Custody of C.C.R.S., Matter of
| Decision Date | 30 January 1995 |
| Docket Number | No. 94SC23,94SC23 |
| Parties | In the Matter of the CUSTODY OF C.C.R.S., a Child. and concerning C.R.S., Petitioner, v. T.A.M. and M.A.M., Respondents. |
| Court | Colorado Supreme Court |
Indian Law Clinic, Robert J. Golten, Boulder, for petitioner.
David C. Johnston, Paonia, for respondents.
James Schum, Hotchkiss, guardian ad litem for C.C.R.S.
Children's Legal Clinic, Seth A. Grob, Shari Shink, Denver, for amicus curiae Children's Legal Clinic.
The Nat. Ass'n of Counsel for Children, Donald C. Bross, Marvin R. Ventrell, Denver, for amicus curiae Nat. Ass'n of Counsel for Children.
Colorado Chapter of DeBoer Committee for Children's Rights, Ellen S. Minnig, Shelly Volkman, Englewood, for amicus curiae Colorado Chapter of DeBoer Committee for Children's Rights.
We granted certiorari to review the opinion of the court of appeals in In re the Custody of C.C.R.S., 872 P.2d 1337 (Colo.App.1993). The overriding question at issue in this case is whether the best interests of the child standard, without a showing of parental unfitness, is the appropriate test for resolving a custodial dispute between a natural parent and psychological parents under section 14-10-123, 6B C.R.S. (1987).
The court of appeals determined that (1) the respondents did not lack standing to seek custody under section 14-10-123 of the Uniform Dissolution of Marriage Act (UDMA); (2) section 14-10-123 could be used by non-parents, who have custody of a child in contemplation of relinquishment and adoption proceedings, to obtain custody of the child; and that (3) due process did not require a showing of parental unfitness where there is no termination of parental rights. 1 We affirm the court of appeals' decision. We hold that the respondents have standing to petition this court for custody under either section 14-10-123(1)(b) or (1)(c). We further hold that the best interests of the child standard is the paramount consideration in a custodial dispute between a natural parent and the psychological parents. Accordingly, the trial court's award of custody to the respondents, because it was in the best interests of the child, was proper.
The trial court's undisputed findings of fact are as follows. 2
On March 5, 1990, C.R.S., the petitioner, gave birth to a son, C.C.R.S. At the time of birth, C.R.S. was twenty-three years old and unmarried. During her pregnancy, C.R.S. decided to place her son for adoption. 3 On March 6, 1990, the day after the birth of C.C.R.S., C.R.S. signed a release-of-custody form and a document entitled "Petition for Relinquishment and Waiver of Notice and Petition for Termination of the Parent-Child Relationship of Natural Father," both drafted by the respondents' attorney.
The custody agreement stated that, upon the birth of C.R.S.'s child, full custody would be given to the respondents, including authority to authorize medical treatment and make educational and religious decisions concerning the child pending finalization of the adoption proceedings. The petition for relinquishment stated that C.R.S. would relinquish her parental rights after the child was one year old so that the respondents could adopt him. It additionally stated that C.R.S. desired to relinquish the child because she believed she would be unable to provide a suitable social environment in which to raise the child and that she was motivated by the best interests of the child. Finally, the petition requested the court to terminate the parent-child legal relation of the natural father (the identity of the father of C.C.R.S. is unknown). 4 The parties agreed that the petition for relinquishment of the mother's parental rights and petition for termination of the father's parental rights would be filed one year later. They contemplated that at that time a court could enter a final order transferring legal custody and guardianship of the child to the respondents. 5
Pursuant to the agreement, the respondents were given physical custody of C.C.R.S. the day after his birth. C.C.R.S. lives with the respondents in their home located on Colorado's Western Slope and has continued to reside with them since that time. Despite the trial court's grant of continued visitation to C.R.S., C.R.S. has visited C.C.R.S. twice since his birth and has made little effort to establish a relationship with the child. 6
Approximately six months after C.C.R.S. was placed with respondents, C.R.S., through an agent, attempted to revoke her release of custody by informing the respondents that C.R.S. had changed her mind about the adoption. C.R.S., however, made no personal or written demand for the return of C.C.R.S., nor did she initiate any immediate proceedings seeking to establish or restore her right to custody.
The respondents refused to return C.C.R.S. to C.R.S. Instead, approximately two weeks later, the respondents filed a motion for a temporary order to restrain C.R.S. from taking C.C.R.S. and contemporaneously filed a petition for custody in the Delta County District Court. 7 The respondents' petition alleged that C.C.R.S. had lived with them since birth, that a strong emotional and psychological bond had developed between the respondents and C.C.R.S., and that it was in the best interests of C.C.R.S. to award legal custody to the respondents.
A magistrate held a hearing to determine temporary custody in October of 1990. The magistrate granted temporary custody of C.C.R.S. to the respondents with visitation rights to C.R.S. Though notified, C.R.S. did not attend this hearing nor was she represented at the hearing by an attorney.
Immediately prior to the temporary custody hearing, the Oglala Sioux Indian Tribe sought to intervene and have the proceedings transferred to the tribal court pursuant to the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901-1963 (1983). On July 23, 1991, the magistrate entered an order transferring jurisdiction to the tribal court. This decision was reversed on October 7, 1991, upon a finding that C.C.R.S. was not eligible for enrollment in the tribe and therefore the case was not subject to the Indian Child Welfare Act. That ruling has not been challenged.
On June 17, 1991, C.R.S. filed a renunciation of the custody agreement and the petition for relinquishment and requested that she be awarded custody of C.C.R.S. The renunciation was accompanied by an affidavit stating that she did not fully understand the import of either the custody agreement or the petition for relinquishment, that she did not have the advice of an attorney prior to executing the documents, and that she had changed her mind about relinquishing her parental rights.
In May 1992, 8 the trial court conducted a two-day trial to the court in order to determine custody of C.C.R.S. 9 The court heard testimony from the parties involved, two clinical psychologists regarding issues related to psychological attachment between adults and children and the consequences of interrupting such attachment, and two social workers from the Denver Department of Social Services. The court made extensive findings of fact. The court found that a parent-child relationship had developed between the child and the respondents and that a severance of that relationship would be psychologically traumatic to the child. 10 The trial court acknowledged that the mother "has demonstrated that she can be a fit and proper parent" as evinced by her success with another child, a seven-year-old son. 11 Notwithstanding C.R.S.'s fitness, the court determined that the respondents could provide a more "secure and healthy home environment" than the natural mother.
Based on these findings, the trial court concluded that it was in the best interests of C.C.R.S. to remain in the custody of the respondents. 12 Accordingly, the court granted respondents both physical and permanent legal custody of C.C.R.S. subject to C.R.S. having continuing rights of visitation. The court additionally ordered the respondents to make reasonable efforts to actively promote C.C.R.S.'s awareness of both his Indian and Hispanic heritage. The court finally noted that any further custody proceeding would be decided under section 14-10-131, 6B C.R.S. (1987), which allows C.R.S. to seek a change of custody.
With one member of the court dissenting, the court of appeals affirmed. The majority held that (1) the respondents did not lack standing to seek custody under section 14-10-123, 6B C.R.S. (1987), of the UDMA; (2) section 14-10-123 could be used by non-parents, who have custody of a child in contemplation of relinquishment and adoption proceedings, to obtain custody of the child; and (3) that due process did not require a showing of parental unfitness where there was no termination of parental rights.
The dissenting judge argued that C.R.S.'s relinquishment was invalid, and that the respondents lacked standing under the UDMA to seek custody of C.C.R.S. The dissent additionally maintained that the respondents had gained temporary custody of C.C.R.S. through the Children's Code and that, once C.R.S. withdrew her consent to the relinquishment and adoption procedure, C.C.R.S. should have been returned to C.R.S. The dissent finally contended that, prior to applying a best interests of the child standard, there must first be a finding by clear and convincing evidence that the natural parent is unfit. Because C.R.S. was not found to be an unfit mother, the dissent concluded that her due process rights were violated.
We granted certiorari and now review the following three issues:
Whether the court of appeals erred in concluding that respondents had standing to seek custody of C.C.R.S. under section 14-10-123, 6B C.R.S. (1987), of the Uniform Dissolution of Marriage Act.
Does a biological parent have a statutory right to the return of her child when she changes her mind several months after purportedly relinquishing her child for adoption, where the mother's...
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