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M.C. v. Adoption Choices of Colorado, Inc.

Court of Appeals of Colorado, Fifth Division

November 20, 2014

M.C., Appellant,
Adoption Choices of Colorado, Inc., Appellee, and T.W. and A.W., Intervenors-Appellees

          Clear Creek County District Court Nos. 12JR34 & 12JR35. Honorable David R. Lass, Judge.

         Lasher Legal Resolution, P.C., S. Scott Lasher, Kelly L. Snodgrass, Denver, Colorado, for Appellant.

         Catherine A. Madsen, P.C., Catherine A. Madsen, Westminster, Colorado, for Appellee.

         Berenbaum Weinshienk PC, Rajesh K. Kukreja, Denver, Colorado, for Intervenors-Appellees.

         Opinion by JUDGE GRAHAM. Booras and Márquez[*], JJ., concur.


         GRAHAM, JUDGE.

          [¶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.

         I. Background

          [¶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 response.

          [¶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 was void.

          [¶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 continuance.

          [¶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 alone.

          [¶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 found that

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 home.
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.

         The GAL 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 intervenors.

         II. 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. Id.

          [¶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.

         III. The Parties' Rights and the State's Interests

          [¶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 argument.

          [¶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.

         A. Father's Rights

          [¶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. at 65-66.

          [¶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 ...

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