SUPREME COURT OF THE STATE OF KANSAS
Case Number: 115309
Judge: PER CURIAM
Court: SUPREME COURT OF THE STATE OF KANSAS
Plaintiff's Attorney: Joseph W. Booth Joseph W. Booth
Defendant's Attorney: Suzanne Valdez
Description: T.M.M.H., who was born on November 5, 2006, was a few months old when his father died in 2007. When T.M.M.H. was young, Mother and Grandmother agreed he would live for a period of time with Grandmother. We know little about this agreement. Whatever the initial arrangement may have been between Mother and Grandmother, at some point in 2008, Grandmother filed a petition in district court for grandparent visitation.
Several years later, on August 6, 2015, this stepparent adoption case was filed to formally endow Mother's husband (Stepfather) with parental rights to T.M.M.H. The visitation case, which continues to be litigated, and the adoption case remained as separate proceedings in the Johnson County District Court. The two cases were not consolidated, and they were assigned to different judges.
Since T.M.M.H.'s birth, Mother and Grandmother have apparently reached several agreements. Some appear—or at least the initial agreement appears—to have been reached outside of any court process and others as part of the visitation case. In the parties' arguments, the agreements are referred to by different names, including "private parenting contract" and "parenting plan."
In February 2015, the court handling the grandparent visitation case held a threeday trial. It is unclear what prompted the hearing or what evidence was presented. On April 13, 2015, the district court issued a journal entry and order, which is included in the record of this case. The order "granted joint legal custody." It also required "the minor child be reintegrated into [Mother's] life and family." The court retained the authority to "make decisions [related] to joint legal custody, but only when the parties are unable to do so." The issue was set for rehearing on June 25, 2015. It is unknown if that rehearing occurred and, if so, its result.
About six weeks later, Stepfather filed a Petition for Adoption in Johnson County District Court. Mother consented. The court appointed a Guardian ad Litem, set the petition for hearing, and required notice "be provided to all interested parties hereto, including but not limited to [Grandmother]." The court adopted the language of Stepfather's proposed order without independently analyzing whether Grandmother was an interested party entitled to notice at this point in the adoption proceeding.
Grandmother responded to the notice by, among other things, arguing the stepparent adoption petition collaterally attacked the orders in the visitation case and impeded her rights. She later moved to compel depositions. In a January 6, 2016, telephonic hearing, the court sua sponte questioned Grandmother's status as an interested party and, correspondingly, her standing. Grandmother then propounded discovery requests. In response, Stepfather asserted Grandmother's lack of standing. Grandmother filed a verified response, but no hearing was held to allow the formal admission of evidence related to standing. On February 26, 2016, the court issued its "Order Regarding Standing and Denying Motion to Compel Depositions," in which it concluded Grandmother had standing to receive notice but lacked standing to participate in the case, was not an interested party in the adoption proceeding, and could not compel depositions.
In determining Grandmother's standing, the stepparent adoption court reviewed K.S.A. 2016 Supp. 59-2129(c), which lists the parties whose consent is required for a stepparent adoption. The court noted grandparents, even those with visitation, are not entitled to notice under the statute. The court acknowledged Grandmother had joint legal custody arising out of a case that began as an action for grandparent visitation under K.S.A. 38-129(b) (now codified at K.S.A. 2016 Supp. 23-3301[c]), but found the custody arrangement did not confer standing. The court rejected Grandmother's position that she was a permanent legal custodian, finding the only basis for awarding such status is the Kansas Code for Care of Children, specifically K.S.A. 2016 Supp. 38-2272. The court ruled its decision was controlled by Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974) (grandmother not an interested party, not entitled to notice of stepparent adoption), and In re Adoption of J.A.B., 26 Kan. App. 2d 959, 969, 997 P.2d 98 (2000) (no error in district court holding grandparent had standing to participate in adoption proceeding solely on issue of visitation but "grandparents' rights in the adoption proceeding are limited to a determination of whether reasonable visitation should be granted").
Grandmother appealed, and the Court of Appeals affirmed the district court. In re Adoption of T.M.M.H., No. 115,309, 2016 WL 7032112 (Kan. App. 2016) (unpublished opinion).
The Court of Appeals panel began its legal analysis by questioning whether jurisdiction existed because the appeal had not been taken from a final order. 2016 WL 7032112, at *2. The panel concluded it had jurisdiction under the collateral order doctrine because the district court order conclusively determined the issue of Grandmother's standing; the standing issue was an important one separate from the merits of the adoption; and an immediate appeal was required because, otherwise, Grandmother would be powerless to appeal a final judgment in the adoption proceeding. 2016 WL 7032112, at *3.
Next, the panel addressed the significance of the joint legal custody arrangement between Mother and Grandmother. The panel looked to Kansas statutes for a definition of joint legal custody. The only reference it found was in the context of custody between divorcing parents. The panel then looked to the record for clarification of the nature of the agreement between Mother and Grandmother. It found the record contained only two relevant documents: a journal entry filed in the grandparent visitation case on September 30, 2015, and the order finding Grandmother lacked standing in the stepparent adoption case. The panel concluded Grandmother failed to designate sufficient facts to support her claim; the district court decision was proper in the absence of a sufficient record; and Kansas statutory law did not require a different result. 2016 WL 7032112, at *6.
The panel then considered whether grandparents have any rights in cases of stepparent adoption generally. 2016 WL 7032112, at *6. The panel reviewed the persons who are required to provide consent to a stepparent's adoption, which does not include a grandparent even when the grandparent has visitation rights. The panel ruled the statute
authorized the district court to provide notice to Grandmother, which the district court had done, but that notice did not give Grandmother a right to "conduct depositions or otherwise participate in the adoption hearing." 2016 WL 7032112, at *6.
The panel, while acknowledging that Grandmother's relationship was unique, observed that guardianship was the legal status most analogous to that conferred upon Grandmother. 2016 WL 7032112, at *7. The panel then determined that the parental preference doctrine applied. It rejected Grandmother's argument that Mother had waived her parental preference by agreeing to share joint legal custody with Grandmother, because Grandmother failed to meet her burden of proving a knowing waiver of the preference. 2016 WL 7032112, at *8.
Finally, the panel rejected Grandmother's argument that she should be allowed to participate in the stepparent adoption to advocate for the best interests of the child, concluding the best interests test did "not apply in determining a fit parent's custodial right as against a third-party nonparent's right." 2016 WL 7032112, at *8. The panel concluded: "[E]ven if the record had fully supported Grandmother's claim that her status as a joint legal custodian of the child generally gives her the right to make decisions in the best interests of the child, that right must yield to the conflicting right of the fit Mother." 2016 WL 7032112, at *8.
Grandmother filed a petition seeking this court's review of the Court of Appeals decision, which we granted.
The sole issue in this case is whether the district court erred when it determined Grandmother was not an interested party—and therefore did not have standing—to
participate in the stepparent adoption. That issue requires us to interpret Kansas statutes and the legal effect of the parties' agreement and court orders. These are questions of law over which this court exercises unlimited review. State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 48, 392 P.3d 68 (2017) (statutory interpretation); Gannon v. State, 298 Kan. 1107, 1122, 319 P.3d 1196 (2014) (standing); Frazier v. Goudschaal, 296 Kan. 730, 748, 295 P.3d 542 (2013) (interpretation and legal effect of written instruments).
To explore the issue of standing, we necessarily start with some basic principles: The Kansas Constitution imposes a case-or-controversy requirement. Sierra Club v. Moser, 298 Kan. 22, 29, 310 P.3d 360 (2013); State ex rel. Morrison v. Sebelius, 285 Kan. 875, 895-96, 179 P.3d 366 (2008). Part of that requirement, and a component of our subject matter jurisdiction, is standing. Sierra Club, 298 Kan. at 29. We have described standing as "'a party's right to make a legal claim or seek judicial enforcement of a duty or a right.'" KNEA v. State, 305 Kan. 739, 746, 387 P.3d 795 (2017).
Before us, Grandmother argues the Court of Appeals erroneously focused on various statutes to determine if she had standing to contest the adoption proceeding rather than focusing on whether she met the common-law standing test. Under the common-law test a party seeking to establish standing must have a "sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy." Moorehouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996). Accordingly, Grandmother at least implies she need only establish common-law standing.
In making this argument, Grandmother does not discuss the two-prong standing test that applies when a statute provides the basis for asserting a right to seek a judicial remedy. Under this test, courts analyze standing as a matter of (1) statute and (2) common law. Sierra Club, 298 Kan. at 29. Meeting only one prong or the other is
insufficient; both prongs must be established. See Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 908-09, 249 P.3d 434 (2011).
The first question, of course, is whether that test applies in adoption proceedings. Most cases applying the test arise under the Kansas Judicial Review Act (KJRA), K.S.A. 2016 Supp. 77-601 et seq., but it has been applied when standing is dictated by other statutes as well. E.g., Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 112122, 307 P.3d 1255 (2013) (plaintiff-association required to establish standing under the Historic Preservation Act and traditional-associational standing); Cochran, 291 Kan. at 903-10 (considering standing under the Kansas Water Appropriation Act and KJRA when both provided a basis for standing and were not in conflict with each other and traditional standing analysis).
Grandmother does not suggest any reason both prongs of the standing test would not apply in a stepparent adoption case, and several aspects of adoption law suggest that the statutory test must be met. Indeed, "[a]doption was not recognized at common law, and subject matter jurisdiction over such a proceeding is created by statute." In re Adoption of H.C.H., 297 Kan. 819, 825, 304 P.3d 1271 (2013). Likewise, "[t]he right to appeal [in civil cases, including actions involving parental rights,] is entirely statutory and is not a right contained in the United States or Kansas Constitutions." In re T.S.W., 294 Kan. 423, 432, 276 P.3d 133 (2012). Furthermore, past cases of this court dealing with standing issues in the context of adoption have focused on statutory standing, even if not explicitly using those words or setting out the two-prong test.
For example, in Browning, this court recognized a stepparent adoption would impact a grandmother's ability to exercise her visitation rights with her grandchild. In other words, she would suffer injury. But instead of deciding standing on that basis—i.e., common-law standing—the court examined the statute that dictated who must consent to
an adoption. Noting that the grandmother's consent was not required in the stepparent adoption, the court concluded there was nothing she "could have done to defeat the adoption" and she was not an interested party. 215 Kan. at 506.
This same conclusion applies in this case as it relates to Grandmother's status as a grandparent with visitation rights. But she asserts additional grounds for her standing. Even as to those, however, Browning instructs that statutory standing must be established in addition to common-law standing.
Consequently, we hold Grandmother, in order to appeal, must establish both statutory and common-law standing; she cannot rely solely on common-law standing. Statutory Standing and the Right to Appeal
Statutory standing in the current adoption case is governed, in part, by K.S.A. 2016 Supp. 59-2401a, which is not found in the Kansas Adoption and Relinquishment Act (KARA), K.S.A. 59-2111 et seq., but explicitly includes appeals in adoption cases. In an adoption proceeding, "an interested party" may bring an appeal "from any final order, judgment or decree." K.S.A. 2016 Supp. 59-2401a(a), (b).
The Court of Appeals panel, focusing on this statute, issued a show cause order and eventually asked the parties to brief the question of whether a final order was being appealed. Ultimately, the panel determined a final order was not involved but the appeal could still be brought under the collateral order doctrine. 2016 WL 7032112, at *3. Stepfather did not cross-petition for review of this issue. Typically, this would preclude our review of the question. See Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 56) ("[I]ssues before the Supreme Court include all issues properly before the Court of Appeals which the petition for review or cross-petition allege were decided erroneously
by the Court of Appeals."); State v. Keenan, 304 Kan. 986, 993, 377 P.3d 439 (2016) ("Because the State did not cross-petition to challenge the Court of Appeals' preservation ruling in favor of [the defendant], we will not consider whether the panel erred on this point.").
Nevertheless, because jurisdiction may be raised sua sponte by a court, this rule may not be applicable in this situation. See Kansas Bldg. Industry Workers Comp. Fund v. State, 302 Kan. 656, 666, 359 P.3d 33 (2015) ("An appellate court can make a sua sponte inquiry into whether it has jurisdiction over a question presented to it on appeal."). In this case, however, little would be gained by reopening the question without further briefing by the parties, especially when we determine Grandmother has failed to establish a record sufficient to show she meets the interested party requirement of K.S.A. 2016 Supp. 59-2401a, which means this court lacks jurisdiction over this appeal on that basis even if the lack of a final order is not determinative.
To explain our conclusion that this court lacks jurisdiction, we return to K.S.A. 2016 Supp. 59-2401a, which defines "interested party" by listing eight categories of individuals. One provision relates only to adoption cases; it specifies that "'interested party'" means: "The parent in a proceeding pursuant to" the KARA. K.S.A. 2016 Supp. 59-2401a(e)(1). But two general provisions apply as well. One general provision allows an appeal by "the petitioner in the case on appeal" and the other by "any other person granted interested party status by the court from which the appeal is being taken." K.S.A. 2016 Supp. 59-2401a(e)(7), (8).
Notably, this statute does not include grandparents or legal custodians in the definition of "interested parties." Cf. In re D.D.P., Jr., 249 Kan. 529, 542, 819 P.2d 1212 (1991) ("If the grandfather has standing to appeal [in this child-in-need-of-care proceeding], then he must have been designated an 'interested party.'"). As a result, we
need not consider three of the four issues presented in Grandmother's Court of Appeals brief because they relate specifically to Grandmother's status as joint legal custodian. Even if the district court erred in its rulings regarding Grandmother's rights as a legal custodian, that status was insufficient to grant statutory interested party standing.
Grandmother Was Not the Petitioner and Was Denied Interested Party Status
Considering the three categories of interested party listed in K.S.A. 2016 Supp. 59-2401a(e)—a parent, the petitioner, and a person designated by the district court as an interested party—we begin with the most straightforward: Stepfather filed the petition in this case, and therefore Grandmother cannot claim to be an interested party because she is a petitioner.
Turning to another category, we conclude Grandmother cannot appeal as someone granted interested party status. Although the district court initially ordered notice be given to Grandmother as an interested party, the court ultimately denied Grandmother interested party status. Moreover, Grandmother does not rely on her interested party status as the basis for her appellate standing. Nor does she assert her standing arises from her temporary status as an interested party. As such, she has waived any such argument. "'Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue. "Where the appellant fails to brief an issue, that issue is waived or abandoned."'" State v. Angelo, 306 Kan. 232, 236, 392 P.3d 556 (2017) (quoting McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 ).
Instead, Grandmother presents the issue on appeal as one arising because she does not have interested party status; she argues the district court erred in denying her that status. Thus, as the issue is presented to us, Grandmother's standing to appeal cannot
stand on her designation as an interested party. Although this may appear harsh or unfair because it leaves someone who believes the district court erred when denying interested party status without an appellate remedy, no arguments have been presented suggesting we must interpret the statute in some way other than its plain language. Any such arguments have also been waived. See Angelo, 306 Kan. at 236. Furthermore, the right to appeal is statutory and only the legislature can revise the statute. See In re Condemnation of Land v. Stranger Valley Land Co., 280 Kan. 576, 578, 123 P.3d 731 (2005).
Grandmother Has Not Established a Basis for Determining Parentage
This leaves the third category of "parent" and Grandmother's arguments as to why she should be considered a parent. Grandmother argues she has statutory standing as a parent, either because of the court orders, because of her agreements with Mother, or because of her de facto relationship with T.M.M.H.
We first note that Grandmother primarily relied on different arguments before the district court where she told the court she was "asserting her rights as a custodian"; "her standing arises because of her status of legal custodian"; and "Legal parents and Legal Custodians rights are different." And the district court's ruling focused on these arguments. Nevertheless, Grandmother also argued Mother had waived her parental preference and made Grandmother a co-parent. She asserted "the general class of 'parent' includes [Grandmother] as a permanent legal custodian, a status that was granted by [Mother] and confirmed by later court action." In support of that argument, Grandmother relies on two Kansas cases to argue the parental preference can be waived or shared by agreement with a third party—that is, someone other than the biological or adoptive parent: Frazier, 296 Kan. at 753, and In re Marriage of Nelson, 34 Kan. App. 2d 879, 884, 125 P.3d 1081 (2006).
In Frazier, this court enforced parenting agreements between a birth mother and her same-sex partner. The first agreement was entered into before the birth of the first child. The agreement—and a similar one entered into before the birth of a second child— identified the same-sex partner as a "de facto parent," specified that her "'relationship with the children should be protected and promoted,'" and expressed the parties' intention "'to jointly and equally share parental responsibility.'" The agreements further provided the parties would pay child support and jointly make major decisions affecting the children. Each woman also executed a will naming the other as the children's guardian. The same-sex partner invoked the court's equitable jurisdiction to specifically enforce the agreements. 296 Kan. at 733-34.
In enforcing the agreements, this court found the co-parenting agreements were "not rendered unenforceable as violating public policy merely because the biological mother agreed to share the custody of her children with another, so long as the intent, and effect, of the arrangement was to promote the welfare and best interests of the children." 296 Kan. at 751. The court discussed the parental preference doctrine, on which Stepfather in this case heavily relies. Under that doctrine:
"[A] parent who is not found to be unfit, has a fundamental right, protected by the Due Process Clause of the United States Constitution, to the care, custody and control of his or her child, and . . . the right of such a parent to custody of the child cannot be taken away in favor of a third person, absent a finding of unfitness on the part of the parent." Sheppard v. Sheppard, 230 Kan. 146, 154, 630 P.2d 1121 (1981).
The Frazier court determined "parental preference can be waived and . . . courts should not be required to assign to a mother any more rights than that mother has claimed for herself." 296 Kan. at 753 (citing In re Marriage of Nelson, 34 Kan. App. 2d 879). Thus the court gave effect to the natural mother's waiver of parental preference in favor of a third party when the waiver was made knowingly, intelligently, and voluntarily.
296 Kan. at 751-52. The court also gave effect to the agreement's designation of the same-sex partner as a de facto parent. 296 Kan. at 753.
A Court of Appeals panel similarly gave effect to a parent's waiver of the parental preference doctrine in In re Marriage of Nelson, 34 Kan. App. 2d 879, the second case cited by Grandmother. There, both biological parents knowingly waived the parental preference doctrine during divorce proceedings and agreed to grant custody to a paternal aunt of the child. Later, when the mother sought custody and asserted she was entitled to custody under the parental preference doctrine, the panel held the mother could not rely on the doctrine after she had voluntarily and expressly waived it. 34 Kan. App. 2d 88384.
Grandmother argues Frazier and In re Marriage of Nelson support her argument that she can be a grandparent and, through agreements with Mother and orders of the grandparent visitation court, also be legally and emotionally a co-parent. And before the district court in her verified brief she asserted T.M.M.H. had spent "90% of his young life with [her] as primary caregiver." She also explained she had provided all financial support during the time the mother had "surrendered custody." She further asserted "the general class of 'parent' includes [her] as a permanent legal custodian."
The Court of Appeals panel did not discuss these possibilities in depth because it correctly concluded the record on appeal in this case is insufficient to know the exact contours of any of the agreements between Mother and Grandmother. The panel noted the parties described the agreements using a variety of terms but nothing in the record allowed a determination of "whether the agreements merely establish where the child will reside during the year, or if they establish additional duties and responsibilities such as having control of the minor and providing for the minor's care, treatment, habilitation, education, support, and maintenance." In re Adoption of T.M.M.H., 2016 WL 7032112,
at *6. In light of the lack of information, the panel held that Grandmother failed to meet her burden of establishing standing. 2016 WL 7032112, at *6 (citing Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 ).
Until the Court of Appeals decision, the issue of Grandmother's burden of persuasion received little discussion by the parties. And no Kansas case discusses the issue in much detail in the context of a probate case. In other contexts, we have recognized that the nature of the burden to establish the elements of standing, which rests with the party asserting it, "depends on the stage of the proceedings." Gannon v. State, 298 Kan. 1107, 1123, 319 P.3d 1196 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 ). In most civil cases,
"[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.' [Citation omitted.] In response to a summary judgment motion, however, the plaintiff can no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' [citation omitted], which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be 'supported adequately by the evidence adduced at trial.'" Lujan, 504 U.S. at 561.
These stages do not fit exactly with procedures under KARA or the Probate Code in general. Nevertheless, they persuasively suggest a framework for our analysis that requires elevating the level of proof. See, e.g., In re Estate of Cipra, 173 Kan. 334, 337, 246 P.2d 267 (1952) (When no specific provision of the Probate Code addresses a pleading issue, this court has looked to cases dealing with civil procedure for guidance.).
Regarding the lowest possible burden, Grandmother did not advance an argument that the district court should adjudicate standing based on mere assertions in her brief.
See Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 264-65, 275 P.3d 869 (2012) (at the pleading stage, the party asserting standing has the burden to establish a prima facie case of standing, that is, a basis when viewed in the light most favorable to the party). As such, any such issue has not been preserved for appeal. See State v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015) (generally an issue must be raised in district court in order to be preserved for appeal).
In fact, Grandmother moved beyond mere pleadings by filing a verified "Brief Showing as a Legal Custodian [Grandmother] Has Standing" with the district court. We have treated verified documents as evidence as long as not "verified on information and belief." State, ex rel., v. Molitor, 175 Kan. 317, 325, 263 P.2d 207 (1953); see Sperry v. McKune, 305 Kan. 469, 488, 384 P.3d 1003 (2016). In Grandmother's verified brief, she asked the district court to take judicial notice of the record in the visitation case and she submitted some—but not all—of the relevant documents as attachments. Grandmother also presented, via an attachment to her verified brief, a "Journal Entry and Order" from the grandparent visitation case. It decrees Mother and Grandmother have "joint legal custody" of the child.
The Journal Entry and Order, however, does not address whether Mother made a knowing, intelligent, and voluntary waiver of her parental preference—a point Grandmother must establish in order to advance her theory that Mother waived her parental preference and granted parental status to Grandmother, thereby conferring a basis for standing. See Frazier, 296 Kan. at 751 (to give effect to a natural mother's waiver of parental preference in favor of a third party, the waiver must be made knowingly, intelligently, and voluntarily). And Grandmother's own verified statements do not assert that Mother voluntarily and knowingly waived her parental preference. Even at the most minimal level of persuasion, a party with the burden of establishing standing
must make a prima facie argument. Lujan, 504 U.S. at 561. Grandmother has failed to do so.
We acknowledge Grandmother attached to her petition for review an e-mail chain with the judge presiding over the adoption case who indicated he did "not think those documents are part of the record for the appeal that has been filed." But this e-mail is not a ruling that is part of the record of this case. See Supreme Court Rules 3.01, 3.02 (2018 Kan. S. Ct. R. 19); Supreme Court Rule 6.02(b) (2018 Kan. S. Ct. R. 34) ("The appendix is for the court's convenience and is not a substitute for the record itself." [Emphasis added.]); Supreme Court Rule 6.03(b) (2018 Kan. S. Ct. R. 35); see also State v. Brownlee, 302 Kan. 491, 505, 354 P.3d 525 (2015); State v. Warren, 302 Kan. 601, 614, 356 P.3d 396 (2015) (court would not consider documents appended to brief but never formally introduced as evidence or added to record); Rodriguez v. U.S.D. No. 500, 302 Kan. 134, 144, 351 P.3d 1243 (2015) (court would not rely on appendix to brief not part of the record below). We therefore do not consider the e-mail chain in our analysis.
Granted, Grandmother asked the judge in the stepparent adoption case to take judicial notice of the pleadings, orders, files, and records of the visitation case. But the record on appeal does not include a ruling by the judge on Grandmother's request. The fact that the judge later refused to make the files and records of the visitation case a part of the record on appeal in this adoption case suggests the judge either denied the request or never ruled on it.
Nor did Grandmother argue in her brief before the Court of Appeals that the district court erred in failing to formally take judicial notice of the files and records in the grandparent visitation case. And she did not ask the Court of Appeals to take judicial notice. These failures also constitute waivers of these arguments. Angelo, 306 Kan. at 236.
Finally, we note that Grandmother has not addressed these procedural hurdles. Although Grandmother pointed out her efforts to have the district court consider the visitation case records, she did not argue for a prima facie standard of review or cite any authority supporting that view. Typically, we consider such a failure to be a waiver or abandonment of argument. See Angelo, 306 Kan. at 236.
Understandably, given the state of the record and the arguments made by Grandmother, the Court of Appeals appropriately concluded:
"As the party making the claim, Grandmother bears the burden to designate facts in the record to support that claim; without such a record, we presume the action of the district court was proper. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 (2013). Because no other information is provided in the record on appeal regarding the joint legal custody agreement we presume the district court's findings set forth above were proper." In re Adoption of T.M.M.H., No. 115,309, 2016 WL 7032112, at *6 (Kan. App. 2016) (unpublished opinion).
Moreover, in Grandmother's petition for review of the Court of Appeals decision, she did not mention this holding, much less argue it was erroneous. Under Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54), this court "will not consider issues not presented or fairly included in the petition [for review]." While Grandmother did ask this court to take judicial notice of the files and records in the grandparent visitation case, she did not provide authority for us to do so when the district court had not explicitly ruled on her request at that level and that failure had not become an issue on appeal. Finally, Grandmother asserts that record could be added with this court's leave, but cites no authority for this court to do so. While this court has authority to add additional parts of the record from this case, that authority does not extend to adding portions of the record
from another case. See Supreme Court Rule 3.01 (2018 Kan. S. Ct. R. 19); Supreme Court Rule 3.02(c)(1)(A), (d) (2018 Kan. S. Ct. R. 19).
Grandmother, supported by amicus curiae, also argues her de facto parental status has created an emotional bond that the law protects (or at least should recognize and protect) and that gives her standing as a psychological parent to protect the best interests of the child. The issue of her standing as a psychological parent was not preserved for this court's review, however. We reach this conclusion for two reasons.
First, although Grandmother argued in district court proceedings that she was a psychological parent, the court did not make findings of fact or conclusions of law related to the issue. A party "has the obligation to object to inadequate findings of fact and conclusions of law in order to preserve an issue for appeal because this gives the trial court an opportunity to correct any findings or conclusions that are argued to be inadequate." Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013) (citing Supreme Court Rule 165 [2018 Kan. S. Ct. R. 215]).
Second, in Grandmother's arguments to the Court of Appeals, she coupled her status as an alleged psychological parent to the legal authority granted to her by the parenting agreements and the court orders. This approach was in keeping with Frazier, 296 Kan. at 752, in which we noted the psychological parent theory had not yet been accepted by this court absent a written agreement between a birth parent and a de facto parent. Before us, Grandmother attempts to uncouple her status as an alleged psychological parent from her arguments about the parenting agreements and court orders. This creates a new issue of first impression, which she had not presented to the Court of Appeals, or, at least, was not decided by the Court of Appeals. In seeking review of the Court of Appeals decision, Grandmother did not comply with Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 53) (In a civil case, the party seeking this court's
review of a Court of Appeals decision must make "[a] statement of the issues decided by the Court of Appeal of which review is sought," and "must list, separately and without argument, additional issues decided by the district court which were presented to, but not decided by, the Court of Appeals.").
As a result of all these procedural failures, Grandmother has achieved the trifecta of reasons an issue is not preserved for this court's review: She failed to preserve various issues relating to statutory standing at the district court, the Court of Appeals, and before this court. Because of Grandmother's failure to meet the statutory prong of the standing test, we need not discuss her arguments about common-law standing.
We acknowledge the parties have made numerous filings following Grandmother's petition for review. Specifically, Grandmother filed a motion to strike Stepfather's reply brief to an amicus brief filed in this case. Upon filing this opinion, we deny this motion as moot.
We also note both parties filed Rule 6.09 letters in this case. Supreme Court Rule 6.09(a)(3) (2018 Kan. S. Ct. R. 39) allows a party to advise the court of persuasive or controlling authority that was published or filed after a petition for review is filed but before the court has ruled on the petition. Both parties submitted filings made in the grandparent visitation case. It is questionable that, in the context of this case, these filings constitute "authority." In these unique circumstances, the filings operate more as an attempt to supplement the record. This is not the purpose of a 6.09 letter. Moreover, Rule 6.09(b) requires the letter "contain a reference to either the page(s) of the brief intended to be supplemented or to a point argued orally to which the citation pertains." Both parties failed to comply with the requirements of Rule 6.09(b). The various 6.09 letters are thus improper and will not be considered. See State v. Herbel, 296 Kan. 1101, 1125, 299 P.3d 292 (2013).
Outcome: In conclusion, our ruling is limited to the issue presented in this case: Whether Grandmother has established she is an interested party under the KARA and the Probate Code. We answer this question in the negative on procedural grounds only. We do not reach, and therefore we take no position on, the merits of Grandmother's claim she is a parent by virtue of the agreements and court orders entered in the visitation case. The record is insufficient for us to do so.
For the foregoing reasons, judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.