In re E.A.
| Docket Number | 123,710 |
| Decision Date | 09 September 2022 |
| Citation | 518 P.3d 419 |
| Parties | In the MATTER OF the Parentage of E.A., a Minor Child. |
| Court | Kansas Court of Appeals |
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.
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 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:
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.
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:
The district court dismissed the case.
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.
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...
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