Civil liberties do not vanish with unethical gain, nor do a child’s best interests navigate with fraudulent influence.
Civil liberties do not vanish with unethical gain, nor do a child’s best interests navigate with fraudulent influence.
When an unwed father demonstrates a full commitment to the responsibilities of parenthood, due process entitles him to substantial protection of his liberty interest to parent. This father, not fitting the mold of any archaic gender stereotype, has demonstrated that commitment tenaciously.
However, his substantive due process and liberty rights have been overtly violated as the bond he shared with his child was coldly severed.
After learning of an induced birth that occurred on September 19, 2018 and a covert adoption plan from the mother’s equally stunned aunt, this father claimed paternity on October 11. Despite a distinct showing of the statute being satisfied and his having an established bond with his child, on March 8, 2019, for vilely colluded reasons, his parental rights were wrongfully terminated.
"Adoption statutes are to be strictly construed in favor of maintaining a natural parent’s rights." In re Adoption of B.M.W., 268 Kan. 871, 874 (Kan. 2000); et al.
"Natural parents are to have a liberty interest in the care of their children, privacy rights are to embody child rearing, and when a governmental entity acts to deny a citizen of life, liberty, or property interests, it must demonstrate a compelling interest to justify infringement, and the decision must come from a neutral decision-maker. The right to be the legal parent of a child is a right that cannot be abrogated except under compelling circumstances." In re C.L.A., 31 Kan. App. 2d 536, 539 (Kan. Ct. App. 2003).
Inappropriate gain is neither a compelling interest nor a compelling circumstance.
"A parent’s right to the companionship of their children is an important interest that undeniably warrants deference and protection."
Lassiter v. Department of Social Services, 452 U.S. 18, 27 (1981).
Adoption does not create an exception.
The trial court, "It was during the same time that he was helping his mother and grandmother. And, candidly, that's a moral responsibility and society appreciates it, but unlike 59-2136 that requires and has a legal responsibility, there is no legal responsibility to help the mother and grandmother. There is a moral responsibility, but the legal responsibility resides in 59-2136."
The court had made this offensively condemnatory statement knowing that the mother of this child had no financial obligations for most of the pregnancy and had refused most of the support that father offered.
The last time that this father has seen his daughter, she cried out for him as he had to reluctantly walk away. She should have been in his custody only a few days later.
“Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.” ― Robert F. Kennedy, June 6, 1966
"Under our form of Government all authority is vested in the people and by them delegated to those who represent them in official capacity. There can be no offense heavier than that of him in whom such a sacred trust has been reposed, who sells it for his own gain and enrichment; and no less heavy is the offense of the bribe giver. He is worse than the thief, for the thief robs the individual, while the corrupt official plunders an entire city or State. He is as wicked as the murderer, for the murderer may only take one life against the law, while the corrupt official and the man who corrupts the official alike aim at the assassination of the commonwealth itself. Government of the people, by the people, for the people will perish from the face of the earth if bribery is tolerated. The givers and takers of bribes stand on an evil pre-eminence of infamy. The exposure and punishment of public corruption is an honor to a nation, not a disgrace. The shame lies in toleration, not in correction. " ― Theodore Roosevelt, December 7, 1903
After a three day bench trial, the 18th Judicial District Court proclaimed blatant falsehoods in the trial ruling (e.g., “there were times that she was without residence and was couch surfing”), "misconstrued" and disregarded evidence (e.g., “he was not emotionally supportive,” the mother lived free of financial obligation for most of the pregnancy), "misinterpreted" and ignored testimony (e.g., “he was not going to give her any money,” “he gave her no home or residence”), "miscomprehended" a plainly worded statute (e.g., “the statute does not let you make that decision”), abandoned precedent, and neglected procedural law (e.g., a mother’s refusal of support is to factor in determining if the father provided adequate support, all the relevant surrounding circumstances are to be considered).
When findings are attacked for insufficiency of evidence, appellate courts are to determine whether substantial competent evidence exists and ensure that the law had been correctly applied. 259 days after filing a notice of appeal, the trial court’s incivility had been emulated instead by the Kansas Court of Appeals. Then, 231 days later, the Kansas Supreme Court failed to follow horizontal stare decisis, mirroring the lower courts’ incivility. The evidence and testimony firmly favor the natural relation.
The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision-making process. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," by ensuring that no person will be deprived of their interests in the absence of a proceeding in which they may present their case with assurance that the arbiter is not predisposed to find against them.
Under Due Process, natural parents have a liberty interest in the care and management of their children. Under Equal Protection, the Constitution’s guarantee to privacy rights embodies the right in child rearing. It is a constitutional requirement that when a state works to deny citizens of life, liberty, or property interest, citizens must be given notice, the opportunity to be heard, and a decision by a neutral decisionmaker.
The trial transcript and ruling
The record on appeal's Table of Contents
Vol. 2 of the record
Vol. 4 of the record
Vol. 10 of the record—the text messages
Vol. 11 of the record—photo album
The Kansas Court of Appeals: litigation and decision
The Kansas Supreme Court: litigation and decision
“... the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth ...”
The statute’s language conflicts with the void-for-vagueness doctrine, which dictates that unduly and uncertain laws violate due process.
Vague laws in any area suffer a constitutional infirmity. Ashton v. Kentucky, 384 U.S. 195, 200 (1966).
Statutes that leave judiciaries free to decide, without legally fixed standards, what is satisfactory and what is not in each case is immensely unconstitutional. Giaccio v. Pennsylvania, 382 U.S. 399, 402-3 (1966).
A vague law is no law at all. United States v. Davis, 139 S. Ct. 2319, 2323 (2019).
The void-for-vagueness doctrine requires that a statute be sufficiently definite so as not to encourage arbitrary or discriminatory enforcement. S.B. v. S.S., 243 A.3d 90, 123 (Pa. 2020).
Statutes affording the termination of parental rights must meet constitutional due process requirements. A vague and conclusory statute fails to do so. Davis v. Smith, 266 Ark. 112, 113 (Ark. 1979).
The vice of unconstitutional vagueness is aggravated where a statute operates to inhibit freedoms affirmatively protected by the Constitution. Cramp v. Bd. of Public Instruction, 368 U.S. 278, 287 (1961).
The Kansas Court of Appeals has stated, “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters . . . with the attendant dangers of arbitrary and discriminatory application.” Luna v. City of Ulysses, 17 P.3d 940, 942 (Kan. Ct. App. 2000).
The same court, contradictorily, “[Father] argues that since his case involves a fundamental constitutional right of a natural parent to the custody of his child, the appellate court should apply strict scrutiny in its review of the statute and should reverse the trial court's decision which is based upon it. However, this court has examined the constitutionality of 59-2136(h) in a number of cases and, in each one, has found the statute does not violate the constitutional rights of a biological father.” In re Adoption of D.M.M., 955 P.2d 618, 618-20 (Kan. Ct. App. 1997).
“Father also points out the steps he took to prepare for fatherhood. For example, he notes he was paying down his debt, and he acquired baby items for his home. But Father did these things for his own benefit, not Mother’s, and they conferred no benefit on her.”
Conversely, the referenced steps were for his daughter’s benefit. Focusing on the child—as the circumstances had surely endorsed—is likewise supportive to the mother. The legislative intent is to provide “a measure by which to gauge a father’s commitment to his child during pregnancy,” after all.
In re Adoption of D.M.M., 955 P.2d 618, 622 (Kan. Ct. App. 1997).
“Granted, Father sent texts expressing concern for Mother and the child. For example, Father points out an instance when he texted Mother, ‘With this heat if you need to go somewhere and it’s too hot, I will come get you and take you because we need you to not be too hot.’ Another time, Father asked Mother if she would be safe if a tornado hit near where she was. While these texts show concern, it is questionable whether they amount to significant nonmonetary assistance, as required by statute. On top of that, Father also sent many text messages that Mother found upsetting and hurtful. Mother’s testimony, as well as her texts to Father, showed she found his texting to be very stressful overall.”
Easily detectable, her testimony was almost entirely perjurious. K.S.A. 44-1039.
“As for Mother’s interference, Father claims Mother refused much of the support he offered. Granted, Mother did decline to take Father up on some of his offers. On at least one or two occasions, Mother also told Father that she did not want or need anything from him. But Mother did accept other offers of support, such as his offer to pay her phone bill or give her gas money. The record shows Mother had significant financial difficulties over the course of her pregnancy, particularly regarding housing and transportation. Father never offered to help her cover rent to keep from being evicted or to help her pay for car repairs. The offers he made that Mother rejected were often for incidental support, such as an Uber ride or some ramen.”
Her boyfriend’s testimony, “Did you charge her rent when she moved in with you?” “No.” “She had free housing anytime she was living with you?” “Basically.” “Did she pay any bills, anything like that?” “No, not really.”
A mother’s needs are a relevant circumstance in determining whether a father acted reasonably to provide support. In re of the Adoption of M.D.K., 58 P.3d 745, 749 (Kan. Ct. App. 2002).
Giving a mother money for her own discretionary use—completely unrelated to a pregnancy—does not equate to a father providing support for that pregnancy. Sensibly, accepting some support does not somehow annul support that was refused.
“The evidence does show Father planned to parent Baby Girl G. and did things to prepare for fatherhood. But under Kansas law, an unwed father has a specific duty to affirmatively provide support, particularly financial support, to the mother during the last six months of the pregnancy to ensure his parental rights.”
“For the purposes of this subsection, ‘support’ means monetary or non-monetary assistance that is reflected in specific and significant acts and sustained over the applicable period.”
K.S.A. 59-2136(h)(4) does not state nor imply “particularly financial support.”
It is an elementary principle of statutory construction that all the words of a statute must be given effect. In re Adoption of B.M.W., 268 Kan. 871, 883 (Kan. 2000).
“Father provided her a ride home from her appointment to enroll, but he did not give her a ride there.”
He did not fail to provide her with support because she chose to arrive at an appointment with someone else.
“As for Father’s offer to allow Mother to store her belongings at his home, she never took him up on this offer.”
A mother’s refusal of support is to factor in determining if the father provided adequate support.
In re Adoption of Baby Boy B., 254 Kan. 454, 465 (Kan. 1994).
She had refused or ignored most of the support that he offered. For example, on July 1, “I have told you one hundred times I do not need nor want anything from you.” On July 9, he stated, “Let me know if you need money,” to no response. And on July 25, she said, “I don’t want your help!”
“He spent hundreds of dollars on credit card payments and withdrew hundreds of dollars in cash. He also had some money left over at the end of each month, though perhaps not much.”
Consumers are contractually liable to repay all debts arising on a credit account by reason of an agreement to that effect, and testimony shows that most withdrawn funds were for financial obligations. The adoption accounting shows that the mother had received compensation for “reasonable living expenses.” She had no living expenses from May through September; therefore, this payment was illegal. K.S.A. 59-2121(c).
Most of her testimony had been perjurious.
“It was always about him?”
“Yes, always . . . He was extremely selfish throughout the entire pregnancy. He only ever cared about himself . . . Frequently he was very selfish. I felt like he was doing all of this to make himself look good.”
He had been “doing all of this” because he loves his daughter.
On April 11, he said, “Providing a safe environment for the baby is my number one priority.”
On April 18, “I love our daughter too much to make anything more important than her.”
On June 19, “When it comes to our daughter, her best interests are number one and she needs both of us.”
She did not respond.
The mother suffers from an especially chaotic bipolar disorder. Those with this disorder are prone to making inappropriate parenting decisions and could become consumed by the illness. Van Brunt, et al., “The Unfit Parent: Six Myths Concerning Dangerousness and Mental Illness,” Family Court Review, 54: 18-28, 19-20 (2016).
“Well before the pregnancy you were not on meds for your bipolar disorder?”
“I do not remember when I stopped taking them, but, yes, it was before my pregnancy.”
Evidence shows that she only sought adoption due to an irrational envy of Petitioner’s devotion to his child.
On April 11, 2018, she said, “I know we want a shared parenting time agreement, but it is going be a while before I amcomfortable with her being somewhere without me.”
On April 29, “For the good first year of her life, she will not be anywhere without me or without me knowing explicitly where she is ... And I am not particularly fond of you speaking to a lawyer by yourself.”
On June 13, he asked, “When do you feel would be a suitable time to get our parenting plan in place?” She responded, “I do not want to worry about that until her being anywhere without me is even an option ... I am not getting anything in order that says you can have her without me before she is ready because I do not want you taking her without me before she is ready.”
On July 25, she said, “I am in no place to even have a child right now. I seriously need you to get off my ass while I figure out what I am supposed to do.”
He responded, “If she is mine, give her to me. I am more than capable.”
She replied, “Fuck off. Leave me alone.”
On July 29, he said, “I am not sure why you act as if I have done something wrong to you, or why my willingness to take care of her somehow offends you, but I am just trying to be there for my daughter. I hope something good has happened since we last talked. I am worried about you.”
She did not respond.
Significantly, “I do not want some bullshit joint custody arrangement. I do not want him to be able to make decisions. I want it to be on my terms when he sees her.”
In October, 2022, Father filed a motion for relief from judgment due to a lack of due process. Such a motion has no time limit, yet the district court denied the motion due to time limitations.
On February 27, 2023, the court of appeals ordered an amended appeal brief: “We have jurisdiction over the district court’s November 9, 2022, ruling denying Appellant’s motion for relief from judgment and will consider appellate arguments related to that ruling. The brief submitted by Appellant on January 10, 2023, however, goes far beyond that ruling. Because Appellant’s brief reargues settled matters of fact and law, we order it stricken and destroyed.”
Kansas Court of Appeals
Due process violations are subject to de novo review. In re D.S., 124,563, 9 (Kan. Ct. App. Oct. 21, 2022).
When a court hears a case de novo, it reviews the issues without reference to any previous legal conclusion.
On April 4, the court of appeals granted involuntary dismissal, even though the adoption is the very nullity that the K.S.A. 60-260(b)(4) motion attacks.
A judgment is unenforceable if the court acted in a manner inconsistent with due process and may be vacated at any time. In re Marriage of Hampshire, 261 Kan. 854, 862 (Kan. 1997).
Kansas Supreme Court
Continuing as a pro se litigant, this father filed a civil complaint against the adoptive resource for violations of rights; wrongful adoption; civil conspiracy; factual cause; conversion; loss of consortium; interference with possessory, parental, and custodial rights; intentional infliction of emotional distress; constructive and intrinsic fraud; unjust enrichment; abuse of process; false light; calumny; specific intent; wrongful family separation; and economic and non-economic loss. Despite what should have been a decisively favorable effort, the U.S. District Court judge dismissed the complaint.
Civil Complaint briefs and orders
The initial petition to terminate parental rights, filed on September 21, 2018:
“The parental rights of the possible fathers should be terminated by reason of their relinquishments or for one or more of the following reasons: a. The possible fathers are expected to abandon and neglect the child after having knowledge of the child’s birth. b. The possible fathers are unfit as parents or incapable of giving consent. c. The possible fathers are expected to make no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth. d. The possible fathers, having knowledge of the pregnancy, failed without reasonable cause to provide the birth mother support during the last six months of the pregnancy. e. The possible fathers abandoned the birth mother even though aware of the pregnancy.”
The disciplinary administrator office’s response to a related complaint:
“However, in this instance he did have a factual basis to assert the allegations made in the initial petition. Some of the facts his prefiling investigation discovered were the father’s issue with depression (grossly misconstruing a very common condition); his use of marijuana and methamphetamines (three clean urinalyses, a voluntary intake assessment not recommending treatment, and use had ceased prior to adoption proceedings); that despite having two jobs providing $150.00 in support (she had no financial obligations for most of the pregnancy and I had ensured all prenatal needs were met); failing to help the birth mother move knowing she was being evicted (“I talked with my aunt and she said I can store it all there. I super appreciate your offer to help I just feel like I’m asking a lot of you by doing this.”); and, that the birth father had indicated he would take the child from the birth mother (horrendously taken out of context).”
Clearly, none of these misconceived “facts” were alleged in the initial petition.
Men Deserve More: Applying the Biological Rights Doctrine to Adoption Law
(MacIsaac-Bykowski, M. 2020)
Adopting Civil Damages: Wrongful Family Separation in Adoption
(Seymore, M. 2019)
Unequal Protection: Examining the Judiciary’s Treatment of Unwed Fathers
(Potash, B. 2018)
Grasping Fatherhood in Abortion and Adoption
(Seymore, M. 2017)
The Ties That Bind: Reevaluating the Role of Legal Presumptions of Paternity
(Kolinsky, H. 2014)
Blood over Bond?
A Call to Define Kansas’s Requirements for Biological Fathers to Retain Parental Rights
(Novak, W. 2013)
Two to Tango, One in Limbo: A Comparative Analysis of Fathers' Rights in Infant Adoptions
(Ryznar, M. 2009)
The Paradox of Unmarried Fathers and the Constitution:
Biology "Plus" Defines Relationships; Biology Alone Safeguards the Public Fisc
(Oren, L. 2007)
Thwarted Fathers or Pop-Up Pops?:
How to Determine When Putative Fathers Can Block the Adoption of Their Newborn Children
(Oren, L. 2006)
Unequal Rights: The Fourteenth Amendment and De Facto Parentage
(Ake, A. 2006)
Establishing the Biological Rights Doctrine to Protect Unwed Fathers in Contested Adoptions
(Craig, T. 1998)
Protecting the Father-Child Bond Against Nonpaternity Action:
Legislative, Judicial, and Constitutional Approaches
(Hirczy, W. 1995)
Unwed Fathers’ Rights, Adoption, and Sex Equality:
Gender-Neutrality and the Perpetuation of Patriarchy
(Shanley, M. 1995)
Putative Fathers' Rights: Striking the Right Balance in Adoption Laws
(Zdon, T. 1994)
Father Knows Best:
The Unwed Father's Right to Raise His Infant Surrendered for Adoption
(Zinman, D. 1992)
The impact a father's love has on his daughter
The Importance of the Father-Daughter Relationship
Feel free to contact us.
1106 N. Jefferson Wichita, Kansas 67203, United States
All content and pictures are shared with the permission of the rightful owner, Paul Allen Fiscus III.