May 21, 2019

Colorado Court of Appeals: Time Frame for Appeal of Paternity Determination Arises from C.A.R. 4

The Colorado Court of Appeals issued its opinion in People in Interest of N.S. on Thursday, January 12, 2017.

Dependency and Neglect— Juvenile Court Jurisdiction—Paternity Adjudication.

The El Paso County Department of Human Services (the Department) filed a dependency and neglect petition on behalf of N.S. The mother’s boyfriend was listed as respondent-father, and the child was placed with him. At a pretrial conference, the juvenile court found that the boyfriend had not been adjudicated the child’s legal father and therefore ordered genetic paternity testing. The juvenile court adjudicated N.S. dependent and neglected. The Department subsequently amended the petition to list A.C. as respondent-father. A.C. was confirmed to be the biological father through genetic paternity testing. Following a paternity hearing, the juvenile court adjudicated A.C. as the child’s legal father.

Boyfriend appealed and the Colorado Court of Appeals issued an order to show cause why his appeal should not be dismissed pursuant to the time frames of C.A.R. 3.4(b)(1). Boyfriend responded that his appeal was governed by C.A.R. 4(a). The court ordered the parties to brief (1) whether the notice of appeal was due within 21 days of the date of the final, appealable order under C.A.R. 3.4; and (2) whether the juvenile court had jurisdiction to issue the judgment of paternity in a dependency and neglect proceeding.

The court first concluded that the plain language of C.A.R. 3.4 shows that the rule does not apply to paternity actions. C.A.R. 4 does not list specific orders that are appealable, and in the absence of any limiting language, its 49-day time frame applied.

The court then stated that the juvenile court has exclusive original jurisdiction in dependency and neglect proceedings to determine parentage. But when a paternity issue arises in these proceedings, the juvenile court must follow the Uniform Parentage Act (UPA) procedures. Here, both presumptive fathers were parties to the proceeding, had actual notice that a legal finding of paternity was necessary, and did not object to the juvenile court deciding the matter. Accordingly, the juvenile court had subject matter jurisdiction under the UPA.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Purpose of Uniform Parentage Act is to Establish and Protect Parent-Child Relationship

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of A.R.L., and Concerning Limberis on Thursday, December 5, 2013.

Biological Versus Presumptive Mother in Same-Sex Relationship—Uniform Parentage Act.

Elizabeth Limberis and Sabrina Havens began living together as a couple in 2000. Several years later, Havens unsuccessfully underwent one round of artificial insemination. Her friend, Marc Bolt, then agreed to inseminate her through sexual intercourse. Neither Havens nor Bolt revealed their sexual encounter to Limberis. Havens conceived and gave birth to A.R.L. in 2008. Limberis was present at the birth, and the child was given her last name. The birth certificate identifies Havens as the mother and does not name the father.

In 2011, the couple separated and Limberis filed a petition for parental responsibilities. Havens contested Limberis’s request for allocation of parental responsibilities and joined Bolt as a party. Bolt responded, describing himself as a sperm donor, and later filed a petition to relinquish his parental rights.

Limberis then petitioned for maternity under the Colorado Uniform Parentage Act (UPA), arguing that she was a presumed parent under the UPA. Havens moved to dismiss for failure to state a claim on which relief could be granted. Havens argued that because A.R.L. had a father and a mother, Limberis could not be a second mother and third parent under the UPA. The trial court agreed and dismissed Limberis’s petition. Following a hearing, the court allocated all parental responsibilities to Havens and granted Bolt’s petition to relinquish his parental rights.

The Court of Appeals found that the trial court erred in denying Limberis’s maternity petition on legal grounds without considering the merits. Limberis alleged facts in her petition that, if true, demonstrated she was an interested party. Therefore, she did not lack capacity under the UPA. The UPA’s purpose is to establish and protect the parent–child relationship. A person may be a presumed parent without being a biological or adoptive parent.

The Court rejected the argument that granting Limberis’s maternity petition would have left A.R.L. with three legal parents. First, Bolt was, at most, an alleged father. Second, no other statutory presumption applied to Bolt. Third, even if Bolt claimed a presumption as the father, that presumption is rebuttable. Fourth, if Bolt had filed a petition for parentage, it would have just been a competing petition, not the possibility of three parents. Finally, Bolt never claimed paternity.

The Court also rejected the argument that there is no authority in Colorado to support substituting a second legal mother for a child’s legal father. At most, the trial court had two competing presumptions to consider.

Finally, the Court addressed the underlying implicit premise of the trial court’s ruling—that a child may not have two legal mothers under the UPA. The Court found nothing in the UPA that would prohibit a child from having two same-sex parents. Accordingly, the order denying Limberis’s maternity petition was reversed. On remand, the trial court must determine whether Limberis is A.R.L.’s presumptive mother under the UPA’s holding out provision.

Summary and full case available here.

Colorado Court of Appeals: District Court Lacked Jurisdiction to Determine Paternity in Dependency and Neglect Action

The Colorado Court of Appeals issued its opinion in People in Interest of J.G.C. on Thursday, December 5, 2013.

Dependency and Neglect—Subject Matter Jurisdiction for Paternity Determination.

The Logan County Department of Social Services (LCDSS) filed a petition in dependency and neglect and a motion seeking temporary custody of a child who had been born eight days earlier. LCDSS identified J.C.H. as the child’s father because his name was on the birth certificate, but alleged that he might not be the biological father. Paternity tests were ordered, and results showed that J.C.H. was not the biological father. LCDSS then filed a motion to dismiss J.C.H. from the petition, which the trial court granted.

On its own motion, the Court of Appeals considered whether the district court had subject matter jurisdiction to make a paternity determination, and ruled that it did not. Colorado’s Uniform Parentage Act (UPA) vests exclusive original jurisdiction in parentage proceedings in the juvenile court. However, a paternity proceeding “may be joined with an action in another court of competent jurisdiction for dissolution of marriage, legal separation, declaration of invalidity of marriage, or support.” When a paternity action arises in a non-paternity proceeding, as here, the court must follow the procedures outlined in the UPA.

The UPA provides that before paternity can be determined, each man presumed to be the father and each man alleged to be the natural father must be made a party to the action, or given notice and an opportunity to be heard. Here, an alleged father had been identified by mother and therefore his joinder was required. Because the record did not show that he was given legal notice that a paternity determination was being sought and he was made a party to the proceeding only after J.C.H.’s dismissal, the Court concluded that the district court lacked subject matter jurisdiction to decide the issue of paternity. The order dismissing J.C.H. from the petition therefore was void. The dismissal order was vacated and the case was remanded.

In anticipation of an issue that might be raised on remand, the Court addressed J.C.H.’s contention that the trial court erred in dismissing him based on the genetic test results. Under the UPA, a presumption of fatherhood may arise from several sets of circumstances. Here, the claim was based on J.C.H.’s acknowledgment of paternity on the birth certificate. His acknowledgment that he was not the biological father did not rebut this presumption, and there was no such evidence at the time he was dismissed from the case.

Summary and full case available here.