Petition of R.H.N.

• Decision Date: 16 December 1985
• Docket Number: No. 84SC93,84SC93
• Citation: 710 P.2d 482
• Parties: In the Matter of the Petition of R.H.N. And Concerning D.A.K., Appellant, for the Adoption of D.D.K., A.C.K., S.E.K., Children, R.H.N., Appellee.
• Court: Colorado Supreme Court

Page 482

710 P.2d 482

In the Matter of the Petition of R.H.N. And Concerning D.A.K., Appellant, for the Adoption of D.D.K., A.C.K., S.E.K., Children R.H.N., Appellee.

No. 84SC93

Supreme Court of Colorado En Banc.

Dec. 16, 1985.

Nicholas J. Bourg, Colorado Springs, for appellant.

Jane Looney, Colorado Springs, for appellee.

DUBOFSKY, Justice.

We granted certiorari in In re R.H.N., 678 P.2d 1070 (Colo.App.1984), to consider whether the court of appeals erred in affirming the district court's order terminating parental rights of the natural father and granting a stepparent adoption. The court of appeals agreed with the district court's ruling that the father's failure to pay child support from prison earnings of $1.50 per day for twelve consecutive months constituted a failure to pay reasonable support as required by section 19-4-107(1)(e)(II), 8 C.R.S. (1978). ¹ We affirm.

On October 29, 1981, R.H.N., the stepfather, filed a petition to adopt his wife's three children by a former marriage, alleging that the children's natural father, D.A.K., had failed to support the children. At the time the petition was filed, the children were eight, seven, and five years old. Although the children's mother consented to the adoption, D.A.K., who was at that time incarcerated in the state penitentiary, denied that he had failed to provide reasonable child support without cause and refused to consent to the adoption.

The district court appointed an attorney for D.A.K. and set the matter for hearing on April 20, 1982. At the hearing, the mother testified that the May 25, 1977, dissolution of marriage decree directed D.A.K. to pay $150 a month to the Department of Social Services for child support but that D.A.K. failed to pay either the Department of Social Services or her, although D.A.K. did send his children Christmas presents in either 1977 or 1978. According to the mother, D.A.K. attempted to see the children one time in church in either 1977 or 1978, once at two o'clock in the morning in August 1978, while D.A.K. was intoxicated, and once in June 1979 after he had been drinking. During the last attempted visit in 1979, D.A.K. scuffled with the stepfather. The stepfather's testimony supported the mother's description of D.A.K.'s attempt to visit the children in the church, his visit at two o'clock in the morning in 1978, and his attempted visit during the summer of 1979. The stepfather stated that he had been providing for the children without any assistance from D.A.K. since the stepfather's marriage to the mother in November 1980.

The district court determined that D.A.K. was incarcerated from October 1977 until January 1978, from February 1978 to April 1979, and from April 1980 through the time of the termination hearing. D.A.K. earned approximately $150 per week from May 1977 until October 1977, $320 per week from May 1979 until September 1979, and $1.50 per day while incarcerated. D.A.K. testified that he gave the mother $20 or $30 when he saw the children during the summer of 1977 but that he did not pay child support when he worked during 1979 because the mother did not allow him to see his children. He claimed that he did not have the ability to provide child support while incarcerated because the $1.50 per day that he earned was put into an account that he spent on cigarettes and sundries. The district court found that the adoption was in the best interests of the children and that D.A.K. had provided no support for his children since May 25, 1977.

On appeal D.A.K. argued that the district court incorrectly totaled the nonconsecutive periods amounting to 513 days during which he was not incarcerated in finding that he had not provided support for "one year or more" under section 19-4-107(1)(e)(II), that the statute required a consecutive twelve-month period, and that the adoption petition should not have been granted because he was incarcerated for the twelve-month period immediately preceding the filing of the petition. In In re R.H.N., 673 P.2d 805 (Colo.App.1983), the court of appeals held that the "period of one year" in section 19-4-107(1)(e)(II) means a consecutive twelve-month period and that incarceration is not a per se justification for failure to pay child support. The court of appeals remanded the case to the district court to allow it to make findings regarding whether D.A.K. failed without cause to provide reasonable child support during the consecutive twelve-month period immediately preceding the stepfather's filing of the adoption petition.

On remand the district court found that D.A.K. earned $547.50 during the twelve months immediately preceding the filing of the adoption petition, that his failure to provide some portion of this amount as child support was unreasonable even during incarceration, and that this failure was without cause. ² The court of appeals affirmed the district court's order, ruling "that R.H.N. sustained his burden of proving father's failure without cause to provide reasonable support for a one-year period by clear and convincing evidence." R.H.N., 678 P.2d at 1071.

Termination of parental rights in stepparent adoption proceedings needs to be addressed in a broader context than the single provision of the statute addressed by the court of appeals, failure to pay child support without cause for one year. In contrast to termination of parental rights under section 19-4-101, 8 C.R.S. (1985 Supp.), and adoption under section 19-4-110, 8 C.R.S. (1978), which are separate proceedings, a termination/stepparent adoption is a single proceeding, commenced when a stepparent files a petition to adopt. § 19-4-107(1)(e)(II). The consequence is that the trial court must address at the same time a number of factors: (1) whether the best interests of the child are served by the termination of the natural parent's rights and by the adoption; (2) whether the natural parent failed without cause to pay reasonable child support for one year or more; and (3) whether there is any likelihood that the natural parent will provide child support.

Courts typically terminate parental rights under a "parental fault" standard, in which the court focuses on the behavior of the parent or parents, a "best interests of the child" standard, in which the court focuses on the effect of termination of parental rights on the child, or a combination of both. The issue in this case, whether an incarcerated father's failure to pay child support may serve as a basis to terminate his parental rights, has been presented focusing on parental fault. However, Colorado courts have considered stepparent petitions for adoption in the broader context of the best interests of the child. See Stjernholm v. Mazaheri, 180 Colo. 352, 356, 506 P.2d 155, 157 (1973); J.A.A. v. C.R., 618 P.2d 742 (Colo.App.1980).

One of the problems of focusing solely on parental fault is that parental rights may be terminated because a parent fails to pay child support when that parent may have a close relationship with the child and termination may be detrimental to the child. The parental fault standard ignores the child's interest in parental ties. The modern trend is to consider termination of parental rights in the context of the best interests of the child standard. Coleman, Standards for Termination of Parental Rights, 26 Wayne L.Rev. 315 (1980); Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan.L.Rev. 623 (1976); Comment, A Survey of State Law Authorizing Stepparent Adoptions without the Noncustodial Parent's Consent, 15 Akron L.Rev. 567 (1982); Note, Adoption: Adoptions Absent Parental Consent: Cases Call for Statutory Revision, 37 Okla.L.Rev. 767 (1984); Case Comment, Family Law--Massachusetts Rejects Clear and Convincing Evidence Standard in Favor of "Persuasive" Evidence in Proceedings to Terminate Parental Rights, 15 Suffolk U.L.Rev. 1337 (1981); see Note, Making Parents Behave: The Conditioning of Child Support and Visitation Rights, 84 Colum.L.Rev. 1059 (1984).

Section 19-4-112(2)(d), 8 C.R.S. (1978), provides that a court may not enter a final decree of adoption unless the adoption is in "the best interests of the child." Since section 19-4-112(2)(d) and section 19-4-107(1)(e)(II) both govern adoption, they must be construed together. People v. Hamilton, 666 P.2d 152 (Colo.1983). Because of the child's and the parent's interests in parental ties, because section 19-4-112(2)(d) requires that the court find that the adoption is in the best interest of the child in all final adoption decrees, and because focusing on parental fault ignores the fact that termination of parental rights as part of a stepparent adoption proceeding may be detrimental to the child, the best interests of the child should be considered both with respect to termination of the natural parent's rights and with respect to the adoption in a stepparent adoption proceeding. ³

In determining the best interests of the child, the court may consider, among other factors, family stability, the present and future effects of adoption, including the detrimental effects of termination of parental rights, the child's emotional ties to and interaction with the contestants, the adjustment of the child to the living situation, the child's age, and the mental and physical health of the parties. See Coleman, supra, at 336-40; Comment, Survey of State Law, supra, at 570. In this case the record supports a finding that the termination and adoption were in the best interests of the children. The district court found that the stepfather had formed a loving relationship with the children, that the stepfather had supported the children since his marriage to their mother, that the children desired the adoption, that the stepfather would provide a suitable home for the children, that the natural father previously had...