Session of 1999
HOUSE BILL No. 2344
By Representative Stone
2-9
9 AN ACT concerning adoption; relating to the requirement of a father's
10 consent in stepparent adoption; support obligation; amending K.S.A.
11 59-2136 and repealing the existing section.
12
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 59-2136 is hereby amended to read as follows: 59-
15 2136. (a) The provisions of this section shall apply where a relinquishment
16 or consent to an adoption has not been obtained from a parent and K.S.A.
17 59-2124 and 59-2129, and amendments thereto, state that the necessity
18 of a parent's relinquishment or consent can be determined under this
19 section.
20 (b) Insofar as practicable, the provisions of this section applicable to
21 the father also shall apply to the mother and those applicable to the
22 mother also shall apply to the father.
23 (c) In stepparent adoptions under subsection (d), the court may ap-
24 point an attorney to represent any father who is unknown or whose
25 whereabouts are unknown. In all other cases, the court shall appoint an
26 attorney to represent any father who is unknown or whose whereabouts
27 are unknown. If no person is identified as the father or a possible father,
28 the court shall order publication notice of the hearing in such manner as
29 the court deems appropriate.
30 (d) In a stepparent adoption, if a mother consents to the adoption of
31 a child who has a presumed father under subsection (a)(1), (2) or (3) of
32 K.S.A. 38-1114 and amendments thereto, or who has a father as to whom
33 the child is a legitimate child under prior law of this state or under the
34 law of another jurisdiction, the consent of such father must be given to
35 the adoption unless such father has failed or refused to assume the duties
36 of a parent for two consecutive years next preceding the filing of the
37 petition for adoption or is incapable of giving such consent. In determin-
38 ing whether a father's consent is required under this subsection, the court
39 may disregard incidental visitations, contacts, communications or contri-
40 butions. In determining whether the father has failed or refused to as-
41 sume the duties of a parent for two consecutive years next preceding the
42 filing of the petition for adoption, there shall be a rebuttable presumption
43 that if the father, after having knowledge of the child's birth, has know-
44 ingly failed to provide a substantial portion of the child support as re-
45 quired by judicial decree, when financially able to do so, for a period of
46 two years next preceding the filing of the petition for adoption, then such
47 father has failed or refused to assume the duties of a parent. For purposes
48 of this section, a substantial portion of the child support as required by
49 judicial decree means that the father has provided at least 50% of the
50 child support as required by judicial decree.
51 (e) Except as provided in subsection (d), if a mother desires to relin-
52 quish or consents to the adoption of such mother's child, a petition shall
53 be filed in the district court to terminate the parental rights of the father,
54 unless the father's relationship to the child has been previously termi-
55 nated or determined not to exist by a court. The petition may be filed by
56 the mother, the petitioner for adoption, the person or agency having
57 custody of the child or the agency to which the child has been or is to be
58 relinquished. Where appropriate, the request to terminate parental rights
59 may be contained in a petition for adoption. If the request to terminate
60 parental rights is not filed in connection with an adoption proceeding,
61 venue shall be in the county in which the child, the mother or the pre-
62 sumed or alleged father resides or is found. In an effort to identify the
63 father, the court shall determine by deposition, affidavit or hearing, the
64 following:
65 (1) Whether there is a presumed father under K.S.A. 38-1114 and
66 amendments thereto;
67 (2) whether there is a father whose relationship to the child has been
68 determined by a court;
69 (3) whether there is a father as to whom the child is a legitimate child
70 under prior law of this state or under the law of another jurisdiction;
71 (4) whether the mother was cohabitating with a man at the time of
72 conception or birth of the child;
73 (5) whether the mother has received support payments or promises
74 of support with respect to the child or in connection with such mother's
75 pregnancy; and
76 (6) whether any man has formally or informally acknowledged or de-
77 clared such man's possible paternity of the child.If the father is identified
78 to the satisfaction of the court, or if more than one man is identified as
79 a possible father, each shall be given notice of the proceeding in accord-
80 ance with subsection (f).
81 (f) Notice of the proceeding shall be given to every person identified
82 as the father or a possible father by personal service, certified mail return
83 receipt requested or in any other manner the court may direct. Proof of
84 notice shall be filed with the court before the petition or request is heard.
85 (g) If, after the inquiry, the court is unable to identify the father or
86 any possible father and no person has appeared claiming to be the father
87 and claiming custodial rights, the court shall enter an order terminating
88 the unknown father's parental rights with reference to the child without
89 regard to subsection (h). If any person identified as the father or possible
90 father of the child fails to appear or, if appearing, fails to claim custodial
91 rights, such person's parental rights with reference to the child shall be
92 terminated without regard to subsection (h).
93 (h) When a father or alleged father appears and asserts parental
94 rights, the court shall determine parentage, if necessary pursuant to the
95 Kansas parentage act. If a father desires but is financially unable to em-
96 ploy an attorney, the court shall appoint an attorney for the father. There-
97 after, the court may order that parental rights be terminated, upon a
98 finding by clear and convincing evidence, of any of the following:
99 (1) The father abandoned or neglected the child after having knowl-
100 edge of the child's birth;
101 (2) the father is unfit as a parent or incapable of giving consent;
102 (3) the father has made no reasonable efforts to support or commu-
103 nicate with the child after having knowledge of the child's birth;
104 (4) the father, after having knowledge of the pregnancy, failed with-
105 out reasonable cause to provide support for the mother during the six
106 months prior to the child's birth;
107 (5) the father abandoned the mother after having knowledge of the
108 pregnancy;
109 (6) the birth of the child was the result of rape of the mother; or
110 (7) the father has failed or refused to assume the duties of a parent
111 for two consecutive years next preceding the filing of the petition.
112 In making a finding under this subsection, the court may disregard
113 incidental visitations, contacts, communications or contributions. In de-
114 termining whether the father has failed or refused to assume the duties
115 of a parent for two consecutive years next preceding the filing of the
116 petition for adoption, there shall be a rebuttable presumption that if the
117 father, after having knowledge of the child's birth, has knowingly failed
118 to provide a substantial portion of the child support as required by judicial
119 decree, when financially able to do so, for a period of two years next
120 preceding the filing of the petition for adoption, then such father has
121 failed or refused to assume the duties of a parent.
122 (i) A termination of parental rights under this section shall not ter-
123 minate the right of the child to inherit from or through the parent. Upon
124 such termination, all the rights of birth parents to such child, including
125 their right to inherit from or through such child, shall cease.
126 Sec. 2. K.S.A. 59-2136 is hereby repealed.
127 Sec. 3. This act shall take effect and be in force from and after its
128 publication in the statute book.