Petition of R.M.C. III ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 21, 2022
2022COA46
No. 21CA0520, Adoption of E.A.T. — Family Law — Stepparent
Adoption — Allocation of Parental Responsibilities —
Psychological Parent
In this stepparent adoption case, a division of the court of
appeals holds that the decree of adoption does not vitiate a
previously ordered allocation of parental responsibilities (APR) to a
psychological parent; rather, the domestic relations court retains
exclusive jurisdiction to modify or abrogate the APR order.
COLORADO COURT OF APPEALS 2022COA46
Court of Appeals No. 21CA0520
Morgan County District Court No. 20JA18
Honorable Kevin L. Hoyer, Judge
In re the Petition of R.M.C. III,
Appellant and Cross-Appellee,
for the Adoption of E.A.T., a Child,
and Concerning J.D.L.,
Appellee and Cross-Appellant.
ORDERS AFFIRMED
Division IV
Opinion by JUDGE TOW
Richman and Grove, JJ., concur
Announced April 21, 2022
Hampton & Pigott LLP, Natalie T. Chase, Broomfield, Colorado, for Appellant
and Cross-Appellee
Marquez Law, Jason A. Marquez, Denver, Colorado, for Appellee and Cross-
Appellant
¶1 In this stepparent adoption proceeding, R.M.C. III (adoptive
father) appeals two separate orders dated March 5, 2021, issued by
the Morgan County District Court (the adoption court), which
vacated a prior order supplementing the adoption decree. J.D.L.
(psychological father)1 cross-appeals the same orders, asserting that
the court erroneously denied his request to intervene in the
adoption action and to set aside the adoption decree. Psychological
father also challenges an April 8, 2021, order denying access to the
adoption case file and register of actions.
¶2 We hold, as a matter of first impression, that a decree of
adoption does not vitiate a prior allocation of parental
responsibilities (APR) to a nonparent. Rather, the court that issued
the prior order retains jurisdiction related to the nonparent’s APR.
We also hold that the nonparent is not entitled to receive notice of,
and participate in, the adoption proceeding. Consequently, we
affirm the orders.
1 A psychological parent is “someone other than a biological parent
who develops a parent-child relationship through day-to-day
interaction, companionship, and caring for the child.” In re Parental
Responsibilities Concerning E.L.M.C., 100 P.3d 546, 559 (Colo. App.
2004).
1
I. Background
¶3 Mother and A.R. (biological father) had E.A.T. (child) in 2015.
In 2017, mother married psychological father. They separated
shortly thereafter and mother began living with adoptive father. In
2019, psychological father filed for dissolution of marriage in the El
Paso County District Court (the domestic relations court). In
August 2020, the domestic relations court orally entered a decree
dissolving the marriage and announced permanent orders, though
neither the decree nor the permanent orders were reduced to
writing at that time.2
¶4 In October 2020, before the written decree and permanent
orders were entered in the dissolution of marriage case, adoptive
father filed a petition in the adoption court for stepparent adoption.
Mother and biological father consented to the adoption.
Psychological father was not given notice of the adoption petition.
2 For some aspects of the timeline, we take judicial notice of the
filings and orders in the dissolution of marriage case, El Paso
County District Court Case No. 2019 DR 30762. See People v.
Sa’ra, 117 P.3d 51, 55-56 (Colo. App. 2004) (“A court may take
judicial notice of the contents of court records in a related
proceeding.”).
2
¶5 Three weeks later, the domestic relations court entered the
written decree and permanent orders finding, as relevant to this
case, that psychological father was the child’s psychological parent
and granting him parenting time.
¶6 Shortly thereafter, the adoption court entered an adoption
decree. The court also entered a supplemental order, finding that
 the court had jurisdiction;
 psychological father had been previously granted
parenting time through an action in El Paso County;
 there was no “scientific or biological” basis for
psychological father to be “the actual psychological father
of the minor child”;
 because of the adoption, mother and adoptive father are
parents who get to make parenting and visitation
decisions; and
 psychological father would be permitted no further
contact or parenting time with the child.
¶7 One month later, mother and psychological father appeared in
the domestic relations court on a motion regarding parenting time.
The domestic relations court recognized that an adoption decree
3
had been entered, making adoptive father the legal father. The
court also acknowledged that, as a result of the adoption decree,
there was “a competing order indicating that [psychological father
was] to have no contact.” But the domestic relations court
concluded that it had original and continuing jurisdiction over the
parental responsibilities concerning the child and denied
modifications to the parenting time schedule set forth in the
permanent orders.
¶8 Psychological father filed a motion in the adoption court to
intervene in the adoption action. He asserted that the domestic
relations court had previously entered permanent orders naming
him the child’s psychological parent and allocating certain “parental
rights.” He further argued that, after the adoption court had
entered the adoption decree, the domestic relations court had
entered another order that, among other things, reaffirmed its
jurisdiction over the parental responsibilities concerning the child.
¶9 Psychological father also filed a motion in the adoption court
to set aside the adoption decree. He asserted that, as a
psychological parent, his rights “are equivalent to the rights of a
legal parent.” He argued that he had “a protected liberty interest
4
because he was granted parental rights” and was thus entitled to —
but did not — receive notice of the stepparent adoption before the
decree had been entered; therefore, his “parental rights” had been
terminated without due process. He further contended that he was
entitled to relief under C.R.C.P. 60(b)(1)-(3), (5).
¶ 10 On March 5, 2021, the adoption court denied both of
psychological father’s motions. In denying the motion to set aside
the adoption decree, the court ruled that psychological father was
not entitled to notice of the adoption proceeding and lacked
standing to challenge the adoption decree because he was not a
“natural parent” as defined in section 19-1-103(105), C.R.S. 2021.
In denying the motion to intervene, the court ruled that the
stepparent adoption statute, § 19-5-203(1)(f), C.R.S. 2021, does not
provide for intervention by anyone who is not a natural parent;
therefore, psychological father did not have an unconditional right
to intervene under C.R.C.P. 24. The court also found that, because
an order regarding psychological father’s parenting time had been
entered in the domestic relations court, psychological father had
“failed to demonstrate that the stepparent adoption may impair or
impede his ability to protect his interest in visitation with the child.”
5
¶ 11 Because the domestic relations court had asserted original
and continuing jurisdiction with regard to psychological father’s
parenting time, however, the adoption court also vacated the
supplemental order. The adoption court reiterated that the
domestic relations court was the only court that had jurisdiction
over psychological father’s parenting time with the child and
disputes regarding such time should be resolved there.
¶ 12 Psychological father then filed a motion in the adoption court
for access to the adoption case file and register of actions. He
argued that he needed the case file and register of actions to appeal
the orders denying his motions to intervene and set aside the
adoption decree.
¶ 13 On April 8, 2021, the adoption court denied psychological
father’s motion for access to the adoption court file and register of
actions. In doing so, the court found that under section 19-5-305,
C.R.S. 2021, psychological father does not fall within the class of
people permitted to access confidential adoption records.
II. Adoptive Father’s Contention
¶ 14 Adoptive father contends that the adoption court erred by
vacating the supplemental order. Specifically, he argues that the
6
court’s decision was based on an erroneous conclusion that the
domestic relations court has continuing jurisdiction to determine
psychological father’s parenting time. We disagree.
¶ 15 Juvenile courts (including the juvenile divisions of district
courts outside of the City and County of Denver) have exclusive
original jurisdiction in proceedings concerning adoption. See
§ 19-1-104(1)(g), C.R.S. 2021; see also § 19-1-103(89); In re C.A.O.,
192 P.3d 508, 510 (Colo. App. 2008). District courts have
jurisdiction over domestic relations matters, including APR. Colo.
Const. art. VI, § 9; § 14-10-123, C.R.S. 2021. The district court’s
jurisdiction in a case, even if continuing, does not preclude the
juvenile court from taking jurisdiction in another case involving
other issues related to the same child. § 19-1-104(5) (“Where a
custody award or an order allocating parental responsibilities with
respect to a child has been made in a district court in a dissolution
of marriage action or another proceeding and the jurisdiction of the
district court in the case is continuing, the juvenile court may take
jurisdiction in a case involving the same child if the child comes
within the jurisdiction of the juvenile court.”).
7
¶ 16 In this case, the domestic relations court was the district court
that had original jurisdiction over the APR concerning the child,
having entered an APR in the dissolution of marriage action. The
adoption court was the juvenile court (or, more accurately, the
juvenile division of the Morgan County District Court) that then
took jurisdiction over the adoption-related issues in the stepparent
adoption action. Thus, both courts properly exercised jurisdiction
over certain issues related to the child.
¶ 17 To be sure, nothing in section 19-1-104(5) permitted the
adoption court to modify an existing APR to a nonparent. In
contrast, that section explicitly contemplates the juvenile court
making such modifications in dependency and neglect cases and in
juvenile delinquency cases. 3
¶ 18 True, as adoptive father points out, the effect of the adoption
decree is that he “is entitled to all the rights and privileges and is
subject to all the obligations of a child born to” him. § 19-5-211(1),
C.R.S. 2021. Further, “[t]he parents [are] divested of all legal rights
3The scope of the juvenile court’s authority differs depending on
whether it is sitting in an adoption case, a dependency and neglect
case, or a delinquency case. This opinion addresses only what may
be done by a juvenile court handling an adoption matter.
8
and obligations with respect to the child.” § 19-5-211(2).4 But,
contrary to adoptive father’s contention, this language does not
automatically vitiate the domestic relations court’s order granting
parenting time to psychological father.
¶ 19 Psychological father is not a “parent” for purposes of the
adoption statute. The Children’s Code defines parent as “either a
natural parent of a child, as may be established pursuant to article
4 of this title 19, or a parent by adoption.” § 19-1-103(105)(a). At
oral argument, psychological father’s counsel invoked the language
from a different part of the same statute: “‘Parent,’ as used in
sections 19-1-114, [C.R.S. 2021;] 19-2.5-501, [C.R.S. 2021;] and
19-2.5-611, [C.R.S. 2021,] includes . . . a parent allocated parental
responsibilities with respect to a child.” § 19-1-103(105)(b). But
this provision is unavailing for two reasons: (1) by its terms, this
definition of parent applies to only three statutory sections, none of
which is at issue here; and (2) it still refers to a “parent” — rather
than a “person” — who has been allocated parental responsibilities.
4 Because this was a stepparent adoption, the statute clarifies that
the decree of adoption had no impact on mother’s rights and
obligations. § 19-5-211(3), C.R.S. 2021.
9
Significantly, the General Assembly has used the phrase “person to
whom parental responsibilities have been allocated” elsewhere in
the Children’s Code. See, e.g., § 19-1-111(2)(a)(I), C.R.S. 2021
(setting forth the conditions for appointing a guardian ad litem);
§ 19-1-114(1) (authorizing the juvenile court to “make an order of
protection” setting forth “reasonable conditions of behavior” not
only on a parent but on a “person to whom parental responsibilities
have been allocated”). Clearly, when the legislature wants to
include people in psychological father’s position in the same group
as parents, it knows how to do so. See Meardon v. Freedom Life Ins.
Co., 2018 COA 32, ¶ 46.
¶ 20 As it relates to psychological father’s allocation of parental
responsibilities, the “rights and privileges” adoptive father enjoys
and the “obligations” to which he is subject are no more than those
enjoyed by the child’s biological father before the adoption. In other
words, adoptive father is subject to the existing parenting time
order, including the allocation of parenting time to psychological
father. Adoptive father can no more ignore that order than
biological father could have before the adoption.
10
¶ 21 In short, by entering the supplemental order, the adoption
court improperly modified an existing APR order. This was outside
the purview of section 19-1-104(5) and in derogation of section
19-1-104(8)(a)(II). By vacating the supplemental order, the adoption
court correctly recognized that the domestic relations court had
jurisdiction over psychological father and matters related to his
parenting time.
¶ 22 Indeed, if adoptive father’s position on the issues in this case
were correct, a psychological parent would not be entitled to
participate in an adoption proceeding, but his rights under an
existing court order could nevertheless be taken away. We cannot
conclude that the legislature intended to create such a blatant due
process problem.
¶ 23 Adoptive father argues that the supplemental order “was the
only protection” he and mother had to protect their parental rights
because — now that the order has been vacated — the domestic
relations court can deny his and mother’s rights to the child and
grant rights to a nonparent. But this argument ignores that the
domestic relations court had already granted APR to psychological
father. Nothing in section 19-1-104 precludes adoptive father from
11
seeking to modify parenting time and asserting his Troxel
presumption in the domestic relations court. See Troxel v.
Granville, 530 U.S. 57, 66 (2000).5
¶ 24 Accordingly, we conclude that the adoption court’s order
vacating the supplemental order was not only proper, but
necessary.
III. Psychological Father’s Contentions
A. Motions to Intervene
¶ 25 Psychological father contends that the adoption court erred by
denying his motion to intervene in the adoption action. In
particular, he argues that he is a legal parent and section
14-10-123 gave him an unconditional right to intervene under
C.R.C.P. 24(a). We disagree.
5 At oral argument, adoptive father’s counsel represented that
adoptive father’s attempt to intervene in the domestic relations
court had been denied. This representation appears to be incorrect.
According to a December 15, 2021, minute order in the domestic
relations case, the parties stipulated that adoptive father would be
joined as a respondent. Adoptive father’s counsel was instructed to
file a written motion if adoptive father sought to raise any issue
related to parenting time, but no such motion appears to have been
filed.
12
¶ 26 We review de novo the denial of a motion to intervene under
C.R.C.P. 24. In Interest of K.L.O-V., 151 P.3d 637, 640 (Colo. App.
2006).
¶ 27 C.R.C.P. 24(a)(1) provides that a person shall be permitted to
intervene when a statute confers an unconditional right to
intervene. “Although a statutory scheme may not expressly provide
for intervention, the mechanism of intervention may be inherent in
the scheme when it provides to a nonparty absolute redress against
a party in the context of an existing lawsuit.” K.L.O-V., 151 P.3d at
640.
¶ 28 Initially, we reiterate that psychological father is not a legal
parent. We recognize that the domestic relations court noted that
psychological father had “significant rights that are equivalent to a
legal parent.” But the court’s statement does not make
psychological father a legal parent. It is undisputed that, prior to
the adoption, mother and biological father were the child’s legal
parents. And the child can only have two legal parents. See People
in Interest of K.L.W., 2021 COA 56, ¶ 2.
¶ 29 We next conclude that section 14-10-123 does not expressly
provide for intervention in a stepparent adoption. Section
13
14-10-123(1)(c) gives psychological father, as a nonparent, the
ability to seek an APR. See People in Interest of E.L.M.C., 100 P.3d
546, 553 (Colo. App. 2004). But this statute does not vest a
nonparent with an absolute right to an APR. See People in Interest
of K.M.B., 80 P.3d 914, 917 (Colo. App. 2003) (noting “no such
parental responsibility award [to a nonparent] will be made unless a
court in fact determines that it would be in the best interests of the
child.”)
¶ 30 As we have observed above, issues concerning an APR are
separate from a stepparent adoption. The statute clearly evinces a
legislative intent that issues related to an APR be resolved by a
district court handling the domestic relations matter rather than a
juvenile court handling an adoption. Consequently, we conclude
that section 14-10-123 does not confer an unconditional right to
intervene under C.R.C.P. 24(a) in a stepparent adoption.
¶ 31 To the extent psychological father argues that he had a
conditional right to intervene under C.R.C.P. 24(b) because his
claim to parenting time and the stepparent adoption have a
question of law or fact in common, we are unconvinced. Contrary
to his contention, his rights to parenting time were not terminated.
14
Even though the adoption court initially terminated his parenting
time through the supplemental order, the court subsequently
corrected that error by vacating that order, and we have affirmed
that decision. And, to the extent there is overlap, the statute clearly
requires that the APR issues remain in the domestic relations court.
¶ 32 Accordingly, we conclude that the adoption court did not err
by denying the motion to intervene.
B. Motion to Set Aside Adoption Decree
¶ 33 Psychological father contends that the adoption court erred by
denying his motion to set aside the adoption decree. Specifically, he
argues that the court should not have granted the adoption decree
because the child was not available for adoption under section
19-5-203(1), C.R.S. 2021. He also asserts that the court violated
his due process rights. We discern no basis for reversal.
¶ 34 We review the denial of a C.R.C.P. 60(b) motion to set aside a
judgment for an abuse of discretion. Gold Hill Dev. Co. v. TSG Ski &
Golf, LLC, 2015 COA 177, ¶ 65. A court abuses its discretion if the
ruling is manifestly arbitrary, unreasonable, or unfair, or based on
a misunderstanding of the law. Id.15
¶ 35 We conclude that the child was available for adoption. Section
19-5-203(1)(f) provides that a child may be available for adoption
upon written or verified consent of the parent or parents where the
child’s parents were not married at the time the child was conceived
or born. Again, for purposes of the Children’s Code, “[p]arent”
means either a natural parent or a parent by adoption.
§ 19-1-103(105)(a). At the time of the adoption, mother and
biological father were the child’s natural parents and they
consented to the adoption. Therefore, the child was available for
adoption. See § 19-5-203(1)(f).
¶ 36 We also conclude that the adoption court did not violate
psychological father’s due process rights. We review procedural due
process claims de novo. People in Interest of C.J., 2017 COA 157,
¶ 25. To establish a violation of due process, one must first
establish a constitutionally protected liberty interest that warrants
due process protections. Id. To be sure, a legal parent has a
fundamental liberty interest in the care, custody, and control of her
child. Troxel, 530 U.S. at 66. To protect the parental liberty
interest, due process requires the state to provide fundamentally
fair procedures to a legal parent facing termination. A.M. v. A.C.,
16
2013 CO 16, ¶ 28; see also Santosky v. Kramer, 455 U.S. 745, 753-
54 (1982). These procedures include a legal parent receiving notice
of the hearing, advice of counsel, and the opportunity to be heard
and defend. People in Interest of Z.P.S., 2016 COA 20, ¶ 40.
¶ 37 But psychological father was not a legal parent facing
termination of his parental rights. And his ability to protect his
interests related to the APR remains intact, albeit in the domestic
relations court. Therefore, the court did not have to ensure that
psychological father received notice and the opportunity to be heard
on the issue of stepparent adoption.6
6 That being said, the General Assembly may wish to consider
requiring notice of an adoption to a person to whom parental
responsibilities have been allocated. Such a person — perhaps, as
here, a psychological parent or a family member who was allocated
parental responsibilities in lieu of terminating a parent’s rights at
the conclusion of a dependency and neglect case — may very well
be able to provide an adoption court with valuable information
related to the factors the court must consider when determining
whether to grant the adoption request, including, among other
things, the moral character of the party seeking to adopt the child,
whether the adoption is in the best interest of the child, and
whether the child has a significant relationship with a sibling or
half-sibling that might be adversely impacted by the adoption. See
§ 19-5-210(2), C.R.S. 2021 (enumerating the factors an adoption
court is to consider before granting an adoption request).
17
¶ 38 Accordingly, we conclude that the adoption court did not err
by denying the motion to set aside.
C. Motion for Access
¶ 39 We next reject psychological father’s contention that he is
entitled to access to the adoption case file and register of actions.
Psychological father is not within the class of persons who are
permitted to receive access to adoption records under section
19-5-305(2)(b)(I)(A).7 While the statute permits a court to authorize
disclosure of these records to other parties for good cause shown,
§ 19-5-305(1), there is no such good cause here. Psychological
father sought access to the records to assist in his appeal of the
denial of his request to intervene and set aside the adoption for lack
of notice. Because this claim turns on the purely legal issue of
whether psychological father is statutorily entitled to notice and to
participate in the adoption case, psychological father can
adequately brief the issue (and has done so) without access to the
record.
7In addition, adoption cases are sealed and not accessible to
nonparties. Chief Justice Directive 05-01, Directive Concerning
Access to Court Records § 4.60(b)(1) (effective Jan. 4, 2022).
18
¶ 40 Accordingly, we conclude that the adoption court did not err
by denying the motion for access.
IV. Appellate Attorney Fees
¶ 41 Finally, we decline adoptive father’s and psychological father’s
requests for appellate attorney fees under C.A.R. 39.5 and section
13-17-102, C.R.S. 2021. Given our resolution of the issues, it
cannot be said that either party’s position was substantially
groundless, frivolous, or vexatious.
V. Conclusion
¶ 42 The orders are affirmed.
JUDGE RICHMAN and JUDGE GROVE concur.
19