State v. Smith

• Decision Date: 07 April 2017
• Docket Number: No. 114,306,114,306
• Citation: 392 P.3d 68,306 Kan. 40
• Parties: STATE of Kansas EX REL. SECRETARY OF DEPARTMENT FOR CHILDREN AND FAMILIES, and Minor Child, I.M.S., by and through the Next Friend and Guardian, Natashia S. Gafford, Appellees, v. Alonzo SMITH, Appellant.
• Court: Kansas Supreme Court

306 Kan. 40

392 P.3d 68

STATE of Kansas EX REL. SECRETARY OF DEPARTMENT FOR CHILDREN AND FAMILIES, and Minor Child, I.M.S., by and through the Next Friend and Guardian, Natashia S. Gafford, Appellees,

v.Alonzo SMITH, Appellant.

No. 114,306

Supreme Court of Kansas.

Opinion filed April 7, 2017

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, argued the cause, and Morgan O'Hara Gering, of the same office, was on the brief for appellant.

Daniel John Macias, DCF/CSS contract attorney, of Wichita, argued the cause and was on the brief for appellee.

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

The Kansas Parentage Act, K.S.A. 2016 Supp. 23–2201 et seq. , provides an informal procedure for acknowledging paternity whereby a person signs a voluntary acknowledgment of paternity (VAP).K.S.A. 2016 Supp. 23–2204 directs the state registrar of vital statistics to create a VAP form listing the rights and responsibilities of acknowledging paternity.The form must also advise that signing the form acknowledges paternity, "creates a permanent father and child relationship," and obligates the father to support the child, unless the acknowledgment is revoked by court order in an action filed within 1 year of the child's birth.K.S.A. 2016 Supp. 23–2204(b)(1), (2).

Nevertheless, another statute within the Kansas Parentage Act, K.S.A. 2016 Supp. 23–2208(a)(4), provides that an individual who signs a VAP form is merely "presumed to be the father of [the] child."And K.S.A. 2016 Supp. 23–2208(b) allows for rebutting the presumption by clear and convincing evidence and does not impose a time limitation for doing so.

This appeal requires us to determine what the legislature intended by providing for the creation of a permanent father and child relationship in one statute but only a presumptive relationship in another.Before reaching that question, we first determine that the VAP at issue in this case was valid and enforceable.We then construe the ambiguous statutes and hold that individuals who sign a VAP are bound by the rights and responsibilities delineated in K.S.A. 2016 Supp. 23–2204, including the creation of a permanent father and child relationship, if the VAP is not revoked by court order within 1 year of the child's birth.As applied to this case, in which an individual who signed a VAP seeks its untimely revocation, this means the VAP established a permanent father and child relationship.We also conclude that no other issue raised by the parties requires us to remand this case for further proceedings or to refuse to recognize a permanent father and child relationship.

FACTUAL AND PROCEDURAL BACKGROUND

This case began in February 2009 when the State of Kansasex rel. the Secretary of Social and Rehabilitation Services (now the Department for Children and Families[DCF] ) filed a Petition for Support against Alonzo Smith on behalf of I.M.S., a minor child.DCF filed the action after Natashia Gafford, I.M.S.'s mother, assigned to it I.M.S.'s child support claim pursuant to K.S.A. 2008 Supp. 39–709.The State seeks reimbursement from Smith for the past support it has provided for I.M.S.; the State also seeks an order obligating Smith to pay future child support.Neither Smith, I.M.S.'s mother, the State, nor anyone else asserts—or has ever asserted—that Smith is actually I.M.S.'s natural (or biological)father.But Smith signed a VAP at the hospital shortly after I.M.S.'s birth on May 18, 2000, and this VAP serves as the sole basis for the State's claims.

Smith initially answered the 2009petition pro se and, in doing so, disclaimed paternity.He later retained counsel who filed a number of motions on his behalf.Through these motions, Smith asserted that I.M.S.'s biological father was Hillard Sanders who had passed away by the time this action began.Smith requested genetic testing to prove Sanders' paternity and also sought to add Sanders' estate as a party.The district court denied both motions.In another motion, Smith sought to revoke the VAP.The district court conducted an evidentiary hearing on this motion at which Gafford, Smith, and others testified.

Gafford testified that Sanders was I.M.S.'s biological father.She described Sanders as a gang member whom she did not want involved in his son's life due to his dangerous criminal lifestyle.When Gafford sought State assistance during her pregnancy, she reported that Sanders was the father.Gafford also testified that the State red-flagged her file because it would not seek support from Sanders due to his criminal and gang activity.

At some point, the State learned of the VAP in which Smith was purported to be I.M.S.'s father.Gafford testified that when DCF representatives asked her which purported father was I.M.S.'s natural or biological father, she never pointed to Smith.As to Smith's involvement, Gafford testified that Smith, who was her friend, asked her about the father of her child while she was in the hospital.When she indicated she did not want the biological father to be involved in the baby's life, Smith said he wanted to be the father.Gafford further detailed their conversation, in which Smith indicated:

"I'm almost 50 and I don't have any kids and no one has my name and [the baby] needs a name.I said [the baby] needs my name. ...I said the baby can have my name and he kept insisting ... on being the dad.I said, why would you want to do that?And he was just like when he died he didn't have anybody to leave anything to ... and he was just getting older and he had not got married, and so after talking about it, I was kind of like, okay, and he asked me, well, do I need to get an attorney or something?I said, well, I don't know the legality of it.I said, if you think you need to talk to an attorney, go ahead, but I don't want you trying to take my baby from me.I'm just letting you be dad, you know."

When asked about the VAP, Gafford did not recognize it, but she recognized her and Smith's signatures on it, and she recalled that the address listed on the form belonged to Smith at the time of I.M.S.'s birth.She did not provide any testimony regarding who witnessed the form or when this might have occurred.She also testified I.M.S.'s middle name was chosen because it was Smith's father's name.

Smith's memory differed from Gafford's on several points.He denied asking to be I.M.S.'s father.Rather, according to his testimony, he signed some paperwork at Gafford's request because Gafford wanted the baby to have Smith's last name:

"[T]his was [Gafford's] request at the hospital.She said she wanted him to have my last name.And I asked her why.I said why can't you give him your last name.She said all her sons have different last names and I said, what's in a name?Okay, as long as his dad doesn't get mad thinking I'm trying to take his child....And she told me that he didn't have a daddy.And I was like, everybody has a dad."

Smith also testified Gafford never asked him to be I.M.S.'s father nor to be listed on the birth certificate.Smith indicated he would not have signed anything if they had discussed him being I.M.S.'s father; their conversations concerned him being a big brother to I.M.S.He also testified that I.M.S.'s middle name was not the same as his father's name.

With respect to the VAP, Smith, like Gafford, did not recognize the form:

"My name is on here but I don't recall this document with all this stuff on there.There was a piece of paper lying there and she asked me to sign it, and I asked her what it was and I said no because you might be trying to come after me later for child support.She said, no, I wouldn't do you like that.She just wanted him to have my last name.That's why the signature.We never talked about me being his dad and if I would have known that I wouldn't have signed anything.I mean, we were good friends, so I took her at her word when I asked her what it was."

Smith testified he did not read the form and could not have read the form at the hospital because he did not have his reading glasses with him.

The testimony of several witnesses called by Smith supported Smith's testimony that he considered himself to be like a big brother to I.M.S.These witnesses, Smith, and Gafford all testified that Smith had been actively involved in I.M.S.'s life at various points.Smith saw I.M.S. regularly during the first 5 to 6 months of I.M.S.'s life.At some point, Smith and Gafford had an argument and temporarily ended contact.Shortly after that, Gafford resided with Bruce Sears, with whom she had three children.She lived with him until he was incarcerated in July 2004.Gafford indicated that Sears treated all of her children as he would his own.She also testified about an attempt to contact Smith when I.M.S. was around 4 years old; she wanted to ask Smith to agree to change I.M.S.'s last name to hers, but Smith never returned her calls.Around 2006, Smith and I.M.S. resumed contact.For approximately 3 years, Smith and I.M.S. continued regular contact.One year during that time, Smith claimed I.M.S. and one of Gafford's other children as dependents on his taxes.Smith also attended one parent-teacher conference and a school recital.Contact ended when Gafford requested financial support from Smith.

The district court concluded Smith was I.M.S.'s father based on the VAP.The court found Smith had not read the VAP before initialing and signing it but concluded the document was nevertheless legally binding under K.S.A. 2016 Supp. 23–2204 and established Smith as the legal father.The court noted Kansas law was properly reflected in the disclosures and those disclosures had given notice of Smith's legal duties.Noting that Smith failed to revoke the acknowledgment within the statutory time period, the court concluded his motion was time-barred.The district court also found that Smith's failure to date the form or sign it in front of a notary public or judge did not invalidate the VAP.As for Smith's arguments about his lack...