19-5-105.7. Termination of parent-child legal relationship in a case of an allegation that a child was conceived as a result of sexual assault but in which no conviction occurred - legislative declaration - definitions.

Statute text

(1) The general assembly hereby declares that the purpose of this statute is to protect a person in a case where it is determined that he or she is a victim of sexual assault but in which no conviction occurred and to protect a child conceived as a result of that sexual assault by creating a process to seek termination of the parental rights of the perpetrator of the sexual assault and by issuing protective orders preventing future contact between the parties. The general assembly further declares that this section creates civil remedies and is not created to punish the perpetrator but rather to protect the interests of the petitioner and the child. The general assembly creates this section to address the procedures in cases where there are allegations of sexual assault but in which a conviction did not occur.

(2) As used in this section, unless the context otherwise requires:

(a) "Conviction" has the same meaning as defined in section 19-1-103.

(b) "Petitioner" means a person who alleges that he or she is a victim of sexual assault and who files a petition for termination of the parent-child legal relationship of the other parent as provided in this section.

(c) "Respondent" means a person against whom a petition for termination of the parent-child legal relationship is filed as provided in this section.

(d) "Sexual assault" has the same meaning as defined in section 19-1-103.

(3) The person who alleges that he or she is a victim of sexual assault and who alleges that a child was conceived as a result of a sexual assault in which a conviction did not occur may file a petition in the juvenile court to prevent future contact with the parent who allegedly committed the sexual assault and to terminate the parent-child legal relationship of the parent who allegedly committed the sexual assault.

(4) The verified petition filed under this section must allege that:

(a) The respondent committed an act of sexual assault against the petitioner;

(b) The respondent has not been convicted for the act of sexual assault;

(c) A child was conceived as a result of the act of sexual assault as described under paragraph (a) of this subsection (4); and

(d) Termination of the parent-child legal relationship of the respondent with the child is in the best interests of the child.

(5) (a) After a petition has been filed pursuant to this section, the court shall issue a summons that recites briefly the substance of the petition and contains a statement that the purpose of the proceeding is to determine whether to terminate the parent-child legal relationship of the respondent. The petitioner shall have the respondent personally served with a copy of the summons or notified through notice by publication consistent with the statutory provisions for notice in section 19-3-503 and pursuant to the Colorado rules of civil procedure, unless the respondent appears voluntarily or waives service. Upon request, the court shall protect the whereabouts of the petitioner and must identify the petitioner and the child in the summons by initials.

(b) The court will work to ensure that a petitioner or a respondent who has a disability has equal access to participate in the proceeding. If the petitioner or respondent has a disability, he or she has the right to request reasonable accommodations in order to participate in the proceeding; except that the disability of the petitioner, the respondent, or the child must not be the cause for the unnecessary delay of the process. The court shall presume that a petitioner or a respondent with a disability is legally competent and able to understand and participate in the proceeding unless the petitioner or respondent is determined to be an incapacitated person, as defined in section 15-14-102 (5), C.R.S.

(6) After a petition has been filed pursuant to this section, the court shall appoint a guardian ad litem, who must be an attorney, to represent the child's best interests in the proceeding; except that, if at any time the court determines that a guardian ad litem for the child is no longer necessary, the court may discharge the guardian ad litem. The petitioner and the respondent have the right to be represented by legal counsel in proceedings under this section. The petitioner and the respondent each have the right to seek the appointment of legal counsel if he or she is unable financially to secure legal counsel on his or her own. The court shall waive filing fees for an indigent petitioner.

(7) In any proceeding held under this section, the court may grant protective measures in the courtroom as requested by the petitioner, including but not limited to allowing the petitioner to not appear in the presence of the respondent so long as these measures do not violate due process. The petitioner's and the child's whereabouts must be kept confidential.

(8) A respondent may admit parentage or may request genetic testing or other tests of inherited characteristics to confirm paternity. The test results must be admitted into evidence as provided in section 13-25-126, C.R.S. The final costs for genetic tests or other tests of inherited characteristics must be assessed against the nonprevailing party on the parentage issue.

(9) If the parties consent, the court has continuing jurisdiction and authority in the same proceeding to enter an order of relinquishment pursuant to part 1 of article 5 of this title without a finding or admission of the elements required by subsection (11) of this section. As part of the agreement, the respondent must agree in writing to waive the right to access the original birth certificate or other relinquishment documents as permitted by law under article 5 of this title or pursuant to the rules of the state department of human services. The waiver must be filed with the court that issues the order of relinquishment and with the state registrar of vital statistics.

(10) The court shall hear a petition to terminate the parent-child legal relationship no more than one hundred twenty days after service of the petition or from the first appearance date, whichever is later, unless both parties consent to an extension or the court finds good cause to extend the hearing beyond one hundred twenty days.

(11) (a) The court shall terminate the parent-child legal relationship of the respondent if the court finds by clear and convincing evidence that:

(I) A sexual assault against the petitioner occurred;

(II) The sexual assault was perpetrated by the respondent;

(III) A child was conceived as a result of that act of sexual assault as evidenced by the respondent admitting parentage or genetic testing establishing the paternity;

(IV) Termination of the parent-child legal relationship is in the best interests of the child. The court shall not presume that having only one remaining parent is contrary to the child's best interests.

(b) If the child is an Indian child, the court shall ensure compliance with the federal "Indian Child Welfare Act of 1978", 25 U.S.C. sec. 1901 et seq., and the provisions of section 19-1-126.

(12) If the court denies the petition to terminate the parent-child legal relationship, the court shall articulate its reasons for the denial of the petition. If the court denies the petition, the court has continuing jurisdiction and authority to enter an order in the same proceeding allocating parental responsibilities between the petitioner and the respondent, including but not limited to an order to not allocate parental responsibilities to the respondent. In issuing any order allocating parental responsibilities, including the duty of support, guardianship, and parenting time privileges with the child or any other matter, the court shall determine whether the order is in the best interests of the child based on a preponderance of the evidence.

(13) (a) A respondent whose parental rights are terminated in accordance with this section has:

(I) No right to allocation of parental responsibilities, including parenting time and decision-making responsibilities for the child;

(II) No right of inheritance from the child; and

(III) No right to notification of, or standing to object to, the adoption of the child.

(b) Notwithstanding the provisions of section 19-3-608, termination of parental rights under subsection (10) of this section does not relieve the respondent of any obligation to pay child support or birth-related costs unless waived by the petitioner. In cases in which child support obligations are not waived, the court, as informed by the wishes of the petitioner, shall determine if entering an order to pay child support is in the best interests of the child. If the court orders the respondent to pay child support, the court shall order the payments to be made through the child support registry to avoid the need for any contact between the parties and order that the payments be treated as a nondisclosure of information case. If the petitioner's parent-child legal relationship to the child is terminated after the entry of a child support order against the respondent, the court shall modify the child support order accordingly.

(14) A respondent whose parent-child legal relationship has been terminated in accordance with this section has no right to make medical treatment decisions or any other decisions on behalf of the child.

(15) The court may order a respondent whose parent-child legal relationship has been terminated to provide medical and family information to be shared with the child, as appropriate, and with the petitioner. The sharing of information must be consistent with the uniform process established by the state court administrator as provided in section 19-5-105.5 (9.5). The court may order that a respondent's failure to comply with the request for information in a timely manner constitutes contempt of court.

(16) The juvenile court has original concurrent jurisdiction to issue a temporary or permanent civil protection order pursuant to section 13-14-104.5 or 13-14-106, C.R.S.

(17) Termination of the parent-child legal relationship pursuant to subsection (10) of this section is an independent basis for termination of parental rights, and the court need not make any of the considerations or findings described in section 19-3-604, 19-5-103.5, or 19-5-105.

(18) Nothing in this section prohibits the termination of parental rights by the court using the criteria described in section 19-3-604, 19-5-103.5, or 19-5-105.

History

Source: L. 2014: Entire section added, (HB 14-1162), ch. 167, p. 587, 4, effective July 1. L. 2021: (2)(a) and (2)(d) amended, (SB 21-059), ch. 136, p. 735, 86, effective October 1.