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In re Adoption of H.C.H.

Supreme Court of Kansas

July 5, 2013

In the Matter of the Adoption of H.C.H., a Minor Child.

SYLLABUS

1. Adoption was not recognized at common law, and subject matter jurisdiction over such a proceeding is created by statute. Consequently, the determination of subject matter jurisdiction over an adoption proceeding requires the interpretation and application of statutes and presents a question of law over which appellate courts exercise unlimited review.

2. The fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. If a statute is plain and unambiguous, there is no need to resort to statutory construction and a court will neither speculate regarding legislative intent nor read the statute to add something not readily found in it. Where there is ambiguity, a court may use legislative history, canons of construction, or other background considerations to construe the legislature's intent.

3. K.S.A. 59-2127, the jurisdiction provision of the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., controls the determination of jurisdiction in adoption proceedings where an adoption or child-custody proceeding involving the child is pending in another state or where the court of another state has made a child-custody determination involving the child. In determining jurisdiction over adoption proceedings K.S.A. 59-2127 controls and the Uniform Child-Custody Jurisdiction and Enforcement Act, K.S.A. 2012 Supp. 23-37, 101 et seq., applies only to the extent K.S.A. 59-2127 incorporates its provisions.

4. The determination of whether the court of another state has exclusive, continuing jurisdiction over a child-custody determination requires factual findings and cannot be made for the first time on appeal.

5. In determining whether a Kansas court has jurisdiction over an adoption proceeding involving a child who is the subject of a child-custody order or decree issued by the court of another state, a Kansas court must consider both K.S.A. 59-2127(b)(1)(A) and (b)(1)(B). A Kansas court may exercise jurisdiction upon determining either that the other court does not have continuing jurisdiction over the child-custody order or decree or that the other court does not have jurisdiction over the adoption proceeding.

6. The phrase "substantially in conformity with subsection (a)(1) through (4)" in K.S.A. 59-2127(b)(1)(B) does not cross-reference an existing or repealed statutory provision and is surplusage. K.S.A. 59-2127(b)(1)(B) should be read to apply if a court of another state "does not have jurisdiction over a proceeding for adoption or has declined to assume jurisdiction over the proceeding."

7. An appellate court reviews a district court's decision to exercise or decline jurisdiction under K.S.A. 2012 Supp. 23-37, 207 for an abuse of discretion. Judicial discretion is abused, among other ways, if the judicial action is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion.

8. In a stepparent adoption proceeding where a district court is determining if a court of another state that had issued a child-custody order or decree is the more appropriate forum to exercise jurisdiction, the court must consider whether the other state would have jurisdiction over the adoption or whether Kansas should retain jurisdiction over the adoption pending the other state's child-custody determination.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 13, 2012. Appeal from Saline District Court; Jerome P. Hellmer, judge.

Robert A. Martin, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, argued the cause and was on the briefs for appellant stepfather.

Lee A. Legleiter, of Hampton & Royce, L.C., of Salina, argued the cause, and Russel B. Prophet, of the same firm, was with him on the brief for appellee.

OPINION

Luckert, J.

This appeal arises from a district court's ruling that Kansas courts do not have jurisdiction over this stepparent adoption because a Mississippi court had entered a child-custody order involving the child approximately 12 years earlier and had not relinquished jurisdiction. The district court also determined that a Mississippi court is a more appropriate forum to hear the adoption. The stepfather appealed, arguing the district court failed to apply K.S.A. 59-2127, which is the jurisdiction provision of the Kansas Adoption and Relinquishment Act (KARA), K.S.A. 59-2111 et seq. He asserted that under that provision a Kansas court could and should determine the Mississippi court does not have continuing jurisdiction over the child's custody and does not have jurisdiction over this adoption proceeding. The Court of Appeals rejected these arguments and affirmed, holding that K.S.A. 59-2127 conflicts with provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 2012 Supp. 23-37, 101 et seq., and that the UCCJEA, 9 Pt. 1A U.L.A. § 101 et seq. (1999), controls over the conflicting KARA jurisdictional provision. Under the UCCJEA provision, only a Mississippi court can determine it no longer has continuing jurisdiction to modify the child-custody order.

On review of the Court of Appeals' decision, we conclude the more specific adoption jurisdiction provision in the KARA, K.S.A. 59-2127, controls the determination of whether a Kansas court has jurisdiction over an adoption and the UCCJEA applies to this determination only to the extent K.S.A. 59-2127 incorporates its provisions. Under K.S.A. 59-2127, a Kansas court can and should determine if the Mississippi court has continuing jurisdiction over the child-custody order or decree or, alternatively, if it has jurisdiction over this adoption. We also conclude the district court erred in failing to apply K.S.A. 59-2127 and in determining Mississippi is a more convenient forum for the adoption proceeding. Because we cannot declare these errors to be harmless, we reverse and remand this case, directing the district court to make the findings required by K.S.A. 59-2127.

Facts and Procedural Background

H.C.H. (Child) was born in Mississippi in 1997 to C.H. (Father) and C.M. (Mother). At the time of the birth, Mother and Father were married, but they divorced in 1999. The Chancery Court for the First Judicial District of Hinds County, Mississippi, granted the divorce and entered a child-custody order; the court granted residential custody to Mother and allowed for supervised visitation by Father.

In 2002, Mother and Child moved to Saline County, where they have resided since that date. In 2010, Mother married G.M. (Stepfather), a Kansas resident.

On October 3, 2011, Stepfather filed a petition for the stepparent adoption of Child in Saline County District Court. See K.S.A. 59-2112(d) (defining "stepparent adoption" as "the adoption of a minor child by the spouse of a parent with the consent of that parent"). In his verified petition, Stepfather alleged he was a resident of Saline County, Kansas, "and that is the basis for venue in this Court. The child additionally resides in Saline County, Kansas with her mother." Stepfather requested termination of Father's parental rights and a determination that Father's "consent is not required as permitted by K.S.A. [2012] Supp. 59-2136 because the natural father has failed or refused to assume the duties of a parent for two (2) consecutive years preceding the filing of the Petition for Adoption." See K.S.A. 2012 Supp. 59-2136(d) ("In a stepparent adoption, . . . the consent of [the natural] 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"); K.S.A. 2012 Supp. 59-2136(e) ("Where appropriate, the request to terminate parental rights may be contained in a petition for adoption.").

Father filed an answer objecting to the adoption and the termination of his parental rights and asserting that his consent was necessary. He did not raise the defense that the court lacked personal jurisdiction over him. See K.S.A. 2012 Supp. 23-37, 201(c) ("Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination."). He did, however, challenge the court's subject matter jurisdiction over the adoption and alleged the Chancery Court of Hinds County, Mississippi, has exclusive, continuing jurisdiction. Additionally, both parties to this appeal indicate that Father filed a motion for contempt and modification of the custody order in the Mississippi court, although there is no factual support for this in the record on appeal.

Mother consented to the adoption, and after Father filed an answer asserting his consent was necessary, mother filed an affidavit. In the affidavit, she stated she and Child had resided in Kansas since August 2002; they had not been residents of the State of Mississippi for over 9 years; Father "was well aware" of their move to Kansas; and Father had no contact with Child since 2002, except to mail a book, statue, card, and rosary to Child "shortly after" December 2007. She further stated that Stepfather "is a resident of the State of Kansas and to my knowledge has been such for his entire life."

After these filings, the Saline County District Court requested briefs from the parties regarding jurisdiction and, after hearing arguments, declined to exercise jurisdiction. The court reasoned that "adoption proceedings are custody matters subject to the [Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq., ] and Kansas child custody law." For support, the court cited In re Adoption of Baby Girl B., 19 Kan.App.2d 283, 867 P.2d 1074 (applying UCCJA to determine jurisdiction in adoption case), rev. denied 255 Kan. 1001 (1994), and In re L.C., 18 Kan.App.2d 627, 857 P.2d 1375 (1993) (applying UCCJA to determine jurisdiction in termination of parental rights case). The court then found that the Mississippi Chancery Court had established that Mississippi was the child's "home state . . . and no Kansas Court may exercise any jurisdiction over [the] potential adoption until the Mississippi court transfers venue to Kansas in accordance with K.S.A. 38-1353." Finding no evidence that the Mississippi court had "divested itself of jurisdiction, " the district court determined "all matters regarding [Child] remain under the sole jurisdiction of the Mississippi court." In addition, the district court concluded "Saline County, Kansas is not a more convenient forum for this litigation." Consequently, the district court dismissed Stepfather's petition for adoption.

Court of Appeals' Decision

Stepfather appealed to the Court of Appeals, alleging the district court's reliance on the UCCJA was in error because the UCCJA is no longer in effect in Kansas and Kansas courts have jurisdiction over the adoption under the jurisdiction provision of the KARA, K.S.A. 59-2127. The Court of Appeals rejected these arguments and affirmed the district court's decision. In In re Adoption of H.C.H., No. 107, 383, 2012 WL 2926169 (Kan. App. 2012) (unpublished opinion).

The Court of Appeals recognized that the KARA includes provisions regarding jurisdiction but concluded those provisions are "inconsistent with the workings of" the UCCJEA, which has replaced the UCCJA cited by the district court. The Court of Appeals concluded that jurisdiction should be determined by the UCCJEA. Adoption of H.C.H., 2012 WL 2926169, at *5.

In discussing controlling provisions of the UCCJEA, the Court of Appeals began its analysis with K.S.A. 2012 Supp. 23-37, 206, which is a recodification of the statute cited by the district court, K.S.A. 38-1353. K.S.A. 2012 Supp. 23-37, 206, which addresses jurisdiction when there are simultaneous proceedings in two states, is Kansas' codification of UCCJEA § 206. See 9 Pt. 1A U.L.A. § 206, pp. 680-81 (1999). Our Kansas statute was interpreted by the Court of Appeals as requiring a determination of whether a custody proceeding had been commenced in another state having jurisdiction in conformity with the UCCJEA. Adoption of H.C.H., 2012 WL 2926169, at *2.

The Court of Appeals then dismissed Stepfather's arguments that Mississippi no longer has exclusive, continuing jurisdiction because it has not been Child's home state since 2002. The court discussed K.S.A. 2012 Supp. 23-37, 203 (UCCJEA § 203), which addresses jurisdiction to modify child-custody determinations, and noted Mississippi's exclusive jurisdiction would be lost only if a Mississippi court were to make the determination it no longer has exclusive, continuing jurisdiction. Citing Mississippi's statute that codified UCCJEA § 202, the court concluded: (1) The Mississippi court has not determined it no longer has jurisdiction and (2) Mississippi could exercise continuing jurisdiction because Father lives in Mississippi. Adoption of H.C.H., 2012 WL 2926169, at *3-4; see K.S.A. 2012 Supp. 23-37, 202; Miss. Code Ann. § 93-27-202 (Rev. 2004; 2012 Supp.).

The Court of Appeals then discussed the conflict between (1) the UCCJEA, which requires a Mississippi court and only a Mississippi court to make the determination that Mississippi no longer has exclusive, continuing jurisdiction and (2) K.S.A. 59-2127(b)(1)(A), the jurisdiction statute in the KARA, which allows a Kansas court to determine whether a court in another state, such as Mississippi, does not have continuing jurisdiction. Adoption of H.C.H., 2012 WL 2926169, at *5. The Court of Appeals determined this conflict should be reconciled by giving priority to the provisions of the UCCJEA because the policy of the UCCJEA is to promote uniformity. The Court of Appeals then held "the Kansas trial court was not authorized to determine if the Mississippi court which made the initial child-custody determination retained exclusive continuing jurisdiction." Adoption of H.C.H., 2012 WL 2926169, at *5. Accordingly, the Court of Appeals concluded that Kansas lacked jurisdiction to modify the Mississippi custody order under the UCCJEA. Adoption of H.C.H., 2012 WL 2926169, at *4-6.

Stepfather timely appealed the Court of Appeals' decision. This court granted Stepfather's petition for review and has jurisdiction under K.S.A. 20-3018(b).

Standard of Review and Rules of Statutory Interpretation

The focus of this appeal is a question of law regarding whether the Saline County District Court had subject matter jurisdiction over this adoption proceeding. Adoption was not recognized at common law, and subject matter jurisdiction over such a proceeding is created by statute. In re Adoption of I.M., 48 Kan.App.2d 343, 344-45, 288 P.3d 864 (2012); In re Application to Adopt H.B.S.C., 28 Kan.App.2d 191, 196-97, 12 P.3d 916 (2000). Consequently, the determination of subject matter jurisdiction over this adoption proceeding requires the interpretation and application of statutes and presents a question of law over which this court exercises unlimited review. In re Adoption of X.J.A., 284 Kan. 853, 862, 166 P.3d 396 (2007); In re Adoption of Baby Boy M., 40 Kan.App.2d 551, 554-55, 193 P.3d 520 (2008).

Our interpretation of statutes is guided by several well-established rules. The fundamental rule is that "'the intent of the legislature governs if that intent can be ascertained.'" In re Adoption of G.L.V., 286 Kan. 1034, 1040, 190 P.3d 245 (2008). "'The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.'" 286 Kan. at 1040-41. If a statute is plain and unambiguous, there is no need to resort to statutory construction and this court will neither speculate regarding legislative intent nor read the statute to add something not readily found in it. Where there is ambiguity, a court may use legislative history, canons of construction, or other background considerations to construe the legislature's intent. In re Adoption of A.A.T., 287 Kan. 590, 627, 196 P.3d 1180 (2008).

As we will more fully discuss, the statutes at issue in this case are ambiguous in several respects, leading us to use legislative history, canons of construction, and other considerations in our analysis. These ambiguities are made apparent when one attempts to apply the rationale of the district court and the ...


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