IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,935
STATE OF KANSAS/STATE OF IOWA, ex rel.,
SECRETARY OF SOCIAL AND REHABILITATION SERVICES,
and
ELLEN HOLMES,
Appellants,
v.
TIMOTHY R. BOHRER,
Appellee.
SYLLABUS BY THE COURT
1. The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court's interpretation.
2. When an applicable statute is amended while an appeal is pending, and counsel for both sides have had an opportunity to brief and argue the effect of the amended statute, the appellate court will consider and construe the amended version of the statute.
3. In determining whether a statute applies retroactively or prospectively, the general rule is that a statute only operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. However, notwithstanding such clear language, when an amendment to an existing statute or a new statute is enacted which prejudices a party's substantive rights, it will not apply retroactively.
4. A statute that creates a new liability for child support that did not previously exist establishes a duty and, therefore, affects a substantive right and so may not be applied retroactively.
5. Parents have a common-law duty to support their minor children, regardless of any statute imposing such an obligation. This common-law duty of support continues until the child reaches the age of majority, or the death of the child or the obligor parent. The common-law duty of support ends, however, if parental rights are terminated.
6. We have recognized three statutory methods by which parental rights are terminated: (1) adoption, under K.S.A. 59-2111 et seq.; (2) termination of parental rights under K.S.A. 38-1581 et seq.; and (3) relinquishment of parental rights under K.S.A. 59-2124.
7. When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute's language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature's intent.
8. A voluntary relinquishment of parental rights, adoption, or involuntary termination of parental rights effects a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent. The parent whose rights have been severed is relieved of all duties and obligations to the child. In each case, the loss of parental rights is complete and includes the termination of the right to inherit from or through the child and the right to notice of and consent to subsequent adoption.
9. The termination of parental rights is an extremely serious matter and may be accomplished only in a manner which assures maximum protection to all of the rights of the natural parent and of the child involved.
10. Unlike the statutes concerning voluntarily relinquishment of parental rights, adoption, and involuntary termination of parental rights, the statutes providing for consensual appointment of a permanent guardian under K.S.A. 38-1587 do not contemplate a complete severance of the parent's ties to the child and, thus, the appointment of a permanent guardian under K.S.A. 38-1587 does not terminate the obligation of the natural parent to support his or her child.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 3, 2007. Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed August 8, 2008. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed.
Randy M. Barker, of Kansas Department of Social and Rehabilitation Services, argued the cause and was on the brief for the appellant.
William R. Griffith, of Wichita, argued the cause and was on the brief for the appellee.
The opinion of the court was delivered by
ROSEN, J.: This is an action under the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9,101 et seq., filed by the Kansas Department of Social and Rehabilitation Services (SRS) against the respondent, Timothy Bohrer. SRS seeks reimbursement of child care assistance paid by the State of Iowa to Ellen Holmes, the permanent guardian of the respondent's minor child, S.B. SRS also seeks an order of future child support and an order requiring Bohrer to provide medical coverage for S.B.
The district court ruled that Bohrer was not liable for child support because the permanent guardianship appointment effectively terminated Bohrer's parental rights and, thus, terminated his duty to support S.B. SRS appealed. A divided panel of the Court of Appeals reversed. State v. Bohrer, No. 95,935, unpublished opinion filed August 3, 2007. We granted Bohrer's petition for review, and hold that the permanent guardianship appointment was not the equivalent of a termination of parental rights and did not relieve Bohrer of his duty to support S.B. Accordingly, we affirm the judgment of the Court of Appeals reversing the district court.
Facts
The underlying facts are not in dispute. S.B. was born to Timothy Bohrer and Tracy Saxton (formerly known as) Bohrer on February 28, 1994. They divorced 1 year later, and physical custody of S.B. alternated between them for several years. In 1999, the State of Kansas initiated a CINC proceeding concerning S.B. S.B. was initially placed into foster care, but by February 2001, S.B. was living in Iowa with her maternal great-grandmother, Ellen Holmes.
SRS filed a motion in the CINC case seeking appointment of Holmes as permanent guardian. On May 25, 2001, Bohrer and Saxton consented to Holmes' appointment as the permanent guardian of S.B. The district court appointed Holmes as the permanent guardian. Thereafter, the court released S.B. from SRS custody and closed the CINC case.
Procedural Background
On March 23, 2005, SRS filed the present suit seeking reimbursement from Bohrer for funds expended by the State of Iowa on behalf of S.B., and an order for future child support and medical coverage. For the time period from February 2001 to November 2005, the state of Iowa provided public assistance to Holmes for the care of S.B. in excess of $10,000.
Bohrer opposed the action, arguing that the appointment of Holmes as S.B.'s permanent guardian, pursuant to K.S.A. 38-1501 et seq., effectively terminated his parental rights to S.B., including his obligation of support. SRS countered that the appointment of a permanent guardian is not the equivalent of a termination of parental rights and does not relieve a natural parent of the obligation to support his or her child. The district court agreed with Bohrer and held that the permanent guardianship terminated Bohrer's obligation to support S.B. SRS appealed to the Court of Appeals.
While the appeal was pending before the Court of Appeals, the legislature enacted the Revised Kansas Code for Care of Children (Revised Code). L. 2006, ch. 200. The Revised Code specifically states that the appointment of a permanent custodian (formerly "permanent guardian") without a termination of parental rights does not terminate the parent's duty to provide child support and medical support. See K.S.A. 2006 Supp. 38-2272(h)(1). After providing the parties an opportunity to submit supplemental briefs on the retroactive application of the recent amendments, a divided panel of the Court of Appeals reversed. The majority applied the provisions of the Revised Code retroactively, holding that the appointment of a permanent guardian under the previous version of the Code did not relieve Bohrer of his common-law duty to support his minor child; therefore, applying the new law retroactively would not prejudice Bohrer's substantive rights. State v. Bohrer, slip op. at 11.
Judge McAnany dissented, concluding that under the language of the permanent guardianship statutes in effect at the time, the permanent guardian assumed all parental obligations, including support. Because Bohrer had been relieved of the obligation to support S.B., Judge McAnany believed that retroactively applying the new statute imposing a support obligation prejudiced Bohrer's substantive rights. State v. Bohrer, slip op. at D-2-D-3 (McAnany, J., dissenting).
Discussion
The issue we must determine is whether the appointment of a permanent guardian terminated Bohrer's obligation to support S.B. Resolution of this issue involves interpretation of the statutes concerning permanent guardianship; thus, our review is unlimited. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) ("The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court's interpretation.").
Statutes in effect in 2001
When the permanent guardianship in this case was created in 2001, the Kansas Code for Care of Children (Code) defined a "permanent guardianship" as
"a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining without ongoing state oversight or intervention by the secretary. The permanent guardian stands in loco parentis and exercises all the rights and responsibilities of a parent. A permanent guardian may be appointed after termination of parental rights or without termination of parental rights, if the parent consents and agrees to the appointment of a permanent guardian. Upon appointment of a permanent guardian, the child shall be discharged from the custody of the secretary." K.S.A. 2005 Supp. 38-1502(w).
The statutes provided for three different methods of appointing a permanent guardian: (1) by parental consent (K.S.A. 38-1587); (2) after a finding of unfitness but without a termination of parental rights (K.S.A. 2005 Supp. 38-1583[g]); and (3) after termination of parental rights (K.S.A. 38-1584[b][2]). The permanent guardianship in this case was by consent and agreement of the parents, without a finding of unfitness or a termination of parental rights, as provided under K.S.A. 38-1587:
"(a) A permanent guardian may be appointed after a finding of unfitness pursuant to K.S.A. 38-1583 and amendments thereto or with the consent and agreement of the parents.
"(b) Upon appointment of the permanent guardian, the court shall discharge the child from the custody of the secretary." (Emphasis added.)
2006 amendments
The Revised Code was enacted in 2006, and went into effect January 1, 2007. See L. 2006, ch. 200, sec. 121. The pertinent new statutes are set out below:
K.S.A. 2006 Supp. 38-2202(w) replaced the term "permanent guardian" with "permanent custodian," which is defined as "a judicially approved permanent guardian of a child pursuant to K.S.A. 2006 Supp. 38-2272, and amendments thereto."
K.S.A. 2006 Supp. 38-2272, governing the appointment of a permanent custodian, provides in relevant part:
"(a) A permanent custodian may be appointed:
(1) With the consent and agreement of the parents and approval by the court;
(2) after a finding of unfitness pursuant to K.S.A. 2006 Supp. 38-2269, and amendments thereto; or
(3) after termination of parental rights pursuant to K.S.A. 2006 Supp. 38- 2270, and amendments thereto.
. . . .
"(c) Subject to subsection (d), a permanent custodian shall stand in loco parentis and shall exercise all of the rights and responsibilities of a parent except the permanent custodian shall not:
(1) Consent to an adoption of the child; and
(2) be subject to court ordered child support or medical support.
. . . .
"(e) Absent a judicial finding of unfitness or court-ordered limitations pursuant to subsection (d), a permanent custodian may share parental responsibilities with a parent of the child as the permanent custodian determines is in the child's best interests. Sharing parental responsibilities does not relieve the permanent custodian of legal responsibility for the child.
. . . .
"(h) If a permanent custodian is appointed after a judicial finding of parental unfitness without a termination of parental rights, the parent shall retain only the following rights and responsibilities:
(1) The obligation to pay child support and medical support; and
(2) the right to inherit from the child.
(3) The right to consent to adoption of the child. All other parental rights transfer to the permanent custodian.
"(i) If a permanent custodian is appointed after termination of parental rights, the parent retains no right or responsibilities to the child."
Just as with the previous statutes concerning permanent guardianship, the Revised Code provides for the appointment of a permanent custodian in three ways: by consent of the parents; after a finding of unfitness but without termination of parental rights; and after a termination of parental rights. Unlike the Code provisions concerning permanent guardianship however, the Revised Code specifically states that where a permanent custodian is appointed without a termination of parental rights, the parent retains the obligation to support his or her minor child.
Consideration of amendments made while an appeal is pending
When an applicable statute is amended while an appeal is pending, and counsel for both sides have had an opportunity to brief and argue the amended statute, the appellate court will consider and construe the amended version of the statute. State ex rel. Stephan v. Board of Lyon County Comm'rs, 234 Kan. 732, Syl. ¶ 1, 676 P.2d 134 (1984).
Because counsel for both sides have had an opportunity to file briefs and argue the 2006 amendments to this court, we may consider the new statutes.
Whether the Revised Code should be applied retroactively
In determining whether a statute applies retroactively or prospectively, the general rule is that a statute operates only prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220, 73 P.3d 753 (2003). However, notwithstanding such clear language, when an amendment to an existing statute or a new statute is enacted which prejudices a party's substantive rights, it will not apply retroactively. 276 Kan. at 221; Halley v. Barnabe, 271 Kan. 652, 657, 24 P.3d 140 (2001).
In this case, the Revised Code contains clear language indicating the legislature intended that the 2006 revisions to the Code would apply retroactively as long as doing so would not prejudice the rights of a party:
"In addition to all actions concerning a child in need of care commenced on or after January 1, 2007, this code also applies to proceedings commenced before January 1, 2007, unless the court finds that application of a particular provision of the code would substantially interfere with the effective conduct of judicial proceedings or prejudice the rights of a party or an interested party, in which case the particular provision of this code does not apply and the previous code applies." K.S.A. 2006 Supp. 38-2283(a).
Thus, under both the case law on retroactive application and K.S.A. 2006 Supp. 38-2283(a), we must determine whether applying the 2006 amendments retroactively would prejudice Bohrer's substantive rights. Substantive laws establish the rights and duties of parties. In re Tax Grievance Application of Kaul, 269 Kan. 181, 184, 4 P.3d 1170 (2000). A statute that creates a new liability for child support that did not previously exist establishes a duty and, therefore, affects a substantive right. Cf. Gardner v. Gardner, 22 Kan. App. 2d 314, 317, 916 P.2d 43, rev. denied 260 Kan. 992 (1996) (applying amendment changing rules for dormancy of child-support judgments retroactively did not affect substantive rights as the amendments affected only the procedure by which the substantive rights are enforced).
It follows then, that determining whether the Revised Code applies retroactively depends upon whether the permanent guardianship extinguished Bohrer's support obligation when it was created in 2001. If it did, then the Revised Code would not be applied retroactively, as doing so would prejudice Bohrer's substantive rights by creating a new liability for child support that did not exist before the amendments. On the other hand, if the permanent guardianship did not terminate Bohrer's duty to support S.B., retroactive application of the amendments is unnecessary as the duty existed and continues to exist and, thus, it can be enforced. Therefore, the issue in this case depends entirely on determining whether the permanent guardianship, under the statutes in effect in 2001, extinguished Bohrer's duty of support.
We note Bohrer's argument that under K.S.A. 2006 Supp. 38-2283(a), the Revised Code only applies retroactively to child in need of care cases, which this is not. We also note Judge McAnany's contention that K.S.A. 2006 Supp. 38-2272(h) would not apply to this case in any event because it states that the parents retain the obligation to pay child support and medical support only where a permanent guardian is appointed after a finding of unfitness. Judge McAnany questions the applicability of the amendments because there was no finding of unfitness in this case. Because resolution of the issue at hand either precludes retroactive application of the Revised Code, or makes it unnecessary, we do not reach these issues.
The common-law duty of support
Parents have a common-law duty to support their minor children, regardless of any statute imposing such an obligation. See Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 (1956) (holding that a parent may not contract away his or her common-law duty to support his or her minor child). The court in Grimes discussed the nature of the common-law duty of support:
"'By the great weight of judicial opinion in this country parents are under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R.C.L. 622), the obligation being sometimes spoken of as one under the common law and sometimes as a matter of natural right and justice, and often accepted as a matter of course without the assignment of any reason. . . .
"'The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation . . . laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they only gave their children life that they might afterwards see them perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents." 1 Blackstone's Commentaries, 447.'" 179 Kan at 343 (quoting Doughty v. Engler, 112 Kan. 583, 584, 211 Pac. 619 [1923]).
Termination of the common-law duty of support
This common-law duty of support continues until the child reaches the age of majority, or until the death of the child or the obligor parent. See In re Marriage of Schoby, 269 Kan. 114, 116, 4 P.3d 604 (2000). The common-law duty of support ends, however, if parental rights are terminated. State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, 116, 804 P.2d 961 (1991). We have recognized three statutory methods by which parental rights are terminated: (1) adoption, under K.S.A. 59-2111 et seq.; (2) termination of parental rights under K.S.A. 38-1581 et seq.; and (3) relinquishment of parental rights under K.S.A. 38-125 et seq. (now K.S.A. 59-2124). Clear, 248 Kan. at 116. Thus, the question is whether the appointment of a permanent guardian under K.S.A. 38-1587 is the equivalent of a termination of parental rights.
We faced a similar issue in Clear. In that case, the issue was whether a parent's voluntary relinquishment of parental rights extinguished the parent's duty to provide child support. To determine the issue, we compared relinquishment of parental rights to adoption and involuntary termination of parental rights–two instances in which parental rights and obligations are severed. We noted that the characteristic hallmark of a termination of parental rights is the "'final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other and by replacement of the natural parent by another guardian or adoptive parent.'" Clear, 248 Kan. at 115 (quoting Roelfs v. Wallingford, Inc., 207 Kan. 804, 811, 486 P.2d 1371 [1971]).
Applying this standard, we concluded that the effect of a voluntary relinquishment of parental rights, like adoption and involuntary termination of parental rights, is "a complete severance of the child's ties and relationship with his or her natural parents. The parent whose rights have been severed is relieved of all duties and obligations to the child." Clear, 248 Kan. at 117. Accordingly, we held that a parent who relinquishes parental rights under K.S.A. 38-125 et seq. "is no longer a parent and is not liable . . . to repay SRS for any services or assistance expended on the children's behalf." 248 Kan. at 117.
Permanent guardianship is not one of the statutory means for termination of parental rights identified in Clear. Of course, the statutory procedure for appointment of a permanent guardian did not exist at the time of the Clear case. SRS argues that in enacting the permanent guardianship, the legislature did not intend to create a fourth method of termination.
The analysis employed in Clear provides a good framework for determining whether the appointment of a permanent guardian terminates a natural parent's common-law duty of support. To begin, we look to the language of the permanent guardianship statutes.
"When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute's language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature's intent. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006); CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 (2002)." In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007).
Bohrer contends that under the plain and unambiguous language of the permanent guardianship statutes, the permanent guardian stands in the place of the natural parent and assumes all of the natural parent's rights, duties, and responsibilities. First, Bohrer points to the language of K.S.A. 2005 Supp. 38-1502(w), which provided that the permanent guardian "stands in loco parentis and exercises all the rights and responsibilities of a parent." Second, Bohrer points to K.S.A. 2005 Supp. 38-1502(d), which defined "parent" to include "a guardian, conservator and every person who is by law liable to maintain, care for or support the child." (Emphasis added.)
SRS argues that Bohrer reads too much into the use of the term "in loco parentis" by construing it to mean a complete and total transfer of all parental rights, duties, and obligations to the permanent guardian. In support, SRS notes that the term is commonly applied to various third parties such as child care agencies, schools, etc., which, although they are said to stand in loco parentis, certainly do not assume all parental rights, duties, and obligations. See Dunn v. U.S.D. 367, 30 Kan. App. 2d 215, 231, 40 P.3d 315 (2002) (stating that "high schools act in loco parentis with respect to [their] students"). Moreover, it does not follow that simply because a person is standing in loco parentis, the natural parent is thereby relieved of all of his or her parental rights and duties.
We agree. Parental rights, duties, and obligations are not mutually exclusive. The fact the statute gives the permanent guardian in loco parentis status and the power to exercise "all of the rights and responsibilities of a parent," does not necessarily mean that the parent is thereby relieved of all parental rights and responsibilities. The focus of the language is on the duties and responsibilities assumed by the permanent guardian; it says nothing about the rights and duties retained by the natural parent. To determine whether the appointment of a permanent guardian terminates a parent's duty of support, we need to look not only at the rights and obligation assumed by the permanent guardian, but also the rights and obligations retained or lost by the natural parent, as the case may be.
Moreover, the fact that K.S.A. 2005 Supp. 38-1502(d) defined a parent to include "a guardian, conservator and every person who is by law liable to maintain, care for or support the child" is also not a clear and unambiguous indication that the legislature intended a permanent guardianship to essentially transfer all of a natural parent's rights and obligations to the permanent guardian. Because that definition uses the terms "guardian" and "conservator," it is reasonable to conclude the legislature merely intended to include guardians and conservators for minor children appointed under the Act for Obtaining a Guardian or a Conservator, K.S.A. 59-3050 et seq.
Because the version of the Code in effect in 2001 does not clearly and unambiguously state whether appointment of a permanent guardian terminates the natural parent's support obligation, we must determine legislative intent through statutory construction. See In re K.M.H., 285 Kan. at 79 (we apply canons of construction or rely on legislative history construing the statute only if the statute's language or text is unclear or ambiguous).
The district court relied heavily on the legislative history behind the permanent guardian statutes in determining the legislature intended a permanent guardianship to be the functional equivalent of a termination of parental rights. As the district court noted, when amendments to the permanent guardianship statutes were being considered in 1999, S.B. 355 included language in the definitional section, 38-1502(w), which specified that a permanent guardianship created without termination of parental rights would not terminate a natural parent's support duty:
"(w) 'Permanent guardianship' means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining without ongoing state oversight or intervention. The permanent guardian stands in loco parentis and exercises all the rights and responsibilities of a parent. When parental rights are not terminated, parents remain responsible for financial support. Upon appointment of a permanent guardian, the child in need of care proceedings shall be dismissed. A permanent guardian may be appointed after the termination of parental rights." S.B. 355. (Emphasis added.)
This language was removed from the final version of the bill in the conference committee. Sen. J. 1999, p. 955.
This legislative history is not conclusive. We have no way of knowing why the conference committee removed the language concerning the continuing duty to support from the final version of K.S.A. 38-1502(w). As SRS argues, the committee may have believed that the continuing duty of support in circumstances short of termination of parental rights was obvious and thus the language was unnecessary. On the other hand, the district court inferred that the language was removed because the conference committee intended that the appointment of a permanent guardian would terminate the duty of support. It is also possible there was a disagreement over whether a permanent guardianship should terminate a natural parent's duty of support, and the provision was removed to obtain passage. Each of these scenarios are based on nothing more than pure speculation. Thus, the evidence of the removal of the language providing for a continuing duty of support is of little value.
The district court also noted that Sue McKenna, SRS Legal Counsel for Family and Child Services, testified that upon awarding a permanent guardianship, the natural parent remains "the legal parent in name only." Minutes of the House Judiciary Committee, March 12, 1998. SRS argues that the district court placed too much emphasis on the committee's summarization of Sue McKenna's testimony. SRS notes that the summary is not a full record, but is only a highly summarized rendition of the testimony and answers to questions presented that day.
SRS points to other legislative history the district court ignored; specifically, the written testimony of Joyce Allegrucci, representing the Children and Family Services Commission, which was presented to the Senate Judiciary Committee on March 29, 1999. In her testimony concerning S.B. 355, Joyce Allegrucci stated:
"All children deserve to have permanency. This can be accomplished through reintegration with their birth family, adoption, or permanent guardianship. Permanent guardianship is an appropriate permanency option for children in kinship arrangements. These arrangements enable a child to have a safe permanent home without severing all ties to birth parents and extended families. Permanent guardianship is also viab