BY THE COURT
1. In a
private adoption in which the proposed adopting party seeks
to terminate the parental rights of the parent, the proposed
adopting party may bring the action either by filing separate
actions to terminate parental rights and for adoption or by
filing both claims in a single petition. If the claims are
filed together and a consent to the adoption is not filed at
the same time as the petition as required by K.S.A. 2018
Supp. 59-2128(f), that has no effect on the court's
subject-matter jurisdiction over the claim to terminate
district court's finding in this case that the
child's mother failed to assume parental duties for a
two-year period was supported by clear and convincing
evidence, so the district court's order terminating the
mother's parental rights was proper.
from Johnson District Court; Michael P. Joyce, judge.
Richard P. Klein, of Olathe, for appellant mother.
W. Kenney, of Kevin W. Kenney, P.A., of Prairie Village, for
appellees adoptive parents.
Hill, P.J., Leben, J., and Walker, S.J.
(Mother) appeals the termination of her right to parent E.D.,
her adoptive son. She first argues that the district court
didn't have jurisdiction to consider the termination of
her parental rights because the petition seeking termination
was combined with a claim by the child's legal guardians
to adopt him-and a consent form that the adoption statute
says "shall be filed with the petition for
adoption" wasn't filed with it. But the issue before
us about Mother is whether her parental rights should be
terminated; her challenge does not affect the district
court's ability to decide that question. We find no
jurisdictional problem with the district court's
consideration of the termination of Mother's parental
the real issue before us is whether the district court
properly terminated those rights, and she also challenges
that ruling. A statute, K.S.A. 2018 Supp. 59-2136(h)(1)(G),
provides for termination when a parent has failed to assume
or fulfill the duties of a parent for the two years before
filing of the petition to terminate parental rights. During
that time, E.D. went from 12 to 14 years old, and he was
living with his legal guardians. But with a child at that
age, who can communicate in many ways, even a parent who
lived apart from the child could have an active relationship
with him. But Mother didn't initiate contacts, didn't
check on E.D.'s work in school, and didn't help
E.D.'s legal guardians to get E.D.'s immigration
status fixed. Clear and convincing evidence supported the
district court's conclusion that Mother's parental
rights should be terminated because she had failed to assume
parental duties for the two-year period. We therefore affirm
the district court's judgment.
and Procedural Background
has for many years done work at an orphanage in Zambia. She
met E.D., then five years old, at the orphanage in 2009. E.D.
was HIV positive, so Mother arranged a six-month visa for
E.D. to come to the United States for medical treatment. That
visa could be renewed for six more months for a total of one
year, and Mother did that.
adopted E.D. in 2011. By that time, the visa had expired.
2012, she approached a couple she knew from church, Susana
and Tim, and asked if E.D. could live with them. E.D. had
already stayed with Susana and Tim for some extended periods
of time because of Mother's travel. After some
consideration and discussion, Susana and Tim agreed, and with
Mother's consent they became court-approved legal
guardians for E.D.
often visited E.D. until November 2014. Around Thanksgiving,
Mother sent a series of suicidal text messages to Susana.
That led Susana and Tim to limit Mother's contacts with
E.D.-and then to Mother moving in court to terminate the
court denied Mother's motion and entered a formal
guardianship plan in July 2015. At that time, E.D. was 11.
The plan provided that Mother could have at least one weekly
visit with E.D. but that the visits be supervised. Mother was
to schedule the visits with a supervisor, and Susana and Tim
would pay for any expense of the ...