State ex rel. Secretary of Social & Rehabilitation Services v. Kimbrel

231 P.3d 576, 43 Kan. App. 2d 790, 2010 Kan. App. LEXIS 56
CourtCourt of Appeals of Kansas
DecidedMay 21, 2010
DocketNo. 101,722
StatusPublished
Cited by4 cases

This text of 231 P.3d 576 (State ex rel. Secretary of Social & Rehabilitation Services v. Kimbrel) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Secretary of Social & Rehabilitation Services v. Kimbrel, 231 P.3d 576, 43 Kan. App. 2d 790, 2010 Kan. App. LEXIS 56 (kanctapp 2010).

Opinion

Buser, J.:

This is an action for child support brought by the State of Kansas ex rel. Secretary of Social and Rehabilitation Services, Alecia Taylor (the biological mother of J.L.K.), and J.L.K., by and through Alecia Taylor (collectively referred to as SRS). SRS appeals the district court’s decision that Shedrick J. Kimbrel, Sr., is not the father of J.L.K. and is not legally obligated to support the child after genetic testing proved he is not J.L.K.’s biological father. We affirm.

The question presented is whether in an action by SRS for child support a district court may determine, based on genetic testing, that a man who has executed a voluntary acknowledgment of pa[791]*791ternity under K.S.A. 38-1138 is not the biological father of the child and, accordingly, end the father-child relationship and deny a petition for child support. We answer this question affirmatively and, as a result, uphold the judgment of the district court.

Factual and Procedural Background

J.L.K. was bom in May 2002. Shortly thereafter, Taylor and Kimbrel acknowledged paternity by executing a document entitled “Paternity Consent Form for Birth Registration.” This document comprised seven paragraphs which set forth basic rights and responsibilities of acknowledging paternity. These included:

“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 ....
“Both the father and the mother are responsible for the care and support of the child. If necessary, this duty may be enforced through legal action such as a child support order ....
“Each parent has the right to sign or not sign this acknowledgment of paternity.”

Kimbrel, who was 23 years old, read and initialed every disclosure paragraph of the document. He then signed his name after the statement: “I have read the disclosure of basic rights and responsibilities of acknowledging paternity... and 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 [J.L.K.].” As a result, Kimbrel’s name was listed on J.L.K.’s birth certificate as his father.

Two years later, on May 28, 2004, SRS filed a petition for child support and served Kimbrel. The petition alleged that SRS had been assigned support rights for J.L.K., that Kimbrel was J.L.K.’s father, and that he owed a duty to support his son. Previously, Kimbrel had never revoked his voluntary acknowledgment of paternity. In response to the lawsuit, however, Kimbrel requested genetic testing to determine the biological paternity of J.L.K. Prior to the hearing on Kimbrel’s motion, the district court ordered the appointment of a guardian ad litem for J.L.K.

[792]*792A hearing was held in accord with In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). The district court summarized SRS’s argument opposing genetic testing: “SRS asserts that genetic testing is not appropriate because [Kimbrel’s paternity] acknowledgement became conclusive by respondent’s failure to challenge it in a manner mandated by statute. Therefore, the paternity of [Kimbrel] has already been established.”

The district court also summarized the positions of the other parties:

“In this case, the mother has testified she is certain [Kimbrel] is the father of the child. However, she does not object to testing. The guardian ad litem believes genetic testing should be done because it may satisfy [Kimbrel’s] doubts and encourage him to have a more meaningful relationship with his child.”

Ultimately, the district court decided genetic testing was in the best interests of J.L.K. and granted Kimbrel’s motion. Subsequent test results showed that Kimbrel was not the biological father of J.L.K.

On March 17, 2006, an administrative hearing officer found that Kimbrel “is not the father of [J.L.K.] by [genetic testing] and does not have to pay child support.” SRS sought review by the district court.

On November 14, 2008, the district court issued its order and supporting memorandum. It found that K.S.A. 38-1138(b)(l) provides that an acknowledgment of paternity creates a permanent father and child relationship which may only be terminated by a court order. The district court also found that Kimbrel had not revoked his acknowledgment in a timely manner. The district court ruled, however, that Kimbrel’s written acknowledgment of paternity “only creates a presumption that paternity is established.” (Emphasis added.) Noting that both J.L.K.’s mother and the guardian ad litem favored genetic testing, the district court determined that Kimbrel “was entitled to genetic testing,” which revealed a “zero percent chance” that he was the biological father of J.L.K. Accordingly, the district court held that Kimbrel was not “the legal father of the child” and had no duty to support J.L.K.

SRS appeals. Kimbrel did not file a responsive brief.

[793]*793Voluntary Acknowledgment of Paternity Pursuant to K.S.A. 38-1138

SRS presents two contentions. First, it argues that Kimbrel’s execution of the voluntary acknowledgment of paternity form as provided in K.S.A. 38-1138 did not merely create a rebuttable presumption of paternity, rather it permanently established Kimbrel as J.L.K.’s father, notwithstanding the subsequent genetic testing which proved he was not the biological father. Second, SRS contends Kimbrel was procedurally barred from challenging his voluntary acknowledgment of paternity because the statutory time limits to revoke the acknowledgement had expired.

The facts are not in dispute, and the question presented turns on statutory interpretation. As a result, our standard of review is de novo. See Reese v. Muret, 283 Kan. 1, 4, 150 P.3d 309 (2007).

“The fundamental rule of statutory construction is that the intent of the legislature governs. Legislative intent is first determined by considering the language in the statute. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Reese, 283 Kan. 1, Syl. ¶ 1.

We begin our analysis with a review of the Kansas Parentage Act, K.S.A. 38-1110 et seq. (KPA), which governs “[proceedings concerning parentage of a child.” K.S.A. 38-1110(b).

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Bluebook (online)
231 P.3d 576, 43 Kan. App. 2d 790, 2010 Kan. App. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-secretary-of-social-rehabilitation-services-v-kimbrel-kanctapp-2010.