Adoption of A.S.S., Matter of

• Decision Date: 08 December 1995
• Docket Number: No. 73877,73877
• Citation: 21 Kan.App.2d 714,907 P.2d 913
• Parties: In the Matter of the ADOPTION OF A.S.S., a Minor Child.
• Court: Kansas Court of Appeals

Page 913

907 P.2d 913

21 Kan.App.2d 714

In the Matter of the ADOPTION OF A.S.S., a Minor Child.

No. 73877.

Court of Appeals of Kansas.

Dec. 8, 1995.

Syllabus by the Court

1. The notice requirements of K.S.A. 59-2133(b) are constitutional.

2. Under the facts of this case, the natural mother does not have standing to assert a putative father's rights or to challenge a journal entry terminating those rights.

3. When the issue of notice of a hearing is raised by a litigant, communications by counsel to the client or by a client to the counsel regarding the time and place of trial are not confidential or protected by the attorney-client privilege.

David N. Johnson, of Wichita, for the appellant natural mother.

Richard A. Macias, of Wichita, for the appellees adoptive parents.

Before LEWIS, P.J., and PIERRON and GREEN, JJ.

PIERRON, Judge:

K.S., appellant and natural mother of A.S.S., filed a motion to set aside a decree of adoption entered by the district court. Her motion was denied and she timely appeals. We affirm.

On August 10, 1994, K.S. gave birth to A.S.S. On August 19, 1994, she filed a paternity action against Albert Niebla, alleging he was the biological father of A.S.S. Margaret P. Mathewson was K.S.'s attorney in the paternity action. In December 1994, K.S. met with Elizabeth Henry, an attorney with the same firm as Mathewson, regarding the possible placement of A.S.S. for adoption. The mother met more than one prospective set of parents and ultimately selected David and Ann Ediger, appellees, as adoptive parents. On December 24, 1994, approximately 4 months after the birth of A.S.S., K.S. executed a consent to adoption, thereby agreeing to the adoption of A.S.S. by the appellees. The consent was notarized by Henry.

On December 30, 1994, the appellees filed a petition for the adoption of A.S.S. During the pending adoption proceedings, the district court granted temporary custody of A.S.S. to the appellees. The petition stated K.S.'s address to be her parents' residence. Henry testified that when K.S. signed her consent, she indicated she was leaving her parents' home and going to stay with Niebla. K.S. also had other undisclosed locations. However, the appellees' brief states the actual residential address of the mother was unknown.

The district court set February 13, 1995, as the hearing date on the petition for adoption. The court ordered notification of the hearing to be given to K.S., as natural mother, and Niebla and Brian Armitage, as potential fathers. Notice was sent via certified mail, return receipt requested, to each person's attorney. K.S.'s notice of the adoption hearing was sent to Elizabeth Henry, the attorney who had assisted her in the preparation of her consent for the adoption.

On January 3, 1995, the district court entered a journal entry dismissing the paternity action against Niebla without prejudice. On January 4, 1995, Armitage filed a paternity action claiming he and K.S.were sexually involved at or near the time of A.S.S.'s conception and that he might be the biological father.

The maternal grandparents of A.S.S. filed a motion to intervene, pursuant to K.S.A. 60-224, in the instant adoption proceeding, just as they had done in the paternity action filed by K.S. The grandparents sought visitation with A.S.S. until such time as an adoption was final and for any and all other proper relief. The court set a hearing date of February 2, 1995, for the motion to intervene. An amended order for hearing on the motion was later filed on February 1, 1995, changing the date of the hearing to March 6, 1995.

On February 9, 1995, Niebla executed a document entitled: "DISCLAIMER OF PATERNITY, ACKNOWLEDGEMENT OF NOTICE OF HEARING, AND CONSENT TO ADOPTION PROCEEDINGS". Within this document, Niebla acknowledged the birth of A.S.S., stated that he was not the only person having sexual relations with K.S., disclaimed any paternity to A.S.S., acknowledged receipt of notice of the hearing on the petition for adoption, requested no further notification of the adoption proceedings, and consented to all adoption proceedings involving A.S.S.

The district court held the hearing on the petition for adoption on February 13, 1995, and entered a decree of adoption of A.S.S. in favor of the appellees. The appellees and their attorney were the only other persons present at the hearing. The court found that K.S. named only Niebla and Armitage as the possible fathers of A.S.S. and that paternity testing excluded Armitage as the father. Consequently, by virtue of Armitage's exclusion, the court found that Niebla was the biological father. Niebla's parental rights were terminated since he disclaimed paternity, consented to the adoption, and failed to appear at the hearing. In the decree of adoption, the court found that K.S., the biological mother, by an instrument of writing duly signed, executed, and acknowledged by her, freely and voluntarily consented to the adoption of A.S.S. by the appellees.

On February 23, 1995, 10 days after the district court granted the adoption, K.S. filed a motion to set aside the decree of adoption. K.S. alleged the adoption was void because: (1) it was entered by default; (2) she had not received proper notice of the hearing for the petition for adoption; (3) she wished to withdraw her consent because she was not capable of competently entering said consent; (4) she wished to exercise her rights and responsibilities as the biological mother of A.S.S.; and (5) the appellees would not be prejudiced by reopening the matter.

The district court held a hearing on March 6, 1995, to make a determination on the motion to set aside the decree of adoption. The only person who testified at the hearing was Elizabeth Henry. K.S. objected to Henry's testimony as a violation of the attorney-client privilege. Henry testified that she received the notification of the hearing on the petition for adoption and that K.S. had specifically requested that she not send it to her. Henry also testified that she had regular telephone contact with K.S. approximately two or three times a week throughout the month of January 1995 and that she specifically advised K.S. that the final hearing on the petition for adoption was set for February 13, 1995. Henry recalled a specific conversation the week of February 6, when K.S. inquired about attending the hearing. Henry testified, "I told her that I had not planned to attend, that it was not necessary for her to attend since she had consented." Last, Henry testified that K.S. did not express an interest in wishing to contest the voluntariness of her consent until February 21, 1995.

K.S.'s motion to set aside the decree of adoption was denied. The district court held: (1) that K.S. had received actual knowledge of the final hearing of the petition for adoption; (2) that the appellees had substantially complied with the notice requirements of K.S.A. 59-2133; (3) the motion to set aside was not timely filed pursuant to K.S.A. 59-2114; (4) that K.S. was limited to relief under K.S.A. 60-260(b) and she failed to offer any support thereof; (5) that the decree of adoption was not void; (6) that K.S. could not assert rights of the putative father; and (7) that the notice requirements are clearly distinguishable between a voluntary and involuntary termination of parental rights for adoption purposes.

Also on March 6, 1995, following the motion to set aside, the court took up the maternal grandparents' motion to intervene in the adoption proceedings. The court heard testimony from both the grandmother and grandfather as to their relationship with A.S.S. during the 4 months between his birth and the subsequent adoption. The court found that pursuant to K.S.A. 38-129, the grandparents could not have established a substantial relationship within the 4-month time period and that it was speculative at best as to whether it was in the best interests of the child to grant the grandparents visitation.

K.S. first argues that K.S.A. 59-2133(b) violates her constitutional due process and equal protection rights. She contends these constitutional rights were violated because the district court provided her notice of the hearing on the petition for adoption by serving her attorney instead of personally serving her.

K.S.A. 59-2133 states:

"(a) Upon filing the petition, the court shall fix the time and place for the hearing. The time fixed for the hearing may be any time not less than 30 days nor more than 60 days from the date the petition is filed. The time fixed for the hearing may be extended by the court for good cause.

"(b) In independent and stepparent adoptions notice of the hearing on the petition shall be given to the parents or presumed parents, unless parental rights have been previously terminated, and any other persons as the court may direct. Notice also shall be given in an independent adoption to a legal guardian of the child or individual in loco parentis.

"(c) Inan agency adoption notice of the hearing on the petition shall be given to the consenting agency unless waived.

"(d) Notice given pursuant to this section shall not include a copy of the petition."

K.S. bases her equal protection argument on the theory that if possible fathers get personal service pursuant to K.S.A. 59-2136(f), then allowing notice to the natural mother through an attorney, who counselled the mother on her consent, violates her equal protection rights. As a result, K.S. argues the court's notice under K.S.A. 59-2133 is less likely to ensure her awareness of the proceedings than that of a possible father. She further argues that it is illogical and inconsistent to prohibit default judgments in small claims actions where there is no personal, residential, or service by publication, but yet to allow it in an adoption proceeding where the consequences pale in comparison.

We find no merit in the appellant's equal protection argument. Under K.S.A. 59-2136, the notice...