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In re Adoption of X.J.A.

September 7, 2007

IN THE MATTER OF THE ADOPTION OF X.J.A., A MINOR CHILD BORN 12-21-2003.


Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 621, 142 P.3d 327 (2006). Appeal from Ford district court; VAN Z. HAMPTON, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed in part and remanded with directions.

SYLLABUS BY THE COURT

1. Consent by the natural parents to the adoption of their child, where required by statute, is regarded as an essential requisite to the court's jurisdiction to render a valid decree of adoption.

2. Whether jurisdiction exists is a question of law over which an appellate court exercises unlimited review.

3. The purpose and necessity of a written consent to adopt is to ensure that the natural parent freely and voluntarily consents to the adoption.

4. The acknowledgment of a written consent to adopt serves as prima facie evidence of the validity of the consent, the identity of the signer, and that the consent was freely and voluntarily given.

5. The term "prima facie" is defined, among other things, as sufficient to establish a fact or raise a presumption unless disproved or rebutted.

6. In an adoption, absent prima facie proof through acknowledgment, the identity of the signer of the adoption consent, as well as the adoption consent's validity and voluntariness, may be met by the adoptive parents through alternate prima facie evidence.

7. Under the facts of this case, the district court erred in shifting the burden of proof to the natural parent before the adoptive parents had established the functional equivalent of acknowledgment through alternate prima facie evidence.

8. A district court's findings regarding the voluntariness of a consent to adopt are reviewed by an appellate court under a substantial competent evidence standard.

9. The essential elements of a common-law marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent to the marriage between the parties.

10. The burden of proving a common-law or consensual marriage rests upon the party asserting it.

The opinion of the court was delivered by: Nuss, J.

This case primarily requires us to determine the validity of a natural mother's written consent to adoption of her newborn child. Her purported consent was later acknowledged outside her presence by a notary public. The district court held that the adoptive parents substantially complied with the requirements of the consent statute, K.S.A. 59-2114, approved the consent and adoption, and terminated the natural mother's parental rights. The Court of Appeals reversed because of the adoptive parents' failure to substantially comply with the Uniform Law on Notarial Acts, K.S.A. 53-501 et seq. In re Adoption of X.J.A., 36 Kan. App. 2d 621, 142 P.3d 327 (2006). Our jurisdiction is pursuant to K.S.A. 20-3018(b) (petition for review granted from adoptive parents).

The issues on appeal and our accompanying holdings are as follows:

1. Did the district court err in applying the doctrine of "substantial compliance" to the statute governing written consent for adoption, K.S.A. 59-2114? No.

2. Did substantial competent evidence support the district court's finding that Mother failed to establish that her consent was involuntarily given? Unnecessary to address.

3. Did substantial competent evidence support the district court's finding that the adoptive parents were in a common-law marriage, thus providing the court jurisdiction to grant a decree of adoption? Yes.

Nevertheless, we reverse the Court of Appeals and remand to the district court for further proceedings.

FACTS

A.A. (Mother) was born in Mexico City, Mexico, in early 1979. She moved to the United States with her family when she was 10 years old. Mother attended school in this country until approximately 1997, but did not complete high school or obtain a GED.

In March or April 2003, 24-year-old Mother learned she was pregnant. At the time, she was living in a trailer in Garden City, Kansas, with J.S. (Father), the biological father, and G.P.A., her 13-month-old daughter from a previous relationship. Shortly after Father learned she was pregnant, he moved out. Two months later, Mother was evicted, so she and her daughter moved in with her neighbor Guadalupe.

Mother allegedly told Guadalupe on two separate occasions that she desired an abortion. Guadalupe offered to help her so that she would not have to abort the child.

When Mother was 5 or 6 months pregnant, she met Guadalupe's sister, M.A., and M.A.'s companion, E.M., who had lived together for 14 years. Although they wanted children, M.A. had been unable to conceive. According to M.A., Mother called and asked if M.A. would adopt Mother's baby because she did not know how she would care for two children. M.A. later discussed the possible adoption with Mother in Guadalupe's home. When Mother was 7 or 8 months pregnant, she allegedly told Guadalupe, "Now, I'm going to give the baby to [M.A.]." M.A. and E.M. later consulted an adoption attorney, David Snapp.

Mother continued living in Guadalupe's home until December 2003. On December 20, Guadalupe, her brother Isaac, and three friends took Mother to the Garden City hospital when she went into labor. Both Guadalupe and M.A. stayed with Mother during labor. On December 21, in M.A.'s presence, Mother gave birth to a girl whom M.A. and E.M. named X.J.A.

On December 23, Guadalupe picked Mother up from the hospital. That same day, M.A. and E.M. signed a Petition for Adoption in attorney Snapp's office and obtained from him a form entitled Consent to Adoption of Minor Child. The girl remained in the hospital for 3 more days due to health concerns. During this time, Mother visited her daily and received counseling and education for new mothers.

On December 24, Mother signed the adoption consent form presented by M.A. Among other things, the form states: "I hereby consent and agree to the adoption of [X.J.A.] by [E.M.] and [M.A.] I have read and I understand the above consent and I am signing as my free and voluntary act."

When M.A. returned the form to Snapp in Dodge City that same day, he reminded her that Mother's signature required acknowledgment. She then took the consent to a notary acquaintance in Garden City who had prepared her tax returns. According to M.A., she told the notary "all that happened." After M.A. complied with the notary's request to see the baby and accepted congratulations, the notary "notarized the paper." Mother was not present and there is no evidence that the notary knew her. The preprinted acknowledgment is also dated December 24, 2003, and states, in relevant part:

"I, a notarial officer in and for the County [Finney] and State aforesaid, certify that [Mother], whose name is subscribed to the above and foregoing consent, appeared before me in person and duly acknowledged execution of the above consent and duly acknowledged that the statements made in the foregoing consent are true."

On December 26, X.J.A. was discharged from the hospital; M.A. and E.M. were present. Although the girl was discharged to Mother, she gave the girl to M.A. as they prepared to leave the hospital. X.J.A. went home to Dodge City with M.A. and E.M. while Mother went to Guadalupe's residence in Garden City. M.A. and E.M. agreed to let Mother see X.J.A. each weekend and indeed later made multiple trips to Garden City for this purpose.

Shortly after X.J.A. was born, Mother enrolled her in the Women Infants Child (WIC) program, a food assistance program in which Mother participated with her other daughter. Mother provided items from the program to M.A. Mother also obtained health insurance for X.J.A., and took her to two medical appointments for vaccinations.

On December 29, Snapp filed a petition for adoption, attaching a copy of Mother's purported consent from 5 days earlier. An affidavit for publication service was filed in January 2004, and a hearing on the petition was scheduled for February 24, 2004.

In February 2004, Mother traveled from Garden City to Dodge City where she met with Snapp and M.A. Mother answered questions about herself and Father. According to M.A., Mother communicated with Snapp in English.

In March 2004, the district court conducted a fitness hearing for M.A. and E.M. After hearing evidence, the court concluded that they were "fit and proper persons to take temporary custody and provide care and support of the minor child, [X.J.A.]."

According to Mother, when M.A. and E.M. stopped allowing her to visit X.J.A. in May 2004, she went to their home in Dodge City to ask for her daughter. Police were called and the adoptive parents gave the police documents showing that an adoption proceeding had commenced. E.M. later testified that this was the first time he knew there was a problem.

On October 19, 2004, Mother filed a motion to withdraw consent to adopt. In the motion, she admitted that she signed "something" but did not admit to signing anything she believed to be a consent to adopt. Nor did she admit to freely and voluntarily giving her consent to the adoption of X.J.A.

In July 2005, after hearing arguments, the district court denied Mother's motion for summary judgment. The court later found, among other things, that the adoptive parents had the burden of proving Mother signed the consent and if they met this burden, the burden shifted to Mother to establish the consent was not freely and voluntarily given.

Trial occurred in November 2005, with 16 witnesses testifying. Consistent with the court's prior ruling, the adoptive parents began and presented testimony from their attorney's assistant who essentially obtained writing exemplars from Mother and provided them to forensic document examiner, Barbara Downer. Downer testified that in her expert opinion, the signature on the consent form was Mother's.

Based on this initial testimony, the district court ruled that the adoptive parents established their prima facie case that Mother's signature appeared on the consent and that the burden then shifted to Mother to rebut this prima facie evidence. After Mother presented the testimony of her fiancé, Michael Ibarra, the court found that evidence of her signature had not been rebutted. Mother then proceeded with other evidence and attempted to meet her burden that the consent was involuntary.

Conflicting evidence was presented as to whether Mother ultimately agreed to the adoption. During trial, both Mother and M.A. testified through an interpreter. Under direct examination by her attorney, Mother admitted signing a document on December 24:

"Attorney: Do you know if that's your signature?

"Mother: Yes, it's mine.

"Attorney: You're sure you signed that document?

"Mother: I don't remember signing it, but that signature is mine."

In addition to admitting her signature, Mother admitted that she filled in the consent's blanks for her age, place and date of birth, and the day she signed. She testified, however, that she did not know what the document was.

Mother denied that she ever told Guadalupe's family that she would give up the child. Rather, she believed that M.A. and E.M. were simply going to help her take care of the new baby; she did not believe they were going to keep X.J.A. permanently. In support, Mother asserted that she told a nurse at the hospital that the baby was not being given up for adoption.

Mother testified that she signed a document in a car outside of Guadalupe's sister Sylvia's house. She did not understand the document and she felt pressured into signing it. She believed that she was signing something "[s]o, that there would be difficulties to take the baby back." Mother also testified that when she met with Snapp in Dodge City, she did not know the purpose of the visit. Nevertheless, she did not question why she was visiting M.A.'s and E.M.'s attorney.

M.A.'s version of events was quite different. She denied that Mother was in a car when she signed the consent form. Rather, M.A. asserted that she met with Mother at M.A.'s sister Sylvia's house, where she told Mother to read and sign the form. Mother read it slowly. When she finished reading the form, Mother asked for a pen, filled in the blanks, signed and gave it back to M.A. Mother did not ask any questions.

According to M.A., Mother signed the form between 7 and 8 p.m. in the presence of M.A. and M.A.'s family including Guadalupe, Sylvia, Isaac, and their mother. M.A. believed Mother "knew what she was signing" and understood the content of the consent form "because when she was pregnant she told me that she was going to give her [X.J.A.] to me." M.A. testified that she also had earlier observed Mother speak English and fill out the hospital papers in English. To M.A.'s knowledge, no one ever put pressure on Mother to sign the consent.

Like her sister M.A., Guadalupe contradicted Mother's assertion that the consent was signed in the backseat of a car. She stated that the consent was signed at Sylvia's house in front of several witnesses. When asked if she had any reason to believe that Mother did not understand that E.M. and M.A. were going to adopt the baby, Guadalupe said, "I never thought that, no. It appeared to me that it was all right with her."

Similarly, M.A.'s other sister, Sylvia, discussed Mother's ability to read and understand English. Sylvia testified that Mother did not ask any questions about the consent form "because she knows how to read English very well. And she has read letters for me, and she's interpreted them [from English to Spanish]."

M.A.'s brother Isaac testified that Mother told him she was contemplating abortion. When asked about Mother's statement that she does not speak or read English, Isaac stated, "she understands. And, she talks, and she writes. . . . and [on one occasion] she served as my interpreter." Concerning the consent form, he testified that Mother filled in the blanks in his presence. She did not ask any questions about it because based upon his experience with her, "she knows very well to read and to write English." He confirmed that she read the consent, asked for a pencil, and signed.

M.A.'s companion, E.M., testified that Mother called M.A. to tell her that they could adopt her child. The two later drove to Garden City from their home in Dodge City to discuss the details with Mother. After X.J.A. was born, E.M. did not believe anything had ...


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