June 26, 2019

Colorado Court of Appeals: In re the Petition of J.M.A. and Concerning E.B.R.A. and J.L.S., Jr. and Concerning G.C. and A.C.

on June 10, 2010.

Termination of Parental Rights—CRS § 19-5-105(4) Limitations Period—Due Process.

Father, a possible father of E.B.R.A., appealed from the order denying his C.R.C.P. 60(b) motion for relief from a March 25, 2009 order terminating his parental rights after the child’s birth mother relinquished custody of the child pursuant to CRS § 19-5-103.5. There was no evidentiary hearing and no factual findings were made; therefore, the Court relies on father’s allegations in his verified motion and statements made in the response filed by Bethany Christian Services of Colorado (Bethany). Father alleged that after mother became pregnant, he attended prenatal appointments and ultrasounds with her.

Mother ceased all contact with him months before the child’s birth. Without father’s knowledge, prior to the birth, she retained the services of Bethany to assist her in placing the child for adoption. She represented to Bethany that she did not know the identity of the father. Bethany stated that notice of the relinquishment and termination proceeding was given to the unknown father by publication in a newspaper in El Paso County. No one replied and the court terminated father’s parental rights and granted Bethany legal custody and guardianship of the child and authority to place him for adoption. He was placed in March 2009.

Father learned the child had been born and tried to contact mother, but she refused to speak to him. He filed a paternity action in El Paso County District Court on October 2, 2009, and served mother on October 13, 2009. On October 15, Bethany contacted father’s counsel to advise him that his parental rights had been terminated in a proceeding in Clear Creek County and that an adoption proceeding was set for October 19 in Arapahoe County District Court. Father stated that was his first notice of either proceeding.

On October 16, 2009, father filed a Rule 60(b) motion seeking relief from the Clear Creek County judgment. He argued his right to due process had been violated. Bethany did not dispute that mother had perpetrated a fraud. On November 2, the court denied father’s motion, citing CRS § 19-5-105(4), and noted that the termination order had entered on March 25, 2009 and that father’s motion for relief was filed on October 16, 2009, more than ninety days after the order had entered. Father appealed.

The Court construed father’s argument as one that contended that applying the ninety-day limitations period unconstitutionally deprived him of due process under the circumstances of this case. The Court agreed.

To ensure proper notice is given when one parent relinquishes or proposes to relinquish or consent to the adoption of a child, the court is required to “cause inquiry to be made” to identify the other parent so that notice of the proceeding may be given to the other parent. Notice by publication is proper only if the other parent has not been identified or if his location has not been determined after diligent efforts. Under the facts of this case, where mother knew how to contact father and where publication notice was attempted one-and-a-half months before the child was born, it was error for the district court to conclude it did not have discretion to determine whether father was denied due process.

The Court also rejected the argument that father, being a putative father, was not entitled to notice. In Colorado, the requirement is that “all possible parents” be given notice and an opportunity to participate in a termination proceeding. The judgment was reversed and the case was remanded for a hearing on father’s motion for relief from the order terminating his parental rights. If the court determines father’s right to due process was not violated, the order may stand; however, if the court determines that his right was violated, it must determine whether father is entitled to relief from the termination order.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

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