Custody of C.C.R.S., In re

• Decision Date: 18 November 1993
• Docket Number: No. 92CA1142,92CA1142
• Citation: 872 P.2d 1337
• Parties: In re the CUSTODY OF C.C.R.S., a Child, and Concerning T.A.M. and M.A.M., Petitioners-Appellees. and C.R.S., Respondent-Appellant. . V
• Court: Colorado Court of Appeals

Page 1337

872 P.2d 1337

In re the CUSTODY OF C.C.R.S., a Child and Concerning T.A.M. and M.A.M., Petitioners-Appellees and C.R.S., Respondent-Appellant.

No. 92CA1142.

Colorado Court of Appeals Div. V.

Nov. 18, 1993.

Rehearing Denied Dec. 16, 1993.

Certiorari Granted May 9, 1994.

James Schum, Guardian Ad Litem.

David C. Johnston, Paonia, for petitioners-appellees.

Robert J. Golten, Boulder, Sam Cooper Hill, Hotchkiss, for respondent-appellant.

Opinion by Judge HUME.

This appeal arises from a custody proceeding that followed a voluntary private placement of a child, C.C.R.S., by his biological mother, C.R.S., in anticipation of formal relinquishment and adoption proceedings as permitted by § 19-5-104(1)(d), C.R.S. (1993 Cum.Supp.). The mother appeals from a district court order, entered pursuant to § 14-10-123, C.R.S. (1987 Repl.Vol. 6B), which awarded petitioners, T.A.M. and M.A.M., legal and physical custody of the child, subject to the mother's continuing right of visitation. We affirm.

The record on appeal is comprised of certain pleadings, motions, documents, and the final court order awarding custody to the petitioners, as designated by stipulation of the parties on appeal. No transcripts of any hearings conducted before the court or the court magistrate have been included in the record before us. The facts stated herein have been extracted from the documents in the limited record and from the briefs on appeal, and they are essentially undisputed.

During her pregnancy, the mother, then 23 years old and unmarried, made the decision to relinquish her child at birth for adoption. The mother and petitioners were brought together through relatives and mutual acquaintances, and an agreement for private placement was struck prior to the child's birth. The agreement was memorialized in two separate documents which the mother executed on March 6, 1990, the day after the birth of C.C.R.S. Those two documents were appended to the Petition for Custody filed by petitioners in September 1990, and they are included in the record on appeal.

One of the two documents, styled as a Custody Agreement, contains recitals that C.R.S. is the mother of the child born March 5, 1990, and that the identity of the child's father is unknown. It further recites that the mother also signed a Petition for Relinquishment of her own parental rights and for termination of the parental rights of the unknown father for filing by petitioners in relinquishment and adoption proceedings after the expiration of one year.

The Custody Agreement purports to grant full custody of the child to the petitioners, including authority to authorize medical treatment and make educational and religious decisions concerning the child, pending finalization of adoption proceedings. In addition, the Custody Agreement pledges the mother's cooperation in obtaining counseling necessary for relinquishment proceedings and an acknowledgement of her awareness of her right to independent legal counsel. It also states that the attorney who had prepared the Custody Agreement and the Petition for Relinquishment did not represent the mother.

The Petition for Relinquishment, which also was signed by the mother on March 6, 1990, contains an averment that she is one-half caucasian and one-half American Indian, without tribal membership or affiliation, and that while the identity of the child's father is unknown to her, the father could be one of a number of different men, none of whom are of American Indian heritage; that the mother's desire to relinquish is based upon her perception that she will be unable to provide a suitable social environment or necessary financial support for the child's needs; and that her desire to relinquish is voluntary and motivated by her consideration of the best interests of the child.

In addition, the Petition for Relinquishment recites, in some detail, the mother's understanding of the legal effects of relinquishment and adoption processes pursuant to Colorado law. It also avers that the mother expressly consents to custodial placement of the child with petitioners both before and after entry of an order of relinquishment and to their ultimate adoption of the child.

Pursuant to the agreement of the parties, petitioners took physical custody of C.C.R.S. immediately after his birth, and he has continued to reside in their household up to the present time. On August 31, 1990, nearly six months after the child had been placed with the petitioners, an agent for the mother advised petitioners' counsel that she wanted the child returned to her. However, the mother did not then make any personal or written demand for return of the child, nor did she initiate any proceedings seeking to establish or restore her right to custody of C.C.R.S.

On September 13, 1990, petitioners initiated a custody proceeding under the provisions of § 14-10-123, alleging that, during the period of six or more months that the child had lived with them, a strong bond had developed between themselves and the child and that the child's best interests would be served by an award of legal custody to them. They contemporaneously filed a motion for a temporary order seeking to restrain the mother from interfering with petitioners' physical care and custody of the child, which was granted ex parte by the court magistrate. After a hearing held on October 30, 1990, which the mother did not attend, the magistrate granted petitioners' motion for temporary custody of C.C.R.S.

Thereafter, the Oglala Sioux Indian Tribe sought to intervene and effectuate a transfer of jurisdiction over the proceedings pursuant to the Indian Child Welfare Act. Counsel was appointed to represent the mother, and a guardian ad litem was appointed to represent the best interests of the child.

After a series of continuances requested by the Tribe, an order transferring jurisdiction was entered by the magistrate and subsequently reversed by order of the district court on July 23, 1991, and that ruling is not challenged here. Thereafter, additional delays were caused by the withdrawal of the mother's counsel, appointment of new counsel, and the latter's preparation for trial of the custody proceeding.

During this period, on June 17, 1991, the mother filed a renunciation of both the Custody Agreement and the Petition for Relinquishment which she had previously executed and requested that she be awarded custody of C.C.R.S. That filing was accompanied by her affidavit containing averments that she did not fully understand the two documents she had executed after the child's birth and that she had "changed her mind" about relinquishing her rights and consenting to the child's being adopted.

In addition, sometime prior to the hearing, the mother apparently advised her counsel that a man had acknowledged to her that C.C.R.S. was his child and had stated a willingness to help her in supporting him. That man's identity was revealed to the court and to petitioners' counsel, and the man was served with notice of the custody proceeding in early March 1992. No appearance has been made in such proceeding by or on behalf of that putative father. Nor does the record contain evidence in the form of blood tests relative to such alleged paternity.

After conducting a two-day bench trial in May 1992, the district court entered the permanent custody order now in question on May 26, 1992. The court made comprehensive and detailed findings as to why the best interests of the child would be served by his remaining in the legal and physical custody of the petitioners. Those findings are not disputed here, and they must be presumed to be supported by evidence in the record, since no trial transcript has been certified as a part of the record on appeal. See Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958).

I.

The mother first argues that petitioners lacked standing to seek custody under § 14-10-123 of the Uniform Dissolution of Marriage Act (Dissolution Act). We disagree.

Our primary function in interpreting a statute is to ascertain and give effect to the intent of the General Assembly, choosing a construction to further the purpose of the legislative scheme. And, while uniform statutes generally should be construed to bring uniformity to the law in the various states adopting them, other factors must also be considered. In re Marriage of Cargill, 843 P.2d 1335 (Colo.1993). Dissimilarities in the statutes as adopted by the various states must also be considered, and the general rules of statutory interpretation must be applied in an effort to determine and effectuate the intent of the General Assembly. In re Marriage of Wells, 850 P.2d 694 (Colo.1993).

The standing of non-parents to litigate claims and to be awarded custody of children against parental interests was well established in Colorado prior to the adoption of the Dissolution Act in 1971. See Rippere v. Rippere, 157 Colo. 29, 400 P.2d 920 (1965); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962); Walcott v. Walcott, 139 Colo. 37, 336 P.2d 298 (1959).

In 1971, the Colorado General Assembly adopted a provision governing custody proceedings from the Uniform Marriage and Divorce Act (Uniform Act). Compare Colo.Sess.Laws 1971, ch. 130, § 46-1-23 at 529 with the Uniform Marriage and Divorce Act § 401, 9A Uniform Laws Annot. § 401(d) at 550 (1987 Master Ed.). Colorado was the first of only eight states to adopt the Uniform Act.

The pertinent portions of the Dissolution Act are now codified at § 14-10-123, C.R.S. (1987 Repl.Vol. 6B), as follows:

(1) A child custody proceeding is commenced in the district court or as otherwise provided by law:

(a) By a parent:

... or

(b) By a person other than a parent, by filing a petition seeking custody ... but only if the child is not in the physical custody of one of his parents....

The commissioner's comment concerning this provision of the Uniform Act explains that:

[S]ubsection (d)(2) [adopted verbatim by...