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19-5-105. Proceeding to terminate parent-child legal relationship

Text

(1) If one parent relinquishes or proposes to relinquish or consents to the adoption of a child, the agency or person having custody of the child shall file a petition in the juvenile court to terminate the parent-child legal relationship of the other parent, unless the other parents relationship to the child has been previously terminated or determined by a court not to exist. This section applies whether or not the other parent is a presumed parent pursuant to section 19-4-105 (1).

(2) In an effort to identify the other birth parent, the court shall cause inquiry to be made of the known parent and any other appropriate person. The inquiry shall include the following: Whether the mother was married at the time of conception of the child or at any time thereafter; whether the mother was cohabiting with a man at the time of conception or birth of the child; whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy; or whether any man has formally or informally acknowledged or declared his possible paternity of the child.

(3) If, after the inquiry, the other birth parent is identified to the satisfaction of the court or if more than one person is identified as a possible parent, each shall be given notice of the proceeding in accordance with subsection (5) of this section, including notice of the persons right to waive his or her right to appear and contest. If any of them waives his or her right to appear and contest or fails to appear or, if appearing, cannot personally assume legal and physical custody, taking into account the childs age, needs, and individual circumstances, such persons parent-child legal relationship with reference to the child shall be terminated. If the other birth parent or a person representing himself or herself to be the other birth parent appears and demonstrates the desire and ability to personally assume legal and physical custody of the child, taking into account the childs age, needs, and individual circumstances, the court shall proceed to determine parentage under article 4 of this title. If the court determines that the person is the other birth parent, the court shall set a hearing, as expeditiously as possible, to determine whether the interests of the child or of the community require that the other parents rights be terminated or, if they are not terminated, to determine whether:

(a) To award custody to the other birth parent or to the physical custodian of the child; or

(b) To direct that a dependency and neglect action be filed pursuant to part 5 of article 3 of this title with appropriate orders for the protection of the child during the pendency of the action.

(3.1) The court may order the termination of the other birth parents parental rights upon a finding that termination is in the best interests of the child and that there is clear and convincing evidence of one or more of the following:

(a) That the parent is unfit. In considering the fitness of the childs parent, the court shall consider the following:

(I) An emotional illness, a behavioral or mental health disorder, or an intellectual and developmental disability of the parent of such duration or nature as to render the parent unlikely, within a reasonable period of time, to care for the ongoing physical, mental, and emotional needs of the child;

(II) A single incident of life-threatening or serious bodily injury or disfigurement of the child or other children;

(III) Conduct toward the child or other children of a physically or sexually abusive nature;

(IV) A history of violent behavior that demonstrates that the individual is unfit to maintain a parent-child relationship with the minor, which may include an incidence of sexual assault, as defined in section 19-1-103 (96.5), that resulted in the conception of the child;

(V) Excessive use of intoxicating liquors or use of controlled substances, as defined in section 18-18-102 (5), C.R.S., that affects the ability of the individual to care and provide for the child;

(VI) Neglect of the child or other children;

(VII) Injury or death of a sibling or other children due to proven abuse or neglect by such parent;

(VIII) Whether, on two or more occasions, a child in the physical custody of the parent has been adjudicated dependent or neglected in a proceeding under article 3 of this title or comparable proceedings under the laws of another state or the federal government;

(IX) Whether, on one or more prior occasions, a parent has had his or her parent-child legal relationship terminated pursuant to this section or article 3 of this title or comparable proceedings under the laws of another state or the federal government.

(b) That the parent has not established a substantial, positive relationship with the child. The court shall consider, but shall not be limited to, the following in determining whether the parent has established a substantial, positive relationship with the child:

(I) Whether the parent has maintained regular and meaningful contact with the child;

(II) Whether the parent has openly lived with the child for at least one hundred eighty days within the year preceding the filing of the relinquishment petition or, if the child is less than one year old at the time of the filing of the relinquishment petition, for at least one-half of the childs life; and

(III) Whether the parent has openly held out the child as his or her own child.

(c) That the parent has not promptly taken substantial parental responsibility for the child. In making this determination the court shall consider, but shall not be limited to, the following:

(I) Whether the parent who is the subject of the petition is served with notice and fails to file an answer within thirty-five days after service of the notice and petition to terminate the parent-child legal relationship, or within twenty-one days if the petition for termination was filed pursuant to section 19-5-103.5, or fails to file a paternity action, pursuant to article 4 of this title, within thirty-five days after the birth of the child or within thirty-five days after receiving notice that he is the father or likely father of the child, or, for those petitions filed pursuant to section 19-5-103.5, within twenty-one days after the birth of the child or after receiving notice that he is the father or likely father of the child;

(II) Whether the parent has failed to pay regular and reasonable support for the care of the child, according to that parents means; and

(III) Whether the birth father has failed to substantially assist the mother in the payment of the medical, hospital, and nursing expenses, according to that parents means, incurred in connection with the pregnancy and birth of the child.

(3.2) In considering the termination of a parents parental rights, the court shall give paramount consideration to the physical, mental, and emotional conditions and needs of the child. Such consideration shall specifically include whether the child has formed a strong, positive bond with the childs physical custodian, the time period that the bond has existed, and whether removal of the child from the physical custodian would likely cause significant psychological harm to the child.

(3.3) If the child is under one year of age at the time that the relinquishment petition is filed, there is an affirmative defense to any allegations under subparagraph (VI) of paragraph (a), paragraph (b), and paragraph (c) of subsection (3.1) of this section that the parents neglect, failure to establish a substantial relationship, or failure to take substantial responsibility for the child was due to impediments created by the other parent or person having custody. A parent shall demonstrate such impediments created by the other parent or person having custody by a preponderance of the evidence.

 

(3.4) (a) If the court determines not to terminate the nonrelinquishing parents parental rights nor to direct that a dependency and neglect action be filed, the court shall proceed to determine custody of the child, parenting time with the child, duty of support, and recovery of child support debt.

(b) The court shall determine custody based upon the best interests of the child giving paramount consideration to the physical, mental, and emotional conditions and needs of the child.

(c) If the child has been out of his or her birth parents care for more than one year, irrespective of incidental communications or visits from the relinquishing or nonrelinquishing parent, there is a rebuttable presumption that the best interests of the child will be served by granting custody to the person in whose care the child has been for that period. Such presumption may be overcome by a preponderance of the evidence.

(3.5) Notwithstanding subsection (3.4) of this section, the court shall grant custody of the child to the nonrelinquishing birth parent if the court finds that the birth parent has the ability and the desire to assume personally legal and physical custody of the child promptly and that all of the following exists:

(a) The nonrelinquishing parent has established a substantial, positive relationship with the child;

(b) The nonrelinquishing parent has promptly taken substantial parental responsibility for the child; and

(c) The award of custody to the nonrelinquishing parent is in the best interests of the child.

(3.6) Except for a parent whose parental rights have been relinquished pursuant to section 19-5-104, a person who has or did have the child in his or her care has the right to intervene as an interested party and to present evidence to the court regarding the nonrelinquishing parents contact, communication, and relationship with the child. If custody is at issue pursuant to subsection (3.4) of this section, such person also has the right to present evidence regarding the best interests of the child and his or her own suitability as a placement for the child.

(4) If, after the inquiry, the court is unable to identify the other birth parent or any other possible birth parent and no person has appeared claiming to be the other birth parent and claiming custodial rights, the court shall enter an order terminating the unknown birth parents parent-child legal relationship with reference to the child. Subject to the disposition of an appeal upon the expiration of thirty-five days after an order terminating a parent-child legal relationship is issued under subsection (3) of this section or this subsection (4), the order cannot be questioned by any person, in any manner, or upon any ground, except fraud upon the court or fraud upon a party. Upon an allegation of fraud, the termination order cannot be questioned by any person, in any manner or upon any ground, after the expiration of ninety-one days from the date that the order was entered.

(5) Notice of the proceeding shall be given to every person identified as the other birth parent or a possible birth parent in the manner appropriate under the Colorado rules of juvenile procedure for the service of process or in any manner the court directs. The notice shall inform the parent or alleged parent whose rights are to be determined that failure to file an answer or to appear within thirty-five days after service and, in the case of an alleged father, failure to file a claim of paternity under article 4 of this title within thirty-five days after service, if a claim has not previously been filed, may likely result in termination of the parents or the alleged parents parental rights to the minor. The notice also shall inform the parent or alleged parent whose rights are to be determined that such person has the right to waive his or her right to appear and contest and that failure to appear and contest may likely result in termination of the parents or the alleged parents parental rights to the minor. Proof of giving the notice shall be filed with the court before the petition is heard. If no person has been identified as the birth parent, the court shall order that notice be provided to all possible parents by publication or public posting of the notice at times and in places and manner the court deems appropriate.

(6) In those cases in which a parent proposes to relinquish his or her parent-child legal relationship with a child who is under one year of age, pursuant to the expedited procedures set forth in section 19-5-103.5, the licensed child placement agency or the county department of human or social services assisting the relinquishing parent shall proceed with filing the petition for termination of the other birth parents or possible birth parents parent-child legal relationship and notify the other birth parent or possible birth parents as provided in section 19-5-103.5 (2).

History

History.
Source: L. 87: Entire title R&RE, p. 803, 1, effective October 1. L. 94: Entire section amended, p. 747, 3, effective April 20. L. 97: IP(3), (3.1)(c)(I), and (5) amended, p. 1160, 3, effective July 1. L. 98: (3.1)(a)(II) amended, p. 1421, 8, effective July 1. L. 2001: (3.1)(a)(VI) amended and (3.1)(a)(VIII) and (3.1)(a)(IX) added, p. 499, 2, effective May 4. L. 2003: (3.1)(c)(I) amended and (6) added, p. 872, 3, effective July 1. L. 2012: (3.1)(a)(V) amended, (HB 12-1311), ch. 281, p. 1625, 62, effective July 1; (3.1)(c)(I), (4), and (5) amended, (SB 12-175), ch. 208, p. 877, 139, effective July 1. L. 2014: (3.1)(a)(IV) amended, (HB 14-1162), ch. 167, p. 591, 6, effective July 1. L. 2017: IP(3.1)(a) and (3.1)(a)(I) amended, (HB 17-1046), ch. 50, p. 158, 11, effective March 16; (3.1)(a)(I) amended, (SB 17-242), ch. 263, p. 1318, 168, effective May 25. L. 2018: (6) amended, (SB 18-092), ch. 38, p. 426, 68, 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 19-6-126 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 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.

ANNOTATION

Law reviews. For article, Adoption Procedures of Minor Children in Colorado, see 12 Colo. Law. 1057 . For article, Relinquishment of Children in Colorado, see 15 Colo. Law. 2008 (1986).

No due process right for an incarcerated parent to be present at termination hearings where parent appeared in proceeding through counsel, presented evidence as to parole date by affidavit, and submitted a brief. Matter of Catholic Charities, 942 P.2d 1380 (Colo. App. 1997).

Judgment terminating fathers right void because it was entered in violation of his due process right to appointed counsel. In re R.A.M. for Adoption of B.G.B., 2014 COA 68, 411 P.3d 814.

Due process requires the appointment of counsel when a parents interests are at their strongest, the states interests are at their weakest, and the risks of error are at their peak. In re R.A.M. for Adoption of B.G.B., 2014 COA 68, 411 P.3d 814.

A request for counsel under the due process clause is not limited to a formal request using specific words. In re R.A.M. for Adoption of B.G.B., 2014 COA 68, 411 P.3d 814.

C.A.R. 3.4 does not violate plaintiffs constitutional right to equal protection because parents whose rights are terminated under this article of the Colorado Childrens Code are not similarly situated to those parents whose rights are terminated under article 3 of the code. C.A.R. 3.4 applies to parents subject to dependency and neglect proceedings under article 3 of the Colorado Childrens Code. As such, the proceedings focus primarily on the protection and safety of the children, not on the custodial interests of the parent. Further, such a proceeding can be initiated only by the state. People ex rel. T.D., 140 P.3d 205 (Colo. App. 2006), cert. denied, 549 U.S. 1020, 127 S. Ct. 564, 166 L. Ed. 2d 411, and 549 U.S. 1024, 127 S. Ct. 565, 166 L. Ed. 2d 419 (2006).

The express purposes of the relinquishment and adoption statutes is to promote the integrity and finality of adoption. Court did not misconstrue this section in finding that the father was unable personally to assume custody of the child promptly. Matter of Catholic Charities, 942 P.2d 1380 (Colo. App. 1997).

The general assembly intended that custody be given only if a parent can promptly assume ongoing parental responsibility for the child. Had the general assembly intended to allow a nonrelinquishing parent to avoid termination by making alternative custodial arrangements, it would have so provided. Matter of Catholic Charities, 942 P.2d 1380 (Colo. App. 1997).

Where a court finds that a parent is not unfit, the court must begin with the presumption that the parent is acting in his or her childs best interests in seeking custody of the child, and that it is not in the childs best interests to terminate the parent-child legal relationship or to award custody to another party. M.C. v. Adoption Choices of Colo., Inc., 2014 COA 161, 369 P.3d 659, revd on other grounds, 2015 CO 72, 363 P.3d 193.

To rebut that presumption, a party seeking to terminate the parents rights and obtain or retain custody of the child must prove by clear and convincing evidence not only that the statutory criteria for termination of the parents rights set forth in subsection (3.1) and the criteria for an award of custody set forth in subsection (3.4) have been met, but also that it is not in the childs best interests to allow the parent-child legal relationship to remain intact nor to award custody of the child to the parent. M.C. v. Adoption Choices of Colo., Inc., 2014 COA 161, 369 P.3d 659, revd on other grounds, 2015 CO 72, 363 P.3d 193.

If the court chooses to terminate the parent-child legal relationship and award custody to another party, then, in addition to making findings regarding satisfaction of the statutory criteria for termination and custody, the court must make findings as to the special factors that justify rejecting the parents determination of the childs best interests. M.C. v. Adoption Choices of Colo., Inc., 2014 COA 161, 369 P.3d 659.

Section does not authorize termination of the parent-child legal relationship of the other parent in anticipation of possible stepparent adoption. Statutes governing parental relinquishment and adoption must be read together in order to effectuate the legislative intent and give consistent, harmonious, and sensible effect to all their parts. Thus, since mother wanted to keep her relationship intact but involuntarily end fathers in order to make children available for stepparent adoption, reliance on this section was inappropriate. In re D.S.L., 18 P.3d 856 (Colo. App. 2001).

Any defect in subject matter jurisdiction resulting from a parent not having custody of child at time of filing petition to terminate parental rights is cured by the filing of subsequent petitions to terminate by agency and adoptive parents. People in the Matter of A.L.B., 994 P.2d 476 (Colo. App. 1999).

Statute does not bar a due process challenge to the termination of a parents rights when the parent alleges a lack of notice or insufficient notice that results from the other parents failure or refusal to identify him or her as a possible parent. District court erred in strictly applying the statute of limitations on due process challenge when insufficient notice was given. In re J.M.A., 240 P.3d 547 (Colo. App. 2010).

Fathers motion for relief not time-barred because judgment was void. Where notice through publication was inadequate because birth mother made fraudulent misrepresentations to the court, birth father was deprived of his constitutional right to due process, thus making the judgment terminating his parental rights void by default. The requirements of due process take precedence over statutory enactments. In re C.L.S., 252 P.3d 556 (Colo. App. 2011).

Trial court protected fathers fundamental liberty interest in his children by applying a presumption in favor of preserving parental rights and making findings to overcome the presumption by clear and convincing evidence. While the supreme court did not specifically hold that Troxel v. Granville, 530 U.S. 57 (2000), applies to parental termination proceedings, the trial court afforded father Troxels heightened due process requirements. In Interest of Baby A, 2015 CO 72, 363 P.3d 193.

The specific findings that a court must make before terminating parental rights, including a parents failure to promptly take responsibility for his or her children and the best interests of the children, constitute special factors that, along with the presumption in favor of the parent, satisfy Troxels due process requirements. In Interest of Baby A, 2015 CO 72, 363 P.3d 193.

Trial court did not err in finding that father failed to pay regular and reasonable support for the care of the children. In Interest of Baby A, 2015 CO 72, 363 P.3d 193.

Trial court did not err in allowing intervenor adoptive parents to present evidence on the childrens best interests and future placement at the termination hearing. In Interest of Baby A, 2015 CO 72, 363 P.3d 193.

When a child has been adjudicated dependent or neglected, all matters related to that childs status must be addressed through the open dependency and neglect case. The dependency and neglect court maintains continuing, exclusive jurisdiction over any such child. People in Interest of E.M., 2016 COA 38M, 417 P.3d 843, affd sub nom. People in Interest of L.M., 2018 CO 34, 416 P.3d 875.

A county department of human services seeking to terminate through this article 5, relinquishment and adoption, an incarcerated fathers parental rights to children who had been adjudicated as dependent and neglected was required to proceed instead through the laws and courts created for article 3, dependency and neglect. People in Interest of E.M., 2016 COA 38M, 417 P.3d 843, affd sub nom. People in Interest of L.M., 2018 CO 34, 416 P.3d 875.