In Re the Adoption of Baby Girl H.

739 P.2d 1, 12 Kan. App. 2d 223, 1987 Kan. App. LEXIS 1061

• Court: Court of Appeals of Kansas
• Decided: June 18, 1987
• Docket: 59,584
• Status: Published

Opinions

Abbott, C.J.:

L.H., the natural mother of Baby Girl H, appeals from the trial court’s order decreeing the adoption of Baby Girl H by Darrol and Deborah Thompson.

L.H. discussed with her doctor the possibility of placing her unborn child for adoption. The doctor stated he knew of a couple wishing to adopt a child, and suggested she meet with his attorney, Thomas Toepfer. She met with Toepfer, and claims he advised her of her “legal rights,” and arranged for the Thompsons to adopt the unborn child.

L.H. alleges she was placed on a drug to induce labor and delivered Baby Girl H at 11:52 a.m. on April 1, 1986. She also alleges that Thomas L. Toepfer and Judge Tom Scott appeared in her room during the hospital’s lunch hour, shortly after the birth of the child, and obtained her consent to the Thompsons adopting Baby Girl H.

The Thompsons commenced adoption proceedings, and L.H. then attempted to set the consent aside. The trial judge granted summary judgment, holding the consent was irrevocable under K.S.A. 1986 Supp. 59-2102(c), dismissed L.H.’s answer, and granted a decree of adoption to Thompsons.

L.H. contends that because she was under the effects of medication and pain associated with the birth, she did not freely and voluntarily consent to the adoption. She also contends a conflict of interest existed since Toepfer represented her, her doctor, and the Thompsons, thus voiding her consent. She also argues the consent portion of 59-2102(c) is unconstitutional for a number of reasons that will be more fully set out when we discuss those issues later in this opinion.

L.H. first contends the trial court erred in granting summary judgment because Thomas Toepfer’s conduct as an attorney was unethical, and that this vitiated her consent. This argument is premised on the assumption that she can attempt to revoke her consent on some basis other than a void consent. Obviously, it is possible to have a void consent that is acknowledged before a judge of a court of record. Would anyone doubt that a consent obtained at gunpoint by a judge of a court of record would be held void and of no effect? If so, then a consent obtained by fraud and duress should also be void. The issue L.H. raises on this point, however, is limited to whether she can attempt to revoke the consent because of the alleged conduct of Toepfer.

In the appeal of In re Adoption of Irons, 235 Kan. 540, 549, 684 P.2d 332 (1984), the Supreme Court stated:

“In adoption cases, such as this, the attorney can represent both the natural and adoptive parents. The attorney owes both sets of parents a duty to provide good faith advice concerning the legal consequences of their acts. This multiple representation can continue so long as no conflict develops between the parties. However, if a conflict occurs, the attorney must choose which conflicting interest he or she will represent. The best way to apprise the parties of the choice is by use of a frank discussion before representation commences, as was done by Ms. Klarfeld [attorney]. Since Lori Klarfeld’s relationship with Anjanette Irons [natural mother] was confidential, she owed Anjanette the duty of complete legal advice concerning the nature and consequences of adoption.”

In this case, the record does not indicate, nor does L.H.’s answer allege, that Toepfer did not inform her that he represented the adoptive parents or that he failed to provide legal advice to her. In fact, her answer states that Toepfer “advised her of her legal rights relative to the proceedings.” Toepfer initially represented both parties. However, he did not represent L.H. after the consent was signed and withdrew as attorney for the adoptive parents four days after L.H. filed her answer. Thus, in compliance with Irons, Toepfer did not represent either party after the conflict became apparent. The record does not demonstrate any conduct by Toepfer that could vitiate L.H.’s consent.

L.H. next argues that the consent is revocable because neither the judge who acknowledged the consent nor the consent form itself sufficiently explained to her the consequences of her consenting to the adoption.

Kansas statutes regarding adoption do not expressly indicate what should be contained in a consent form, nor do they indicate whether the judge should examine the consenting parent in order to insure that the parent understands the effect of the consent. L.H. presumes that the acknowledging judge made no effort to determine whether the consent was freely and voluntarily given. However, a record was not made when the consent was obtained. Nothing in the record on appeal indicates what transpired. L.H. has the burden of showing error. It was noted in In re Adoption of Chance, 4 Kan. App. 2d 576, 583, 609 P.2d 232, rev. denied 228 Kan. 806 (1980), that “[t]o be free and voluntary, a consent must be to all the legal consequences of the adoption with an understanding of the meaning and effect thereof. [Citations omitted.]” L.H. has failed to show error on this point.

We have examined the consent to adoption and compared it to the consent to adoption approved by the trial court in Trent and see no significant difference in the two. It is, however, significant that in Trent the Supreme Court was reviewing the trial court’s finding that the consent was freely and voluntarily given. The trial court had also considered oral evidence. Thus, the scope of review was entirely different from what we are faced with in the present case.

L.H. also contends that the legislative intent of K.S.A. 59-2102, as amended in 1968, be construed in pari materia with K.S.A. 38-127 and 38-128 to include the same requirements. They are as follows:

“The relinquishment provided by this act shall be signed and acknowledged before the court by the person or persons by whom it is executed and shall sufficiently identify the child or children so relinquished. It shall be the duty of the court, in all such cases of relinquishment so executed, to advise the parent or parents or other persons in loco parentis of such children of the consequences of the act of relinquishment.” K.S.A. 38-127.

“In all cases where a parent or person in loco parentis has relinquished and surrendered his child to the department pursuant to this act, and the judge before whom the relinquishment was executed shall have stated on the relinquishment document that the parent or the person in loco parentis had been advised by him of his rights and that the act of the parent or person in loco parentis was voluntary, all the rights of the parent or person in loco parentis shall thereupon be terminated, including the right to receive notice in a subsequent adoption proceeding involving said child.” K.S.A. 38-128.

The statutes govern the relinquishment of a child to the Department of Social and Rehabilitation Services. The two statutes were adopted during the same session. An article by then Sen. Robert Bennett states, in part:

“Two acts were passed in the last session of the legislature with reference to adoption. Under one [K.S.A. 38-127 and 38-128] a parent or parents or a person in loco parentis (an individual organization vested with the right to consent to adoption) may surrender a child to the state department of social welfare and if that department accepts the child in writing, the department thereupon stands in loco parentis to the child, and possesses all rights of a natural parent or a legal guardian, including the power to place the child for adoption and give consent thereto. The minority of the consenting parent does not invalidate relinquishment and surrender, which must be executed in writing and acknowledged before a court. It is made the duty of the court to advise the person executing the consent of all consequences of the act. In those cases where a relinquishment has occurred and the judge states on the relinquishment document that the party executing the same has been advised of his rights, and the relinquishment was voluntary, all rights of the parent or person in loco parentis are terminated, including the right to receive notice of a subsequent adoption proceeding. One of the purposes of this act is to make the consent and relinquishment irrevocable.

“To the same effect, Senate Bill 45 was adopted. Under this act [K.S.A. 59-2102] the consent of the parent or parents of the child must be in writing and acknowledged, and if it is acknowledged before the judge of a court of record, it is final and may not thereafter be revoked. If the consent is acknowledged before some other person authorized by law to take acknowledgments, and if it is subsequently filed of record in the probate court, it becomes irrevocable unless the consenting party, prior to final decree of adoption, alleges and proves that the consent was not freely and voluntarily given.” Bennett, The 1968 Kansas Legislature — How Did It Affect the Lawyers Practice? 37 J.B.A.K. 159, 212 (1968).

The rules for considering statutes in pari materia are summarized in Clark v. Murray, 141 Kan. 533, 537, 41 P.2d 1042 (1935):

“ ‘Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose, and although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected. It is a well-established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although they were enacted at different times, and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislation, or to discover how the policy of the legislature with reference to the subject matter has been changed or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. With this purpose in view therefore it is proper to consider, not only acts passed at the same session of the legislature, but also acts passed at prior and subsequent sessions, and even those which have expired or have been repealed.’ [59 C.J., Statutes § 620, p. 1042.]

“ ‘Statutes in pari materia, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other, so as to give force and effect to each, as it will not be presumed that the legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms; nor will it be presumed that the legislature intended to leave on the statute books two contradictory enactments. But if there is an unreconeilable conflict, the latest enactment will control, or will be regarded as an exception to, or qualification of, the prior statute.’ [59 C.J., Statutes § 621, p. 1051.]

“ ‘It has been held that, in the construction of a statute, contemporaneous legislation, although not precisely in pari materia, may be referred to in order to ascertain the intent of the legislature in the use of particular terms.’ [59 C.J., Statutes § 622, p. 1056.]”

In the case of State v. Bradley, 215 Kan. 642, 647, 527 P.2d 988 (1974), the court considered K.S.A. 21-3416 (unlawful interference with a fire fighter) in pari materia with K.S.A. 21-3411 (aggravated assault of a law enforcement officer):

“Section 21-3411 and 21-3416 relate to public employees performing dangerous and vital duties; both statutes have a common purpose, protection of that class of persons. Having these characteristics, the statutes are in pari materia and they must be read together when interpreting section 21-3411 [Citations omitted.] Since the statutes were enacted at the same session of the legislature and have the same effective date, [citations omitted] the rule of in pari materia ‘applies with peculiar force.’ (Citation omitted.]

“In section 21-3416 the legislature expressly included scienter as an element of the offense. Therefore, it may be concluded the term ‘knowingly’ would have been used in section 21-3411, if the legislature had intended that scienter also be an element of aggravated assault on a law enforcement officer. Its absence is compelling evidence that the legislature did not intend to require scienter.”

In the case before us, as in Bradley, the two statutes have a similar purpose: governing procedures for relinquishment of a child for adoption. They were also enacted in the same session of the legislature. Thus, the fact that the legislature chose not to impose the same requirements in K.S.A. 59-2102 as those set out in 38-127 and 38-128 is compelling evidence of legislative intent. This does not mean, however, that the legislature did not intend that the consent to adoption be anything less than freely and voluntarily given.

L.H. contends the irrevocable consent “unconstitutionally removes from courts their inherent constitutionally created power to inquire into the truth by adducing evidence on material issues” or by precluding inquiry into the state of mind or intent of the consenting parent. However, the statute provides a consent is irrevocable only if acknowledged before a judge.

L.H. next argues the consent to adoption acknowledged before a judge of a court of record, pursuant to K.S.A. 1986 Supp. 59-2102, creates only a rebuttable presumption that the consent was freely and voluntarily given.

Prior to 1968, a consent to adoption given by the natural parent could be revoked at any time before the court took final action on the adoption. In re Thompson, 178 Kan. 127, 135, 283 P.2d 493 (1955). This case was effectively overruled by the legislature in 1968, when it added the following language to 59-2102:

“Whenever consent of a parent or parents is necessary it shall be acknowledged and may be acknowledged before the judge of a court of record, and when such consent is acknowledged before such a judge it shall be final and may not thereafter be revoked by the person or persons giving the same. In all other cases the written consent shall be acknowledged before an officer authorized by law to take acknowledgments, and when such consent has been given in writing and has been filed of record in the district court, the same shall be irrevocable, unless the consenting party or parties, prior to final decree of adoption, allege and prove that such consent was not freely and voluntarily given. The burden of proof shall rest with the consenting party or parties. Minority of a parent shall not invalidate his or her consent.” K.S.A. 59-2102 (Weeks).

In 1982, the legislature rewrote the above section as follows:

“(c) Consent in all cases shall be in writing and shall be acknowledged before the 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, the consent shall be irrevocable. If consent has been given in writing and has been filed of record in the district court, the consent may be revoked, but only if, prior to final decree of adoption, the consenting party alleges and proves that the consent was not freely and voluntarily given. The burden of proving that the consent was not freely and voluntarily given shall rest with the consenting party.” K.S.A. 1986 Supp. 59-2102.

No legislative history could be located to explain the reason for the change in 1982. On its face, it appears to be cosmetic only, as no substantive change is apparent.

A statute is to be interpreted so as to give it the effect intended by the legislature. The purpose and intent of the legislature governs when the intent can be ascertained from the statute. Words in common usage should be given their natural and ordinary meaning in arriving at a proper construction of the statute. When a statute is susceptible of more than one construction, it must be construed to give expression to its intent and purpose, though such construction is not within the strict literal interpretation of the statute. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 634-35, 694 P.2d 462 (1985). Furthermore, the legislative intention should be determined from a general consideration of the entire act. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Kitzman, 240 Kan. 191, 727 P.2d 491 (1986).

The governing statute indicates that any acknowledgment before a judge of a court of record is irrevocable, and the consenting party cannot attempt to revoke his or her consent by attempting to prove the consent was not freely and voluntarily given. Generally, an acknowledgment only serves as prima facie proof that the written consent was freely and voluntarily given. In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981) (acknowledgment of consent by a notary public).

In the majority’s view, K.S.A. 1986 Supp. 59-2102 shows a legislative intent that the judge determine that the consent to adoption be freely and voluntarily given. Thus, a judge acknowledging a consent must make such a determination. The judge is not precluded by 59-2102(c) from making an inquiry of the consenting parent in order to determine his or her state of mind, intent, or whether the parent freely and voluntarily wishes to give the child up for adoption. The legislature has simply assumed a judge of a court of record would insure that the consent to adoption be freely and voluntarily given. We are tempted to hold the legislature intended to require the consent to be given on the record but cannot, in good conscience, do so, although we recommend that procedure be followed.

The problem, as the majority sees it, is whether the consent is void or voidable under the unique facts of this case. The natural mother had (or at least has made no valid showing that she had not) been informed of the legal consequences of adoption prior to the birth. This state has wisely determined that the natural mother should have an opportunity to rethink her decision after the child is born and she has had an opportunity, if she desires, to see and hold the child.

In this case the record indicates the birth occurred at 11:52 a.m. The pleadings contend the consent was signed in the mother’s hospital room “during the luncheon hour at St. Anthonys Hospital,” and that she had “not fully recovered from the effects of medication and stress.”

Since summary judgment was granted, L.H. was not given an opportunity to develop the record, and we are unable to tell whether St. Anthony’s Hospital’s lunch hour is the normal one of 12:00 to 1:00 p.m. If that is the case, the consent was signed within a time span of eight minutes to one hour and eight minutes from the actual birth of the child. The majority has considered adopting a “bright line” rule, that a consent signed within one hour of birth is void as a matter of law. Perhaps it is better left to the legislature to adopt a specific waiting period, if one is to be provided. The legislature has seen fit to provide a waiting period before a release can be validly executed. K.S.A. 60-2801. Surely an 18-year-old unmarried mother’s decision to give up a child for adoption deserves as much consideration.

The majority has no hesitancy in stating that a consent, acknowledged before a judge of a court of record in the delivery room seconds after the umbilical cord is cut, is void. What period is a decent and medically sound interval of time after birth before a mother can execute a valid consent to an adoption will obviously vary, depending upon the individual involved, the difficulty of the birth, and the medication given. This birth is the first child of an eighteen-year-old unmarried mother. We have some hesitancy in saying it is a medical issue, because we are sure all doctors have had the experience of a patient making sense and in apparent control of his/her mental processes, only to learn later that he/she has no recollection of the conversation, who was present, etc.

We hold that the natural mother must have the opportunity to prove that the consent is void or voidable because of her inability to understand and fully comprehend what she was doing when the consent was signed, due to medication and/or the stress and pain of having given birth to a child shortly before. The trial court should hear that issue and then make appropriate findings. Depending on what those findings are, the court must either deny the motion to set aside the consent, or set aside the adoption and consent and return the child to the natural mother.

Reversed and remanded with directions.