Adoption of Baby Boy Irons, Matter of

• Citation: 684 P.2d 332,235 Kan. 540
• Decision Date: 08 June 1984
• Docket Number: No. 54911,54911
• Parties: In the Matter of the ADOPTION OF BABY BOY IRONS. Anjanette IRONS, Appellant, v. Bruce LIEBERMAN and Susan Lieberman, Appellees.
• Court: United States State Supreme Court of Kansas

Page 332

684 P.2d 332

235 Kan. 540

In the Matter of the ADOPTION OF BABY BOY IRONS Anjanette IRONS, Appellant, v. Bruce LIEBERMAN and Susan Lieberman, Appellees.

No. 54911.

Supreme Court of Kansas.

June 8, 1984.

Syllabus by the Court

1. When evidence is excluded by the trial court, the one seeking reversal of the judgment has the burden of demonstrating prejudice by the exclusion. Atkins v. Bayer, 204 Kan. 509, 511, 464 P.2d 233 (1970).

2. The opinion testimony of an expert is to be considered as any other testimony, and should receive only such weight as the factfinder determines proper. It is therefore not error for the factfinder to disregard opinion testimony of an expert. See Plains Transp. of Kan. Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978), and PIK Civ.2d 2.50.

3. When a consent to adoption is properly acknowledged the acknowledgement serves as prima facie proof of the validity of the consent, and that the written consent was freely and voluntarily given. In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981). In order to rebut the presumption of validity of the adoption consent there must be a showing of fraud, duress, undue influence, mistake or lack of understanding. See In re Adoption of Chance, 4 Kan.App.2d 576, 583, 609 P.2d 232 (1980). The mere assertion of undue influence, however, is not sufficient to shift the burden of proof. The existence of such influence must be proved by the one asserting it. See 25 Am.Jur.2d, Duress and Undue Influence § 43.

4. A presumption of undue influence is not raised and the burden of proof is not shifted by the mere fact that an individual occupies a confidential or fiduciary relation with another. Such a presumption is raised and the burden of proof shifted, however, when, in addition to the confidential relation, there exist suspicious circumstances. See In re Estate of Brown, 230 Kan. 726, 732, 640 P.2d 1250 (1982).

5. In determining whether a confidential relationship exists between a doctor and patient the following rules are considered: A person in ill health is more subject to the domination and undue influence of another than is a person of sound body and mind. The physician naturally is in a position of trust and confidence as regards the patient, and his opportunities to influence the patient are unusual. Hence, all transactions between physician and patient are carefully scrutinized by the courts, which must be assured of the fairness of those dealings. 61 Am.Jur.2d, Physicians, Surgeons, Etc. § 168, p. 299.

6. In determining whether an attorney-client relationship exists, the following rules are considered: The authority of an attorney begins with his retainer; but the relation of attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship. The contract may be implied from conduct of the parties. The employment is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to his profession. 7 Am.Jur.2d, Attorneys at Law § 118, pp. 187-88.

7. In adoption cases the attorney may represent both sets of parents. The attorney who is employed to provide dual representation owes both sets of parents a duty to provide good faith advice concerning the legal consequences of their acts. Such multiple representation can continue so long as no conflict develops between the parties. If a conflict occurs, however, the attorney must choose which conflicting interest he or she will represent and forthwith apprise the parties of the choice.

8. If the judgment of the trial court is correct it is to be upheld though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. Taylor v. Department of Health & Environment, 230 Kan. 283, 286, 634 P.2d 1075 (1981).

9. When the trial court places the burden of proof on the wrong party, the error does not necessarily warrant reversal if each party had a fair opportunity to present all its evidence and the case is to the court, rather than a jury. See Quinton v. Kendall, 122 Kan. 814, Syl. p 6, 253 P. 600 (1927).

10. The scope of review of an appellate court in an adoption case has been articulated in In re Adoption of Chance, 4 Kan.App.2d 576, 583, 609 P.2d 232 (1980), as follows: Whether a consent to adoption was freely and voluntarily given or was tainted by undue influence necessarily depends on the facts and circumstances of each case. As such, these issues are to be determined by the trier of fact who has the best opportunity to weigh the evidence and test the credibility of witnesses. It is not the function of this court to weigh conflicting evidence or redetermine questions of fact and our only concern is with evidence which supports the trial court's findings and not with evidence which might have supported contrary findings.

11. In determining whether a natural parent's consent to an adoption was freely and voluntarily given, the legislature has provided that only the parent's will at the time of the giving of the consent will be considered.

12. In an action to set aside a consent to adoption it is held: Under the facts herein the consent was freely and voluntarily given.

John H. Fields, of Carson, Fields, Boal, Jeserich & Asner, Kansas City, was on the brief for appellant.

John C. Amorosa, Mission, was on the brief for appellees.

HERD, Justice:

This is an appeal from an order of adoption. Baby Boy Irons was born at 5:21 a.m., April 22, 1982, at Bethany Medical Center, in Kansas City, Kansas. Later that day the infant's unwed, eighteen-year-old mother, Anjanette Irons, signed a written consent to the adoption of the baby and waived notice of hearing. The consent was acknowledged before a notary public.

At 10:20 a.m. the following day, a petition seeking adoption was filed in the district court of Johnson County, Kansas, along with the written consent. On May 12, 1982, the appellant contested the adoption alleging her consent was not freely and voluntarily given. The trial court ruled against Ms. Irons.

Appellant learned she was pregnant when she went to Dr. Alvin Silvers on October 7, 1981. After conducting a brief physical examination of appellant, Dr. Silvers confirmed her pregnancy and asked what she was going to do with the baby. Anjanette said she was going to keep the child. Dr. Silvers told her considering her age and economic condition she should put the baby up for adoption or have an abortion. Anjanette was seventeen at the time. He also told her he did not perform abortions. Dr. Silvers testified he gives this advice to all unwed, pregnant patients who lack financial resources.

Anjanette Irons' father and mother were divorced when Anjanette was quite young. Though her father lived within forty miles of Kansas City, she seldom saw him. She and her mother, Loretta Hernandez, had a history of conflict. Anjanette had made her home with Martha Donneley for the past year or so, going home on weekends. She was employed at a nursing home where she made $3.60 per hour.

Some eighteen months prior to her pregnancy appellant started dating Steve Lewis. She dated no one else. She and Steve had sexual relations regularly during that time. Steve was in the military service with orders to go to Korea in the summer of 1981. He professed love for Ms. Irons and discussed marriage to her with her and her mother in July before leaving. Ms. Hernandez discouraged the marriage because of Lewis's imminent departure for a lengthy period. She was not aware of her daughter's pregnancy at the time. Appellant wrote Steve in Korea and told him of her pregnancy. He acknowledged his paternity in a letter to her.

Ms. Irons visited Dr. Silvers each month after her original visit in October until the baby was born. On each visit prior to February, 1982, Dr. Silvers continued to advise her she should give up her baby for adoption. After each discussion, appellant advised the doctor she was going to keep her baby.

At the February visit with Dr. Silvers, Ms. Irons reported she had received a valentine from Steve Lewis but he had not mentioned her pregnancy. She also reported she had quit her job and had no income. After the examination, Dr. Silvers talked to appellant and asked her if she had changed her mind about keeping the baby. She reluctantly stated she thought adoption was her only option. After that, Dr. Silvers suggested appellant talk to his daughter, Lori Klarfeld, an attorney who handled adoptions. That evening Ms. Irons called Ms. Klarfeld and arranged a meeting.

The meeting between appellant and Ms. Klarfeld occurred on March 10, 1982, in Dr. Silvers' office. At that meeting Ms. Klarfeld discussed the adoption procedure with appellant. Klarfeld also told her she was not appellant's attorney but represented the couple who wanted to adopt the baby. Appellant told Ms. Klarfeld she believed adoption was best for the baby. She mentioned she had grown up without a father, and believed a child should have two loving, capable parents. Ms. Klarfeld took a medical and family history from Anjanette Irons. She told her she had a Jewish family picked out to adopt the baby. Appellant told Ms. Klarfeld she preferred a Catholic family. Ms. Klarfeld responded she was not sure she could arrange that but she would see what she could do. At the conclusion of their discussion, Ms. Klarfeld also said, "I think you have made the right decision, Anjanette, for both the baby and you."

Appellant and Ms. Klarfeld did not meet again until April 22, 1982, after the birth of the baby. Appellant, however, telephoned Ms. Klarfeld on April 4. The purpose of this phone call was to inform Ms. Klarfeld appellant was not going through with adopting her baby to a New York couple. Ms. Klarfeld and Dr. Silvers had heard appellant was considering such adoption. Appellant told Ms. Klarfeld she had contacted a New York couple as the result of an...