People ex rel. M.B.

• Citation: 459 P.3d 766
• Decision Date: 23 January 2020
• Docket Number: Court of Appeals No. 19CA0760
• Parties: The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF M.B., a Child, and Concerning B.B., Appellant.
• Court: Court of Appeals of Colorado

459 P.3d 766

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF M.B., a Child,

and

Concerning B.B., Appellant.

Court of Appeals No. 19CA0760

Colorado Court of Appeals, Division A.

Announced January 23, 2020

Ron Carl, County Attorney, Linda Arnold, Assistant County Attorney, Aurora, Colorado, for Appellee

Brittany Radic, Guardian Ad Litem

Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for Appellant

Opinion by JUDGE WEBB

¶1 In this termination of parental rights case as to M.B. (the child), the juvenile court’s paternity determination raises a novel question about whether, in a dependency and neglect proceeding, paternity must be resolved "as soon as practicable" — the standard under the Uniform Parentage Act, sections 19 -4-101 to - 130, C.R.S. 2019 (UPA). B.B., whom the juvenile court found to be a presumptive father of the child, appeals the court’s order that J.G. (biological father) — another presumptive father — is the child’s legal father. According to B.B., the court erred in two ways. First, by not resolving the child’s paternity until more than one year into the proceeding, the court violated the UPA, resulting in a denial of due process. Second, by adjudicating the child as to biological father but not as to B.B., and then providing only biological father with a dispositional hearing and a treatment plan, the juvenile court subjected B.B. to disparate treatment that denied him equal protection.

¶2 The Arapahoe County Department of Human Services (the Department) disputes preservation of the due process and equal protection contentions. We agree that these contentions were unpreserved. Further, we decline B.B.’s invitation to extend the plain error doctrine into dependency and neglect proceedings. And so, we refuse to address these contentions because B.B.’s due process argument does not implicate a miscarriage of justice, and because the record is inadequate to address equal protection as applied. Finally, turning to the merits, we reject B.B.’s statutory untimeliness argument and affirm the paternity determination in favor of biological father.

I. Background

¶3 In January 2018, the Department filed a petition in dependency and neglect concerning the child and two other children, both of whom were B.B.’s biological children. Before filing the petition, the Department knew that although B.B. was not the child’s biological father, he had signed the child’s birth certificate. The petition identified B.B. as the child’s "presumed father" and named John Doe as the "alleged father." A month later, the Department amended the petition to name biological father as the alleged father.

¶4 When the petition was filed, all of the children, their mother, and B.B. lived together. After the juvenile court ordered mother to leave the family home because of domestic violence, the children remained with B.B. Then in February 2018, the children were removed and later placed in foster care. Biological father was never involved with the child, nor did he seek to become involved after being named in this action.

¶5 During a February 2018 hearing, B.B.’s counsel acknowledged receipt of a treatment plan for him, but the court deferred action on it. At the adjudicatory and dispositional hearing on March 2, 2018, only the other two children were adjudicated as to B.B. He agreed to a treatment plan that was then presented to and approved by the court. The signature page component of the family services plan confirms that B.B. received a copy. But because the treatment plan is not in the record, we must infer its contents from other documents.

¶6 The family services plan presented at the March 29, 2019, hearing identifies three objectives for B.B.: parenting time, caseworker contact, and a drug/alcohol evaluation. The start date for the first and second objectives was January 31, 2018. The start date for the third objective was March 2, 2018. The last date is corroborated by discussion of substance abuse at the adjudicatory and dispositional hearing on March 2. Importantly, the purpose of the parenting time objective is "[t]o assist [the child] in developing and maintaining a positive and appropriate relationship with [B.B.]."

¶7 In June 2018, genetic testing established that biological father was the child’s biological father. The following month, the court adjudicated the child as to biological father, although it had not yet determined that he was the child’s legal father.¹ Then the Department proposed a treatment plan for him. Later, the Department moved to terminate biological father’s parental rights, but it did not address those of B.B. at that time.

¶8 During a November 2018 hearing, B.B. asked the court, "Am I able to get involved with that myself so I can take custody of [the child]?" At a January 2019 hearing, the Department’s counsel told the court that biological father "does not wish to be involved [with the child]." Then B.B. said that he was "asserting status as a psychological or any parentage toward [the child]."

¶9 Up to this point in the proceeding, neither the Department nor B.B. had requested a paternity hearing. Nor had the court determined paternity. When the Department requested a paternity determination, the court set a hearing for February 2, 2019. After the hearing was continued, the court discussed with the parties doing the paternity hearing and the termination hearing on the same day, with the termination hearing to follow the paternity determination.

¶10 After the court scheduled the hearings together, the Department filed an amended motion to terminate parental rights in the child, adding B.B. The combined hearings occurred on March 29, 2019. The Department told the court that biological father would confess the termination motion. Neither mother nor B.B. appeared. The court refused their counsels’ request to participate by telephone.

¶11 The court took up paternity first. It heard testimony from the caseworker that B.B. had not seen the child since his removal from the family home; B.B. had not pursued visitation; neither B.B. nor biological father had "acted as a parent" to the child; both B.B.’s and biological father’s treatment plans had been unsuccessful; and naming biological father as the child’s father would be in the child’s best interests because if the child inquired, biological father could provide information about the child’s biological roots.

¶12 The court treated paternity as a contest between two presumed fathers, found that biological father was the child’s legal father, and excused counsel to B.B. from the hearing. The court explained that knowing who his biological parents were for medical purposes and family history would be in the child’s best interests. It pointed out that at the start of the case, B.B. had told the Department that he did not want to pursue a relationship with the child; since the child was removed, he had not provided support for the child; he had not seen the child for over a year; and despite his November inquiry concerning a relationship with the child, he had not done anything to seek visitation.

II. Preservation

¶13 B.B. was represented by counsel throughout the dependency and neglect proceedings. His counsel never raised the due process or equal protection issues that B.B. now argues on appeal.

¶14 An action to terminate the parent-child legal relationship is a civil action. See People in Interest of C.G. , 885 P.2d 355, 357 (Colo. App. 1994). And so, like other civil actions, dependency and neglect proceedings are subject to the limitation that except where jurisdiction is implicated, generally appellate courts review only issues presented to and ruled on by the lower court. See, e.g. , People in Interest of T.E.R. , 2013 COA 73, ¶ 26, 305 P.3d 414 ("[T]o the extent that [mother] now argues an evidentiary hearing was required before the juvenile court could rule, she has waived this argument."); People in Interest of A.L.B. , 994 P.2d 476, 480 (Colo. App. 1999) ("[T]hat contention was not argued to the trial court at the conclusion of the evidentiary hearing. Hence, we decline to address it for the first time on appeal."); People in Interest of V.W. , 958 P.2d 1132, 1134 (Colo. App. 1998) ("[F]ather contends that the petition in dependency or neglect was insufficient because it did not allege abandonment as a potential ground for termination. Because the issue was not raised in the trial court, we decline to address it on appeal."); People in Interest of T.S. , 781 P.2d 130, 132 (Colo. App. 1989) ("Because mother failed to object in the trial court on the grounds now asserted, she is deemed to have waived any objection and cannot raise it on appeal.").

¶15 B.B. does not challenge the juvenile court’s jurisdiction to determine paternity in a dependency and neglect proceeding. Nor could he. See People in Interest of J.G.C. , 2013 COA 171, ¶ 10, 318 P.3d 576 ("[W]e conclude that a paternity action may be joined with a dependency and neglect proceeding.").

¶16 Instead, B.B.’s reply brief responds to the Department’s preservation challenge concerning due process that because, as a presumed father, he had a statutory right to a paternity determination, and his mere failure to request a paternity hearing cannot be deemed a waiver of his right to a prompt paternity determination. The reply brief does not explain his failure to have preserved the equal protection argument.

¶17 Even accepting B.B.’s position on waiver, two questions remain unanswered. First, why would disregard of a statutory timeliness requirement allow B.B. to raise a previously unarticulated due process claim? And, second, why should B.B. be allowed to assert an as-applied equal protection violation for the first time on appeal?

A. Review of Unpreserved Errors

¶18 B.B. requests plain error review of both his due process and equal protection claims. But plain error derives from Crim. P. 52(b), which governs criminal cases: "Plain errors or defects affecting...