In re Adoption of E.S. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,301
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Adoption of E.S., A Minor Child.
MEMORANDUM OPINION
Appeal from Riley District Court; KEITH L. COLLETT, magistrate judge. Opinion filed July 9,
2021. Affirmed.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Miranda B. Johnson, of Caffey, Johnson & Ingels, P.A., of Manhattan, for appellee.
Before ARNOLD-BURGER, C.J., GARDNER and ISHERWOOD, JJ.
PER CURIAM: E.S.'s stepmother, petitioned the court to allow her to adopt E.S. In
support, she alleged that E.S.'s natural mother had failed to assume her parental duties for
the two-year period preceding the filing of the petition. As a result, she argued, natural
mother's consent to the adoption was unnecessary. In contesting the adoption, natural
mother argued that she did the best she could given the circumstances, but that E.S.'s
natural father hindered her abilities to assume her parental duties. The district court
granted the adoption, and the natural mother appeals.
Because substantial evidence supports the district court's decision that clear and
convincing evidence showed Mother refused or failed to assume the duties of a parent for
two consecutive years preceding the filing of the petition, we affirm the district court's
decision.
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FACTUAL AND PROCEDURAL HISTORY
In July 2018, V.S. (Stepmother) petitioned the court to allow her to adopt her
stepchild, E.S. (Child), age 5. In her petition, Stepmother alleged that the consent of the
natural mother, A.R. (Mother), was not required because she had failed or refused to
assume her parental duties for two consecutive years. Stepmother's husband, R.S.
(Father), signed and submitted his consent to the adoption. Included with the petition was
a motion to terminate Mother's parental rights.
Mother responded to the petition, denying that she had failed or refused to assume
the duties of a parent.
The district court heard the matter in March 2019. Mother testified that at the time
of the hearing she had recently gotten out of a rehabilitation program and was living with
her parents. She planned to move to one of her family's rental properties soon. Before her
time in rehabilitation, Mother spent nine months in the Topeka Correctional Facility after
violating her parole. Mother explained that her original sentence was nine months and
that she did not receive good-time credit while incarcerated because of several
disciplinary write-ups.
As for the history of the case, Mother explained that in 2015 she was living with
Father, her three daughters from a prior relationship, and Child. In September 2015, the
State filed a Child in Need of Care (CINC) case, and the court temporarily placed all her
children with Mother's parents. The CINC case involved an allegation that Mother was
using illegal drugs. Ultimately, the court placed Child in Father's custody while the
daughters stayed with Mother's parents.
In a custody case revolving around Child, an ex parte temporary order issued in
May 2016 stated that Mother could have supervised visits with Child through Sunflower
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Bridge. The district court issued an order in July 2016, which stated that Mother could
have supervised parenting time and that Father could choose the supervising party—the
order did not mention Sunflower Bridge. According to Mother, after the district court
entered the final order, she called Sunflower Bridge to set up visits. Mother testified that
because the order did not specifically say that Sunflower Bridge was the supervising
party, she was told that they could not answer many of her questions.
In May 2017, Mother moved to modify the custody arrangement and sought
unsupervised parenting time. The court scheduled a hearing in June 2017, but Mother did
not attend. The court entered no other orders in the case. According to Mother, the
motion never reached a hearing because she was incarcerated and because of a conflict
with the judge handling the case. In a response to Mother's motion, Father acknowledged
that Mother had tried to contact him at various times. In one attempted contact, which
Mother described as an incidental meeting outside Father's home while Mother was
visiting a friend who lived near Father, Father pointed a taser at her and told her to get off
the property and never come back. Father contested Mother's version of this contact,
saying that he did not point a taser at her. Mother also testified that she was unable to
speak to Father about the visitations because he changed his phone number.
Mother last saw Child in December 2017 when she visited the child at her parent's
house. During that visit, Father said he did not want to discuss the next time Mother
could visit Child. At a later point, Mother said that the December visit happened in 2016.
Mother then testified that she was in custody from December 2017 to February 2018. At
some point between then and the hearing, the court issued a no contact order between
Father and Mother. Mother explained that the last time she tried to call and talk to Child,
Father reported her for violating the no contact order. There was also a period where
Mother did not have contact information for Father.
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As to her court ordered child support payments, Mother testified that she had tried
to make payments but that the Kansas Payment Center did not have her case on file, so
she was unable to do so. Nor had she sought to send Father money directly because she
was unsure where he lived. Nor did she send it to Father's mother because she was
worried about violating court orders by contacting her as an intermediary to Father.
Mother testified that she did purchase cards and gifts for the Child and would give
them to her parents so that they could deliver them to Child. She testified that she would
not sign them because she did not want to violate any no contact orders. She also wrote
Child cards while she was incarcerated, but she sent them to her parents and told them to
hold onto them because she was uncertain how to handle it with the pending case.
Mother also discussed her criminal history. She was found guilty of misdemeanor
theft in 2016 after stealing from a Walmart. The State charged her with domestic battery
in 2016 but that was ultimately dismissed. Also in 2016, the court convicted her of
forgery because she was writing checks using Father's checking account. Around the
same time, the State charged Mother with theft of Father's vehicle but that was also
dismissed. She also had a theft conviction in a separate 2016 case. There was also a
charge for violating a protective order, with Father as the victim, which was dismissed.
The State charged her with burglary of a motor vehicle and theft in 2017—the case which
ultimately landed her in prison. In 2018, the State charged Mother with felony theft of a
vehicle.
Mother explained that during this period she was using methamphetamine.
According to Mother she started using methamphetamine when she was 18 but stopped
when she first became pregnant and started using again around the time of the initial
CINC case. As of the hearing, Mother stated that she was 10 months sober, 9 of which
she spent in custody. Mother also explained that she had a pending case for alleged
burglary or multiple burglaries. Mother testified that she had changed by taking active
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steps in recovery, staying clean, looking for work, seeking counseling and therapy, taking
parenting and domestic classes, and continuing with outpatient therapy.
At the hearing Kathy Ryan, a part-time employee for Sunflower Bridge, explained
that one of Sunflower Bridge's offered services is supervising scheduled parental
visitation. But before Sunflower Bridge will supervise parental visitation the parents need
to participate in an intake procedure. According to Ryan, Father called Sunflower Bridge
several times in the preceding three years to set up parenting time with Mother. Ryan
explained that his calls were generally to see whether Mother had scheduled her intake
"because without her scheduling the intake there really was no point with him scheduling
the intake, because we couldn't proceed."
According to Ryan, Mother never scheduled an intake. Nor could Ryan recall
Mother ever calling Sunflower Bridge. Ryan explained that Sunflower Bridge generally
requires a court order before beginning to work with parents and that the court order
needed to list Sunflower Bridge as the supervising party. Still, if both parties agree to
voluntary supervised visits with Sunflower Bridge, then a court order is not required.
Ryan also noted that one party cannot complete the intake process for another party or set
up visitation for the other party without a completed intake.
J.H., the father of Mother's three daughters, also testified at the hearing. J.H.
described a time when the maternal grandparents (Grandparents) were supposed to be
supervising a visit between Mother and her children, but Grandparents were not present.
He also explained that Mother's phone number changed multiple times between 2016 and
2018. As J.H. put it, it seemed like she had a different number every time she would get
out of custody. And often the most recent number he would have would not be in service
if he called.
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Father testified that he first called Sunflower Bridge about a week after the
temporary orders designating Sunflower Bridge as the supervising party. Father
explained that maternal grandmother would watch Child during the day on occasion and
that he told Grandparents that Mother could only visit Child with Sunflower Bridge as a
supervisor. Even so, Grandparents allowed Child to visit Mother while he was at their
house.
Father also testified that during the December visit between Mother and Child he
reiterated to Mother that she needed to coordinate future visits through Sunflower Bridge.
Father testified that Mother would call and leave messages that said nothing about
Child. If Father called Mother back the number would either be disconnected, or the call
would not go through. In March 2017, Mother arrived at Father's home at around 10:30 at
night. Father testified that he told Mother, "'Not now'" and shut the door.
Between July 2016 and July 2018, Father remembered only receiving one letter
for Child from Mother. Father acknowledged that presents had been left on his porch for
Child but said that they were addressed from Grandparents. Father also acknowledged
that in February 2018 he moved and did not update the court or Mother with his new
address on the advice of his former counsel.
Stepmother testified that in 2017 she picked up Child from daycare and took him
to Father's home. Stepmother noticed Mother nearby and got "frazzled" because she was
not expecting it. She quickly grabbed Child out of the car, bumping his head in the
process, and took him inside. As she did, Mother asked if she could speak with him, but
Stepmother said that it was not her choice and went inside.
After hearing the evidence, the court found that any contact between Mother and
Child in the relevant period was incidental, including the December 2016 visit. As a
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result, the court terminated Mother's parental rights and granted Stepmother's petition for
adoption. Mother appeals.
We will add facts as necessary.
ANALYSIS
On appeal, Mother asserts that the district court erred by not considering all
relevant circumstances when it terminated her parental rights and by failing to find that
Father interfered with her ability to maintain a relationship with E.S. We begin with our
standard of review.
A court may terminate a person's parental rights incident to an adoption if it finds,
by clear and convincing evidence, that any one of several statutory factors is present. See
K.S.A. 2020 Supp. 59-2136(h)(1); see also K.S.A. 2020 Supp. 59-2136(b) (section
applicable to father also applicable to mother); In re Adoption of Baby Girl P., 291 Kan.
424, 431, 242 P.3d 1168 (2010). As an appellate court, we view all the evidence in the
light most favorable to the prevailing party—here Stepmother—to determine whether
there was clear and convincing evidence to support the district court’s findings. Clear and
convincing evidence means that the truth of the facts asserted is highly probable. We do
not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine
questions of fact. In re Adoption of C.L., 308 Kan. 1268, 1278-79, 427 P.3d 951 (2018).
Kansas public policy generally disfavors nonconsensual adoptions unless the parent has
failed to assume the duties of a parent for two consecutive years immediately preceding
the filing of the petition.
Generally, public policy favors maintaining the rights of a natural parent in the
case of a nonconsensual adoption. See In re Adoption of G.L.V., 286 Kan. 1034, Syl. ¶ 6,
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190 P.3d 245 (2008). Yet that public policy is not without limit. In a contested stepparent
adoption, the district court may terminate a natural parent's parental rights if there is clear
and convincing evidence that any one of several factors are present. Relevant here, the
natural parent's parental rights may be terminated if the parent "has failed or refused to
assume the duties of a parent for two consecutive years immediately preceding the filing
of the petition." K.S.A. 2020 Supp. 59-2136(h)(1)(G). When terminating a parent's
parental rights, the district court "(A) [s]hall consider all of the relevant surrounding
circumstances; and (B) may disregard incidental visitations, contacts, communications or
contributions." K.S.A. 2020 Supp. 59-2136(h)(2). Our court has recognized the
distinction between being hindered in parenting a child as opposed to being unable to
provide support. See In re Adoption of M.D.K., 30 Kan. App. 2d 1176, 1180-81, 58 P.3d
745 (2002) (There is "a significant distinction between [a parent] being hindered in
efforts to contact [another parent] and being unable to provide support.").
Mother argues that she has not willfully failed to assume her parental duties but
that Father thwarted her attempts. For support, Mother cites In re Adoption of F.A.R., 242
Kan. 231, 747 P.2d 145 (1987). So we turn to the facts and findings in that case and its
application to Mother's circumstances here.
In F.A.R., the natural father was imprisoned, and the stepfather filed for adoption
of two children arguing that natural father's consent was not required because he failed to
assume his parental duties for two consecutive years. Natural father was facing several
decades in custody at the time. He was not paying child support. Natural father was
entitled to reasonable visitations and later sought specific visitation rights. The district
court, in a different case, granted specific visitation as to one of the children. Even so,
after the third visit the child returned visibly upset and did not want to visit the natural
father again. The mother did not force the child to go to visitation, and the court
discontinued visitations.
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Ultimately, the district court denied the stepfather's petition finding that the natural
mother's actions constituted interference with the natural father's parental rights. In doing
so, the court noted that father sought to expand his visitation rights but that his attempts
were denied, that mother did not try to contact natural father and, at times, natural father
did not know the whereabouts of the children, that the mother returned a proffered
support payment, and that natural father's last contact related to his children was a photo
of the children with a note asking him to back off on his attempts to contact the mother
and children.
Stepfather appealed, seeking reversal of the district court's ruling. The Kansas
Supreme Court denied the appeal, finding that, when viewing the evidence in a light most
favorable to the prevailing party—the natural father—there was enough evidence to
support the district court's ruling. 242 Kan. at 237, 239-40. In doing so, the court found
that the natural father tried to learn the whereabouts of his children, wrote letters to the
mother but received no response, sought to make a support payment which mother
rejected even though he was not under a court order to provide payment, and that mother
returned his attempted written communications to him. When viewing the evidence in a
light most favorable to the natural father, the Kansas Supreme Court held that the trial
court's conclusion was supported by the evidence. 242 Kan. at 239-40.
The question is the same here—was there sufficient evidence, when viewing the
evidence in a light most favorable to Stepmother, to find that Mother failed to assume the
duties of a parent for two consecutive years immediately preceding the filing of the
petition. When viewing the evidence in that light, the facts are significantly different than
those in F.A.R. and we have no hesitation affirming the district court's decision.
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There was substantial evidence to show that Mother refused or failed to assume the
duties of a parent for two consecutive years preceding the filing of the petition.
Stepmother filed her petition in July 2018, so the relevant period was July 2016 to
July 2018. In that period, there was very little contact between Mother and Child, and as
the court noted any of that contact could be considered incidental. The longest visitation
happened near Christmas in 2016 where Mother and Child spent a couple of hours
together. Beyond that, there was some incidental contact between Mother and Child when
Mother would visit while maternal grandmother was babysitting Child. Father did not
know about, or sanction, those visits.
Mother argues that this incidental contact stems from Father interfering with her
ability to visit Child. She points to the protection orders in place between her and Father,
Father changing his phone number and moving without giving her updated information,
and Father refusing to speak with her as evidence that Father interfered with her ability to
visit Child. And while she raises a valid point—contact between Father and Mother was
difficult—it was not enough to sway the district court.
While there were protection orders in place between Father and Mother, the orders
allowed Mother to communicate with Father about Child. Yet it seemed that whenever
Mother sought to communicate with Father, she did not mention that she was calling
about Child. Father testified that when he tried to call Mother back the call would not go
through, or the number would be disconnected. At one point, Mother knocked on Father's
door late at night and he just told her, "'Not now.'" As for Mother's argument that Father
changed his phone number and moved, that occurred in February 2018, late in the
relevant period. During that period, Father remained represented by counsel, although
Mother notes that she tried to contact Father's counsel but did not receive an answer back.
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Mother also argues that she was unable to schedule visitation with Child through
Sunflower Bridge because there was never a final court order designating Sunflower
Bridge as the supervising party. But Ryan testified that Sunflower Bridge would
supervise for two consenting parties without a court order but that Mother never called to
complete an intake form.
Similarly, there was an issue with the child support payments not being set up
through the Kansas Payment Center. Mother did not provide any child support payments
throughout the relevant period. As the district court noted, the August 2016 journal entry
contained the relevant information regarding child support payments and the Kansas
Payment Center even if the Kansas Payment Center account were not set up. Mother did
not seek to setup an account with the Kansas Payment Center or attempt to have her
attorney do so. Beyond that, there were not any attempted direct payments from Mother
to Father or any indication that Mother was holding money back so she could pay a larger
sum once an account was created.
Mother faced roadblocks in supporting and visiting Child. But from the evidence
presented to the district court the roadblocks were not absolute bars. As we have noted,
there is a significant difference between being hindered in supporting one's child and
being unable to provide support. See In re of Adoption of C.S., 57 Kan. App. 2d 352, 364-
65, 452 P.3d 858 (2019) (mother's request that father stop calling did not relieve father of
need to provide financial support). Likewise, there is a difference in being hindered while
trying to set up visitation time and being unable to do so entirely. While Mother faced
difficulties in providing parental care, she was not absolutely barred from doing so.
When viewing the district court's decision in a light most favorable to Stepmother,
there was substantial evidence to support the district court's decision that clear and
convincing evidence existed that showed that Mother refused or failed to assume the
duties of a parent for two consecutive years preceding the filing of the petition. See In re
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Adoption of C.L., 308 Kan. at 1278-79. The district court did not err in terminating
Mother's parental rights and granting Stepmother's petition for adoption.
Affirmed.
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