Franklin James Osborn, Deceased O. v. Anderson, 118,982

• Citation: 431 P.3d 875
• Decision Date: 19 October 2018
• Docket Number: No. 118,982,118,982
• Parties: Franklin James OSBORN, as Heir at Law of A.O., Deceased, Appellant, v. Anthony Michael ANDERSON, Keira Dawn Osborn, Kansas Department for Children and Families, and Phyllis Gilmore, in her Official Capacity as Secretary, Appellees.
• Court: Kansas Court of Appeals

431 P.3d 875

Franklin James OSBORN, as Heir at Law of A.O., Deceased, Appellant,

v.Anthony Michael ANDERSON, Keira Dawn Osborn, Kansas Department for Children and Families, and Phyllis Gilmore, in her Official Capacity as Secretary, Appellees.

No. 118,982

Court of Appeals of Kansas.

Opinion filed October 19, 2018.

Michaela Shelton, of Shelton Law Office, P.A., of Overland Park, for appellant.

Corliss Scroggins Lawson, general counsel's office, Kansas Department for Children and Families, for appellees Kansas Department for Children and Families and Phyllis Gilmore.

Before Leben, P.J., Green and Malone, JJ.

Malone, J.:

Franklin James Osborn appeals the district court's summary judgment in favor of the defendants, dismissing Osborn's lawsuit for lack of standing. In 2014, Osborn signed a voluntary acknowledgment of paternity (VAP) form naming him the father of A.O. But it is undisputed that Osborn is not A.O.'s biological father. Osborn and A.O.'s mother briefly married, but the marriage was annulled. Sadly, A.O. later died while in the care of the mother's boyfriend. Osborn filed a wrongful death action against the defendants which the district court dismissed for lack of standing, finding that Osborn is not A.O.'s heir-at-law. This case calls on us to decide whether Osborn is A.O.'s father in the eyes of the law. Because we find that he is, we reverse the district court's judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On October 14, 2014, Keira Ripple (formerly Keira Osborn) gave birth to A.O. Keira was not married when she gave birth, and she was unsure who was A.O.'s father. But Keira was sure that Osborn was not the father, and Osborn admits he is not A.O.'s biological father. Keira was already pregnant when she first met Osborn in April 2014.

Soon after meeting, Keira and Osborn decided that Osborn would be A.O.'s father. On October 15, 2014, the day after A.O. was born, Osborn and Keira signed a VAP form, labeled as a "Paternity Consent Form for Birth Registration." The VAP form specified that "[a]n acknowledgement of paternity creates a permanent father and child relationship which can only be ended by court order." The VAP form also explained the rights and responsibilities of the father and the mother whose signatures appeared on the form. Finally, the VAP form expressly stated: "The father or the mother may inherit from the child or the child's descendants." Osborn and Keira also named Osborn as A.O.'s father on the birth certificate. The VAP form and the birth certificate were filed—and remain on file—with the Office of Vital Statistics of the Kansas Department of Health and Environment.

On October 27, 2014, a couple weeks after A.O.'s birth, Keira and Osborn married, but the marriage quickly deteriorated. Keira filed a petition for annulment which alleged that "no children have been born of this marriage or adopted by the parties." As grounds for requesting an annulment, Keira alleged in the petition that Osborn "failed to advise [Keira] prior to the marriage that he is unable to father children." Keira testified that Osborn was present in the attorney's office when she signed the annulment petition and he never objected to any statements in the petition. Court records show that a waiver of service of summons was filed and the district court granted the annulment on February 25, 2015, although the annulment order is not included in the record on appeal.

After the marriage ended, Keira and A.O. began residing with Keira's new boyfriend, Anthony Anderson. While Keira and Anderson lived together, the Kansas Department for Children and Families (DCF) received at least one "hotline" report that A.O. was being neglected or abused under Keira's care. The DCF investigated but took no formal action to remove A.O. from Keira's care.

On April 28, 2015, Keira asked Anderson to look after A.O. while she worked. During that time, Anderson killed A.O., the circumstances of which are unclear from the record but are described in State v. Anderson , 308 Kan. ––––, No. 116,710, 2018 WL 4841556 (October 5, 2018). Anderson is presently incarcerated at the El Dorado facility of the Kansas Department of Corrections.

On April 25, 2017, Osborn filed a petition for wrongful death against Anderson, Keira, the DCF, and Phyllis Gilmore in her official capacity as secretary of the DCF. Osborn alleged that the defendants were all partially at fault for A.O.'s death. The record does not reflect that Anderson ever responded to the petition.

Keira filed her answer on May 17, 2017, and she attached a copy of the annulment petition to her answer. The DCF, also representing Gilmore, filed its answer on May 26, 2017. The DCF and Keira later filed separate amended answers on June 9, 2017. That same day, the defendants, minus Anderson, filed a joint motion to dismiss or, in the alternative, a motion for summary judgment. The motion argued that Osborn lacked standing to sue for wrongful death because he was not A.O.'s biological father and the annulment revoked the VAP. The motion also included a claim of equitable estoppel based on Osborn's failure to inform the court granting the annulment that he was A.O.'s legal father and his failure to accept the legal responsibilities of being a parent.

Osborn responded to the summary judgment motion on July 10, 2017. In his response to the motion, Osborn argued that the annulment did not invalidate the VAP and, because he was still A.O.'s legal father, he had standing to bring the claim. Osborn attached a signed copy of the VAP to his response. The response also included an affidavit signed by Osborn acknowledging, "I am not the biological father of A.O."

The district court held a hearing on the motion on July 21, 2017. In addition to oral arguments, Keira testified at the hearing. All parties at the hearing agreed that the motion was before the court "in the form of a summary judgment motion."

On July 26, 2017, the district court filed an order granting summary judgment for the defendants, dismissing Osborn's lawsuit for lack of standing. The district court found there was no genuine issue as to any material fact related to the subject of the motion. The district court found that the VAP created merely a presumption of paternity, and it ruled that the presumption was rebutted by the undisputed fact that Osborn was not A.O.'s biological father. The court based its ruling on State ex rel. Secretary of SRS v. Kimbrel , 43 Kan. App. 2d 790, 231 P.3d 576 (2010).

Osborn later filed a "Motion for New Trial Under K.S.A. 60-259." In the motion, Osborn brought a new Kansas case to the district court's attention: State ex rel. Secretary of DCF v. Smith , 306 Kan. 40, 392 P.3d 68 (2017). Osborn claimed that according to the Smith decision, Kimbrel was no longer good law and the defendants were time-barred from trying to revoke the VAP. The defendants disputed Osborn's claims, and a hearing on the matter took place on December 13, 2017.

On February 13, 2018, the district court filed an order reaffirming its previous summary judgment in favor of the defendants, expressly incorporating its prior reasoning plus adding a new reason. For its new reasoning, the district court found that the 2015 marriage annulment "revoked" or terminated the VAP because of the assertion in the annulment petition that no children resulted from the marriage. The district court dismissed Osborn's lawsuit with prejudice for lack of standing. Osborn timely appealed.

ANALYSIS

On appeal, Osborn claims the district court erred in granting summary judgment in favor of the defendants. Osborn claims that he has standing to bring a wrongful death lawsuit because he is A.O.'s legal father according to the VAP. Specifically, Osborn contends that the district court erred by finding that the annulment terminated the VAP.

The DCF asserts that the district court did not err by finding, by clear and convincing evidence, that the presumption of paternity in favor of Osborn was revoked. The DCF asserts that the annulment invalidated the VAP and that the district court could nullify the VAP based on the uncontroverted fact that Osborn is not A.O.'s biological father. Keira has not filed an appellate brief.

" ‘ "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]" ’ " Armstrong v. Bromley Quarry & Asphalt, Inc. , 305 Kan. 16, 24, 378 P.3d 1090 (2016).

Also, this case involves interpretation of the Kansas Parentage Act (the Act), K.S.A. 2017 Supp. 23-2201 et seq. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

Under K.S.A. 60-1902, an heir-at-law may maintain a wrongful death cause of action against an alleged wrongdoer. An heir-at-law refers to one who takes property by intestate succession. Baugh v. Baugh , 25 Kan. App. 2d 871, 874, 973 P.2d 202 (1999) (quoting Johnson v. McArthur , 226 Kan. 128, 134, 596 P.2d 148 [1979] ). Under Kansas intestate law, when the decedent leaves no spouse, child, or issue (as with A.O. here), the surviving parents are the child's heirs-at-law. K.S.A....