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In re W.L.

Court of Appeals of Kansas

April 19, 2019

In the Matter of W.L. and G.L., by and Through Their Mother and Next Friend M.S., Appellant, and E.L., Appellee.

         SYLLABUS

         1. The interest of parents in the care, custody, nurture, and control of their children is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution. Any waiver of these constitutionally protected rights must be knowingly, intelligently, and voluntarily made.

         2. K.S.A. 2018 Supp. 23-2301 et seq. authorizes a parent-child relationship to be established by a married couple using Assisted Reproductive Technology (ART) to conceive a child so long as both the spouses and the person who performs the procedure execute and acknowledge a consent in writing. Once this is done, the child is to be "considered at law in all respects the same as a naturally conceived child . . . ." K.S.A. 2018 Supp. 23-2302.

         3. The ART statutes have not been extended to unmarried couples. However, in Frazier v. Goudschaal, 296 Kan. 730, 747, 295 P.3d 542 (2013), the Kansas Supreme Court recognized that a parent-child relationship can also be established with a child conceived by ART where there is a written agreement between an unmarried couple in which the biological mother waives her constitutional rights and consents to coparenting with her partner.

         4. An unmarried person who seeks to establish a parent-child relationship with a child conceived using ART must attempt to do so by using the procedure set forth in the Kansas Parentage Act (KPA), K.S.A. 2018 Supp. 23-2201 et seq.

         5. Under K.S.A. 2018 Supp. 23-2220, the provisions of the KPA applicable to determining the existence of a father and child relationship also apply to the mother and child relationship, insofar as practicable.

         6.Under K.S.A. 2018 Supp. 23-2208, the initial burden of proof is on the petitioner to establish by a preponderance of the evidence a presumption of parentage. If the petitioner meets this initial burden, the burden of proof shifts to the respondent to rebut the presumption by clear and convincing evidence. If the presumption is rebutted, the burden of proof shifts back to the petitioner to go forward with the evidence.

         7. Under K.S.A. 2018 Supp. 23-2208(a)(4), a person can establish a presumption of parentage if he or she "notoriously or in writing recognizes [parentage] of the child, including but not limited to a voluntary acknowledgment made in accordance with [Kansas law.]"

         8. The requirements of the KPA are not based on marital status, sexual orientation, or gender. On its face, the KPA applies to both "the mother and child relationship and the father and child relationship." K.S.A. 2018 Supp. 23-2205.

         9. The KPA provides that every child has an interest in his or her parentage, and Kansas public policy requires courts to act in the best interests of children when determining the legal obligations to be imposed and the rights to be conferred in the parent and child relationship.

         10.Determining whether a statute violates the constitution is a question of law subject to unlimited review. Under the separation of powers doctrine, courts presume a statute is constitutional and resolve all doubts in favor of the statute's validity. A statute must clearly violate the constitution before it may be struck down.

         11.The KPA defines a parent-child relationship in terms of biology and adoption. Under the KPA, biological and adoptive parents are treated differently from persons who are not connected to a child by either biology or adoption.

         12. The KPA's distinction between a child's biological or adoptive parents and other persons does not establish a violation of the Equal Protection Clause under the Fourteenth Amendment to the United States Constitution.

          Appeal from Crawford District Court; Richard M. Smith, judge.

          Valerie L. Moore, of Lenexa, for appellant.

          Adam M. Hall and Sarah E. Warner, of Thompson Warner, P.A., of Lawrence, for appellee.

          Before Bruns, P.J., Schroeder and Gardner, JJ.

          BRUNS, J.

         This appeal arises out of a Petition for Determination of Parentage filed by M.S. under the Kansas Parentage Act (KPA), K.S.A. 2018 Supp. 23-2201 et seq. In the petition, she alleged a parent-child relationship with two minor children, W.L. and G.L., who were conceived by artificial insemination. At the time the children were conceived as well as at the time of their birth, M.S. was in a same-sex relationship with the children's biological mother, E.L. The couple never married and never entered into a written agreement regarding parentage. Likewise, it is undisputed that M.S. is not a biological parent of the children nor did she adopt the children. Instead, M.S. contends that she "notoriously or in writing" recognized parentage of the children. See K.S.A. 2018 Supp. 23-2208(a)(4) and K.S.A. 2018 Supp. 23-2220.

         After a two-day bench trial, the district court denied M.S.'s petition for parentage of W.L. and G.L. In doing so, the district court concluded that even if M.S. established by a preponderance of the evidence a presumption under the KPA, E.L. "has convinced the court by clear and convincing evidence that [M.S.] fails to meet the requisite criteria of a psychological, de facto, or functional parent." In particular, the district court found that there was no "meeting of the minds" between M.S. and E.L. regarding the parentage of the children. For the reasons stated in this opinion, we affirm the district court's determination of parentage.

         Facts

         M.S. and E.L. both grew up in Pittsburg. In the fall of 2011, the women reconnected as adults when they were both working at the University of Kansas Medical Center in Kansas City. In early 2012, M.S. and E.L. began a romantic relationship that lasted until the end of 2015. Although they lived together in a home in Olathe between February 2012 and January 2016, the couple never married or entered into a civil union.

         While they were living together, M.S. and E.L. discussed how each of them would like to have children someday. In October of 2012, M.S. paid for a three-month membership to a sperm bank. The membership allowed the women to log on to a website and view the profiles of potential donors. When this three-month membership expired, E.L. paid for another membership to the sperm bank.

         In early 2014, E.L. purchased eight vials of semen from a donor she chose through the sperm bank at a cost of $4, 400. At trial, the parties presented conflicting evidence about whether M.S. repaid some of this expense. The parties also disputed the nature and extent of M.S.'s involvement in selecting the sperm donor. According to E.L., she made the final decision and chose the donor based on his personal statement and expressed family values. Moreover, E.L. testified that M.S. had incorrectly identified the donor during her testimony.

         After undergoing two unsuccessful insemination attempts, E.L. became pregnant with twins in May 2014. The evidence in the record is conflicting regarding whether M.S. was present during the first two insemination attempts, but it appears that she was present for the third attempt. However, M.S. did not sign an insemination contract with the clinic. Likewise, M.S. was not present at E.L.'s medical visit in late June 2014 when she learned that she was pregnant with twins.

         When E.L. found out that she was pregnant, she attempted to involve M.S. in her pregnancy. E.L. sent out a pregnancy announcement including both of their names and a photograph of both M.S. and E.L. The announcement indicated that the L.-S. twins would be arriving in January 2015. At a baby shower hosted by E.L.'s sisters, M.S. and E.L. opened the gifts together. During the pregnancy, M.S. attended some prenatal doctor's appointments with E.L. but not others. Unfortunately, E.L. had a difficult pregnancy- including late-term preeclampsia requiring several hospitalizations. Although E.L. described her social life as active before the pregnancy, she testified that her lifestyle "changed drastically" as soon as she found out she was pregnant.

         Evidently, M.S. did not change her lifestyle while E.L. was pregnant and continued to party with friends. The night before E.L. gave birth, M.S. attended a Christmas party sponsored by her employer and then went to an "after party" at a friend's house. E.L.'s mother, who was staying with her, picked M.S. up from the after party and took E.L. with her to help locate the house. Even though E.L. was in pain and "in tears," M.S. had E.L.'s mother make an early morning stop at McDonald's on the way home. A few hours later, when E.L.'s water broke, M.S. was still drunk. E.L.'s mother drove both women to the hospital. While E.L. was in labor, she asked M.S. to "please, please scooch back a little bit" because M.S. still smelled of alcohol.

         The children were born on December 20, 2014. Although M.S. was not listed as a parent on the birth certificate, E.L. requested that the last name of the children include M.S.'s last name. Evidently, this was not something that E.L. and M.S. had discussed beforehand. According to E.L., this was something she wanted to do so that M.S. would feel included. Over the next year, M.S. and E.L. lived together with the children. E.L. testified that during this time she made all of the major parenting decisions-including daycare, nutrition, and healthcare decisions. However, M.S. did contribute significantly to the household financially and helped to pay for daycare, healthcare, and various other expenses.

         E.L. became concerned because M.S. did not change her lifestyle after the children were born. In May 2015, although the children were very sick, M.S. went out with a friend. In July 2015, M.S. called E.L. to say she had been in a car accident. E.L. took the children with her in the middle of the night to try to find M.S. After driving around for about an hour and a half, E.L. found M.S. after she spotted the flashing lights of a police car. M.S. was taken to jail and received a citation for DUI. In September 2015, several members of E.L.'s family visited the couple for the weekend. M.S. had been drinking heavily, and E.L. found her having sex with E.L.'s sister's boyfriend in the backyard. The children were in their bedroom sleeping at the time. The next morning, M.S. packed a bag and left for a week. After M.S. returned, E.L. said she tried to fix things and even went to a counselor, but she knew the relationship was irreparable because M.S. had also hurt several members of her immediate family.

         In October 2015, E.L. decided to end her relationship with M.S. and began looking for a job in Pittsburg. In January 2016, E.L. moved to Pittsburg. About a month after the move, E.L. amended the children's birth certificates to include only her last name. As such, they are now known as W.L. and G.L. A month or two later, M.S. also moved to Pittsburg to live with her parents. During the transition, E.L. allowed M.S. to come by and see the boys whenever she was in town to see her parents. Beginning in June 2016, E.L. began allowing the children to stay overnight with M.S. at her parents' house in Pittsburg every other weekend. In January 2017, E.L. also began allowing M.S. to see the children once during the week.

         According to E.L., M.S. continued to act in a manner that caused her concern. E.L. learned that M.S. had taken the children out of the state with M.S.'s new girlfriend without first asking her permission. Moreover, E.L. learned that M.S. had driven with the children in the car while she was intoxicated. M.S. had her girlfriend start the car for her by blowing into a mandatory interlock device installed after M.S.'s previous DUI. In addition, E.L. had concerns about M.S.'s interactions with the children while she was presenting symptoms of a strain of the herpes virus. It also appears that M.S. represented herself to medical staff as E.L.-including signing E.L.'s name and using her Social Security number-in order to receive healthcare for the children.

         A year after E.L. moved to Pittsburg, she began dating C.H. In July 2017, E.L. and C.H. moved in together with the children. In January 2018, E.L. and C.H. were married. According to E.L., C.H. immediately established a good relationship with the children. After E.L. and C.H. were married, they consulted an attorney about the possibility of C.H. adopting the children.

         In the late summer of 2017, M.S. texted E.L. and indicated that she was considering moving back to Kansas City. A meeting was setup with E.L., C.H., M.S., and M.S.'s girlfriend to discuss future visitation with W.L. and G.L. When M.S. asked E.L. about the possibility of becoming a guardian for the children, the conversation "went very south." Subsequently, E.L. sent an email to M.S. ...


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