NOT DESIGNATED FOR PUBLICATION. No. 114,306 IN THE COURT OF APPEALS OF THE STATE OF KANSAS

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1 NOT DESIGNATED FOR PUBLICATION No. 114,306 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, ex rel., SECRETARY OF DEPARTMENT FOR CHILDREN AND FAMILIES, Minor Child, I.M.S., By and Through the Next Friend and Guardian, NATASHIA S. GAFFORD, Appellees, v. ALONZO SMITH, Appellant. MEMORANDUM OPINION Reversed. Appeal from Sedgwick District Court; HAROLD E. FLAIGLE, judge. Opinion filed May 27, Morgan O'Hara Gering, of O'Hara & O'Hara LLC, of Wichita, for appellant. Daniel J. Macias, DCF/CSS contract attorney, of Wichita, for appellees. Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J. Per Curiam: Alonzo Smith appeals from the district court's determination that, because he had acknowledged paternity in a Paternity Consent Form for Birth Registration (Consent), he was the presumptive and, therefore, "legal father" of I.M.S. The district court concluded as a matter of law that Smith was not the child's biological father. Thus, the district court erred when it failed to find that Smith had properly rebutted, pursuant to K.S.A Supp (b), the presumption that arose from that acknowledgment of paternity. We therefore reverse the district court's paternity determination. 1

2 FACTUAL AND PROCEDURAL BACKGROUND In February 2009, the State of Kansas ex rel., the Secretary of Social and Rehabilitation Services now the Department of Children and Families (DCF) filed a Petition for Support on behalf of I.M.S., born in 2000, through his mother, Natashia Gafford, against Smith. DCF brought the action pursuant to K.S.A , which permitted it to sue to establish parentage and obtain support orders for a child whose "obligee" parent (here Gafford) had assigned her or his support rights to DCF. The petition specifically alleged: "That the respondent, ALONZO SMITH, is the parent of the minor child [I.M.S.], year of birth 2000, and owes a duty to support the child." The petition sought reimbursement from Smith for prior assistance the State had paid on behalf of I.M.S. and an on-going order for I.M.S.'s support. In March 2009, Smith filed a pro se answer to the petition. He opened with the following: "I am not the father of this child, never dated, spent time or been with mother. Mother knows the [biological father] and even filed for [Social Security] for the child in [biological father's] name." Smith offered to "happily" take a paternity test to prove that he was not I.M.S.'s father. The district court, over the following years, accepted pleadings, conducted conferences and hearings, entered rulings from which Smith filed appeals he later abandoned, and, finally, in 2014, conducted a lengthy motion hearing and a 2-day evidentiary hearing. The State disclosed early on that its claim against Smith was not based on any allegation of biological paternity. Rather, the State contended that Smith was the child's legal father because he had acknowledged paternity in writing when he signed the Consent in In addition to his denial of biological paternity, Smith advanced several arguments to attempt to counter the effect of the Consent he had, in fact, signed. Among other 2

3 things, he argued that he should be allowed to revoke the Consent because he did not read the Consent before he signed it, the Consent did not contain the information required, he only signed the Consent as a favor to his platonic friend Gafford to give her son his last name but not to become the child's father, and that the law required that the signatures on the Consent be notarized. He also contended that a statutory scheme like that in the Kansas Parentage Act was unconstitutional because it allowed a mother and any man who signed a Consent to preempt the paternal rights of a biological father. He moved to add as a party to the action the estate of the deceased individual Gafford identified as the biological father. Finally, he argued that he was entitled to blood testing to determine, or rule out, his paternity of I.M.S. The district court rejected most of these arguments before the evidentiary hearings, but Smith renewed the denied requests at the outset of the evidentiary hearings. Before presentation of evidence, the parties acknowledged that they would be taking up the petition, Smith's motion to revoke the Consent, and Smith's Ross hearing motion asserting that the best interests of the child justified genetic testing. See In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). The State agreed that, because it had the burden to prove that a presumption of paternity existed, it would present its case first. We summarize the evidence and arguments in the following. Gafford testified that she became pregnant with I.M.S. sometime in She acknowledged that I.M.S.'s biological father was Hillard Sanders, whom she described as a gang member with a dangerous criminal lifestyle. Gafford was so averse to bearing a child by Sanders that she considered an abortion. Sanders knew she was pregnant and wanted her to have his child. Gafford eventually chose to have the child, but she did not inform Sanders she was doing so. She did, though, identify Sanders as the child's father when she sought assistance from the State during her pregnancy. 3

4 Shortly before I.M.S. was born, Gafford and Smith, long-time platonic friends, encountered each other. Smith worked security at Wesley Medical Center where Gafford received prenatal care and where I.M.S. was later born. Gafford testified to their contact: "He asked me when I let him know I was pregnant, he asked me where the father was. And that's when I let him know it was Hillard Sanders and that I didn't want to have anything to do with him, and that's when he told me he wanted to be his father. I said why would you want to do that? And he said, well, 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 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." The day I.M.S. was born Smith visited Gafford in the hospital. Gafford said they discussed naming the boy (using Smith's father's first name as the child's middle name) and, after doing so, they each signed the paternity papers. Gafford also testified that after she and her son left the hospital, she met with Sanders and they took the child to see Sanders' mother. Gafford said she apologized to Sanders' mother because the child had a different legal father but explained: "I told her, you know, what kind of lifestyle your son lives and I don't want [I.M.S.] being raised by someone like that. And I said, I apologize for not giving you guys a chance and not letting you be a part of the life, but this is the way I wanted it." Gafford denied that Sanders, who died in 2007, ever asserted any paternal rights to I.M.S. There was no evidence that DCF ever sought support for I.M.S. from Sanders. In 4

5 fact, Gafford stated that DCF workers informed her they had red-flagged the file for Sanders' gang involvement and DCF would not sue him. Gafford testified that Smith was involved in I.M.S.'s life for about the first 5 months after his birth. However, Gafford said she became angry when she returned to her home to find gifts from Smith in her bedroom. She left Smith a phone message "cussing him out pretty bad" and telling him that she would call the police on him if he ever came into her home again without her knowing. In reply, Smith left Gafford a phone message that he could see she was ungrateful and he would not do anything more to help her. Gafford acknowledged that Smith had no contact with the child until The only time Gafford tried to contact Smith during that time was in 2004: she said she left Smith a phone message asking him to agree to change I.M.S.'s last name to hers, but he did not call her back. In 2006 Smith began to have contact with I.M.S. again. Gafford said that over the next 3 years Smith spent money on and time with I.M.S. Then, in 2009, that contact ended when Gafford asked for periodic monetary support. Smith refused, Gafford went to DCF to obtain support, and DCF filed this action. Smith had a different version of why he signed the Consent form. He testified that Gafford "was a good friend," but he did not know she was pregnant until he saw her at Wesley "outside by the birth care center one night." He said Gafford called him just after she gave birth, and he went to "the baby room" to visit. He explained his signature on the Consent in the following testimony: "[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

6 "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 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 contradicted Gafford's claim that she told him Sanders was I.M.S.'s father when Smith signed the Consent. Smith denied that they had named I.M.S. after Smith's father, whose name was Morris rather than the middle name Gafford gave the child. Smith said he did not learn of Sanders' paternity until sometime later when the grandmother of some of Gafford's other children informed him that Sanders was coming to Smith's job and, according to Smith, "scoping" him out. Smith maintained that I.M.S. knew that Sanders was his father. I.M.S. and Smith talked about it when Sanders' picture was in the newspaper shortly after he had been killed in Smith confirmed Gafford's testimony that he had purchased baby items for I.M.S. and watched the child at times. Smith explained, "I'm older, there wasn't a lot to do and I love the kids." Smith said he bought things for all of Gafford's children, "[s]o it wasn't just [I.M.S.], even though he did get some special privileges because he was like my little brother... but they all got treated the same." Smith confirmed that on at least one occasion he claimed two of Gafford's children on his taxes, not just I.M.S., explaining: "I took [I.M.S.] and another one of his brothers because [Gafford] stated that she couldn't claim them on her [sic] and since I helped take care of them, that's why she allowed me to." Smith denied that he ever acted as I.M.S.'s father. He stated that he had heard nothing from Gafford for around 7 years after their dispute over the gifts he left in her bedroom. But sometime after Bruce Sears, Gafford's live-in boyfriend who fathered three 6

7 more of Gafford's children, went to prison, Gafford contacted Smith. Smith described the subsequent contacts he had with I.M.S. and his siblings. He maintained that he referred to I.M.S. as his little brother, which angered Gafford. Smith called three witnesses who supported his testimony that he never intended to serve as I.M.S.'s father. Adam Winslow, another security guard at the hospital, said Smith never referred to a son. Winslow said Smith introduced I.M.S. as "[h]is younger brother, he was kind of like unofficial big brother, big sister kind of thing." Winslow said I.M.S., for his part, never addressed Smith as his father. Annette Jackson testified that Smith had helped her with her four boys. Jackson said Smith would frequent their house and that she had a key to his house. Smith also helped by giving her money. Jackson said Smith told her at the time I.M.S. was born he was, "just going to be like a mentor or big brother to the baby." Dominique Sears (Bruce Sears' sister) also testified. Dominique said Gafford was "[m]y brother's baby's mom," and she had lived with Smith for a time. For these reasons Dominique did not wish to appear and did so only under subpoena. Dominique said she never heard Smith refer to I.M.S. as his son. Like the other witnesses, she said Smith "presented himself as a big brother." Dominique added that Gafford had never referred to or treated Smith as I.M.S.'s father. During their arguments on the numerous defenses Smith asserted, each party relied on authority from State ex rel. Secretary of SRS v. Kimbrel, 43 Kan. App. 2d 790, 231 P.3d 576 (2010), rev. denied 292 Kan. 966 (2011), as support for that party's position on how the court should apply the statutes in the Kansas Parentage Act to determine the issue of Smith's paternity of I.M.S. Counsel and the district court discussed how Kimbrel should be applied. The district court took the case under advisement and, on December 19, 2014, issued a lengthy 38-point memorandum decision. The district court conclusively held as a matter of law that "Smith is not the biological father of [I.M.S.]." It also found that the 7

8 "testimony established with little doubt... Smith is a caring and generous man." But it concluded that the "testimony of witnesses on behalf of Mr. Smith has little impact on the primary issue in this case," which the district court determined was whether the Consent was "a valid document and does it establish... Smith as the legal father." The district court accepted Smith's testimony that he had not read the Consent. It held, though, that Smith was "asking this Court to protect him from his own lack of responsibility in failure to read the document." It ruled that Smith's acknowledgment of paternity on the Consent was sufficient to "create[] a permanent Father Child relationship," and that while the "nature and extent of the relationship between... Smith and [I.M.S.] is important," it did "not affect the validity of the acknowledgment." The district court reasoned that "[a] person signing a binding document is bound by its terms in the absence of a showing of duress, coercion, fraud or mistake" but that "none of those conditions have been proven here." It held that the Consent "is a valid document and that Mr. Smith is the legal father of [I.M.S.]." It concluded that "determining... Smith to be the legal father of [I.M.S.] would be in the child's best interest." The district court implicitly denied Smith's request for a separate Ross hearing. Lastly, it indicated that its decision in the case was final and Smith could appeal its findings and orders. On May 12, 2015, DCF waived "judgment against [Smith] for support provided to [I.M.S.] for the time period of 06/2000 through 10/2006." The district court incorporated into the journal entry from the hearing all of the findings and orders contained in its December 19, 2014, memorandum decision, concluded that Smith was the parent of I.M.S., and then granted DCF judgment "for arrears in the amount of $28, for the time period of April 1, 2009 through May 2015." The district court also ordered Smith "to pay $ MONTHLY effective 06/01/2015 and continuing thereafter until further order of this Court." The district court stayed enforcement on the arrearage judgment pending appeal but did not stay the prospective support order. Smith timely appealed. 8

9 ANALYSIS Smith argues several issues on appeal, but we resolve the appeal in his favor by addressing only one of them. Smith contends that we should "reverse the trial court's orders, including support, and remand this matter for a Ross hearing," citing In re Marriage of Ross, 245 Kan. at 602, and Kimbrel. Smith argues that, on the evidence from the hearings, such a decision is dictated by the following conclusion reached by our court in Kimbrel: "First, when a man executes a voluntary acknowledgment of paternity under K.S.A a presumption of paternity arises and he is established in a permanent father-child relationship. Second, if a man successfully brings a timely action under K.S.A (e) to revoke his voluntary acknowledgment of paternity, the presumption of paternity ends by court order and he is no longer established in the permanent father-child relationship. Third, if a man does not successfully bring such a timely action, the presumption of paternity remains along with the established father-child relationship, and it is subject to challenge by genetic testing only where permitted by K.S.A (a) and Ross. Finally, if a district court determines, based on genetic testing ordered pursuant to K.S.A (a) and Ross, that clear and convincing evidence proves a man who has executed a voluntary acknowledgment of paternity under K.S.A is not the biological father of the child, the court may find the presumption of paternity is rebutted, end the father-child relationship, and deny a petition for child support." 43 Kan. App. 2d at Smith's argument to us is the same as that made to the district court: the district court should have determined that genetic testing was in I.M.S.'s best interests, and, when it declined to conduct a Ross hearing, it erred. The State also takes a similar position to the one it took in the district court. It acknowledges as follows: "This court has defined situations where paternity is presumed but may be rebutted by clear and convincing evidence" and then cites the same passage 9

10 from Kimbrel set out above. It contends that, based on that Kimbrel passage, a man who has acknowledged paternity and failed to obtain relief from the acknowledgment within one year "may have his acknowledgment revoked only [sic] if the court finds that it is in the best interest of the child and genetic testing excludes him as the possible biological father." It is clear from the record, and from its memorandum decision, that the district court read the Kimbrel passage as the attorneys argued it and, now, have briefed it to us: the only way one who has acknowledged paternity by a written Consent can overcome that Consent is, first, by showing that genetic testing is in the best interests of the child and, second, that the testing rules out the presumed father as the biological father. This reading of Kimbrel erroneously creates a universal rule. Actually, the cited holding only sets out the rule that applies to facts like those in Kimbrel. In Kimbrel, mother and Kimbrel were not married. Mother had a child and, as here, Kimbrel signed a Paternity Consent Form for Birth Registration. Two years later DCF sued Kimbrel for support. The 1-year period in which to revoke such an acknowledgment had passed. Kimbrel defended, requesting genetic testing. The guardian ad litem agreed that testing was in the child's best interests in order to know his parentage. Mother, confident that Kimbrel was the father, agreed to testing. The district court found under Ross that testing was in the child's best interests. The subsequent testing ruled out Kimbrel as the child's biological father. The district court dismissed DCF's petition. DCF appealed, resulting in the Kimbrel decision affirming the district court's dismissal of the support case and containing the passage the parties have relied on here. The problem with the parties' and the district court's reliance on the particular passage from Kimbrel is that it ignores other significant passages in Kimbrel that concern other important statutes that were also relevant to its decision. For example, and relevant 10

11 here, the Kimbrel court also noted: "The legislature clearly intended that a voluntary acknowledgment of paternity, standing alone, would establish a permanent father-child relationship without the need for a paternity action. Nevertheless, that relationship is subject to termination by a court because paternity is a rebuttable presumption under K.S.A " (Emphasis added.) 43 Kan. App. 2d at 797. We turn, then, to the proper resolution of the issues in this case. We exercise unlimited review over questions of law and a district court's conclusions of law. City of Wichita v. Denton, 296 Kan. 244, 255, 294 P.3d 207 (2013). To the extent that our analysis requires statutory interpretation, we again exercise unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). The Kansas Parentage Act (KPA), K.S.A 2015 Supp et seq., controls how the parent and child relationship is legally established. K.S.A Supp (b); K.S.A Supp Because the provisions of the Act have been relocated since Kimbrel, we will track the statutes relevant there and here referring to their new, current location. K.S.A Supp (b) provides that the relationship of "father may be established... by a voluntary acknowledgment of paternity meeting the requirements of K.S.A Supp , and amendments thereto, unless the voluntary acknowledgment has been revoked pursuant to K.S.A Supp , and amendments thereto." K.S.A Supp provides the requisites for acknowledgment of paternity forms and specifically includes forms that are authorized under K.S.A Supp a such as the Paternity Consent Form for Birth Registration relevant here. K.S.A Supp a permits the use of an acknowledgment of paternity form to add the name of the father to the birth certificate of the child of an unwed mother if both parents execute the form at the institution where the child was born. K.S.A Supp (e) permits the acknowledging father, mother, 11

12 or child to seek revocation of the acknowledgment "at any time until one year after the child's date of birth," but, if the action to revoke is brought more than 60 days after signing the acknowledgment, the party seeking revocation must show that the acknowledgment was based on fraud, duress, or material mistake of fact. K.S.A Supp (b)(1) provides, in relevant part: "An acknowledgment of paternity creates a permanent father and child relationship which can only be ended by court order. A person who wants to revoke the acknowledgment of paternity must file the request with the court before the child is one year old, unless the person was under age 18 when the acknowledgment of paternity was signed." However, revocation of the acknowledgment is not the only way to obtain a court order ending that parental relationship. K.S.A Supp (a)(4) provides that a man is presumed to be the father of a child if he has recognized in writing his paternity of that child, including recognition made in accordance with K.S.A Supp a. But K.S.A Supp (b) provides that such a presumption can be rebutted "by clear and convincing evidence" and, if a presumption has been rebutted, "the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence." Here, Smith placed his signature on the Consent immediately below text that stated: "I hereby acknowledge that I am the father of, and consent to the placing of my name as the father on the birth record of [I.M.S.]." Gafford signed her part of the Consent agreeing that Smith should be shown on I.M.S.'s birth record as the child's father. The Consent was a document that complied with the requirements of K.S.A Supp a and was authorized by K.S.A Supp Smith's written acknowledgment that he was I.M.S.'s father gave rise to a presumption of paternity regarding I.M.S. under K.S.A Supp (a)(4). Although Smith did not attempt to revoke the Consent within 1 year, both the parties and the district court readily acknowledge that DCF did not sue Smith until almost 9 years after he signed the Consent. 12

13 Nevertheless, the presumption of paternity was rebuttable by clear and convincing evidence under K.S.A Supp (b). The presumption arising from Smith's Consent is derived only from his signing of the paternity acknowledgment it contains. This is a presumption created by statute under K.S.A Supp (a)(4) and K.S.A Supp a. It is, in this case, a presumption that is not derived from facts that have any probative value as evidence of the existence of the presumed fact, i.e., actual paternity of I.M.H. See K.S.A (a). Rather, it is a presumption subject to K.S.A (b), which provides: "if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved." Both Smith and Gafford acknowledged at the hearing that each knew at the time the Consent was executed that Smith was not I.M.S.'s father. Significantly, Gafford, and perhaps even Smith, had actual knowledge from the outset that Sanders was the father, as did, apparently, DCF staff. Because both Smith and Gafford confirmed that the paternity acknowledgment in the Consent was false, Smith has, by clear and convincing evidence, successfully rebutted the presumption of paternity that statutorily arose from that executed Consent. Given the legal conclusion set forth above, the only remaining issue is the proper remedy. On appeal, Smith asks us to remand the case with directions for the district court to permit him to revoke his consent or, in the alternative, to conduct a full Ross hearing. But neither of the remedies requested by Smith is proper in this case under the facts presented and the applicable law. First, a remand to permit Smith to revoke his Consent is unnecessary because the presumption of paternity created by the Consent was necessarily 13

14 rebutted by the parties' factual stipulation and the court's legal conclusion that Smith was not the biological father. Thus, the Consent itself no longer has any evidentiary value concerning Smith's paternity of I.M.S. See K.S.A (b); In re K.R., 43 Kan. App. 2d 891, 900, 233 P.3d 746 (2010) ("[T]he proper subsection was K.S.A (b) because the facts from which the [statutory] presumption arose had little if any probative value as evidence of the presumed fact."). Moreover, the parties' stipulation and court's legal conclusion that Smith is not the biological father makes a Ross hearing the sole purpose of which is to resolve a dispute in paternity completely unnecessary. The evidentiary record reflects that Smith, by clear and convincing evidence, successfully rebutted the only presumption of paternity the State advanced, i.e., the one arising from the written acknowledgment in the Consent. Thus, the district court erred by construing the Consent as a binding legal obligation that can never be rebutted, even by stipulation of the parties and findings of fact made by the court itself. For this reason, we reverse the district court, end the father-child relationship, and deny the State's petition for support. Reversed. 14