the Parental Responsibilities A.R.L. v. Havens

• Decision Date: 05 December 2013
• Docket Number: Court of Appeals No. 13CA0342
• Parties: IN REthe PARENTAL RESPONSIBILITIES OF A.R.L., a Child, and Concerning Elizabeth Limberis, Appellant, and Sabrina Havens, Appellee.
• Court: Colorado Court of Appeals

318 P.3d 581

IN REthe PARENTAL RESPONSIBILITIES OF A.R.L., a Child,

and

Concerning Elizabeth Limberis, Appellant,

and

Sabrina Havens, Appellee.

Court of Appeals No. 13CA0342

Colorado Court of Appeals.,

Div. IV.

Announced December 5, 2013

Logan County District Court Nos. 11DR107 & 12JV42, Honorable Charles M. Hobbs, Judge

Willoughby & Associates, Kimberly R. Willoughby, Leslie Hansen, Denver, Colorado, for Appellant.

Bauer & Furman, PC, Steven M. Furman, Fort Morgan, Colorado, for Appellee.

Opinion by JUDGE DUNN

¶ 1 Can a child have a biological mother and a presumptive mother under the Colorado Uniform Parentage Act, sections 19–4–101 to –130, C.R.S.2013 (UPA)? The trial court implicitly answered this question “no,” when it denied Elizabeth Limberis' petition for maternity for A.R.L., a child conceived during Limberis' relationship with her former partner, Sabrina Havens. Thus, the trial court did not consider and determine whether Limberis was the child's presumed mother under the UPA.

¶ 2 We conclude that, in the context of a same-sex relationship, a child may have two mothers under the UPA—a biological mother and a presumptive mother. We therefore reverse the trial court's denial of Limberis' petition for maternity and remand for a determination of her petition on the merits.

I. Background

¶ 3 Limberis and Havens began living together in 2000. Several years into their relationship, Havens and Limberis decided to have a child. Havens underwent one round of artificial insemination, but did not conceive.

¶ 4 After this failed attempt, Havens' friend, Marc Bolt, agreed to inseminate her through sexual intercourse. Neither Havens nor Bolt revealed their sexual encounter to Limberis. Havens later conceived.

¶ 5 Havens gave birth to A.R.L. in 2008.¹ Limberis was present at A.R.L.'s birth. She and Havens agreed to give the child Limberis' last name. A.R.L.'s birth certificate identifies Havens as A.R.L.'s mother, but does not identify a father.

¶ 6 Havens, Limberis, and A.R.L. lived in Limberis' home, and together the couple parented A.R.L. Beginning in 2009, however, Limberis and Havens went through a series of separations and reconciliations. Although Havens initially had primary care of A.R.L., Limberis gradually began exercising regular parenting time. Eventually, she and Havens shared equal parenting time for A.R.L.

¶ 7 In 2010, Limberis petitioned for a second-parent adoption of A.R.L. Havens consented to the petition, representing to the court that A.R.L. was conceived through assisted reproduction, and had no other parent. The court ultimately dismissed the adoption petition. Limberis did not appeal that ruling.

¶ 8 In 2011, Limberis and Havens separated for the last time, and Limberis filed a petition for parental responsibilities under section 14–10–123(1), C.R.S.2013. After their separation, Havens and Limberis continued to co-parent. Eventually, however, Havens terminated all contact between Limberis and A.R.L.

¶ 9 Havens contested Limberis' request for allocation of parental responsibilities and joined Bolt as a party. Bolt responded, describing himself as a sperm donor. He later filed a petition to relinquish his parental rights. In his relinquishment counseling interview, Bolt confirmed that he was not part of A.R.L.'s life and did not want to be.

¶ 10 Limberis then petitioned for maternity under the UPA. She alleged, among other things, that because she had received A.R.L. into her home and held A.R.L. out as her own, she was a presumed parent under the UPA. See§ 19–4–105(1)(d), C.R.S.2013 (the holding out provision). Attached to her petition was Bolt's sworn “admission of nonpaternity,” in which he confirmed that he (1) is not A.R.L.'s legal parent; (2) never intended to be A.R.L.'s legal parent; (3) only acted as a sperm donor; (4) did not wish to claim any legal rights to A.R.L.; (5) always understood that Limberis and Havens would be A.R.L.'s natural parents; and (6) did not object to an adjudication of Limberis as A.R.L.'s mother.

¶ 11 Havens moved to dismiss Limberis' maternity petition for failure to state a claim upon which relief could be granted. Havens argued that because A.R.L. had a father and a mother, Limberis could not be a second mother and third parent under the UPA. The trial court summarily dismissed Limberis' petition “for the reasons set forth in the motion to dismiss.” Limberis moved for reconsideration, arguing, as relevant here, that she had the capacity to bring a maternity claim under the UPA, and that she could present evidence that she was A.R.L.'s presumptive parent under the UPA's holding out provision.

¶ 12 The trial court consolidated the parental responsibilities proceedings with the maternity proceedings and held a hearing. The court stated it would also consider Limberis' motion for reconsideration. After the hearing, the court denied Limberis' maternity petition on the basis that the case did not present a surrogacy or sperm donor situation. Rather, the court explained that because A.R.L. had two biological parents, it was “not willing to create a new legal category.” As a result, the court did not determine whether Limberis had presented sufficient evidence to establish that she is A.R.L.'s presumptive mother. The court then allocated all parental responsibilities to Havens, based primarily on the testimony and report of the child and family investigator.

¶ 13 Twelve days later, the court granted Bolt's petition to relinquish his parental rights, leaving A.R.L. with only one legal parent.

¶ 14 Limberis appeals the trial court's denial of her maternity petition, and the order allocating parental responsibilities entirely to Havens.

II. Limberis' Maternity Petition

¶ 15 Limberis contends that the trial court erred in denying her maternity petition on legal grounds, without considering the merits of the petition. We agree.

A. Standard of Review

¶ 16 Whether Limberis may bring a maternity petition under the UPA as a second legal mother to A.R.L. is an issue of statutory interpretation that we review de novo. See In re Parental Responsibilities of M.D.E., 2013 COA 13, ¶ 9, 297 P.3d 1058; cf. In Interest of S.N.V., 284 P.3d 147, 149 (Colo.App.2011) (conducting de novo review of trial court's decision that biological father's wife did not have the legal capacity to seek a declaration of maternity under the UPA).

B. Capacity or Standing to Bring a Maternity Action

¶ 17 Under the UPA, “[a]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship.” § 19–4–122, C.R.S.2013. Limberis alleged facts in her maternity petition that, taken as true, demonstrate that she is an interested party. Havens does not contest that Limberis is an interested party. Accordingly, to the extent the trial court's denial of Limberis' petition was based on a conclusion that Limberis lacked capacity to bring an action under the UPA, we disagree. See S.N.V., 284 P.3d at 149 (holding that child's biological father's wife had the capacity as an interested party under the UPA to bring a maternity action).

C. Presumptive Parentage Under the UPA

¶ 18 The purpose of the UPA is to establish and protect the parent-child relationship. See id. at 150. The UPA extends the parent-child relationship to all children equally, regardless of the parents' marital status. § 19–4–103, C.R.S.2013. And at the heart of any parentage decision is the child's best interests. See People In Interest of C.L.S., 313 P.3d 662, 666–68, 2011 WL 5865898 (Colo.App. No. 10CA1980, Nov. 23, 2011).

¶ 19 The parent-child relationship includes the mother and child relationship and the father and child relationship. § 19–4–102, C.R.S.2013. The UPA does not define the parent-child relationship based only on biological or adoptive connections to a child. N.A.H. v. S.L.S., 9 P.3d 354, 360–62 (Colo.2000) (recognizing that biology is not conclusive in establishing parentage under UPA); see also Lehr v. Robertson, 463 U.S. 248, 261–62, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (approving state law requiring more than existence of a mere biological link to establish parentage). To the contrary, the UPA reflects the legislature's intent to allow a man or woman to prove paternity or maternity based upon considerations other than biology or adoption. See§ 19–4–105, C.R.S.2013 (parent-child relationship may be demonstrated by, among other things, marriage, a written acknowledgment of paternity, consent to be named on the birth certificate, a promise to pay child support, or receiving the child into one's home and holding the child out as a natural child); see also§ 19–4–104, C.R.S.2013 (recognizing that parent-child relationship may be established by “any other proof specified in this article” and based on proof other than adoption or natural birth). Thus, the determination of parentage is not limited to genetics. Depending upon the evidence presented, a person may be a presumed parent without being a biological or adoptive parent. E.g., In re Parental Responsibilities of A.D., 240 P.3d 488, 491 (Colo.App.2010) (affirming finding of presumptive parentage of nonbiological father and rejecting argument that under the UPA a biological or adoptive relationship is required to establish parent-child relationship).

¶ 20 Under the UPA's holding out provision, a man is presumed to be the father of a child if “he receives the child into his home and openly holds out the child as his natural child.” § 19–4–105(1)(d). And while most of the reported decisions focus on presumed fathers, the holding out provision applies with equal force to women seeking to demonstrate presumptive mother status. See§ 19–4–122 (the provisions of this article applicable to determine the father and child relationship also apply, when practicable, to determine the existence of a mother and child relationship);§ 19–4–125, C.R.S.2013 (“In case of a maternity suit against a purported mother, where appropriate in the...