Adoption of T.K.J., Matter of

• Decision Date: 13 June 1996
• Docket Number: Nos. 95CA0531,95CA0532,s. 95CA0531
• Citation: 931 P.2d 488
• Parties: In the Matter of the ADOPTION OF T.K.J. and K.A.K., Children, Upon the Petition of G.K. and L.J., Appellants, and State of Colorado, Appellee. . I
• Court: Colorado Court of Appeals

Page 488

931 P.2d 488

65 USLW 2043

In the Matter of the ADOPTION OF T.K.J. and K.A.K., Children Upon the Petition of G.K. and L.J., Appellants and State of Colorado, Appellee.

Nos. 95CA0531, 95CA0532.

Colorado Court of Appeals Div. I.

June 13, 1996.

Rehearing Denied Aug. 1, 1996.

Certiorari Denied Jan. 21, 1997.

Holme Roberts & Owen, LLC, Katherine J. Peck, Denise M. DeForest, Denver, for Appellants.

Jeanine M. Pow, P.C., Jeanine M. Pow, Boulder (Opening Brief Only).

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Wade Livingston, First Assistant Attorney General, Paul Farley, Deputy Attorney General, Denver, for Appellee.

James A. Henderson, Denver, Amicus Curiae, Lambda Legal Defense & Education Fund, Inc., Colorado Lesbian & Gay Law Association.

Opinion by Judge METZGER.

Petitioners, G.K. and L.J., appeal the judgment which dismissed their petitions seeking the adoption of two children, T.K.J. and K.A.K., for lack of jurisdiction. We affirm.

Petitioners live together as same-sex domestic companions. Each is the natural mother of one of the two children who are the subject of the petition. Each petitioner sought a "co-parent" adoption decree that would, in effect, grant her the rights and duties associated with a "stepparent adoption" for the other petitioner's child, while retaining her parental rights over her natural child.

Before seeking the adoptions, petitioners took steps to preserve an ongoing relationship with each other's child. Each has designated the other as the guardian or conservator for her child. Likewise, each has conferred on the other durable medical and financial powers of attorney and has executed durable powers of attorney for her child, designating the other as agent for purposes of exercising parental decisions. Additionally, petitioners prepared mutual wills and testamentary trusts listing each other as primary beneficiaries and the children as alternate beneficiaries. Thus, regardless of any additional benefits that would have accrued had the adoption petitions been granted, petitioners readily acknowledge that: "This family will remain intact even if the adoptions are not granted."

The district court determined that the children were not "available for adoption" within the meaning of § 19-5-203, C.R.S. (1995 Cum.Supp.) because the petitioners were not married to each other and because each petitioner sought to retain parental rights over her natural child while consenting to the other petitioner's adoption of her child. Accordingly, it concluded that it was without jurisdiction to rule on the petitions, and entered a judgment of dismissal.

I.

Petitioners first contend that the district court erred in determining that, because they were not married and each declined to relinquish her parent-child relationship with her natural child, the children were not available for adoption. We find no error.

Adoption is a creature of statute and is governed by the provisions set out in § 19-5-201, et seq., C.R.S. (1995 Cum.Supp.). In re Petition of S.O., 795 P.2d 254 (Colo.1990). Thus, if a proposed adoption fails to conform to statutory requirements, the effort to adopt must fail, and a trial court has no power to enter a decree of adoption. Lien v. Gertz, 158 Colo. 416, 407 P.2d 328 (1965); Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).

Section 19-5-201 provides that a child may be adopted if he or she is under the age of 18 and is present in the state at the time the petition for adoption is filed. However, the child must be "available for adoption" as defined by § 19-5-203.

As pertinent here, § 19-5-203 provides:

(1) A child may be available for adoption only upon:

(a) Order of the court terminating the parent-child legal relationship in a proceeding brought under article 3 or 5 of this title;

(b) Order of the court decreeing the voluntary relinquishment of the parent-child legal relationship under section 19-5-103 or 19-5-105;

....

* * *

(d) (I) Written and verified consent of the parent in a stepparent adoption where the other parent is deceased or his parent-child legal relationship has been terminated under paragraph (a) or (b) of this subsection (1);

(II) Written and verified consent of the parent in a stepparent adoption where the other parent has abandoned the child for a period of one year or more or where he has failed without cause to provide reasonable support for such child for a period of one year or more.

....

* * *

(f) Written and verified consent of the parent or parents as defined in section 19-1-103(21) in a stepparent adoption where the child is conceived and born out of wedlock. (emphasis added)

Also relevant to this inquiry is § 19-5-211, C.R.S. (1995 Cum.Supp.) which provides in pertinent part that, after a final decree of adoption is entered by the district court:

(2) The natural parents shall be divested of all legal rights and obligations with respect to the child, and the adopted child shall be free from all legal obligations of obedience and maintenance with respect to the natural parents.

(3) Nothing in this part 2 shall be construed to divest any natural parent or child of any legal right or obligation where the adopting parent is a stepparent and is married to said natural parent. (emphasis added)

A.

In essence, petitioners argue that, because these statutes are silent on whether a person can adopt the child of a parent to whom the person is not married, without terminating the parent's rights and duties to the child they are ambiguous. Petitioners further contend the resolution of such ambiguity must be in favor of adoption based on the best interests of the children. We disagree.

It has been held that adoption statutes are to be given a liberal construction to carry out their beneficial purpose of promoting the welfare of the child. Stjernholm v. Mazaheri, 180 Colo. 352, 506 P.2d 155 (1973). However, liberal construction does not permit a court to rewrite the statute; instead, this principle may be used only to uphold the beneficial intent of the General Assembly when the wording of the statute creates a doubt. Denver United States National Bank v. People ex rel. Dunbar, 29 Colo.App. 93, 480 P.2d 849 (1970); see also In re Marriage of Swink, 807 P.2d 1245 (Colo.App.1991); § 2-4-212, C.R.S. (1980 Repl.Vol. 1B).

Thus, we must first look to the statutory language itself and give the words and phrases their commonly accepted and understood meaning. And, if we can give effect to the ordinary meaning of the words adopted by the General Assembly, we must apply the statute as written. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo.1995).

Both §§ 19-5-203 and 19-5-211 are phrased in mandatory language. Section 19-5-203(1) states: "A child may be available for adoption only upon ..." the fulfillment of certain enumerated conditions. (emphasis added) In this context, the word "only" is synonymous with "exclusively" or "solely," see Webster's Third New International Dictionary 1577 (1986), and its use serves to delimit the types of conditions that could make a child available for adoption. Similarly, § 19-5-211 lists certain effects that "shall" result from a final decree of adoption. There is no indication from the statutory context that these requirements should be read as anything other than the mandatory effects of the entry of a decree. See Barela v. Beye, 916 P.2d 668 (Colo.App.1996)(use of "shall" in statute implies mandatory meaning).

To construe these statutes to permit adoptions such as those attempted here would require that we ignore the mandatory wording of both §§ 19-5-203 and 19-5-211. This we cannot do.

We view both sections as excluding from the reach of the adoption statutes all forms of adoption not otherwise expressly permitted. As reflected in § 19-5-211(2), C.R.S. (1995 Cum.Supp.), the general rule is that a decree of adoption terminates the parental rights and duties of a child's natural parents and bestows those rights and duties on the adoptive parent or parents. Section 19-5-211(3), C.R.S. (1995 Cum.Supp.) provides a singular exception to that rule which applies only in cases of "stepparent" adoption, i.e., when the adopting parent is married to the natural parent. Thus, these express statements of limitation must be read to exclude from the statute's reach all other possible exceptions not enumerated.

B.

Petitioners next argue that § 19-5-203, as it relates to stepparent adoptions, serves only to insure proper notice to a noncustodial parent whose parental rights would be terminated by a stepparent adoption and that the statute cannot be read to prohibit other forms of adoption not enumerated. Reading this section together with other statutes relating to adoption, we disagree.

The sections of the Children's Code must be read together in order to effectuate the legislative intent and to give consistent, harmonious, and sensible effect to all their parts. R.E.N. v. City of Colorado Springs, 823 P.2d 1359 (Colo.1992). Thus, the statutes governing adoption must be construed together. In re Petition of R.H.N., 710 P.2d 482 (Colo.1985).

Words and phrases that have acquired a particular meaning by legislative definition must be construed accordingly. Resolution Trust Corp. v. Heiserman, supra.

Preliminarily, we note that when read together, §§ 19-5-203 and 19-5-211, as relevant here, contemplate two types of adoptions.

The first is an adoption in which the rights of the parents are terminated by the court or are relinquished by the parents (or by the child's guardian if the parents are deceased). In such a situation, the final decree of adoption has the effect of divesting the child's natural parents of all legal rights and obligations with respect to the child. Section 19-5-211(2).

The other situation is a "stepparent adoption." A stepparent adoption constitutes the only exception to the general rule that an...