Printable Format59-2136. Relinquishment and adoption; proceedings to terminate parental rights. (a) The provisions of this section shall apply where a relinquishment or consent to an adoption has not been obtained from a parent and K.S.A. 59-2124 and 59-2129, and amendments thereto, state that the necessity of a parent's relinquishment or consent can be determined under this section.
(b) Insofar as practicable, the provisions of this section applicable to the father also shall apply to the mother and those applicable to the mother also shall apply to the father.
(c) The court shall appoint an attorney to represent any father who is unknown or whose whereabouts are unknown. If no person is identified as the father or a possible father, or if the father's whereabouts are unknown, the court shall order publication notice of the hearing in such manner as the court deems appropriate.
(d) (1) A petition to terminate parental rights pursuant to the Kansas adoption and relinquishment act may be filed only as part of a petition for adoption or as a separate action in connection with an adoption proceeding filed or to be filed in the same or another proper venue.
(2) If a petition to terminate parental rights is filed separately from a petition for adoption under this act:
(A) Venue for the proceedings to terminate parental rights shall be in the county where the child or a parent resides or is found; and
(B) an order granting such petition:
(i) Shall be in substantial compliance with the form set forth by the judicial council;
(ii) is a final judgment that is appealable as a matter of right;
(iii) if not appealed, shall satisfy the requirement contained in K.S.A. 59-2128, and amendments thereto, to demonstrate that the necessity for the consent or relinquishment is eliminated; and
(iv) shall be effective only upon the filing of a decree of adoption.
(3) The petition to terminate parental rights may be filed by a parent, the petitioner for adoption, the person or agency having legal custody of the child or the agency to which the child has been relinquished.
(4) Absent a finding of good cause by a court with jurisdiction under this act, a proceeding to terminate parental rights shall have precedence over any proceeding involving custody of the child under the Kansas family law code, K.S.A. 23-2101 et seq., and amendments thereto, or the protection from abuse act, K.S.A. 60-3101 et seq., and amendments thereto, until a final order is entered on the termination issues or until further orders of the court.
(e) In an effort to identify the father, the court shall determine by deposition, affidavit or hearing, the following:
(1) Whether there is a presumed father under K.S.A. 23-2208, and amendments thereto;
(2) whether there is a father whose relationship to the child has been determined by a court;
(3) whether there is a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction;
(4) whether the mother was cohabitating with a man at the time of conception or birth of the child;
(5) whether the mother has received support payments or promises of support with respect to the child or in connection with such mother's pregnancy; and
(6) whether any person has formally or informally acknowledged or declared such person's possible parentage of the child.
If the father is identified to the satisfaction of the court, or if more than one man is identified as a possible father, each shall be given notice of the proceeding in accordance with subsection (f).
(f) Notice of the proceeding shall be given to every person identified as the father or a possible father by personal service, certified mail return receipt requested or in any other manner the court may direct. Notice shall be given at least 10 calendar days before the hearing, unless waived by the person entitled to notice. Proof of notice or waiver of notice shall be filed with the court before the petition or request is heard.
(g) (1) If, after the inquiry, the court is unable to identify the father or any possible father and no person has appeared claiming to be the father and claiming custodial rights, the court shall enter an order terminating the unknown father's parental rights with reference to the child without consideration of subsection (h).
(2) If any person identified as the father or possible father of the child fails to appear or, if appearing, fails to claim custodial rights, such person's parental rights with reference to the child shall be terminated without consideration of subsection (h).
(h) (1) When a father or alleged father appears and claims parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act, K.S.A. 23-2201 et seq., and amendments thereto. If a father desires but is financially unable to employ an attorney, the court shall appoint an attorney for the father. Thereafter, the court may order that parental rights be terminated and find the consent or relinquishment unnecessary, upon a finding by clear and convincing evidence, of any of the following:
(A) The father abandoned or neglected the child after having knowledge of the child's birth;
(B) the father is unfit as a parent or incapable of giving consent;
(C) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth;
(D) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth;
(E) the father abandoned the mother after having knowledge of the pregnancy;
(F) the birth of the child was the result of rape of the mother; or
(G) the father has failed or refused to assume the duties of a parent for two consecutive years immediately preceding the filing of the petition.
(2) In making a finding whether parental rights shall be terminated under this subsection, the court:
(A) Shall consider all of the relevant surrounding circumstances; and
(B) may disregard incidental visitations, contacts, communications or contributions.
(3) In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years immediately preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child's birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years immediately preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.
(4) For the purposes of this subsection, "support" means monetary or non-monetary assistance that is reflected in specific and significant acts and sustained over the applicable period.
(i) A termination of parental rights under this section shall not terminate the right of the child to inherit from or through the parent. Upon such termination, all the rights of birth parents to such child, including their right to inherit from or through such child, shall cease.
History: L. 1990, ch. 145, § 26; L. 1991, ch. 167, § 1; L. 1993, ch. 195, § 3; L. 1993, ch. 277, § 1; L. 2006, ch. 22, § 1; L. 2012, ch. 162, § 76; L. 2018, ch. 118, § 19; L. 2024, ch. 48, § 2; July 1.
Source or Prior Law:
38-1129, 59-2102(a)(3).
Law Review and Bar Journal References:
"Sacrificing the Best Interests of a Child in Favor of the Parental Rights of an Ex-Con [In re Adoption of S.E.B. & K.A.B., Minors, 891 P.2d 440 (Kan. 1995)]," Stephen J. Torline, 35 W.L.J. 515 (1996).
"Opening Minds to Open Adoption," Tammy M. Somogye, 45 K.L.R. 619 (1997).
"The Effect of Domestic Violence on Parental Rights in Kansas after In re Adoption of A.P.," Amy E. Wilbur, 39 W.L.J. 288 (2000).
"Using legislative history as a tool of statutory construction in Kansas," Richard F. Levy and Robert Mead, 71 J.K.B.A. No. 5, 35 (2002).
"He Said, She Said: Diverging Views in the Emerging Field of Father's Rights," Bryn Anne Poland, 46 W.L.J. 163 (2006).
CASE ANNOTATIONS
1. Termination of parental rights examined. In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 312, 313, 822 P.2d 76 (1992).
2. Whether father provided support during six-month period before child born retaining parental rights for adoption consent purposes examined. In re Adoption of Baby Boy B, 254 Kan. 454, 455, 460, 463, 866 P.2d 1029 (1994).
3. Whether natural mother's consent to adoption within 12 hours of birth is voidable before final decree entered examined. In re Adoption of J.H.G., 254 Kan. 780, 798, 869 P.2d 640 (1994).
4. Whether natural father's parental rights may be constitutionally terminated absent unfitness finding; plaintiff's standing examined. In re Baby Boy N., 19 Kan. App. 2d 574, 575, 578, 584, 874 P.2d 680 (1994).
5. Whether father relieved of supporting mother prior to child's birth where mother receiving support from other parties examined. In re Adoption of Baby Boy W, 20 Kan. App. 2d 295, 296, 891 P.2d 457 (1994).
6. Whether courts are required to consider time period father was incarcerated in applying subsection (d) presumption examined. In re Adoption of S.E.B., 257 Kan. 266, 269, 891 P.2d 440 (1995).
7. Whether natural father's parental rights should be severed where efforts to support mother thwarted by mother's interference examined. In re K.D.O., 20 Kan. App. 2d 559, 560, 889 P.2d 1158 (1995).
8. Whether natural father's partial support payments constituted substantial efforts and assumption of parental duties examined; definitions. In re Adoption of C.R.D., 21 Kan. App. 2d 94, 97, 897 P.2d 181 (1995).
9. Best interests of the child doctrine controls case where child has been adjudicated to be in need of care. In re R.C., 21 Kan. App. 2d 702, 707, 907 P.2d 901 (1995).
10. Trial court's providing notice of adoption hearing by serving petitioner's attorney instead of personal service did not violate due process. In re Adoption of A.S., 21 Kan. App. 2d 714, 718, 721, 907 P.2d 913 (1995).
11. Father's visitation insufficient to rebut subsection (d) presumption where father refused to pay child support when financially able. In re Adoption of D.R.B., 21 Kan. App. 2d 790, 791, 908 P.2d 198 (1995).
12. Termination of putative father's parental rights absent relinquishment to agency or adoption constitutes reversible error. In re J.A.C., 22 Kan. App. 2d 96, 97, 911 P.2d 825 (1996).
13. Application of Kansas law in parental termination action did not deprive natural father of due process rights. In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 120, 123, 912 P.2d 761 (1996).
14. Parental obligations not satisfied by mere filing for social security benefits and limited contact with children. In re Adoption of K.J.B., 24 Kan. App. 2d 210, 944 P.2d 157 (1997).
15. When pregnant woman had multiple sexual partners, any partner wishing to preserve future parental rights must make reasonable support efforts. In re D.M.M., 24 Kan. App. 2d 783, 784, 955 P.2d 618 (1997).
16. Standard to review parental termination action under subsection (d) when parent is incarcerated before adoption proceeding examined. In re Adoption of A.J.P., 24 Kan. App. 2d 891, 892, 953 P.2d 1387 (1998).
17. Natural father's support including court-ordered social security disability payments to children constituted assuming parental duties. In re Adoption of K.J.B., 265 Kan. 90, 91, 959 P.2d 853 (1998).
18. In determining unfitness of father in adoption petition, held appropriate to consider factors in K.S.A. 38-1583; technical defects not jurisdictional and waived by lack of timely objection. In re Adoption of A.P., 26 Kan. App. 2d 210, 215, 218, 982 P.2d 985 (1999).
19. Stepparent adoption not approved; father did not fail to assume duties of father in that substantial portion of court-ordered support made; voluntary and involuntary child support payments not distinguished; strictly construed to maintain rights of natural parents. In re Adoption of B.M.W., 268 Kan. 871, 2 P.3d 159 (2000).
20. Child support payments under involuntary income withholding order included in determining amount of child support paid; father failed to rebut presumption of failure or refusal to assume duties. In re R.W.B., 27 Kan. App. 2d 549, 7 P.3d 306 (2000).
21. Consent of natural father not required in stepparent adoption; duties of appointed counsel continue until completion of case and time for final review has passed. In re Application to Adopt H.B.S.C., 28 Kan. App. 2d 191, 12 P.3d 916 (2000).
22. Fees of attorney appointed to represent indigent father may be assessed as costs to be paid by petitioner. In re Adoption of D.S.D., 28 Kan. App. 2d 686, 19 P.3d 204 (2001).
23. Termination of father's parental rights is appropriate when father made only general offers of support during six months prior to birth of baby. In re Adoption of Baby Girl S, 29 Kan. App. 2d 664, 29 P.3d 466 (2001).
24. Father's parental rights severed for failing to provide support for mother during 6 months prior to child's birth. In re Adoption of M.D.K., 30 Kan. App. 2d 1176, 58 P.3d 745 (2002).
25. Trial court's finding that father was an unfit parent reversed. In re C.L.A., 31 Kan. App. 2d 536, 62 P.3d 708 (2003).
26. Subsection (d), not (h), applies to and is controlling over a stepparent adoption. In re Adoption of S.J.R., 37 Kan. App. 2d 28, 29, 34, 149 P.3d 12 (2006).
27. Whether incarcerated father failed to assume parental duties under subsection (d), his earliest potential release date was a relevant factor. In re Adoption of S.J.R., 37 Kan. App. 2d 28, 45, 149 P.3d 12 (2006).
28. Section interpreted involving lack of natural father's consent to adoption. In re Adoption of G.L.V., 38 Kan. App. 2d 144, 145-155, 163 P.3d 334 (2007).
29. Cited; consensual appointment of permanent guardian under K.S.A. 38-1587 does not terminate parent's obligation to support child. State ex rel. Secretary of SRS v. Bohrer, 286 Kan. 898, 912, 189 P.3d 1157 (2008).
30. Stepparent adoption involving nonconsent by natural parent who assumed parental duties; best interest of child cannot override consent requirement. In re Adoption of G.L.V., 286 Kan. 1034, 1036–1040, 1042–1047, 1049–1052, 1054–1058, 1060–1065, 190 P.3d 245 (2008).
31. Cited; father failed to appear at adoption hearing because of mother's fraud; adoption not void under case facts. In re Adoption of A.A.T., 287 Kan. 590, 594–596, 620, 624–626, 637–640, 657–661, 663–667, 669, 670, 672, 673, 196 P.3d 1180 (2008).
32. Finding that the best interest of the child alone can qualify as grounds for terminating parental rights, reversed. In re Adoption of D.D.H., 39 Kan. App. 2d 831–838, 184 P.3d 967 (2008).
33. Federal Indian Child Welfare Act applies to Kansas proceedings to terminate Indian father's rights; Indian family doctrine abandoned. In re A.J.S., 288 Kan. 429, 204 P.3d 543 (2009).
34. K.S.A. 59-2136 construed; nonconsenting parent found by appellate court to have fulfilled parental duties; father's consent required. In re Adoption of J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009).
35. When alleged father appears and asserts parental rights, court is to determine parentage pursuant to K.S.A. 38-1110 through 38-1132. In re Adoption of A.A.T., 42 Kan. App. 2d 1, 210 P.3d 640 (2009).
36. Parental rights terminated for failure to provide support for the mother during the six months prior to child's birth. In re M.R.C., 42 Kan. App. 2d 772, 217 P.3d 50 (2009).
37. District court shall consider, and parties are free to present, evidence on child's best interests. In re Adoption of B.B.M., 290 Kan. 236, 224 P.3d 1168 (2010).
38. Record supported conclusion that father made reasonable efforts to engage with and support child so that parental rights could not be terminated. In re Adoption of Baby Girl P., 291 Kan. 424, 242 P.3d 1168 (2010).
39. Adoptive parents have no standing when their petition for adoption is filed; no jurisdiction to hear on petition. In re Adoption of I.H.H.-L., 45 Kan. App. 2d 684, 251 P.3d 651 (2011).
40. Father's failure to investigate mother's possible pregnancy and failure to verify that she was, in fact, pregnant did not provide trial court grounds to terminate father's parental rights. In re Baby Girl B., 46 Kan. App. 2d 96, 261 P.3d 558 (2011).
41. Father's consent to stepfather's adoption not required where substantial competent evidence supported conclusion that father had failed or refused to assume parental duties for the two years next preceding the filing of stepfather's petition to adopt father's children. In re Adoption of J.M.D., 293 Kan. 153, 260 P.3d 1196 (2011).
42. Natural father's parental rights terminated when a child was conceived as a result of rape and the father failed to perform his parental duties for another child for two consecutive years. In re Adoption of C.A.T, 47 Kan. App. 2d 257, 273 P.3d 813 (2012).
43. Subsection (d) of K.S.A. 59-2136 only applies to stepparent adoptions when the child has a presumed father due to a marriage or attempted marriage. In re Adoption of P.Z.K., 50 Kan. App. 2d 617, 618, 332 P.3d 187 (2014).
44. Adoption statutes are strictly construed in favor of maintaining the natural parents' rights when consent to adoption would not be required if those rights are terminated. In re Adoption of C.L., 308 Kan. 1268, 427 P.3d 951 (2018).
45. A minor father's age does not entitle the father to a different analysis in determining the support to be provided prior to a child's birth. In re C.S., 57 Kan. App. 2d 352, 362, 452 P.3d 858 (2019).
46. Issue of constitutionality of this section not raised in district court nor court of appeals was not adequately preserved for consideration by supreme court. In re Adoption of Baby Girl G., 311 Kan. 798, 805, 466 P.3d 1207 (2020).