There’s a saying among law school professors that “bad facts make bad law”. It’s overused and trite, but sometimes it’s the only way to explain a legal ruling that if applied in most circumstances would lead to undesirable results, but in a particular situation is the best solution the Judge can administer.

The placement of children into permanent, safe homes is a public policy goal of profound importance. (§19-5-216 C.R.S., §16-5-110 C.R.S, People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982). A conflict frequently arises, however, when the child’s interest in a stable and loving home environment conflicts with a parent’s interest in preserving the privacy and integrity of the family unit. Colorado statutes make every effort to balance these interests and ensure the due process rights of biological parents are protected in adoption proceedings. These protections are grounded in the 14th Amendment of the U.S. Constitution which has been recognized as affording parents a “fundamental liberty interest in the care, custody and control of their children.” (Troxel v. Granville, 530 US 57 (2000).

Part of the statutory balancing scheme in Colorado law involves certain time restrictions within which a biological parent must raise any objection to the termination of his or her parental rights. Without bright line limitations, the relationships of children with their adoptive families would be perpetually at risk. Specifically, §19-5-105(4) C.R.S. establishes a deadline of ninety days for vacating a relinquishment or termination order and CRCP Rule 60(b) requires that challenges to a judgment obtained by fraud must be made within a six month period or at least within a “reasonable time” if the judgment is itself is void.

What happens, however, when a biological father is purposely excluded from the termination proceedings as a result of the mother’s deliberate and intentional deceipt? This is precisely what happened in the recent Court of Appeals case In re C.L.S., 10 CA 0529 (Colo. App. 2011).

The summary of facts in this case reads like a soap opera.  The mother of the child placed up for adoption perpetrated a fraud of immense consequence. First, she wrote to the biological father and told him that the child she was carrying died. She then proceeded to deceive the Lutheran Family Services of Colorado and the District Court in Larimer County by claiming she was the victim of a rape and didn’t know who the father was. After the child had been relinquished and adopted, she decided to inform the child’s father by text message that the child was not in fact deceased, but rather had been adopted. At this point, the father began legal proceedings to set aside the adoption.

The Larimer County District Court denied father’s motion to vacate the termination of parental rights, and the subsequent adoption, finding that his motion was time barred by CRCP Rule 60(b) and §19-5-105(4) CRS. The father’s constitutional due process rights were not addressed. The district court also found that even if father’s motion had been timely filed, it would not be in the child’s best interests to vacae the termination order “which would effectively vacate the adoption, would likely cause life-long emotional and psychological harm for the child.” However, this conclusion was reached without holding an evidentiary hearing.

On appeal, the three Judge panel ruled in favor of the father (no dissent), finding that the judgment terminating his parental rights by default was void. §19-5-105(4) C.R.S. provides that other than by appeal, the only permissible basis for challenging a termination order is “fraud upon the court or fraud upon a party” and that such an order cannot be challenged on any basis, including fraud, more than ninety days after the order has been entered (emphasis added). However, the appellate court reaffirmed the preeminency of constitutional protections over statutory restrictions, citing White v. Davis, 163 Colo. 122, (1967) (“the requirements of due process of law under both the United States and Colorado Constitutions take precedence over statutory enactments”).

Going further, the Court held that not even the limitations of C.R.C.P. Rule 60(b)(3) governing relief from a void judgment would be applied. Reasoning that since a void judgment is a “complete nullity”, the court determined that the “reasonable time” deadline does not apply to a motion under C.R.C.P. Rule 60(b)(3). Thus, in theory, the Court’s ruling would permit a parent whose due process rights were violated in a termination proceeding to seek relief from that Order at any point in time thereafter.  Thus, under the holding of this case we could see adoptions challenged many years afterwards, when children are well settled into their new lives and have formed deep attachments to their adoptive parents.

In re C.L.S. was remanded to the Larimer District Court, to determine the child’s best interests, taking into consideration the father’s fundamental liberty interest in parenting his child, while also noting that a parent’s due process rights are subject to the power of the state to act in the child’s best interests. People in Interest of A.M.D., 648 P.2d 625, 632-35 (Colo. 1982)

The tragedy of this case is a child, who has lived with her adoptive parents since birth, and is now three years old. She has established a critical emotional bond with her adoptive parents and has no familiarity with the man who is her father. Although the parties have been engaged in extensive litigation, one can only hope that at this point they may consider collaborative solutions that will enable the child to enjoy stable and continuing bonds with her adoptive parents while establishing a new connection with her biological father.

 Originally published by Laurel Anne Markus on March 17, 2011.

Recent census data indicates a rise in the number of adoptions by lesbian and gay couples.  Currently, the total number of adopted children being raised in gay or lesbian households is only 65,000 (representing 4% of all adopted children).  However, between 2000 and 2009, the number of gay and lesbian couples who reported raising an adopted child rose from 8% to 19%.  Despite marriage bans and other discriminatory laws against gay and lesbian couples, an increasing number are finding creative ways to start families and protect their parenting relationships.

Approximately half of all states have law which present some obstacle to adoptions into gay or lesbian families.  Arizona law requires social workers give preference to heterosexual couples.  Many others simply provide no mechanism for two same-sex adults to both adopt or have legally recognized parenting rights to the same child.  Utah and Mississippi are the only two states remaining that flatly prohibit gay and lesbian couples from adopting.

In Colorado, “second parent” adoptions allow gay and lesbian partners to secure their relationship with their sons and daughters.  This option is frequently utilized by couples when only one parent has entered into an agency adoption (e.g. adopting a foster child) or when one parent is biologically related to the child (e.g. lesbian couples who conceived with the help of a sperm donor).  Colorado also recognizes “psychological parents”, i.e. individuals who have lived with and raised children who are not biologically related to them.  If their relationship to the children is taken away, they are permitted to sue in court for an order allowing continued parenting time, provided the court finds it to be in the child’s best interests.

In re A.B., 10 SC 104, published September 12, 2011.

This recent decision issued by the Colorado Supreme Court answers several important questions about abandonment of a child for purposes of determining whether that child is eligible to be adopted under §19-5-203(1)(d)(II) C.R.S.

In the underlying trial court case, mother and father were divorced in May 2006.  Mother was awarded sole decision making and primary residential custody.  A specific parenting time schedule for Father was not laid out by the Magistrate in the divorce proceedings.  The parties were referred for mediation, but did not attend.  Father visited the child five times post-separation, with the last visit in June 2006 one month after the divorce.  He did nothing further until December 2007, at which time he filed a motion for contempt. The motion was denied for failure to allege any facts indicating that mother had failed to comply with the court’s order.  Stepfather and Mother filed a petition for adoption in April 2008 and forty seven days later, Father retained an attorney who filed a Verified Motion to Enforce Parenting Time .

In the Juvenile Court hearing father testified that he had visited the child infrequently while the divorce was pending and only for brief periods of time.  He also testified that for a period of 21 months he had made no contact with the child, neither visiting, calling, nor sending any cards, letters or gifts.   The Juvenile Court found mother’s testimony credible that she had not prevented Father from visiting child, that he knew where the child was and how to contact the child, but chose not to do so.  After considering all of the facts, the trial court determined that father’s filing of a motion for parenting time in December 2007 was outweighed by the significant period of time (21 months) in which he made no effort to maintain a relationship with the child.  Father was found to have abandoned the child and the child was eligible for adoption by a stepparent.

The Court of Appeals overturned the Juvenile Court decision, holding that father’s parenting time motion precluded a finding of abandonment and that the Juvenile Court was obligated to defer to the District Court prior to ruling on the adoption.  The Supreme Court reversed the Court of Appeals on both counts.

As far as the determination of abandonment is concerned, the Supreme Court found that the determination of abandonment is a question of fact to be made by the trial court.  The trial court’s finding should not be overturned by a higher court, unless it is clearly erroneous. The facts during this time period are to be viewed under the totality of the circumstances and the weight given to any particular fact is within the sound discretion of the trial court.

The Supreme Court’s ruling in this case clarifies that objective actions of the parent during the twelve month period immediately preceding the adoption filing governs the determination of whether the parent intended to abandon his or her child.   Thus, a parent’s reaction to notice of the adoption proceedings are not relevant for purposes of finding abandonment. The Supreme Court found that the Juvenile Court had adequately considered all the facts in making its determination that father had intentionally abandoned the child during the relevant period.

On the question of whether the Juvenile Court must defer to or wait for the District Court child custody case, the Supreme Court ruled that so long as the Juvenile Court considers the parenting time motion in its abandonment determination, it is not necessary for it to delay adoption proceedings.

This aspect of the ruling may create a procedural advantage for the parent in favor of the adoption in certain judicial districts, where the adoption docket is far less crowded and cases filed therein are concluded swiftly.  In El Paso County, for example, a child custody matter may take five to ten months to reach final orders.  But an adoption case can be concluded within six to eight weeks after the petition is filed.

It took nothing more than a period of apathy for the father of A.B. to lose his parental rights.  This is a concerning contrast to dependency and neglect cases in which significant efforts are made to rehabilitate a parent/child relationship before termination is allowed.  In re A.B. highlights the importance of maintaining contact with children post-separation and taking legal action promptly if one parent prevents the other parent from having contact with the child.