In re Adoption of A.A.T.

• Decision Date: 12 December 2008
• Docket Number: No. 98,740.,98,740.
• Parties: In the Matter of the ADOPTION OF A.A.T., a Minor Child.
• Court: Kansas Supreme Court

196 P.3d 1180

287 Kan. 590

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

No. 98,740.

Supreme Court of Kansas.

December 12, 2008.

William A. Vickery, of Law Office of John F. Reals, of Wichita, argued the cause, and Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, was with him on the briefs for appellant natural father.

Rachael K. Pirner, of Triplett, Woolf & Garretson, LLC, of Wichita, argued the cause and Paula D. Langworthy, of the same firm, was on the brief for appellees adoptive parents.

Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, was on the brief for amicus curiae American Academy of Adoption Attorneys.

The opinion of the court was delivered by LUCKERT, J.:

In this appeal, a natural father seeks to set aside the adoption of his newborn child. Although he did nothing during the pregnancy to assume parenting responsibilities and preserve his liberty interest in fatherhood, he asserts this should be excused and a liberty interest should be recognized because the natural mother induced his inaction by lying to him about the pregnancy and the birth. Then, she lied to the district court regarding the father's identity, preventing him from receiving notice and an opportunity to be heard in the adoption. Consequently, according to his argument, the adoption is void.

The district court rejected these arguments, and we affirm that ruling. A liberty interest, which results in the right to notice, is created by a developed familial relationship, not just biology. In a newborn adoption situation, a father must demonstrate a full commitment to parenting during the pregnancy, and in this case the natural father's opportunity to parent did not develop into a full parenting relationship that warrants constitutional protection. Even though the father may be blameless in this failure that was induced by the natural mother's fraud, his belated attempt to assert a parental interest, beginning 6 months after the adoption was final, cannot overcome the fully matured interests of the State and the adoptive family in the permanency and stability of the adoption.

Factual Background and Pretrial Procedural History

This case began in New York, where the natural mother, N.T., became sexually involved with the natural father, M.P. N.T. informed M.P. in mid-October 2003 that she was pregnant with his child. Then, just before Thanksgiving, N.T. left New York to visit her parents in Wichita. She later decided to stay in Kansas.

After leaving New York, N.T. refused to give M.P. the address where she was living, but the couple remained in telephone contact. M.P.'s cell phone records show that as early as November 25, 2003, he was making calls to Wichita.

In a phone call on January 22, 2004, N.T. falsely informed M.P. that she had undergone an abortion. She later testified that she did so because she knew M.P. would not consent to an adoption. After the conversation in which N.T. lied about the abortion, M.P. continued to question N.T. about the pregnancy, doubting her veracity. In May 2004, M.P.'s expression of skepticism led to an argument with N.T. that temporarily stopped their telephone contact.

After a period of time but before the child was born, M.P. and N.T. began talking again and continued to do so throughout the remainder of the pregnancy and following their child's birth on June 24, 2004, in Wichita. During this time, M.P. continued to express his doubts about N.T.'s truthfulness, making statements like, "Why do I have a feeling you're lying to me?" and "I know I have a child, I can feel it." M.P. told a friend that he thought he had a daughter, and he bought a pair of earrings before Christmas 2004, apparently as a gift for the child he imagined he might have.

M.P. was not the only one deceived by N.T. N.T. told her mother, other family members, and friends that the baby died at delivery. She also deceived the adoption agency regarding the identity of the father, claiming not to know his last name and to have only vague information about where he lived.

The day after the birth, N.T. directed that A.A.T. be given to the adoptive parents, who took the baby home from the hospital. The adoptive parents filed their petition for adoption and for termination of the parental rights of the father on July 1, 2004, when A.A.T. was 1 week old. As part of this proceeding, N.T. again lied. She executed an affidavit that gave a false surname for the newborn child's putative father. She also falsely stated that the father was "not willing to be of assistance to [her] during the pregnancy and with regard to these proceedings" and that she had no personal knowledge of his background information.

A guardian ad litem (GAL) was appointed to represent the putative father. After interviewing N.T., the GAL filed an affidavit with the court, passing on incorrect information supplied by N.T., including a false surname for the putative father and representations that N.T. had not contacted the father since her second month of pregnancy and that he was aware of her intent to place their child for adoption. In addition, N.T. failed to pass along information such as M.P.'s address.

Although there is some evidence that at the hospital N.T. told a representative of the adoption agency that she had just spoken to A.A.T.'s father, and that the agency did not follow up on this lead, an agency representative later testified that she had no recollection of N.T. making a statement to this effect. The representative also said she would have notified the GAL if she had been told about a recent conversation between N.T. and the child's father.

In the absence of correct information about M.P. and his willingness or unwillingness to relinquish his parental rights under K.S.A. 59-2124, a notice including the inaccurate name of the putative father and "To Whom It May Concern" was published in the New York Post on July 30, 2004, and August 6, 2004. See K.S.A. 59-2136(e), (f) (if father identified to satisfaction of court, than one man identified as possible father, each shall be given notice of adoption proceedings by personal service, certified return receipt requested, or "in any other manner court directs"). The item in the New York Post, which circulates to every county in New York, also contained A.A.T.'s last name and stated that Kansas was the location of the proceeding. Nothing was done to provide actual notice of the adoption to M.P.

No father appeared before the court. The natural father's parental rights thus were terminated and the adoption decree was finalized on August 24, 2004. See K.S.A. 59-2136(g) (if no person appears claiming to be father and claiming custodial rights, court shall enter order terminating father's parental rights).

In late December 2004, when A.A.T. was 6 months old, N.T. finally told M.P. the truth. Within 6 weeks, M.P. had retained Kansas counsel and had begun this action to set aside the adoption pursuant to K.S.A. 59-2213 and K.S.A. 60-260(b). M.P., possibly with the assistance of his lawyer, had been able to obtain the names, residential address, and church affiliation of the adoptive parents.

M.P. requested DNA testing to confirm paternity, a status conference to set a discovery schedule, and "orders to proceed with the case." The adoptive parents moved to dismiss. At a March 23, 2005, hearing, the district court ordered the matter to proceed and considered whether genetic testing should be performed to determine if M.P. was the father and thus had standing to challenge the adoption. The attorneys present agreed that the adoptive parents were entitled to a Ross hearing to determine whether such testing was in A.A.T.'s best interests. See In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). A GAL was appointed for A.A.T.

Before the Ross hearing could be held, M.P. advocated for a different approach, submitting a memorandum arguing that the Ross hearing was unnecessary. The district court was persuaded, and the adoptive parents took an interlocutory appeal to our Court of Appeals. The Court of Appeals affirmed the district court in In re Adoption of A.A.T., No. 95,914, 147 P.3d 1096, 2006 WL 3775182, unpublished opinion filed December 22, 2006.

Upon remand, DNA tests were performed. The results confirmed M.P.'s paternity of A.A.T. M.P. then sought a trial on the issue of whether the adoption should be set aside and requested visitation with A.A.T. pending resolution of the issue. The record on appeal is silent on the district court's decision on the visitation question. The information before us indicates that A.A.T. has been living exclusively with the adoptive parents since leaving the hospital with them as a newborn. Recently, M.P. filed a motion with this court renewing his request to have visitation with A.A.T.

District Court's Ruling on the Adoption

After trial, the district court refused to set aside the adoption decree. The court found, inter alia, that the adoption agency and adoptive parents had acted in good faith in the adoption proceeding. The court also found that M.P. had not abandoned N.T. during her pregnancy and that M.P. had not learned of A.A.T.'s birth until December 24 or 25, 2004. Still, the court further found that M.P. "should have known and did suspect [N.T.] was still pregnant with his child and she gave birth to his child." Under these circumstances, M.P. "should have taken action to determine whether [N.T.] had had an abortion or was still pregnant ... and ... gave birth to his child."

The district court ruled against M.P. on his argument under K.S.A. 59-2213, which provides that a court shall have continuing control over its own probate orders, judgments, and decrees for 30 days. Under this statute, the court held M.P.'s effort to set aside the adoption decree was time-barred.

The district court also rebuffed M.P.'s arguments under K.S.A. 60-260(b), which controls vacation or modification of probate judgments after...