M.C. v. Adoption Choices of Colo., Inc.
| Decision Date | 20 November 2014 |
| Docket Number | Court of Appeals No. 13CA2280 |
| Citation | 369 P.3d 659 |
| Parties | M.C., Appellant, v. ADOPTION CHOICES OF COLORADO, INC., Appellee, and T.W. and A.W., Intervenors–Appellees. |
| Court | Colorado Court of Appeals |
Lasher Legal Resolution, P.C., S. Scott Lasher, Kelly L. Snodgrass, Denver, Colorado, for Appellant.
Catherine A. Madsen, P.C., Catherine A. Madsen, Westminster, Colorado, for Appellee.
Berenbaum Weinshienk PC, Rajesh K. Kukreja, Denver, Colorado, for Intervenors–Appellees.
Opinion by JUDGE GRAHAM
¶ 1 M.C. (father), the biological father of twins A.H.Z. and V.D.Z. (children), appeals from the judgment terminating the parent-child legal relationship between him and the children, and awarding permanent legal custody of the children to T.W. and A.W. (intervenors). We reverse the judgment and remand the case for further proceedings.
¶ 2 On September 13, 2012, J.Z. (mother) gave birth to the children in Grand Junction, Colorado. The next day, she completed a petition for expedited relinquishment of her parental rights pursuant to section 19–5–103.5, C.R.S.2014. She also completed supporting documents, including an affidavit and declaration of paternity. She provided a first name for the children's father, but alleged that she did not know his last name, his address, his telephone number(s), the name of his employer, or other information that might have been used to locate him. A few days later, the documents were filed in the district court of Clear Creek County, Colorado. At the same time, petitions to terminate the parent-child legal relationship between father and the children were filed by Adoption Choices of Colorado, Inc. (Adoption Choices), a licensed child placement agency. Adoption Choices alleged that on August 24, 2012, father and any and all other unknown birth fathers had been given notice of the anticipated relinquishment by publication in the Denver Business Journal, a publication in Denver County, Colorado, where the conception had allegedly taken place and where mother allegedly resided. There had been no response to the notice.
¶ 3 Intervenors, who were clients of Adoption Choices, were selected by mother to be the children's adoptive parents. Intervenors were allowed to be present for the children's birth, and, on the day of their birth, Adoption Choices placed the children with them. Under the terms of the placement agreement, intervenors acknowledged "the uncertainties associated with predicting ... whether birth parents' rights will be terminated" and specifically acknowledged that Adoption Choices was relying on information from the birth mother as to the birth father's identity, and, if that information was incorrect, the birth father might have a claim to the children in the future. Intervenors also entered into (1) a temporary custody agreement, under which they acknowledged that problems might arise, including but not limited to claims by the birth parents, and that the placement of the children did not ensure that the adoption would proceed to finalization; (2) legal risk agreements for the children, under which they chose to accept immediate custody of the children, knowing that there was a legal risk that the children could be removed from their home due to "contested matters" in the adoption, rather than allow the children to be placed in a transitional home until all potential barriers to finalization of the adoption had been removed; and (3) a service agreement, under which they acknowledged that an adoption placement presents risks that might or might not be known to them, that a child is not legally available for adoption until a court order is entered legally divesting the birth parents of their parental rights, and that even after termination of the birth parents' rights, they could change their minds about the adoption if fraud or duress existed.
¶ 4 Because father had not responded to notice of the children's birth—notice that had been given to him by publication—his legal relationship with the children was terminated on September 21, 2012. The final decree of adoption was entered on December 27, 2012.
¶ 5 In February 2013, father appeared and sought relief from the judgment terminating his parental rights pursuant to C.R.C.P. 60(b)(2). He alleged that he and mother had met in October 2011 and had a long-distance dating relationship for approximately six months; mother had told him that she was pregnant in January 2012; and he and mother had arranged for her to relocate from her home in Grand Junction to his home in Des Moines, Iowa, so that they could live together during the pregnancy. He stated that she had moved to Des Moines in March 2012, but, about one week before the move, she told him that she had experienced a miscarriage. Shortly after moving in with him, she moved back to Grand Junction, stating that she was homesick, and thereafter, they ceased dating and had minimal contact with one another. He stated that he believed that mother had lost the pregnancy and did not discover mother's deception until December 18, 2012, when a friend told him that mother had given birth to twin boys and then given them up for adoption, representing to the court and to the adoptive parents that she did not know who the father was. Arguing that the order terminating his parental rights was void because of mother's fraud upon the court, father asked the court to grant him relief from the judgment and full custody of the children.
¶ 6 Intervenors sought and were granted leave to intervene in the proceeding. They opposed father's motion, arguing in part that even if father could prove the existence of fraud, the court should deny the motion in light of the interest of the state in the finality of adoptive placements; intervenors' fundamental liberty interest in the care, custody, and control of their adopted children; and the children's fundamental right to preserve their relationship with intervenors.
¶ 7 While the legal proceedings continued, father began trying to arrange a meeting with the children. Eventually, he and intervenors agreed on a three-step process: first, he and intervenors would exchange letters of introduction; second, he and intervenors would meet; and finally, he would meet the children. The letters were exchanged in late April. In his letter, father thanked the intervenors for the care they had given the children and expressed his sympathy for them and his hope that they would have the strength to get through "this difficult time." However, he made it clear that he wanted the opportunity to raise the children himself. On April 29, father's attorney was advised that "given the tenor of [father's] letter," intervenors did not believe that there was much value in meeting with him, nor were they interested in setting up a meeting for him with the children.
¶ 8 Further efforts to resolve the question of visitation failed. In early May, father's attorney suggested raising the issue of parenting time at an upcoming status conference. In response, intervenors' attorney questioned father's legal right to parenting time and stated that intervenors did not believe that contact with father would be in the children's best interests. He indicated that intervenors would not agree to the court taking any action on visitation without a formal motion and response.
¶ 9 On May 31, the court conducted a hearing on the question of mother's alleged fraud. The court found that there was "overwhelming evidence" that mother had failed to disclose father's full identity and contact information to Adoption Choices, and that the termination of father's parental rights had been procured by fraud. Citing In re C.L.S., 252 P.3d 556 (Colo.App.2011), the court determined that, as a matter of law, the prior termination of father's parental rights was void.
¶ 10 On June 1, 2013, father was allowed to meet the children for the first time. Intervenors were present during the entire visit, which lasted about one hour. No further visitation was offered to him.
¶ 11 A two-day hearing had been scheduled for June 25 and 26 to resolve the remaining issues in the case. After determining that the termination of father's parental rights was void, the court sua sponte continued that hearing to October 2 and 3, 2013, citing the parties' ongoing disputes over discovery and the need to ensure that all parties had the time needed to fully prepare and present their cases to the court. Father immediately asked the court to amend its order to permit the hearing to go forward on June 25 and 26 as planned. He argued that as a result of mother's fraud, he had been denied the opportunity to parent his children since their birth; he had done nothing to prolong the litigation because he knew that the longer it went on, "the louder would be the cries of both [Adoption Choices] and Intervenors that to remove the children from their adoptive home would [be] irreversibly or at least severely damaging to the children"; he was prepared to proceed; and there was no good cause for a continuance.
¶ 12 The court declined to change the hearing schedule, but agreed that father would be prejudiced unless he was able to exercise parenting time. Accordingly, in an order dated June 21, 2013, the court ordered the parties to "confer and arrange visitation for [father] with the children not less than two eight hour periods per week." Visitation was to take place at a location close to intervenors' home, and the first visit was to take place within seven days of the date of the order.
¶ 13 After parenting time was ordered, intervenors communicated directly with father to suggest that "it would be best for the boys to ease into [visitation] and go a bit more slowly." They suggested starting out with "a few shorter visits" with one of them present, and then working up to longer visits. Father responded, through his attorney, with a proposed parenting time plan that would have begun with four-hour visits, during which intervenors could be present...
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