Creek County District Court Nos. 12JR34 & 12JR35. Honorable
David R. Lass, Judge.
Legal Resolution, P.C., S. Scott Lasher, Kelly L. Snodgrass,
Denver, Colorado, for Appellant.
A. Madsen, P.C., Catherine A. Madsen, Westminster, Colorado,
Weinshienk PC, Rajesh K. Kukreja, Denver, Colorado, for
by JUDGE GRAHAM. Booras and Márquez[*], JJ.,
[¶1] M.C. (father), the biological father of
twins A.H.Z. and V.D.Z. (children), appeals from the judgment
terminating the parent-child legal relationship between him
and the children, and awarding permanent legal custody of the
children to T.W. and A.W. (intervenors). We reverse the
judgment and remand the case for further proceedings.
[¶2] On September 13, 2012, J.Z. (mother)
gave birth to the children in Grand Junction, Colorado. The
next day, she completed a petition for expedited
relinquishment of her parental rights pursuant to section
19-5-103.5, C.R.S. 2014. She also completed supporting
documents, including an affidavit and declaration of
paternity. She provided a first name for the children's
father, but alleged that she did not know his last name, his
address, his telephone number(s), the name of his employer,
or other information that might have been used to locate him.
A few days later, the documents were filed in the district
court of Clear Creek County, Colorado. At the same time,
petitions to terminate the parent-child legal relationship
between father and the children were filed by Adoption
Choices of Colorado, Inc. (Adoption Choices), a licensed
child placement agency. Adoption Choices alleged that on
August 24, 2012, father and any and all other unknown birth
fathers had been given notice of the anticipated
relinquishment by publication in the Denver Business Journal,
a publication in Denver County, Colorado, where the
conception had allegedly taken place and where mother
allegedly resided. There had been no response to the notice.
[¶3] Intervenors, who were clients of
Adoption Choices, were selected by mother to be the
children's adoptive parents. Intervenors were allowed to
be present for the children's birth, and, on the day of
their birth, Adoption Choices placed the children with them.
Under the terms of the placement agreement, intervenors
acknowledged " the uncertainties associated with
predicting . . . whether birth parents' rights will be
terminated" and specifically acknowledged that Adoption
Choices was relying on information from the birth mother as
to the birth father's identity, and, if that information
was incorrect, the birth father might have a claim to the
children in the future. Intervenors also entered into (1) a
temporary custody agreement, under which they acknowledged
that problems might arise, including but not limited to
claims by the birth parents, and that the placement of the
children did not ensure that the adoption would proceed to
finalization; (2) legal risk agreements for the children,
under which they chose to accept immediate custody of the
children, knowing that there was a legal risk that the
children could be removed from their home due to "
contested matters" in the adoption, rather than allow
the children to be placed in a transitional home until all
potential barriers to finalization of the adoption had been
removed; and (3) a service agreement, under which they
acknowledged that an adoption placement presents risks that
might or might not be known to them, that a child is not
legally available for adoption until a court order is entered
legally divesting the birth parents of their parental rights,
and that even after termination of the birth parents'
rights, they could change their minds about the adoption
if fraud or duress existed.
[¶4] Because father had not responded to
notice of the children's birth -- notice that had been
given to him by publication -- his legal relationship with
the children was terminated on September 21, 2012. The final
decree of adoption was entered on December 27, 2012.
[¶5] In February 2013, father appeared and
sought relief from the judgment terminating his parental
rights pursuant to C.R.C.P. 60(b)(2). He alleged that he and
mother had met in October 2011 and had a long-distance dating
relationship for approximately six months; mother had told
him that she was pregnant in January 2012; and he and mother
had arranged for her to relocate from her home in Grand
Junction to his home in Des Moines, Iowa, so that they could
live together during the pregnancy. He stated that she had
moved to Des Moines in March 2012, but, about one week before
the move, she told him that she had experienced a
miscarriage. Shortly after moving in with him, she moved back
to Grand Junction, stating that she was homesick, and
thereafter, they ceased dating and had minimal contact with
one another. He stated that he believed that mother had lost
the pregnancy and did not discover mother's deception
until December 18, 2012, when a friend told him that mother
had given birth to twin boys and then given them up for
adoption, representing to the court and to the adoptive
parents that she did not know who the father was. Arguing
that the order terminating his parental rights was void
because of mother's fraud upon the court, father asked
the court to grant him relief from the judgment and full
custody of the children.
[¶6] Intervenors sought and were granted
leave to intervene in the proceeding. They opposed
father's motion, arguing in part that even if father
could prove the existence of fraud, the court should deny the
motion in light of the interest of the state in the finality
of adoptive placements; intervenors' fundamental liberty
interest in the care, custody, and control of their adopted
children; and the children's fundamental right to
preserve their relationship with intervenors.
[¶7] While the legal proceedings continued,
father began trying to arrange a meeting with the children.
Eventually, he and intervenors agreed on a three-step
process: first, he and intervenors would exchange letters of
introduction; second, he and intervenors would meet; and
finally, he would meet the children. The letters were
exchanged in late April. In his letter, father thanked the
intervenors for the care they had given the children and
expressed his sympathy for them and his hope that they would
have the strength to get through " this difficult
time." However, he made it clear that he wanted the
opportunity to raise the children himself. On April 29,
father's attorney was advised that " given the tenor
of [father's] letter," intervenors did not believe
that there was much value in meeting with him, nor were they
interested in setting up a meeting for him with the children.
[¶8] Further efforts to resolve the question
of visitation failed. In early May, father's attorney
suggested raising the issue of parenting time at an upcoming
status conference. In response, intervenors' attorney
questioned father's legal right to parenting time and
stated that intervenors did not believe that contact with
father would be in the children's best interests. He
indicated that intervenors would not agree to the court
taking any action on visitation without a formal motion and
[¶9] On May 31, the court conducted a
hearing on the question of mother's alleged fraud. The
court found that there was " overwhelming evidence"
that mother had failed to disclose father's full identity
and contact information to Adoption Choices, and that the
termination of father's parental rights had been procured
by fraud. Citing In re C.L.S., 252 P.3d 556
(Colo.App. 2011), the court determined that, as a matter of
law, the prior termination of father's parental rights
[¶10] On June 1, 2013, father was allowed to
meet the children for the first time. Intervenors were
present during the entire visit, which lasted about one hour.
No further visitation was offered to him.
[¶11] A two-day hearing had been scheduled
for June 25 and 26 to resolve the remaining issues in the
case. After determining that the termination of father's
parental rights was void, the court sua sponte continued that
hearing to October 2 and 3, 2013, citing the parties'
ongoing disputes over discovery and the need to ensure that
all parties had the time needed to fully prepare and present
their cases to the court. Father immediately asked the court
to amend its order to permit the hearing to go forward on
June 25 and 26 as planned. He argued that as a result of
mother's fraud, he had been denied the opportunity to
parent his children since their birth; he had done nothing to
prolong the litigation because he knew that the longer it
went on, " the louder would be the cries of both
[Adoption Choices] and Intervenors that to remove the
children from their adoptive home would [be] irreversibly or
at least severely damaging to the children" ; he was
prepared to proceed; and there was no good cause for a
[¶12] The court declined to change the
hearing schedule, but agreed that father would be prejudiced
unless he was able to exercise parenting time. Accordingly,
in an order dated June 21, 2013, the court ordered the
parties to " confer and arrange visitation for [father]
with the children not less than two eight hour periods per
week." Visitation was to take place at a location close
to intervenors' home, and the first visit was to take
place within seven days of the date of the order.
[¶13] After parenting time was ordered,
intervenors communicated directly with father to suggest that
" it would be best for the boys to ease into
[visitation] and go a bit more slowly." They suggested
starting out with " a few shorter visits" with one
of them present, and then working up to longer visits. Father
responded, through his attorney, with a proposed parenting
time plan that would have begun with four-hour visits, during
which intervenors could be present for the first hour, and
quickly ramped up to eight-hour visits, during which father
would have sole parenting time. Intervenors rejected that
plan and proposed two-hour visits, supervised by them, to
begin the process.
[¶14] When it became clear that the parties
could not agree, father requested that the court schedule a
status conference on the matter. Intervenors agreed that a
status conference was needed, and asked the court to reduce
the amount of visitation in light of the " negative
impact" that they believed full and immediate
implementation of the existing visitation order was likely to
have on the children.
[¶15] On June 27, after hearing from both
father and intervenors, the court modified its order
regarding visitation. The new order provided that father
would have (1) two two-hour visits that would begin with one
and one-half hours with the children and the intervenors,
then one-half hour with the children alone; (2) then two
three-hour visits that would begin and end with one-half hour
with the children and the intervenors, separated by two hours
that father could spend with the children alone; (3) then two
three-hour visits that would begin with two and one-half
hours with the children alone and end with one-half hour with
the children and the intervenors; and (4) then four four-hour
visits -- or as many as the parties might agree to -- that
would begin and end with one-half hour with the children and
the intervenors, separated by three hours with the children
[¶16] Father's first visit under the
June 21 order, as modified by the June 27 order, took place
on June 29, 2013. Over the following three months, he missed
parenting time on two weekends because he was " on
call" for his employer, and on one weekend because
intervenors were traveling out of state. On each of the
remaining weekends, he traveled to Colorado for visits with
the children. The length of his visits never increased beyond
four hours, part of which was shared with intervenors.
[¶17] After visitation was ordered,
intervenors asked the court to appoint a guardian ad litem
(GAL) " to investigate any and all matters pertaining to
the best interests of the children and the possible
termination of father's parental rights pursuant to
[section] 19-5-105(3), (3.1), and (3.2), C.R.S. 2014."
In August, the court appointed a GAL to complete an
investigation along the lines suggested by intervenors and
prepare a written report to the court.
[¶18] On September 23, ten days before the
hearing on the termination of father's parental rights,
the GAL submitted her report. Among other things, the GAL
o Intervenors were " extraordinary" as parents,
even to the point of making all of the children's baby
food at home from organic ingredients.
o The children were " active, happy, curious, and
developmentally on track," and " clearly securely
attached to [intervenors]."
o The children were also attached to their nanny, G.C., who
cared for them approximately four days a week in their own
o There was nothing about [father] that was " in any way
objectionable," but he was " naï ve about the
needs of his children," failing to understand that the
children were attached to intervenors and viewed intervenors
as their parents.
o Father had done his best to maintain regular and meaningful
contact with the children, and he had established "
familiarity" with them. However, he did not have a
substantial, positive relationship with them.
o The issue of the children's attachment was of "
utmost importance" in assessing their best interests.
concluded that although there was " no indication that
[father] is or would be an unfit parent," it was in the
best interests of the children to maintain their secure
attachment with intervenors. Accordingly, she recommended
termination of father's parental rights.
[¶19] On October 2 and 3, 2013, the court
heard the testimony of the parties and other witnesses,
including experts retained by the parties to evaluate the
children's relationships with father and with
intervenors, and to offer opinions on the likely consequences
of removing the children from intervenors' care or,
alternatively, terminating father's parental rights.
Based on the evidence presented, the trial court concluded
that, although father had " the strong desire and
apparent ability to assume legal and physical custody"
of the children, he had not established a substantial,
positive relationship with them and had not taken substantial
parental responsibility for them. The court also found that
removal of the children from intervenors' care would
likely cause " significant psychological harm" to
them. The court concluded that it was in the best interests
of the children to terminate father's parental rights and
place the children in the permanent legal custody of
Standard of Review
[¶20] Because the parties do not agree on
the correct standard of review to be applied by this court in
considering the issues presented in this appeal, we will
begin our analysis by addressing the standard of review.
[¶21] A court's findings typically
include two types of facts. Evidentiary facts are " the
raw, historical data underlying the controversy."
Blaine v. Moffat Cnty. Sch. Dist. RE No. 1, 748 P.2d
1280, 1287 (Colo. 1988). An ultimate fact " involves a
conclusion of law or at least a determination of a mixed
question of law and fact [that] settles the rights and
liabilities of the parties." Id.
[¶22] Generally, findings of fact are
reviewed under a clear error or abuse of discretion standard,
while conclusions of law are reviewed under a de novo
standard. E-470 Pub. Highway Auth. v. 455 Co., 3
P.3d 18, 22 (Colo. 2000). When the issue before an appellate
court is a mixed question of law and fact, such as may arise
when the issue is whether statutory requirements were met,
the court may take one of several possible approaches. First,
the court may treat the ultimate conclusion as one of fact
and apply the clear error standard. Second, the court may
decide that de novo review is required. Third, the court may
apply the clear error standard to the lower court's
findings of fact and de novo review to the legal conclusions
that the lower court drew from its findings of fact.
[¶23] We will review the trial court's
findings of historical fact under the clear error standard,
and we will review its legal conclusions and findings of
ultimate fact under the de novo standard.
The Parties' Rights and the State's
[¶24] Throughout the case, father has
asserted a right to due process in matters relating to the
termination of his parental relationship with the children.
Among other things, he has contested intervenors'
argument that the trial court should consider not just his
fundamental liberty interest in the care, custody, and
control of his children, but also the state's interest in
preserving the finality of adoptive placements;
intervenors' fundamental liberty interest in the care,
custody, and control of their adopted children; and the
children's fundamental liberty interest in continuing
their relationship with their adoptive parents. Father has
raised this issue again on appeal, albeit not in a separate
[¶25] The trial court concluded that in
determining whether to terminate father's parental
rights, it could take into account the fundamental rights of
intervenors and the children as well as the state's
interest in preserving the finality of adoptions. The court
found that in this case, intervenors' fundamental
interest in having the children remain with them and the
children's fundamental interest in remaining with the
only parents they had ever known outweighed father's
fundamental liberty interest in having the children with him.
[¶26] Although the court stated that its
balancing of the fundamental liberty interests of the parties
was not a " governing factor" in its final decision
-- the court stated that it had " principally
rel[ied]" on its findings and conclusions under section
19-5-105 -- we conclude that to the extent that the
court's analysis of the rights of the parties colored its
interpretation of section 19-5-105 and influenced its final
decision, that analysis is relevant to the issues raised in
this appeal, and we believe that a discussion of the
parties' rights and the state's interests will be
helpful in understanding our analysis of the issues presented
on appeal. Accordingly, we will begin with that discussion.
[¶27] The parties do not dispute (and we
agree) that father has a fundamental liberty interest in the
care, custody, and control of his children. As the possessor
of such an interest, father was entitled to the presumption
that he was acting in the best interests of the children in
seeking custody of them.
[¶28] In Troxel v. Granville, 530
U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the
United States Supreme Court noted that this is " perhaps
the oldest of the fundamental liberty interests recognized by
this Court." Citing case after case in which the "
fundamental right of parents to make decisions concerning the
care, custody, and control of their children" had been
recognized by the Court, the Court concluded that in light of
such extensive precedent, it could not be doubted that the
right of parents to make such decisions is protected by the
Due Process Clause of the Fourteenth Amendment. Id.
[¶29] To give effect to a parent's right
to due process in matters involving the care, custody, and
control of his child, the Supreme Court held that " [i]f
a fit parent's decision of the kind at issue here [in
Troxel, grandparent visitation] becomes subject to
judicial review, the court must accord at least some special
weight to the parent's own determination."
Id. at 70. A parent's fitness is important,
because " there is a presumption that fit parents act in
the best interests of their children." Id. at
68. In Troxel, no court had found that the parent
was unfit. Nevertheless, the lower court had given no special
weight to the parent's determination of the
children's best interests, and the lower court's
order was not founded on any " special factors"
that might have justified the state's interference with
the parent's fundamental right to make decisions
concerning the rearing of her children. Id. at
68-69. Stating that " the Due Process Clause does not
permit a State to infringe on the fundamental right of
parents to make child rearing decisions simply because a
state judge believes a 'better' decision could be
made," the Court found that the Washington grandparent
visitation statute was unconstitutional as applied.
Id. at 71.
[¶30] In Colorado, a parent's
fundamental right to the care, custody, and control of his
child has long been recognized. More than one hundred years
ago, in a case involving a contest for custody between a
mother and her child's grandparents, the Colorado Supreme
Court stated that
We are firmly of the opinion that in all cases of this
character the presumption is that the parents are fit and
suitable persons to be intrusted with the care of their minor
children, and that the interests and welfare of such children
are best subserved when under such care and control; that
such presumption is like unto the presumption of innocence in
a criminal case, ever present, throughout the ...