Adoption in Kansas: Nearly 25 Years After Kara, Where Are We?
| Citation | Vol. 83 No. 12 Pg. 37 |
| Pages | 37 |
| Publication year | 2014 |
Nancy S. Anstaett
[37]
In 1990, the Kansas legislature enacted the Kansas adoption and relinquishment act (KARA).[1] This article looks back briefly at the history of Kansas adoption statutes and focuses on application of KARA to the adoption of minor children.[2] A discussion of legislative amendments, appellate court interpretations, and some of the complications that arise when interested parties live in more than one state is included.[3] Laws not found in KARA, which may apply to a Kansas adoption, are also referenced.
Adoption is a Creature of Statute
Adoption did not exist at common law.[4] The earliest adoption statutes in the United States are believed to be from Massachusetts in 1851.[5] Kansas was not far behind and enacted a law to provide for the adoption of minor children in 1864.[6]
Adoption results in the creation of a new status. The status of parent and child in individuals who are not biologically related is not created without substantial compliance with the statutes regulating adoption.[7] The purpose of early adoption laws was not the welfare of the child but rather was focused on the needs of adults.[8] Modern adoption laws moved from the needs of adults to the welfare of children.[9] The requirements and prohibitions of KARA and earlier Kansas statutes were designed to protect children and promote permanency of the parent-child relationship. Statutory safeguards also had to be mindful of the rights and interests of the biological parents.
How and Why KARA was Enacted
In the 1980s, Kansas was seen by some as a “baby supermarket” for out of state attorneys.[10] Kansas had statutes in place requiring a home study for prospective adoptive parents and regulating fees and expenses that could be paid in connection with an adoption, but in 1987 legislation was introduced to make significant changes in Kansas adoption laws, including the prohibition of Kansas private adoptions by non-residents.[11]
The proposed 1987 legislation did not pass but was “the springboard” for a study of Kansas adoption laws by the Family Law Advisory Committee (FLAC) of the Judicial Council.[12] FLAC’s proposed changes, which included substantive changes as well as reorganization of the Kansas statutes applicable to adoption, were made in 1989 S.B. 292.[13] An interim judiciary committee studied S.B. 292, made amendments and introduced it as 1990 S.B. 431.[14] After further amendment, KARA was enacted and a primary goal of consolidating Kansas statutes relating to adoption was met.[15]
Via its definition section, KARA created four categories of adoption: adult, agency, independent, and stepparent.[16] Although there have been a variety of amendments to KARA since 1990, the definitions and thus the basic organization of KARA have not been altered. In 1994, an additional section applying to foreign adoption was added.[17] The remainder of this article looks at the adoption of a minor child in an independent or agency adoption and the adoption of a minor child by a stepparent. KARA sets out the requirements for consent to adoption as well as termination of a biological parent’s rights if consent is not obtained. KARA did not and does not prevent a nonresident from adopting in Kansas.
Independent and Agency Adoption
KARA denominates adoption as an “independent adoption” if a child’s parent or parents, or a legal guardian who has the authority to consent to adoption, places a child for adoption with someone other than a stepparent.[18] If an agency has the authority to consent to the adoption of the minor child, it is an “agency adoption.”[19] “Agency” may be a public or private entity meeting the definition found in K.S.A. 59-2112(f).[20] Both independent (what used to be called “private”) and agency adoption require consent.
When enacted, KARA included detailed requirements for consent. Many of those provisions have not changed in almost 25 years. Consent must be in writing and acknowledged. The consent must have been executed not more than six months before the adoption petition is filed. Consent is final when executed, unless the consenting party, prior to the adoption decree being entered, alleges and proves that the consent was not freely and voluntarily given. The burden of proving consent was not freely and voluntarily given is by clear and convincing evidence.[21] The mother cannot give her consent until 12 hours after the birth of [38] a child.[22] If the consent is given by the mother before 12 hours after birth, it is voidable, prior to the final decree.[23]
KARA addresses the execution of a consent or relinquishment outside the state of Kansas, in a foreign country, or by a person in the military service.[24] KARA also addresses consent if the consenting parent is a minor. Minority does not invalidate a consent, but a minor parent must have advice of independent legal counsel who must be present at execution of the consent.[25]
An agency obtains power to consent to adoption by accepting the relinquishment of a child from a parent or parents.[26] Relinquishments must be in writing and acknowledged.[27] The provisions regarding minority and time of execution that apply to a consent also apply to a relinquishment.[28]
The point in time when the biological parent’s rights are terminated is a major difference between an independent adoption that involves a consent or consents from biological parents and an agency adoption which involves relinquishments from the biological parents. In an independent adoption, the consenting biological parent’s rights are not terminated until the decree of adoption is entered.[29] In an agency adoption, the parent’s rights are terminated when the parent relinquishes a child to an agency and the agency accepts the relinquishment. The statute provides an exception to automatic termination if the parent has relinquished to an agency based on a belief the other parent would relinquish, and the other parent does not relinquish.[30]
KARA originally included an appendix of forms for consent, relinquishment and agency consent.[31] K.S.A. 59-2143 now states the form for consent and relinquishment shall be set forth by the judicial council.[32] A consent from a parent, legal guardian or agency is deemed sufficient if it substantially complies with the judicial council form.[33]
The Importance of Consent
All adoptions require a consent.[34] An adoption is not an involuntary proceeding where a court intervenes to remove a child from a biological parent or parents in order to allow the child to be adopted by a new parent or parents. In an independent adoption, the living parents must consent or alternatively one parent must consent if the other parent’s “consent is found unnecessary under K.S.A. 59-2136, and amendments thereto.”[35] If both parents are dead or if their consent is found unnecessary, the legal guardian shall consent.[36] There are also provisions requiring the court or judge to consent under specific circumstances.[37] Consent to an agency adoption is given by the authorized agency representative.[38] The child being adopted must also consent to an independent or agency adoption if over 14 years of age and of sound intellect.[39]
Pre-KARA Kansas cases regarded the consent as “an essential requisite to jurisdiction.”[40] If no one had consented, the court could not proceed with adoption. KARA specifies that the written consents required by K.S.A. 59-2129 must be filed with the petition for adoption.[41] Consent continues to be regarded as a requirement for jurisdiction.[42] The filing of a consent from a statutorily authorized person is required.[43]
Proceeding Without A Father’s Consent or Relinquishment
Attorneys are often faced with factual situations in which one biological parent, usually the mother, wishes to place her child for adoption, but there is no consent or relinquishment from the other parent. The mother may not know who fathered the child or she may not know the current whereabouts of the father. Even when she knows who he is and where he lives, the father may not be willing to sign a consent, or the mother may want to proceed with an adoption even if the father objects.
K.S.A. 2013 Supp. 59-2136 sets out the current requirements for determining when a consent or relinquishment is not required from a biological parent. When enacted, KARA moved some provisions related to termination of parental rights from the parentage act into Chapter 59 and also made other revisions.[44] In 2006, “best interest of the child” language was added to the termination provisions.[45]
In an independent or agency adoption, when a mother wishes to consent or relinquish and there is no father’s consent and the father’s relationship has not either been previously terminated or determined not to exist by a court, a petition to terminate the father’s parental rights must be filed. The request to terminate parental rights may be contained in the petition for adoption, if appropriate. The request may also be in a separate petition filed by the mother, agency, petitioner for adoption or person having custody.[46]
In order to proceed with a termination action, the court must attempt to identify the father. The court may do this by deposition, affidavit or hearing. KARA sets out specific information the c ourt should determine in attempting to identify the father.[47] If the father is identified, or if more than one man are identified as possible fathers, KARA requires notice in accordance with K.S.A. 2013 Supp. 59-2136(f).
In independent and agency adoptions, if the father is unknown, or his whereabouts are unknown, the court is required to appoint an attorney to represent the unknown or unlocated father.[48] The court must order publication notice of the hearing if no person is...
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