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State ex rel. Secretary of Department for Children and Families v. Smith

Supreme Court of Kansas

April 7, 2017

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,
Alonzo Smith, Appellant.


         1. A voluntary acknowledgment of paternity complies with K.S.A. 2016 Supp. 23-2204 and can be enforced even if the signatures on the document are not notarized or accompanied by other formalities related to the witnessing of signatures.

         2. 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.

         3. 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 in K.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.

         4. 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed May 27, 2016.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. Opinion filed April 7, 2017. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.

          Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, argued the cause, and Morgan O'Hara Gering, of the same office, was on the brief for appellant.

          Daniel John Macias, DCF/CSS contract attorney, of Wichita, argued the cause and was on the brief for appellee.


          Luckert, J.

         The Kansas Parentage Act, K.S.A. 2016 Supp. 23-2201 et seq., provides an informal procedure for acknowledging paternity whereby a person signs a voluntary acknowledgment of paternity (VAP). K.S.A. 2016 Supp. 23-2204 directs the state registrar of vital statistics to create a VAP form listing the rights and responsibilities of acknowledging paternity. The form must also advise that signing the form acknowledges paternity, "creates a permanent father and child relationship, " and obligates the father to support the child, unless the acknowledgment is revoked by court order in an action filed within 1 year of the child's birth. K.S.A. 2016 Supp. 23-2204(b)(1), (2).

         Nevertheless, another statute within the Kansas Parentage Act, K.S.A. 2016 Supp. 23-2208(a)(4), provides that an individual who signs a VAP form is merely "presumed to be the father of [the] child." And K.S.A. 2016 Supp. 23-2208(b) allows for rebutting the presumption by clear and convincing evidence and does not impose a time limitation for doing so.

         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 K.S.A. 2016 Supp. 23-2204, including the creation of a permanent father and child relationship, if the VAP is not revoked by court order within 1 year of the child's birth. As applied to this case, in which an individual who signed a VAP seeks its untimely revocation, this means the VAP established a permanent father and child relationship. We also conclude that no other issue raised by the parties requires us to remand this case for further proceedings or to refuse to recognize a permanent father and child relationship.

         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 K.S.A. 2008 Supp. 39-709. The State seeks reimbursement from Smith for the past support it has provided for I.M.S.; the State also seeks an order obligating Smith to pay future child support. Neither Smith, I.M.S.'s mother, the State, nor anyone else asserts-or has ever asserted-that Smith is actually I.M.S.'s natural (or biological) father. But Smith signed a VAP at the hospital shortly after I.M.S.'s birth on May 18, 2000, and this VAP serves as the sole basis for the State's claims.

         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 testified that the State red-flagged her file because it would not seek support from Sanders due to his criminal and gang activity.

         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 ...

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