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In re Adoption of E.D.

Court of Appeals of Kansas

November 22, 2019

In the Matter of the Adoption of E.D.

         SYLLABUS 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 parental rights.

         2. The 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.

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

          Richard P. Klein, of Olathe, for appellant mother.

          Kevin W. Kenney, of Kevin W. Kenney, P.A., of Prairie Village, for appellees adoptive parents.

          Before Hill, P.J., Leben, J., and Walker, S.J.

          LEBEN, J.

         A.D. (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 rights.

         Thus 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.

         Factual and Procedural Background

         Mother 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.

         Mother adopted E.D. in 2011. By that time, the visa had expired.

         In 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.

         Mother 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 guardianship.

         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 ...


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