October 30, 2014

Adoption After In re C.L.S.: Is Finality a Mirage?

There’s a saying among law school professors that “bad facts make bad law”. It’s overused and trite, but sometimes it’s the only way to explain a legal ruling that if applied in most circumstances would lead to undesirable results, but in a particular situation is the best justice the bench can administer.

It has long been held that placement of children into permanent, safe homes is a public policy goal of profound importance. (§19-5-216 C.R.S., §16-5-110 C.R.S, People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982). A conflict frequently arises, however, when the child’s interest in a stable and loving home environment conflicts with a parent’s interest in preserving the privacy and integrity of the family unit. Colorado statutes make every effort to balance these interests and ensure the due process rights of biological parents are protected in adoption proceedings. These protections are grounded in the 14th Amendment of the U.S. Constitution which has been recognized as affording parents a “fundamental liberty interest in the care, custody and control of their children.” (Troxel v. Granville, 530 US 57 (2000).

Part of the statutory balancing scheme in Colorado law involves certain time restrictions within which a biological parent must raise any objection to the termination of his or her parental rights. Without bright line limitations, adoptive childrens’ relationships with their adoptive families would be perpetually at risk. Specifically, §19-5-105(4) C.R.S. establishes a deadline of ninety days for vacating a relinquishment or termination order and CRCP Rule 60(b) requires that challenges to a judgment obtained by fraud must be made within a six month period or at least within a “reasonable time” if the judgment is itself is void.

What happens, however, when a biological father is purposely excluded from the termination proceedings as a result of the mother’s deliberate and intentional deceit? This is precisely what happened in the recent Court of Appeals case In re C.L.S., 10 CA 0529 (Colo. App. 2011).

The mother in this case perpetrated a fraud of immense consequence. First, she wrote to the biological father and told him that the child she was carrying died. She then proceeded to deceive the Lutheran Family Services of Colorado and the District Court in Larimer County by claiming she was the victim of a rape and didn’t know who the father was. After the child had been relinquished and adopted, she decided to inform the child’s father by text message that the child was not in fact deceased, but rather had been adopted. At this point, the father began legal proceedings to set aside the adoption.

The Larimer County District Court denied father’s motion to vacate the termination of parental rights, and the subsequent adoption, finding that his motion was time barred by CRCP Rule 60(b) and §19-5-105(4) CRS. The father’s constitutional due process rights were not addressed. The district court also found that even if father’s motion had been timely filed, it would not be in the child’s best interests to vacate the termination order “which would effectively vacate the adoption, would likely cause life-long emotional and psychological harm for the child.” However, this conclusion was reached without holding an evidentiary hearing.

On appeal, the three Judge panel ruled in favor of the father (no dissent), finding that the judgment terminating his parental rights by default was void. §19-5-105(4) C.R.S. provides that other than by appeal, the only permissible basis for challenging a termination order is “fraud upon the court or fraud upon a party” and that such an order cannot be challenged on any basis, including fraud, more than ninety days after the order has been entered (emphasis added). However, the appellate court reaffirmed the preeminency of constitutional protections over statutory restrictions, citing White v. Davis, 163 Colo. 122, (1967) (“the requirements of due process of law under both the United States and Colorado Constitutions take precedence over statutory enactments”).

Going further, the Court held that not even the limitations of C.R.C.P. Rule 60(b)(3) governing relief from a void judgment would be applied. Reasoning that since a void judgment is a “complete nullity”, the court determined that the “reasonable time” deadline does not apply to a motion under C.R.C.P. Rule 60(b)(3). Thus, in theory, the Court’s ruling would permit a parent whose due process rights were violated in a termination proceeding to seek relief from that Order at any point in time thereafter.
And so, this case returns to the District Court, to determine the child’s best interests, taking into consideration the father’s fundamental liberty interest in parenting his child, while also noting that a parent’s due process rights are subject to the power of the state to act in the child’s best interests. People in Interest of A.M.D., 648 P.2d 625, 632-35 (Colo. 1982)

The tragedy of this case is a child, who has lived with her adoptive parents since birth, and is now three years old. She has established a critical emotional bond with her adoptive parents and has no familiarity with the man who is her father. Although the parties have been engaged in extensive litigation, one can only hope that at this point they may consider collaborative solutions that will enable the child to enjoy stable and continuing bonds with her adoptive parents while establishing a new connection with her biological father.

Laurel Anne Markus: Medical Marijuana & Child Custody Case from Colorado Court of Appeals

Just before the Memorial Day Weekend, our Court of Appeals released its decision in the case In re Marriage of Parr, 09 CA 0854 (May 27, 2010) the first Colorado appellate case involving an allocation of parental responsibilities in which one parent is a medical marijuana patient. As expected, the Court answered only the specific questions presented by the case on appeal, leaving many gaps in our understanding. Still, it is encouraging to finally have some judicial guidance in this hotly contested area of law.

The underlying case had a distinctive fact pattern. Father hid his application for inclusion on the medical marijuana registry from the opposing party and the Court. Father voluntarily entered into a parenting agreement that compelled him to submit to periodic urine analyses (UAs) to demonstrate he was refraining from the use of marijuana. Once he was accepted into the registry, he then sought to have the urine testing provisions of the parenting agreement stricken. A few months later, Mother petitioned the Court to restrict Father’s parenting time because he had not submitted clean UAs per the parenting agreement and was asking the child to “keep secrets about his drug use”. Without holding a hearing, the district court ordered that Father’s parenting time would be supervised until he either demonstrated by clear and convincing evidence that his use of medical marijuana was not detrimental to the child or submitted a clean hair follicle test. Moreover, Father was ordered not to consume marijuana while with the child. Consequently, while his usage of marijuana was a factor in the original allocation of parental responsibilities, the case was brought up on appeal from a modification of parenting time.

This posture of the case is important because in a modification case, instead of applying the “best interests of the child” standard, the Court must apply the “endangerment” standard of §14-10-129(1) C.R.S. Under the endangerment standard, a Court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In general, the application of the endangerment standard makes it more difficult for the parent seeking a modification of parenting time to succeed. For example, it would be harder to show that a parent’s marijuana use constitutes a danger to the child, than it would be to show that his or her use of marijuana while parenting was not in the child’s “best interests”.

While the Court implies that a requirement to refrain from medical marijuana while parenting would constitute a restriction on parenting time, for its holding the Court instead relies upon the “condition precedent” of the parties’ parenting agreement. Since Father had already agreed to a parenting plan that required him not to use marijuana at all, there was no qualitative change in his parenting time when the Court ordered him to refrain from marijuana use when the child was with him.

The remainder of the Court’s ruling focuses on the fact that the district court did not conduct an evidentiary hearing to determine whether Father’s use of marijuana constituted endangerment to the children’s physical health or an impairment to their emotional development. Both the majority and concurring opinions noted that Mother filed a petition for a hearing on the issue of endangerment that was neither granted nor denied. Instead, the lower court appears to have entered orders without taking evidence or making appropriate findings of fact.

For this reason the appellate court reversed the imposition of supervised parenting time. Without an evidentiary hearing, the record could not support the requirement of supervised parenting time. The Court contrasts the record before it, with a Washington case In re Marriage of Wieldraayer 147 Wash. App. 1048 (Wash.App.1988)(unpublished) holding that trial court had discretion to require supervised visitation where evidence amply illustrated the effects on children of father’s use of medical marijuana while around them. The Court also made note of a California case In re Alexis E. 90 Cal. Rptr.3d 44, 56 (Cal.Ct.App. 2009) that to bring a case within jurisdiction of a dependency court, the record must reflect more than the mere usage of medical marijuana, for example showing secondhand smoke effects or evidence of a negative impact on using parent’s “demeanor toward the children”.

Finally, the appellate court held that the district court erred in requiring hair follicle testing rather than another type of testing “without an evidentiary basis”. Mother’s petition alleged that Father had not been submitting urine analyses (“UA”s) in accordance with the parenting plan. It seems that ordering a hair follicle test would be an appropriate judicial response to a parent’s repeated failure to comply with court-ordered UAs. It’s unclear from the ruling what is necessary to support hair follicle testing under these circumstances: merely some evidence of noncompliance with the UAs or some additional evidence regarding hair follicle testing.

In summary, this case would have been much more instructive if an appropriate evidentiary record had been established in the underlying case. Perhaps there will be another appeal after findings of fact are made at the trial court level. In the meantime, In Re Marriage of Parr reminds us of the importance of affording family law cases a proper hearing on the merits, despite budget constraints and crowded dockets.

Laurel Anne Markus blogs at the Colorado Business and Family Lawyer Blog and this post originally appeared hereClick here to read all posts by this author.

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