In re the Petition of C.L.S.

• Decision Date: 03 March 2011
• Docket Number: No. 10CA0529.,10CA0529.
• Parties: In re the Petition of C.L.S.,andLutheran Family Services of Colorado, Inc., Petitioner–Appellee,In the Interest of E.N.S., a Child,andConcerning J.O., Respondent–Appellant,andN.M. and J.M., Intervenors–Appellees.
• Court: Colorado Court of Appeals

252 P.3d 556

In re the Petition of C.L.S.,andLutheran Family Services of Colorado, Inc., Petitioner–Appellee,In the Interest of E.N.S., a Child,andConcerning J.O., Respondent–Appellant,andN.M. and J.M., Intervenors–Appellees.

No. 10CA0529.

Colorado Court of Appeals, Div. V.

March 3, 2011.

Myatt Brandes & Gast, PC, Robert W. Brandes, Jr., Fort Collins, Colorado, for Petitioner–Appellee.J.O., Pro Se.Wedgle & Kukreja, P.C., Rajesh K. Kukreja, Maricela C. Barbosa, Denver, Colorado, for Intervenors–Appellees.Opinion by Judge WEBB.

J.O. (father), allegedly the biological father of E.N.S., appeals pro se from the order denying his motion for relief from the judgment terminating his parental rights. The child's mother, C.L.S., voluntarily relinquished custody to petitioner, Lutheran Family Services (LFS), which facilitated the child's adoption by intervenors, N.M. and J.M. (adoptive parents). The district court terminated father's rights under section 19–5–103.5, C.R.S.2010, which permits a parent who voluntarily relinquishes rights to a child less than one year old to file an expedited petition to relinquish not only that parent's rights but also those of the other parent.

We conclude that because mother knew father's identity, her fraudulent failure to disclose this information to the court resulted in the termination of his parental rights without due process, and therefore the judgment terminating his rights by default is void.¹ We further conclude that the district court erred in determining that the ninety-day limitations period in section 19–5–105(4), C.R.S.2010, and the six-month limitations period in C.R.C.P. 60(b)(2), left it without discretion to grant father relief from the judgment. ² Accordingly, we reverse the order denying father's motion, vacate the default judgment terminating his parental rights, and remand the case to the district court for a relinquishment hearing.

I. Background

The following facts were either undisputed in the parties' filings below or found by the district court, with sufficient record support.

Before the child was born, mother retained the services of LFS to assist her in placing the child for adoption. She represented to the LFS caseworker and later in court documents that the child was the product of a rape committed in Douglas County and that she did not know the father's surname or how to contact him. However, mother sent father emails and text messages that the child had died.

Immediately after the child was born, LFS placed her with adoptive parents. Shortly thereafter, LFS filed a petition for expedited relinquishment in Larimer County, where LFS was located. See § 19–5–102, C.R.S.2010. LFS gave notice of the relinquishment and termination proceeding to the allegedly unknown father by publication in a newspaper in Douglas County, where mother said the child had been conceived. See §§ 19–5–103.5(2)(b), 19–5–103.7(3)(a)(I), C.R.S.2010.

The district court granted the petition, finding that LFS had complied with the statutory notice requirements, that father was the only possible birth father, and that, because he had not responded to the published notice within thirty days, he was in default. See §§ 19–5–103(2.5), 19–5–103.5(3)(d)(I)(B), 19–5–104(4), 19–5–105(4), C.R.S.2010. It terminated both parents' rights and granted LFS legal custody and guardianship of the child, with authority to place her for adoption.

The adoption proceedings took place in Jefferson County, where adoptive parents lived. See § 19–5–204, C.R.S.2010. That court entered the final adoption decree on June 23, 2008. The child has remained in adoptive parents' care.

On February 1, 2009, mother sent father a text message telling him that the child was alive and had been adopted. However, she did not provide him with any information concerning the termination proceeding, the adoption proceedings, or the adoptive parents.

In September 2009, father filed a paternity action in Arapahoe County, where mother lived. A magistrate dismissed the case without prejudice, finding lack of jurisdiction to vacate the Larimer County termination order or the Jefferson County adoption decree.

On November 2, 2009, father filed a petition to establish paternity in Larimer County. The court held the paternity case in abeyance pending resolution of father's pro se motion to vacate the termination order, which he filed on December 4, 2009. His admission in these filings created a rebuttable presumption of paternity under section 19–4–105(1)(f), C.R.S.2010.

In that motion, father alleged that he was unaware of the relinquishment and adoption proceedings because he made no inquiries after mother told him the child had died. He provided documents establishing that contrary to mother's representations to LFS and the court, she knew his identity and whereabouts, and she was in contact with him during the relinquishment proceedings. He asserted that he first learned the child was alive and had been adopted on March 29, 2009, when he accessed a computer and read the text message mother had sent him on February 1, 2009. Although father did not use the term “due process” in his filings or cite C.R.C.P. 60(b), he argued that mother's intentional and fraudulent omission of his name from court documents deprived him of actual notice of the proceedings and an opportunity to contest the termination of his parental rights.

The district court denied father's motion to vacate as time barred, without addressing whether notice by publication violated his due process rights. The court found that regardless of whether father learned that his parental rights had been terminated on February 1, 2009, when mother sent the text message, or on March 29, 2009, when he allegedly read it, his December 4, 2009 motion was filed outside the statutory ninety-day deadline for vacating a relinquishment/termination order and the six-month deadline under C.R.C.P. 60(b)(2) for challenging judgments obtained by fraud. The court also found that even if father's motion had been timely filed, “vacating the termination order, which would effectively vacate the adoption, would likely cause life-long emotional and psychological harm for the child,” and was thus not in her best interests.

II. The Default Judgment Terminating Father's Parental Rights Is Void Because It Violated His Right to Due Process

Father first contends the judgment terminating his parental rights must be vacated because mother's fraudulent misrepresentations to LFS and the court deprived him of notice and an opportunity to be heard. We construe this argument to adequately allege that the proceedings violated his constitutional right to due process. See People v. Bergerud, 223 P.3d 686, 696–97 (Colo.2010) (pro se allegations “will be broadly construed to ensure [the movant] is not denied review of important constitutional issues simply for his inability to articulate his concerns within the legal lexicon”). We agree with father and conclude that the judgment terminating his parental rights by default is void.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Thus, “when termination is sought, due process requires that the parent be provided with adequate notice of the termination hearing and an opportunity to protect his or her interests at the hearing itself.” In re J.M.A., 240 P.3d 547, 550 (Colo.App.2010).

A judgment entered in violation of due process is void. E.B. Jones Constr. Co. v. City & County of Denver, 717 P.2d 1009, 1013 (Colo.App.1986). The failure to provide proper notice “may, in appropriate circumstances, constitute a due process violation that requires vacating” the resulting judgment. First Nat'l Bank v. Fleisher, 2 P.3d 706, 712 (Colo.2000); see also Mason–Jares, Ltd. v. Peterson, 939 P.2d 522, 524 (Colo.App.1997) (judgment void because service by publication did not satisfy due process where plaintiff discovered defendants' location during publication process). A default judgment is not void for failure to provide notice if “the defaulting party was nonetheless aware that a default judgment was sought against it and that the defaulting party had sufficient opportunity to be heard.” First Nat'l Bank, 2 P.3d at 714.

Here, the district court found, and neither LFS nor intervenors dispute, that mother intentionally misrepresented to LFS and in court documents that she did not know father's identity and whereabouts to avoid notifying him of the relinquishment proceedings. Neither LFS nor intervenors argued below, nor do they argue on appeal, that father had notice of the relinquishment petition. Thus, these findings and the undisputed facts establish that notice of the proceedings by publication deprived father of an opportunity to contest the termination of his parental rights.

Accordingly, the judgment terminating father's parental rights by default is void. See Armstrong, 380 U.S. at 547, 550, 85 S.Ct. 1187; In re Haley D., 403 Ill.App.3d 370, 342 Ill.Dec. 835, 933 N.E.2d 421, 426–27 (2010) ( appeal allowed Oct. 29, 2010); In re Adoption of D.C., 887 N.E.2d 950, 957–60 (Ind.Ct.App.2008); Velasco v. Ayala, 312 S.W.3d 783, 799–800 (Tex.App.2009).

III. The District Court Erred by Denying Father's Motion as Time–Barred

Father next contends he filed his motion as expeditiously as possible and the district court erred by concluding it did not have discretion to grant relief from the judgment because the motion was time-barred under section 19–5–105(4) and C.R.C.P. 60(b). Neither LFS nor intervenors raised below, nor do they argue on appeal, any other defenses to father's motion. We conclude that because the judgment is void neither limitations period...