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.
BY THE COURT
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.
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.
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.
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.
of the judgment of the Court of Appeals in an unpublished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.
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.
John Macias, DCF/CSS contract attorney, of Wichita, argued
the cause and was on the brief for appellee.
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).
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.
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.
and Procedural Background
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
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.
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
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
"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."
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.
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
"[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."
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
respect to the VAP, Smith, like Gafford, did not recognize
"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
testified he did not read the form and could not have read
the form at the hospital because he did not ...