Adoption and Parental Rights: Part 1

Imagine for a moment that a stranger adopted your children without your consent.

Now, instead, imagine that you adopted two children, grew to love those children as your own, and some months later a stranger came along, claiming to be the biological father, told you that the adoption was done without his consent, and said that he wanted parental rights to those children.

This is not the plot of some Oscar-bait movie. This was the situation in the case “In the Interest of Minor Children Baby A and Baby B.”

Like so many tragic stories, this one starts out with a romance that went wrong. A man and a woman, M.C. and J.Z., were involved in a long-distance romantic relationship. During that relationship, J.Z. became pregnant. The two of them had plans to marry, and M.C. planned to move out to Colorado to be with J.Z. and help raise their child.

But then something terrible happened, J.Z. believed that she had suffered a miscarriage, and told M.C. about what happened. The two of them were, understandably, heart-broken, and their relationship soon fell apart.

But the story does not end there. J.Z. would later discover that she was still pregnant, she had not miscarried. She could have told M.C. about this, but for whatever reason decided not to tell him that he was about to become a father.

Prior to the birth of the twins she carried in her womb, J.Z. contacted an adoption agency, “Adoption Choices of Colorado, Inc.” She told them that the twins were conceived during a one-night-stand, and that she only knew their father’s first name, not his last name or contact information.

Because the biological father could not be reached, the parental rights of both parties were relinquished to the adoptive parents. M.C. never knew.

The adoptive parents were present for the births of the twins, and took them in as their own children.

Nine days before the adoption was finalized, however, M.C. received a Facebook message telling him that J.Z. had given birth to twins and had put them up for adoption.

Imagine the whirlwind of emotions this man must have gone through. Finding out that the children he thought had been miscarried were still alive, finding out that J.Z. had never told him, and further discovering that these children were now in the legal custody of strangers. Imagine, if you can, the swirling sea of joy, betrayal, relief, anguish, excitement, and anger that this man must have felt upon this discovery.

Now imagine that you have been taking care of twin baby boys for five months, and that they have legally been yours for two months. You’ve watched them grow from newborns to infants. You’ve watched them start to crawl. You’ve answered their cries in the middle of the night, and worried whenever they got sick. You’re certain that this will last for the rest of their lives; that you will call them your sons and they will call you and your spouse their parents.

Then comes a stranger, claiming to be their biological father. He claims that his consent was never granted, and that it could have been. Might this have made the entire adoption illegal? Will the court take away the twins and give them to this stranger?

M.C. filed for relief from the judgment terminating his parental rights. Genetic testing confirmed that he was, indeed, the biological father. The Court then granted M.C.’s motion and allowed the adoptive parents to intervene in the case.

The Court determined that J.Z. had committed fraud when she claimed that she did not know how to contact M.C. This meant that M.C. had been denied his constitutional due process rights when his parental rights were taken away from him without notification or consent. The Court found that the judgment terminating M.C.’s parental rights was void.

However, the Court granted temporary custody to the adoptive parents. The parties were ordered to arrange for times for M.C. to have visitation with the twins.

This went on from June to October of 2013. All the while M.C. lived in Iowa, but he traveled back and forth between Colorado and Iowa on his own dime to see the boys.

So, this brings up an interesting question, not just of law but of humanity. A question of what makes family family? Who has parental rights here? Who should? What makes a father? What makes a home? How can this be resolved best? We have a biological parent on the one hand who never should have been denied his opportunity to be a father to these boys, but on the other hand we have two adoptive parents who have come to love the boys as their own, and have cared for them since birth.

Well, the answer to this question, in this case, came from something so simple.

At a status conference in June the Court casually suggested that the parties needed to consider the matter of child support.

In typical child support disputes the parties exchange and disclose financial information before the issue of child support is decided upon. But this was anything but a typical child support dispute. The parties argued over whether or not the adoptive parents needed to disclose financial information to M.C., so the Court never came to a decision about child support.

In August of 2013 a GAL (Guardian Ad Litem) was appointed to investigate how the children were being cared for. The GAL noted that the adoptive parents were “extraordinary” parents, and that the twins were clearly attached to them.

But the GAL also found that M.C. was not at all an unfit parent.

A hearing regarding parental rights was set for October. Two weeks before the trial date, M.C. decided to make a one-time payment of $250 to the adoptive parents for the purposes of child support, in spite of the fact that there had been no order determining child support.

How on edge would you be, walking into that courtroom in October, not knowing if you were about to lose the right to see those twin baby boys you’d grown to love so much?

The Court held its two-day hearing in October of 2013 to decide whether or not M.C.’s parental rights should be terminated.


In re Minor, 363 P.3d 193, 2015 CO 72 (Colo. 2015)

“[T]he court recognized that M.C. was entitled to a presumption that biological parents have a first and prior right to custody of their children, but that the presumption may be rebutted by clear and convincing evidence of certain statutory factors under section 19-5-105, including that the children’s best interests would be better served by granting custody to the nonparent.”

The Court found that M.C. had not paid regular child support to the children, and had failed to create a substantial, positive relationship with them as well. The Court determined that his one-time payment of $250 was not enough to show that M.C. was taking responsibility for the children’s well-being. There was no court order that he pay child support, but he could have paid support of his own volition.

M.C. protested that he only failed to pay any further child support because the adoptive parents had not disclosed any financial information. The Court found, however, that M.C. could have taken financial responsibility by paying child support without knowing the adoptive parties’ financial information.

Furthermore, the GAL who had been appointed in August recommended that M.C.’s paternal rights be terminated because he was “naïve” about the needs of the twins to remain connected to their adoptive parents.

Ultimately, the Court decided that it was in the twins’ best interests that the children remain with their adoptive parents and M.C.’s parental rights be terminated.

We can only guess, and this is only conjecture, but can you imagine how devastated M.C. must have felt, knowing that the children were now, legally, no longer his? Further, can you imagine the relief that the adoptive parents must have felt once that decision was made? The children they’d cared for and loved for a year now would never be taken from them.

M.C. appealed the decision, and the Court of Appeals reversed the ruling. The Court of Appeals determined that the trial court had not adequately protected M.C.’s rights as the biological father. The Court of Appeals ruled that “special weight” should have been given to M.C.’s parental rights, and the trial court should have been required to find evidence which overcame that presumption in M.C.’s favor.

Both the adoptive parents and the adoption agency filed for certiorari review in the Supreme Court of Colorado.

The conflict over parental rights for the twins was far from over.

Time and Appeals: The Goellner Case

“Your time is up.”

“But, your honor, I have three more witnesses I want to call.”

“As I told you before, we are getting this done today. I gave you each ninety minutes. That’s more than enough. I will enter my ruling now.”

“Your honor, may I make a closing statement?”

“No, you may not. I am going to forgo closing statements. Sit down.”

If you heard these words at your trial, and lost the case in large part because you were unable to present all of the evidence you wanted to present, then you may have grounds for an appeal.

On the one hand, it’s important that the district court balance its busy docket, but it’s just as important that the parties in any case be given appropriate time to present their evidence. The right to be heard is a basic due process right.

In the case In re the Marriage of Goellner, 770 P.2d 1387 (Colo. App. 1989) the Colorado Court of Appeals established just how important the right to enough time to be heard truly is. In that case, the trial court granted each party six hours to present evidence.

The Father in this dissolution of marriage action presented his case in five hours, but Mother was forced to use up approximately five and one-half hours in cross-examination of Father’s witnesses.

Mother knew that this would not be enough time. She still had not testified or brought forth any of her own witnesses. She requested additional time to present her witnesses, but the court denied her request. Her counsel moved for a continuance in order to present essential testimony, or, in the alternative, a mistrial. The court denied both motions. As a result, Mother simply had to move on to her case in chief without having a chance to present any of her own evidence.

The court ruled on child custody and the much-contested property division without hearing Mother’s evidence, but Mother was not ready to just give up. She appealed the case on the basis that the trial court violated her constitutional due process rights. She protested that she was not afforded the right to a full and fair hearing.

The Court of Appeals agreed, saying that “The opportunity to be heard, an inherent element of due process, must be granted at a meaningful time and in a meaningful manner.” The judgment was reversed and the case was remanded to the district court for a new trial on all issues.

In the Goellner case, both sides were allowed six hours to present their evidence. Nonetheless, the court was still found to be in the wrong for refusing to allow Mother additional time to present evidence when she requested more time. Were you denied enough time to present your evidence before the court? If so, you may have grounds for an appeal.

Now, to determine if you can appeal on the grounds established in Goellner, it’s important that you consider a few important factors. First of all, did you or your counsel verbally object to the amount of time provided to you? What about in writing? Did you request additional time? After requesting additional time, did you or your attorney then say, “no, actually this should be enough time?”

Issues not raised to the attention of the district court may not be raised for the first time on appeal, neither can new evidence be presented. This means, for example, that if you did not tell the district court about some incriminating email that you had from the opposing party you may not bring it up for the first time before the Court of Appeals. Therefore, any issue you intend to bring to the attention of the Court of Appeals must be one that was “preserved” in the lower court.

To put it in simpler terms, if you are going to argue that the trial court did not give you enough time to present your evidence then you need to make sure that you told the judge in the trial court this as well. You, or your attorney, may have filed a motion requesting additional time, or perhaps at the hearing you, or your attorney, objected to the limited amount of time allotted to you. This is absolutely essential to using the Goellner case on appeal.

If there was no objection raised to the amount of time allotted, and no motion or request for additional time was filed, then it doesn’t matter if the district court cut your time down to half an hour; the issue is not preserved. The Court of Appeals will not hear it.

Don’t assume that simple, off-handed comments by either you or your counsel such as, “Looks like we don’t have enough time,” will preserve the issue either. In order for the Court of Appeals to consider the issue of time you need to directly request additional time from the district court, and the district court needs to have denied your request.

Furthermore, while it does not preclude you from raising the issue in the Court of Appeals, telling the court, “Nevermind, that should be enough time,” or something to that effect, may hurt your argument that the court did not allow enough time to present your evidence. The other side can, and is likely to, use your own words against you if you in any way and at any point agree to the amount of time allotted. This does not mean that the case is lost, but it will make any possible appeal that much more difficult. In appellate cases the odds are already somewhat stacked against the appellant, you don’t need more obstacles in your way.

Based on this, do you think you have an issue regarding time to bring before the Court of Appeals? Did a judge cut you off and refuse to allow you to present your evidence? If so, contact Attorney Anne Whalen Gill to start the appeals process.


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