NAH v. SLS, 99SC90.

• Decision Date: 11 September 2000
• Docket Number: No. 99SC90.,99SC90.
• Parties: N.A.H. and A.H., Petitioners, v. S.L.S., Respondent.
• Court: Colorado Supreme Court

9 P.3d 354

N.A.H. and A.H., Petitioners, v. S.L.S., Respondent.

No. 99SC90.

Supreme Court of Colorado, En Banc.

September 11, 2000.

Law Office of David M. Herrera, David M. Herrera, Fort Collins, Colorado, Law Office of Cris de la Torre, Cris de la Torre, Fort Collins, Colorado, Attorneys for Petitioners.

Mark K. Workman, Fort Collins, Colorado, Attorney for Respondent.

Carole Deeny Carnahan, Guardian Ad Litem, Fort Collins, Colorado.

Justice KOURLIS delivered the Opinion of the Court.

This case concerns the interpretation of Colorado's Uniform Parentage Act (the UPA), and causes us to determine what considerations that Act directs the courts to include in making paternity decisions. Specifically, the case involves a young girl, S.R.H., who was born in 1994, when her mother was married to N.A.H. (Husband). N.A.H. was identified on the birth certificate as her father and accepted the child into his home. However, genetic tests demonstrate that, in fact, S.L.S. (Biological Father) is the biological father of S.R.H. Pursuant to Colorado statutes, both men can claim a presumption of being S.R.H.'s legal father. Because a child can have only one legal father, the court must resolve the competing presumptions afforded these two men and adjudicate paternity for the child. Colorado's UPA specifies that in the face of conflicting presumptions, courts should look to the weight of policy and logic in settling the conflict and adjudicating paternity. Accordingly, we determine that a question of paternity is not automatically resolved by biological testing, but rather calls upon the courts to consider the best interests of the child in analyzing policy and logic as directed by the statute.

We hold that the best interests of the child must be of paramount concern throughout a paternity proceeding, and therefore, must be explicitly considered as a part of the policy and logic analysis that is used to resolve competing presumptions of fatherhood.

In this case, the magistrate did not make express findings on the best interests of the child when he adjudicated Biological Father as the child's legal father. The court of appeals upheld the magistrate's adjudication, even absent such findings. See In re S.R.H., 981 P.2d 199 (Colo.App.1998)

. Since we conclude that the court must address the best interests of the child,¹ we reverse the court of appeals and remand the case for further proceedings.

I.

A.

On June 28, 1994, A.H. (Mother) gave birth to a baby girl, S.R.H. At the time of S.R.H.'s conception and birth, Mother was married to Husband and they lived together. Husband attended the child's birth, was listed on the birth certificate as the father, and accepted S.R.H. as his own child.

During their twenty-year marriage, the couple periodically experienced marital difficulties and had a history of domestic violence. On one occasion, Mother temporarily moved out of state, and on another occasion, she visited a safe house for counseling for victims of domestic violence.

At a time when she and Husband were having difficulties, Mother became involved in an extramarital affair with a coworker, Biological Father. Mother would visit Biological Father's home, telling him that she did not want to return to her home because she feared Husband. During this time, Mother and Biological Father conceived S.R.H. Mother told Biological Father that he was the real father and that he would be listed on the birth certificate. For approximately eighteen months after S.R.H. was born, Mother left the child in Biological Father's care for ten hours every Friday while Mother worked. Biological Father also took S.R.H. on a weeklong trip out of state to meet his relatives.

Mother and Husband separated in November 1995, and she filed for dissolution of marriage. She alleged that Husband had assaulted her, and that he had not bonded with S.R.H. Shortly thereafter, however, Mother and Husband reconciled and began attending marriage counseling. In January 1996, Mother abruptly terminated Biological Father's visits with S.R.H.

As a result, Biological Father petitioned for a determination of his parent-child relationship with S.R.H. on March 5, 1996. Husband was unaware that S.R.H. was not his biological daughter until Biological Father initiated this action.

B.

After an initial hearing on April 22, 1996, the magistrate ordered genetic testing of the parties to determine whether Biological Father was, in fact, S.R.H.'s biological father. Biological Father submitted to such testing, but Mother did not present the child for testing. As a result, Biological Father moved for a declaration that he was the child's legal father under section 13-25-126(1)(a), 5 C.R.S. (1999), which provides that if a party refuses to submit to genetic tests, the court may adjudicate the question of parentage against that party.

The magistrate held a hearing on the issue on December 30, 1996. Prior to the hearing, the parties stipulated that paternity testing would show Biological Father to be S.R.H.'s biological father with greater than ninety-seven percent accuracy. At the hearing, the Guardian Ad Litem (GAL) recommended that Biological Father be allowed to pursue his paternity claim, and that the court assess the best interests of the child after the paternity determination.

On January 3, 1997, the magistrate issued an order declaring Biological Father to be the legal father. The magistrate recognized that under state law, Husband and Biological Father each were entitled to a presumption of legal fatherhood. He also recognized that the paternity statute required him to resolve the competing presumptions by considering policy and logic. See § 19-4-105(2)(a), 6 C.R.S. (1999). He then stated,

In this case the logically persuasive presumption is that the DNA testing is the most accurate way to determine who the father of the child may be. That individual is [Biological Father]. Therefore, unless this presumption is outweighed by considerations of public policy, it must control. The facts in this case do not rise to the level of showing that public policy would be served by declaring the respondent, [Husband], to be the father of the child. The Court acknowledges that [Husband] is and will continue to be an excellent and committed parent. However, this is not a case in which the Court is to select which male will do a better job of being the father of the child. [Biological Father] isn't just the sperm donor. He has shown that he wishes to be actively involved in the child's life. The record reflects that, throughout the life of the child, [Biological Father] has made reasonable attempts to see the child and be a part of the child's life. . . . Although the Court recognizes that there continues to be a strong presumption of legitimacy, that presumption is overcome by the logic of the scientific evidence.

Mother and Husband appealed this decision to the district court. The district court held that the magistrate should not have accepted the parties' stipulation as to the results of genetic testing. The district court judge stated that, "compliance with the Magistrate's order for genetic testing may eliminate the need to weigh logic and policy considerations in resolving any conflict between presumed fathers." The district court ordered the parties to complete genetic testing, and the magistrate to hold a second hearing on the issue of paternity. Mother and Husband continued to delay genetic testing. As a result, Biological Father again moved for a declaration of paternity under section 13-25-126(1)(a). In May 1997, the magistrate repeated his order for genetic testing, and Mother and Husband then complied. The tests revealed that Biological Father could not be excluded as S.R.H.'s biological father, and that the probability of his parentage was 99.68% when compared to an untested, unrelated Caucasian male.

The magistrate held a second hearing on July 1, 1997. At the outset of the hearing, the magistrate reiterated that he was deciding between competing presumptions based on policy and logic. He then made factual findings, and again adjudicated Biological Father as S.R.H.'s legal father. The court then took additional testimony, which was directed at allocating parenting time, the reintroduction of Biological Father into S.R.H.'s life, and child support. On July 12, 1997, the magistrate issued his second order declaring Biological Father to be S.R.H.'s legal father. He also ordered S.R.H.'s name to be changed, and the parties to work with a psychologist to formulate a plan to integrate Biological Father into S.R.H.'s life.

In reviewing the magistrate's order in the context of the second appeal, the district court ruled that in "determining where the weightier considerations of policy and logic are to be found, the Court is to look closely at issues touching upon the best interests of the child." After assessing the evidence, the district court concluded that "[n]othing indicated to the magistrate that contact between [Biological Father] and [S.R.H.] would be contrary to [S.R.H.'s] best interest, nor was there any evidence indicating that for [S.R.H.] to become aware that [Biological Father] is her father would emotionally or in some other fashion harm her." Therefore, the district court held that the magistrate's decision that Biological Father should be S.R.H.'s legal father was not clearly erroneous.

The court of appeals upheld the district court's ruling that Biological Father is S.R.H.'s legal father. See In re S.R.H., 981 P.2d 199 (Colo.App.1998)

. The court of appeals held that the presumption of legitimacy, which would favor Husband as the legal father, was not irrebuttable. See id. at 202. The court determined that evidence in the record supported the factual findings made by the magistrate and the district court, and that their findings as to the positive role Biological Father could play in S.R.H.'s life were not unreasonable or unfair. See id. at 203....