State ex rel. Secretary of DCF v. Smith ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,306
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.
SYLLABUS BY THE COURT
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
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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Review of the judgment of the Court of Appeals in an unpublished opinion filed May 27, 2016.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.
The opinion of the court was delivered by
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
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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.
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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
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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.
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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
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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
him until he was incarcerated in July 2004. Gafford indicated that Sears treated all of her
children as he would his own. She also testified about an attempt to contact Smith when
I.M.S. was around 4 years old; she wanted to ask Smith to agree to change I.M.S.'s last
name to hers, but Smith never returned her calls. Around 2006, Smith and I.M.S. resumed
contact. For approximately 3 years, Smith and I.M.S. continued regular contact. One year
during that time, Smith claimed I.M.S. and one of Gafford's other children as dependents
on his taxes. Smith also attended one parent-teacher conference and a school recital.
Contact ended when Gafford requested financial support from Smith.
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 K.S.A. 2016 Supp. 23-2204 and
established Smith as the legal father. The court noted Kansas law was properly reflected
in the disclosures and those disclosures had given notice of Smith's legal duties. Noting
that Smith failed to revoke the acknowledgment within the statutory time period, the
court concluded his motion was time-barred. The district court also found that Smith's
failure to date the form or sign it in front of a notary public or judge did not invalidate the
VAP. As for Smith's arguments about his lack of understanding regarding the document's
import, the district court held that Smith's failure to read the document or seek the advice
of counsel did not make the acknowledgment unenforceable because Smith failed to
prove his signature had been obtained by duress, coercion, fraud, or a mistake. Finally,
the district court agreed with the guardian ad litem's conclusion that it was in I.M.S.'s best
interest to find that Smith was I.M.S.'s legal father.
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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 K.S.A. 2015 Supp. 23-2204 and its
provisions imposing a 1-year limitation on a revocation action. But the panel also noted
that "revocation of the acknowledgment is not the only way to obtain a court order ending
that parental relationship." 2016 WL 3031277, at *7. The other option, found at K.S.A.
2015 Supp. 23-2208(a)(4), recognizes that a VAP creates a presumption of paternity that
can be rebutted by clear and convincing evidence. This presumption, the panel
concluded, arises from the statute and not from facts "that have any probative value as
evidence of the existence of the presumed fact, i.e., actual paternity of I.M.[S.]" 2016 WL
3031277, at *8. The panel reasoned that the fact of paternity "'shall be determined from
the evidence exactly as if no presumption was or had ever been involved.'" 2016 WL
3031277, at *8 (quoting K.S.A. 60-414[b]).
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 K.S.A.
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60-2101(b) (jurisdiction to review judgments of the Court of Appeals) and K.S.A.
20-3018(b) (petition for review procedures).
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 of the Social Security Act. 42 U.S.C.
§ 654(20)(A) (2012); 42 U.S.C. § 666(a)(5)(C)-(E) (2012); see also Parness & Townsend,
For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth, 40
U. Balt. L. Rev. 53, 57-63 (2010). Kansas statutes setting up the program in this state
require Kansas birthing hospitals, and permit certain other institutions, to participate in a
VAP program. K.S.A. 2016 Supp. 23-2203. The VAP program provides a means for
unmarried parents to name a father on the birth certificate with the intention of
establishing a simple process for establishing paternity. See K.S.A. 2016 Supp. 65-2409a.
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 K.S.A. 2016 Supp. 23-2204, the form advises of the right to consult
with an attorney and explains various rights and obligations that arise from
acknowledging paternity, including the duty to support the child. The form also uses
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statutory language in 23-2204(b) to advise: "(1) An acknowledgment of paternity creates
a permanent father and child relationship which can only be ended by court order. A
person who wants to revoke the acknowledgment of paternity must file the request with
the court before the child is one year old . . . ." It also explains that in order to revoke the
VAP "[t]he person will have to show that the acknowledgment was based on fraud,
duress (threat) or an important mistake of fact, unless the request is filed within 60 days
of signing the acknowledgment or before any court hearing about the child, whichever is
earlier."
K.S.A. 2016 Supp. 23-2209(e) details the procedure for revoking a VAP. It limits
those who may seek a revocation and the time in which they may do so, stating: "[T]he
man named as the father, the mother or the child may bring an action to revoke the
acknowledgment of paternity at any time until one year after the child's date of birth."
K.S.A. 2016 Supp. 23-2209(e). With some slight difference in wording from the VAP
form, 23-2209(e) requires one seeking to revoke the VAP to prove "fraud, duress or
material mistake of fact" if neither an action related to the child nor an effort to revoke
the acknowledgment had been brought in the 60 days after the VAP was signed. Compare
K.S.A. 2016 Supp. 23-2204(b)(1) (requiring showing of "fraud, duress (threat) or an
important mistake of fact") (emphasis added) with K.S.A. 2016 Supp. 23-2209(e)
(requiring showing of "fraud, duress or material mistake of fact") (emphasis added).
The statute focused on by the Court of Appeals, K.S.A. 2016 Supp. 23-2208,
provides in relevant part: "(a) A man is presumed to be the father of a child if: . . . (4)
The man notoriously or in writing recognizes paternity of the child, including but not
limited to a voluntary acknowledgment made in accordance with K.S.A. 2016 Supp. 23-
2223 or K.S.A. 65-2409a, and amendments thereto." K.S.A. 2016 Supp. 23-2223 and
K.S.A. 2016 Supp. 65-2409a relate to the completion of birth certificates, and K.S.A.
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2016 Supp. 65-2409a provides the option of completing a birth certificate with a father's
name based on a VAP. When a presumption of paternity arises under one of the
alternatives listed in 23-2208, it "may be rebutted only by clear and convincing evidence,
by a court decree establishing paternity of the child by another man or as provided in
subsection (c)." K.S.A. 2016 Supp. 23-2208(b). Once the presumption has been rebutted,
"the party alleging the existence of a father and child relationship shall have the burden of
going forward with the evidence." K.S.A. 2016 Supp. 23-2208(b).
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 for an "acknowledgment." Smith's arguments on this point require us to interpret
the Kansas Parentage Act and other statutes. Issues of statutory interpretation present a
question of law subject to unlimited review. See In re Marriage of Brown, 295 Kan. 966,
969, 291 P.3d 55 (2012); In re Estate of Foley, 22 Kan. App. 2d 959, 961, 925 P.2d 449(1996) (construction of Kansas Parentage Act subject to unlimited review). We follow a
well-established rubric when faced with questions of statutory interpretation with the
touchstone being legislative intent.
"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
11
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 K.S.A.
2016 Supp. 23-2204(a), which directs the state registrar of vital statistics, in conjunction
with the secretary for children and families, to provide VAP forms. The form signed by
Smith and Gafford is labeled as a form of the Office of Vital Statistics, and Smith does
not argue, at least directly, that the form deviated from a statutory requirement.
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).
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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 K.S.A. 53-501
et seq., which codifies the uniform law on notarial acts. Kansas' notarial act specifies the
procedures for taking an acknowledgment, including the verification of a signature's
authenticity, and allows only a notary public, judge, clerk of a court, or certain other
county officials to perform a "notarial act." See K.S.A. 53-503 (notarial acts); K.S.A. 53-
504 (listing who may perform notarial acts). As Smith points out, in other statutes
relating to paternity and placing names on birth certificates, the legislature has required
the verification of signatures and, in some situations, an oath. See, e.g., K.S.A. 2016
Supp. 23-2223 (requiring use of affidavits sworn to before a judicial officer to amend
birth certificate, including when seeking to add a parent's name); K.S.A. 59-2114
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(consent in adoption case "shall be in writing and shall be acknowledged before a judge
of a court of record or before an officer authorized by law to take acknowledgments");
see also State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397 (1976) (defining "affidavit" as
"a written statement, under oath, sworn to or affirmed by the person making it before
some person who has authority to administer an oath or affirmation").
Striking differences become apparent when we compare the language chosen by
the legislature in these other statutes with the wording of K.S.A. 2016 Supp. 23-2204. In
K.S.A. 2016 Supp. 23-2223 and K.S.A. 59-2114, the legislature explicitly requires the
signature be made or acknowledged before a judge or a notarial officer, but 23-2204 and
other Kansas statutes relating to the VAP procedure do not. The legislature's inclusion of
language explicitly requiring a notarial acknowledgment illustrates that the legislature
knows how to impose formality. And its failure to include language mandating a notarial
act presents persuasive evidence that the legislature did not believe such a step was
necessary when a VAP is executed. See, e.g., Ambrosier v. Brownback, 304 Kan. 907,
913-14, 375 P.3d 1007 (2016) (comparing statutes regarding gubernatorial appointments
and concluding differences in language were persuasive evidence the legislature intended
different treatment).
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 42 U.S.C.
§ 666(a)(5)(C)(iv) (discussing conditions VAP form must meet before another state must
give it full faith and credit). But other policy considerations, including the legislative
intent to have a simple process for naming a father, support the statute as currently
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enacted—without requiring a formal verification or notarization process. Ultimately, such
competing "'questions of public policy are for legislative and not judicial determination,
and where the legislature does so declare, and there is no constitutional impediment, the
question of the wisdom, justice, or expediency of the legislation is for that body and not
for the courts.'" State v. Spencer Gifts, 304 Kan. 755, 765, 374 P.3d 680 (2016) (quoting
State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 695, 273 P.2d 198 [1954]);
see Ambrosier, 304 Kan. at 914 ("Reasonable minds may differ on the wisdom of this
policy choice, but the choice is not this court's to make or reform.").
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 an
acknowledgment of paternity and its form and manner of execution complied with
Kansas law. In order to be enforceable, the signatures on a voluntary acknowledgment of
paternity, as provided for in K.S.A. 2016 Supp. 23-2204, do not have to be notarized or
accompanied by other formalities related to the witnessing of signatures.
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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
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Parentage Act treats all agreements to pay child support as a contract presumably
supported by consideration.
Specifically, K.S.A. 2016 Supp. 23-2221 provides: "It shall be presumed that
there is consideration for any written promise to furnish support for a child, growing out
of a presumed or alleged father and child relationship. Such a promise shall be
enforceable according to its terms, subject to subsection (d) of K.S.A. 2016 Supp. 23-
2209." And K.S.A. 2016 Supp. 23-2209(d) states that an agreement between "an alleged
or presumed father and the mother or child does not bar an action under this section"; the
section provides procedures for determining the father and child relationship and for
revoking a VAP. See K.S.A. 2016 Supp. 23-2209(a), (b), and (e). In this case, Smith's
agreement to pay child support is further supported by the consideration of being granted
the opportunity to develop a father and child relationship with I.M.S.—a relationship the
district court found had developed, at least through the eyes of I.M.S. who saw Smith as
his father.
Although K.S.A. 2016 Supp. 23-2221 addresses only consideration, that reference
indicates the legislature intended to treat such agreements as contracts. In addition, the
VAP bears the hallmarks of other components of a valid contract. First, the VAP form
records a person's intent to be bound by the document by requiring initialing of each page
and signing the document. Both Smith and Gafford had the right to accept or reject these
terms, and both indicated their assent by initialing the pages and signing at the end.
Second, the VAP delineates specific and definite duties, including the responsibility to
provide support. The form even warned: "If necessary, this duty may be enforced
through legal action such as a child support order, an order to pay birth or other medical
expenses of the child, or an order to repay government assistance payments of the child's
care." Third, K.S.A. 2016 Supp. 23-2221 requires us to presume consideration. In
17
addition, as we have discussed, the record supports consideration by allowing the
development of a parent and child relationship. Finally, the document complied with
Kansas law. Under these circumstances, we conclude the district court did not err in
applying contract law principles. See 1 Williston on Contracts § 3:2 (4th ed. 2007) ("The
test for enforceability of an agreement is: (1) whether both or all parties, with the
capacity to contract, manifest objectively an intent to be bound by the agreement; (2)
whether the essential terms of the agreement are sufficiently definite to be enforced; (3)
whether there is consideration; and (4) whether the subject matter of the agreement and
its performance are lawful.").
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
K.S.A. 2016 Supp. 23-2204 nor 23-2209, the provisions dealing with the VAP form,
allow an adult party to a VAP to bring a revocation action after 1 year—for any reason.
(Different limitations apply to those younger than 18 at the time the acknowledgment is
signed.) And Smith, who was more than 18 when he signed the VAP, cites no authority
that suggests the 1-year limitation period can be waived or tolled to allow him to file a
motion to revoke more than 9 years after I.M.S.'s birth on the grounds he did not
understand the implications of his act or have notice of the effect of his act. See Cesar C.
18
v. Alicia L., 281 Neb. 979, 985-86, 800 N.W.2d 249 (2011) (under Nebraska law, a VAP
becomes a legal finding of paternity after the period for revocation has passed). The State
has not presented this argument, and so we do not decide the question in this case; we
simply point out the potential issue so future litigants do not imply too much from today's
ruling.
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 K.S.A. 38-1114' [now K.S.A.
2016 Supp. 23-2208]." (Emphasis added.) State ex rel. Secretary of DCF v. Smith, No.
114,306, 2016 WL 3031277, at *6 (Kan. App. 2016) (unpublished opinion) (quoting
State ex rel. Secretary of SRS v. Kimbrel, 43 Kan. App. 2d 790, 797, 231 P.3d 576[2010], rev. denied 292 Kan. 966 [2011]). The panel further concluded that a
presumption of paternity had been clearly and convincingly rebutted by testimony from
both Smith and Gafford that they never had sex. The panel gave conclusive effect to
19
biological paternity and no effect to the signed VAP. 2016 WL 3031277, at *8. In
focusing on biology, the Court of Appeals panel relied heavily on an earlier Court of
Appeals decision in Kimbrel. 2016 WL 3031277, at *6.
In Kimbrel, the Court of Appeals panel cited K.S.A. 38-1111 (now K.S.A. 2016
Supp. 23-2205), which states:
"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
K.S.A. 38-1111 and the presumption statute, K.S.A. 38-1114(a) (now K.S.A. 2016 Supp.
23-2208). The Frazier court observed that the presumption statute listed six
circumstances in which a man is presumed to be the father of a child and that only one of
those presumptive circumstances requires proof of a genetic link between the father and
the child. In other words, "the parental relationship for a father can be legally established
under the [Kansas Parentage Act] without the father actually being a biological or
adoptive parent." 296 Kan. at 746; see also In re Marriage of Ross, 245 Kan. 591, 602-
03, 783 P.2d 331 (1989) (reinstating support, visitation, and custody for marital father
even though genetic testing established he was not the biological father).
20
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 42 U.S.C. § 666(a)(5)(C); K.S.A. 2016
Supp. 23-2204; see also Note, Voluntary Acknowledgments of Paternity: Should Biology
Play a Role in Determining Who Can Be a Legal Father?, 38 Ind. L. Rev. 479, 481, 490
(2005) ("Title IV-D does not call for the acknowledging man to assert his genetic
parentage of the child."). And neither K.S.A. 2016 Supp. 23-2204 nor the Office of Vital
Statistics form requires a person who signs the form to make a declaration of biological
parenthood of the newborn child. Accordingly, under the VAP procedure enacted by the
legislature, genetic testing would not void the VAP or automatically negate the
responsibilities of a person who had signed a VAP. Compare Van Weelde v. Van Weelde,
110 So. 3d 918, 919-21 (Fla. Dist. App. 2013) (VAP that was not revoked during the
statutory period established paternity and father did not commit fraud because Florida's
law does not require the person to be named as father be the biological father), with
McGee v. Gonyo, 2016 VT 8, ¶¶ 2, 19, 140 A.3d 162 (2016) (setting aside a VAP as
fraud on the court where "[b]oth parties signed the form, which stated that they
'voluntarily and without coercion, and of our own free will, hereby acknowledge that we
are the biological parents of the child.'"). At a minimum, Smith's signature on the VAP
gave rise to a presumption of paternity and his denial of being a biological parent set up
the possibility of a conflicting presumption that supported his request for genetic testing.
See K.S.A. 2016 Supp. 23-2208(a)(5).
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
21
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 the Court of Appeals did not consider
the effect of K.S.A. 2016 Supp. 23-2209, which defines the procedure for establishing a
parent and child relationship and, in doing so, indicates a legislative intent for a VAP to
permanently bind those who sign the document. It does so, in part, by limiting the parties
who may bring an action to revoke the VAP to "the man named as the father [on the VAP
form], the mother or the child" and by requiring the action to be filed within "one year
after the child's date of birth" if the action is brought by the man or the mother. K.S.A.
2016 Supp. 23-2209(e). Clearly, the legislature intended to impose strict limitations on
the two individuals who sign the VAP form. It seems contrary to this intent to allow
either of those parties the ability to sidestep the VAP's terms—to effectively seek its
revocation—by rebutting a presumption or raising a conflicting presumption, such as
would arise through genetic testing, under K.S.A. 2016 Supp. 23-2208(a)(5). See K.S.A.
2016 Supp. 23-2208(c) ("If two or more presumptions under this section arise which
conflict with each other, the presumption which on the facts is founded on the weightier
22
considerations of policy and logic, including the best interests of the child, shall
control.").
Granted, limiting the remedy available to those who sign a VAP seems
inconsistent with K.S.A. 2016 Supp. 23-2209(a), which states that "any person on behalf
of . . . a child, may bring an action: (1) At any time to determine the existence of a father
and child relationship presumed under K.S.A. 2016 Supp. 23-2208." And the broad word
"any" would include the father and the mother. Nevertheless, the more specific provisions
regarding the VAP—those found at K.S.A. 2016 Supp. 23-2204 and 23-2209(e)—
effectively create an exception to that broad language. See In re Marriage of Brown, 295
Kan. 966, 975, 291 P.3d 55 (2012) (specific statutory provisions control over more
general). This conclusion is bolstered by considering the context of the statutes creating a
permanent relationship.
The specific language about the permanency of the father and child relationship
appears only in K.S.A. 2016 Supp. 23-2204, which dictates the requirements of the VAP
form. In other words, the legislature imposed this term on those signing the agreement,
not necessarily upon those who did not enter into the agreement. In addition, the language
imposing the 1-year limitation occurs only in the statute dictating the content of the form,
K.S.A. 2016 Supp. 23-2204, and the statute regarding a revocation procedure brought by
those who sign the form, K.S.A. 2016 Supp. 23-2209. Reading K.S.A. 2016 Supp. 23-
2204 and 23-2209 together, after the child's first birthday, neither the man signing the
VAP nor the mother can attempt to revoke the VAP, attempt to obtain a contrary
determination of the father and child relationship by rebutting the presumption that arises
from the VAP, or attempt to establish the existence of a conflicting presumption through,
for example, genetic testing. When a man and a mother sign the form they agree and
23
acknowledge that the VAP creates a "permanent father and child relationship." K.S.A.
2016 Supp. 23-2204.
Others acting on behalf of the child, including a biological father, could not
use K.S.A. 2016 Supp. 23-2209(e) to attack the validity of the VAP, and that subsection's
1-year limitation period would not apply. Moreover, that person is not a party to the
VAP, which means that person has not agreed to the VAP's terms, including the term
creating the permanent relationship. Those statutes do not foreclose others acting on
behalf of the child using other procedures and seeking other remedies available under the
Kansas Parentage Act, including raising a competing presumption under K.S.A. 2016
Supp. 23-2208.
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 K.S.A. 2016 Supp. 23-2204 and 23-2209.
Smith cannot now revoke the VAP and may not attack it by using K.S.A. 2016 Supp. 23-
2208 to declare his relationship as merely presumptive fatherhood.
4. Is remand necessary?
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
24
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." K.S.A. 2016 Supp. 23-2208(c).
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:
25
"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.
26
CONCLUSION
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.
27