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In re Adoption of T.M.M.H.

Supreme Court of Kansas

May 11, 2018

In the Matter of the Adoption of T.M.M.H.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 2, 2016.


         1. The 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.

         3. 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.

          4. 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.

         5. 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 taken.

         6. 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 abandoned.

         7. The 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.

         8. A 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.

          9. 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.

         10. 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.

          Appeal from Johnson District Court; Michael P. Joyce, judge.

          Joseph 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.

          Linus 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.


          PER CURIAM

         In this 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 separate case.

         We reject these arguments on procedural grounds and conclude Grandmother has failed to meet her burden of establishing her standing.

         Facts and Procedural Background

         T.M.M.H., 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.

         Several 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.

         Since 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."

         In 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.

         About 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.

         Grandmother 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.

         In 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").

         Grandmother 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).

         The 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.

         Next, 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.

         The 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, at *6.

         The 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.

         Finally, 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.

         Grandmother filed a petition seeking this court's review of the Court of Appeals decision, which we granted.


         The 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 written instruments).

         To 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 (2017).

         Before 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.

         In 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 (2011).

         The 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).

         Grandmother 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 test.

         For 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. at 506.

         This 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 common-law standing.

         Consequently, we hold Grandmother, in order to appeal, must establish both statutory and common-law standing; she cannot rely solely on common-law standing.

         Statutory Standing and the Right to Appeal

         Statutory 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).

         The 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.").

         Nevertheless, 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 determinative.

         To 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).

         Notably, 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 ...

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