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In re Petition of E.R.S.

Court of Appeals of Colorado, Fifth Division

March 21, 2019

In re the Petition of E.R.S., Petitioner-Appellee, For The Adoption of I.E.H., a Child, and Concerning J.H., Respondent-Appellant.

          Grand County District Court No. 16JA1 Honorable Mary C. Hoak, Judge

          Maxine LaBarre-Krostue, Grand Lake, Colorado, for Petitioner-Appellee

          Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado, for Respondent-Appellant

          OPINION

          BERNARD, CHIEF JUDGE

         ¶ 1 This is a stepparent adoption proceeding. J.H., mother, and J.D.S., father, had a child, I.E.H., in 2008. Mother appeals the juvenile court's judgment terminating her legal relationship with the child. But, before we get to mother's substantive contentions, we must decide a preliminary question - Can we review an order that terminates parental rights in anticipation of a stepparent adoption when the court has not finalized the adoption? We answer this question "yes," concluding that the order is final and that we can review it on appeal.

         ¶ 2 We next turn to mother's substantive contentions. We first conclude that the juvenile court in this case had jurisdiction to resolve the petition for stepparent adoption even though the child was subject to an existing parenting time order in a paternity proceeding.

         ¶ 3 Second, we decline to address a series of issues that mother raises on appeal but that she did not preserve in the juvenile court.

         ¶ 4 Third, we deny mother's assertion that her counsel was ineffective.

         ¶ 5 Fourth, we reject mother's contention that the juvenile court's findings were insufficient.

         ¶ 6 We therefore affirm the juvenile court's judgment terminating mother's legal relationship with the child.

         I. Background

         ¶ 7 Mother was wounded while serving in the military. She suffers from post-traumatic stress disorder.

         ¶ 8 She was the child's primary caregiver when he was born. When the child was about seventeen months old, father initiated a paternity proceeding. After father proved that he was the child's father, the juvenile court adopted a parenting plan that gave father three nights of parenting time each week.

         ¶ 9 In May 2013, mother agreed that the child should live full-time with father so that she could have the opportunity to rebuild her life. Five months later, mother and father formalized this agreement by filing a written stipulation in the paternity case. It stated that "[m]other shall have parenting time upon agreement of the parties once she is able to regain her stability with housing and employment." But it also contained two provisions that are central to our analysis.

         ¶ 10 One provision encouraged mother to maintain her relationship with the child and to spend time with him as (1) her schedule allowed; and (2) as mother and father would agree. The second provision obligated mother to pay $569.38 each month in child support.

         ¶ 11 The juvenile court adopted the stipulation. But, by 2014, mother had not paid any child support, so the court activated an income assignment to collect it. There was no further action in the paternity case.

         ¶ 12 In August 2016, the child's stepmother, E.R.S., filed a petition to adopt the child and to terminate mother's parental rights. The juvenile court opened an adoption case, which was separate from the paternity case. Mother filed an objection to the petition in late November.

         ¶ 13 The juvenile court held a hearing in the adoption case over three days from January to April 2017. At the end of the hearing, the court decided that mother had abandoned the child and that she had not demonstrated sufficient cause to excuse her breach of her obligation to pay child support. The court then determined that it was in the child's best interests to terminate mother's parental rights and to allow stepmother to adopt him.

         ¶ 14 But the court did not issue an adoption decree. It instead continued the case to hold a final hearing at which it would issue the decree. It also said that, if mother appealed the order terminating her rights and allowing stepmother to adopt the child - which we shall refer to simply as the "termination order" - it would wait to hold the final hearing until after the appeal was resolved.

         ¶ 15 Mother then filed this appeal in the adoption case. Because it looked like the termination order would not be final until the juvenile court issued the adoption decree, we stayed the appeal to allow stepmother to ask the juvenile court to issue one. But mother objected to the stay. We therefore recertified the appeal, and we ordered mother and stepmother to file simultaneous briefs addressing the question whether the termination order was final.

         II. Finality of Termination Order

         ¶ 16 We must decide, as an initial matter, whether the termination order is final even though the juvenile court did not issue an adoption decree. We conclude that the order was final and, therefore, it is appealable.

         ¶ 17 Section 19-1-109, C.R.S. 2018, governs appeals from proceedings under the Colorado Children's Code, including stepparent adoptions. Referencing section 13-4-102(1), C.R.S. 2018, section 19-1-109(1) states that a party may appeal "any order, decree, or judgment." Section 13-4-102(1) adds that ...


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