In re Parentage of E.A.

No. 123,710
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Parentage of E.A.,
a Minor Child.
SYLLABUS BY THE COURT
1.
The Kansas Parentage Act focuses on legal presumptions that arise from a child's
circumstances. The Act provides that any person on behalf of a child may bring an action
at any time to determine the existence of a parent and child relationship presumed under
K.S.A. 2021 Supp. 23-2208. K.S.A. 2021 Supp. 23-2209.
2.
A presumption of parentage may be rebutted "by clear and convincing evidence,"
"by a court decree establishing paternity of the child by another man," or by another
presumption. When a presumption is 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.
2021 Supp. 23-2208(b). If two or more presumptions arise and conflict with each other,
"the presumption which on the facts is founded on the weightier considerations of policy
and logic, including the best interests of the child, shall control." K.S.A. 2021 Supp. 23-
2208(c).
3.
The collateral order doctrine provides that an order may be collaterally appealable
if it: (1) conclusively determines the disputed question; (2) resolves an important issue
completely separated from the merits of the action; and (3) is effectively unreviewable on
appeal from a final judgment.
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4.
Anyone trying to establish a presumption of parentage by openly and notoriously
claiming parentage must do so at the time of the child's birth.
5.
The Kansas Adoption and Relinquishment Act recognizes the primary importance
natural parents have in a child's life, and adoptions will be granted with the consent of a
parent, or both parents, or from those who are legally in the place of parents such as an
adoption agency. The Adoption Act permits any adult to adopt a minor child, but only
with the parents' consent. Consent to an adoption shall be given by the living parents of
the child whose rights have not been terminated unless one of the parents' consent is
found unnecessary under certain rules set out in the Adoption Act. K.S.A. 2021 Supp. 59-
2113; K.S.A. 2021 Supp. 59-2129.
6.
The doctrine of res judicata is a common-law rule of equity hoping to promote
justice and sound public policy. In other words, a party should not have to litigate the
same action twice. Before the doctrine of res judicata will bar a successive suit, four
elements must be met: (a) the same claim; (b) the same parties; (c) claims that were or
could have been raised; and (d) a final judgment on the merits.
7.
The common-law doctrine of collateral estoppel, like res judicata, also bars
someone from relitigating an issue determined against that party. Under Kansas law,
collateral estoppel may be invoked when there is a prior judgment on the merits which
determined the rights and liabilities of the parties on the issue based on ultimate facts as
disclosed by the pleadings and judgment; the parties must be the same or in privity; and
the issue litigated must have been determined and necessary to support the judgment.
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Appeal from Shawnee Court; MERYL D. WILSON, judge. Opinion filed September 9, 2022.
Affirmed.
Joseph W. Booth, of Lenexa, for appellant D.A.
Allan A. Hazlett, of Topeka Family Law, of Topeka, for appellees C.A., D.P., and S.P.
Linus L. Baker, of Stilwell, for amicus curiae National Association for Grandparenting.
Lindsee A. Acton and Warren H. Scherich III, of Scherich Family Law, PC, of Shawnee, for
amicus curiae National Association of Social Workers.
Before ATCHESON, P.J., HILL and GARDNER, JJ.
HILL, J.: Denied interested party status by the adoption court in his grandson's
adoption, D.A. filed this Kansas Parentage Act action. In this case, Grandfather claims to
be the "father" of E.A. due to his extensive history of fulfilling that role in the young
boy's life. During those six years, E.A. has lived in Grandfather's home as Grandfather's
son. Despite this history, the district court, relying on the adoption court's ruling, denied
Grandfather's motion for summary judgment based on res judicata and collateral estoppel
and dismissed the case. Grandfather appeals.
We agree with the district court that Grandfather is not entitled to summary
judgment and with its dismissal of the case but for different reasons. In accordance with a
recent Supreme Court ruling, we hold that Grandfather's claim of paternity fails because
it is untimely. He did not claim paternity at the time of the boy's birth. He made the claim
later. And, after considering the facts and the arguments, we conclude that a collateral
attack upon an adoption proceeding should not be permitted in order to avoid inconsistent
judgments of parentage from two courts. The resolution of such issues should be made in
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the adoption case. We therefore affirm the district court's denial of summary judgment
and dismissal of the case.
A boy born out of wedlock moves in with his grandfather.
E.A. was born in December 2012. When he was seven months old, E.A.'s natural
parents could not care for him and Grandfather took physical custody of E.A. and agreed
to integrate him into his family and to raise E.A. as his own child. Grandfather is the
biological paternal grandfather of E.A.
A month later, Grandfather started and paid for a paternity action on behalf of
E.A.'s natural father in Shawnee County District Court. In that action, the court
determined the parents of E.A. to be J.B.—natural mother, and C.A.—natural father. The
court awarded C.A. sole temporary custody of E.A. subject to supervised visitation by
J.B.
Then, in January 2014, C.A. signed a "Custody Relinquishment" assigning and
releasing custody of E.A. to Grandfather, the "paternal grandfather of such minor child."
The relinquishment stated that Grandfather would be "solely responsible and entitled to
make medical, educational, financial and any other type of decisions to effectuate the
purpose of this agreement." This document was never filed with any court.
Over four years later, in August 2018, C.A. signed a "Consent to Adoption of
Minor Child" agreeing to "permanently giv[e] up all custody and other parental rights"
over E.A. and to the adoption of E.A. by Grandfather, "his paternal grandfather." This
document was not filed with any court. By law, K.S.A. 59-2114(b)—the consent to
adopt—expired after six months. Grandfather has never legally adopted E.A.
C.A. told Grandfather on August 1, 2018:
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"Dad, this is your kid. Nobody will ever take him away from you while I am alive.
Nobody that I know wants to. I don't want anyone else to know about this document other
than you, uncle J[ ] and me. If I die and someone wants to take EJ from you, then you can
use these documents to prove that he is your son."
The parties agree that from August 2013 to May 2019, E.A. lived continuously
and exclusively with Grandfather's family. He lived as a full and equal member of
Grandfather's family, which also consisted of a mother-figure and three brothers and
sisters. He was raised just as his brothers and sisters. He believes that Grandfather is his
father. He is widely known by friends, neighbors, teachers, and acquaintances as the
youngest child of the family. And he is unaware of the existence of any other nuclear
family members. Grandfather has provided a stable, fulfilling, and thriving childhood
environment for E.A. Grandfather has notoriously—in writing, and by conduct—had a
parent-child relationship with E.A. since E.A.'s infancy.
E.A.'s natural mother, J.B., accepted these arrangements over the course of E.A.'s
life. During the past five years, she has had no contact with or provided any support to
E.A. During the past five years, E.A.'s natural father has had minimal incidental contact
with E.A.—as an older brother—not as a parent.
Circumstances change.
This arrangement abruptly changed in May 2019. Appellees S.P., E.A.'s biological
paternal grandmother, and D.P., Grandmother's husband, asked for a visit with E.A. They
picked up E.A. but have never returned him to Grandfather, and have prevented E.A.
from having any contact with Grandfather and his family.
This appeal is, essentially, a legal struggle between Grandfather and his two
opponents—Grandmother and D.P.
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Grandmother and D.P. petitioned to adopt E.A. in Shawnee County District Court.
Grandfather tried to intervene in the adoption proceeding, but the court denied his motion
for lack of standing. The adoption court found that C.A.'s paternity of E.A. had been
legally established in the prior paternity case, and that Grandfather did not meet the
statutory definition of a "party in interest" in the adoption proceeding. We cannot tell
from the scant record here if Grandfather tried to appeal the adoption court's ruling.
We do know that in response, Grandfather promptly petitioned for the
determination of parentage under the Kansas Parentage Act, K.S.A. 2021 Supp. 23-2201
et seq., and the holding in Frazier v. Goudschaal, 296 Kan. 730, 295 P.3d 542 (2013).
Grandfather filed the petition as "next friend" of E.A. He alleged he had "openly and
notoriously in writing" acted as E.A.'s father. He asked the court to determine that he was
a presumed parent of E.A. Therefore, he was entitled to a presumption of parentage under
the Parentage Act. Grandmother and D.P. opposed the parentage action.
Both parties moved for summary judgment in the parentage case. The district
court found that because Grandfather did not have standing in the adoption proceeding,
he was prohibited from attacking the adoption because of the doctrines of collateral
estoppel and res judicata. The court made three rulings:
• there could be no presumption of parentage here because parentage was
established in the 2013 paternity case in which the court found that C.A. was
the father of E.A.;
• parental rights cannot be terminated in a Parentage Act case; and
• a child cannot have more than two parents under the Parentage Act.
The district court dismissed the case.
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Grandfather appeals that ruling. Besides his brief, two amicus briefs have been
filed supporting his position. One is from the National Association for Grandparenting,
which discusses the unique and important position that grandparents can and do play in
children's lives. The second is from the National Association of Social Workers. The
social workers stress that early attachments children have with parental figures play an
important emotional role in that child's life.
We are not bound by the district court's rulings.
When we consider Grandfather's motion for summary judgment, we are in the
same position as the district court. We apply the same rules and, when we find reasonable
minds could differ on the conclusions drawn from the evidence, we will hold that
summary judgment is inappropriate. Appellate review of the legal effect of undisputed
facts is de novo. See GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 981-82, 453 P.3d
304 (2019).
Grandfather did not notoriously or in writing claim parentage at the time of E.A.'s birth.
Grandfather contends the uncontroverted facts found in his summary judgment
motion show he is a presumptive father of E.A. because he notoriously and in writing
acknowledged E.A. as his child. He claims respondents "are unable to rebut that
presumption with any evidence, much less, clear and convincing evidence." He contends
that E.A.'s natural parents exercised their parental preference by providing physical and
legal custody to Grandfather and thus "have nothing to give to respondents in the
adoption process." In other words, their consent to Grandmother's and D.P.'s adoption is
without legal effect.
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In opposition, Grandmother and D.P. contend that Grandfather's consent to
adoption and custody documents are not proof of parentage and that he has no document
showing J.B., E.A.'s birth mother, wanted him to have parental rights.
We begin with K.S.A. 2021 Supp. 23-2208(a)(4). It states that a man has a
presumption of paternity if the man "notoriously or in writing recognizes paternity of the
child." This is the law that Grandfather is relying on. He argues that through a series of
agreements with E.A.'s birth parents and the acquiescence of J.B., he has replaced C.A. as
father and has acknowledged that in writing. And this presumption cannot be rebutted.
We reject Grandfather's argument that his presumption of parentage cannot be
rebutted. A presumption may be rebutted "by a court decree establishing paternity of the
child by another man." K.S.A. 2021 Supp. 23-2208(b). There is a 2013 court decree
establishing C.A. as the father of the child. And there is the adoption decree. Thus,
Grandfather has the burden "of going forward with the evidence" if this court remanded
the case. K.S.A. 2021 Supp. 23-2208(b).
On closer inspection, Grandfather's argument fails under the ruling in In re
Parentage of M.F., 312 Kan. 322, 352, 475 P.3d 642 (2020), in which our Supreme Court
added a timing element to the "notoriously or in writing" recognition of paternity
presumption. Neither party acknowledges this recent case.
In re M.F. involved a woman attempting to establish a presumption of maternity
of a child conceived through artificial insemination under K.S.A. 2019 Supp. 23-
2208(a)(4) after she split with the child's birth mother. Our Supreme Court held that the
presumption stated in K.S.A. 2019 Supp. 23-2208(a)(4) does not allow a person to
"unilaterally pursue parenthood." 312 Kan. at 351. The court recognized the parental
preference doctrine and held the birth mother must have consented, implicitly or
explicitly, to share parenting with the person claiming the presumption. The court further
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held that the timing of the acknowledgment of the paternity/maternity was "critical." The
court designated the time of the child's birth as when the birth mother must have
consented to a shared parenting arrangement, and the person claiming the presumption
must have notoriously recognized paternity/maternity of the child. 312 Kan. at 351-53.
When Grandfather became E.A.'s father in every meaningful way for the child,
E.A. was at least seven months old when that arrangement began. Grandfather alleged,
"On August 2013, at seven months of age, the natural parents of EJA became unable
and/or unwilling to care for EJA." That is when Grandfather "took physical custody of
EJA and agreed to integrate him into his family to raise him as his own."
But that was too late under the ruling in In re M.F. Moreover, in September 2013,
Grandfather did not claim that E.A. was his own child. Rather, Grandfather "caused and
funded" a court action so that C.A. would be legally named E.A.'s father. Later on,
Grandfather and C.A. entered into written agreements pertaining to E.A.'s custody and
C.A. told Grandfather that E.A. was Grandfather's son. But, at that point, Grandfather
could not be E.A.'s legal parent without filing an adoption petition in a court—which he
could have done but did not.
The general rule is that new opinions of the Supreme Court are binding on all
other future cases and all cases still pending on appeal when the new opinions are filed.
We thus hold that the ruling in In re M.F. applies here. The exceptions to the general rule
are when:
(1) the new opinion establishes a new rule of law;
(2) retroactive application would not further the principle on which the new
opinion is based; and
(3) retroactive application would cause substantial hardship or injustice.
Stechschulte v. Jennings, 297 Kan. 2, 18, 298 P.3d 1083 (2013).
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None of those exceptions apply here.
To sum up, Grandfather has failed to persuade us that he is entitled to summary
judgment on this claim of paternity.
From this specific concern we have about the timeliness of Grandfather's claim of
paternity, we turn to a more general concern. Should collateral attacks upon adoptions be
permitted? To answer this question we reviewed the Parentage Act, the Adoption Act,
and several cases. We conclude that collateral attacks on adoptions are not permitted and
the resolution of those parentage issues must be in one case so a common resolution of all
claims can be achieved with appropriate appellate review to follow.
STANDING TO CLAIM PARENTAGE
Grandfather contends the district court erred in determining that this action was
prohibited by principles of collateral estoppel and res judicata because:
(1) he was not a party to the adoption proceeding;
(2) he filed this action before the adoption was fully litigated; and
(3) the adoption case is not final and all of the court's rulings in it are
interlocutory.
To the contrary, he contends he had standing because he was a presumptive father
and thus an interested party under the Parentage Act. Grandfather contends the Parentage
Act can be used to terminate a presumed parent's prior exercise of parental rights when
another person has a presumption founded on weightier considerations of policy and
logic and it is in the best interests of the child. He cites Frazier, 296 Kan. 730, In re
Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), and In re Marriage of Nelson, 34
Kan. App. 2d 879, 882, 125 P.3d 1081 (2006).
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In opposition, Grandmother and D.P. contend that Grandfather cannot indirectly
appeal or collaterally attack the adoption using the Parentage Act. They cite In re
Adoption of T.M.M.H., 307 Kan. 902, 416 P.3d 999 (2018). They contend the termination
of parental rights in the adoption proceeding had precedence over the parentage
proceeding under K.S.A. 2021 Supp. 59-2136(d)(3). They contend Grandfather cannot
attack the adoption because of the principles of collateral estoppel, res judicata, and law
of the case. They contend there is no provision under the Parentage Act to terminate
existing parental rights or to vest parental rights in a third person once the two parents
have already been judicially determined.
In order to keep things straight, we offer one point of clarification. We are dealing
with only one of two legal actions here—the lawsuit brought under the Parentage Act.
We are not dealing with the adoption case. In fact, the record of the adoption case is not
contained in this record even though the district court took judicial notice of the adoption
case.
The district court in the adoption case ruled that Grandfather lacked standing as a
party in interest. Whether that ruling is legally sound is not before us. The only standing
issue here is whether Grandfather had standing to bring this Parentage Act action. He did.
A review of two Acts provides a legal context for our ruling.
THE KANSAS PARENTAGE ACT
This Act focuses mainly on parental relationships created by circumstance and not
those created by blood. This law focuses on legal presumptions that arise from a child's
circumstances. The Act provides that "any person" on behalf of a child may bring an
action "[a]t any time to determine the existence of a father and child relationship
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presumed under K.S.A. 2021 Supp. 23-2208." (Emphasis added.) K.S.A. 2021 Supp. 23-
2209.
The Supreme Court has ruled that under K.S.A. 23-2208 some circumstances
create a presumption that a man is the father of a child. A parental relationship may be
legally established without the father being a biological or adoptive parent. See Frazier,
296 Kan. at 746; Ross, 245 Kan. at 594-602. Only one presumption requires a biological
relationship to the child. Our Supreme Court has recognized these "legal fictions" of
biological parenthood in limited circumstances. In re M.F.., 312 Kan. at 339. The
presumptions include: the man's marriage to the child's mother, a court order requiring
the man to support the child, and where the man "notoriously or in writing recognizes
paternity of the child." K.S.A. 2021 Supp. 23-2208(a). A woman may also use the
presumptions to establish a mother and child relationship, as was the case in Frazier. See
K.S.A. 2021 Supp. 23-2220.
A presumption may be rebutted "by clear and convincing evidence," "by a court
decree establishing paternity of the child by another man," or by another presumption.
When a presumption is 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. 2021
Supp. 23-2208(b). If two or more presumptions arise and conflict with each other, "the
presumption which on the facts is founded on the weightier considerations of policy and
logic, including the best interests of the child, shall control." K.S.A. 2021 Supp. 23-
2208(c).
THE KANSAS ADOPTION AND RELINQUISHMENT ACT
Unlike the Parentage Act, the Kansas Adoption and Relinquishment Act begins
with parental relationships created by blood. It recognizes the primary importance natural
parents have in a child's life and adoptions will be granted with the consent of a parent, or
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both parents, or from those who are legally in the place of parents such as an adoption
agency. The Adoption Act permits any adult to adopt a minor child, but only with the
parents' consent. Consent to an adoption shall be given by the living parents of the child
whose rights have not been terminated unless one of the parents' consent is found
unnecessary under certain rules set out in the Adoption Act. See K.SA. 2021 Supp. 59-
2113; K.S.A. 2021 Supp. 59-2129.
The Adoption Act requires the court to consider "all evidence . . . offered by any
party in interest." K.S.A. 2021 Supp. 59-2134(a). A party in interest in an adoption under
K.S.A. 2021 Supp. 59-2112(h) is defined as:
"(1) A parent whose parental rights have not been terminated;
"(2) a prospective adoptive parent;
"(3) an adoptive parent;
"(4) a legal guardian of a child;
"(5) an agency having authority to consent to the adoption of a child;
"(6) the child sought to be adopted, if over 14 years of age and of sound intellect;
or
"(7) an adult adoptee."
And finally, if a court grants an adoption, "the court shall enter a final decree of adoption,
which terminates parental rights if not previously terminated." K.S.A. 2021 Supp. 59-
2134(a).
How the district court ruled
When the district court denied Grandfather's motion for summary judgment, it
simply ruled that he could not make his arguments because of the application of two
doctrines: collateral estoppel and res judicata. The judge did not give his reasons for
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reaching that conclusion, nor did he provide any analysis about how these two doctrines
apply here. Because similar arguments are being offered to us, a review of the
fundamental requirements of the two doctrines is necessary.
The doctrine of res judicata is a common-law rule of equity hoping to promote
justice and sound public policy. In other words, a party should not have to litigate the
same action twice. But as the court in Cain v. Jacox, 302 Kan. 431, Syl. ¶ 2, 354 P.3d
1196 (2015), said, before the doctrine of res judicata will bar a successive suit, four
elements must be met: (a) the same claim; (b) the same parties; (c) claims that were or
could have been raised; and (d) a final judgment on the merits.
Two of those requirements—the sameness of parties and finality of the
judgment—may be lacking here. On the other hand, Grandfather tried to raise the same
claim—that he was the presumptive parent of this boy in both cases—the adoption case
and this parentage case. But when Grandfather tried to intervene in the adoption case, the
adoption court closed the door to that attempt by holding that Grandfather was not a party
in interest. If this is so, can res judicata apply to Grandfather since the court ruled he was
not a party in interest? And as far as we can tell from our record, the adoption case orders
are not final and are therefore interlocutory. Thus, the requirement of finality of the
judgment may be wanting.
But there is another way to look at the facts. For a brief time, Grandfather was a
party in the adoption proceeding. When he tried to present his claims of being E.A.'s
parent and that claim was litigated by the adoption court, it exercised jurisdiction over
him and his claims. At the same time, Grandmother and D.P., the adoption petitioners,
opposed Grandfather's claims of parentage. The adoption court resolved the dispute and
kicked Grandfather out of the adoption case. The parties were the same. The issues were
the same. Grandfather then pursued this collateral attack on the adoption proceeding.
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With this view of the facts, we could rule that res judicata did apply. But we need not go
that far to resolve this question.
We do question whether the doctrine of collateral estoppel applies. That common
law equitable doctrine, like res judicata, also bars someone from relitigating an issue
determined against that party. Under Kansas law, collateral estoppel may be invoked
when there is:
(1) a prior judgment on the merits which determined the rights and liabilities of the
parties on the issue based on ultimate facts as disclosed by the pleadings and
judgment;
(2) the parties must be the same or in privity; and
(3) the issue litigated must have been determined and necessary to support the
judgment.
See Huelsman v. Kansas Dep't of Revenue, 267 Kan. 456, 458, 980 P.2d 1022 (1999).
Again, we ask, since Grandfather is not a party in interest in the adoption case, can
collateral estoppel apply? In addition, the adoption court's denial of Grandfather's attempt
to enter Grandmother's and D.P.'s adoption case as a party in interest determined none of
the rights and liabilities of the parties in the parentage case. Collateral estoppel does not
seem to apply.
Unlike the district court in this Parentage Act case, we do not hold that the
adoption court's ruling denying Grandfather party in interest status bars him from seeking
a judicial determination of his parentage of this boy under the Parentage Act. But that
determination should not take place in a separate case. We have other concerns that lead
us to decide that a collateral attack on an adoption proceeding should not be permitted.
15
We review the parties' arguments about applying the Parentage Act.
The Parentage Act states that any person may bring an action "at any time" to
determine the existence of a father and child relationship. K.S.A. 2021 Supp. 23-2209.
The language "at any time" means there is no time restriction for filing the action. See
State v. Murdock, 309 Kan. 585, 590-93, 439 P.3d 307 (2019) (interpreting K.S.A. 22-
3504).
It also states that a parentage action "may be joined with an action for . . .
adoption." K.S.A. 2021 Supp. 23-2210. In other words, the statute contemplates that an
adoption action and parentage action may proceed at the same time given the interests
involved and allows them to be joined without requiring the court to do so.
Grandmother and D.P. contend that the adoption proceeding has precedence over
the parentage proceeding under K.S.A. 2021 Supp. 59-2136(d)(3). But that law has
limited applicability. Subsection (a) of that statute states that "[t]he provisions of this
section shall apply where a relinquishment or consent to an adoption has not been
obtained from a parent and . . . the necessity of a parent's relinquishment or consent can
be determined under this section." Subsection (d) identifies the procedure for terminating
that parent's rights—the petition to terminate rights may be filed as part of a petition for
adoption or an independent action. Subsection (d)(3) states:
"Absent a finding of good cause by a court with jurisdiction under this act, a proceeding
to terminate parental rights shall have precedence over any proceeding involving custody
of the child under the Kansas family law code, K.S.A. 23-2101 et seq., . . . until a final
order is entered on the termination issues or until further orders of the court."
But then subsection (h)(1) commands: "When a father or alleged father appears and
claims parental rights, the court shall determine parentage, if necessary pursuant to the
Kansas parentage act, K.S.A. 23-2201 et seq." (Emphasis added.) K.S.A. 2021 Supp. 59-
16
2136. That provision gives an alleged father standing in an adoption proceeding until a
determination of parentage is made.
The statute Grandmother and D.P. cite—K.S.A. 2021 Supp. 59-2136—does not
apply here. They did not petition to terminate Grandfather's alleged parental rights but
sought the adoption of E.A. with the consent of C.A. and J.B., the birth parents. But even
if it does apply, the statute requires the court to determine parentage when an alleged
father appears and claims parental rights, as Grandfather did here. See K.S.A. 2021 Supp.
59-2136(h). A determination of parentage is required for the adoption to proceed. That
said, obviously there cannot be two separate cases that will decide the same issue. That
could lead to conflicting results—one court finding Grandfather was a parent and the
other court finding he was not a parent. That possibility of conflicting rulings is our chief
concern here.
The problem of several people making parenting claims
A situation involving multiple parentage proceedings arose in In re Adoption of
C.L., 308 Kan. 1268, 427 P.3d 951 (2018). That case did not involve the same issue as
here, but it provides useful guidance. Prospective adoptive parents petitioned for adoption
in Wyandotte County. Father, having just learned about the baby, petitioned to establish
paternity in Shawnee County. Mother moved to stay the Shawnee County case. Father
appeared in the Wyandotte County case and objected to the adoption. Unlike here, the
Shawnee County court then stayed the paternity case, noting that Wyandotte County had
achieved jurisdiction and ordered paternity testing. The court recognized the paternity
determination in the Shawnee County case would have been duplicative of the paternity
determination in the Wyandotte County case. 308 Kan. at 1270-72. Father's parental
rights were terminated in the adoption proceeding.
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On appeal, our Supreme Court criticized what it characterized as the appellees'
"race to the courthouse" to initiate adoption proceedings to preempt Father's ability to
establish his paternity. 308 Kan. at 1283. The court stated, "Termination of parental rights
should not be determined by which side schemes to be shrewder or more strategic." 308
Kan. at 1285. We share a similar concern here. Did Grandmother and D.P. "race to the
courthouse" and thus prevent Grandfather from presenting his claims of parentage in
court?
Grandfather has a right to litigate his claim of parentage and should not be denied
that right based solely on strategic maneuvering by Grandmother and D.P. But that right
does not mean that Grandfather had the right to litigate the question of his parentage in
two separate proceedings. Before we can elaborate on our concern, we must consider a
recent Supreme Court decision.
In re Adoption of T.M.M.H. must be considered in our analysis.
A recent plurality decision from our Supreme Court involved a grandmother
claiming to be a "parent" of her grandchild under the Parentage Act to contest the
stepfather's petition to adopt the child. See In re Adoption of T.M.M.H., 307 Kan. 902.
There, Mother and Grandmother had an agreement that the child would live with
Grandmother. Grandmother petitioned for grandparent visitation, which was litigated for
several years. The court granted joint legal custody. After which, Stepfather petitioned
for adoption. Mother consented to the adoption. Grandmother objected to the adoption.
Stepfather responded that Grandmother was not an interested party in the adoption and
therefore lacked standing. Grandmother contended she had standing because she was a
permanent legal custodian or should be considered a coparent. Without hearing evidence,
the court ruled Grandmother was not an interested party and lacked standing to
participate in the case. Grandmother appealed and a panel of this court affirmed the
district court. 307 Kan. at 904-06.
18
Grandmother argued to our Supreme Court that she should be considered a parent
of the child. She asserted Mother had waived her parental preference and made
Grandmother a coparent by agreement. She asserted she had been the child's primary
caregiver for 90 percent of the child's life. The court found the record on appeal was
insufficient to know "the exact contours of any of the agreements between Mother and
Grandmother." Thus, Grandmother had not met her burden to establish that Mother
"voluntarily and knowingly waived her parental preference." The Supreme Court
plurality held that she had failed to establish a record sufficient to show she was a parent
to meet the interested party requirement, meaning the court lacked jurisdiction over her
appeal. The Supreme Court plurality ruled on procedural grounds only, taking no position
on the merits of Grandmother's claim that she was a parent because of an agreement with
Mother, finding the record was insufficient to do so. 307 Kan. at 910-20.
Justice Stegall concurred in the result because he believed Frazier was wrongly
decided and Grandmother should not be considered a parent, but he stated that Justice
Rosen's dissent "gets this case correct under current law" and that the plurality had
wrongly heightened the standing requirement for alleged parents. 307 Kan. at 923-26
(Stegall, J., concurring).
In his dissent, Justice Rosen criticized the adoption court's refusal to appreciate
that the grandparent visitation case "occurring under the same courthouse roof" impacted
the adoption case. He also stated:
"The majority validates this judicial dysfunction by affirming that a stepparent adoption
under these circumstances is a procedural mechanism that can bar a person who achieves
the status of parent, both in fact and in law, from even being heard before potentially
being cut out of their child's life." 307 Kan. at 938 (Rosen, J., dissenting).
19
Justice Rosen concluded Grandmother had presented a prima facie basis for her standing
as a parent and the district court should have conducted an evidentiary hearing to
determine whether Grandmother could sustain her burden. 307 Kan. at 939 (Rosen, J.,
dissenting).
Our conclusion is practical.
One lesson that arises clearly from the rulings in In re Adoption of C.L. and In re
Adoption of T.M.M.H. is that adoption courts should not ignore other pending cases that
bring up the parentage of a child who is to be adopted. The separation of the adoption and
paternity cases in the district court here has caused the same "judicial dysfunction" that
Justice Rosen criticized. But like the grandmother in In re Adoption of T.M.M.H., here,
Grandfather could appeal the determination that he lacked standing in the adoption case
because he claims to be a parent of E.A.
That said, we recognize that one way to read the holding in T.M.M.H. is that an
order denying anyone interested party status in an adoption case is unappealable. The
court stated:
"To explain our conclusion that this court lacks jurisdiction, we return to K.S.A.
2016 Supp. 59-2401a, which defines 'interested party' by listing eight categories of
individuals. One provision relates only to adoption cases; it specifies that
'interested party' means: 'The parent in a proceeding pursuant to' the KARA. K.S.A.
2016 Supp. 59-2401a(e)(1). But two general provisions apply as well. One general
provision allows an appeal by 'the petitioner in the case on appeal' and the other by 'any
other person granted interested party status by the court from which the appeal is being
taken.' K.S.A. 2016 Supp. 59-2401a(e)(7), (8)." In re Adoption of T.M.M.H., 307 Kan. at
910-11.
20
The question arises, then, if a movant does not fall into that interested party status and is
not a petitioner, can that movant appeal? The court did not say no.
The Supreme Court noted that the Court of Appeals panel determined a final order
was not involved in T.M.M.H. but the appeal could still be brought under the collateral
order doctrine. Stepfather did not cross-petition for review of this finality of the judgment
issue, and the court did not review it on its own motion.
The collateral order doctrine provides that an order may be collaterally appealable
if it: "(1) conclusively determines the disputed question, (2) resolves an important issue
completely separate from the merits of the action, and (3) is effectively unreviewable on
appeal from a final judgment. [Citation omitted.]" In re T.S.W., 294 Kan. 423, 434, 276
P.3d 133 (2012).
Whether a movant in an adoption case can appeal the rejection of their motion for
interested party status affects our ruling here. If Grandfather can appeal the denial of his
motion to be an interested party in Grandmother's and D.P.'s attempt to adopt E.A., then
he cannot collaterally attack that adoption case in this parentage action for the reasons we
will soon discuss. If Grandfather cannot appeal that denial decision, then he must be able
to seek this collateral attack or he will be left with no way to obtain appellate review of
the denial of his claim of parental rights.
We decline to read the tea leaves of a plurality Supreme Court decision. With no
clear ruling by our Supreme Court that the denial of a claim of party in interest status in
an adoption case cannot be appealed, we agree with the panel of our court in T.M.M.H.
that such a denial is appealable under the collateral order doctrine. If it is appealable, then
it follows that Grandfather should have appealed the denial of his party in interest status
in the adoption case. This ruling prevents Grandfather obtaining an opposing ruling in a
separate action.
21
Our reasons for this holding are practical. The problem we have with a collateral
attack on an adoption case is the very real possibility of two courts rendering opposing
rulings. How can such a problem be legally resolved? That is a legal dilemma that should
be avoided. A child's legal parentage cannot be split.
The only reasonable way to resolve this dilemma is to consolidate the two cases
into one so that all of the competing issues surrounding the parentage of a child can be
determined properly. The proper case in which to decide these competing interests is the
adoption case, for one simple reason. A court dealing with a Parentage Act case cannot
grant an adoption. But an adoption court can resolve Parentage Act issues. Indeed, the
Adoption Act recognizes that Parentage Act claims may have to be resolved before an
adoption is granted. "When a father or alleged father appears and claims parental rights,
the court shall determine parentage, if necessary pursuant to the Kansas parentage act."
K.S.A. 2021 Supp. 59-2136(h)(1). The Parentage Act also recognizes that a parentage
action may be joined with an adoption proceeding. See K.S.A. 23-2210(a).
While we do not agree with the district court's reasoning, the result is correct. If a
district court reaches the correct result, its decision can be upheld even though it relied on
the wrong ground or assigned erroneous reasons for its decision. See Gannon v. State,
302 Kan. 739, 744, 357 P.3d 873 (2015).
Any violation of the rule on summary judgment was harmless.
Grandfather contends that Grandmother and D.P. did not comply with Supreme
Court Rule 141 (2022 Kan. S. Ct. R. at 223). Their motion for summary judgment did
not:
• address whether Grandfather had established a presumption of parentage (an
issue of fact);
• state the material facts not in dispute with references to the record;
22
• articulate the applicable law; or
• present argument and authorities.
He argues that he controverted Grandmother's and D.P.'s contention that the adoption was
final.
After examining the record closely, we hold this is a harmless error. A review of
the law is helpful at this point.
"A party against whom relief is sought may move, with or without supporting
affidavits or supporting declarations pursuant to K.S.A. 53-601, and amendments thereto,
for summary judgment on all or part of the claim." K.S.A. 2021 Supp. 60-256(b).
"The judgment sought should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits or declarations show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law." K.S.A. 2021 Supp. 60-256(c)(2).
Rule 141 states that the movant must list its uncontroverted facts in separate
paragraphs with precise references to the record:
"(a) A motion for summary judgment must be accompanied by a filing fee and a
memorandum or brief that:
(1) states concisely, in separately numbered paragraphs, the uncontroverted
contentions of fact on which the movant relies;
(2) for each fact, contains precise references to pages, lines and/or paragraphs—or to
a time frame if an electronic recording—of the portion of the record on which the
movant relies; and
(3) is filed and served on all counsel of record and unrepresented parties not in
default for failure to appear." Supreme Court Rule 141(a) (2022 Kan. S. Ct. R. at
223-24).
23
"A motion for summary judgment may be heard only when the movant has complied
with subsection (a)." Supreme Court Rule 141(f) (2022 Kan. S. Ct. R. at 224).
Our Supreme Court has cautioned that "Rule 141 is not just fluff—it means what it
says and serves a necessary purpose." McCullough v. Bethany Med. Ctr., 235 Kan. 732,
736, 683 P.2d 1258 (1984). But failure to comply with Rule 141 "may constitute
harmless error if subsequent filings of findings of fact allow for proper presentation of the
uncontroverted facts establishing summary judgment is proper." Rhoten v. Dickson, 290
Kan. 92, Syl. ¶ 2, 223 P.3d 786 (2010).
In Rhoten, our Supreme Court held the movants' failure to comply with Rule 141
was harmless where:
• the basis of the motion for summary judgment was issue or claim
preclusion;
• there was a question of law that required a minimal number of
uncontroverted facts to decide; and
• the movants later submitted findings of fact presenting the minimal
number of uncontroverted facts required to establish their claim.
290 Kan. at 103.
Here, paragraph three of Grandmother's and D.P.'s motion for summary judgment
stated:
"The District Judge in the adoption case has already determined that
[Grandfather] lacks standing to contest the adoption. Further, subsequent to making that
determination, after a full and complete hearing, the court dismissed all remaining
contentions by [Grandfather]."
24
Grandmother and D.P. then argued that Grandfather's claim was barred by
collateral estoppel and res judicata. After the motion hearing, Grandmother and D.P.
submitted additional findings of fact and conclusions of law, though without citations to
the record. They never contested Grandfather's statements of fact.
Grandmother's and D.P.'s failure to comply with Rule 141 was harmless error. It is
not a reason to reverse the district court's holding. Minimal facts were needed to decide
the legal question of issue preclusion. Grandmother and D.P. identified the ruling on
standing by the adoption court. Grandfather's uncontested statements of fact provided the
added context needed. But it is true that Grandmother and D.P. did not provide proof that
the adoption court had ruled on Grandfather's motion to reconsider.
Our holding
We hold that Grandfather is not entitled to summary judgment and the district
court was correct to dismiss the case because he has failed to show the timeliness of his
"notoriously or in writing" acknowledgment of his paternity of E.A.
Turning to his claims of paternity, we are struck by the number of years that
Grandfather has fulfilled the role of parent for E.A. and the suddenness of Grandmother's
and D.P.'s taking the child, denying Grandfather access to the boy, and then quickly filing
for adoption. We have no insight into the reasoning of the adoption court because of our
very limited record. Had these facts been presented, would they have made any
difference in the adoption court's ruling? We do not know.
But we do know that Grandfather had several years to adopt this child and did not.
The consent to adopt that he had from E.A.'s father expired after six months. Given the
facts here, the birth parents—the only two who could consent to an adoption—could have
25
consented to Grandfather's adoption of their son earlier. But the fact remains, they did
consent to Grandmother's and D.P.'s desire to adopt.
We recognize that fact patterns similar to these will arise again, given the nature of
human relationships. The only reasonable way to litigate these issues, given the nature of
the Parentage Act and the Adoption and Relinquishment Act, is for them to be decided in
the same action. We hold that the proper action must be brought under an adoption case.
We affirm the district court's denial of summary judgment and dismissal of the
case.
***
ATCHESON, J., concurring: I concur in the result the majority reaches here in
finding that the Shawnee County District Court properly entered judgment against D.A.
in this action in which he sought to be declared the father of E.A., his grandson, under the
Kansas Parentage Act, K.S.A. 2021 Supp. 23-2201 et seq. I also agree the district court
mistakenly used claim preclusion doctrines to do so. But Judge Hill's alternative reliance
on In re M.F., 312 Kan. 322, 352, 475 P.3d 642 (2020), probably unduly expands the
holding of the case beyond its controlling facts to oust D.A. There are, however, two
reasons grounded in the Parentage Act that D.A. fails. Either of those is sufficient to
affirm the district court's judgment, if not its rationale.
Because this is a published decision, I feel some obligation to explain my thinking,
so readers may survey for themselves the route I have taken. Some discursive
observations to that end follow.
First, this case is a something of a procedural mess. As Judge Hill explains, D.A.
filed this parentage action after his ex-wife and her husband filed an action to adopt E.A.
26
Because D.A. was not a named party in the adoption action, he sought to intervene, so he
could counter their request to adopt E.A. with his arguments that he should be recognized
as E.A.'s parent. His effort to intervene failed when the district court in that case
determined he lacked standing. As far as the record on appeal in this case shows, the
adoption action had not been concluded. We have only fragments of the record from the
adoption case, stymying us in figuring out what exactly has gone on there.
Second, Kansas law governing the determination of parentage and who may be
legally treated as the parent of a child has become labyrinthine. The Parentage Act, parts
of which harken to much earlier times, has been augmented with court decisions
ostensibly resting on contract law, constitutional doctrine, or other legal principles to
afford rights and protections to partners in committed same-sex relationships, especially
before same-sex civil marriages were recognized as a matter of right under the Fourteenth
Amendment to the United States Constitution in Obergefell v. Hodges, 576 U.S. 644,
675-76, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). Before Obergefell, same sex-couples
could not marry in civil ceremonies in Kansas. Some couples endeavored to create
intricate legal workarounds that would, to some extent, replicate the rights and
obligations accompanying civil marriage, including parenting children born during the
relationship. The Kansas Supreme Court has recognized at least some of those efforts.
See Frazier v. Goudschaal, 296 Kan. 730, Syl. ¶ 13, 754-55, 295 P.3d 542 (2013).
The decision in In re M.F. is one of the more recent of those efforts. The court
recognized that the biological mother of a child could effectively share her parental rights
with her same-sex partner by so stating at the child's birth, if her partner "notoriously . . .
recognize[d]" her own maternity at the same time—a process at least loosely consistent
with the presumption of paternity outlined in K.S.A. 2021 Supp. 23-2208(a)(4). In re
M.F., 312 Kan. 322, Syl. ¶ 5. The court characterized its ruling that the Parentage Act
countenanced such a result as a "legal fiction." 312 Kan. at 349. It is fictional in at least
several ways.
27
The Parentage Act principally outlines mechanisms for determining the biological
father of a child. The presumptions of "paternity" in K.S.A. 2021 Supp. 23-2208(a) are
written that way, and the Parentage Act defines the relationship at issue as one between a
child and his or her biological or adoptive father or mother. K.S.A. 2021 Supp. 23-2205.
Almost as an add-on, the Parentage Act does recognize its provisions should be applied
to women and efforts to determine maternity "[i]nsofar as practicable." K.S.A. 2021
Supp. 23-2220. But that is not really the same as permitting the mother of a child to share
her maternal rights as a biological parent with a same-sex partner who obviously cannot
be a biological parent.
Likewise, the statutory presumption of paternity based on notorious recognition of
the child contains no time element or deadline for the recognition, let alone that it must
be established contemporaneously with the birth of the child. Applying such a rule in all
cases would undercut the broad purpose of the Parentage Act in establishing the identity
of both biological parents of a child. Moreover, the rule would prevent a putative father
who learns of the child only months or possibly years after the birth from being
notoriously recognized as such, at least based on his own acknowledgments.[1]
[1] Notorious recognition of paternity is a legal doctrine of longstanding. It
predates reliable genetic testing to prove paternity and rests on a commonsensical notion
that a man typically would not acknowledge a child as his own or embrace community
recognition of his paternity unless he had good reason to believe he had fathered the
child. With the advances of science, paternity based on notorious recognition seems like a
quaint relic. Genetic testing can establish paternity with near certainty—far more
accurately than a conclusion necessarily derived from inconclusive circumstances,
notwithstanding significant notoriety accorded the conclusion.
The surgically written holding and the concomitant rationale in In re M.F. strongly
indicate the requirement that notorious recognition be contemporaneous with the birth of
the child entails a common-law overlay to the statutory language in K.S.A. 2021 Supp.
23-2208(a)(4) confined to same-sex couples that include the biological mother. 312 Kan.
28at 351-52. The treatment of the issue in the companion case of In re W.L., 312 Kan. 367,
Syl. ¶¶ 1, 5, 475 P.3d 338 (2020), seems to confirm as much.
The majority here cleaves those determinative facts from the rule in In re M.F. and
then extends the rule to the demonstrably different facts here without explaining why that
makes sense. The approach rests on doubtful judicial reasoning by analogy likely leading
to an unwarranted expansion of the holding in In re M.F. I have elsewhere discussed the
dangers of uncoupling essential facts from judicial holdings and applying the denuded
rule as a governing legal principle across markedly different circumstances; I do not
repeat that discussion here. See State v. Pollman, 56 Kan. App. 2d 1015, 1047-50, 441
P.3d 511 (Atcheson, J., dissenting), rev. granted 310 Kan. 1069 (2019), dismissed as
moot March 23, 2021; Brown v. Ryan, No. 104,088, 2011 WL 6309451, at *7-8 (Kan.
App. 2011) (unpublished opinion) (Atcheson, J., concurring).
Because D.A. has relied on the statutory presumption of paternity grounded in
notorious recognition, the majority has broadly addressed how the presumption applies or
(more precisely) doesn't apply to rescue his claim to be considered E.A.'s lawfully
recognized father. I suppose we may fairly take on that task, although the district court
did not directly do so, since it relied on preclusion rules in entering judgment against
D.A. See State v. Knight, No. 105,092, 2012 WL 2325849, at *7 (Kan. App. 2012)
(unpublished opinion) ("Appellate courts decide issues; they do not arbitrate or grade
arguments."). Looking at that broad question, I see two reasons D.A.'s reliance on the
presumption in K.S.A. 2021 Supp. 23-2208(a)(4) fails, and summary judgment, therefore,
could have been properly entered against him.
First, the presumptions in K.S.A. 2021 Supp. 23-2208(a) set out predicate facts
that trigger a presumption of a given man's biological paternity of a given child. Except
for the presumption based on genetic testing, they do not depend on a direct link between
the predicate fact and biological paternity. The Legislature, however, may craft rebuttable
29
presumptions of that sort in many circumstances. See State v. Haremza, 213 Kan. 201,
203-04, 515 P.2d 1217 (1973). The predicate facts for most of the presumptions rest on
the marriage or the attempted marriage of a man and the child's biological mother. If the
presumptive circumstances have been met, the child will be treated as conceived in that
union absent evidence supporting another presumption in a second man.
Statutorily presumed paternity, if unrebutted, creates a legal obligation to
financially support the child, blunting a common-law rule that a man had no duty to
support offspring born outside of his marital relationship. See K.S.A. 2021 Supp. 23-
2215(c) (after finding party to be parent of minor child, district court may enter
appropriate support order); Green v. Burch, 164 Kan. 348, 353, 189 P.2d 892 (1948)
(noting long discarded common-law rule that parents owed no duty of support to child
born out-of-wedlock). Similarly, the finding of paternity establishes a right of the child to
inherit from the judicially recognized parent. See K.S.A. 59-501. That, too, reverses a
common-law prohibition on children born out-of-wedlock from inheriting. See Smith v.
Smith, 105 Kan. 294, 299, 182 P. 538 (1919). The presumptions of paternity for a child
born to a married couple or for a child notoriously recognized by a man have roots
reaching deep into history to temper the common-law inequities, if not the social stigma,
attached to children of unwed parents. They were developed without the benefit of
modern genetic testing. And while the presumptions have a certain logic to them, they, of
course, pale in comparison to the near conclusive link between DNA results and paternity
or maternity. Those presumptions, however, have been carried on in the Parentage Act.
Of central importance here, under the Parentage Act, the predicate facts create a
presumption of biological paternity. So in asserting the presumption based on notorious
recognition, D.A. seeks to be judicially declared the biological father of E.A. But as
everyone in this case knows—and the record amply demonstrates—D.A. is not E.A.'s
natural father, and he has never claimed to be.
30
The presumption flowing from notorious recognition depends upon the man
asserting it having a good faith belief he actually may be the child's biological father.
Commonly, a man would not promote or even acquiesce in such recognition of himself
absent a reasoned basis for believing his paternity. That's the legal and logical linkage of
the predicate fact of notorious recognition to the presumed fact of biological fatherhood.
Without a good faith or honest belief requirement, an interloper could fairly assert
paternity under the Parentage Act based on nothing more than his knowingly specious
public representations of biological fatherhood. The Parentage Act should not be
construed either to permit such claims or to require the courts to deal with them as
facially appropriate. Treating those claims as legally colorable would so undercut the
fundamental objective of the Parentage Act in determining the biological father of a child
as to be an unreasonable construction of the Act. See State v. James, 301 Kan. 898, 903,
349 P.3d 457 (2015) (court should construe statute "to avoid unreasonable or absurd
results"); R.P. v. First Student, Inc., 62 Kan. App. 2d ___, 2022 WL 2377905, at *2
(2022).[2]
[2] D.A. apparently chose to take in E.A. with the best of intentions. I do not read
the record otherwise. Why the arrangement unraveled in 2019 is less than immediately
obvious in this case. In other circumstances, a man might have various base motives for
falsely encouraging notorious recognition of his parentage. For example, a child might
show great promise even at a young age for a lucrative career as a professional athlete.
Or, sadly, the child might stand to benefit financially from a catastrophic injury to
himself or herself or to his or her maternal parent. That sort of scurrilous subterfuge
likely would be undone at some point with a DNA test. See State ex rel. Secretary of
DCF v. Smith, 306 Kan. 40, 59, 392 P.3d 68 (2017).
A man doing so would effectively promote a fraud generally and, in acting under
K.S.A. 2021 Supp. 23-2208(a)(4), would invite the courts to unwittingly endorse the
fraud by falsely finding him to be the biological father of the child. Courts need not and
should not countenance such corrosive legal deceptions. See Buchtella v. Stepanek, 53
Kan. 373, 376, 36 P. 749 (1894) ("The courts never assist a party in the perpetration of
31
frauds."); cf. Bouton v. Byers, 50 Kan. App. 2d 34, 58, 321 P.3d 780 (2014) (courts may
decline to enforce statute of frauds if result "would produce injustice"); Emprise Bank v.
Rumisek, 42 Kan. App. 2d 498, 519, 215 P.3d 621 (2009) (court may disregard
corporation form to hold officers liable when they use corporation to promote or shield
fraud or injustice). In that circumstance, I suppose the biological mother of the child and
possibly the true biological father would resist the claim of paternity. And I expect the
district court would, then, ultimately deny the claim, after finding genetic testing to be in
the child's best interests and acting on the results that would necessarily undermine the
presumption of paternity based on notorious recognition. But where the evidence shows
the claimant has no good-faith belief in his biological parentage, that extended exercise
should be unnecessary.
Courts in other jurisdictions have recognized that comparable statutes legitimating
children through notorious recognition of paternity or similar mechanisms should be
construed to apply only to biological parents. See Succession of Robinson, 654 So. 2d
682, 684 (La. 1995); State on Behalf of Hopkins v. Batt, 253 Neb. 852, 864, 573 N.W.2d
425 (1998), overruled on other grounds by State on Behalf of Miah S. v. Ian K., 306 Neb.
372, 378-79, 945 N.W.2d 178 (2020); Mace v. Webb, 614 P.2d 647, 648-49 (Utah 1980).
But a biological stranger to a child may become a parent through statutorily recognized
adoption proceedings. 614 P.2d at 649. The avenue of adopting E.A. was open to D.A.,
but for whatever reason he chose not to travel that route during the six years he had
physical custody of his grandson. See Kansas Adoption and Relinquishment Act, K.S.A.
59-2111 et seq. D.A.'s misguided Parentage Act proceeding is not a legally fungible
substitute for that lost opportunity.
All of that is enough to dispose of D.A.'s parentage claim, even on summary
judgment, since he knows he is not E.A.'s biological father and, therefore, cannot invoke
a legal presumption based on his false assertion of parentage to secure an order to that
effect.
32
Apart from that deficiency, D.A.'s paternity claim fails as a matter of law on this
record for another wholly independent reason. Assuming D.A. may properly assert the
presumption for notorious recognition (an assumption I find unwarranted but indulge for
purposes of disposing of this case), the presumption is rebuttable. Under K.S.A. 2021
Supp. 23-2208(b), a statutory presumption of paternity "may be rebutted . . . by a court
decree establishing paternity of the child by another man." Here, the parties agree that in
October 2013 the Shawnee County District Court filed a journal entry finding D.A.'s son
to be E.A.'s "natural father." The 2013 journal entry comes within K.S.A. 2021 Supp. 23-
2208(b) and rebuts the presumption upon which D.A. relies.
When a presumption of paternity has been rebutted, the party "alleging the
existence of a father and child relationship"—here D.A.—has "the burden of going
forward with the evidence." K.S.A. 2021 Supp. 23-2208(b). D.A., therefore, had the
obligation to offer competent evidence, apart from the presumption of paternity based on
notorious recognition, that he is the biological father of E.A. There could be no such
evidence, given D.A.'s admission in his amended petition in this case that he is a blood
relative of E.A. but not the child's "natural father." Documents appended to the amended
petition further describe D.A. as E.A.'s paternal grandfather. Those factual
representations in the petition and the attachments are admissions that may be used
against D.A. on the cross-motions for summary judgment. See Gray v. Freeman, No.
112,248, 2015 WL 1125305, at *2 (Kan. App. 2015) (unpublished opinion) ("Although [a
plaintiff] cannot rely on the petition to resist summary judgment, [a defendant] may
properly treat the representations in the petition as admissions binding on [the plaintiff]
for that purpose."); see also Atlas Glass & Mirror, Inc. v. Tri-North Builders, Inc., 997
F.3d 367, 373 (1st Cir. 2021) (applying Federal Rules of Civil Procedure comparable to
K.S.A. 60-256 and finding defendant may rely on factual representations in plaintiff's
complaint as admissions supporting summary judgment); Doe 2 by and through Doe 1 v.
Fairfax County School Board, 832 Fed. Appx. 802, 806 (4th Cir. 2020) (unpublished
opinion).
33
D.A.'s indisputable inability to provide evidence he is E.A.'s biological parent or
that he otherwise lawfully adopted E.A. dooms this Parentage Act claim. The district
court would have been fully justified in entering summary judgment against D.A. on that
basis. See Oxy USA, Inc. v. Red Wing Oil, LLC, 309 Kan. 1022, 1028, 442 P.3d 504(2019).
For those reasons, I concur in the result we reach in affirming the district court's
summary judgment against D.A. The latter portion of the majority opinion discusses how
a Parentage Act claim might be joined with a separate action under the Kansas Adoption
and Relinquishment Act in a single proceeding to avoid conflicting outcomes that would
create both legal dissonance and practical complications of no small consequence. That's
a laudable objective, but one that is not essential to how I would resolve this case. So I
neither join in that discussion nor comment on it further.
34