In re Kenney

• Decision Date: 16 July 2021
• Docket Number: No. 123,589,123,589
• Citation: 490 P.3d 1194
• Court: Kansas Supreme Court
• Parties: In the MATTER OF Kevin W. KENNEY, Respondent.

490 P.3d 1194

In the MATTER OF Kevin W. KENNEY, Respondent.

No. 123,589

Supreme Court of Kansas.

Opinion filed July 16, 2021

Krystal L. Vokins, Deputy Disciplinary Administrator, argued the cause, and Matthew J. Vogelsberg, Deputy Disciplinary Administrator, was on the formal complaint for the petitioner.

John J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of Topeka, argued the cause, and Kevin W. Kenney, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Kevin W. Kenney, of Prairie Village, an attorney admitted to the practice of law in Kansas in 1996.

On June 18, 2020, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct(KRPC).The respondent timely filed an answer to the complaint on June 29, 2020.The Disciplinary Administrator and respondent entered into a joint stipulation agreement on August 3, 2020, where the respondent admitted to the facts and stipulated that his conduct violated KRPC 3.1 (2021 Kan. S. Ct. R. 384), 3.3 (2021 Kan. S. Ct. R. 385), and 8.4 (2021 Kan. S. Ct. R. 427).Respondent personally appeared and was represented by counsel at the complaint hearing before a panel of the Kansas Board for Discipline of Attorneys, which was conducted on August 13, 2020.

At the conclusion of the hearing, the panel determined that respondent had violated KRPC 3.1(meritorious claims and contentions);3.3(a)(1)(making a false statement of fact or law to a tribunal);8.4(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation);and 8.4(d)(engaging in conduct prejudicial to the administration of justice).The panel set forth its findings of fact and conclusions of law, along with its recommendation on disposition, in a final hearing report, the relevant portions of which are set forth below.

"Findings of Fact

....

"11.The respondent is an attorney at law, Kansas attorney registration number 17448.His last registration address with the clerk of the appellate courts of Kansas is 7301 Mission Road, Suite 243, Prairie Village, Kansas 66208.The Missouri Supreme Court admitted the respondent to the practice of law in the State of Missouri on September 29, 1995.The respondent's license to practice law in Missouri is in good standing.The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on May 15, 1996.The respondent's license to practice law in Kansas is in good standing.The respondent has been actively engaged in the practice of law since admission.

" Adoption of C.L.

"12.On September 13, 2016, C.L. was born in Topeka, Kansas.While in the hospital, C.L.'s biological mother put C.L. up for adoption through Kansas Children's Service League (hereinafter ‘KCSL’).On September 15, 2016, the biological mother signed relinquishment papers.

"13.That same day, KCSL placed the infant with a couple living in the Kansas City area who hoped to adopt C.L.The adoptive couple retained the respondent to assist them with adopting C.L.

"14.On the evening of September 15, 2016, Melinda Kline, a KCSL social work supervisor, contacted C.L.'s biological father by phone and told him about C.L.'s birth and that he was believed to be the father.

"15.Ms. Kline told the biological father that C.L. was placed with prospective adoptive parents and explained she was asking him to relinquish his parental rights.The biological father asked Ms. Kline who the baby's mother was.Ms. Kline refused to answer over the phone, preferring instead to meet with the biological father to sign relinquishment papers.The biological father asked if he would be able to meet with the prospective adoptive parents or see the baby.Ms. Kline's written log indicated that she responded, ‘this is usually dependent on trust with the adoptive family.’

"16.The next day, Friday, September 16, 2016, Ms. Kline again spoke to the biological father by phone.The biological father's mother joined the conversation.They told Ms. Kline that the biological father had an attorney, they provided the attorney's contact information, and they asked for a paternity test.The biological father's mother said if the baby was the biological father's baby, they wanted to receive custody of the baby.

"17.The following Monday, September 19, 2016, the respondent filed a petition for adoption on behalf of the couple in Wyandotte County District Court.The petition sought to terminate the biological father's parental rights.

"18.The petition alleged that the biological father's parental rights should be terminated because:

a. The identified biological father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the biological mother during the six months prior to the Child's birth;

b. The identified biological father abandoned the biological mother after having knowledge of the pregnancy;

c. The identified biological father has made no reasonable efforts to support or communicate with the Child after having knowledge of the birth of the Child;

d. The identified biological father abandoned or neglected the Child after having knowledge of the Child's birth;

e. The identified biological father is unfit; and

f. Termination of the parental rights of the identified biological father is in the best interests of the Child.

"19.The alleged grounds for terminating the biological father's parental rights were made without prior factual investigation.Furthermore, the termination allegations were substantively false when filed because the biological father only learned of the biological mother's pregnancy after C.L.'s birth and only four days before the respondent filed the petition seeking to terminate the biological father's parental rights.

"20.The respondent had his clients sign a verification, affirming under oath that the allegations contained in the petition were true.The respondent also signed the petition.

"21.On September 20, 2016, without knowing that a petition for adoption had been filed in Wyandotte County, the biological father filed a paternity action in Shawnee County, Kansas, stating that he was ‘willing and able to meet the financial and emotional needs of the minor child’ and was ‘a fit and proper person to be awarded the care, custody, and control of the minor child.’

"22.On October 5, 2016, the biological mother filed a motion to stay the Shawnee County paternity action until the Wyandotte County adoption proceeding was concluded.

"23.On October 25, 2016, the Wyandotte County district court ordered a hearing on the adoption petition and scheduling the hearing for November 29, 2016.On November 4, 2016, counsel for the biological father entered his appearance in the adoption proceeding.For unknown reasons, the biological father was not served with notice of the hearing until November 26, 2016, less than three days before the hearing on the adoption petition.

"24.At the November 29, 2016, hearing, the biological father appeared in person and by counsel.The biological father objected to the adoption.The district court ordered the biological father to arrange and pay for genetic testing.It also granted the prospective adoptive parents' request that the biological father and his attorney have no access to the documents in the district court's case file other than a redacted copy of the petition for adoption.

"25.On December 6, 2016, the Shawnee County district court stayed the paternity action because the Wyandotte County district court achieved jurisdiction first and had already ordered paternity testing.

"26.Subsequent DNA testing established the biological father's paternity of C.L.

"27.While the adoption case was pending, the biological father was prevented from learning the identity of the prospective adoptive parents or where they were residing with C.L.

"28.The matter proceeded to an evidentiary hearing on March 24, 2017.The biological mother testified at the hearing that she learned she was pregnant the morning she gave birth and that she never told anyone, including the biological father, that she was pregnant before that day.She also stated that she did not inform the biological father of C.L.'s birth.

"29.On April 26, 2017, the district court terminated the biological father's parental rights, reasoning that the biological father, while the adoption case was pending, did not attempt to support or communicate with C.L. or ask about the child's welfare.Accordingly, the district court concluded that two statutory grounds for terminating the biological father's parental rights were established: (1) the biological father abandoned or neglected C.L. after having knowledge of the birth and (2) the biological father had made no reasonable efforts to support or communicate with C.L. after having knowledge of his birth.

"30.The biological father appealed the district court's termination of parental rights to the Court of Appeals.In an unpublished opinion, on February 23, 2018, the Court of Appeals affirmed the termination of the biological father's parental rights, concluding that evidence supported the district court's conclusion that the biological father failed to make reasonable efforts to support or communicate with C.L. while the case was pending.The panel concluded, however, that there was insufficient evidence to support the district court's other basis for terminating parental rights.

"31.Judge Tom Malone filed a concurring opinion, stating:

‘What troubles me most about the case are the allegations against [the biological father] included in the adoption petition.The adoption petition, prepared by legal counsel, alleged the existence of almost every legal basis for termination of parental rights set forth in K.S.A. 2016 Supp. 59-2136(h)(1)(A)-(G).However, the petition alleged no specific

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