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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

August 26, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Rob Manzanares should be seeing the light at the end of the tunnel now. I emphasize the word “should,” because in his case, it’s safe to say that anything might happen. Indeed, the improbable already has happened, followed closely by the outrageous. The case isn’t over yet, but last Thursday Manzanares won a major victory in the Colorado Court of Appeals.

I’ve written about his case before and I’m sure I will again. It’s one of those cases that never should have happened. It’s one of those cases that, when it did happen, should have been disposed of by the courts in a heartbeat. But it wasn’t. The case is now seven years old which, coincidentally, is now the age of Manzanares’ daughter whom the courts refer to as K.A.B.

It’s an adoption case and, unsurprisingly, much of it transpired in Utah. Utah of course is the state of choice for all single mothers bent on placing a child for adoption without the father’s consent. But this is a case in which the father, Rob Manzanares, got wind of his paramour’s deception before their daughter was even born and immediately took steps to stop the adoption and assert his rights.

And let’s be clear. His is a case in which the mother, the adoption agency, the adoptive parents and their lawyers knew from the very beginning that Manzanares was asserting his parental rights, but did everything in their power to prevent his getting custody. As a practical matter, that meant supporting the many lies told by the mother in the hopes of shanghaiing a child away from her father. Let me be clear; it was fraud from the start and various courts have admitted as much in writing.

So, despite the fact that the adoption was known at the time to be fraudulent and that Manzanares did everything necessary to assert his rights, the case has dragged on for seven years and is not over yet. Meanwhile, the child has lived mostly with her adoptive parents with Manzanares having limited time with her.

That of course means that, should Manzanares be finally adjudicated her custodial parent, the maximum of harm will have been done to his child. She’ll have been allowed to live for seven years or longer with a couple who, from the start, had no legal claim to her. She’ll therefore suffer the maximum trauma when (if) she’s finally sent to live with her dad. Well played, legal system, well played.

But of course it’s not the legal system that’s doing the playing, it’s the lawyers for the adoptive parents. Their theory is the hoary legal notion that “possession is nine points of the law” should carry the day. They seem to figure that, if the adoptive parents just hang onto the child long enough, some court somewhere will finally throw up its hands and decide, against all legal precedent, that the girl is theirs, not her father’s.

And, outrageous as that outcome would be, it might just happen. It has before.

Here’s the Court’s summary of the facts:

In January 2008, before the child was born, father petitioned the trial court in Colorado for a paternity determination and to enjoin any adoption proceeding. He alleged “serious and founded concerns that [the child’s mother] will flee to Utah, where she has family, to proceed with an adoption.” He also sought an order allocating parental responsibilities to him when the child was born...

Shortly thereafter, before the paternity hearing, and unknown to father, mother gave birth to the child in Utah. The child was born about six weeks premature. The next day, mother — without notifying father or the trial court — consented to adoption of the child by her brother and sister-in-law (Intervenors). A district court in Utah (Utah court) granted temporary custody of the child to the Intervenors.

After learning of the child’s birth, father moved the trial court for a hearing and allocation of parental responsibilities (APR). He assert

ed that mother had given birth to the child and placed  the child with an adoptive family in Utah. Following several hearings, the trial court entered a judgment of paternity, finding that father was the child’s biological parent. The court declined to enter an order allocating parental responsibilities. Still, it allowed the case to remain open.

Over the next four years, the parties litigated the child’s adoption and custody in Utah.

That’s right, it took the Utah courts four years (four years!) to finally decide that an adoption obtained by fraud could not survive judicial scrutiny.

But that scarcely disposed of the matter. No, the adoptive parents (now the “intervenors”) are claiming a right to physical and legal custody of the child despite the fact that legally they’re strangers to her. And it is that claim that the Colorado Court of Appeals grappled with in the opinion rendered last Thursday (The case was finally moved to Colorado where Manzanares’ legal odyssey began.)

But first there’s the issue of standing, i.e. the question of whether a person has a claim that a court can rule on. It’s an obvious question. The intervenors are claiming that they have a right to custody of a child who’s not theirs and that they maintain possession of only by virtue of the fraud of the mother. Can they really make that claim?

According to the Court of Appeals, they can. Amazingly, the court decided that even though their sole claim to the child is possession of her, possession brought about illegally, they should be able to assert their claim anyway. And the court agreed. Apparently, under Colorado law, how the child came to be in the possession of the intervenors is of no legal consequence. They’ve got her and apparently that gives them a legal opportunity to keep her.

To me, that looks like an open invitation to child theft. What’s the difference between what the intervenors did and simply snatching a child off the street, concealing it for a few years and then claiming that it would be traumatic for the child to be returned to its parents?

Based on B.B.O., we conclude that the trial court was not required to consider the circumstances under which the child came to be in Intervenors’ care before it determined that they had standing under section 14-10-123(1)(c). While some might find this result troubling, we are bound by B.B.O. and the statute’s plain language.

Yes, “some might find this result troubling” indeed. Interestingly, the court is obviously concerned about the fact that its endorsement of what the intervenors did might be indistinguishable from the more overt form of kidnapping I described above.

(section 14-10-123(1)(c) should not be construed so broadly as to bestow standing on a kidnapper).

Well, that’s reassuring. But, as I said, the court doesn’t explain the difference between intervenors (whom it admits agreed with the mother, long before K.A.B. was born, to adopt her by fraud) and kidnappers. I’d be interested to see their attempt to do so.

So much for the bad news. Irrespective of their prior wrongdoing, intervenors have standing to seek an order granting them an allocation of parental rights. Yes, they can claim those rights, but will a court grant them?

There’s a little Supreme Court case called Troxel v. Granville I’ve mentioned many times before that has a lot to say about a parent’s constitutional rights regarding his/her child, rights nonparents don’t have.

A nonparent who has standing under section 14-10-123 must still overcome the presumption that as between a parent and a nonparent, parents have a first and prior right of custody of their children...

Thus, when a trial court considers whether to allocate parenting time to a nonparent over the objection of a parent, it must proceed in accordance with the standards set forth in Troxel v. Granville, 530 U.S. 57 (2000)...

In Troxel, the Supreme Court held that parents have a fundamental liberty interest in the care, custody, and control of their children. 530 U.S. at 65 (finding this liberty interest is “perhaps the oldest of the fundamental liberty interests recognized by [the Court]”); see also In re D.I.S., 249 P.3d 775, 780 (Colo. 2011). And fit parents are presumed to act in the best interests of their children. Stated differently, so long as the parent is fit, normally the state may not second-guess that parent’s ability to make the best decisions concerning the rearing of his or her children.

As a result, “[s]pecial weight” must be given to a parent’s determination whether to allow a nonparent parenting time. B.J., 242 P.3d at 1134; see Troxel, 530 U.S. at 72. And for a trial court to interfere with a parent’s fundamental right to make decisions concerning his or her children, the court’s order must be founded on “special factors” that justify the state’s interference.

Uh oh. Can we see a trial court deciding that possession of the child is one of those “special factors” that overcome a parent’s constitutional rights? Three obstacles lie between intervenors and that outcome.

(1) a presumption in favor of the parental determination; (2) an opportunity to rebut that presumption by showing that the parental determination is not in the child’s best interests; and (3) placement of the ultimate burden on the nonparent to establish by clear and convincing evidence that allocation of parenting time to him or her is in the child’s best interests.

So the intervenors will have to rebut the presumption that Manzanares is the right person to make decisions for his own child and do so by clear and convincing evidence. Personally, I doubt they can do it. That’s particularly true given that the trial court has already determined that

mother and Intervenors had “prevented” father from having a relationship with the child; they were “doing everything they could to terminate Father’s parental rights”; and the Utah Supreme Court had described “in great detail” their “deceitful, fraudulent and outrageous conduct.”

But before the trial court even gets to whether the presumption has been rebutted, it has to decide whether the intervenors are entitled to do so. The Court of Appeals ordered the judge to rule on whether they’re equitably estopped by their “deceitful, fraudulent and outrageous conduct” from even producing evidence of the child’s best interests.

From where I sit, I don’t see how the intervenors clear that hurdle. To allow them to do so would be to promote child theft. The Colorado court now has a choice — to do that or return a child to the only parent in her life who wants her — her father.

We’ll see what happens.

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#fraud, #adoption, #Troxelv.Granville, #RobManzanares

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