of the judgment of the Court of Appeals in an unpublished
opinion filed December 2, 2016.
BY THE COURT
Kansas Constitution imposes a case-or-controversy
requirement. Part of that requirement, and a component of
subject matter jurisdiction, is standing. Standing concerns a
litigant's ability to seek a judicial remedy or to seek
judicial enforcement of a right or duty.
2. If a
statute provides the basis for asserting a right to seek a
judicial remedy, a multilevel analysis applies to the
determination of standing: First, courts analyze standing as
a matter of statute and, second, as a matter of common law.
To meet the common-law requirement, the party seeking to
establish standing must establish a sufficient stake in the
outcome to obtain judicial resolution of the controversy.
Meeting only one prong or the other is insufficient; both
prongs must be established.
Adoption, including adoption by a stepparent, was not
recognized at common law, and subject matter jurisdiction
over such a proceeding is created by statute. The Kansas
Adoption and Relinquishment Act (KARA), K.S.A. 59-2111 et
seq., sets out who should be given notice, who must consent,
and who may participate in a stepparent adoption proceeding.
Statutory standing in an adoption case on appeal is governed,
in part, by K.S.A. 2016 Supp. 59-2401a(a), (b), which allows
an "interested party" to bring an appeal from any
final order, judgment, or decree in an adoption proceeding.
Under K.S.A. 2016 Supp. 59-2401a(e)(1), (e)(7), or (e)(8), an
"interested party" in an adoption proceeding could
be a parent, the petitioner, or a person granted interested
party status by the court from which the appeal is being
Simply pressing a point without pertinent authority, or
without showing why it is sound despite a lack of supporting
authority, is akin to failing to brief an issue. Where the
appellant fails to brief an issue, that issue is waived or
nature of the burden to establish the elements of standing,
which rests with the party asserting it, depends on the stage
of the proceedings-whether the question of standing has
arisen at the pleading stage, through motions supported by
affidavits or other facts, or at the final stage of trial.
party asserting a claim on appeal bears the burden to
designate facts in the record on appeal to support that
claim; without such a record, appellate courts presume the
action of the district court was proper.
Under Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S.Ct. R.
53), when this court reviews a decision of the Kansas Court
of Appeals, it will not consider issues not presented or
fairly included in the petition for review.
Although Supreme Court Rule 165 (2018 Kan. S.Ct. R. 215)
requires a district court to make adequate findings and
conclusions regarding contested matters, a party also has the
obligation to object to inadequate findings of fact and
conclusions of law in order to preserve an issue for appeal
because this gives the trial court an opportunity to correct
any findings or conclusions that are argued to be inadequate.
from Johnson District Court; Michael P. Joyce, judge.
W. Booth, of Lenexa, argued the cause and was on the briefs
for appellant legal custodian-grandmother.
Suzanne Valdez, of Smith Legal, L.L.C., of Lawrence, argued
the cause and was on the briefs for appellee stepfather.
L. Baker, of Stilwell, was on the brief for amicus curiae
National Association for Grandparenting.
Lindsee A. Acton and Warren H. Scherich III, of Scherich
Family Law, PC, of Shawnee were on the brief for amicus
curiae National Association of Social Workers and the Kansas
Chapter of the National Association of Social Workers.
appeal, a paternal grandmother (Grandmother) appeals a
district court's determination that she was not an
interested party in a stepparent adoption proceeding relating
to her grandson, T.M.M.H. She acknowledges precedent that
holds a grandparent is not typically an interested party who
has standing in stepparent adoption cases. Nevertheless, she
asserts her circumstances distinguish her from other
grandparents and give rise to a number of legal theories that
serve as a basis for granting her interested party status and
recognizing her standing to challenge the stepparent
adoption. These theories depend on or arise from (1) court
orders in a separate grandparent visitation case that is not
the subject of this appeal, (2) agreements between the
Grandmother and T.M.M.H.'s biological mother (Mother),
and (3) the relationship that developed between Grandmother
and T.M.M.H. as a result of the custodial arrangements agreed
to by Mother and Grandmother or ordered by the court in the
reject these arguments on procedural grounds and conclude
Grandmother has failed to meet her burden of establishing her
and Procedural Background
who was born on November 5, 2006, was a few months old when
his father died in 2007. When T.M.M.H. was young, Mother and
Grandmother agreed he would live for a period of time with
Grandmother. We know little about this agreement. Whatever
the initial arrangement may have been between Mother and
Grandmother, at some point in 2008, Grandmother filed a
petition in district court for grandparent visitation.
years later, on August 6, 2015, this stepparent adoption case
was filed to formally endow Mother's husband (Stepfather)
with parental rights to T.M.M.H. The visitation case, which
continues to be litigated, and the adoption case remained as
separate proceedings in the Johnson County District Court.
The two cases were not consolidated, and they were assigned
to different judges.
T.M.M.H.'s birth, Mother and Grandmother have apparently
reached several agreements. Some appear-or at least the
initial agreement appears-to have been reached outside of any
court process and others as part of the visitation case. In
the parties' arguments, the agreements are referred to by
different names, including "private parenting
contract" and "parenting plan."
February 2015, the court handling the grandparent visitation
case held a three-day trial. It is unclear what prompted the
hearing or what evidence was presented. On April 13, 2015,
the district court issued a journal entry and order, which is
included in the record of this case. The order "granted
joint legal custody." It also required "the minor
child be reintegrated into [Mother's] life and
family." The court retained the authority to "make
decisions [related] to joint legal custody, but only when the
parties are unable to do so." The issue was set for
rehearing on June 25, 2015. It is unknown if that rehearing
occurred and, if so, its result.
six weeks later, Stepfather filed a Petition for Adoption in
Johnson County District Court. Mother consented. The court
appointed a Guardian ad Litem, set the petition for hearing,
and required notice "be provided to all interested
parties hereto, including but not limited to
[Grandmother]." The court adopted the language of
Stepfather's proposed order without independently
analyzing whether Grandmother was an interested party
entitled to notice at this point in the adoption proceeding.
responded to the notice by, among other things, arguing the
stepparent adoption petition collaterally attacked the orders
in the visitation case and impeded her rights. She later
moved to compel depositions. In a January 6, 2016, telephonic
hearing, the court sua sponte questioned Grandmother's
status as an interested party and, correspondingly, her
standing. Grandmother then propounded discovery requests. In
response, Stepfather asserted Grandmother's lack of
standing. Grandmother filed a verified response, but no
hearing was held to allow the formal admission of evidence
related to standing. On February 26, 2016, the court issued
its "Order Regarding Standing and Denying Motion to
Compel Depositions, " in which it concluded Grandmother
had standing to receive notice but lacked standing to
participate in the case, was not an interested party in the
adoption proceeding, and could not compel depositions.
determining Grandmother's standing, the stepparent
adoption court reviewed K.S.A. 2016 Supp. 59-2129(c), which
lists the parties whose consent is required for a stepparent
adoption. The court noted grandparents, even those with
visitation, are not entitled to notice under the statute. The
court acknowledged Grandmother had joint legal custody
arising out of a case that began as an action for grandparent
visitation under K.S.A. 38-129(b) (now codified at K.S.A.
2016 Supp. 23-3301[c]), but found the custody arrangement did
not confer standing. The court rejected Grandmother's
position that she was a permanent legal custodian, finding
the only basis for awarding such status is the Kansas Code
for Care of Children, specifically K.S.A. 2016 Supp. 38-2272.
The court ruled its decision was controlled by Browning
v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974)
(grandmother not an interested party, not entitled to notice
of stepparent adoption), and In re Adoption of
J.A.B., 26 Kan.App.2d 959, 969, 997 P.2d 98 (2000) (no
error in district court holding grandparent had standing to
participate in adoption proceeding solely on issue of
visitation but "grandparents' rights in the adoption
proceeding are limited to a determination of whether
reasonable visitation should be granted").
appealed, and the Court of Appeals affirmed the district
court. In re Adoption of T.M.M.H., No. 115, 309,
2016 WL 7032112 (Kan. App. 2016) (unpublished opinion).
Court of Appeals panel began its legal analysis by
questioning whether jurisdiction existed because the appeal
had not been taken from a final order. 2016 WL 7032112, at
*2. The panel concluded it had jurisdiction under the
collateral order doctrine because the district court order
conclusively determined the issue of Grandmother's
standing; the standing issue was an important one separate
from the merits of the adoption; and an immediate appeal was
required because, otherwise, Grandmother would be powerless
to appeal a final judgment in the adoption proceeding. 2016
WL 7032112, at *3.
the panel addressed the significance of the joint legal
custody arrangement between Mother and Grandmother. The panel
looked to Kansas statutes for a definition of joint legal
custody. The only reference it found was in the context of
custody between divorcing parents. The panel then looked to
the record for clarification of the nature of the agreement
between Mother and Grandmother. It found the record contained
only two relevant documents: a journal entry filed in the
grandparent visitation case on September 30, 2015, and the
order finding Grandmother lacked standing in the stepparent
adoption case. The panel concluded Grandmother failed to
designate sufficient facts to support her claim; the district
court decision was proper in the absence of a sufficient
record; and Kansas statutory law did not require a different
result. 2016 WL 7032112, at *6.
panel then considered whether grandparents have any rights in
cases of stepparent adoption generally. 2016 WL 7032112, at
*6. The panel reviewed the persons who are required to
provide consent to a stepparent's adoption, which does
not include a grandparent even when the grandparent has
visitation rights. The panel ruled the statute authorized the
district court to provide notice to Grandmother, which the
district court had done, but that notice did not give
Grandmother a right to "conduct depositions or otherwise
participate in the adoption hearing." 2016 WL 7032112,
panel, while acknowledging that Grandmother's
relationship was unique, observed that guardianship was the
legal status most analogous to that conferred upon
Grandmother. 2016 WL 7032112, at *7. The panel then
determined that the parental preference doctrine applied. It
rejected Grandmother's argument that Mother had waived
her parental preference by agreeing to share joint legal
custody with Grandmother, because Grandmother failed to meet
her burden of proving a knowing waiver of the preference.
2016 WL 7032112, at *8.
the panel rejected Grandmother's argument that she should
be allowed to participate in the stepparent adoption to
advocate for the best interests of the child, concluding the
best interests test did "not apply in determining a fit
parent's custodial right as against a third-party
nonparent's right." 2016 WL 7032112, at *8. The
panel concluded: "[E]ven if the record had fully
supported Grandmother's claim that her status as a joint
legal custodian of the child generally gives her the right to
make decisions in the best interests of the child, that right
must yield to the conflicting right of the fit Mother."
2016 WL 7032112, at *8.
filed a petition seeking this court's review of the Court
of Appeals decision, which we granted.
sole issue in this case is whether the district court erred
when it determined Grandmother was not an interested
party-and therefore did not have standing-to participate in
the stepparent adoption. That issue requires us to interpret
Kansas statutes and the legal effect of the parties'
agreement and court orders. These are questions of law over
which this court exercises unlimited review. State ex
rel. Secretary of DCF v. Smith, 306 Kan. 40, 48, 392
P.3d 68 (2017) (statutory interpretation); Gannon v.
State, 298 Kan. 1107, 1122, 319 P.3d 1196 (2014)
(standing); Frazier v. Goudschaal, 296 Kan. 730,
748, 295 P.3d 542 (2013) (interpretation and legal effect of
explore the issue of standing, we necessarily start with some
basic principles: The Kansas Constitution imposes a
case-or-controversy requirement. Sierra Club v.
Moser, 298 Kan. 22, 29, 310 P.3d 360 (2013); State
ex rel. Morrison v. Sebelius, 285 Kan. 875, 895-96, 179
P.3d 366 (2008). Part of that requirement, and a component of
our subject matter jurisdiction, is standing. Sierra
Club, 298 Kan. at 29. We have described standing as
"'a party's right to make a legal claim or seek
judicial enforcement of a duty or a right.'"
KNEA v. State, 305 Kan. 739, 746, 387 P.3d 795
us, Grandmother argues the Court of Appeals erroneously
focused on various statutes to determine if she had standing
to contest the adoption proceeding rather than focusing on
whether she met the common-law standing test. Under the
common-law test a party seeking to establish standing must
have a "sufficient stake in the outcome of an otherwise
justiciable controversy in order to obtain judicial
resolution of that controversy." Moorehouse v. City
of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996).
Accordingly, Grandmother at least implies she need only
establish common-law standing.
making this argument, Grandmother does not discuss the
two-prong standing test that applies when a statute provides
the basis for asserting a right to seek a judicial remedy.
Under this test, courts analyze standing as a matter of (1)
statute and (2) common law. Sierra Club, 298 Kan. at
29. Meeting only one prong or the other is insufficient; both
prongs must be established. See Cochran v. Kansas Dept.
of Agriculture, 291 Kan. 898, 908-09, 249 P.3d 434
first question, of course, is whether that test applies in
adoption proceedings. Most cases applying the test arise
under the Kansas Judicial Review Act (KJRA), K.S.A. 2016
Supp. 77-601 et seq., but it has been applied when standing
is dictated by other statutes as well. E.g., Friends of
Bethany Place v. City of Topeka, 297 Kan. 1112, 1121-22,
307 P.3d 1255 (2013) (plaintiff-association required to
establish standing under the Historic Preservation Act and
traditional-associational standing); Cochran, 291
Kan. at 903-10 (considering standing under the Kansas Water
Appropriation Act and KJRA when both provided a basis for
standing and were not in conflict with each other and
traditional standing analysis).
does not suggest any reason both prongs of the standing test
would not apply in a stepparent adoption case, and several
aspects of adoption law suggest that the statutory test must
be met. Indeed, "[a]doption was not recognized at common
law, and subject matter jurisdiction over such a proceeding
is created by statute." In re Adoption of
H.C.H., 297 Kan. 819, 825, 304 P.3d 1271 (2013).
Likewise, "[t]he right to appeal [in civil cases,
including actions involving parental rights, ] is entirely
statutory and is not a right contained in the United States
or Kansas Constitutions." In re T.S.W., 294
Kan. 423, 432, 276 P.3d 133 (2012). Furthermore, past cases
of this court dealing with standing issues in the context of
adoption have focused on statutory standing, even if not
explicitly using those words or setting out the two-prong
example, in Browning, this court recognized a
stepparent adoption would impact a grandmother's ability
to exercise her visitation rights with her grandchild. In
other words, she would suffer injury. But instead of deciding
standing on that basis-i.e., common-law standing-the court
examined the statute that dictated who must consent to an
adoption. Noting that the grandmother's consent was not
required in the stepparent adoption, the court concluded
there was nothing she "could have done to defeat the
adoption" and she was not an interested party. 215 Kan.
same conclusion applies in this case as it relates to
Grandmother's status as a grandparent with visitation
rights. But she asserts additional grounds for her standing.
Even as to those, however, Browning instructs that
statutory standing must be established in addition to
we hold Grandmother, in order to appeal, must establish both
statutory and common-law standing; she cannot rely solely on
Standing and the Right to Appeal
standing in the current adoption case is governed, in part,
by K.S.A. 2016 Supp. 59-2401a, which is not found in the
Kansas Adoption and Relinquishment Act (KARA), K.S.A. 59-2111
et seq., but explicitly includes appeals in adoption cases.
In an adoption proceeding, "an interested party"
may bring an appeal "from any final order, judgment or
decree." K.S.A. 2016 Supp. 59-2401a(a), (b).
Court of Appeals panel, focusing on this statute, issued a
show cause order and eventually asked the parties to brief
the question of whether a final order was being appealed.
Ultimately, the panel determined a final order was not
involved but the appeal could still be brought under the
collateral order doctrine. 2016 WL 7032112, at *3. Stepfather
did not cross-petition for review of this issue. Typically,
this would preclude our review of the question. See Supreme
Court Rule 8.03(h)(1) (2018 Kan. S.Ct. R. 56) ("[I]ssues
before the Supreme Court include all issues properly before
the Court of Appeals which the petition for review or
cross-petition allege were decided erroneously by the Court
of Appeals."); State v. Keenan, 304 Kan. 986,
993, 377 P.3d 439 (2016) ("Because the State did not
cross-petition to challenge the Court of Appeals'
preservation ruling in favor of [the defendant], we will not
consider whether the panel erred on this point.").
because jurisdiction may be raised sua sponte by a court,
this rule may not be applicable in this situation. See
Kansas Bldg. Industry Workers Comp. Fund v. State,
302 Kan. 656, 666, 359 P.3d 33 (2015) ("An appellate
court can make a sua sponte inquiry into whether it
has jurisdiction over a question presented to it on
appeal."). In this case, however, little would be gained
by reopening the question without further briefing by the
parties, especially when we determine Grandmother has failed
to establish a record sufficient to show she meets the
interested party requirement of K.S.A. 2016 Supp. 59-2401a,
which means this court lacks jurisdiction over this appeal on
that basis even if the lack of a final order is not
explain our conclusion that this court lacks jurisdiction, we
return to K.S.A. 2016 Supp. 59-2401a, which defines
"interested party" by listing eight categories of
individuals. One provision relates only to adoption cases; it
specifies that "'interested party'" means:
"The parent in a proceeding pursuant to" the KARA.
K.S.A. 2016 Supp. 59-2401a(e)(1). But two general provisions
apply as well. One general provision allows an appeal by
"the petitioner in the case on appeal" and the
other by "any other person granted interested party
status by the court from which the appeal is being
taken." K.S.A. 2016 Supp. 59-2401a(e)(7), (8).
this statute does not include grandparents or legal
custodians in the definition of "interested
parties." Cf. In re D.D.P., Jr., 249
Kan. 529, 542, 819 P.2d 1212 (1991) ("If the grandfather
has standing to appeal [in this child-in-need-of-care
proceeding], then he must have been designated an
'interested party.'"). As a result, we need not
consider three of the four issues presented in
Grandmother's Court of Appeals brief because they relate
specifically to Grandmother's status as joint legal
custodian. Even if the district court erred in its ...