State ex rel. Secretary of DCF v. Manson

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No. 119,134

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS, EX REL., SECRETARY, DEPARTMENT FOR CHILDREN AND FAMILIES,
and C.M., A Minor Child, by and Through the Mother and Natural Guardian NIKOLE L.
WILKINSON, and NIKOLE L. WILKINSON, Necessary Third Parties,
Appellees,

v.

TRAIG J. MANSON,
Appellant.


SYLLABUS BY THE COURT

When a man fails to revoke a voluntary acknowledgement of paternity (VAP)
form executed under K.S.A. 2018 Supp. 23-2204 within one year of a child's birth, a
permanent father and child relationship is created between the man who signed the VAP
and the child that cannot be rebutted by genetic testing.

Appeal from Shawnee District Court; LORI L. YOCKERS, judge pro tem. Opinion filed June 14,
2019. Affirmed.

A. Victoria Chundak, of The Law Firm of Tenopir and Huerter, of Topeka, for appellant.

Philip L. Goetz, contract attorney, Kansas Department for Children and Families, for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.

ARNOLD-BURGER, J.: When a man fails to revoke a voluntary acknowledgement
of paternity (VAP) form executed under K.S.A. 2018 Supp. 23-2204 within one year of a
child's birth, a permanent father and child relationship is created between the man who
signed the VAP and the child that cannot be rebutted by genetic testing.
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Traig J. Manson executed a VAP acknowledging C.M. as his son. When C.M.'s
mother applied for State benefits, the State requested child support from Manson.
Manson asked the district court for genetic testing. The district court held a hearing and
determined that genetic testing was not in C.M.'s best interests. Manson appealed. The
district court correctly denied Manson's request for genetic testing. Because Manson did
not revoke the VAP within one year of C.M.'s birth, any genetic test results would be
immaterial to whether Manson was C.M.'s father. The VAP created a permanent father
and child relationship and Manson is required to support C.M. regardless of whether they
are biologically related.

The decision of the district court is affirmed.

FACTUAL AND PROCEDURAL HISTORY

In September 2016, the Secretary of the Kansas Department for Children and
Families (DCF) filed a petition for support alleging that Manson is C.M.'s father and
owes him child support. In response to the petition, Manson said that he was not C.M.'s
father. He attached the results of a DNA test to his response. Manson added that he was
only involved in C.M.'s life until C.M. was one year old, at which time Manson received
the DNA results. Additionally, C.M.'s mother, Nikole Wilkinson, was in a relationship
with a different man whom C.M. called "Dad."

The district court conducted a Ross hearing to determine whether genetic testing
was in C.M.'s best interests. See In re Marriage of Ross, 245 Kan. 591, 602, 783 P.2d 331
(1989) ("Prior to ordering a blood test to determine whether the presumed parent is the
biological parent, the district court must consider the best interests of the child, including
physical, mental, and emotional needs."). C.M. was two years old at the time of the
hearing.

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At the hearing, Manson explained that he allowed his name to be listed on C.M.'s
birth certificate because at the time he did believe he was the father. However, while at
the hospital Manson completed a genetic test from Walgreens which showed that he was
not C.M.'s father. Because Wilkinson told him that she had nowhere to live, Manson
allowed her and C.M. to live with him for about one year. During this time, Manson was
not financially responsible for the child, although he sometimes helped out. Once
Wilkinson moved out, his relationship with C.M. stopped. He argued that C.M. did not
know who he was, and that he had not seen C.M. since Wilkinson moved out. The only
reason this case arose, Manson argued, was because Wilkinson applied for welfare
benefits and listed him as the father of C.M. even though she knew he was not the father.

Wilkinson told the court that she had information on another potential father,
although her knowledge was limited to the man's name and his last known location. And
Wilkinson mentioned yet another potential father, but she did not know his name.
Wilkinson told the court that she had no problem with Manson removing his name from
the birth certificate.

The guardian ad litem argued that Manson and C.M. had a relationship, and he did
not think that disturbing the presumption of paternity was in C.M.'s best interests. The
guardian ad litem noted that Wilkinson received state services. He asserted that it was in
C.M.'s best interests that Manson be considered his father so that Manson would be
required to pay child support. The guardian ad litem also stated that it would violate
public policy to disturb the presumption of paternity because it would bastardize C.M.

The district court acknowledged the State's argument that it needed someone to
pay child support because Wilkinson was requesting State services. The court discounted
the genetic test because it was not admissible in court. The court held that once Manson
signed the VAP, he became C.M.'s father. It added that Manson had one year to rescind
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his signature, but he failed to do so. The court held that it was in C.M.'s best interests to
disallow genetic testing and to maintain Manson as C.M.'s legal father.

Manson appealed.

ANALYSIS

Manson agrees on appeal that the district court was not required to hold a Ross
hearing in this case. But he argues that the district court abused its discretion in
determining that genetic testing was not in C.M.'s best interests. We agree that the district
court did not have to hold a Ross hearing, but its decision to deny genetic testing was
correct. Our decision is guided by the Kansas statutes. Interpretation of a statute is a
question of law over which appellate courts have unlimited review. Neighbor v. Westar
Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

"An acknowledgement of paternity creates a permanent father and child
relationship which can only be ended by court order. A person who wants to revoke the
acknowledgement of paternity must file the request with the court before the child is one
year old . . . ." K.S.A. 2018 Supp. 23-2204(b)(1). Manson executed a VAP to put his
name on C.M.'s birth certificate, and he did not rescind the VAP within one year. This
single fact determines the outcome of this case. The Kansas Supreme Court discussed
VAP's and their legal effects in State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 392
P.3d 68 (2017). Thus, we will examine Smith.

The case began much like this one. The Secretary of Social and Rehabilitation
Services (now DCF) filed a petition for support against Alonzo Smith in 2009 on behalf
of I.M.S., a minor child. No one in the case asserted that Smith was I.M.S.'s biological
father, but he did sign a VAP at the hospital shortly after I.M.S.'s birth in 2000. The VAP
formed the sole basis for the State's claims. Smith denied paternity, asserted that another
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man was I.M.S.'s father, and requested genetic testing to prove the other man's paternity.
Smith also sought to revoke the VAP. The district court held that Smith was I.M.S.'s
father based on the VAP. The district court denied Smith's motion to revoke the VAP as
time-barred because Smith failed to revoke the VAP within one year. Finally, the district
court held that it was in I.M.S.'s best interests to find that Smith was I.M.S.'s legal father.

The Court of Appeals reversed the district court. State ex rel. Secretary of DCF v.
Smith, No. 114,306, 2016 WL 3031277, at *9 (Kan. App. 2016) (unpublished opinion).
The court acknowledged the one-year limitation on revocation of VAP's imposed by
K.S.A. 2015 Supp. 23-2204. But the court noted that K.S.A. 2015 Supp. 23-2208(a)(4)
provided that a VAP merely creates a presumption of paternity that the signer could rebut
by clear and convincing evidence. The Court of Appeals concluded that because both
Smith and I.M.S.'s mother confirmed that Smith was not I.M.S.'s father, Smith
successfully rebutted, by clear and convincing evidence, the presumption of paternity that
the VAP created. In other words, "the district court erred by construing the [VAP] 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." 2016 WL 3031277, at *9.

The Kansas Supreme Court reversed the Court of Appeals. The court noted the
apparent conflict between K.S.A. 2015 Supp. 23-2204, which creates a permanent parent
child relationship, and K.S.A. 2015 Supp. 23-2208(a)(4), which "merely created a
rebuttable presumption of such a relationship." Smith, 306 Kan. at 57. To resolve the
"arguably conflicting statutes" the court "consider[ed] the provisions of the entire act with
a view toward reconciling and bringing the various provisions into harmony." 306 Kan. at
57. The court found that the Legislature clearly "intended to impose strict limitations on
the two individuals who sign the VAP form" and that "[i]t seems contrary to this intent to
allow either of those parties the ability to sidestep the VAP's terms—to effectively seek
its revocation—by rebutting a presumption or raising a conflicting presumption, such as
would arise through genetic testing." 306 Kan. at 57-58.
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Although the court chose not to directly address whether a Ross hearing was
necessary to determine whether genetic testing was in the best interests of the child, the
court certainly suggested that it was unnecessary. 306 Kan. at 59. The court's comment
that a party cannot "sidestep the VAP's terms" through genetic testing supports this
conclusion. 306 Kan. at 57.

Based on Smith, the district court did not err in denying Manson's request for
genetic testing. Even if the test results showed that Manson was not C.M.'s biological
father, Manson would still be obligated to pay child support because the VAP created a
permanent father and child relationship. 306 Kan. 40, Syl. ¶ 3.

Note that a Ross hearing to determine the best interests of the child may be
necessary when a man not subject to a VAP is seeking to establish paternity over a child
that another man has voluntarily acknowledged paternity over. The Kansas Supreme
Court explained:

"Others acting on behalf of the child, including a biological father, could not use
K.S.A. 2016 Supp. 23-2209(e) to attack the validity of the VAP, and that subsection's 1-
year limitation period would not apply. Moreover, that person is not a party to the VAP,
which means that person has not agreed to the VAP's terms, including the term creating
the permanent relationship. Those statutes do not foreclose others acting on behalf of the
child using other procedures and seeking other remedies available under the Kansas
Parentage Act, including raising a competing presumption under K.S.A. 2016 Supp. 23-
2208." 306 Kan. at 59.

That is not the situation here. No one here, other than Manson, is trying to disturb the
permanent father and child relationship created by the VAP. Manson bound himself to
the commitments of fatherhood when he signed the VAP. By failing to revoke it within
the one-year statutory period he now must support the child.

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If a district court reaches the correct result, we will uphold its decision even
though it relied on the wrong ground or assigned erroneous reasons for its decision. See
Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873 (2015). Even though it held an
unnecessary Ross hearing, the district court correctly rejected Manson's request for
genetic testing. As a result, its decision is affirmed.

Affirmed.