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19-5-104. Final order of relinquishment

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(1) If the court terminates the parent-child legal relationship of both parents or of the only living parent, the court, after taking into account the religious background of the child, shall order guardianship of the person and legal custody transferred to:

(a) The county department of human or social services; or

(b) A licensed child placement agency; or

(c) A relative of the child; or

(d) An individual determined to be of good moral character through a process that includes the assessment made pursuant to section 19-5-206 (2)(g), if such individual shall have had the child living in his or her home for six months or more, including a foster parent or a designated adoptive parent.

 

(2) (a) The court shall consider, but shall not be bound by, a request that custody of the child, with the option of applying for adoption, be placed in a grandparent, aunt, uncle, brother, or sister of the child or a foster parent. When ordering legal custody of the child, the court shall give preference to a grandparent, aunt, uncle, brother, or sister of the child when such relative has made a timely request therefor and the court determines that such placement is in the best interests of the child. Such request must be submitted to the court prior to commencement of the hearing on the petition for relinquishment. If such legal custody is granted, guardianship of the child shall remain with the parent, if the legal parent-child relationship has not been terminated, or the guardianship shall be transferred pursuant to subsection (1) of this section. Nothing in this section shall be construed to require the birth parents or the child placement agency with custody of the child to notify said relatives described in this subsection (2) of the pending relinquishment of parental rights. This subsection (2) shall not apply in cases where the birth parents have designated an adoptive family for the child or the birth parents have designated that legal custody of the child shall not be in a person described in this subsection (2) and where the child has not been in legal custody of a relative requesting guardianship or custody as described in this section or the child has not been in the physical custody of such relative for more than six months.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (2), in cases in which a parent is seeking to relinquish his or her parent-child legal relationship with more than one child of a sibling group at one time, if the county department or child placement agency locates an appropriate, capable, willing, and available joint placement for all of the children in the sibling group, the court shall presume that placement of the entire sibling group in the joint placement is in the best interests of the children. Such presumption may be rebutted by a preponderance of the evidence that placement of the entire sibling group in the joint placement is not in the best interests of a child or of the children.

(3) No person shall be precluded from adopting a child solely because that person has been a childs foster parent.

(4) The order of relinquishment shall set forth all pertinent facts brought at the hearing, and, in addition, it shall state that the court is satisfied that the counsel and guidance provided for in section 19-5-103 (1) and (5) has been offered the relinquishing parent or parents and any child for whom the court has ordered counseling.

(5) A final order of relinquishment shall divest the relinquishing parent or parents of all legal rights and obligations they may have with respect to the child relinquished, but it shall not modify the childs status as an heir at law which shall cease only upon a subsequent final decree of adoption; except that the relinquishing parents or parents obligation to pay for services received by the child through the department, or other support received, shall be terminated upon a subsequent final decree of adoption or by order of the court at the time of relinquishment. The order of relinquishment shall release the relinquished child from all legal obligations with respect to the relinquishing parent or parents.

(6) If one parent files a petition for the relinquishment of a child and the agency or person having custody of the child files a petition to terminate the rights of the other parent pursuant to section 19-5-105, the court shall set a hearing, as expeditiously as possible, on the relinquishment petition. A court may enter an order of relinquishment for the purpose of adoption prior to the relinquishment or termination of the other parents parental rights. Except as otherwise provided in subsection (7) of this section, an order of relinquishment is final and irrevocable.

 

(7) (a) A relinquishment may be revoked only if, within ninety-one days after the entry of the relinquishment order, the relinquishing parent establishes by clear and convincing evidence that such relinquishment was obtained by fraud or duress.

(b) Notwithstanding paragraph (a) of this subsection (7), a relinquishment may not be revoked on the basis that the relinquishment or termination of the other parents parental rights was not obtained because the relinquishing parent knew, but did not disclose, the name or whereabouts of such other parent.

(8) If the relinquishment by an individual is revoked pursuant to subsection (7) of this section and no grounds exist under section 19-5-105 or under part 6 of article 3 of this title for terminating the parental rights of that individual, the court shall dismiss any proceeding for adoption and shall provide for the care and custody of the child according to the childs best interests.

(9) The fact that the relinquishing parent or parents are minors shall in no way affect the validity of the final order of relinquishment.

History

History.
Source: L. 87: Entire title R&RE, p. 802, 1, effective October 1. L. 88: (1)(d) and (2) amended and (2.5) added, p. 757, 3, effective May 31. L. 94: (4.3), (4.5), and (4.7) added, p. 747, 2, effective April 20; (4) amended, p. 2688, 210, effective July 1. L. 97: Entire section amended, p. 1158, 2, effective July 1. L. 2003: (2) amended, p. 2627, 8, effective June 5. L. 2010: IP(1) and (1)(d) amended, (HB 10-1106), ch. 278, p. 1273, 3, effective May 26. L. 2012: (7)(a) amended, (SB 12-175), ch. 208, p. 877, 138, effective July 1. L. 2018: (1)(a) amended, (SB 18-092), ch. 38, p. 426, 67, effective August 8.

Annotations

Editors note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-4-103 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.

ANNOTATION

Law reviews. For article, One Year Review of Domestic Relations, see 34 Dicta 108 . For article, Adoption Procedures of Minor Children in Colorado, see 12 Colo. Law. 1057 (1983). For article, House Bill 1268 In the Best Interests of the Child, see 18 Colo. Law. 1703 (1989).

Annotators note. The following annotations include cases decided under former provisions similar to this section.

Minors are competent to relinquish their children to a state agency. Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).

A partial or conditional relinquishment is not authorized by this section. People in re K.W.E., 31 Colo. App. 219, 500 P.2d 167 (1972).

Grounds for reversal of relinquishment order. Once the order for relinquishment has been granted, it cannot be reversed except where the court lacks jurisdiction or when consent of the parents is obtained through fraud, overreaching pressure, or duress. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).

After relinquishment, parents have no control over adoption. Where parents voluntarily relinquish a child, the parents have by court decree been divested of all of their legal rights and obligations to said child. They have no control over the child or the adoption proceedings, notice to them is not required, their consent, if given, is meaningless. Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).

Where both parents stated that they did not want the grandmother to have custody of the child and the grandmother had never had physical or legal custody of the child, the provisions of subsection (2) specifically operate to prevent the grandmother from having standing in the relinquishment proceedings. Petition of B.D.G., 881 P.2d 375 (Colo. App. 1993).

The proceedings for voluntary relinquishment under this section are separate and distinct from the proceedings for determining whether a child is dependent or neglected under 19-3-605. Under dependency and neglect proceedings, the grandparent may be an interested party. Petition of B.D.G., 881 P.2d 375 (Colo. App. 1993).

Adopted step-daughter not entitled to inheritance. After husband and wife were divorced and order of relinquishment became final, daughter from wifes former marriage, who had been adopted by husband, was divested of her status as heir. In re Estate of Haddan, 874 P.2d 1081 (Colo. App. 1994).

An agreement between parents for the father to relinquish his parental rights does not terminate his child support obligation. The support obligation remains in effect until the date upon which the final relinquishment court order divests the parent of all legal rights and obligations with respect to the child. In re Gross, 2016 COA 36, 371 P.3d 744.

Applied, with respect to grandparents request, in People in Interest of A.D., 706 P.2d 7 (Colo. App. 1985).