Petition of S.O.

• Court: Colorado Supreme Court
• Writing for the Court: MULLARKEY
• Citation: Petition of S.O., 795 P.2d 254 (Colo. 1990)
• Decision Date: 16 July 1990
• Docket Number: No. 89SA449,89SA449
• Parties: In re the Petition of S.O., Petitioner-Appellee, For the Adoption of a Child E.E.F., and Concerning D.J.T., Respondent-Appellant.

Page 254

795 P.2d 254

In re the Petition of S.O., Petitioner-Appellee For the Adoption of a Child E.E.F. and Concerning D.J.T., Respondent-Appellant.

No. 89SA449.

Supreme Court of Colorado En Banc.

July 16, 1990.

Marshall Quiat, Denver, for petitioner-appellee.

Joan S. Brett, Edwards, Terrill, Brett & Ridgway, Boulder, for respondent-appellant.

Justice MULLARKEY delivered the Opinion of the Court.

This is an appeal of a judgment of the Denver Juvenile Court denying a natural father's motion to set aside a stepparent adoption of his son by the husband of the child's mother. ¹ The appellant sought to set aside this stepparent adoption on the basis that his consent authorizing the adoption of his child was invalid because it was induced by an unenforceable promise that he could continue to have visitation rights with respect to his child. The juvenile court declined to set aside the adoption, ruling that appellant's consent to the adoption of his child was knowingly, intelligently, and voluntarily given. We affirm the judgment of the juvenile court.

I.

Appellant D.J.T. began living with T.O. in 1980 and lived with her for about five years. The two were unmarried during their entire relationship. On June 13, 1983, T.O. gave birth to a son, E.E.F., who is the subject of this dispute. T.O. conceded in an affidavit filed in the subsequent adoption action that D.J.T. was E.E.F.'s natural father. ² Following E.E.F.'s birth, D.J.T. and T.O. continued to live together with their son for about two and one-half years. During that period, D.J.T. exercised at least some of the duties and responsibilities of a father, although the exact extent to which he did so was disputed by the parties. In the Fall of 1985, T.O. ended her relationship with D.J.T. and, together with E.E.F., ceased to live with him. On October 18, 1985, T.O. married S.O., the appellee stepfather. Following T.O.'s marriage to S.O., D.J.T. continued to maintain a relationship with E.E.F., visiting him periodically in T.O. and S.O.'s home. D.J.T. did not contribute significantly to the costs of E.E.F.'s support, and was not asked to do so by T.O. ³

In the Fall of 1986, T.O. approached D.J.T. to discuss the possibility that her husband S.O. adopt E.E.F. Among other reasons, according to D.J.T., T.O. and S.O. believed it would be better for the child to have S.O.'s last name and be eligible for his medical coverage. ⁴ The evidence presented at the juvenile court hearing on the appellant's motion to set aside the adoption indicated that the parties understood that D.J.T. would continue to visit E.E.F. after the adoption. The parties dispute, however, whether such visitation was to be as a matter of right for D.J.T. or only so long as T.O. and S.O. consented to such visits. It is undisputed that when T.O. and S.O. obtained a consent form from the juvenile court, they and D.J.T. brought the form to the office of the clerk of the court and asked a clerk whether they could modify the consent form to include a provision recognizing D.J.T.'s right to visit E.E.F. The clerk indicated "there wasn't any way to change the wording." D.J.T. signed the unaltered form.

On October 23, 1986, T.O. and S.O. filed a Petition for Adoption of a Child in Denver Juvenile Court. Included with the petition were D.J.T.'s and T.O.'s separate consents to the adoption. D.J.T.'s consent included a provision under which D.J.T. waived his right to notice of the adoption hearing. D.J.T. received no formal notice of the hearing and D.J.T. testified without contradiction that he was not otherwise informed of the date and time of the hearing. On November 24, 1986, the juvenile court commissioner conducted a hearing on the stepfather's petition to adopt E.E.F., which D.J.T. did not attend. T.O. and S.O. appeared at the hearing without counsel and were questioned by the commissioner on whether they obtained the consent of the child's natural father. They assured the court that the father understood that the adoption decree would terminate his relationship with E.E.F. The commissioner determined that E.E.F. was available for adoption and that it "would serve the best interests of all of the parties" to enter an immediate final decree of adoption.

Following the adoption, D.J.T. continued to visit E.E.F. although over time T.O. became increasingly reluctant to permit the visits. Finally, in May of 1987, the appellees ceased permitting D.J.T. to visit the child and in August of 1987, they obtained a permanent injunction forbidding D.J.T. from contacting E.E.F. ⁵ About one month after the appellees ceased permitting D.J.T. to visit E.E.F., D.J.T. contacted an attorney and petitioned the juvenile court for a good cause hearing to obtain access to the adoption file. On January 28, 1988, D.J.T. filed in juvenile court what was designated a "Verified Motion to Set Aside Adoption Decree." On October 20, 1988, the court held a hearing on D.J.T.'s motion, receiving testimony from D.J.T., S.O. and T.O., and reviewed the file in the prior adoption action. The court denied the motion to set aside the adoption decree, finding that the father's consent to the adoption was "knowingly and intelligently and voluntarily executed." D.J.T. appealed that decision to the court of appeals, and this case was transferred to this court pursuant to section 13-4-110(1)(a), 6A C.R.S. (1987) because D.J.T. raised certain questions regarding the constitutionality of the relevant statutes governing stepparent adoptions.

D.J.T. argues that section 19-5-203(1)(f), 8B C.R.S. (1989 Supp.), ⁶ violates principles of due process by permitting the adoption of a child, born out of wedlock, by a stepparent with the consent of only one of the parents and does not provide the other parent with notice or opportunity to be heard, regardless of the child's substantial relationship with the other parent. D.J.T. argues that this section also violates principles of equal protection because a stepparent adoption of a child whose parents were married but then divorced is permitted only with the consent of both parents. § 19-5-203(1)(e), 8B C.R.S. (1989 Supp.). Finally, D.J.T. argues that even if these statutes are interpreted to avoid constitutional difficulty by requiring consent, notice, and an opportunity to be heard prior to the termination of the parental rights of an unwed parent, the adoption of E.E.F. must be set aside because S.O. and T.O. did not obtain his valid consent and because he received no notice of the adoption hearing. While conceding that he signed a form consenting to the adoption, D.J.T. argues that his consent was given under a mutual mistake of law and fact, namely that it could be conditioned on his continued right to visit E.E.F.

We find that under our statutory scheme, as applied to these facts, the adoption of E.E.F. could not proceed without the consent of his natural father. However, we hold that the juvenile court properly found that D.J.T. validly consented to the adoption. Further, we hold that, although D.J.T. was entitled to notice of the adoption hearing and an opportunity to be heard, D.J.T. waived this right.

II.

Before specifically addressing D.J.T.'s arguments, it is useful to review the statutory scheme governing stepparent adoptions. In E.R.S. v. O.D.A., 779 P.2d 844 (Colo.1989), and in In re Petition of R.H.N., 710 P.2d 482 (Colo.1985), we considered the procedures which the legislature established for the adoption of a child by a stepparent. Adoption in Colorado is a creature of statutory law and is governed by the provisions set out in sections 19-5-201 to -215, 8B C.R.S. (1989 Supp.). The adoption of a child by a stepparent necessarily terminates the parental rights of the noncustodial parent. E.R.S., 779 P.2d at 847; R.H.N., 710 P.2d at 485. To commence a proceeding for a stepparent adoption, the stepparent files an adoption petition pursuant to section 19-5-208, 8B C.R.S. (1989 Supp.). Id. The court must decide whether the child is "available for adoption" pursuant to section 19-5-203, 8B C.R.S. (1989 Supp.). Subsection (1) of that section provides in relevant part:

(1) A child may be available for adoption only upon:

(a) Order of the court terminating the parent-child legal relationship in a proceeding brought under article 3 or 5 of this title;

(b) Order of the court decreeing the voluntary relinquishment of the parent-child legal relationship under section 19-5-103 or 19-5-105;

(c) Written and verified consent of the guardian of the person, appointed by the court, of a child whose parents are deceased;

(d)(I) Written and verified consent of the parent in a stepparent adoption where the other parent is deceased or his parent-child legal relationship has been terminated under paragraph (a) or (b) of this subsection (1);

(II) Written and verified consent of the parent in a stepparent adoption where the other parent has abandoned the child for a period of one year or more or where he has failed without cause to provide reasonable support for such child for a period of one year or more. Upon filing of the petition in adoption, the court shall issue a notice directed to the other parent, which notice shall state the nature of the relief sought, the names of the petitioner and the child, and the time and place set for hearing on the petition. If the address of the other parent is known, service of such notice shall be in the manner provided by the Colorado rules of civil procedure for service of process. Upon affidavit by the petitioner that, after diligent search, the address of the other parent remains unknown, the court shall order service upon the other parent by one publication of the notice in a newspaper of general circulation in the county in which the hearing is to be held. The hearing shall not be held sooner than thirty days after service of the notice is complete, and, at such time, the court may enter a final decree of adoption notwithstanding the time limitation in ...