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December 23, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I was wrong. I admit it. Against all that is just, right and even logical, the Colorado Supreme Court has managed to decide that a father’s rights should be terminated and the adoption of his children should be finalized. I first wrote about this case here. At the time, an appellate court had just reversed the trial court, a judgment I predicted would almost certainly be upheld by the state’s highest court. I was wrong.

Here’s how I described the facts of the case last May:

M.C., the father, and J.Z., the mother, had a long-distance affair. He lived in Des Moines and she lived in Grand Junction in western Colorado. She became pregnant in January of 2012 and promptly informed M.C. of the fact. He asked her to move in with him in Iowa which she did a very short time after telling him she’d miscarried. She returned to Grand Junction telling M.C. she was homesick. The two grew apart and, unknown to him, she gave birth to twins in September.

Prior to giving birth, J.Z. contacted Adoption Choices of Colorado to locate an adoptive couple. She falsely informed ACC that she didn’t know who the father of the children was, didn’t know his last name, where he lived or any contact information about him. In late August of 2012, ACC placed an ad in the Denver Business Journal stating J.Z.’s intention to place the children for adoption. That was the only “notice” of the adoption case. Given that he lived in Iowa, M.C. didn’t read the notice or move to contest the adoption. The adoption was finalized on December 27, 2012.

But in December of 2012, a friend told M.C. that J.Z. had given birth to twins and placed them for adoption. In February of 2013, M.C. appeared in court in an effort to quash the adoption and gain custody of his children. The court held a hearing and found that the adoption was void because it had been procured by the mother’s fraud on ACC and the court.

On May 31, the court conducted a hearing on the question of mother’s alleged fraud. The court found that there was “overwhelming evidence” that mother had failed to disclose father’s full identity and contact information to Adoption Choices, and that the termination of father’s parental rights had been procured by fraud. Citing In re C.L.S., 252 P.3d 556 (Colo. App. 2011), the court determined that, as a matter of law, the prior termination of father’s parental rights was void.

So, given that the court found fraud on the mother’s part and that the termination of M.C.’s rights was void, the obvious thing to do was to place the children with M.C. and make an end to a bad situation, right? But the court wanted to ease the children, who were less than a year old, into M.C.’s care, so it set up a gradual process whereby they would be in his care more and more until he would be their sole parent.

But the prospective adoptive parents (PAPs) resisted. The court ordered eight-hour visitations for M.C. to begin with; the PAPs provided one hour. M.C. wanted a hearing on the matter as quickly as possible; the PAPs moved for a continuance…

The PAPs ignored the court’s order and instead suggested “it would be best for the boys to ease into [visitation] and go a bit more slowly.” The court issued another order and, over the course of the next four months, M.C. got to be with his children for as much as four hours at a time, but never more.

Based on those facts, astonishingly, the trial court terminated M.C.’s parental rights to his two sons.

Let’s review. The adoption was procured by the mother’s fraud. She lied to M.C., lied to the adoption agency and committed perjury in court. The adoptive parents (the PAPs) accepted the benefits of her serial wrongdoing. The mother’s fraud gave them possession of the children, which was what they wanted. The trial court overlooked the mother’s fraud and general mendacity and put its stamp of approval on the termination of M.C.’s rights and the adoption of his children. The Court of Appeals described the trial judge’s decision this way:

Based on the evidence presented, the trial court concluded that, although father had “the strong desire and apparent ability to assume legal and physical custody” of the children, he had not established a substantial, positive relationship with them and had not taken substantial parental responsibility for them.

The Court of Appeals proved less easy to convince that lying in order to remove a fit father from his children’s lives comported with Colorado law or United States Supreme Court precedent. It ruled that,

The judgment of termination is reversed and the matter is remanded. On remand, the trial court shall conduct a hearing on custody after affording father a full and fair opportunity to establish a meaningful relationship with his children. At such a hearing, father shall be afforded the presumption that he will act in the best interest of his children and appropriate weight shall be given to the father’s liberty interest in the custody and care of his children.

Why the reversal? The words “he had not established a substantial, positive relationship with them and had not taken substantial parental responsibility for them” reflect the Colorado statute that governs termination of a person’s parental rights. If a parent can be shown by clear and convincing evidence to have failed to establish a strong relationship and taken responsibility with a child, that parent’s rights can be terminated. (Of course there are other grounds for termination, but none that apply to M.C.’s case.)

But there’s another part of the same statute that reads thus:

There is an affirmative defense to any allegations under subparagraph (VI) of paragraph (a), paragraph (b), and paragraph (c) of subsection (3.1) of this section that the parent's neglect, failure to establish a substantial relationship, or failure to take substantial responsibility for the child was due to impediments created by the other parent or person having custody.

Clearly, this subsection of the statute is aimed squarely at cases like M.C.’s. The state’s lawmakers obviously don’t want parents to lose their parental rights via the fraud or wrongdoing of another parent or any person in possession of the child in question. That is exactly what happened to M.C. Both the mother and the PAPs impeded M.C.’s access to the twins and his relationship with them.

Obviously, the trial court was wrong and the appellate court was right. So how did the Supreme Court manage to overturn what’s right and affirm what’s wrong?

I’ll get into that in detail tomorrow. But for now I’ll confine myself to quoting Mr. Bumble in Oliver Twist:

“The law sir? The law is a ass, a eejit!”

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#adoption, #fraud, #perjury, #fathers'rights

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