May 28, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Yet another case out of Colorado strongly suggests that committing fraud to terminate a father’s parental rights in order to place his child for adoption isn’t legally acceptable in the state. But the opinion relies to a significant degree on the particular facts of the case. That means different cases with different facts may end up placing a judicial stamp of approval on adoption by fraud. So far though, the law is holding out against the fraudsters.
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.
Father immediately asked the court to amend its order to permit the hearing to go forward on June 25 and 26 as planned. He argued that as a result of mother’s fraud, he had been denied the opportunity to parent his children since their birth; he had done nothing to prolong the litigation because he knew that the longer it went on, “the louder would be the cries of both [Adoption Choices] and Intervenors [i.e. the PAPs] that to remove the children from their adoptive home would [be] irreversibly or at least severely damaging to the children”; he was prepared to proceed; and there was no good cause 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.
On October 2 and 3, 2013, the court heard the testimony of the parties and other witnesses, including experts retained by the parties to evaluate the children’s relationships with father and with intervenors, and to offer opinions on the likely consequences of removing the children from intervenors’ care or, alternatively, terminating father’s parental rights. 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 also found that removal of the children from intervenors’ care would likely cause “significant psychological harm” to them. The court concluded that it was in the best interests of the children to terminate father’s parental rights and place the children in the permanent legal custody of intervenors.
In other words, M.C. had been rendered incapable of being an everyday father to his children, first by J.Z.’s lies to him about her claimed miscarriage, second by her secret placement of the children for adoption, third by her lying to ACC, fourth by the PAP’s refusal to allow him meaningful access to his children and finally by the court’s unwillingness to issue an order giving him the opportunity to form parent/child relationships with the two little boys. Stated another way, M.C. had done all he could legally do to be a father to his kids but had been thwarted every step of the way.
Then his failure to “establish a substantial, positive relationship” with the children was used to terminate his rights and turn the children over to a couple who legally were strangers to the children.
That set up the legal face-off we see all too often between a father who has parental rights under the U.S. Constitution and “natural law,” and his children who presumably had formed attachments to the PAPs and would therefore be harmed if taken from them. The court’s ruling effectively held that, if a mother and PAPs can keep a child from a father long enough then, effectively, it becomes theirs. That is, a father’s parental rights are conditioned on the good will of others, specifically the mother and any adults who happen to want to adopt his child.
A string of U.S. Supreme Court cases spanning almost a century holds that parents have a fundamental liberty interest in the care, custody and control of the children. Troxel v. Granville points out that this is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” But other cases have said that mere biology doesn’t give rise to the liberty interest. In order for that to occur, the parent must take steps to establish his/her relationship with the child. If that happens, the liberty interest comes into being. If it doesn’t, it doesn’t.
So what about a case in which a parent is unable to take up the role of parent due to the actions of others who strive to prevent it, i.e. exactly what occurred in M.C.’s case? It seems impossible that a parent’s rights could possibly be placed in the hands of anyone but themselves, but that is exactly what the lower court did in M.C.’s case.
Fortunately, the appellate court reversed that ruling in language that leaves little doubt about its opinion of the mother’s actions, the PAP’s actions or what went on in the lower court.
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.
It’ll be tough for the court or the PAPs to circumvent that order, try as they might. I’m confident that, once M.C. actually is afforded a real opportunity to “establish a meaningful relationship with his children,” he’ll end up as their only parent. I’m sure that will happen, if he gets the chance. The PAPs have appealed the case to the Colorado Supreme Court.
Now, it seems obvious to me what the outcome should be. The appellate court decision should be upheld. I’ll be astonished if it’s not. To do otherwise would establish in law the principle that simple possession of a child is sufficient to establish parental rights superior to those of the actual parents. I see nothing in the law to support such an outcome. After all, if a person can simply kidnap a child, give it a good home and become its parent whose rights are superior to all others’, the law on parental rights will have to undergo some profound changes.
But…
Blunt as the appellate court’s ruling is, its opinion is long and in spots carries an unpleasant odor. The smell suggests that, if a fact here or there were slightly different, the outcome might be as well. For example, ACC made the PAPs sign a form saying they were aware that the adoption might not become final and they may have to give up the children. That meant they never had a realistic expectation that the adoption was permanent. The court placed significant weight on the fact.
Any claim that intervenors have to a liberty interest in their relationship with the children must be based upon a reasonable expectation that their relationship with the children will become permanent.
So, if the PAPs hadn’t signed the form, would they then have a liberty interest that competed with M.C.’s? Apparently so. And if the court had balanced the two interests, would it have sided with the PAPs because of their ongoing relationship with the twins?
What about the children? They have rights in the matter too.
[W]e note that the only liberty interest that we have found in this case is the liberty interest that father has in the care, custody, and control of the children. Intervenors have no such interest. Thus, any “reciprocal” liberty interest that the children might have would, presumably, include an interest in maintaining a relationship with father, not intervenors.
We do not disagree that children have “an interest” in stability and permanency. However, in the absence of any legal authority for the proposition that they have a fundamental right to maintain their relationship with intervenors, we decline to recognize such a right.
So again, if the PAPs hadn’t signed that form and therefore had an expectation of permanency of the adoption, then not only would they acquire a liberty interest in maintaining their relationship with the children, but the children would acquire a reciprocal one with them.
In short, this case looks like a slam dunk for M.C. Another case, with only barely different facts, might turn out differently. This, then is not the overarching sort of opinion those concerned with the rights of biological parents might wish.
It should be. At some point, the United States Supreme Court should issue an opinion stating that no one may interfere with the rights of biological parents absent a showing of unfitness, and that any award of parental rights to anyone who does violates sound public policy by rewarding what amounts to kidnapping.
Both this case and the case of R.M. about which I wrote here, may end up before the SCOTUS. If so, the court will have that very opportunity and many of us will be looking anxiously for the result.
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