-2268(b)(4). The one exception to termination
following relinquishment is when a parent relinquishes parental rights with the belief that
the other parent will also relinquish or be found unfit by the court, and neither
circumstance occurs. K.S.A. 2019 Supp. 38-2268(b)(5). In that case, relinquishment does
not amount to a termination of parental rights.
DCF’s acceptance of T.R.'s relinquishment was not required.
T.R. asserts that her relinquishment of parental rights was invalid because DCF
never signed the part of the relinquishment form showing the agency's acceptance of P.R.
She construes K.S.A. 2019 Supp. 38-2268(b)(1) as requiring DCF's written acceptance of
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a child for the parent's relinquishment to be valid. The part of the form she refers to is
titled "ACCEPTANCE OF CHILD BY AGENCY" and states, "I, the undersigned, on
behalf of the Kansas Department [for] Children and Families, do hereby accept custody
of [P.R.], the above relinquished minor child."
K.S.A. 2019 Supp. 38-2268(b) reads as follows:
"(1) Any parent or parents may relinquish a child to the secretary, and if
the secretary accepts the relinquishment in writing, the secretary shall stand in
loco parentis to the child and shall have and possess over the child all rights of a
parent, including the power to place the child for adoption and give consent
thereto.
"(2) All relinquishments to the secretary shall be in writing, in substantial
conformity with the form for relinquishment contained in the appendix of forms
following K.S.A. 59-2143, and amendments thereto, and shall be executed by
either parent of the child.
"(3) The relinquishment shall be in writing and shall be acknowledged
before a judge of a court of record or before an officer authorized by law to take
acknowledgments. If the relinquishment is acknowledged before a judge of a
court of record, it shall be the duty of the court to advise the relinquishing parent
of the consequences of the relinquishment.
"(4) Except as otherwise provided, in all cases where a parent has
relinquished a child to the agency pursuant to K.S.A. 59-2111 through K.S.A. 59-
2143, and amendments thereto, all the rights of the parent shall be terminated,
including the right to receive notice in a subsequent adoption proceeding
involving the child. Upon such relinquishment, all the rights of the parents to
such child, including such parent's right to inherit from or through such child,
shall cease.
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"(5) If a parent has relinquished a child to the secretary based on the
belief that the child's other parent would relinquish the child to the secretary or
would be found unfit, and this does not occur, the right of the parent who has
relinquished shall not be terminated.
"(6) A parent's relinquishment of a child shall not terminate the right of
the child to inherit from or through the parent." (Emphasis added.)
Interpretation of a statute is a question of law over which this court has unlimited
review. State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019). The standards
governing statutory interpretation are well established:
"When interpreting a statute, a court first attempts to discern legislative intent
through the statutory language, giving common words their ordinary meanings. When the
language is plain and unambiguous, the court must give effect to its express language,
rather than determine what the law should be. The court will not speculate about
legislative intent and will not read the statute to add something not readily found in it. It
is only when the statute's language is unclear or ambiguous that the court employs the
canons of statutory construction, consults legislative history, or considers other
background information to ascertain its meaning. [Citations omitted.]" Nauheim v. City of
Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019).
T.R. contends that the Court of Appeals erred in applying a liberal construction to
K.S.A. 2019 Supp. 38-2268(b) rather than strictly construing it to protect her right to
parent, a fundamental right reiterated by the United States Supreme Court in Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). There the Court
stated, "The liberty interest at issue in this case—the interest of parents in the care,
custody, and control of their children—is perhaps the oldest of the fundamental liberty
interests recognized by this Court." Troxel, 530 U.S. at 65.
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This court has likewise said that the right to parent is a safely guarded liberty
interest. Kansas courts have long held: "Virtually all jurisdictions including Kansas
recognize the parents' rights of custody and control of their children are liberty interests
protected by the Fourteenth Amendment Due Process Clause." In re Cooper, 230 Kan.
57, 64, 631 P.2d 632 (1981); see also In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974(2007) ("A parent's right to make decisions regarding the care, custody, and control of his
or her child is a fundamental liberty interest protected by the Fourteenth Amendment.").
And very recently the Kansas Supreme Court reinforced the point that a parent's
fundamental liberty interest in the right to make decisions regarding the care, custody,
and control of their children is a principle "without dispute." In re A.A.-F., 310 Kan. 125,
146, 444 P.3d 938 (2019).
The fundamental right to parent is not without limits. Child welfare is clearly a
matter of state concern. Sheppard v. Sheppard, 230 Kan. 146, 152, 630 P.2d 1121 (1981),
cert. denied 455 U.S. 919 (1982). And the interest of the State of Kansas in the welfare of
children "may be asserted through state processes designed to protect children in need of
care." In re A.A.-F., 310 Kan. at 146.
T.R. correctly questions the panel's conclusion that "Kansas courts have never
required strict compliance with the statutory provisions . . . of the CINC code." In re P.R.,
2019 WL 2306763, at *4. The panel's citation to In re A.W., 241 Kan. 810, 816-17, 740
P.2d 82 (1987), does not support such a broad statement. Rather, when our courts have
interpreted statutes affecting the right to parent, they have generally done so in a strict
manner. "Statutes pertaining to adoption, relinquishment, or termination of parental rights
are strictly construed as they all affect a parent's liberty interest in the custody and control
of his or her children." In re J.A.C., 22 Kan. App. 2d 96, Syl. ¶ 3, 911 P.2d 825 (1996).
See also In re Adoption of C.L., 308 Kan. 1268, 1279, 427 P.3d 951 (2018) (Adoption
statutes are strictly construed in favor of natural parents' rights when consent to adoption
is not required by reason of a parent's failure to fulfill parental obligations.).
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But T.R. misconstrues the focus of the Court of Appeals analysis. The panel
referred to the KCCC provision which states, "The code shall be liberally construed to
carry out the policies of the state which are to: Consider the safety and welfare of a child
to be paramount in all proceedings under the code." (Emphasis added.) K.S.A. 2019
Supp. 38-2201(b)(1). But the policies behind the KCCC are not at issue here. Rather, the
issue is simply how to construe K.S.A. 2019 Supp. 38-2268(b)(1), a provision which
outlines the process for executing a relinquishment of parental rights.
The panel's interpretation of subsection K.S.A. 2019 Supp. 38-2268(b)(1) was,
"Under this plain and unambiguous statutory language, an effective relinquishment of
Mother's parental rights to the child is not predicated on a written acceptance by the
secretary of DCF." The panel went on to say, "The secretary's failure to sign Mother's
voluntary relinquishment form does not vitiate Mother's relinquishment of her rights to
her child. Here, the issue is whether the district court can rely on the voluntary
relinquishment signed by Mother." In re P.R., 2019 WL 2306763, at *4.
We agree that under the plain language of subsection K.S.A. 2019 Supp. 38-
2268(b)(1), DCF's written acceptance of the child is not required for an effective
relinquishment of parental rights. The statute says "if" DCF accepts a parent's
relinquishment, not that it must accept a parent's relinquishment. The statute clearly does
not tie relinquishment efficacy to agency acceptance of the child. Nor does the statute say
when DCF acceptance should take place if the agency does in fact accept the child for
adoption purposes.
DCF's counsel explained in an email why the agency had not accepted P.R. The
agency was prepared to do so but was waiting for termination of the parental rights of the
known and unknown putative fathers to begin the adoption process. This is consistent
with logic and with the statute because DCF is in no position to facilitate adoption of a
child unless and until the rights of both parents have been terminated. DCF cannot
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assume the role of in loco parentis when the rights of one or more of the child's natural
parents remain intact.
Furthermore, pursuant to K.S.A. 2019 Supp. 38-2268(b)(6), T.R.'s relinquishment
would not terminate her parental rights if it turned out the father's rights were not
terminated. Permanency is a process in CINC cases whose outcome is not certain until it
has finally occurred. Many outcomes are possible, including reintegration, voluntary
relinquishment, involuntary termination, adoption, guardianship, etc. DCF must wait for
the events involving both parents to run their course before proceeding with adoption.
The fact that DCF delayed its acceptance of P.R. did not however divest the
agency of P.R.'s temporary and ongoing legal custody. P.R. was initially placed by the
court into DCF's temporary legal custody on the day he was removed from his mother's
care in March 2015. And he remained in DCF's legal custody until the day the court
placed him with the foster parents at the conclusion of the May 2018 motion hearing.
Contrary to T.R.'s assertion, P.R. was never without a legal custodian in this case.
Under K.S.A. 2019 Supp. 38-2268(b)(1), DCF's failure to sign the relinquishment
form simply kept the agency from standing in loco parentis for P.R. (in the place of the
parent) and having the authority to place him for adoption. The district court eventually
did that itself pursuant to K.S.A. 2019 Supp. 38-2270 which provides that when parental
rights have been terminated, and it appears that adoption is a viable alternative, the court
shall either grant adoption authority to DCF (or other lawfully organized adoption
agency) or grant custody of the child to proposed adoptive parents and consent to their
adoption of the child. On June 1, 2018, the court filed its order placing P.R. directly with
the foster parents, and on June 25, 2018, the court filed its written consent to P.R.'s
adoption by the foster parents.
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T.R.'s relinquishment of parental rights was knowingly made.
T.R. also asserts in her petition for review that "when she read and signed the
Relinquishment of Minor Child to Agency she understood that she was relinquishing her
parental rights to DCF for DCF to consent to the adoption of her child, and that said
relinquishment would become effective upon DCF accepting her relinquishment in
writing." (Emphasis added.) Because DCF never signed the relinquishment, and because
the district court and not DCF placed P.R. for adoption, T.R. asserts her relinquishment
was therefore not knowingly made.
This issue presents a mixed question of fact and law to which appellate courts
apply a bifurcated standard of review. A district court's factual findings are examined to
determine if they are supported by substantial competent evidence. Its conclusions of law
are reviewed de novo. In re Adoption of X.J.A., 284 Kan. 853, Syl. ¶ 8, 166 P.3d 396(2007); In re Guardianship of B.H., 309 Kan. 1097, 1107, 442 P.3d 457 (2019).
This court has said that a knowing relinquishment is one made by a parent who is
fully advised of his or her rights and the consequences of the act of relinquishment. The
trial court is in "the unique position of being able to render an impartial determination of
the parent's true intent and desire and to protect the parent's rights." A relinquishment
which follows a full advisory of rights and consequences, and which is voluntarily given,
should be approved by the court. Conversely it should be rejected if it fails to meet those
standards. In re A.W., 241 Kan. at 816.
T.R. has never contended she did not know what she was doing on March 30,
2017, when she signed her relinquishment of P.R. The form itself would defeat that
argument. Its language makes clear that T.R. was giving up "all custody and other
parental rights" to her child, including "the right to receive notice of any subsequent
adoption proceedings involving the child." And her attorney's signature and certificate on
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the relinquishment form reinforces the point that T.R. was fully advised and aware that
she was "permanently giving up all parental rights to the child" and "that such is her
intention and desire."
Instead, she contends that the efficacy of her relinquishment was conditioned upon
a future event (DCF's signature on the relinquishment form) that never occurred. She
seems to argue that although her relinquishment was initially effective, it later became
ineffective when the court and not DCF made the adoption placement decision for P.R.
But the KCCC makes no provision for a conditional relinquishment of parental
rights, except when the relinquishment is made on the belief the other parent would
relinquish and does not, or the other parent is not found unfit. K.S.A. 2019 Supp. 38-
2268(b)(5). As noted above, the effect of voluntary relinquishment is a complete and
final severance of the parent/child relationship. Although T.R. may have expected and
anticipated that DCF would be making the adoption placement decision, she had to
understand when she signed the relinquishment form that she was empowering someone
or some entity other than her to make that decision.
T.R. knew as early as a hearing on October 2, 2017, that the State wanted the court
to terminate parental rights so that P.R. could be adopted rather than simply having a
guardian or custodian appointed for him. Knowing the State's position and knowing that
DCF had not signed the relinquishment form indicating its acceptance of P.R., she
nonetheless filed her relinquishment on January 8, 2018. She then confirmed at the
January 16, 2018 hearing that the relinquishment was filed, and she was standing by it.
It was not until July 15, 2018, when she filed a motion for relief from the court's
order of termination, that she contended her March 2017 relinquishment was invalid.
Coincidentally or perhaps not, this was just several weeks after the foster parents had
filed their petition to adopt P.R. and the court had filed its consent to that adoption.
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T.R. may have assumed that P.R.'s aunt and uncle would be able to adopt him, but
this assumption would not have made her relinquishment unknowing. As noted above,
the court conducted an extensive evidentiary hearing to determine whether it was best for
P.R. to be adopted by the foster parents or be adopted by the maternal aunt and uncle.
The district court determined based on substantial competent evidence that P.R.'s best
interests were served by placement with the only parents he had known since he was five
weeks old and the people with whom he had developed a strong emotional bond.
As the Court of Appeals panel here noted, "The requirements of a knowingly
made relinquishment of parental rights [do] not include a requirement that the
relinquishing parent be fully informed of what will be the ultimate disposition of the case,
i.e., the specific ultimate placement of the child thereafter." In re P.R., 2019 WL
2306763, at *5. And as noted above, K.S.A. 2019 Supp. 38-2268(b)(1), (4) provide that
the rights given up by a relinquishing parent include the right to consent to adoptive
placement or even to be notified of later adoption proceedings.
There is substantial competent evidence in the record to support a finding that
T.R.'s relinquishment of parental rights was voluntary, fully informed, and knowingly
made. This includes the plain language of the relinquishment form itself, the certification
of T.R.'s attorney regarding T.R.'s understanding of its effect, and the district court's
confirmation with T.R. in open court that she stood by her relinquishment.
The District Court Did Not Violate T.R.'s Due Process Rights.
T.R. next argues that she was denied procedural due process when it ultimately
came to the termination of her parental rights. She argues that because DCF never
accepted her relinquishment in writing, her parental rights were never terminated by
virtue of the relinquishment form. The district court should therefore have afforded her
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the opportunity of an evidentiary hearing at which the State would have the burden of
proving one or more of the statutory grounds for unfitness. We disagree.
T.R. was in fact present with counsel at the termination of parental rights trial
conducted on January 16, 2018. She had every right to hold the State to its burden of
proof. But she chose not to. Instead, she confirmed to the court that her voluntary
relinquishment of parental rights form had been filed of record and that she stood by the
same. At that point she was no longer a party to the proceeding. The hearing went
forward as to the putative fathers because they had not been identified and had certainly
not relinquished their rights. At some point during the hearing T.R. and her counsel were
excused by the court from further appearances in P.R.'s CINC case.
This court has already determined that DCF written acceptance of a parent's
relinquishment is not required under K.S.A. 2019 Supp. 38-2268(b). And this court has
noted that a parent's voluntary relinquishment is one of the three statutory methods by
which parental rights are terminated. See Clear, 248 Kan. 109, Syl. ¶ 5; Bohrer, 286 Kan.
at 914. T.R.'s parental rights were terminated here not by any judicial finding of parental
unfitness but by her own knowing and voluntary relinquishment.
Contrary to T.R.'s assertion, she was not denied the benefit of due process along
the way. It is clear from the history of the CINC case detailed above that T.R. was
afforded consistent procedural due process throughout the three plus years the case was
pending in the district court from and after March 2015. She retained counsel shortly
after her appearance at the initial temporary custody hearing. And the record reflects that
T.R. appeared with or by her counsel at every scheduled hearing in the case until her
relinquishment of parental rights was acknowledged by the district court in January 2018
and she was excused from the case.
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As this court noted recently, "To establish a due process violation, Mother must
show she was both entitled to and denied a specific procedural protection." In re A.A.-F.,
310 Kan. at 145. After T.R. relinquished her parental rights in this case she was not
entitled to further notice of hearings or an opportunity to be heard. The KCCC makes that
clear, and the district court made that clear to T.R. at the May 2018 motion hearing when
she showed up without counsel.
T.R. was no more entitled to procedural due process following her relinquishment
than a criminal defendant is entitled to a jury trial after entering a successful plea of
guilty or nolo contendere. It is an either/or proposition, not both. Relinquishment is a
statutory method of ending the parent/child relationship without requiring the State to
prove a parent's unfitness. T.R. terminated her own parental rights voluntarily, and in
doing so eliminated the necessity for a termination hearing or any further hearing as to
her parental rights. T.R.'s claim that she was denied due process lacks merit.
Remaining Issues Not Considered
In her petition for review T.R. raises additional issues that will not be addressed by
this court. T.R. asserts that her due process rights were violated by the district court at the
January 2018 termination hearing when it granted an oral motion after she and her
counsel had been excused from the hearing. She next argues that the trial court erred by
rescinding DCF's authority to proceed with P.R.'s adoption. And she asserts lastly that the
trial court erred by proceeding under K.S.A. 2019 Supp. 38-2270 after her relinquishment
which she believes did not result in the termination of her parental rights.
With respect to cases on petition for review, this court's rules provide, "The
Supreme Court will not consider issues not raised before the Court of Appeals . . . ."
Supreme Court Rule 8.03(b)(6)(C)(i) (2020 Kan. S. Ct. R. 54). The court stressed the
application of this rule by holding: "Any issue that was not presented to the Kansas
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Court of Appeals is deemed abandoned." State v. Ward, 292 Kan. 541, Syl. ¶ 10, 256
P.3d 801 (2011). The Court of Appeals was not presented with and did not address any of
these three issues. Nor shall we.
CONCLUSION
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
MICHAEL E. WARD, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,745 under the authority vested in
the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R.
Nuss.
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