Adoption of JL ( 2024 )

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<div>24CA0435 Adoption of JL 10-17-2024 </div>
<div> </div>
<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 24CA0435 </div>
<div>Larimer <span>County District Court No. 23JA30022 </span>
</div>
<div>Honorable Sarah B. Cure, Judge </div>
<div> </div>
<div> </div>
<div>In the Matter of the Petition of B.C-H., </div>
<div> </div>
<div>Appellant, <span> </span>
</div>
<div> </div>
<div>for the Adoption of <span>J.L., a Child,</span> </div>
<div> </div>
<div>and Concerning B.R.L., </div>
<div> </div>
<div>Appellee. </div>
<div> </div>
<div> </div>
<div>JUDGMENT AFFIRMED<span> </span>
</div>
<div> </div>
<div>Division II </div>
<div>Opinion by JUDGE <span>JOHNSON</span> </div>
<div>Fox <span>and Schock, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 17, 2024 </div>
<div> </div>
<div> </div>
<div>B.C-H., Pro Se </div>
<div> </div>
<div>No appearance for Appellee </div>
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<div>1 </div>
<div>¶ 1<span> </span><span>In this stepparent adoption proceeding, B.C-H<span>. (</span><span>stepfather</span><span>) </span></span>
</div>
<div>appeals the juvenile court<span>’</span>s judgment denying his petition to adopt </div>
<div>J.L. (the child). We affirm. </div>
<div>I.<span> <span>Background </span></span>
</div>
<div>¶ 2<span> </span><span>The child was born in 2018. <span>The child’s father and </span>mother </span>
</div>
<div>separated when the child was four or five months old<span>. </span>In July </div>
<div>2019, the juvenile court ordered father to pay child supp<span></span>ort. </div>
<div>Around the same time, father filed a petition for allocation of </div>
<div>parental responsibilities<span>. <span>In</span></span> May 2020, the district court entered </div>
<div>permanent orders that included a “step<span>-</span>up plan” for father <span>to</span><span> </span>
</div>
<div>exercise supervised parenting time and then work his way up to </div>
<div>unsupervised parenting time. Thereafter, father was arrested and </div>
<div>incarcerated several times. Meanwhile,<span> </span>mother met stepfathe<span></span>r in </div>
<div>2021, and they got married in April 2023. </div>
<div>¶ 3<span> </span><span>In June 2023, stepfather filed a petition to adopt the child<span>, </span></span>
</div>
<div>which included a request to terminate father’s parental right<span></span>s<span>.<span> </span></span>
</div>
<div>Stepfather argued that father<span>’</span>s parental rights should be terminat<span></span>ed </div>
<div>because father had abandoned the child and failed to provide </div>
<div>financial support for one year or more. <span>Th</span>e juvenile court hel<span></span>d a </div>
<div>contested hearing on stepfather’s petition. The court <span></span>granted <span>the </span>
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<div>2 </div>
<div>parties’<span> request to bifurcate the proceeding so that the <span></span>only issue to </span>
</div>
<div>be decided at the hearing was whether father’s parental <span></span>rights </div>
<div>should be terminated. <span> </span>
</div>
<div>¶ 4<span> </span><span>After taking the matter under advisement, the juvenile court </span>
</div>
<div>issued a written order finding that stepfather had not <span></span>proven that </div>
<div>termination was in the child’s best interests or that <span>father </span>
</div>
<div>abandoned the child or failed to provide reasonable financial </div>
<div>support. Thus, the court denied stepfather’s request <span></span>to terminate </div>
<div>father’s parental rights. Then, finding that the child was n<span></span>ot </div>
<div>available for adoption, the court denied stepfather’s petit<span></span>ion to </div>
<div>adopt the child. </div>
<div>II.<span> <span>Standard of Review and Applicable Law </span></span>
</div>
<div>¶ 5<span> <span>We review the juvenile court’s factual findings regarding the </span></span>
</div>
<div>availability of a child for adoption for clear error. <span>D.P.H. v. J.L.B.</span><span>, </span>
</div>
<div>260 P.3d 320, 324 (Colo. 2011)<span>. </span>A factual finding is clearly </div>
<div>erroneous when it has no record support.<span> </span><span>In re Parenta<span></span>l </span>
</div>
<div>Responsibilities Concerning S.Z.S.<span>, 2022 COA 105, ¶ 11. But when </span>
</div>
<div>the record supports the court’s findings, we cannot reweigh t<span></span>he </div>
<div>evidence or substitute our judgment for that of <span></span>the juvenile court. </div>
<div>People in Interest of K.L.W.<span>, 2021 COA 56, ¶ 62. The <span></span>credibility of </span>
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<div>3 </div>
<div>the witnesses, as well as the sufficiency, probative effect <span></span>and weight </div>
<div>of the evidence, and the inferences and conclusions to be drawn </div>
<div>from them, are within the province of the juvenile co<span></span>urt. <span>People in </span>
</div>
<div>Interest of A.J.L.<span>, 243 P.3d 244, 249-50 (Colo. 2010); </span>see a<span></span>lso </div>
<div>D.P.H.<span>, 260 P.3d at 325 (noting that an appellate court may <span></span>not </span>
</div>
<div>disregard the juvenile court’s resolution of conflicting <span></span>evidence on </div>
<div>review). </div>
<div>¶ 6<span> <span>“[A]<span> proceeding for stepparent adoption necessarily includes </span></span></span>
</div>
<div>the termination of the parental rights of the non-custodial parent.<span>”</span> </div>
<div>D.P.H.<span>, 260 P.3d <span>at</span> 323.<span> </span>In this context, the juvenile court must </span>
</div>
<div>first determine whether an <span>adoption would be in the child’s best </span>
</div>
<div>interests. <span>Id</span><span>.</span><span> </span>Then the court must determine whether the child is </div>
<div>available for adoption pursuant to section <span>19</span>-5-203, C.R.<span></span>S. 2024. </div>
<div>As relevant to this appeal<span>, </span>a child is available for adoption when t<span></span>he </div>
<div>parent has (1) abandoned the child for a period of one year <span></span>or more </div>
<div>or (2) failed without cause to provide reasonable support <span></span>for the </div>
<div>child for one year or more. § 19-5-203(1)(d)(II).<span> </span>In evaluating </div>
<div>whether a child is available for adoption, the juvenile court m<span></span>ust </div>
<div>consider the totality of the circumstances and focus on the <span></span>twel<span>ve</span>-</div>
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<div>4 </div>
<div>month period preceding the adoption petition<span>’</span>s filing. <span>D.P.H.</span>, <span></span>260 </div>
<div>P.3d at 325. </div>
<div>III.<span> <span>Analysis </span></span>
</div>
<div>¶ 7<span> <span>Stepfather does not dispute the juvenile court’s finding<span>s </span></span></span>
</div>
<div>regarding <span>the child’s best interests. </span>But he <span>argues that the <span></span>court’s </span>
</div>
<div>findings regarding abandonment and financial support we<span></span>re </div>
<div>erroneous because the evidence showed that father had, in fact,<span></span> </div>
<div>abandoned the child and failed to provide reasonable financial </div>
<div>support. He also argues that his counsel did not give him <span></span>an </div>
<div>opportunity to dispute the <span>court’s</span> factual errors. We discern no </div>
<div>basis for reversal. </div>
<div>A.<span> <span>Abandonment </span></span>
</div>
<div>¶ 8<span> </span><span>As noted above, a child may <span>be</span> available for stepparent </span>
</div>
<div>adoption if the court finds that the birth parent has abandoned the </div>
<div>child for a period of one year or more. § 19-5-203(1)(d)(II).<span> </span>
</div>
<div>Although the statute does not define abandonment<span>, </span>our supreme </div>
<div>court has recognized that it is primarily a question of whether a </div>
<div>parent <span>intended to “</span>permanently relinquish rights and </div>
<div>responsibilities with regard to a child,<span>”</span> which is best measured <span></span>by </div>
<div>what the parent does rather than what the parent says. <span>D.P.H.</span>, 260 </div>
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<div>5 </div>
<div>P.3d at 324.<span> </span>In assessing whether a parent has abandoned a child, </div>
<div>the court must examine the totality of the circumstances, viewed <span></span>in </div>
<div>light of the best interests of the child.<span> </span><span>In re J.D.K.</span>, 37 P.3d 541, 54<span></span>3 </div>
<div>(Colo. App. 2001). </div>
<div>¶ 9<span> </span><span>Here, the juvenile court found that the evidence was </span>
</div>
<div>“<span>insufficient <span>. . . </span>to show that [father<span>] intended to abandon his son.” </span></span>
</div>
<div>The court noted that father was incarcerated during the year before </div>
<div>stepfather’s petition, and thus, the only “<span>feasible way</span><span>”</span><span> for father to </span>
</div>
<div>have contact<span>ed</span> the child was through written communication or </div>
<div>phone calls to mother. The court then found that in the year </div>
<div>leading up to the petition, father attempted to call mother from jail </div>
<div>at least fourteen times.<span> </span>The court also found that when father and </div>
<div>mother spoke on the phone, their conversations focused on the </div>
<div>child, and father asked questions about the child, requested to </div>
<div>speak to him, and attempted to “negotiate future cont<span></span>act” with him. <span> </span>
</div>
<div>¶ 10<span> </span><span>The court stated that the phone <span>calls showed a “noticeable </span></span>
</div>
<div>bon<span>d between father and son,<span>” </span><span>as</span> father spoke to the child with </span>
</div>
<div>“love and tenderness” <span>during the calls. The court </span>“afford[ed] </div>
<div>significant weight to the content, manner, and tone of [<span>father’s</span><span>] </span>
</div>
<div>recorded communication to and about [the child]<span>.” </span>And, although </div>
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<div>6 </div>
<div>the court acknowledged that father’s <span>repeated incarceration<span>s </span></span>
</div>
<div>resulted in a <span>“</span>lack of contact and involvement in [<span>the child’s</span>] life<span>,<span></span>” it </span>
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<div>ultimately concluded that <span>father “did what he could to mitigat<span></span>e his </span>
</div>
<div>physical absence in his <span>son’s life” and that he “wish[ed] to be a </span>
</div>
<div>father to [the child<span>].” </span>The court also found that the phone calls </div>
<div>demonstrated that father “never intended to abandon [t<span></span>he child].”<span> </span>
</div>
<div>Based on these findings, the court concluded that stepfathe<span></span>r failed </div>
<div>to meet his burden to show that father abandoned the child. <span></span> <span> </span>
</div>
<div>¶ 11<span> </span><span>The record supports these findings, and stepfather does not </span>
</div>
<div>challenge them<span>. </span> Rather, stepfather argues that the phone calls </div>
<div>were <span>in</span>sufficient to show that father had not abandoned the <span></span>child </div>
<div>and that father’s repeated incarcerations “should have been </div>
<div>enough” for termination. <span>Essentially, stepfather asks us to reweigh </span>
</div>
<div>the evidence, which is something we cannot do. <span>See</span> <span>K.L.W.</span>, ¶ 62. </div>
<div>¶ 12<span> </span><span>Stepfather also asserts that the <span>juvenile court made “timeline </span></span>
</div>
<div>errors”<span> because it erroneously stated that an incident involving </span>
</div>
<div>mother taking pictures of a scale <span>in father’s car occurred in 2<span></span>02<span>2.<span> </span></span></span>
</div>
<div>The scale was allegedly the type commonly used to measure d<span></span>rugs.<span> </span>
</div>
<div>And stepfather argues that the court erroneously found that<span></span> father </div>
<div>exercised overnight visits when the child was young. But fath<span></span>er </div>
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<div>7 </div>
<div>testified to both of these facts, and it was in the court’s disc<span></span>retion to </div>
<div>determine the credibility and weight of that testimony.<span> </span><span>See</span> <span>A.J.L.</span><span>, </span>
</div>
<div>243 P.3d at 249-50. And t<span>he</span> court did not rely on these findings in </div>
<div>its analysis of whether father had abandoned the child. Instead, </div>
<div>the court properly focused on <span>father’s conduct</span>, including his </div>
<div>attempts to contact the child, in the year leading up to <span>stepfather’s</span> </div>
<div>filing of the petition<span>. </span> </div>
<div>¶ 13<span> </span><span>In sum, the juvenile court properly considered the totality <span></span>of </span>
</div>
<div>the circumstances and found that father did not intend to aban<span></span>don </div>
<div>the child. And because the <span>court’s findings regarding </span>abandon<span></span>ment </div>
<div>are supported by the record, we cannot disturb them. <span>See</span> <span>J.D.K.</span><span>, </span>
</div>
<div>37 P.3d <span>at</span> 545 (an appellate court is bound by the trial court<span>’</span><span>s </span>
</div>
<div>factual determinations that are supported by the evidence). </div>
<div>B.<span> <span>Financial Support </span></span>
</div>
<div>¶ 14<span> </span><span>A child may also be available for stepparent adoption if t<span></span>he </span>
</div>
<div>juvenile court finds that the birth parent has failed, without cause, </div>
<div>to provide reasonable support for the child for one year or m<span></span>ore. </div>
<div>§ <span>19</span><span>-5-203(1)(d)(II).</span><span> </span>The question of whether a parent has failed t<span></span>o </div>
<div>provide reasonable support is a question of fact that the court must </div>
<div>decide on a case-<span>by</span>-case basis<span>. </span><span>In re E.R.S.</span>, 2019 COA 40, ¶ 51<span>. </span>In </div>
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<div>8 </div>
<div>determining whether a parent has failed to provide reason<span></span>able </div>
<div>support, a court may consider the parent’s incarceration, <span></span>but <span>it </span>
</div>
<div>does not totally excuse a parent<span>’</span>s obligation to provide some chil<span></span>d </div>
<div>support<span>. <span>In re<span> </span><span>R.H.N.</span><span>, 710 P.2d 482, 487 (Colo. 1985)</span></span>. <span> </span></span>
</div>
<div>¶ 15<span> </span><span>Here, the juvenile court found that the evidence was </span>
</div>
<div>insufficient to show that father failed to provide reasonable finan<span></span>cial </div>
<div>support without cause. The court found that father had provide<span></span>d </div>
<div>financial support by making sixty-five child support payments since </div>
<div>the entry of the child support order, noting <span>that father’s last </span>
</div>
<div>payment was 108 days before stepfather fil<span>ed</span> the petition. The </div>
<div>court acknowledged that in the year leading up to <span>stepfather’s </span>
</div>
<div>petition, father paid a “significant” amount less than <span>he was </span>
</div>
<div>ordered to pay. But the court found that the <span>“shortfall”</span> was not </div>
<div>without cause because father was incarcerated and his testimony </div>
<div>about being unemployed and having depression was reliable<span>. </span>The </div>
<div>court also noted that <span>father’s family attempted to provide gifts, </span>
</div>
<div>which included <span>“essentials such as clothing,” to the child, but </span>
</div>
<div>mother refused to take them. Based on these findings, the court </div>
<div>concluded that stepfather did not meet his burden to show that </div>
<div>father failed to provide reasonable financial support without cause. </div>
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<div>9 </div>
<div>¶ 16<span> </span><span>The record supports these findings.<span> </span>Stepfather asserts that </span>
</div>
<div>because there was a seventeen-month gap and a twel<span>ve</span>-month ga<span></span>p </div>
<div>in father’s<span> child support payments, the court erred by finding<span></span> that </span>
</div>
<div>father’s financial support was reasonable. But the court con<span></span>sidered </div>
<div>the evidence showing these payment gaps, in conjunction with <span></span>all </div>
<div>the other evidence regarding father’s attempts to provide finan<span></span>cial </div>
<div>support, and still concluded that the support was reasonable.<span> </span>We </div>
<div>cannot reweigh this evidence. <span>See</span> <span>K.L.W.</span>, ¶ 62.<span> </span>And because the </div>
<div>court’s findings rega<span>rding </span>father’s <span>financial support are supported </span>
</div>
<div>by the record, we cannot disturb them.<span> </span><span>See</span> <span>J.D.K.</span>, 37 P.3d at 545. </div>
<div>C.<span> <span>Counsel’s Performance<span> </span></span></span>
</div>
<div>¶ 17<span> </span><span>Stepfather asserts that his counsel <span>“did not give [him] the </span></span>
</div>
<div>opportunity to dispute [the timeline] errors,<span>” and </span>that as a result, </div>
<div>the juvenile court erroneously took them as fact. <span>But</span> stepfather </div>
<div>does not develop this argument, and it is unclear if he intended t<span></span>o </div>
<div>make a claim of ineffective assistance of counsel. Regardless, <span>a </span>
</div>
<div>claim for ineffective assistance of counsel derives from either a </div>
<div>constitutional or statutory right to counsel. Cf. Ardolino v. Peopl<span></span>e, </div>
<div>69 P.3d 73, 76 (Colo. 2003) (a criminal defendant bringing a claim </div>
<div>of ineffective assistance of counsel <span>ha</span>d constitutional right to </div>
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<div>10 </div>
<div>effective assistance of counsel)<span>; </span>People in Interest of A.J., 143 P.3d </div>
<div>1143, 1148 (Colo. App. 2006) (a parent bringing a claim of </div>
<div>ineffective assistance of counsel in a termination proceeding had <span>a </span>
</div>
<div>statutory right to court-appointed counsel<span>).</span><span> </span>Stepfather has not </div>
<div>cited<span>, <span>nor are we aware of, any legal authority providing that </span></span>
</div>
<div>stepparents <span>ha<span>ve</span></span> the right to counsel in stepparent adoption </div>
<div>proceedings. Thus, to the extent stepfather claims ineffective </div>
<div>assistance of counsel, we discern no basis for reversal. <span> </span>
</div>
<div>IV.<span> </span><span>Conclusion </span>
</div>
<div>¶ 18<span> </span><span>The judgment is affirmed<span>. </span> </span>
</div>
<div>JUDGE FOX and JUDGE SCHOCK concur. </div>
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