In re Adoption of X.J.A., 96,003.
| Decision Date | 15 September 2006 |
| Docket Number | No. 96,003.,96,003. |
| Citation | 142 P.3d 327 |
| Parties | In the Matter of the ADOPTION OF X.J.A., A Minor Child Born 12-21-2003. |
| Court | Kansas Court of Appeals |
J. Scott Koksal, of Lindner & Marquez, of Garden City, for appellant natural mother.
Glenn I. Kerbs, of Dodge City, for appellee.
Before JOHNSON, P.J., ELLIOTT and BUSER, JJ.
The natural mother (Mother) of X.J.A. appeals the district court's grant of a decree of adoption to M.A. and E.M., specifically challenging the denial of her motion to revoke her consent to adoption and the granting of an adoption upon a joint petition by two unmarried persons. Finding that the acknowledgment of the consent to adopt failed to substantially comply with the Uniform Law on Notarial Acts, resulting in an impermissible shifting of the burden of proof to the Mother, we reverse.
In the spring of 2003, the 24-year-old Mother discovered she was pregnant. At the time, mother had a young daughter, and they lived with the natural father of X.J.A. After the natural father left, Mother was forced to leave her home and move in with a neighbor, G.A.A.
G.A.A.'s sister, M.A., and her common-law husband, E.M., had been unsuccessfully attempting to have a child. Mother had discussions with M.A. and E.M. about their adopting the child she was expecting. Conflicting testimony was presented as to whether Mother ultimately agreed to the adoption. Mother contends that she simply agreed for M.A. and E.M. to care for the child until Mother could recuperate, commence working, and make arrangements to care for the child herself. The adoptive parents and their family members testified that Mother agreed that M.A. and E.M. would adopt the child.
The child was born on December 21, 2003. During her hospital stay, Mother told a nurse that the child was not being given up for adoption. Mother left the hospital on December 23, but the newborn child remained hospitalized. The following day, Mother signed a consent to adoption form given to her by M.A., albeit no one explained the form's content to Mother. The evidence was conflicting as to Mother's level of comprehension of the English language, although no one else present was apparently able to read or understand the content of the form. When M.A. returned the signed form to her attorney, he advised that the parent's signature was to be acknowledged before a notary public. M.A. then took the form to a notary public and convinced the notarial officer to execute the notary's portion of the acknowledgment without Mother being present.
The newborn was given a name, X.J.A., which was proposed by the adoptive mother, M.A. Upon discharge from the hospital, X.J.A. went home with M.A. and E.M. However, Mother enrolled X.J.A. in the Special Supplemental Nutrition Program for Women, Infants, and Children, obtained State of Kansas health insurance for X.J.A., and took X.J.A. to two medical appointments and for vaccinations in early 2004. Mother and X.J.A. had periodic visits until May 2004, when M.A. and E.M. discontinued the visits because of Mother's attempt to take custody of the child. Apparently, Mother's new boyfriend had encouraged her to regain custody of the child.
On October 19, 2004, Mother filed a motion to withdraw her consent to the adoption. As noted, conflicting testimony was presented to the district court. Additionally, a forensic document examiner opined that the signature on the consent form was that of the Mother. Mother also acknowledged that the signature appeared to be hers.
The district court found that the evidence established that it was Mother's signature on the consent form, "even though not signed in the presence of a notary public." The district court found that the content of the form was sufficient to conform with the sample consent authorized in K.S.A. 59-2143. After noting Mother's claim that the consent had not been signed in accordance with the Uniform Law on Notarial Acts, K.S.A. 53-501 et seq., the district court opined that "[i]t would be patently unjust if the purpose of the notarial requirement for consents to adoption (to attest a free and voluntary consent) was defeated by a notarial officer's failure to comply with the signature requirements where the signature is in fact genuine." The district court relied on the holding in In re Adoption of Trent, 229 Kan. 224, Syl. ¶ 4, 624 P.2d 433 (1981), stating substantial compliance with statutory requirements is sufficient. Ultimately, the district court concluded:
"The facts presented in the present matter establish a regret on the part of the natural mother for giving a consent to adoption, but the facts do not indicate the consent was coerced, and the natural mother failed to establish that the consent was not given freely and voluntarily, and therefore, the adoption should proceed."
In appealing that decision, Mother presents three issues: (1) Did the district court err by recognizing and applying the doctrine of "substantial compliance" to K.S.A. 59-2114?; (2) Is the district court's denial of the natural mother's motion to revoke consent to adopt supported by substantial competent evidence?; and (3) Did the district court err by granting a decree of adoption upon the joint petition of two unmarried persons?
First, the Mother challenges the district court's finding that the consent to adopt was in substantial compliance with the requirements of K.S.A. 59-2114(a). Interpretation of a statute is a question of law, and an appellate court's review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
K.S.A. 59-2114(a), our statute specifically addressing a parent's consent to adoption, provides:
Initially, we note that appellant does not challenge the district court's finding that the content of the consent form contained sufficient information. At the time in question, K.S.A. 59-2129(d) (Furse 1994) directed that a parental consent was to be in substantial conformity with the exemplar contained in the appendix of forms following K.S.A. 59-2143 (Furse 1994). The district court found the consent used here substantially conformed with the statutory sample form.
Mother does not concede that she actually signed the consent form presented to the district court. However, the evidence was sufficient to support the district court's finding that it was Mother's signature on the consent form.
The controversy centers on the 59-2114(a) statutory requirement that the consent "shall be acknowledged" and, ultimately, on whether the consent was freely and voluntarily given. Under the Uniform Law on Notarial Acts, an "`[a]cknowledgment' means a declaration by a person that the person has executed an instrument for the purposes stated therein." K.S.A. 53-502(b). "In taking an acknowledgment, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the acknowledgment is the person whose true signature is on the instrument." K.S.A. 53-503(a). "A notarial act must be evidenced by a certificate signed and dated by a notarial officer." K.S.A. 53-508(a). "By executing a certificate of a notarial act, the notarial officer certifies that the officer has made the determinations required by K.S.A. 53-503." K.S.A. 53-508(c).
Appellees do not dispute that Mother did not personally appear before or make the statutory declaration to the notary public who executed the certificate of acknowledgment. However, they urge us to find, as the district court did, that there was substantial compliance with the Uniform Law on Notarial Acts because Mother's consent was freely and voluntarily given.
Mother argues that her consent was invalid under the plain language of K.S.A. 59-2114(a) because it was not, in fact, acknowledged. She suggests that the district court's reliance on Trent to find substantial compliance with K.S.A. 59-2114(a) was misplaced, due to factual distinctions. Thus, we perceive some confusion in the briefs as to which statutes the doctrine of substantial compliance is to be applied: the laws governing notarial acts or the laws governing adoptions. We interpret Trent as applying the substantial compliance doctrine to the notarial acts statutes.
In Trent, an attorney and his secretary, who was a Kansas notary public, went to the natural mother's hospital room in Kansas City, Missouri. The mother signed, and the secretary notarized a consent to adoption form. When the mother subsequently challenged the validity of her consent in the adoption proceedings, the district court found that the mother's consent had been voluntarily given. However, the trial court found that the consent was nevertheless invalid because the secretary had no authority to act as a notary public in the State of Missouri.
The Trent majority recited that the Court of Appeals had affirmed the district court, finding the consent invalid because the Kansas notary public had no authority to act beyond the boundaries of the State of Kansas. The opinion noted that the Court of Appeals had found that the defect in the acknowledgment was not a mere irregularity and, therefore, it had not applied the doctrine of substantial compliance. Th...
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In re Adoption of X.J.A., 96,003.
...adoptive parents' failure to substantially comply with the Uniform Law on Notarial Acts, K.S.A. 53-501 et seq. In re Adoption of X.J.A., 36 Kan.App.2d 621, 142 P.3d 327 (2006). Our jurisdiction is pursuant to K.S.A. 20-3018(b) (petition for review granted from adoptive The issues on appeal ......