23CA1142 Peo in Interest of EG-M 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1142
El Paso County District Court No. 20JV866
Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Appellee,
In the Interest of E.G-M. and V.G-M., Children,
and Concerning G.M.,
Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE NAVARRO
Pawar and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
1
¶ 1 In this dependency and neglect proceeding, G.M. (presumptive
father) appeals the judgment declaring F.E.G. (biological father) the
legal father of twins, E.G-M. and V.G-M. (the children). We affirm.
I. Background
¶ 2 In November 2020, the El Paso County Department of Human
Services (the Department) filed a petition in dependency and
neglect, alleging that presumptive father was not able to meet the
heightened needs of the children, who were twenty-one months old.
The juvenile court granted temporary custody of the children to the
Department for placement in foster care.
¶ 3 The petition listed presumptive father, unknown mother, and
unknown father as respondents. At the shelter hearing,
presumptive father asserted that paternity was not at issue. The
court adjudicated the children dependent and neglected and
adopted a treatment plan for presumptive father.
¶ 4 Eight months later, mother appeared in the case for the first
time. At the next hearing, the juvenile court ordered presumptive
father to complete genetic testing based on representations from
mother that he might not be the child’s genetic father. Presumptive
father objected to testing “on the basis he feels he has been the
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father and is on the birth certificate.” The court affirmed that
presumptive father had a presumption of parentage but ordered
genetic testing nonetheless because “there may be other legal
presumptive parents out there.”
¶ 5 A few months after that hearing, mother filed a paternity
affidavit listing biological father as the only possible genetic father
of the children. The court again ordered presumptive father to
complete genetic testing. The court amended the petition and
added biological father as a respondent.
¶ 6 In February 2022 (over two years after the petition was filed),
the juvenile court ordered both presumptive father and biological
father to complete genetic testing, noting this would be the third
order for presumptive father to participate in the testing.
¶ 7 Two months later, presumptive father requested a paternity
hearing. Although genetic testing revealed that presumptive father
was not the child’s genetic parent, he asserted two presumptions of
paternity: (1) he was married to mother at the time of the birth and
appeared on the birth certificates and (2) he was the psychological
father. Biological father had not yet completed a scheduled genetic
3
test; even so, he asserted that he believed he was the genetic father
and asked the Department to arrange for family time.
¶ 8 A February 2023 parentage hearing was converted into an
appearance review at presumptive father’s request because of a
change in his counsel. At that hearing, the parties agreed that all
the pending hearings should “start over” and should be held in
front of a district court judge. All parties agreed that paternity was
the “number one” issue that needed to be resolved.
¶ 9 Following a contested hearing in May 2023, the juvenile court
adjudicated biological father as the legal father of the children.
II. Parentage
¶ 10 A juvenile court may determine a child’s parentage as part of a
dependency and neglect proceeding. See People in Interest of J.G.C.,
2013 COA 171, ¶ 10. When a parentage issue arises in a
nonpaternity proceeding, the court must follow the procedures
outlined in Colorado’s Uniform Parentage Act (UPA). Id. at ¶ 11.
¶ 11 Under the Children’s Code, a “parent” is “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), C.R.S. 2023.
4
¶ 12 Under article 4 (the UPA), a presumption of parentage may
arise from various circumstances. As relevant here, such a
presumption may arise if:
• the person was married to the parent who gave birth to
the child when the child was born, as provided in section
19-4-105(1)(a), C.R.S. 2023;
• the person receives the child into their home and “openly
holds out the child as the person’s natural child,” as
provided in section 19-4-105(1)(d); or
• genetic or other tests of inherited characteristics have
been administered, and the results show that the alleged
parent is not excluded as the probable genetic parent and
that the probability of their parentage is ninety-seven
percent or higher, as provided in section 19-4-105(1)(f).
¶ 13 A presumption of parentage can be rebutted by clear and
convincing evidence. § 19-4-105(2)(a). None of the presumptions is
conclusive, including the presumption based on biology. N.A.H. v.
S.L.S., 9 P.3d 354, 361-62 (Colo. 2000).
¶ 14 If two or more conflicting presumptions arise, and none has
been overcome by clear and convincing evidence, the presumption
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that is founded on the weightier considerations of policy and logic
controls. § 19-4-105(2)(a). In determining which of the conflicting
presumptions controls, the court must consider “all pertinent
factors” including those listed in section 19-4-105(2)(a)(I)–(VIII). The
inquiry is fact-intensive, and the court must focus on the best
interests of the child when weighing competing presumptions of
parenthood. N.A.H., 9 P.3d at 362.
¶ 15 In a parentage decision, the juvenile court has the authority to
assess the credibility of the witnesses, evidence, and parties’
competing claims as to the children’s best interests. Id. at 365. We
“afford[] the trial judge significant deference” in the assessment of
the “myriad relevant facts that may properly influence” a
determination of parentage. Id. Therefore, we defer to the court’s
factual findings if they are supported by the record. People In
Interest of K.L.W., 2021 COA 56, ¶ 42.
A. Competing Presumptions
¶ 16 It is uncontested that presumptive father and biological father
were each entitled to competing presumptions.
¶ 17 Presumptive father asserted that he was entitled to
presumptions of parentage because he was married to mother when
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the children were born, appeared on their birth certificates, and
received the children into his home.
¶ 18 Biological father asserted that he was entitled to a
presumption of parentage because he completed genetic testing that
showed the probability of his parentage was higher than ninety-
seven percent.
¶ 19 At the hearing, no party attempted to rebut the presumptions.
Instead, the argument of the parties and the analysis of the juvenile
court centered on the factors listed in section 19-4-105(2)(a).
B. A Voluntary Acknowledgment of Parentage
¶ 20 A voluntary acknowledgement of parentage that complies with
section 19-4-105 and other statutes “is equivalent to an
adjudication of parentage” and may be challenged only “on the
basis of fraud, duress, or mistake of material fact, with the burden
of proof upon the challenger.” § 19-4-105(2)(c)-(d).
¶ 21 Presumptive father asserts that the juvenile court erred by not
determining if his appearance on the children’s birth certificates
gave rise to a legal finding of paternity that would have rebutted all
other presumptions of parentage.
7
¶ 22 That is not, however, the argument he made before the
juvenile court.
¶ 23 Throughout the proceeding, presumptive father asserted that
his name was listed on the birth certificate. But he always made
this assertion in the context of his claim that he was entitled to
multiple presumptions of parentage. For example, during closing
arguments at the parentage hearing, he asserted he “me[t] criteria
under several of those presumptions” because he appeared on the
birth certificates.
¶ 24 Because presumptive father’s argument on appeal (that the
birth certificate may have qualified as an independent adjudication
of parentage) is different from his argument to the juvenile court
(that the birth certificate created a presumption of parentage), we
decline to address it. See People in Interest of M.B., 2020 COA 13,
¶ 14; People v. Ujaama, 2012 COA 36, ¶ 37 (explaining that issues
are unpreserved when the grounds raised on appeal are different
from those raised below).
C. The Impact of Delaying a Parentage Finding
¶ 25 Presumptive father next contends that the juvenile court erred
by “wrongfully infer[ring] that [he] had not promptly and proactively
8
asserted his parental status” and then applying that inference to its
analysis under the factors in section 19-4-105(2)(a). Because there
is some record support for the court’s findings, we will not disturb
them.
¶ 26 In its oral ruling, the court thoroughly weighed the factors in
section 19-4-105(2)(a). The first factor is the length of time between
the proceedings and when the presumed parent was placed on
notice that they might not be the genetic parent. § 19-4-105(2)(a)(I).
The court found that both presumptive father and biological father
“sat on this for a significant amount of time.” As relevant to
presumptive father’s appeal, the court found that obtaining a legal
parentage finding was not a priority to presumptive father and that
he could have brought the motion sooner if he “truly wanted to be
found the children’s legal father.”
¶ 27 Presumptive father contends that juvenile court’s finding that
he delayed in asserting his paternity was erroneous. True, he
asserted that he was the children’s father throughout the
proceedings and asked for a parentage hearing in April 2022, more
than a year before the hearing was finally held. The magistrate who
oversaw much of the case noted that delays in holding the
9
parentage hearing were largely attributed to “logistical issues”
including docketing problems that caused an eight-month gap
between hearings of any kind in the case.
¶ 28 And we acknowledge that the district court might not have
started the parentage hearing fully aware of these docketing delays.
At the start of the hearing, the court noted that presumptive father
filed a written motion only two days before the hearing and asked if
the parties were prepared to address the parentage issue.
¶ 29 Still, we are not persuaded by presumptive father’s argument
for two reasons. First, in response to the court’s questions about
the “late motion,” the parties said that parentage had “been raised
orally in court . . . at every single hearing” since biological father
was added as a respondent and that they “had been requesting a
paternity hearing for over a year” in front of the magistrate. All
parties agreed that the purpose of the May 2023 hearing was to
address parentage. Furthermore, at the end of the hearing, the
court acknowledged the delay and “apologize[d] that it took that
long to get [parentage] handled. That should have happened far
ahead of today’s date.”
10
¶ 30 Second, the court heard evidence that presumptive father
knew or should have known that he was not the biological father
before the Department became involved, but he did not take steps
to establish his parentage. Presumptive father testified that he did
not know mother was pregnant with the children and was not
present for their birth. He testified that mother never told him that
the children were his. After first refusing to answer if he and
mother had sexual intercourse within the ten months before the
children were born, presumptive father testified that he could not
remember. Presumptive father did not meet the children until they
were “maybe six or seven months” old. He testified that he knew
the children existed before then but could not recall how or when
he learned of their birth. Presumptive father testified that other
people suggested that the children were not his, but he did not
accept that idea because, when he married mother, he “took the
load” of caring for them. He also testified, however, that he knew
mother had another child with his last name but who lived with her
“real father.” Presumptive father testified that, even after he found
out he was not the children’s genetic father, he “still remained their
11
daddy.” But it was unclear from his testimony when he learned or
started to believe that he was not their genetic parent.
¶ 31 It was the juvenile court’s responsibility, as the trier of fact, to
determine the sufficiency, probative effect, and weight of the
evidence and to assess witness credibility. People in Interest of
C.A.K., 652 P.2d 603, 613 (Colo. 1982). When the evidence
conflicts, a reviewing court may not reweigh the evidence or
substitute its judgment for the juvenile court’s judgment merely
because there might be evidence supporting a different result. See
People in the Interest of A.J.L., 243 P.3d 244, 256 (Colo. 2010).
¶ 32 Given that there is record support for the juvenile court’s
finding that presumptive father delayed pursuing a finding of legal
parentage, we will not disturb the court’s findings or legal
conclusions based on those findings, including the court’s weighing
of the other factors in section 19-4-105(2)(a).
III. Ineffective Assistance of Counsel
¶ 33 Presumptive father next contends that, by “failing to
adequately apprise the court of the duration and seriousness of
[presumptive father]’s commitment to parenting the children,
[presumptive father]’s trial counsel provided him with ineffective
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assistance of counsel, prejudicing the outcome of the parentage
hearing.” In particular, presumptive father asserts that trial
counsel should have called his psychiatrist, pain management
doctor, and life skills worker to testify. We are not persuaded.
¶ 34 Colorado case law recognizes that a parent’s statutory right to
counsel includes the right to effective assistance of counsel. See
A.R. v. D.R., 2020 CO 10, ¶ 47; People in Interest of S.L., 2017 COA
160, ¶ 58; People in Interest of C.H., 166 P.3d 288, 290 (Colo. App.
2007).
¶ 35 To successfully make an ineffective assistance of counsel
claim, a parent must show that (1) counsel’s performance was
outside the wide range of professionally competent assistance and
(2) the parent was prejudiced by counsel’s errors. A.R., ¶¶ 48, 60;
C.H., 166 P.3d at 291-92.
¶ 36 An ineffective assistance of counsel claim must allege facts
with sufficient specificity to be successful if those facts were true,
including, for example, the expected names of witnesses to be
called, the expected substance of testimony, and a clear explanation
of how that testimony would demonstrate that trial counsel’s
13
performance was outside the wide range of professionally competent
assistance. See C.H., 166 P.3d at 291.
¶ 37 To show prejudice, the parent must show a reasonable
probability that the outcome of the proceeding would have been
different but for counsel’s deficient performance or unprofessional
errors. A.R., ¶ 60. If the parent’s allegations lack sufficient
specificity, we may summarily deny the ineffective assistance claim.
See C.H., 166 P.3d at 291. In other words, a remand for an
evidentiary hearing is required only if the parent’s allegations are
sufficiently specific and compelling to constitute a prima facie
showing of ineffective assistance of counsel. Id.
¶ 38 We conclude that presumptive father’s allegations lack
sufficient specificity to warrant a hearing. See id. While
presumptive father suggests specific witnesses who might have
been called, he does not provide the expected substance of their
testimony. Presumptive father refers instead to earlier testimony
provided by his psychologist and pain management doctor. The
juvenile court, however, heard testimony from those professionals.
As the court explained, their testimony “wasn’t as to paternity, but .
. . as to some of the other issues we’ve had in the case quite a long
14
time ago.” Regarding presumptive father’s assertion that his life
skills provider “would have testified to [presumptive father]’s
positive parenting attributes,” the assertion is not specific enough
to constitute the prima facie showing necessary to remand the
matter.
¶ 39 Furthermore, while presumptive father now alleges that his
counsel failed to apprise the court of the “duration and seriousness
of [his] commitment to parenting the children,” our review of the
record reveals that this desire was not in doubt. Presumptive father
testified that he stepped in to care for the children when they were
around six or seven months old. His desire to continue parenting
the children was also supported by the caseworker, who reported
that presumptive father (1) was “a nice guy and he loves these
children”; (2) had good interactions with the children at her last
observation; and (3) was “very loving and affectionate” with the
children. The juvenile court said it “simply can’t find there is a
significant close relationship . . . . Not because [presumptive father]
doesn’t love them, not because he doesn’t want to be there for
[them], [but] because we haven’t been able to progress very far in
this case.”
15
¶ 40 Therefore, we conclude that presumptive father has not raised
sufficiently specific or compelling allegations to constitute a prima
facie showing of ineffective assistance of counsel.
IV. Conclusion
¶ 41 The judgment is affirmed.
JUDGE PAWAR and JUDGE JOHNSON
