T.W. v. M.C. (In re Interest of Minor Children Baby A), Supreme Court Case No. 14SC1045

• Decision Date: 21 December 2015
• Docket Number: Supreme Court Case No. 14SC1045
• Citation: 363 P.3d 193
• Parties: IN the INTEREST OF Minor Children: BABY A and Baby B T.W. and A.W., Petitioners and Adoption Choices of Colorado, Inc., Petitioner v. M.C., Respondent
• Court: Colorado Supreme Court

363 P.3d 193

IN the INTEREST OF Minor Children: BABY A and Baby BT.W. and A.W., PetitionersandAdoption Choices of Colorado, Inc., Petitioner

v.M.C., Respondent

Supreme Court Case No. 14SC1045

Supreme Court of Colorado.

December 21, 2015

Rehearing Denied January 11, 2016

Attorneys for Petitioners T.W. and A.W.: Sherman & Howard, L.L.C., Rajesh K. Kukreja, Denver, Colorado.

Attorneys for Petitioner Adoption Choices of Colorado, Inc.: Catherine A. Madsen, P.C., Catherine A. Madsen, Westminster, Colorado.

Attorneys for Respondent M.C.: Lasher Legal Resolution, P.C., S. Scott Lasher, Denver, Colorado, Snodgrass Law, LLC, Kelly L. Snodgrass, Denver, Colorado.

Attorneys for Amicus Curiae Rocky Mountain Children's Law Center: Rocky Mountain Children's Law Center, Jeffrey C. Koy, Elizabeth A. Fordyce, Denver, Colorado Morrison & Foerster LLP, Randall J. Fons, Denver, Colorado.

Attorneys for Amicus Curiae Colorado Office of the Child's Representative: Colorado Office of the Child's Representative, Dorothy M. Macias, Amanda Donnelly, Denver, Colorado.

Attorneys for Amicus Curiae Colorado Gay Lesbian Bisexual Transgender Bar Association: Johnson Márquez Legal Group, Rachel Catt, Denver, Colorado, Reilly Pozner LLP, John McHugh, Denver, Colorado.

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶ 1 This appeal is about two little boys and the question of who will be their parents. M.C. was unaware that he had become a father to twin boys because the children's biological mother, J.Z., had previously told him that she had suffered a miscarriage. Subsequently, J.Z. relinquished her parental rights and in doing so provided false information about the identity of the biological father. As a result, the trial court terminated M.C.'s parental rights and the children were placed for adoption. T.W. and A.W., who were unaware of J.Z.'s deception, then adopted the children. After M.C. learned that he was the children's father and that the children had been adopted, he petitioned the court to void the termination of his parental rights based on J.Z.'s fraudulent statements. The court reinstated M.C.'s parental rights, and he sought to gain custody of the children. Because the birth mother had relinquished her rights and consented to the twins' adoption, the case proceeded to trial to determine if termination of M.C.'s parental rights under section 19–5–105, C.R.S. (2015), was appropriate.

¶ 2 After a two-day bench trial, the trial court found, pursuant to section 19–5–105(3.1)(c), that M.C. had failed to promptly take substantial responsibility for the children and that termination was in the best interests of the children. Therefore, the trial court terminated M.C.'s parental rights and awarded custody of the children to the adoptive parents. The court of appeals reversed and remanded the case to the trial court to "conduct a hearing on custody after affording [M.C.] a full and fair opportunity to establish a meaningful relationship with his children." M.C. v. Adoption Choices of Colo., Inc., 2014 COA 161, ¶ 110, 2014 WL 6485660.

¶ 3 We granted certiorari to review whether the court of appeals erred in reversing the trial court's order terminating M.C.'s parental rights under section 19–5–105.¹ We reverse and hold that while M.C. has a liberty interest in the care, custody, and control of his children, the court of appeals erred when it found that the trial court violated M.C.'s due process rights by failing to apply the presumption articulated in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion).² Rather, we hold that the trial court in this case satisfied Troxel's heightened due process requirements when it terminated his parental rights. Furthermore, we hold that the trial court did not abuse its discretion in considering only M.C.'s single child support payment when it concluded that he did not take "substantial responsibility" for the children, and that the record supports the trial court's ultimate decision to terminate M.C.'s parental rights. Accordingly, we reverse and remand the case to the court of appeals with instructions to return the case to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 4 On September 13, 2012, J.Z. gave birth to twins, Baby A and Baby B, in Colorado. J.Z., who lived in Colorado at the time of the twins' birth, had previously been in a long-distance relationship with M.C., who lived in Iowa. She told him about the pregnancy in January of that year and moved to Iowa in March to live with him. At that time, J.Z. told M.C. that she suffered a miscarriage. A month later, she returned to Colorado; the relationship ended and J.Z. and M.C. stopped communicating. As a result, M.C. was unaware of the twins' birth.

¶ 5 Prior to the births, J.Z. selected T.W. and A.W., who were clients of petitioner Adoption Choices of Colorado, Inc. ("Adoption Choices"), a licensed child placement agency, as the twins' adoptive parents. The day after giving birth, J.Z. completed a petition for expedited relinquishment of her parental rights pursuant to section 19–5–103.5. In the supporting documents, she provided only a first name for the twins' father and stated that she did not know his last name or contact information. She made the same representations to Adoption Choices. Based on this information, Adoption Choices filed a petition to terminate the parent-child relationship between the father and the twins. Following the statutory procedure, the trial court terminated the birth mother's and the then-unknown father's parental rights. The adoptive parents were present at the births and took the twins home from the hospital. They filed a petition to adopt on October 10, 2012. On December 18, 2012, nine days before the finalized adoption, a friend of the birth mother sent M.C. a message on Facebook telling him that J.Z. had given birth to twins and placed them for adoption. The court then entered the final Adoption Decree on December 27, 2012, and T.W. and A.W. became the legal parents of the twins. The twins still live with the adoptive parents.

¶ 6 In February 2013, approximately two months after M.C. found out he was a father, M.C. filed for relief from the judgment terminating his parental rights pursuant to C.R.C.P. 60(b)(2), alleging that he was the twins' father and that he had not received notice of the relinquishment. Genetic testing confirmed that M.C. was the biological father. In March, the court granted M.C.'s and Adoption Choices' motions to join as indispensable parties and permitted the adoptive parents to intervene in the relinquishment and termination proceeding.

¶ 7 Pursuant to the motion for relief, the court held a hearing in May 2013, and found that J.Z. had committed fraud (without T.W. and A.W.'s knowledge) that violated M.C.'s due process rights by failing to disclose M.C.'s full identity and contact information to Adoption Choices and, ultimately, to the court. As a result, in June the court voided the termination of M.C.'s parental rights in a written order. See § 19–5–105(4) ; In re C.L.S., 252 P.3d 556, 558 (Colo.App.2011) ("[B]ecause mother knew father's identity, her fraudulent failure to disclose this information to the court resulted in the termination of his parental rights without due process, and therefore the judgment terminating his rights by default is void."). The court also continued the June trial dates regarding the possible termination of M.C.'s parental rights to October 2 and 3, 2013, to allow more time for discovery, and it gave the adoptive parents temporary custody of the twins. The order instructed the parties to "confer and arrange visitation for [M.C.] with the children not less than two eight hour periods per week." At the request of the adoptive parents at a status conference on June 27, the court modified M.C.'s parenting time to shorter periods of shared and solo time with the twins, which gradually increased from two hours to up to four hours every Saturday and Sunday.

¶ 8 M.C.'s first visit with the children occurred on June 29, 2013, and he had approximately twenty visits with them between June and October. Because M.C. continued to live in Iowa, he spent money on travel and lodging when he visited. He also provided the twins with food, gifts, and clothing during these visits. He testified that he spent between $1,800 and $2,500 a month to travel to see the children and to provide for them during his visits. At the June status conference, the court informally suggested that the parties should consider the issue of child support. The parties disputed whether the adoptive parents had to disclose their financial information before M.C. could provide child support. As a result, the court never entered a formal child support order pursuant to section 14–10–115, C.R.S. (2015). Subsequently, M.C. made a one-time child support payment of $250 two weeks before the October trial date.

¶ 9 In August 2013 the court appointed a guardian ad litem ("GAL") "to investigate any and all matters pertaining to the best interests of the children and the possible termination of [M.C.'s] parental rights pursuant to [section] 19–5–105(3), (3.1), and (3.2)." Ten days prior to the October trial dates, the GAL submitted her report, which stated that T.W. and A.W. were "extraordinary" parents and that the twins were "clearly securely attached to [them]." The report also mentioned that M.C.'s actions were not "objectionable" and that there was "no indication that [he] is or would be an unfit parent," but that he was "naïve about the needs of his children" and did not understand that the twins viewed T.W. and A.W. as their parents and were attached to them. After determining that the twins' attachment was of "utmost importance" in evaluating their best interests, the GAL recommended that M.C.'s parental rights be terminated.

¶ 10 The court held a two-day trial in October 2013 to decide whether M.C.'s...