STATE OF KANSAS ex rel. SECRETARY OF DEPARTMENT FOR CHILDREN AND FAMILIES, and Minor Child, I.M.S., By and Through the Next Friend and Guardian, NATASHIA S. GAFFORD, Appellees, v. ALONZO SMITH, Appellant.
No. 114,306
IN THE SUPREME COURT OF THE STATE OF KANSAS
Opinion filed April 7, 2017.
Review of the judgment of the Court of Appeals in an unpublished opinion filed May 27, 2016. Appeal from Sedgwick District Court; HAROLD E. FLAIGLE, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.
SYLLABUS BY THE COURT
- A voluntary acknowledgment of paternity complies with
K.S.A. 2016 Supp. 23-2204 andcan be enforced even if the signatures on the document are not notarized or accompanied by other formalities related to the witnessing of signatures. - Under the circumstances present in this case, a voluntary acknowledgment of paternity that complies with
K.S.A. 2016 Supp. 23-2204 was not unenforceable because a person signing the form failed to read it or understand its terms. - An individual who signs a
K.S.A. 2016 Supp. 23-2204 voluntary acknowledgment of paternity may only revoke the acknowledgment by satisfying the requirements inK.S.A. 2016 Supp. 23-2209(e) . If those requirements are not timely satisfied, those who executed the document cannot attempt to revoke the acknowledgment, attempt to rebut the presumption of paternity that arises from the acknowledgment, or attempt to establish the existence of a conflicting presumption through, for example, genetic testing. As between a man and a mother who signed the voluntary acknowledgment of paternity, it creates a permanent father and child relationship. - When an appellate court reviews a district court‘s best interests of a child determination, it recognizes that the district court is in the best position to make the inquiry and, in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.
Daniel John Macias, DCF/CSS contract attorney, of Wichita, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: The Kansas Parentage Act,
Nevertheless, another statute within the Kansas Parentage Act,
This appeal requires us to determine what the legislature intended by providing for the creation of a permanent father and child relationship in one statute but only a presumptive relationship in another. Before reaching that question, we first determine that the VAP at issue in this case was valid and enforceable. We then construe the ambiguous statutes and hold that individuals who sign a VAP are bound by the rights and responsibilities delineated in
FACTUAL AND PROCEDURAL BACKGROUND
This case began in February 2009 when the State of Kansas ex rel. the Secretary of Social and Rehabilitation Services (now the Department for Children and Families [DCF]) filed a Petition for Support against Alonzo Smith on behalf of I.M.S., a minor child. DCF filed the action after Natashia Gafford, I.M.S.‘s mother, assigned to it I.M.S.‘s child support claim pursuant to
Smith initially answered the 2009 petition pro se and, in doing so, disclaimed paternity. He later retained counsel who filed a number of motions on his behalf. Through these motions, Smith asserted that I.M.S.‘s biological father was Hillard Sanders who had passed away by the time this action began. Smith requested genetic testing to prove Sanders’ paternity and also sought to add Sanders’ estate as a party. The district court denied both motions. In another motion, Smith sought to revoke the VAP. The district court conducted an evidentiary hearing on this motion at which Gafford, Smith, and others testified.
Gafford testified that Sanders was I.M.S.‘s biological father. She described Sanders as a gang member whom she did not want involved in his son‘s life due to his dangerous criminal lifestyle. When Gafford sought State assistance during her pregnancy, she reported that Sanders was the father. Gafford also
At some point, the State learned of the VAP in which Smith was purported to be I.M.S.‘s father. Gafford testified that when DCF representatives asked her which purported father was I.M.S.‘s natural or biological father, she never pointed to Smith. As to Smith‘s involvement, Gafford testified that Smith, who was her friend, asked her about the father of her child while she was in the hospital. When she indicated she did not want the biological father to be involved in the baby‘s life, Smith said he wanted to be the father. Gafford further detailed their conversation, in which Smith indicated:
“I‘m almost 50 and I don‘t have any kids and no one has my name and [the baby] needs a name. I said [the baby] needs my name. . . . I said the baby can have my name and he kept insisting . . . on being the dad. I said, why would you want to do that? And he was just like when he died he didn‘t have anybody to leave anything to . . . and he was just getting older and he had not got married, and so after talking about it, I was kind of like, okay, and he asked me, well, do I need to get an attorney or something? I said, well, I don‘t know the legality of it. I said, if you think you need to talk to an attorney, go ahead, but I don‘t want you trying to take my baby from me. I‘m just letting you be dad, you know.”
When asked about the VAP, Gafford did not recognize it, but she recognized her and Smith‘s signatures on it, and she recalled that the address listed on the form belonged to Smith at the time of I.M.S.‘s birth. She did not provide any testimony regarding who witnessed the form or when this might have occurred. She also testified I.M.S.‘s middle name was chosen because it was Smith‘s father‘s name.
Smith‘s memory differed from Gafford‘s on several points. He denied asking to be I.M.S.‘s father. Rather, according to his testimony, he signed some paperwork at Gafford‘s request because Gafford wanted the baby to have Smith‘s last name:
“[T]his was [Gafford‘s] request at the hospital. She said she wanted him to have my last name. And I asked her why. I said why can‘t you give him your last name. She said all her sons have different last names and I said, what‘s in a name? Okay, as long as his dad doesn‘t get mad thinking I‘m trying to take his child . . . . And she told me that he didn‘t have a daddy. And I was like, everybody has a dad.”
Smith also testified Gafford never asked him to be I.M.S.‘s father nor to be listed on the birth certificate. Smith indicated he would not have signed anything if they had discussed him being I.M.S.‘s father; their conversations concerned him being a big brother to I.M.S. He also testified that I.M.S.‘s middle name was not the same as his father‘s name.
With respect to the VAP, Smith, like Gafford, did not recognize the form:
“My name is on here but I don‘t recall this document with all this stuff on there. There was a piece of paper lying there and she asked me to sign it, and I asked her what it was and I said no because you might be trying to come after me later for child support. She said, no, I wouldn‘t do you like that. She just wanted him to have my last name. That‘s why the signature. We never talked about me being his dad and if I would have known that I wouldn‘t have signed anything. I mean, we were good friends, so I took her at her word when I asked her what it was.”
Smith testified he did not read the form and could not have read the form at the hospital because he did not have his reading glasses with him.
The testimony of several witnesses called by Smith supported Smith‘s testimony that he considered himself to be like a big brother to I.M.S. These witnesses, Smith, and Gafford all testified that Smith had been actively involved in I.M.S.‘s life at various points. Smith saw I.M.S. regularly during the first 5 to 6 months of I.M.S.‘s life. At some point, Smith and Gafford had an argument and temporarily ended contact. Shortly after that, Gafford resided with Bruce Sears, with whom she had three children. She lived with
The district court concluded Smith was I.M.S.‘s father based on the VAP. The court found Smith had not read the VAP before initialing and signing it but concluded the document was nevertheless legally binding under
Smith appealed, and the Court of Appeals reversed the district court. State ex rel. Secretary of DCF v. Smith, No. 114,306, 2016 WL 3031277 (Kan. App. 2016) (unpublished opinion). The panel acknowledged
The panel concluded: “[B]ecause both Smith and Gafford confirmed that the paternity acknowledgment in the [VAP] was false, Smith has, by clear and convincing evidence, successfully rebutted the presumption of paternity that statutorily arose from that executed [VAP].” 2016 WL 3031277, at *8. This meant, according to the Court of Appeals panel, that “the district court erred by construing the [VAP] as a binding legal obligation that can never be rebutted, even by stipulation of the parties and findings of fact made by the court itself.” 2016 WL 3031277, at *9. The panel “reverse[d] the district court, end[ed] the father-child relationship, and den[ied] the State‘s petition for support.” 2016 WL 3031277, at *9.
The State then filed a petition seeking this court‘s review of the Court of Appeals decision. We granted the State‘s petition and obtained jurisdiction through
ANALYSIS
Some background and detail regarding the use of the State-approved VAP form provides context to the parties’ arguments.
Federal law requires states to maintain VAP programs in order to qualify for certain types of federal assistance, namely access to block grants that provide Temporary Assistance for Needy Families under Title IV-D
The Kansas VAP form signed by Smith is labeled as a “Consent Form for Birth Registration.” It begins by explaining that the form is to be used “when the mother was not married at the time of conception or birth or any time between and a father‘s name is to be entered on the birth certificate.” The form then contains a “Disclosure to BOTH Parents: Basic Rights and Responsibilities of Acknowledging Paternity.” Using the wording specified in
The statute focused on by the Court of Appeals,
We now turn to applying these statutes to the present case. To do so, we have organized the parties’ arguments into four questions: (1) Is the VAP signed by Smith valid? (2) Is the VAP signed by Smith enforceable given that he did not read it? (3) What is the effect of a VAP under the facts of this case? and (4) Is remand necessary?
1. Is the VAP signed by Smith valid?
Smith argues the VAP he signed is not valid because it lacked the formality required
“To divine legislative intent, a court begins by examining and interpreting the language the legislature used. Only if that language is ambiguous does a court rely on any revealing legislative history, background considerations that speak to legislative purpose, or canons of statutory construction. When a statute is plain and unambiguous, a court merely interprets the language as it appears; a court is not free to speculate and cannot read into the statute language not readily found there.” In re Marriage of Brown, 295 Kan. at 969.
Applying this rubric to the question of the VAP‘s validity, we begin with
He indirectly suggests a statutory deviation, however, by arguing the statute‘s use of the term “acknowledgment” implies a degree of formality missing from the form. The Kansas form includes the following directions: “This form should be completed and witnessed by hospital personnel . . . .” And the section of the form labeled “Witness’ Information” simply reads: “The above signatures were witnessed by ___________ at ____________Hospital on ___/___/___/.” The VAP at issue in this case contains the handwritten name of the witness, the name of the hospital, and the date. The form does not contain another line for a witness’ signature and does not require the witness to indicate that he or she has verified the identities of those signing the form.
Smith argues the lack of formality—in particular, the lack of verification—means he did not “acknowledge” paternity. He supports his argument in several ways. First, he cites the seventh edition of Black‘s Law Dictionary, which defines “acknowledgment” as:
“1. A recognition of something as being factual. 2. An acceptance of responsibility. 3. The act of making it known that one has received something. 4. A formal declaration made in the presence of an authorized officer, such as a notary public, by someone who signs a document and confirms that the signature is authentic.” Black‘s Law Dictionary 23 (7th ed. 1999).
Smith focuses on the fourth definition, which requires the formality of confirming the authenticity of the signature before an officer.
Yet neither the Kansas Parentage Act nor the Office of Vital Statistics form require anything more than a witness to the signatures. And later editions of Black‘s Law Dictionary expand on the definition of “acknowledgment” by including a separate definition for an “acknowledgment of paternity,” which it defines to mean: “A father‘s public recognition of a child as his own.” Black‘s Law Dictionary 27 (10th ed. 2014). It further separately defines a “formal acknowledgment” to include: “A father‘s recognition of a child as his own by a formal, written declaration that meets a state‘s requirements for execution . . . .” (Emphasis added.) Black‘s Law Dictionary 27 (10th ed. 2014). The VAP in this case contained the statutory disclosures and was signed by both parents and a witness as required by the approved form. The Kansas Parentage Act does not explicitly require more, and neither does the meaning of the word “acknowledgment” when used in the context of an acknowledgment of paternity.
Nevertheless, Smith also argues there must be compliance with
Striking differences become apparent when we compare the language chosen by the legislature in these other statutes with the wording of
Finally, Smith makes a number of policy arguments for imposing more stringent requirements for the execution of a document that establishes something as significant as a parent and child relationship. As a matter of policy, many of those arguments are sound. More formality in the acknowledgment process would assure better protection for the man acknowledging paternity, the mother, the child, and others. See
Of course, a legislature‘s policy choice cannot control if that choice results in a constitutional violation. See Spencer Gifts, 304 Kan. at 761. Smith attempts to assert a constitutional impediment by arguing the lack of formality and ease of interfering with a biological father‘s relationship with his child makes the VAP statutes unconstitutional. But he fails to show how he has standing to assert the arguments regarding a biological father‘s rights. Moreover, he fails to even specify what constitutional provision is offended or how it is offended. Although he cites some cases, he fails to tie the analysis in those cases to the specific question in this case. Because of this inadequate briefing, Smith has abandoned or waived any potential constitutional arguments. See State v. Logsdon, 304 Kan. 3, 29, 371 P.3d 836 (2016).
Simply put, Smith has failed to show how the VAP he signed fails to meet the requirements of Kansas law or fails to comply with the formality required by the statute or approved form. We, therefore, hold that the VAP in this case meets the definition of
2. Is the VAP enforceable when Smith did not read it?
Smith also argues the VAP is not enforceable against him because, as the district court specifically found, he had not read the form before signing it. After making this finding, however, the district court noted that “[a] person signing a binding document is bound by its terms in the absence of a showing of duress, coercion, fraud or mistake.” The district court further determined Smith had not established duress, coercion, fraud, or mistake and, therefore, his acknowledgment was valid and made Smith obligated to perform the responsibilities he had assumed by signing the form.
The district court relied on a well-established principle in rejecting Smith‘s argument. See, e.g., Albers v. Nelson, 248 Kan. 575, 579, 809 P.2d 1194 (1991) (“a party who signs a written contract is bound by its provisions regardless of the failure to read or understand the terms, unless the contract was entered into through fraud, undue influence, or mutual mistake“); In re Habeas Corpus Application of Tolle, 18 Kan. App. 2d 491, 496, 856 P.2d 944 (1993) (with respect to diversion agreement: “a person is presumed to have read and understood the terms of any agreement he or she has signed and must abide by its terms in the absence of fraud, undue influence, or mutual mistake“). But Smith argues this principle applies to contracts and not to public acknowledgments of paternity, which he contends should be accompanied by a full understanding of the legal obligations inherent in a VAP.
Determining what legal principles apply in a given case generally presents a question of law. See State v. Reed, 300 Kan. 494, 509, 332 P.3d 172 (2014). And we hold that the contract principle relied on by the district court applies here because the Kansas Parentage Act treats all agreements to pay child support as a contract presumably supported by consideration.
Specifically,
Although
We now turn to whether the district court correctly determined that Smith was bound by the agreement even though he did not read it. To reach this determination, the district court made the factual finding that Smith had not established duress, coercion, fraud, or mistake. “In Kansas, a district court‘s factual findings are reviewed under the substantial competent evidence standard.” State v. Gonzalez, 290 Kan. 747, 756, 234 P.3d 1 (2010). Smith does not point to a lack of evidence that supports the district court‘s finding and has thus abandoned or waived any such argument. See Logsdon, 304 Kan. at 29.
We mention another potential barrier to Smith‘s success on this point: Neither
Smith‘s remaining arguments are policy based. And while we note that Kansas law requires less formality than some other states’ VAP programs, the legislature has made a policy choice and, applying separation of powers principles, we will not second guess that choice. Ambrosier, 304 Kan. at 914; see Cesar C., 281 Neb. at 985-86 (discussing effect of signed and notarized acknowledgment of paternity under Nebraska law).
We, therefore, conclude the VAP was enforceable against Smith even though he had not read it before signing the document.
3. What is the effect of a signed VAP in this case?
The Court of Appeals panel did not discuss the validity of the VAP in this case because it gave little weight to Smith‘s acknowledgment of paternity. The panel began its analysis by noting that the father and child relationship was “‘subject to termination by a court because paternity is a rebuttable presumption under
In Kimbrel, the Court of Appeals panel cited
“As used in this act, ‘parent and child relationship’ means the legal relationship existing between a child and the child‘s biological or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes
the mother and child relationship and the father and child relationship.”
Based on this language, the Kimbrel court recognized a “legislative intent to recognize biological lineage as the foundation for the parent-child relationship.” Kimbrel, 43 Kan. App. 2d at 793.
This court examined the same statutory language in Frazier v. Goudschaal, 296 Kan. 730, 295 P.3d 542 (2013), and, in doing so, noted the conflict between
The VAP form sets up a situation by which an individual may become a legal parent even though not a biological or adoptive one. Neither the federal nor the Kansas VAP statutes limit the availability of the VAP procedure to those who are, or reasonably believe themselves to be, biological parents. See
That brings us back to the question of whether, under the facts of this case, the VAP procedure created a permanent parent and child relationship or merely created a rebuttable presumption of such a relationship. By focusing on different statutes, the Court of Appeals panel and the district court reached different answers to that question. And both courts reached those disparate results by applying the language of arguably conflicting statutes. When two statutes conflict or at least create an ambiguity when read together, courts must consider the provisions of the entire act with a view toward reconciling and bringing the various provisions into harmony, if possible. See In re Marriage of Ross, 245 Kan. at 594 (when statute is ambiguous, court “may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested,” and by giving consideration to every part of the act to the end of reconciling “the different provisions so as to make them consistent, harmonious, and sensible“). Doing so in this case leads us to a different analytical path than that followed by the Court of Appeals panel.
The Court of Appeals reconciled the two provisions by simply stating they were alternatives. Smith, 2016 WL 3031277, at *7. But
Granted, limiting the remedy available to those who sign a VAP seems inconsistent with
The specific language about the permanency of the father and child relationship appears only in
Others acting on behalf of the child, including a biological father, could not use
Reading the various provisions of the Kansas Parentage Act in this manner is consistent with the purpose of the VAP program and gives meaning to all statutory provisions regarding the VAP form. Under this synthesis, Smith cannot seek to revoke his VAP because his effort is time-barred under
Smith makes two additional arguments. First, he argues the district court erred when it determined it did not need to conduct a separate Ross hearing to determine the best interests of the child. Kansas public policy “requires our courts to act in the best interests of the children when determining the legal obligations to be imposed and the rights to be conferred in the” parent and child relationship. Frazier, 296 Kan. at 747. In cases involving genetic challenges to paternity, this court requires district courts to conduct a Ross hearing to determine whether genetic testing is in the best interests of the child before ordering such testing occur. In re Marriage of Ross, 245 Kan. at 602. And when conflicting presumptions arise, a court must consider which of the two presumptions “is founded on the weightier considerations of policy and logic, including the best interests of the child.”
Under our reading of the Kansas Parentage Act, a question arises as to whether Ross applies to this case. But we set that threshold legal issue aside because the parties do not fully argue it and we need not decide the question on the record before us, which includes the district court‘s Ross determination.
Smith admits the parties requested a Ross hearing, the pretrial order contained the issues under Ross, and some evidence of the child‘s best interests was presented at the evidentiary hearing. Nevertheless, he argues the district court did not actually decide the Ross issue or at least did not make sufficient findings.
The record reveals, however, that the district court twice held hearings in this matter in which it determined the best interests of the child. Smith presents no authority supporting his suggestion a separate hearing had to be conducted. Moreover, the district court made specific findings and determined I.M.S.‘s interests were best served by continuing the father and child relationship with Smith. When an appellate court reviews that determination, it recognizes that “‘[t]he trial court is in the best position to make the inquiry and determination [regarding the welfare and best interests of the child], and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal.‘” Harrison v. Tauheed, 292 Kan. 663, 672, 256 P.3d 851 (2011). Our abuse of discretion standard is well known:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).
Here, the record supports the district court findings. The guardian ad litem had interviewed I.M.S. and had determined that it was in the best interests of the child to conclude that Smith was I.M.S.‘s legal father. Significantly, the guardian ad litem and Gafford both stated that I.M.S. recognized Smith as his father. The district court also noted Sanders’ death. In light of that evidence, we have no hesitation in concluding that reasonable people would agree that continuing the relationship with the man I.M.S. recognized as his father was in I.M.S.‘s best interest, that the district court applied the correct legal standard, and that substantial competent evidence supports the district court‘s conclusion.
As to Smith‘s second remaining argument, he urges us to conclude that the district court erred in failing to add Sanders’ estate as a party. Smith wanted the presence of the estate in order to establish a father and child relationship between Sanders and I.M.S. But Smith could only achieve that goal if he could revoke the VAP, rebut the presumption of paternity, or set up a conflicting presumption. The Kansas Parentage Act does not allow him to do any of those things. Accordingly, Sanders’ estate did not need to be a party to this action, and the district court did not err.
We strongly urge the legislature to review the Kansas Parentage Act provisions with a view toward clarifying the Act‘s various ambiguities, especially in those provisions we are unable to fully reconcile. Nevertheless, applying the principles we have discussed, we conclude legislative intent requires us to enforce the VAP against Smith.
We affirm the district court‘s decision enforcing the VAP and reverse the Court of Appeals.