*1 96,003 No. Adoption Child A Minor Matter X.J.A., 12-21-2003.
Born (166 396) P.3d *2 Opinion 7, 2007. filed September Koksal, the cause and of of Lindner & Garden City, argued Scott Marquez, J. mother. natural was on brief appellant Kerbs, the brief for the cause and was on 1. of City, Glenn Dodge argued parents. appellees adoptive the court was delivered
The opinion us to determine This case validity Nuss, requires primarily J.: of her newborn a natural mother s written consent outside her consent was later child. Her acknowledged purported held that the The district court a notary adop- public. with the tive requirements substantially complied 59-2114, K.S.A. consent adop- approved tion, the natural mothers terminated rights. parental failure because of the reversed Court adoptive parents’ Appeals Acts, on with Uniform Law Notarial to substantially comply 2d et In re K.S.A. 53-501 App. Adoption X.J.A., seq. 621, (2006). K.S.A. 142 P.3d Our pursuant jurisdiction 20-3018(b) from for review adoptive parents). granted (petition are as fol- and our
The issues on holdings accompanying appeal lows: tire doctrine “sub- Did district court err in
1. applying consent for the statute written stantial governing compliance” 59-2114? No. adoption, the district evidence
2. Did substantial support competent that her consent was that Mother failed to establish court’s finding to address. Unnecessary involuntarily given? evidence the district
3. Did substantial competent support in a common-law were court’s finding thus the court decree of marriage, providing jurisdiction grant Yes. adoption?
Nevertheless, we reverse Court of and remand to Appeals the district court for further proceedings.
FACTS (Mother) Mexico, A.A. was bom Mexico 1979. City, early She moved to the United States with her when she was 10 family old. Mother attended school in this until years country approxi- 1997, but did not school or obtain a GED. mately complete high In March or Mother learned she was April 24-year-old time, At the she was in a trailer Garden pregnant. living City, Kansas, (Father), father, G.P.A., biological J.S. 13-month-old from a after daughter previous relationship. Shortly *3 later, Father learned she was he moved out. Two months pregnant, evicted, Mother was so she and her in moved with her daughter neighbor Guadalupe.
Mother told on two occasions that allegedly Guadalupe separate she desired an abortion. offered to so that she Guadalupe help would not have abort to the child.
When Mother was 5 or 6 months she met pregnant, Guadalupe’s sister, M.A., E.M., and M.A.’s who had lived companion, together for 14 children, wanted M.A. had been unable years. Although they M.A., to conceive. to Mother called and asked if M.A. According would Mother’s because she did not know how she adopt baby would care for two children. M.A. later discussed the possible with in Mother home. When Mother was 7 adoption Guadalupe’s or 8 months “Now, she told I’m pregnant, allegedly Guadalupe, to M.A. and E.M. later consulted going [M.A.].” give baby David adoption attorney, Snapp. Mother continued in home until December living Guadalupe’s 20, 2003. On Isaac, December her brother and three Guadalupe, friends took Mother to the Garden when she went City hospital into labor. Both and M.A. with Mother Guadalupe stayed during 21, labor. On December in M.A.’s Mother birth to presence, gave whom M.A. and E.M. named girl X.J.A. the hos- 23, Mother from December On up picked Guadalupe a Petition for M.A. and E.M. That same Adoption signed day, pital. him a form entitled obtained from in office and attorney Snapp’s in the remained Minor Child. The Consent girl Adoption time, concerns. due to health for more During days hospital and education received visited her and Mother counseling daily mothers. new 24, consent form December Mother
On adoption “I the form states: M.A. other hereby things, Among presented and and [M.A.] consent [E.M.] agree [X.J.A.] and I am the above consent have read and I understand I signing act.” free and voluntary my that same in returned the When M.A. form City Snapp Dodge acknow- Mother’s he reminded her that signature required day, the consent to a She then took notary acquaintance ledgment. M.A., her tax returns. Garden who had According City prepared M.A. After she told the “all that complied notary happened.” and to see accepted congratulations, baby notary’s request Mother was “notarized the present notary paper.” knew her. The there is no evidence preprinted notary states, 24, 2003, and is also dated December relevant part: aforesaid, “I, State in and for the certify a notarial officer [Finney] County consent, [Mother], is subscribed to the above and whose name foregoing execution of the above before me and duly acknowledged person appeared made in the consent that the statements foregoing duly acknowledged
are true.” from the M.A. December On discharged hospital; X.J.A. *4 to was
and E.M. were girl discharged Although present. Mother, to leave the to M.A. as she they prepared gave girl M.A. and E.M. went home to with City Dodge hospital. X.J.A. in M.A. to residence Garden while Mother went City. Guadalupe’s and indeed Mother see each weekend and E.M. to let agreed X.J.A. Garden for this later made to purpose. multiple trips City bom, her in the Women Mother enrolled after Shortly X.J.A. in which (WIC) Infants a food assistance Child program program, Mother with her other Mother provided daughter. participated items from the to M.A. Mother also obtained health in- program and took her to two medical surance for for X.J.A., appointments vaccinations. 29, December filed a for
On Snapp petition adoption, attaching An of Mother’s consent from earlier. af- days copy purported 2004, fidavit for service was filed and a hear- publication January 24, on the was scheduled for 2004. ing petition February 2004, In Mother traveled from Garden February City Dodge where she met with and M.A. Mother answered City Snapp ques- M.A., tions about herself and Father. Mother com- According municated English. Snapp 2004,
In March the district court conducted a fitness hearing evidence, M.A. and E.M. After the court concluded that hearing were “fit and to take and they proper persons temporary custody child, care and of the minor provide support [X.J.A.].” Mother, when M.A. E.M. and According stopped allowing 2004, her to visit she went to their home in May Dodge X.J.A. to ask for her Police were called and the City daughter. adoptive documents that an parents gave police showing adoption pro- had commenced. E.M. later testified that this was the first ceeding time he knew there was a problem. 19, 2004,
On October Mother filed a motion to withdraw con- motion, In sent she admitted that she “some- adopt. signed but did not admit to she believed to be a thing” signing anything consent to Nor did she admit to and adopt. freely voluntarily giving her consent to the adoption X.J.A. 2005, after the district court denied July hearing arguments,
Mother’s motion for found, The court later summary judgment. other had the burden of among things, Mother burden, the consent if met this proving they the burden shifted to Mother to establish the consent was not voluntarily given.
Trial occurred in November with 16 witnesses testifying. Consistent with the court’s prior ruling, adoptive parents began from their assistant who essen- presented testimony attorney’s obtained from Mother and them tially writing exemplars provided examiner, to forensic document Barbara Downer. Downer testified *5 that in on the consent form was her expert opinion, signature Mother’s.
Based on this initial district court ruled testimony, case that Mother’s established their facie prima and that the burden then shifted on the consent signature appeared to rebut facie evidence. After Mother to Mother pre- prima fianc, Ibarra, her Michael the court found sented the testimony had not rebutted. Mother then that evidence of her been signature with other evidence and to meet her burden proceeded attempted that the consent was involuntary. evidence was as to whether Mother ulti-
Conflicting presented trial, both Mother and M.A. mately agreed adoption. During Under direct examination her testified interpreter. through 24: Mother admitted document on December attorney, signing Do know if that’s you “Attorney: your signature? Yes, “Mother: it’s mine. You’re that document? sure you
“Attorney: signed it, “Mother: I don’t remember but that is mine.” signing signature In addition to Mother admitted that she admitting signature, birth, filled in the consent’s for her blanks date of age, place testified, however, and the she She that she did not day signed. know what the document was.
Mother denied that she ever told that she Guadalupe’s family Rather, would the child. she believed that M.A. and E.M. give up were her take care of the new she did simply going help baby; believe were they going keep permanently. support, X.J.A. Mother asserted that she told nurse at the that the baby hospital was not being given up adoption.
Mother testified that she a document in a car outside of sister house. She did not understand the doc- Sylvia’s Guadalupe’s ument felt it. and she into She believed that she signing pressured “[s]o, that there would be difficulties to take signing something back.” Mother also testified that when she met with baby Snapp she did not know the of the visit. Never- City, Dodge purpose theless, she did not she was M.A.’s and E.M.’s why question visiting attorney.
M.A.’s version of events was different. She denied quite *6 Rather, in Mother was a car when she the consent form. signed M.A. asserted that she met with Mother at M.A.’s sister Sylvia’s house, where she told Mother to read and the form. Mother sign form, read it When she finished Mother asked slowly. reading blanks, for a filled in the it back to M.A. pen, signed gave Mother did not ask any questions. M.A., to Mother the form between 7 and 8
According signed in the of M.A. and M.A.’s Guada- p.m. family including Isaac, and their mother. M.A. believed Mother “knew lupe, Sylvia, what she was and understood the content of the consent signing” form “because when she was she told me that she was pregnant her to me.” M.A. testified that she also had going give [X.J.A.] earlier observed Mother and fill out speak English hospital in To M.A.’s no one ever papers English. knowledge, put pressure on Mother to the consent. sign M.A.,
Like her sister contradicted Mother’s assertion Guadalupe that the consent was in the backseat of a car. She stated that signed the consent was at in house front of several wit- Sylvia’s nesses. When if asked she had reason to believe that Mother any did not understand that E.M. and M.A. were going adopt said, that, “I never no. It to me baby, Guadalupe thought appeared that it was all with her.” right sister, M.A.’s other discussed Mother’s
Similarly, Sylvia, ability to read and understand testified that Mother did English. Sylvia not ask about the consent form “because she knows any questions how to read me, well. And she has read letters for English very and she’s them [from interpreted English Spanish].”
M.A.’sbrother Isaac testified that Mother told him she was con- abortion. When asked about Mother’s statement that templating she stated, does not or read Isaac “she understands. speak English, And, talks, she and she writes. . . . and one she [on occasion] served as form, the consent he testi- my interpreter.” Concerning fied that in Mother filled in blanks his She did not presence. ask about it because based his any questions upon experience her, “she knows well to read and to write He con- very English.” consent, firmed that she read the asked for a pencil, signed. E.M., called M.A. to testified that Mother M.A/s companion, later drove to her child. The two tell her that could they adopt the details to discuss from their home Garden Dodge City City born, E.M. did not believe After with Mother. anything X.J.A. told M.A. could because Mother had had they changed previously the child. adopt communication with Mother testified about his early
Snapp 2004 in he asked for answers to his office. According Snapp, in a state form infor- contained concerning background questions He recorded her mation for a child being adopted. responses child; These include medical history English. responses Mother, medical, her and social history including genetic, from childbirth mother s diabetes and death complications; Father, medical, his and social history including genetic, *7 talked to Mother birthdate and some histoiy. Snapp employment not him reason to believe She did give any entirely English. were what she was do-
she did not understand why they meeting, actions. and the of her ing, consequences issued an memorandum decision the The district court 11-page After it had found that the month. adoptive following confirming consent, it had demonstrated Mother s on the signature also found that the constituted substantial compliance signature for an attested and that the statutory requirement signature the burden of shifted to Mother: proof on “2. The evidence Petitioners establishes [Mother’s] signature presented (even Consent in the of a notary Adoption though signed with the constitutes substantial compliance statutory requirement [and] public) which that the natural attested satisfies signature, requirement proof for herein, of the child and the burden shifts to mother did consent adoption the natural mother to show that the consent was not and voluntarily given.” added.) (Emphasis
The court further found that Mother did understand the consent 24: that she was on December signing form was dis- “18. . . . evidence established the fact that the consent [T]he it reviewed at the home of Adame before [Mother] cussed and [Sylvia] signed that she the form in the back seat of a to [Mother’s] (contrary testimony signed added.) car and did not know what she was signing).” (Emphasis law, of the In its conclusions of the court set forth purpose on a consent form: notarized signature K.S.A. 53-501 include for “7. The attesting sig- provisions requirements natures, on for the the document is signature purpose proving appearing document, the no- in fact that of tire who is but purportedly signing person who is iden- person
tarized provides only prima proof signature facie who in fact it for the asserted tified on the document is the one signed purpose added.) in court.” (Emphasis The court further concluded as a matter of law: “8. if the for It would be notarial patently unjust purpose requirement (to consent) attest a was defeated consents voluntary adoption free notarial officer’s failure to with the where the requirements comply signature inis fact signature genuine.” (Emphasis
The court concluded that Mother had failed to meet her burden and held that she and without coercion voluntarily adop- tion consent form for the purpose effecting adoption It therefore granted parental rights adoptive parents, X.J.A. terminated Mother s name. rights, changed girl’s The Court of held that the correct was not Appeals inquiry whether Mother’s consent was substantial with Kan- compliance statutes, sas but rather with the Uniform Law on Notarial Acts, K.S.A. 53-501 et It declared that because there was no seq. act, substantial with that burden of statutory proof shifted to the Mother to demonstrate unconstitutionally consent was not given freely voluntarily. burden is to refute the case “[T]he facie parent’s statutorily imposed prima *8 However,
voluntariness established the valid we do not be- by acknowledgment. lieve that an which does not with law acknowledgment substantially comply of notarial acts can establish the facie case. Without the requisite prima prima must, facie avia valid in the showing substantially acknowledgment, parent instance, first bear the burden of or her his fundamental proving liberty interest should not be taken. Pursuant to the rationale of In re that burden J.L., would violate the due 36 Kan. shifting parent’s right procedural process.” App. 2d at 629-30. the Court of reversed the district court Accordingly, Appeals without remand.
862
ANALYSIS
Issue 1: The district court did not err in
the doctrine
applying
“substantial
to the statute
written consent
compliance”
governing
KS.A. 59-2114.
adoption,
with
adoptive parents argue
they substantially complied
for a natural
consent to
statutory requirements
parent’s
adop-
tion. Mother
that the lack of a
acknow-
essentially responds
proper
renders
consent void ab initio.
ledgment
purported
child,
Consent
the natural
their
adoption
statute,
where
is
as an essential
required by
regarded
requisite
the court’s
a
to render valid decree of
In re
jurisdiction
adoption.
Trent,
224, 228,
(1981).
229 Kan.
P.2d
Adoption of
Whether
exists is a
of law over which we ex-
jurisdiction
question
Electric,
Greathouse,
ercise unlimited review. Schmidtlien
Inc. v.
810, 830,
(2005).
Our starts K.S.A. 59- analysis 2114(a), which provides: “Consent shall be and shall be before a of a writing acknowledged judge court of record or an authorized law to take acknowledgments. before officer record, If consent is before of a court of it shall be the acknowledged judge duty court to advise the consent. consenting person consequences executed,
A consent is final when unless the final decree consenting party, prior and clear and evidence that the consent adoption, alleges proves convincing was not The burden of the consent was not freely voluntarily given. proving shall rest with the voluntarily given consenting party.” (Emphasis is defined relevant in the Uniform
“Acknowledgment” part Law on Notarial Acts as declaration that the “[a] by person person has executed an instrument for the stated therein.” K.S.A. purposes 53-502(b).
The act further that in “the provides taking acknowledgment, determine, notarial officer must either from personal knowledge evidence, or from satisfactory person appearing before true whose making person officer
863 53- K.S.A. is on the instrument.” (Emphasis signature 503(a). defined as follows: evidence” is
“Satisfactory whose true is the evidence that person has person “A notarial officer satisfactory (1) the notarial known to if that is on a document personally is person signature witness officer, (2) of a credible the oath or affirmation personally identified upon (3) of identification doc- on the basis officer or identified to the notarial known 53-503(f). uments.” and dated certifi- must evidenced A notarial act be by signed short form certif- 53-508(a). Kansas’ Under cate. K.S.A. approved acts, in an individual icate of notarial capacity instrument was as follows:“This acknowledged may simply provide 53-509. me. . . .” K.S.A. before fulfill her obli- did not that the
It is
notary public
undisputed
with tire
did she
Kansas law. Nor
under
represen-
comply
gations
other
made in her certificate
tations
acknowledgment: among
nor did she
did not
Mother
acknowledge
appear
personally
things,
consent, i.e.,
in her
of the statements
execution and the truth
voluntarily.
understanding
signing
reading
must
statutes
We have stated
adoption
provisions
of natural
in favor of
construed
be
rights
maintaining
strictly
termination of the
in controversies involving
parent-child
Trent,
In a 5-2 the Trent court held that the consent was in substantial which, with K.S.A. 59-2102 similar to its compliance 59-2114, successor stated that “the written consent shall be before an officer authorized law to take acknowledged by added.) After substan- acknowledgments.” (Emphasis determining tial that the record left “no compliance finding question the written consents were 229 Kan. voluntarily given,” 229, at we stated: “A consent to executed in substantial adoption statutory require- ments is valid under K.S.A. 59-2102 in view subsequent judicial proceedings which were instituted the natural mother and which her a hearing afforded full all issues
upon
voluntariness of her consent.”
bearing upon
(Emphasis
224,
229 Kan.
4.
Syl. ¶
Thirteen
later in In re
years
Adoption
J.H.G.,
(1994),
865 obtained; (4) information since his consent required by the child’s Act Child Uniform (UCCJA), e.g., Custody Jurisdiction 5 had lived within where he or she address and past present Interstate Com- whether the (5) a statement concerning years; Welfare or the Indian Child of Children the Placement on pact to accom- documents (ICWA) The Act required missing applied. the child’s and natural were parents’ petition pany 59-2130 to K.S.A. information Supp. pursuant background and die detailed adoptive accounting expenses paid 795- 59-2121. 254 Kan. at to K.S.A. Supp. parents pursuant 96. 59-2128 that “K.S.A. 1993 court Supp. acknowledged J.H.G. (a) (“A (‘shall’).”See subsection
does use
pe-
mandatory language
*11
(f) (“[T]he
state”);
also subsection
. . . shall
see
tition for adoption
59-2130,
.
and . .
the
information
required
background
with the
. . . shall be filed
K.S.A.59-2121
required by
accounting
Nevertheless,
for
(Emphasis
adoption.”).
petition
that the absence of one or more
to find
court held “we are unable
of
divests a court
those
jurisdiction
necessarily
requirements
The
G. court
allowed the
to meet
statutory
adoptive parents
with
information contained
the
other
pleadings.
requirements
with a
for
“Where a document filed
petition
contemporaneously
information,
that informa-
includes the requisite
though
adoption
itself,
for
has
tion is not included
the
party
petition
adoption
K.S.A. 1993
with the
Supp.
substantially complied
requirements
Concerning accounting court that what adoption petition, acknowledged J.H.G. 59-2128(f) 59-2121(b) is now K.S.A. and K.S.A. use “shall.” K.S.A. 59-2121(b) “In an action states: for detailed adoption, accounting of all consideration or to be and all disbursements given, given, made, made, or to be connection with the adoption shall for for placement petition adoption accompany adoption.” added.) Nevertheless, the held that court the later (Emphasis filing the decree of with to be sub- accounting adoption “appears stantial with K.S.A. 1993 59-2121.” 254 Kan. at Supp. 797. The court believed that because “[t]he apparently purpose under 59-2121 in is to requiring accounting part [ensure] are not more consideration improperly paying statute,” to the natural than is permitted by purpose had been served because “was available to the trial accounting court before the decree finalized.” 254 Kan. at 797. adoption the failure to attach a statement of in-
Concerning
background
formation to the
court
acknowl-
petition,
effectively
J.H.G.
59-2128(f)
59-2130(a)
that what is now K.S.A.
and K.S.A.
edged
59-2130(a)
also use “shall.” K.S.A.
states: “The
infor-
following
(1)
mation
shall be filed
. A
. .
written
petition
complete
medical
social
of the child and genetic,
history
par-
. .
ents
. .”
court
found this failure
because
“troubling”
or
this information in the
“[t]he purpose
necessity
including
to benefit the
as it is
child
useful in medical
petition
care and treatment.”
The absolute failure of the other adoptive parents provide information 59-2128 was because it had no required pardoned on the “Substantial with K.S.A. 1993 bearing adoption. compliance 59-2128 can also be found even when neither the Supp. petition for nor documents filed with the adoption contemporaneously information, if it is clear that include some of required petition 254 Kan. has no on the information lacking bearing adoption.” 797. The court held at purpose requiring petition Interstate information UCCJA, Compact concerning provide Children, and the ICWA “is to insure on the Placement of merely 254 Kan. the trial court is informed when those acts do apply.” that because those acts not issues in this at 798. We stated “were case, for the absence of this information from adoption petition a of substantial here.” 254 does not preclude finding compliance father, the natural Kan. at 798. The court also concluded only mother, not the had failure to challenge petition’s standing “ include the ‘facts relied the neces- required upon eliminating ” the consent’ of the natural father and the resultant failure for sity to include in the petition request 59-2136.254 terminate his under K.S.A. Supp. parental rights Kan. at 799. Our in Trent and establish several opinions key points J.H.G. First, Trent, instant case. held that a failed we
guidance at did not substantial acknowledgment preclude compli- attempt Here, ance with the we have an acknowledgment requirement. at that failed because the did not attempt notary with all Kansas con- comply requirements representations certificate, in her tained did not e.g., signer personally appear before her.
Second, in Trent held that a we consent to executed in adoption substantial is valid under statutory requirements consent statute view of which subsequent judicial proceedings were instituted the natural mother “which afforded her a all full issues voluntariness of her con- hearing upon bearing upon Here, 4. sent.” the natural mother instituted Syl. ¶ a motion to withdraw her consent judicial proceedings by filing which led to a in which 16 witnesses 2-day evidentiary hearing testified and numerous issues were ex- bearing upon adoption and the voluntariness of her consent. plored, e.g., signature Third, in both Trent and we held that the J.H.G., essentially of the word “shall” in statutes —statutes which are to be construed in favor of the of natural strictly rights
because of the termination of the relation— potential parent-child nevertheless does not mandate strict and total compliance Here, those K.S.A. 59-2114 that consent requirements. provides “shall . . be . before an officer authorized law acknowledged by to take acknowledgments.” Fourth, we held in that failures to with “shall” comply J.H.G. 59-2128(a) (“A
requirements, e.g., petition state”) . . . shall nevertheless can be cured with information from sources, There, other so as the is met. it long statutory purpose Indeed, included a late-filed even failures to accounting. provide certain information can be so as the required ignored, long missing case, information has no on the issues bearing e.g., Here, ICWA. there was no although proper statutory acknowledg- ment, before the district court issued its memorandum decision it consent, received evidence Mother’s concerning signing of what she was and whether she understanding signing, and freely voluntarily. Fifth, in held that we the determination of substantial J.H.G. with a is a of fact
compliance
statutory requirement
finding
by
district court which will not be disturbed on
if
appeal
supported
There,
substantial
evidence.
it was a
competent
requirement
file a statement of full
information with the
background
petition.
Here, the district court found substantial
with the stat-
for an attested
We hold that most of
utoiy requirements
signature.
is
substantial
evidence in the
finding
supported by
competent
record,
evidence
Mother’s
of the consent
e.g.,
regarding
signing
and her
of what she was
Whether that
understanding
signing.
part
of the court’s
that she consented
is
finding
voluntarily
evidence, however,
also
substantial
is ad-
supported
competent
dressed in
2.
issue
“ ‘
mentioned,
As
“substantial
in re-
compliance”
“compliance
to the essential matters
to assure
reasonable
spect
necessary
every
’ ”
Heiman,
of the statute.” Orr v.
We
deficiency
recognize
specific
in
in
several ways
present
acknowledgment
improper
—was
in
We also rec-
Trent or
deficiencies
multiple
among
J.H.G.
is a
one: It
directly
deficiency
key
goes
ognize
present
for additional
whether consent was
given. Accordingly,
adequately
the Trent court
we also examine a case relied upon by
support
than the one
whose
was even more severe
pres-
single deficiency
a
failure to
the natural
before us:
ently
complete
acknowledge
par-
ents’
on their consents as
statute.
signatures
required
138,
(1965),
v.
145
399
980
Mont.
P.2d
Riley Byrne,
father
a
Both
natural
was
brother
the female adoptive parent.
natural
consents to
parents signed
adoption
Later,
and the
filed suit to set
grandfather.
they
aside
decree.
other
“that
they
adoption
Among
things,
argued
the consents were deficient and not executed
to statute
pursuant
were not made ‘before an officer au
acknowledgments
”
thorized to take
Despite
complete
acknowledged
ap
lack of
to obtain
parent
any attempt
acknowledgments,
Riley
court
that it “was valid and
upheld
adoption, ruling
legal.”
at 145. In
Mont.
later
the Trent court and
language
fully quoted by
then
as Trent’s
of law in
paraphrased
point
syllabus paragraph
the Montana
Court stated:
Supreme
us,
“In the case before
the consents of the natural
were obtained with-
parents
Thereafter,
out
these
observing
necessity
acknowledgment.
natural-parents
instituted
which
them a
all issues
judicial proceedings
hearing upon
afforded
full
the voluntariness
their consents and the
upon
bearing
adoption proceedings
To
a decree
lack
generally.
deny
validity
when the natural
have
exercised those
which such acknow-
fully
rights
would,
think,
we
reach
result
ledgment
designed
protect
contrary
*15
our
statutes. This result is in
spirit
decisions of other
harmony
Mont,
courts which have considered similar
questions.” (Emphasis
at 145.
As additional
we also examine the more recent case of
support,
Baxter,
In
(Ind.
re
Child
The natural mother and her mother later contacted the adoptive to revoke their consent and reclaim parents custody. Approximately later, 1 month the natural and both sets of grandparents filed suit to dismiss the The trial court found adoption petition. in the had not been executed on the consents that the signatures the Indiana stat- of a notary notary public required presence statute, the con- and, the Indiana consent under ute consequently, and were therefore void. notarized had been sents improperly affirmed. Court of Appeals the Indiana the trial court and Court of Appeals, reversing Indiana consent statute first that the Court acknowledged
Supreme executed in the to be the written [to adoption] “requires entities” one of six added] specified ([emphasis any presence 1062), or other at “a 799 N.W.2d notary public person including Sec. 31-19-9-2. take Ind. Code authorized to acknowledgments.” The Baxter court also acknowledged the natural parents’ argu- case, ment, that the consent statute set forth similar to the instant consents to and exclusive for executing adop- mandatory regimen tion; the consents were not executed because presence listed in the the consents were invalid of the entities any initio. The court further their and void ab recognized argument, case, instant Code also similar to the one Adoption natural must be construed in favor of the rights parents. strictly It also adoptive parents’ opposing arguments, acknowledged that the failure of the consents to meet the consent statute e.g., does not render the consents invalid but denies only specifications their presumptive validity.
The Baxter court held that “the consents did not conform to the
of the Consent Statute because
were not exe-
requirements
they
(Em-
cuted in the
one of six
entities.”
any
specified
*16
added.)
Nevertheless,
authentic and valid
not
executed in the notary’s
despite
being
pres-
ence,
that the trial court had
found that the natural
noting
already
and maternal
had
and
parents
grandparents
knowingly
voluntarily
at
the consents. 799 N.W.2d
1063.
and Baxter decisions are consistent with the
Both the
Riley
opin
court,
ions of this
which do
strict
stat
require
are
consistent with
utory adoption requirements. They
particularly
which allowed those
to be met in alternate
J.H.G.,
requirements
Trent,
are also consistent with
relied at
whose
ways. They
holding
least in
the natural
in full eviden
part upon
parents’ participation
on
of the
issues. As stated in
Riley:
tiary
many
hearings
natural
have
exercised those
which such
“[T]he
fully
rights
After
of the written
explaining
purpose
court tiren reviewed the
served
purpose
acknowledgment
described
the consent statute: “The
serves as
acknowledgment
prima
facie
proof
of the
[1]
validity
of the
consent,
and
[2]
added.)
873
Baxter,
later
this court
described
adoptive parents’ argument
a
of va-
acknowledgment
adoptions
providing
“presumption
Irons,
547,
In re Adoption
235 Kan.
In
of all these
we conclude that the later ack-
light
outside the natural mother’s
does not ren-
nowledgment
a matter
law.
der her consent void as
The district court is correct
in that
serves as
facie
only
regard.
prima
consent,
of the
of the
of the
proof, e.g.,
validity
identity
signer,
and that the consent was
and
See Black’s
freely
voluntarily given.
(8th
2004)
Law
ed.
facie” as
Dictionary
(defining “prima
a fact
establish
or raise
unless dis-
[sufficient
presumption
Partners,
v.
rebutted.”);
Welch Via Christi Health
see
or
posed
Inc.,
732, 768-69,
(2006) (“The
281 Kan.
With an
facie
acknowledgment providing prima
proof,
adop
tive
could
other
several
enjoy, among
things,
advantages
(1)
it
under K.S.A. 59-2114:
provides
consenting party
must
that the consent was not
prove
voluntarily given;
(2)
must be
clear and
evidence. How
proof
convincing
ever, without an
no
has
acknowledgment,
“presumption
validity”
Irons,
re
547;
been established.
See
235 Kan. at
see
Adoption of
Baxter,
Accordingly, correctly placed facie evidence—the functional providing prima equivalent it cor- acknowledgment adoptive parents. Specifically, —on this burden of facie evidence on the recdy placed prima on issue of Mother’s on the consent. It also signature appearing the burden of facie evidence correctly placed rebutting prima on Mother. It further that determined Mother had failed correctly in her rebuttal and the was therefore established as hers. signature See Black’s Law definition of facie.” Dictionary “prima erred, however,
The court
in
the burden of
in-
shifting
proving
consent to the natural Mother once the
voluntary
adoptive parents
had established her
on the consent. It erred because the
signature
facie evidence of other matters
prima
typically provided by
were still
that the consent was vol-
missing, e.g.,
Trent,
(under
See
Mother that the district court’s that she had not argues finding established that her consent was was not involuntarily given sup- substantial evidence. The Court of ported by competent Appeals noted that while its earlier made discussion of the evidence holding Mother was the court to evidence. It unnecessary, asking reweigh further noted that the district court had made a negative finding a different standard of review. We need not address required Mother s as we mentioned issue the im- argument; regarding of a this shift of the bur- pact poorly performed acknowledgment, den of to Mother was incorrect because there was no proof prima facie case on the voluntariness of the consent. presented we would remand for the district court to determine
Generally,
whether the
had made their
facie
prima
showing
to determine whether the consent had been
eventually
given
Irons,
In In re
voluntarily
freely.
Adoption of
however, this court held that while the trial court improperly
the burden of
on the natural mother on
hér
whether
placed
proof
*19
consent was
and
or tainted
undue influ-
voluntarily given
ence,
error does not
warrant reversal as it would
“[t]he
necessarily
in a
trial. The record must be examined to determine if the
jury
evidence shows the
sustained the burden of
which
appellees
proof
should have been
them at trial.”
think the answer is clear and
hold that
Irons
accordingly
Anjanette
[mother] freely,
and
her consent to
knowingly
voluntarily
gave
Irons.”
adoption Baby Boy
and was evident (2) speak English she throughout proceedings; consent; (3) she did old when she
was 24 years (4) she delivered and counsel before girl signing; legal request in- to her. We after the child M.A. and E.M. discharged Mother attended observe that elementary, junior dependently record, she in this and school country. According high high, work. She for for as an acted speakers applying interpreter Spanish sister, M.A.’s for a from translated letter also English Spanish to read that Mother knew how Isaac testified M.A.’sbrother Sylvia. him. met for She had translated write and and previously English 2004 and answered questions early attorney Snapp without conversed difficulty. English testified that 16witnesses also observe We during independently came consent testimony contradictory 2-day hearing. Important, a'natural mother much to or lose: who have from the gain principals tes- consent versus the contradictoiy Important, adoptive parents. of M.A.’s blood from Mother’s fianc also came many timony will be the what is at stake—who Both the relations. gravity close of a many relationships parents witnesses, young girl—and for biased and testimony. prejudiced carry potential short, all of Irons where this case is unlike “virtually Baby 553. We therefore 235 Kan. at was uncontested.” [the evidence] to make the determi- is best the district court conclude equipped remand, as the Irons on voluntariness nations Baby concerning 10: court itself said at Syl. or was tainted was freely voluntarily given “Whether and circumstances of each on the facts undue influence necessarily depends *20 such, the trier who has issues are to be determined case. As these of fact (Em- witnesses.” to the evidence and test credibility
best opportunity weigh phasis evidence, the this case’s Because of familiarity judge’s witnesses, it him on remand to deter- we leave and the parties, the instructions contained he needs so he can follow mine what from his own includes His consideration everything opinion. a full review of the record to evidentiary hearing. simple a decree court have Issue 3: Did the district jurisdiction grant adoption? that the district also the Court of Mother Before argued Appeals, court lacked a decree of Mother jurisdiction grant adoption. framed the issue as one of of K.S.A. 59- statutory interpretation 2113, which who The statute governs may adopt. provides: “Any adult, or husband and wife minor or adult jointly, may adopt any as their child in the manner in K.S.A. 59-2111 provided through 59-2143, that one cannot do so without the consent except spouse of the other.” Mother asserted that the are adoptive parents pro- hibited from because are not married. The adopting they adoptive that substantial evidence parents responded competent supported of the trial court that the were married finding that, therefore, common law and statutory interpretation K.S.A. 59-2113 is not required.
The Court of
stated:
need not delve into an in-
“[W]e
Appeals
of that
our reversal on the first issue.
terpretation
given
Likewise, the district court found that M.A. and E.M. had a com-
mon-law
and that
the evidence.
marriage
finding
supported by
Thus, Mother’s
moot.” 36 Kan.
statutory argument
doubly
App.
2d at 631-32.
This court discussed common-law
in In re Estate
marriage
178, 192-93,
(1999):
Antonopoulos, (1) “The essential elements of a common-law are: marriage capacity (2) (3) a parties marry; between the present marriage agreement parties; out of each other as husband and wife to holding public. Although form, need not be in it marriage agreement is essential there any particular be mutual consent to the present between the The burden of marriage parties. prov- a common-law or consensual ing rests it. marriage upon party [Ci- asserting tation If the district court’s are omitted.] substantial com- findings supported by evidence and the court petent rules properly aforementioned applied case, this court will affirm the district court. [Citation Substantial evi- omitted.] dence is evidence which both relevance and substance and possesses which fur- nishes a substantial basis of fact from which the issues can be resolved. reasonably Stated in another substantial evidence is such way, and relevant evidence as legal a reasonable sufficient to person might a conclusion. accept being support [Citation omitted.]” Here, Mother whether M.A. and E.M. met the re- challenged of a She quirement present marriage agreement. quoted portions of M.A.’s desire to testimony regarding couple’s marry by laws of the court and church: “We were to married when going get
878 married, because And, not we have not father died. [sic] got
my we want to married but to. We want to we don’t want get get Court, laws, here in the the law and both married by by for law the church.” (Emphasis of Mother. taken out of context M.A.’sstatement by Although married, that she it that the had not M.A. did state appears couple Ear- in a formal had not been married meant ceremony. they only that she and E.M. lived she stated lier in M.A.’s together testimony and that had lived husband and wife as common-law they together law, mar- Kansas were She believed that under for 14 they years. Indeed, husband and wife. called each other ried. they evi- of substantial the Court As stated competent Appeals, that M.A. and E.M. were the district court’s dence finding supports 30 See In re and wife. common-law husband Kopac, Marriage of Therefore, (2002). 2d 47 P.3d Kan. pursuant App. district court had 59-2113, on this basis the at least K.S.A. juris- them. of a decree diction grant The is reversed. of the Court judgment Appeals judgment remanded and the case is is affirmed the district court part, with this consistent opinion. proceedings J., participating. Johnson,
Lockett, Retired, J., assigned. 59-2114(a), the Kansas
Davis, adopting J., dissenting: from the consent stated requisite explicitly Legislature (or natural adoption proceedings parent parents) of record before a of court and shallbe judge “shall be acknowledged writing take If consent authorized law to acknowledgments. or before an officer record, it be the of the court a court of shall duty before a judge acknowledged A consent is of the consent. to advise the consequences consenting person executed, to final decree unless the adoption, final when consenting party, prior was not evidence that clear and convincing alleges proves was not the consent freely The burden voluntarily given. proving *22 shall rest with and the (Emphasis voluntarily given consenting party.” 59-2114(a). finds that the consent form the current The majority opinion was in with this the case substantial compliance despite of the statute and the absolute lack of mandatoiy language despite of the natural mother’s consent in case. Be- cause I cannot with the the conclusion that actions agree majority’s statute, I in this case with the substantially comply respectfully dissent.
This court has to courts’ in- consistently explained regard of statutes: terpretation “ construction, ‘It is a fundamental rule of all other to which rules are statutory
subordinate,
that
intent of the
if that intent can be ascer-
legislature governs
The
tained.
to have
its intent
the lan-
legislature
presumed
expressed
through
scheme it enacted. When a statute is
and
guage
statutory
plain
unambig-
uous, the court must
effect to the intention of
give
legislature
expressed,
rather than
what the law
or
determine
should
should not be. Stated another way,
when a
statute is
will
courts
not
plain
unambiguous,
appellate
speculate
toas
intent behind it and will not read such a statute so as to
legislative
add
”
636,
found in it.’ McIntosh v.
282 Kan.
something
readily
Sedgwick County,
642,147
(2006)
355,
P.3d 869
rel.
State ex
Stovall v.
271 Kan.
(quoting
Meneley,
378,
[2001]).
mandatoiy language “[t]he of this court have abandoned their of role jority judicial interpreting law and have into a role of what stepped legislative amending heretofore were of two different mandatoiy requirements legisla- tive enactments.” 229 Kan. (Fromme, at 232 The J., dissenting). effect of this form statutoiy interpretation, according Justice Fromme, was to the statute a court to dis- “repealf] by permitting statute. that This is a regard requirements legislative pre- Such a rule will create confusion clear, over rogative. litigation concise statutes.” 229 (Fromme, Kan. at 233 mandatory J., Fromme’s in the instant case realize facts
dissenting). Justice prediction. form in the
Here,
the consent
mother did not
the natural
sign
authorized
or
other
any
notary public,
person
judge,
Instead,
the form the
she
to take
pres
acknowledgments.
When
ence
several
adoptive
adoptive parents’ family.
their
statute
learned from
required
attorney
be
the natural mother’s
adoptive
acknowledged,
par
signature
In
officer.
return to her with an
ents did not
public
appropriate
stead,
who
authorized
went to a
acquaintance
they
personal
“all that
This
take
and told her
per
happened.”
acknowledgments
natural mother’s
*23
sonal
then
sig
acquaintance
“acknowledged”
of
and
no
nature outside
knowledge
having
personal
a clear violation of the
of
Not
was this
her.
only
acknowledgment
also,
statutes,
et
as the Court
see K.S.A. 53-501
but
seq.,
Appeals
case,
“in all
re
was
material
found in this
the acknowledgment
36
In
Kan.
false and untrue.”
re
App.
Adoption of X.J.A.,
spects,
Nevertheless,
621, 630,
(2006).
finds
2d
142
327
P.3d
majority
that
with the
these actions “substantially
requirements
complied”
59-2114(a), which
that consent “shall be acknowl
of K.S.A.
states
a
of record or before
officer
before
court
edged
judge
law take
authorized
to
acknowledgments.”
deviation,” as even
Fromme char-
This is not a “slight
Justice
Trent,
in
where
acterized the actions of
notary public
public
Missouri
of the Kansas
crossed the state line into the
officer
portion
229
233
area to witness a
Kan. at
signature.
City metropolitan
case,
(Fromme,
no
was
this
J.,
acknowledgment
dissenting).
nor
valid acknow-
taken
the natural mother’s
was
any
signature,
words,
In other
the specific requirements
ledgment attempted.
59-2114(a)
Instead,
in-
that statute was
K.S.A.
were
followed.
both
and the
notary
disregarded by
adoptive
tentionally
finds that
for
The majority
despite
apparent disregard
public.
59-2114(a), the consent in this
of K.S.A.
requirements
specific
I cannot
case nevertheless satisfies
statutory purpose.
agree.
“ ‘
“com-
case law
defined “substantial
Our
has
compliance”
the essential matters
assure
necessary
every
respect
pliance
”’
Heiman,
Orr
270 Kan.
of the statute.”
v.
reasonable objective
109, 113,
(2000).
59-2114(a)
This court
that
and ne
“[t]he
previously explained
purpose
of a written consent is to
insure that
natural
cessity
parent freely
Trent,
and
consents
owners
unilateral action
their
against
by
land.
omit-
city
annexing
[Citations
Because all the land
here
ted.]
involved
was land which the owners
the
petitioned
were the
annex,
served. If that
only objective
has been
this
to
objective
general
city
However, the
would be redundant.
in K.S.A. 12-523
the
requirement
publication
intended
the
pub-
It can be assumed
legislature
is there.
requirement
publication
act
or
not
a useless meaningless
merely
he of some
lication to
importance
taken. It also
emphasized
trans
itself . . .
which of
gives
affirmations is a
officer,
ister oaths or
public
finality.” (Emphasis
atmosphere
a more
setting
action
impressive
of
(1951).
533, 537,
Carnesi,
Moreover, the case law cited no by majority provides support for its conclusion in this case parties substantially complied Trent, with In the statute. the court was faced with a question whether a Kansas of a notary public’s acknowledgment signature in Missouri voided the consent for stat- purposes case, utes. In that from the only discrepancy require- statutory ments was one of venue. The natural mother her consent in the which the voluntarily presence notary public, notary Thus, at Kan. 226. the consent was acknowledged. provided in with accordance all the solemnities and seriousness of signing in the of a Trent officer. dif- presence public presents markedly here, ferent scenario than the one where no officer was public the natural mother’s of the consent present acknowledge signing forms. in G., In decision re H.
Similarly,
Adoption of J.
(1994),
Other than its of substantial the de- application compliance, cision in has little to do with the current facts. There was J.H.G. no that the natural mother’s consent was question given J.H.G. in the of a who was authorized take acknowl- notary *26 Moreover, at the fact that the 254 Kan. 786-87. given
edgments.
to
the voluntariness of
consent
natural mother failed
contest
entered,
mother was
the
decree was
the
before
final adoption
at
such
on
254 Kan.
791-93.
from
a
barred
raising
request
appeal.
“
consent,
as
in
‘an
issue of
which the court
The
recognized
J.H.G.
to
on the
of the court
render
essential requisite
jurisdiction
part
”
in
254 Kan.
was not a factor
that case.
a valid decree of adoption,’
228).
Trent,
re
specified
in all
and manifest
evidence
are authentic and
signatures
respects
genuine
799
N.E.2d at 1062.
intention
child
give
up
adoption.”
present
Baxter
of the Indiana
absent from the
court’s analysis
Noticeably
of whether the
consent had
consent statute is
discussion
any
given
Instead,
court
with the statute.
consid-
substantially complied
be
served.” This
how “the intent
the statute” would
“best
ered
courts,
Kansas
which
is not
undertaken
proceed
analysis
“
its intent
under
legislature
assumption
‘expressed
”
scheme it enacted’
the statutory
through
language
“
ex-
effect to the intention of
which ‘must
legislature
give
than
what the law should or should
rather
determine
pressed,
885
” McIntosh,
be/
145 Mont.
Second,
Indiana,
like the Baxter
from
the
court
opinion
Riley
Instead,
makes no reference whatsoever to substantial compliance.
is motivated
“the
Riley
[Montana’s]
entirely by
spirit
adoption
statutes.”
886 rather a con- but a
eration by particular “spirit” ‘“ has been of whether there sideration “compliance respect to assure reasonable essential matters every objective necessary ’ ”' Orr, at 113. of the statute.” of the rea its failure to consider the In addition to applicability from the Baxter and Riley decisions Kansas’ substantial soning in the case conclusion present majority’s compliance analysis, relied its with other not reconcile does authority persuasive analysis Trent cited a Colorado de the Trent court. In particular, upon Carnesi, (1951). 533, 232 186 v. cision, Colo. P.2d Foley the natural mother had “relinquishment Foley, signed rights “ ‘I do as well a letter and consent hereby stating: adoption,” ” [the child] [the parents].’ adoptive agree at in the Colo. 534. The forms statement were been and had not home of acknowledged by as was the statute. Because notary public, required district court with the did statutory comply requirements, vacated the decree of adoption. affirmed,
The Colorado
Court
“[t]he point
Supreme
finding
natural mother
now withdraw
in this case is not whether
can
consent,
in the
but whether her consent
adoption proceedings
consent,’ in
with the
of her child was ‘the requisite
at
held that “this
statute.” 123 Colo.
536. The court
statutoiy, pro
could not be
cedural
ignored.”
step [requiring acknowledgment]
*28
at
The
that
natural mother’s
123 Colo.
537.
court also found
minor,
because, as
she
had been violated
a
could
due process rights
On a a review of the record in this case demon- practical strates that no effort was made to with the comply statutory 59-2114(a). Instead, of K.S.A. when the requirements adoptive were made aware of the statutory requirements, they out an who also served as a sought acquaintance notary public told her “all that then happened”; notary falsely acknowledged short, the natural mother’s was there no signature. only effort made to with the but there comply statutory requirements, also was a conscious for those disregard by and the served them. In such circum- requirements purposes stances, one cannot that the consent form com- say substantially 59-2114(a). with the of K.S.A. plied requirements concludes, The majority my opinion erroneously, pur- “ of the is to pose acknowledgment requirement provide ‘prima consent, oí the . . . of the . . . the iden- proof [of] validity facie of the . . . that the written consent was [and] tity signer[,] ” Trent, 22at 229 Kan. at voluntarily given.’ Slip op. (citing 228). The finds that the absence anof majority at the time of substantial is nevertheless signing, compliance pro- vided an to determine whether by holding evidentiary hearing these met. were seeks to avoid the consti- purposes majority tutional of such a discussed the Court of implications hearing below, 628-31, see 36 Kan. 2d at Appeals App. by transferring burden of at the the voluntariness of the proof hearing regarding consent from the natural mother to the See adoptive parents. slip at 22-24. op.
There are several with the conclusion that problems majority’s on the of voluntariness lead evidentiary hearing question may 59-2114(a). First, substantial with K.S.A. major- conclusion runs to the clear ity’s contrary language *29 when a natural is that
which contesting parent explicitly provides that must “al- the consent parent during adoption proceeding, that the con- and evidence clear convincing lege!] prove!] by The statute further sent was not pro- freely voluntarily given.” the consent was not burden of vides freely “[t]he proving 59- with K.S.A. shall rest the consenting party.” voluntarily given 2114(a). the is described The burden directly majority shifting contrary plain statutory language. addition, cannot reconcile itself with
In the solution majority’s itself, which the pro- acknowledgment requirement wording and shall be vides that consent “shall be acknowledged” writing (Em- to take before a officer authorized acknowledgments. public 59-2114(a). However, the decision K.S.A. majority phasis an acknow- does with the need for this case effectively away holds an after-the-fact as as the court hearing ledgment long was sub- determine whether the consent voluntary. majority’s therefore, as be summarized stantial may compliance reasoning, 59-2114(a), the K.S.A. follows: Despite mandatory language statute’s bemay disregarded long acknowledgment requirement the consent as an is held to determine whether evidentiary hearing at will be on the The burden of this voluntary. proof hearing clear statement that the statute’s “[t]he adoptive parents, despite burden of the consent was not and voluntarily given proving 59-2114(a). shall rest my consenting party.” cannot constitute “substantial compliance” opinion, analysis runs to two clear man- with the as it contrary specifically dates therein. solution failsto further evidentiary hearing
Finally, majority’s
the other
served
purposes
acknowledgment requirement.
An
cannot
evidentiary hearing
retroactively provide
solemnity
at the
of the consent
original signing
the environment of
deemed
Similarly,
legislature
appropriate.
associ-
cannot
seal of finality
hearing
provide
appropriate
in the
of a
officer.
ated with
the consent
signing
public
nature
While the
does
very
hearing
provide public presence,
the natural
of such a
indicates that
contesting
hearing
parent
There-
at such a forum —not
consent
willingly.
providing
*30
fore,
envisioned
cannot
hearing
by
majority
evidentiary
“ ‘
constitute
to the essential matters nec-
“compliance
respect
’ ” Orr,
reasonable
of the
assure
statute.”
essary
every
objective
ment in K.S.A. and the case the five requirement forth of this court of its points put majority support opin- First, ion are either unfounded or finds majority inapplicable. that Trent stands for the that “a failed at ack- proposition attempt did not substantial with the nowledgment preclude compliance However, at 17. the cur- acknowledgment requirement.” Slip op. rent facts do not demonstrate “a failed at attempt acknowledg- Instead, ment.” the facts illustrate that the after adoptive parents, informed of the being acknowledgment requirement, attempted circumvent that and ask- requirement by going acquaintance her to the natural mother s in viola- ing “acknowledge” signature tion of the statutes. As I have this notary previously explained, behavior is not substantial or even at all— compliance, compliance this is of a knowing disregard statutory requirement.
The remainder of the five assume that the facts in this points case a of substantial In its second support finding compliance. that “in Trent we a held that point, majority explains executed in substantial compliance statutory is valid under a consent statute view of requirements subsequent However, at 17. the consent in this judicial proceedings.” Slip op. case was not executed in substantial with the compliance and a on the of consent cannot cure the failure to hearing subject follow the or substantial statutory procedure provide compliance with that statutory procedure.
Third, the finds that the of K.S.A. majority mandatory language 59-2114(a) “shall”) the term be as allow- (namely, may interpreted substantial, strict, with its ing only compliance require- Nevertheless, ments. of K.S.A. 59- majority’s interpretation 2114(a) statute; substantial least at with the requires compliance such is not evidenced here.
Fourth, finds that the failure to with the majority comply 59-2114(a) of “can be cured with mandatory requirements sources, information from other so as the long statutory purpose However, at 18. there are numerous served met.” Slip op. purposes an indication that acknowledgment requirement, including the consent was as well as the voluntarily signed, symbol officer to ceremony provided by emphasize public gravity Even if were to one the consent was proceedings. argue a conclusion cast into serious doubt ev- signed voluntarily, case, idence in this the other purposes statutoiy requirement were not met. An after-the-fact cannot cure hearing complete failure to with the 59- of K.S.A. comply procedural requirements *31 2114(a).
Fifth, the states that “the determination of substantial majority with a is a of fact the statutoiy requirement finding by district court which will not be if disturbed on appeal supported substantial evidence.” at 18. Even consid- by competent Slip op. the deference to district courts in such deter- ering given making minations, there can no be the failed question adoptive parents 59-2114(a) with the K.S.A. states comply statutoiy requirements. that a consent to “shall inbe and shall be ac- adoption writing before a of a court of record or before an officer knowledged judge Here, authorized law to take it is uncon- acknowledgments.” troverted that the natural mother did not the the sign of a or other official authorized to notaiy public give There is no evidence to the dis- acknowledgments. simply support trict court’s in this case that the finding purported acknowledgment with the substantially complied statutoiy requirements. I in this case would lead to the recognize my reasoning result of this child from the care her regrettable removing adop- tive with whom she has lived her entire 2Vz How- parents, years. ever, below, as the Court of noted court “[a]n Appeals appellate should refrain from worded statute rewriting plainly simply reach a desired result. Result-oriented justice directly contraiy of the rule of law.” 2d concept X.J.A., App. Syl. Moreover, 7. could have avoided this result ¶ with the by simply complying statutory acknowledgment require- ment after their it to them. The attorney explained majority’sopin- ion in this case—and the district court’s below-—leads to opinion result of a natural mother’s re- regrettable having daughter moved from her care without satisfying important safeguards established that she consents to the legislature voluntarily and understands the serious- relinquishment parental rights ness of her actions.
In
decision has the result of
my opinion, majority
increasing
cases,
on
the issue of consent
which is a result
litigation
adoption
59-2114(a).
to eliminate
legislature sought
by enacting
that the consent in this case
holding
substantially complied
59-2114(a),
of K.S.A.
nul-
requirements
majority effectively
lifies the
that a consent to
explicit statutory requirement
be
officer and
it with an evi-
acknowledged
public
replaces
Trent,
As
Fromme
noted
his dissent in
dentiary hearing.
Justice
this is a
runs
lan-
“legislative prerogative,”
contrary
plain
and undermines the
guage
purposes
require-
(Fromme,
ment was meant to serve.
Rosen, in the J., joins foregoing dissenting opinion.