Colorado Supreme Court: Support is not Support

December 27, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

When last we saw our intrepid dad, M.C., he’d overcome the fraud, lying and perjury of J.Z., the mother of his twin boys, and established paternity. He then went on to do battle with the two people who, despite knowing that he was the father, and in violation of the trial court’s order, continued to limit his time with his kids.

But M.C. was not deterred. Between June 29, 2013 and October 3, 2013 when the final hearing was held, he travelled to western Colorado from Iowa 20 times to be with his children. According to court findings, he brought them food, toys, clothing, car seats, a stroller and other items. Two weeks before the final hearing, he also paid the couple who were attempting to take his child from him $250 in child support despite there being no court order for him to do so.

Into the bargain, no one at any stage of the case has claimed that M.C. was anything but a fit and loving father who was trying to gain custody of his sons.

So how was it possible for the trial court to terminate his parental rights and the Supreme Court to affirm the ruling? As I said last time, it wasn’t easy. Here’s how they did it.

Out of all the wrongs done by J.Z. and the adoptive parents and all the acts of love and dedication on M.C.’s part, the courts ferreted out a single thing he did “wrong.” In the (roughly) 90 days between the establishment of his paternity and the final hearing, M.C. paid to the adoptive parents but a single payment of child support. Apparently, he paid too little and not often enough.

Now, no court has ever said what he should have paid or when, only that what he did was insufficient. Indeed, M.C. tried to get the trial court to require the adoptive parents to produce their financial records so an order of child support could be issued. The court refused. So there was no child support for him to pay. But failure to pay some unspecified amount at some unspecified times – and only that – was sufficient to oust M.C. of his parental rights.

The dissent in the case pointed out the absurdity of terminating a fit father’s rights based on such a flimsy pretext.

Today the majority affirms the trial court’s termination of M.C.’s parental rights based on the insufficiency of his $250 payment to the adoptive parents during the three months following the restoration of his rights. If this seems like an exceedingly slim reed upon which to base a termination of parental rights order, that is because it is.

Let us pause to note the differences between the behavior of the adoptive parents and M.C. The adoptive parents have always been attempting to shanghai two little boys away from their fit and loving father. In order to do that, they allowed themselves to benefit from the fraudulent and perjurious actions of J.Z. Once they learned for certain that M.C. was the children’s father, they nevertheless violated the trial court’s order and limited his time with them. Those are the actions of which the Supreme Court approves. Its judgment in their favor is the stamp of that approval.

By contrast, M.C. has behaved heroically to overcome all the obstacles place between him and his children for the sole reason of becoming an active father to them. In the process, he broke no law, abided by all court orders and is acknowledged to be a fine parent. But because he failed to do make regular and reasonable child support payments to the people who were attempting to take his children, and for that reason alone, he loses them. The adoptive parents committed many wrongs, both legal and moral, but they get the kids. By contrast, no court has yet explained just what M.C. should have done that he didn’t do, and yet he ends up the loser.

How that makes sense is beyond me. But it gets worse.

Both courts hung their hats on M.C.’s single payment of child support. But was that all he paid? Of course not. He also provided “in kind” support. He bought the kids toys, clothing, food, a car seat and a stroller, all things children need. So, in its determination to terminate his rights at all costs, how did the Supreme Court deal with the obvious fact that M.C. supported his kids in ways other than straight cash payments to the adoptive parents? Again, it wasn’t easy.

The [trial] court also stated that M.C.’s other expenses in facilitating his visits—travel, food, clothing, toys, car seats, and a stroller—“did not go directly to the daily care of the children” and thus do not count as support.

Huh? If food, toys, clothing, car seats and the stroller didn’t go “directly to the daily care of the children,” to what did they go? The Supreme Court has its answer.

“Support,” while not defined in the statute, refers to expenditures that are used for the necessary, everyday care of the children… These expenditures include basics such as clothing, shelter, food, and medical care.

So, according to the court’s own terms, what M.C. provided his kids constituted support, right? There it is in black and white in the court’s own opinion. But wait.

As to the other expenses, such as food, clothing, toys, car seats, and a stroller, the trial court found that these expenses were “items to facilitate [M.C.’s] visits” with the twins that “did not go directly to the daily care of the children.”

Yes, somehow providing food for the children, clothing for the children, toys for the children, car seats for the children and a stroller for the children don’t support the children, but merely “facilitate M.C.’s visits.” If that’s not desperation by the majority, I don’t know what is. There is simply no sensible explanation for the court’s “reasoning.” Children need certain things. M.C., like every other responsible parent, provided some of those things. He did so every time he visited, some 20 times in a little over 90 days. That constitutes regular and reasonable child support under the clear meanings of the words.

But again, against all odds, it gets worse.

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