Appellate Decisions All opinion digests are available on the KBA website at www.ksbar.org/digests. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and communication services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org
Kansas State Supreme Court Attorney Discipline ORDER OF DISBARMENT IN RE SUSAN ELIZABETH VAN NOTE NO. 16,327—AUGUST 26, 2020
FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas. HELD: The Court accepts the surrender of Van Note’s license to practice law in Kansas and she is disbarred.
Civil ADOPTION IN RE ADOPTION OF BABY GIRL G. SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED NO. 121,051—JULY 10, 2020
FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father’s parental rights were terminated. The court of appeals affirmed that ruling but reversed the award 64
The Journal of the Kansas Bar Association
of attorney fees and remanded the case to district court for further consideration of that issue. Father’s petition for review was granted. ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 592136(h)(1)(D); (2) whether there was adequate evidence of a failure to support HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court’s decision that Father failed to support the natural mother during the last six months of her pregnancy. Father’s non-financial support was minimal and of little value to the mother and his financial support was inconsequential. DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father’s constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling. STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h) (1) HABEAS CORPUS, RIGHT TO COUNSEL BALBIRNIE V. STATE FRANKLIN DISTRICT COURT— COURT OF APPEALS IS REVERSED DISTRICT COURT IS REVERSED—CASE REMANDED NO. 115,650—JULY 24, 2020
FACTS: Balbirnie was convicted of second-degree murder, and his conviction was affirmed on direct appeal. Throughout that process, Balbirnie consistently proclaimed his innocence and blamed the murder on one of the other people present at the scene of the crime. Within one year of his conviction being affirmed, Balbirnie filed a K.S.A. 60-1507 motion in which he claimed trial counsel was ineffective for failing to investigate and then introduce at trial a recording of a 911 call at which an eyewitness named another person as the murderer. After an evidentiary hearing, the district court found
