IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 96,003
IN THE MATTER OF THE ADOPTION OF X.J.A.,
A MINOR CHILD BORN 12-21-2003.
SYLLABUS BY THE COURT
1. Consent by the natural parents to the adoption of their child, where required by statute, is regarded as an essential requisite to the court's jurisdiction to render a valid decree of adoption.
2. Whether jurisdiction exists is a question of law over which an appellate court exercises unlimited review.
3. The purpose and necessity of a written consent to adopt is to ensure that the natural parent freely and voluntarily consents to the adoption.
4. The acknowledgment of a written consent to adopt serves as prima facie evidence of the validity of the consent, the identity of the signer, and that the consent was freely and voluntarily given.
5. The term "prima facie" is defined, among other things, as sufficient to establish a fact or raise a presumption unless disproved or rebutted.
6. In an adoption, absent prima facie proof through acknowledgment, the identity of the signer of the adoption consent, as well as the adoption consent's validity and voluntariness, may be met by the adoptive parents through alternate prima facie evidence.
7. Under the facts of this case, the district court erred in shifting the burden of proof to the natural parent before the adoptive parents had established the functional equivalent of acknowledgment through alternate prima facie evidence.
8. A district court's findings regarding the voluntariness of a consent to adopt are reviewed by an appellate court under a substantial competent evidence standard.
9. The essential elements of a common-law marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent to the marriage between the parties.
10. The burden of proving a common-law or consensual marriage rests upon the party asserting it.
Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 621, 142 P.3d 327 (2006). Appeal from Ford district court; VAN Z. HAMPTON, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed in part and remanded with directions. Opinion filed September 7, 2007.
J. Scott Koksal, of Lindner & Marquez, of Garden City, argued the cause and was on the brief for appellant natural mother.
Glenn I. Kerbs, of Dodge City, argued the cause and was on the brief for appellees adoptive parents.
The opinion of the court was delivered by
NUSS, J.: This case primarily requires us to determine the validity of a natural mother's written consent to adoption of her newborn child. Her purported consent was later acknowledged outside her presence by a notary public. The district court held that the adoptive parents substantially complied with the requirements of the consent statute, K.S.A. 59-2114, approved the consent and adoption, and terminated the natural mother's parental rights. The Court of Appeals reversed because of the 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 parents).
The issues on appeal and our accompanying holdings are as follows:
1. Did the district court err in applying the doctrine of "substantial compliance" to the statute governing written consent for adoption, K.S.A. 59-2114? No.
2. Did substantial competent evidence support the district court's finding that Mother failed to establish that her consent was involuntarily given? Unnecessary to address.
3. Did substantial competent evidence support the district court's finding that the adoptive parents were in a common-law marriage, thus providing the court jurisdiction to grant a decree of adoption? Yes.
Nevertheless, we reverse the Court of Appeals and remand to the district court for further proceedings.
FACTS
A.A. (Mother) was born in Mexico City, Mexico, in early 1979. She moved to the United States with her family when she was 10 years old. Mother attended school in this country until approximately 1997, but did not complete high school or obtain a GED.
In March or April 2003, 24-year-old Mother learned she was pregnant. At the time, she was living in a trailer in Garden City, Kansas, with J.S. (Father), the biological father, and G.P.A., her 13-month-old daughter from a previous relationship. Shortly after Father learned she was pregnant, he moved out. Two months later, Mother was evicted, so she and her daughter moved in with her neighbor Guadalupe.
Mother allegedly told Guadalupe on two separate occasions that she desired an abortion. Guadalupe offered to help her so that she would not have to abort the child.
When Mother was 5 or 6 months pregnant, she met Guadalupe's sister, M.A., and M.A.'s companion, E.M., who had lived together for 14 years. Although they wanted children, M.A. had been unable to conceive. According to M.A., Mother called and asked if M.A. would adopt Mother's baby because she did not know how she would care for two children. M.A. later discussed the possible adoption with Mother in Guadalupe's home. When Mother was 7 or 8 months pregnant, she allegedly told Guadalupe, "Now, I'm going to give the baby to [M.A.]." M.A. and E.M. later consulted an adoption attorney, David Snapp.
Mother continued living in Guadalupe's home until December 2003. On December 20, Guadalupe, her brother Isaac, and three friends took Mother to the Garden City hospital when she went into labor. Both Guadalupe and M.A. stayed with Mother during labor. On December 21, in M.A.'s presence, Mother gave birth to a girl whom M.A. and E.M. named X.J.A.
On December 23, Guadalupe picked Mother up from the hospital. That same day, M.A. and E.M. signed a Petition for Adoption in attorney Snapp's office and obtained from him a form entitled Consent to Adoption of Minor Child. The girl remained in the hospital for 3 more days due to health concerns. During this time, Mother visited her daily and received counseling and education for new mothers.
On December 24, Mother signed the adoption consent form presented by M.A. Among other things, the form states: "I hereby consent and agree to the adoption of [X.J.A.] by [E.M.] and [M.A.] I have read and I understand the above consent and I am signing as my free and voluntary act."
When M.A. returned the form to Snapp in Dodge City that same day, he reminded her that Mother's signature required acknowledgment. She then took the consent to a notary acquaintance in Garden City who had prepared her tax returns. According to M.A., she told the notary "all that happened." After M.A. complied with the notary's request to see the baby and accepted congratulations, the notary "notarized the paper." Mother was not present and there is no evidence that the notary knew her. The preprinted acknowledgment is also dated December 24, 2003, and states, in relevant part:
"I, a notarial officer in and for the County [Finney] and State aforesaid, certify that [Mother], whose name is subscribed to the above and foregoing consent, appeared before me in person and duly acknowledged execution of the above consent and duly acknowledged that the statements made in the foregoing consent are true."
On December 26, X.J.A. was discharged from the hospital; M.A. and E.M. were present. Although the girl was discharged to Mother, she gave the girl to M.A. as they prepared to leave the hospital. X.J.A. went home to Dodge City with M.A. and E.M. while Mother went to Guadalupe's residence in Garden City. M.A. and E.M. agreed to let Mother see X.J.A. each weekend and indeed later made multiple trips to Garden City for this purpose.
Shortly after X.J.A. was born, Mother enrolled her in the Women Infants Child (WIC) program, a food assistance program in which Mother participated with her other daughter. Mother provided items from the program to M.A. Mother also obtained health insurance for X.J.A., and took her to two medical appointments for vaccinations.
On December 29, Snapp filed a petition for adoption, attaching a copy of Mother's purported consent from 5 days earlier. An affidavit for publication service was filed in January 2004, and a hearing on the petition was scheduled for February 24, 2004.
In February 2004, Mother traveled from Garden City to Dodge City where she met with Snapp and M.A. Mother answered questions about herself and Father. According to M.A., Mother communicated with Snapp in English.
In March 2004, the district court conducted a fitness hearing for M.A. and E.M. After hearing evidence, the court concluded that they were "fit and proper persons to take temporary custody and provide care and support of the minor child, [X.J.A.]."
According to Mother, when M.A. and E.M. stopped allowing her to visit X.J.A. in May 2004, she went to their home in Dodge City to ask for her daughter. Police were called and the adoptive parents gave the police documents showing that an adoption proceeding had commenced. E.M. later testified that this was the first time he knew there was a problem.
On October 19, 2004, Mother filed a motion to withdraw consent to adopt. In the motion, she admitted that she signed "something" but did not admit to signing anything she believed to be a consent to adopt. Nor did she admit to freely and voluntarily giving her consent to the adoption of X.J.A.
In July 2005, after hearing arguments, the district court denied Mother's motion for summary judgment. The court later found, among other things, that the adoptive parents had the burden of proving Mother signed the consent and if they met this burden, the burden shifted to Mother to establish the consent was not freely and voluntarily given.
Trial occurred in November 2005, with 16 witnesses testifying. Consistent with the court's prior ruling, the adoptive parents began and presented testimony from their attorney's assistant who essentially obtained writing exemplars from Mother and provided them to forensic document examiner, Barbara Downer. Downer testified that in her expert opinion, the signature on the consent form was Mother's.
Based on this initial testimony, the district court ruled that the adoptive parents established their prima facie case that Mother's signature appeared on the consent and that the burden then shifted to Mother to rebut this prima facie evidence. After Mother presented the testimony of her fiancé, Michael Ibarra, the court found that evidence of her signature had not been rebutted. Mother then proceeded with other evidence and attempted to meet her burden that the consent was involuntary.
Conflicting evidence was presented as to whether Mother ultimately agreed to the adoption. During trial, both Mother and M.A. testified through an interpreter. Under direct examination by her attorney, Mother admitted signing a document on December 24:
"Attorney: Do you know if that's your signature?
"Mother: Yes, it's mine.
"Attorney: You're sure you signed that document?
"Mother: I don't remember signing it, but that signature is mine."
In addition to admitting her signature, Mother admitted that she filled in the consent's blanks for her age, place and date of birth, and the day she signed. She testified, however, that she did not know what the document was.
Mother denied that she ever told Guadalupe's family that she would give up the child. Rather, she believed that M.A. and E.M. were simply going to help her take care of the new baby; she did not believe they were going to keep X.J.A. permanently. In support, Mother asserted that she told a nurse at the hospital that the baby was not being given up for adoption.
Mother testified that she signed a document in a car outside of Guadalupe's sister Sylvia's house. She did not understand the document and she felt pressured into signing it. She believed that she was signing something "[s]o, that there would be difficulties to take the baby back." Mother also testified that when she met with Snapp in Dodge City, she did not know the purpose of the visit. Nevertheless, she did not question why she was visiting M.A.'s and E.M.'s attorney.
M.A.'s version of events was quite different. She denied that Mother was in a car when she signed the consent form. Rather, M.A. asserted that she met with Mother at M.A.'s sister Sylvia's house, where she told Mother to read and sign the form. Mother read it slowly. When she finished reading the form, Mother asked for a pen, filled in the blanks, signed and gave it back to M.A. Mother did not ask any questions.
According to M.A., Mother signed the form between 7 and 8 p.m. in the presence of M.A. and M.A.'s family including Guadalupe, Sylvia, Isaac, and their mother. M.A. believed Mother "knew what she was signing" and understood the content of the consent form "because when she was pregnant she told me that she was going to give her [X.J.A.] to me." M.A. testified that she also had earlier observed Mother speak English and fill out the hospital papers in English. To M.A.'s knowledge, no one ever put pressure on Mother to sign the consent.
Like her sister M.A., Guadalupe contradicted Mother's assertion that the consent was signed in the backseat of a car. She stated that the consent was signed at Sylvia's house in front of several witnesses. When asked if she had any reason to believe that Mother did not understand that E.M. and M.A. were going to adopt the baby, Guadalupe said, "I never thought that, no. It appeared to me that it was all right with her."
Similarly, M.A.'s other sister, Sylvia, discussed Mother's ability to read and understand English. Sylvia testified that Mother did not ask any questions about the consent form "because she knows how to read English very well. And she has read letters for me, and she's interpreted them [from English to Spanish]."
M.A.'s brother Isaac testified that Mother told him she was contemplating abortion. When asked about Mother's statement that she does not speak or read English, Isaac stated, "she understands. And, she talks, and she writes. . . . and [on one occasion] she served as my interpreter." Concerning the consent form, he testified that Mother filled in the blanks in his presence. She did not ask any questions about it because based upon his experience with her, "she knows very well to read and to write English." He confirmed that she read the consent, asked for a pencil, and signed.
M.A.'s companion, E.M., testified that Mother called M.A. to tell her that they could adopt her child. The two later drove to Garden City from their home in Dodge City to discuss the details with Mother. After X.J.A. was born, E.M. did not believe anything had changed because Mother had previously told M.A. they could adopt the child.
Snapp testified about his communication with Mother in early 2004 in his office. According to Snapp, he asked for answers to questions contained in a state form concerning background information for a child being adopted. He recorded her responses in English. These responses include the medical history of the child; the genetic, medical, and social history of Mother, including her mother's diabetes and her death from childbirth complications; and the genetic, medical, and social history of Father, including his birthdate and some employment history. Snapp talked to Mother entirely in English. She did not give him any reason to believe that she did not understand why they were meeting, what she was doing, and the consequences of her actions.
The district court issued an 11-page memorandum decision the following month. After confirming it had found that the adoptive parents had demonstrated Mother's signature on the consent, it also found that the signature constituted substantial compliance with the statutory requirement for an attested signature and that the burden of proof shifted to Mother:
"2. The evidence presented by Petitioners establishes [Mother's] signature on the Consent to Adoption (even though not signed in the presence of a notary public) [and] constitutes substantial compliance with the statutory requirement for an attested signature, which satisfies the requirement of proof that the natural mother did consent to the adoption of the child herein, and the burden shifts to the natural mother to show that the consent was not freely and voluntarily given." (Emphasis added.)
The court further found that Mother did understand the consent that she was signing on December 24:
"18. . . . [T]he evidence established the fact that the consent form was discussed and reviewed at the home of [Sylvia] Adame before [Mother] signed it (contrary to [Mother's] testimony that she signed the form in the back seat of a car and did not know what she was signing)." (Emphasis added.)
In its conclusions of law, the court set forth the purpose of the notarized signature on a consent form:
"7. The provisions of K.S.A. 53-501 include requirements for attesting to signatures, for the purpose of proving the signature appearing on the document is in fact that of the person who is purportedly signing the document, but the notarized signature provides only a prima facie proof that the person who is identified on the document is the one who in fact signed it for the purpose asserted in court." (Emphasis added.)
The court further concluded as a matter of law:
"8. It 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." (Emphasis added.)
The court concluded that Mother had failed to meet her burden and held that she voluntarily and without coercion signed the adoption consent form for the purpose of effecting the adoption of X.J.A. It therefore granted parental rights to the adoptive parents, terminated Mother's rights, and changed the girl's name.
The Court of Appeals held that the correct inquiry was not whether Mother's consent was in substantial compliance with Kansas adoption statutes, but rather with the Uniform Law on Notarial Acts, K.S.A. 53-501 et. seq. It declared that because there was no substantial compliance with that act, the statutory burden of proof was unconstitutionally shifted to the Mother to demonstrate the consent was not given freely and voluntarily.
"[T]he parent's statutorily imposed burden is to refute the prima facie case for voluntariness established by the valid acknowledgment. However, we do not believe that an acknowledgment which does not substantially comply with the law of notarial acts can establish the requisite prima facie case. Without the prima facie showing via a substantially valid acknowledgment, the parent must, in the first instance, bear the burden of proving that his or her fundamental liberty interest should not be taken. Pursuant to the rationale of In re J.L., that burden shifting would violate the parent's right to procedural due process." 36 Kan. App. 2d at 629-30.
Accordingly, the Court of Appeals reversed the district court without remand.
ANALYSIS
Issue 1: The district court did not err in applying the doctrine of "substantial compliance" to the statute governing written consent for adoption, K.S.A. 59-2114.
The adoptive parents argue that they substantially complied with the statutory requirements for a natural parent's consent to adoption. Mother essentially responds that the lack of a proper acknowledgment renders her purported consent void ab initio.
Consent by the natural parents to the adoption of their child, where required by statute, is regarded as an essential requisite to the court's jurisdiction to render a valid decree of adoption. In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981). Whether jurisdiction exists is a question of law over which we exercise unlimited review. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 830, 104 P.3d 378 (2005). Additionally, resolution of this issue necessitates statutory interpretation over which this court also exercises unlimited review. 278 Kan. at 819.
Our analysis starts with the adoption consent statute, K.S.A. 59-2114(a), which provides:
"Consent shall be in writing and shall be acknowledged before a judge of a court of record or before an officer authorized by law to take acknowledgments. If consent is acknowledged before a judge of a court of record, it shall be the duty of the court to advise the consenting person of the consequences of the consent. A consent is final when executed, unless the consenting party, prior to final decree of adoption, alleges and proves by clear and convincing evidence that the consent was not freely and voluntarily given. The burden of proving the consent was not freely and voluntarily given shall rest with the consenting party." (Emphasis added.)
"Acknowledgment" is defined in relevant part in the Uniform Law on Notarial Acts as "[a] declaration by a person that the person has executed an instrument for the purposes stated therein." K.S.A. 53-502(b).
The act further provides that 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." (Emphasis added.) K.S.A. 53-503(a).
"Satisfactory evidence" is defined as follows:
"A notarial officer has satisfactory evidence that a person is the person whose true signature is on a document if that person is (1) personally known to the notarial officer, (2) identified upon the oath or affirmation of a credible witness personally known to the notarial officer or (3) identified on the basis of identification documents." K.S.A. 53-503(f).
A notarial act must be evidenced by a signed and dated certificate. K.S.A. 53-508(a). Under Kansas' approved short form certificate of notarial acts, an acknowledgment in an individual capacity may simply provide as follows: "This instrument was acknowledged before me. . . ." K.S.A. 53-509.
It is undisputed that the notary public did not fulfill her obligations under Kansas law. Nor did she comply with the representations made in her certificate of acknowledgment: among other things, Mother did not personally appear nor did she acknowledge her execution and the truth of the statements in her consent, i.e., reading and understanding and signing freely and voluntarily.
We have stated that the provisions of the adoption statutes must be strictly construed in favor of maintaining the rights of natural parents in controversies involving termination of the parent-child relation. In re Adoption of Trent, 229 Kan. at 228. We have also stated that a natural parent's right to the custody of his or her child is a fundamental right protected by the Fourteenth Amendment to the United States Constitution. In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994).
Nevertheless, this court has not required strict compliance with adoption statutes but has followed the doctrine of substantial compliance. In 1896 we stated: "Where the adoption of children is regulated by statute, as in . . . Kansas, rights of inheritance can only be acquired through adoption by a substantial compliance with the provisions of the statute." Renz v. Drury, 57 Kan. 84, Syl. ¶ 2, 45 Pac. 71 (1896). There we held there was "no evidence" of compliance with the statute. 57 Kan. at 89. We have defined the doctrine as "compliance in respect to the essential matters necessary to assure every reasonable objective of the statute." Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387 (2000).
In In re Adoption of Trent, 229 Kan. 224, this court applied the doctrine to overrule the district court and the Court of Appeals. There, the issue was whether the natural mother's written consent to adoption was valid where it was acknowledged in her presence in Missouri by a Kansas notary public without authority to act beyond the boundaries of Kansas. 229 Kan. at 225-27. The district court held that although the consent was voluntarily given, it was nevertheless invalid because the acknowledgment was not executed according to the law. The Court of Appeals agreed, stating that the defect in the acknowledgment was not a mere irregularity and the doctrine of substantial compliance therefore could not be applied.
In a 5-2 decision, the Trent court held that the consent was in substantial compliance with K.S.A. 59-2102 which, similar to its successor statute, K.S.A. 59-2114, stated that "the written consent shall be acknowledged before an officer authorized by law to take acknowledgments." (Emphasis added.) After determining substantial compliance and finding that the record left "no question that the written consents were freely and voluntarily given," 229 Kan. at 229, we stated:
"A consent to adoption executed in substantial compliance with statutory requirements is valid under K.S.A. 59-2102 in view of subsequent judicial proceedings which were instituted by the natural mother and which afforded her a full hearing upon all issues bearing upon voluntariness of her consent." (Emphasis added.) 229 Kan. 224, Syl. ¶ 4.
Thirteen years later in In re Adoption of J.H.G., 254 Kan. 780, 869 P.2d 640 (1994), a now unanimous court appeared to go even further than in Trent. In this case which was not addressed by the Court of Appeals, the natural mother argued that deficiencies in both the adoption petition and its required accompanying documents divested the district court of jurisdiction to grant the adoption. 254 Kan. at 793-99. Specifically, the petition failed to state as required by K.S.A. 1993 Supp. 59-2128: (1) the time of the child's birth; (2) the dates of birth of the child's parents; (3) the facts relied upon as eliminating the necessity for the natural father's consent since his consent was not obtained; (4) information required by the Uniform Child Custody Jurisdiction Act (UCCJA), e.g., the child's present address and where he or she had lived within the past 5 years; and (5) a statement concerning whether the Interstate Compact on the Placement of Children or the Indian Child Welfare Act (ICWA) applied. The missing documents required to accompany the adoption petition were the child's and natural parents' background information pursuant to K.S.A. 1993 Supp. 59-2130 and the detailed accounting of the expenses paid by the adoptive parents pursuant to K.S.A. 1993 Supp. 59-2121. 254 Kan. at 795-96.
The J.H.G. court acknowledged that "K.S.A. 1993 Supp. 59-2128 does use mandatory language ('shall')." See subsection (a) ("A petition for adoption . . . shall state"); see also subsection (f) ("[T]he background information required by K.S.A. 59-2130, and . . . the accounting required by K.S.A. 59-2121 . . . shall be filed with the petition for adoption."). (Emphasis added.) Nevertheless, this court held "we are unable to find that the absence of one or more of those requirements necessarily divests a court of jurisdiction to grant a petition for adoption." 254 Kan. at 796-97. The J.H.G. court applied the doctrine of substantial compliance and the holding of Trent to uphold the adoption.
In applying the doctrine and Trent's holding, the J.H.G. court allowed the adoptive parents to meet a number of these statutory requirements with other information contained in the pleadings. "Where a document filed contemporaneously with a petition for adoption includes the requisite information, though that information is not included in the petition for adoption itself, a party has substantially complied with the requirements of K.S.A. 1993 Supp. 59-2128." 254 Kan. at 797. For example, the court noted that the consent to adoption filed with the petition stated the time of the child's birth and the natural mother's date of birth; the petition itself provided the child's date of birth and stated that the natural father's whereabouts were unknown; and the consent of the natural mother's husband, while not the natural father, was also filed with the adoption petition.
Concerning the adoptive parents' failure to attach an accounting to the adoption petition, the J.H.G. court acknowledged that what is now K.S.A. 59-2128(f) and K.S.A. 59-2121(b) use "shall." K.S.A. 59-2121(b) states: "In an action for adoption, a detailed accounting of all consideration given, or to be given, and all disbursements made, or to be made, in connection with the adoption and the placement for adoption shall accompany the petition for adoption." (Emphasis added.) Nevertheless, the court held that the later filing of the accounting with the decree of adoption "appears to be substantial compliance with K.S.A. 1993 Supp. 59-2121." 254 Kan. at 797. The court apparently believed that because "[t]he purpose of requiring an accounting under 59-2121 in part is to [ensure] that the adoptive parents are not improperly paying more consideration to the natural parents than is permitted by statute," that purpose had been served because the accounting "was available to the trial court before the adoption decree was finalized." 254 Kan. at 797.
Concerning the failure to attach a statement of background information to the petition, the J.H.G. court effectively acknowledged that what is now K.S.A. 59-2128(f) and K.S.A. 59-2130(a) also use "shall." K.S.A. 59-2130(a) states: "The following information shall be filed with the petition . . . (1) A complete written genetic, medical and social history of the child and the parents . . . ." The court found this failure "troubling" because "[t]he purpose or necessity of including this information in the petition for adoption is to benefit the child as it is useful in medical care and treatment." 254 Kan. at 798. Some of the missing information admittedly was contained in the home study filed contemporaneously with the adoption petition, but the court observed that none came from the natural parents. Nevertheless, the court upheld the district court's finding of substantial compliance with this requirement because it was supported by substantial competent ev