(ADOPTION LAWS)
Part 1
RELINQUISHMENT
19-5-100.2. Legislative declaration.
Statute text
(1) The general assembly hereby finds that parental relinquishment and adoption of children are important and necessary options to facilitate the permanent
placement of minor children if the birth parents are unable or unwilling to provide proper parental care. The general assembly further finds that adoption
offers significant psychological, legal, economic, and social benefits not only for children who might otherwise be homeless but also for parents who are
unable to care for their children and for adoptive parents who desire children to nurture, care for, and support. Conversely, the general assembly recognizes
that disrupted adoptive placements often have a profound and negative impact on individuals, particularly children, involved in the adoption proceedings.
(2) It is the purpose of this article to promote the integrity and finality of adoptions to ensure that children placed in adoptive placements will be raised
in stable, loving, and permanent families. The general assembly intends that by enacting this legislation, it will be protecting children from being uprooted
from adoptive placements and from the life-long emotional and psychological trauma that often accompanies being indiscriminately moved.
History
Source: L. 94: Entire section added, p. 746, § 1, effective April 20.
19-5-101. Termination of the parent-child legal relationship.
Statute text
(1) The juvenile court may, upon petition, terminate the parent-child legal relationship between a parent or parents, or a possible parent or parents, and
a child in:
(a) Proceedings under section 19-1-104 (1) (d);
(b) Proceedings under section 19-5-105; or
(c) Proceedings under section 19-5-203 (1) (d), (1) (e), (1) (f), (1) (j), and (1) (k).
(2) No parent shall relinquish the parent-child legal relationship with a child other than in accordance with the provisions of this article.
History
Source: L. 87: Entire title R&RE, p. 801, § 1, effective October 1. L. 99: (1) amended, p. 1065, § 9, effective June 1.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-101 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
ANNOTATION
Annotations
Am. Jur.2d. See 59 Am. Jur.2d, Parent and Child, § 5.
C.J.S. See 43 C.J.S., Infants, § 72.
Law reviews. For article, "The 1951 Amendments to the Relinquishment and Adoption Laws", see 28 Dicta 227 (1951). For article, "A Lawyer's
Advice to the Unmarried Mother", see 31 Dicta 112 (1954). For article, "One Year Review of Domestic Relations", see 34 Dicta 108 (1957).
For article, "The Adoption of Children in Colorado", see 37 Dicta 100 (1960). For article, "Adoption Procedures of Minor Children in Colorado",
see 12 Colo. Law. 1057 (1983).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
Paternal rights (now parent-child legal relationships) may be forfeited by abandonment of the child. Fulton v. Martensen, 129 Colo. 125, 267 P.2d 658 (1954).
Statutory relinquishment cannot be waived because it is a part of the court process in such matters. It is necessary in order that the parent be under the
jurisdiction of the court where the other statutory provision of counseling and guidance can be given. Fackerell v. District Court, 133 Colo. 370, 295 P.2d
682 (1956).
An attempt to relinquish a minor child to an individual is without any force or effect. Consent alone adds nothing in the way of giving jurisdiction to
the court. Fackerell v. District Court, 133 Colo. 370, 295 P.2d 682 (1956).
19-5-102. Venue.
Statute text
A petition for relinquishment of the parent-child relationship shall be filed in the county where the child resides or in the county where the petitioner
resides. If a child placement agency is involved, the petition may be filed in the county where the child placement agency is located.
History
Source: L. 87: Entire title R&RE, p. 801, § 1, effective October 1. L. 88: Entire section R&RE, p. 746, § 16, effective July 1. L. 89:
Entire section amended, p. 938, § 1, effective March 21.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-1-105 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
19-5-102.5. Relinquishment hearings - court docket priority.
Statute text
(1) On and after July 1, 2002, any hearing concerning a petition for relinquishment filed in a district court, the Colorado court of appeals, or the Colorado
supreme court shall be given a priority on the court's docket. On and after July 1, 2002, if there is no determination on a case concerning a petition for
relinquishment by any such court within two months of the filing of the petition, it shall be given a priority on the court's docket that supersedes the
priority of any other priority civil hearing on the court's docket.
(2) Notwithstanding the provisions of subsection (1) of this section, nothing in this section shall affect the priority of a hearing concerning the issuance
of a temporary protection order pursuant to section 13-14-102, C.R.S.
(3) The provisions of this section shall be implemented within existing appropriations.
History
Source: L. 2002: Entire section added, p. 1644, § 2, effective July 1. L. 2003: (2) amended, p. 1016, § 27, effective July 1. L. 2004: (2) amended,
p. 556, § 15, effective July 1.
19-5-103. Relinquishment procedure - petition - hearings.
Statute text
(1) Any parent desiring to relinquish his or her child shall:
(a) Obtain counseling for himself or herself and the child to be relinquished as the court deems appropriate from the county department of social services
in the county where such parent resides or from a licensed child placement agency, and, if the petitioner has not received the counseling required by the
court, the petition shall be continued until counseling is obtained, and the petitioner shall be referred to counseling by the court;
(b) (I) Petition the juvenile court upon a standardized form prescribed by the judicial department giving the following information: The name of both natural
parents, if known; the name of the child, if named; the ages of all parties concerned; and the reasons for which relinquishment is desired.
(II) The petition shall be accompanied by a standardized affidavit of relinquishment counseling prescribed by the judicial department that includes:
(A) A statement indicating the nature and extent of counseling furnished to the petitioner, if any, and the recommendations of the counselor;
(B) A copy of the original birth certificate or a copy of the application therefore; and
(C) A statement disclosing any and all payments, gifts, assistance, goods, or services received, promised, or offered to the relinquishing parent in connection
with the pregnancy, birth, or proposed relinquishment of the child and the source or sources of such payments, gifts, assistance, goods, or services.
(1.5) (a) Pursuant to the provisions of section 19-1-126, the petition for relinquishment shall:
(I) Include a statement indicating whether the child is an Indian child; and
(II) Include the identity of the Indian child's tribe, if the child is identified as an Indian child.
(b) If notices were sent to the parent or Indian custodian of the child and to the Indian child's tribe, pursuant to section 19-1-126, the postal receipts
shall be attached to the petition and filed with the court or filed within ten days after the filing of the petition, as specified in section 19-1-126 (1)
(c).
(2) The counseling specified in paragraph (a) of subsection (1) of this section and provided by the department or the child placement agency shall include,
but not be limited to, the following:
(a) Information to the relinquishing parent concerning the permanence of the decision and the impact of such decision on the relinquishing parent now and
in the future;
(b) Information concerning each parent's complete medical and social histories;
(c) In the case of pregnancy, referral of the woman for medical care and for determination of eligibility for medical assistance;
(d) Information concerning alternatives to relinquishment and referral to private and public resources that may meet the parent's needs;
(e) Relinquishment services necessary to protect the interests and welfare of a child born in a state institution;
(f) Information to the child's parent that if he or she applies for public assistance for himself or herself and the child, he or she must cooperate with
the child support enforcement unit for the establishment and enforcement of a child support order; and
(g) The confidentiality of all information, except for nonidentifying information as defined in section 19-1-103 (80) that may be accessed as provided in
part 4 of this article, obtained by the department and the child placement agency in the course of relinquishment counseling unless the parent provides
written permission or a release of information is ordered by a court of competent jurisdiction and except for a copy of an original birth certificate that
may be obtained by an adult adoptee, adult descendant of an adoptee, or a legal representative of the adoptee or descendant as authorized by section 19-5-305.
The counseling shall also include notice that a birth parent has the opportunity to file a written statement specifying that the birth parent's information
remain confidential, an explanation of the rights and responsibilities of birth parents who disagree about consent as set forth in section 19-5-305 (2),
and notice that a birth parent has the opportunity to sign and submit a contact preference form and updated medical history statements to the state registrar
as set forth in section 19-5-305 (1.5).
(2.5) In those cases in which a parent proposes to relinquish his or her parent-child legal relationship with respect to a child who is under one year of
age pursuant to the expedited procedures set forth in section 19-5-103.5, the licensed child placement agency or the county department of social services
assisting the relinquishing parent shall proceed with filing the petition and providing notice as set forth in section 19-5-103.5.
(3) Upon receipt of the petition for relinquishment, the court shall set the same for hearing on the condition that the requirements of subsection (1) of
this section have been complied with by the petitioner.
(4) (a) The parent-child legal relationship of a parent shall not be terminated by relinquishment proceedings unless the parent joins in the petition.
(b) The relinquishing parent, child placement agency, and county department of social services shall provide the court any and all information described
in section 19-1-103 (80) that is available to such relinquishing parent, agency, or county department.
(5) The court shall not issue an order of relinquishment until it is satisfied that the relinquishing parent and the child, if determined appropriate by
the court, have been counseled pursuant to subsection (1) of this section and this subsection (5) and fully advised of the consequences of the parent's
act. The court may order counseling for any age child to be relinquished if the court deems such counseling would be in the child's best interests. The
court may order that a child younger than twelve years of age be prepared for relinquishment, termination of parental rights, or adoption.
(6) If the court finds after the hearing that it is in the best interests of the child that no relinquishment be granted, the court shall enter an order
dismissing the action.
(7) (a) The court shall enter an order of relinquishment if the court finds after the hearing that:
(I) The relinquishing parent or parents and any child that the court directed into counseling have been counseled as provided in subsections (1) and (5)
of this section; and
(II) The parent's decision to relinquish is knowing and voluntary and not the result of any threats, coercion, or undue influence or inducements; and
(III) The relinquishment would best serve the interests of the child to be relinquished.
(b) There shall be a rebuttable presumption that a relinquishment would not be in the child's best interests if the child is twelve years of age or older
and objects to the relinquishment.
(8) If the court is not satisfied that the relinquishing parents and the child, if twelve years of age or older, have been offered proper and sufficient
counsel and advice, it shall continue the matter for such time as the court deems necessary.
(9) (a) The court may appoint a guardian ad litem to protect the interests of the child if:
(I) The court finds that there is a conflict of interest between the child and his or her parents, guardian, or legal custodian;
(II) The court finds that such appointment would be in the best interests of the child; or
(III) The court determines that the child is twelve years of age or older and that the welfare of the child mandates such appointment.
(b) Reasonable fees for guardians ad litem appointed pursuant to this subsection (9) shall be paid by the relinquishing parent or parents; except that,
in the case of an indigent parent or parents, such fees shall be paid as an expense of the state from annual appropriations to the office of the state court
administrator.
(10) The court may interview the child in chambers to ascertain the child's wishes as to the relinquishment proceedings. The court may permit counsel to
be present at such an interview. The court shall cause a record of the interview to be made, and it shall be made a part of the record in the case.
(11) The court may seek the advice of professional personnel whether or not said personnel are employed on a regular basis by the court. Any advice given
by professional persons shall be in writing and shall be made available by the court to attorneys of record, to the parties, and to any other expert witnesses
upon request, but it shall be considered confidential for any other purposes, shall be sealed, and shall not be open to inspection except by consent of
the court. Attorneys of record may call for the cross-examination of any professional persons consulted by the court.
(12) The provisions of this section, including but not limited to relinquishment counseling, notification, and the relinquishment hearing, shall apply in
any case involving a child in Colorado or for whom Colorado is the home state as described in section 14-13-102 (7), C.R.S., including any case in which
it is proposed that the child to be relinquished will be relinquished or adopted outside the state of Colorado.
History
Source: L. 87: Entire title R&RE, p. 801, § 1, effective October 1. L. 92: (1)(b)(II) amended, p. 179, § 1, effective March 20. L. 97: Entire
section amended, p. 1155, § 1, effective July 1. L. 2000: (2)(g) amended, p. 1373, § 6, effective July 1; (12) amended, p. 1538, § 6, effective
July 1. L. 2002: (1.5) added, p. 787, § 8, effective May 30. L. 2003: (2.5) added, p. 872, § 2, effective July 1. L. 2005: (2)(g) amended, p.
992, § 4, effective July 1.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-102 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
Cross references: For the legislative declaration contained in the 2002 act enacting subsection (1.5), see section 1 of chapter 217, Session Laws of Colorado
2002.
Annotations
ANNOTATION
Annotations
Am. Jur.2d. See 2 Am. Jur.2d, Adoption, §§ 65, 66.
C.J.S. See 2 C.J.S., Adoption of Persons, §§ 70-73.
Law reviews. For article, "The Adoption of Children in Colorado", see 37 Dicta 100 (1960). For article, "One Year Review of Domestic Relations",
see 38 Dicta 84 (1961). For article, "Colorado Moves Toward Full Compliance With Federal Indian Child Welfare Act", see 31 Colo. Law. 77 (November
2002).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
The purpose of this section is to prevent the relinquishment of a child by parents who do not realize the seriousness and finality of their acts. It does
not provide that the department of welfare or the court should argue with the parents concerning the reasons for their relinquishment or seek to thwart
the exercise of their free and voluntary will. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Child is ward of state during proceedings. The initiation of any proceedings in a court in which the rights, status, and welfare of an infant may be affected
immediately establishes the infant's relation to the court as that of its ward. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Power of court to grant petition is discretionary. This section, which confers upon the court jurisdiction of relinquishment procedures, vests in the trial
court the discretionary power to grant or deny the petition for relinquishment. People in re K.W.E., 31 Colo. App. 219, 500 P.2d 167 (1972).
Relinquishment does not require known identity of adoptive parents. In relinquishing children the parents do not have the slightest idea as to who, if anyone,
shall become the adoptive parents. Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).
Evidence established consent was knowing and voluntary. Evidence that natural parents of child were fully advised of the seriousness and finality of relinquishing
their child for adoption, and willingly and voluntarily sought to divest themselves of all legal rights and obligations with respect to such child, was
sufficient to comply with the provisions of this section. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Denial of petition did not abuse discretion. Trial court does not abuse discretion in denying petition for relinquishment of child on basis of finding,
supported by the record, that a mother is not in any position to make such an important decision. People in re K.W.E., 31 Colo. App. 219, 500 P.2d 167 (1972).
Grounds for reversal of order for relinquishment. Once the order for relinquishment has been granted, it cannot be reversed except where the court lacks
jurisdiction, or when consent of the parents is obtained through fraud, overreaching pressure, or duress. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d
317 (1960).
Where the child has not been adopted prior to an attack on a relinquishment decree and mistake and misunderstanding invalidated the parents' consent to
the relinquishment, a court may reverse the final order of relinquishment. People In re J.B.P., 44 Colo. App. 95, 608 P.2d 847 (1980).
Void decree subject to collateral attack. Where statutory requirements are not met, the court cannot enter a valid adoption decree, and the decree is thereby
absolutely void on its face and may be the subject of a collateral attack, and the lack of these jurisdictional matters made the decree subject to an attack
at any stage of the proceedings or after entry of judgment. The lack of jurisdiction is usually shown by the judgment roll, and in adoption cases the record
constitutes the judgment roll. Fackerell v. District Court, 133 Colo. 370, 295 P.2d 682 (1956).
Motion to vacate order of relinquishment properly denied. In a proceeding by the natural parents of a minor child to set aside a relinquishment and consent
to adoption, where it is shown that the court had jurisdiction, and there being no allegation of coercion, duress, or pressure exerted upon the parents
to induce them to relinquish the child, a motion to vacate such consent was properly denied. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Time limit between petition and hearing. Although no time limit is prescribed by statute for hearing after the filing of a petition for the relinquishment
and adoption of a minor child, reasonable time should elapse between the filing of the petition and a hearing thereon, permitting the court to examine into
the facts to determine whether relinquishment is advisable under the circumstances. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Only parties of record and their attorneys are granted access to reports under this section. Where grandparent was never a proper party of record and did
not have standing to become one in the relinquishment proceeding, she and her counsel were properly denied access to reports. Petition of B.D.G., 881 P.2d
375 (Colo. App. 1993).
Standard of professional conduct in Colorado required attorney to discuss relinquishment counseling with his or her client in both in-state and out-of-state
adoptions. Thus trial court properly submitted to the jury the issue of whether defendant attorney breached a duty of care to plaintiffs. Boyd v. Garvert,
9 P.3d 1161 (Colo. App. 2000) (case arose prior to enactment of subsection (12)).
19-5-103.5. Expedited relinquishment procedure - children under one year of age - other birth parents - notice - termination.
Statute text
(1) (a) Notwithstanding the provisions of section 19-5-103 to the contrary, a parent desiring to relinquish his or her child may seek an expedited order
terminating his or her parent-child legal relationship without the necessity of a court hearing if:
(I) The child is under one year of age, at the time of filing the petition;
(II) The relinquishing parent is being assisted by a licensed child placement agency or the county department of social services in the county where such
parent resides;
(III) The requirements of section 19-5-103 (1) have been met; and
(IV) The parent signs an affidavit stating his or her desire to voluntarily relinquish his or her parent-child legal relationship with the child and consenting
to a waiver of his or her right to contest a termination of parentage.
(b) (I) The affidavit required to be signed by the parent seeking to relinquish his or her parental rights pursuant to this section shall advise the relinquishing
parent of the consequences of the relinquishment decision and shall further advise the relinquishing parent that he or she is still required to obtain the
relinquishment counseling described in section 19-5-103 (1) (a) and (2). The relinquishing parent shall be advised of the opportunity to seek independent
counseling. The affidavit shall also advise the relinquishing parent that he or she may withdraw the affidavit anytime after signing it but before the affidavit
and petition are filed with the court. The relinquishing parent may sign the affidavit before the birth of the child. The relinquishing birth parent may
withdraw the affidavit from the child placement agency or county department of social services in the county where such parent resides any time after signing
it but before the affidavit and petition are filed with the court.
(II) The affidavit shall include the following:
(A) A statement that the petitioner has completed the relinquishment counseling required in section 19-5-103 (1) and (2) or understands he or she must complete
the counseling prior to entry of the order of termination;
(B) A statement that the child to be relinquished is under one year of age at the time of filing the petition;
(C) A statement that the relinquishing parent's decision is knowing and voluntary and not the result of threats, coercion, or undue influence or inducements;
and
(D) A statement that the relinquishing parent believes the relinquishment is in the best interests of the child.
(III) The relinquishing parent's signature on the affidavit shall be witnessed by two witnesses, one of whom shall be either a representative of the licensed
child placement agency with which the relinquishing parent has contracted or a representative of the county department of social services in the county
where such parent resides, whichever is assisting the parent. The other witness shall not be associated with either the licensed child placement agency
or the county department of social services in the county where such parent resides, whichever is assisting the parent, and shall not be the potential adoptive
parent of the child to be relinquished.
(IV) The affidavit shall be notarized and shall be attached to the petition for relinquishment and filed with the court after the birth of the child. The
petition for relinquishment may not be filed until at least four days after the birth of the child.
(c) If the birth parent has signed the affidavit described in this subsection (1) and if it is properly witnessed and notarized and attached to the petition,
the court may vacate the hearing required pursuant to section 19-5-103 (3) and, upon making the findings set forth in section 19-5-103 (7) (a), shall enter
an order of relinquishment, without a hearing, no more than seven business days after the date of the filing of the petition for relinquishment and the
accompanying affidavit.
(2) (a) Notwithstanding the provisions of section 19-5-105 to the contrary, in those cases in which a parent seeks to relinquish his or her parent-child
legal relationship with a child pursuant to this section, the licensed child placement agency or the county department of social services assisting the
relinquishing parent shall proceed with filing the petition for termination of the other birth parent's or possible birth parents' parent-child legal relationship
and notify the other birth parent or possible birth parents as provided in section 19-5-105.
(b) Notice of the proceeding pursuant to this section shall be given to every person identified as the other birth parent or a possible birth parent in
the manner appropriate under the Colorado rules of juvenile procedure for the service of process or in any manner the court directs; except that notice
shall not be required to be given to a person who has received notice pursuant to section 19-5-103.7 if the person waives the right to contest a termination
of parental rights and waives the right to further notice concerning the expedited relinquishment or if the person fails to reply as required pursuant to
section 19-5-103.7. The notice shall inform the parent or alleged parent whose rights are to be determined that failure to file an answer or to appear within
twenty days after service and, in the case of an alleged father, failure to file a claim of paternity under article 4 of this title within twenty days after
service, if a claim has not previously been filed, may likely result in termination of the parent's or the alleged parent's parental rights to the child.
The notice shall also inform the parent or alleged parent whose rights are to be determined that the person has the right to waive his or her right to appear
and contest and that failure to appear and contest may likely result in termination of the parent's or the alleged parent's parental rights to the child.
Proof of giving the notice shall be filed with the court before the petition is heard or otherwise acted upon. If no person has been identified as the birth
parent, the court shall order that notice be provided to all possible birth parents by publication or public posting of the notice at times and in the places
and manner the court deems appropriate.
(c) The other birth parent or possible birth parents may sign the affidavit of voluntary relinquishment described in subsection (1) of this section. Such
birth parent may sign the affidavit prior to the birth of the child. If the other birth parent or possible birth parent signs an affidavit of voluntary
relinquishment, he or she may withdraw the affidavit from the child placement agency or the county department of social services assisting the relinquishing
parent any time after signing it but before the affidavit and petition are filed with the court.
(d) (I) The court shall vacate the proceeding and, at the time of the review of the case pursuant to paragraph (c) of subsection (1) of this section, enter
an order terminating the parent-child legal relationship of the other birth parent or possible birth parent if the other birth parent or possible birth
parent:
(A) Has waived his or her right to contest the termination of parental rights; or
(B) Has failed to appear and contest or to file an answer to the petition for termination or to file a paternity action within the prescribed twenty days
following the date of the service, publication, or posting of the notice as provided in the notice pursuant to paragraph (b) of this subsection (2); or
(C) Has signed the affidavit of voluntary relinquishment described in subsection (1) of this section; or
(D) Has waived his or her right to notice and right to contest the termination of parental rights pursuant to section 19-5-103.7.
(II) If the other birth parent or possible birth parent expresses his or her desire to appear and contest the termination of the parent-child legal relationship,
the court shall proceed with a hearing on the petition for termination of the other birth parent's parent-child legal relationship.
(3) The licensed child placement agency or the county department of social services assisting the relinquishing parent shall not submit the documents referenced
in subsections (1) and (2) of this section for judicial review unless a permanent placement for the child has been identified.
(4) The court shall not be bound to enter an order terminating a parent-child legal relationship upon the affidavit of the relinquishing parent pursuant
to subsection (1) of this section and the court shall not be bound to enter an order terminating a parent-child legal relationship of the other birth parent
or possible birth parents pursuant to subsection (2) of this section, but the court may, upon its own motion, require that a formal hearing be held to determine
any or all issues presented by the pleadings.
History
Source: L. 2003: Entire section added, p. 869, § 1, effective July 1. L. 2004: (2)(a) amended, p. 263, § 1, effective April 5. L. 2005: (2)(b)
and (2)(d) amended, p. 101, § 2, effective July 1.
Annotations
Editor's note: Section 5 of chapter 23, Session Laws of Colorado 2005, provides that the act amending subsections (2)(b) and (2)(d) applies to actions commenced
on or after July 1, 2005.
19-5-103.7. Anticipated expedited relinquishment - children under one year of age - notice to other or possible parent - administrative procedures.
Statute text
(1) Notwithstanding any provision of section 19-5-103 to the contrary, a licensed child placement agency assisting a parent who plans to relinquish a child
through an expedited relinquishment pursuant to section 19-5-103.5, may provide notice of the anticipated expedited relinquishment on behalf of the relinquishing
parent to any other birth parent or possible birth parent identified pursuant to section 19-5-105 (2) who is not a presumed parent pursuant to section 19-4-105
(1).
(2) The licensed child placement agency may give notice of the anticipated expedited relinquishment prior to or after the filing of the affidavit and petition
with the court, but not more than sixty days prior to the anticipated birth of the child to be relinquished.
(3) (a) Notice to the other birth parent or possible birth parent given pursuant to this section shall be provided:
(I) By publication appearing in a newspaper of general circulation in the county of the person's last known address, if the person's identity is known,
or the county in which the relinquishing parent reports the conception to have occurred. Notice by publication is only proper if a person has not been identified
as the other birth parent or possible birth parent or the location of the other birth parent or possible birth parent has not been determined after diligent
efforts.
(II) In person, delivered by an employee or a representative of the licensed child placement agency assisting the relinquishing parent, with a requirement
that the other birth parent or possible birth parent sign a statement acknowledging receipt of the notice; or
(III) By certified mail to only the other birth parent or possible birth parent, return receipt requested, with return receipt providing prima facie evidence
of service.
(b) The date of notice shall be considered either the date on which the notice is delivered pursuant to subparagraph (II) of paragraph (a) of this subsection
(3) or the date on the return receipt for notice given by certified mail pursuant to subparagraph (III) of paragraph (a) of this subsection (3), whichever
is applicable. If notice is provided by publication, the date of notice shall be the date of the first day of publication.
(4) (a) Notice of the anticipated expedited relinquishment given pursuant to this section shall include the name, mailing address, and physical address
of the licensed child placement agency providing the notice and shall inform the other birth parent or possible birth parent of the following:
(I) The name of the parent of the child who anticipates seeking to relinquish his or her parental rights for purposes of the child's adoption and the anticipated
date of birth or the actual date of birth of the child;
(II) That the other birth parent or possible birth parent has been identified by the parent who anticipates seeking to relinquish his or her parental rights
as potentially being the other birth parent of the child, or, if no other birth parent or possible birth parent has been identified, that the parent who
anticipates seeking to relinquish his or her parental rights is unable to identify the other birth parent or possible birth parent;
(III) That placing a child for adoption requires termination of the child's parent-child legal relationships;
(IV) That the other birth parent or possible birth parent has a right to contest the termination of parental rights; and
(V) That failure to declare an intent to contest the termination of parental rights may likely result in a termination of the person's parental rights to
the child, and that, to declare an intent to contest the termination of the parent-child legal relationship, the other birth parent or possible birth parent
shall:
(A) No later than twenty days after the date of notice pursuant to paragraph (b) of subsection (3) of this section or before a relinquishment petition is
filed with the court, whichever occurs later, either return a reply form to the licensed child placement agency by certified mail, return receipt requested,
or personally appear at the licensed child placement agency to declare an intent to contest the termination of parental rights; and
(B) No later than twenty days after the date of notice pursuant to paragraph (b) of subsection (3) of this section or before a relinquishment petition is
filed with the court, whichever occurs later, file a claim of paternity pursuant to article 4 of this title and notify the licensed child placement agency
pursuant to section 19-4-105.5 (4), C.R.S.;
(VI) That the other birth parent or possible birth parent may waive the right to contest the termination of parental rights and that waiver may likely result
in a termination of the person's parental rights to the child; and
(VII) That further notice related to the anticipated expedited relinquishment proceedings shall not be provided to the other birth parent or possible birth
parent without receipt of a response required by subparagraph (V) of this paragraph (a).
(b) (I) Except when notice is provided by publication, the licensed child placement agency assisting the relinquishing parent with an expedited relinquishment
shall send or deliver a reply form described in sub-subparagraph (A) of subparagraph (V) of paragraph (a) of this subsection (4) to the other birth parent
or possible birth parent at the same time and by the same method as the delivery of notice given pursuant to subsection (3) of this section. The reply form
sent pursuant to this paragraph (b), or otherwise available at the licensed child placement agency pursuant to paragraph (b) of subsection (7) of this section,
shall be signed by the other birth parent or possible birth parent, witnessed, and dated, and shall require the other birth parent or possible birth parent
to disclose the following information to the licensed child placement agency:
(A) The full name of the other birth parent or possible birth parent;
(B) The name of the relinquishing parent and the anticipated date of birth or the actual date of birth of the child to be relinquished, as listed on the
notice;
(C) The other birth parent's or possible birth parent's address;
(D) The case number of the pending action filed, if any, by the other birth parent or the possible birth parent for determination of the parent-child legal
relationship pertaining to the child to be relinquished; and
(E) If a case concerning the determination of the parent-child legal relationship pertaining to the child to be relinquished has been filed, a copy of any
court orders issued regarding the other birth parent's or possible birth parent's parent-child legal relationship.
(II) In addition to the requirements of subparagraph (I) of this paragraph (b), the reply form sent or delivered pursuant to this paragraph (b), or otherwise
available at the licensed child placement agency pursuant to paragraph (b) of subsection (7) of this section, shall provide response options for selection
by the other birth parent or the possible birth parent replying to the notice, which response options shall be substantially similar to the following:
(A) That the person replying to the notice acknowledges that there may be a parent-child legal relationship, declares an intent to contest the termination
of parental rights, and declares an intent to seek to have the court make this determination;
(B) That the person replying to the notice acknowledges that there may be a parent-child legal relationship, waives the right to contest a termination of
parental rights, and waives the right to further notice concerning the expedited relinquishment and the termination of parental rights with respect to the
child; and
(C) That the person replying to the notice does not acknowledge that there may be a parent-child legal relationship, waives the right to contest a termination
of parental rights, and waives the right to further notice concerning the expedited relinquishment and the termination of parental rights with respect to
the child.
(III) In addition to the requirements of subparagraphs (I) and (II) of this paragraph (b), the reply form sent or delivered pursuant to this paragraph (b),
or otherwise available at the licensed child placement agency pursuant to paragraph (b) of subsection (7) of this section, shall include a statement of
acknowledgment by the other birth parent or possible birth parent that there is a requirement to file a claim of paternity and to notify the licensed child
placement agency pursuant to section 19-4-105.5 (4), C.R.S., no later than twenty days after the date of notice or before a relinquishment petition is filed
with the court, whichever occurs later.
(5) To properly reply and declare an intent to contest the termination of the parent-child legal relationship pursuant to this section, the other birth
parent or possible birth parent shall, no later than twenty days after receiving notice pursuant to subsection (3) of this section or before a relinquishment
petition is filed with the court, whichever occurs later:
(a) Return a reply form to the licensed child placement agency by certified mail, return receipt requested, or, for other birth parents or possible birth
parents who receive notice by publication or who otherwise decide not to return the reply form by certified mail, personally appear at the licensed child
placement agency to declare an intent to contest the termination of parental rights in the anticipated proceedings; and
(b) File a claim of paternity pursuant to article 4 of this title and notify the licensed child placement agency pursuant to section 19-4-105.5 (4), C.R.S.
(6) The other birth parent or possible birth parent who is served with notice pursuant to subsection (3) of this section and fails to reply as required
in subsection (5) of this section irrevocably waives the right to further notice of proceedings related to the anticipated expedited relinquishment and
irrevocably waives the right to appear and contest the termination of his or her parental rights, unless the other birth parent or possible birth parent
proves, by clear and convincing evidence, the following:
(a) That it was not possible for the other birth parent or possible birth parent to properly reply and declare an intent to contest the termination of the
parent-child legal relationship pursuant to the requirements of subsection (5) of this section; and
(b) That the other birth parent or possible birth parent did properly reply and declare an intent to contest the termination of the parent-child legal relationship
pursuant to the requirements of subsection (5) of this section within twenty days after it became possible for the other birth parent or possible birth
parent to do so.
(7) (a) If the other birth parent or possible birth parent replies to the notice provided pursuant to subsection (3) of this section by returning the reply
form via certified mail to the licensed child placement agency that sent the notice, the licensed child placement agency shall accept and file the original
reply form with the court upon filing the petition for relinquishment or upon receipt of the reply form, whichever occurs later. The date of the reply shall
be then noted on the return receipt.
(b) If the other birth parent or possible birth parent replies to the notice provided pursuant to subsection (3) of this section by appearing in person
at the licensed child placement agency to declare his or her response, the licensed child placement agency shall provide a reply form for the other birth
parent or the possible birth parent to complete and sign. An agency or social services employee shall sign the form as a witness. The licensed child placement
agency shall accept the completed, signed reply form, provide a copy of the form to the other birth parent or the possible birth parent, and file the original
with the court upon filing the petition for relinquishment or upon receipt of the completed reply form, whichever occurs later. The date of the reply shall
be the date on which the other birth parent or the possible birth parent signs the reply.
(c) (I) Notwithstanding any provision of this section to the contrary, if the other birth parent or possible birth parent replies to notice provided by
publication pursuant to subsection (3) of this section by contacting the licensed child placement agency in a manner other than is specified in paragraph
(b) of this subsection (7), and the other birth parent or possible birth parent provides his or her full name and address, the licensed child placement
agency shall:
(A) Within three business days after the contact, and by certified mail, return receipt requested, send a reply form to the other birth parent or possible
birth parent with a written statement informing the person that the date he or she contacted the licensed child placement agency in response to the notice
received shall be considered his or her date of reply if he or she returns the form no later than ten days after the date noted on the return receipt, and
that, if he or she returns the form more than ten days after the date noted on the return receipt, the date the licensed child placement agency actually
receives the reply form shall be considered his or her reply date; and
(B) Maintain a dated record to submit to the court of all communications made related to this paragraph (c).
(II) The date of reply provided in the manner described in this paragraph (c) shall be the date the other birth parent or possible birth parent contacts
the licensed child placement agency in response to the notice received if he or she returns the form no later than ten days after the date noted on the
return receipt of the form. If the other birth parent or possible birth parent returns the form more than ten days after the date noted on the return receipt,
the date the reply is received by the licensed child placement agency shall be considered the reply date.
(d) Notwithstanding any provision of this section to the contrary, if the other birth parent or possible birth parent files a claim of paternity pursuant
to article 4 of this title and provides notice to the licensed child placement agency pursuant to section 19-4-105.5, then such claim and notice shall be
deemed to satisfy the requirements of subsection (5) of this section, so long as the claim of paternity is filed and notice is provided to the licensed
child placement agency no later than twenty days after receiving notice pursuant to subsection (3) of this section or before a relinquishment petition is
filed with the court.
(e) The other birth parent or possible birth parent who replies to a licensed child placement agency pursuant to this subsection (7) shall notify the agency
of any change in his or her address.
(8) A licensed child placement agency that provides notice of the anticipated expedited relinquishment on behalf of the relinquishing parent to the other
birth parent or possible birth parent pursuant to the provisions of this section shall have the duty to file with the court the following information at
the time it files the petition for relinquishment:
(a) An affidavit of administrative notice with respect to the other birth parent or possible birth parent who has received notice pursuant to subsection
(3) of this section, including the following information, if available:
(I) The method of providing notice;
(II) The date of notice;
(III) The deadline for reply;
(IV) The date of the reply;
(V) The intent declared in the reply;
(VI) A statement indicating whether an action relating to the parent and child legal relationship was filed;
(VII) A statement indicating whether the person's reply was timely; and
(VIII) A statement indicating that the expedited relinquishment was filed pursuant to section 19-5-103.5.
(b) In addition to the affidavit of administrative notice filed with the court pursuant to paragraph (a) of this subsection (8), the licensed child placement
agency shall file all available evidence supporting the affidavit, including but not limited to signed return receipts, completed reply forms, affidavits
of service of process, evidence of publication, evidence of the filing of an action relating to the parent and child legal relationship, and any other records
of pertinent communication with the possible birth parent or other birth parent.
(9) Nothing in this section shall be construed to require a parent who plans to relinquish a child through an expedited relinquishment pursuant to section
19-5-103.5 to file the expedited relinquishment.
(10) Nothing in this section shall be construed to authorize the filing of a petition and affidavit of relinquishment prior to the birth of a child.
History
Source: L. 2005: Entire section added, p. 95, § 1, effective July 1.
Annotations
Editor's note: Section 5 of chapter 23, Session Laws of Colorado 2005, provides that the act enacting this section applies to actions commenced on or after
July 1, 2005.
19-5-104. Final order of relinquishment.
Statute text
(1) If the court terminates the parent-child legal relationship of both parents or of the only living parent, the court, after taking into account the racial,
cultural, and religious background of the child, shall order guardianship of the person and legal custody transferred to:
(a) The county department of social services; or
(b) A licensed child placement agency; or
(c) A relative of the child; or
(d) An individual determined to be of good moral character through a process that includes the assessment made pursuant to section 19-5-206 (2) (a), if
such individual shall have had the child living in his or her home for six months or more, including a foster parent or a designated adoptive parent.
(2) (a) The court shall consider, but shall not be bound by, a request that custody of the child, with the option of applying for adoption, be placed in
a grandparent, aunt, uncle, brother, or sister of the child or a foster parent. When ordering legal custody of the child, the court shall give preference
to a grandparent, aunt, uncle, brother, or sister of the child when such relative has made a timely request therefore and the court determines that such
placement is in the best interests of the child. Such request must be submitted to the court prior to commencement of the hearing on the petition for relinquishment.
If such legal custody is granted, guardianship of the child shall remain with the parent, if the legal parent-child relationship has not been terminated,
or the guardianship shall be transferred pursuant to subsection (1) of this section. Nothing in this section shall be construed to require the birth parents
or the child placement agency with custody of the child to notify said relatives described in this subsection (2) of the pending relinquishment of parental
rights. This subsection (2) shall not apply in cases where the birth parents have designated an adoptive family for the child or the birth parents have
designated that legal custody of the child shall not be in a person described in this subsection (2) and where the child has not been in legal custody of
a relative requesting guardianship or custody as described in this section or the child has not been in the physical custody of such relative for more than
six months.
(b) Notwithstanding the provisions of paragraph (a) of this subsection (2), in cases in which a parent is seeking to relinquish his or her parent-child
legal relationship with more than one child of a sibling group at one time, if the county department or child placement agency locates an appropriate, capable,
willing, and available joint placement for all of the children in the sibling group, the court shall presume that placement of the entire sibling group
in the joint placement is in the best interests of the children. Such presumption may be rebutted by a preponderance of the evidence that placement of the
entire sibling group in the joint placement is not in the best interests of a child or of the children.
(3) No person shall be precluded from adopting a child solely because that person has been a child's foster parent.
(4) The order of relinquishment shall set forth all pertinent facts brought at the hearing, and, in addition, it shall state that the court is satisfied
that the counsel and guidance provided for in section 19-5-103 (1) and (5) has been offered the relinquishing parent or parents and any child for whom the
court has ordered counseling.
(5) A final order of relinquishment shall divest the relinquishing parent or parents of all legal rights and obligations they may have with respect to the
child relinquished, but it shall not modify the child's status as an heir at law which shall cease only upon a subsequent final decree of adoption; except
that the relinquishing parent's or parents' obligation to pay for services received by the child through the department, or other support received, shall
be terminated upon a subsequent final decree of adoption or by order of the court at the time of relinquishment. The order of relinquishment shall release
the relinquished child from all legal obligations with respect to the relinquishing parent or parents.
(6) If one parent files a petition for the relinquishment of a child and the agency or person having custody of the child files a petition to terminate
the rights of the other parent pursuant to section 19-5-105, the court shall set a hearing, as expeditiously as possible, on the relinquishment petition.
A court may enter an order of relinquishment for the purpose of adoption prior to the relinquishment or termination of the other parent's parental rights.
Except as otherwise provided in subsection (7) of this section, an order of relinquishment is final and irrevocable.
(7) (a) A relinquishment may be revoked only if, within ninety days after the entry of the relinquishment order, the relinquishing parent establishes by
clear and convincing evidence that such relinquishment was obtained by fraud or duress.
(b) Notwithstanding paragraph (a) of this subsection (7), a relinquishment may not be revoked on the basis that the relinquishment or termination of the
other parent's parental rights was not obtained because the relinquishing parent knew, but did not disclose, the name or whereabouts of such other parent.
(8) If the relinquishment by an individual is revoked pursuant to subsection (7) of this section and no grounds exist under section 19-5-105 or under part
6 of article 3 of this title for terminating the parental rights of that individual, the court shall dismiss any proceeding for adoption and shall provide
for the care and custody of the child according to the child's best interests.
(9) The fact that the relinquishing parent or parents are minors shall in no way affect the validity of the final order of relinquishment.
History
Source: L. 87: Entire title R&RE, p. 802, § 1, effective October 1. L. 88: (1)(d) and (2) amended and (2.5) added, p. 757, § 3, effective
May 31. L. 94: (4.3), (4.5), and (4.7) added, p. 747, § 2, effective April 20; (4) amended, p. 2688, § 210, effective July 1. L. 97: Entire section
amended, p. 1158, § 2, effective July 1. L. 2003: (2) amended, p. 2627, § 8, effective June 5.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-103 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "One Year Review of Domestic Relations", see 34 Dicta 108 (1957). For article, "Adoption Procedures of Minor Children
in Colorado", see 12 Colo. Law. 1057 (1983). For article, "House Bill 1268 -- In the Best Interests of the Child", see 18 Colo. Law. 1703
(1989).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
Minors are competent to relinquish their children to a state agency. Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).
A partial or conditional relinquishment is not authorized by this section. People in re K.W.E., 31 Colo. App. 219, 500 P.2d 167 (1972).
Grounds for reversal of relinquishment order. Once the order for relinquishment has been granted, it cannot be reversed except where the court lacks jurisdiction
or when consent of the parents is obtained through fraud, overreaching pressure, or duress. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
After relinquishment, parents have no control over adoption. Where parents voluntarily relinquish a child, the parents have by court decree been divested
of all of their legal rights and obligations to said child. They have no control over the child or the adoption proceedings, notice to them is not required,
their consent, if given, is meaningless. Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).
Where both parents stated that they did not want the grandmother to have custody of the child and the grandmother had never had physical or legal custody
of the child, the provisions of subsection (2) specifically operate to prevent the grandmother from having standing in the relinquishment proceedings. Petition
of B.D.G., 881 P.2d 375 (Colo. App. 1993).
The proceedings for voluntary relinquishment under this section are separate and distinct from the proceedings for determining whether a child is dependent
or neglected under § 19-3-605. Under dependency and neglect proceedings, the grandparent may be an interested party. Petition of B.D.G., 881 P.2d 375
(Colo. App. 1993).
Adopted step-daughter not entitled to inheritance. After husband and wife were divorced and order of relinquishment became final, daughter from wife's former
marriage, who had been adopted by husband, was divested of her status as heir. In re Estate of Haddan, 874 P.2d 1081 (Colo. App. 1994).
Applied, with respect to grandparents' request, in People in Interest of A.D., 706 P.2d 7 (Colo. App. 1985).
19-5-105. Proceeding to terminate parent-child legal relationship.
Statute text
(1) If one parent relinquishes or proposes to relinquish or consents to the adoption of a child, the agency or person having custody of the child shall
file a petition in the juvenile court to terminate the parent-child legal relationship of the other parent, unless the other parent's relationship to the
child has been previously terminated or determined by a court not to exist. This section applies whether or not the other parent is a presumed parent pursuant
to section 19-4-105 (1).
(2) In an effort to identify the other birth parent, the court shall cause inquiry to be made of the known parent and any other appropriate person. The
inquiry shall include the following: Whether the mother was married at the time of conception of the child or at any time thereafter; whether the mother
was cohabiting with a man at the time of conception or birth of the child; whether the mother has received support payments or promises of support with
respect to the child or in connection with her pregnancy; or whether any man has formally or informally acknowledged or declared his possible paternity
of the child.
(3) If, after the inquiry, the other birth parent is identified to the satisfaction of the court or if more than one person is identified as a possible
parent, each shall be given notice of the proceeding in accordance with subsection (5) of this section, including notice of the person's right to waive
his or her right to appear and contest. If any of them waives his or her right to appear and contest or fails to appear or, if appearing, cannot personally
assume legal and physical custody, taking into account the child's age, needs, and individual circumstances, such person's parent-child legal relationship
with reference to the child shall be terminated. If the other birth parent or a person representing himself or herself to be the other birth parent appears
and demonstrates the desire and ability to personally assume legal and physical custody of the child, taking into account the child's age, needs, and individual
circumstances, the court shall proceed to determine parentage under article 4 of this title. If the court determines that the person is the other birth
parent, the court shall set a hearing, as expeditiously as possible, to determine whether the interests of the child or of the community require that the
other parent's rights be terminated or, if they are not terminated, to determine whether:
(a) To award custody to the other birth parent or to the physical custodian of the child; or
(b) To direct that a dependency and neglect action be filed pursuant to part 5 of article 3 of this title with appropriate orders for the protection of
the child during the pendency of the action.
(3.1) The court may order the termination of the other birth parent's parental rights upon a finding that termination is in the best interests of the child
and that there is clear and convincing evidence of one or more of the following:
(a) That the parent is unfit. In considering the fitness of the child's parent, the court shall consider, but shall not be limited to, the following:
(I) Emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely, within a reasonable
period of time, to care for the ongoing physical, mental, and emotional needs of the child;
(II) A single incident of life-threatening or serious bodily injury or disfigurement of the child or other children;
(III) Conduct toward the child or other children of a physically or sexually abusive nature;
(IV) A history of violent behavior that demonstrates that the individual is unfit to maintain a parent-child relationship with the minor;
(V) Excessive use of intoxicating liquors or use of controlled substances, as defined in section 12-22-303 (7), C.R.S., that affects the ability of the
individual to care and provide for the child;
(VI) Neglect of the child or other children;
(VII) Injury or death of a sibling or other children due to proven abuse or neglect by such parent;
(VIII) Whether, on two or more occasions, a child in the physical custody of the parent has been adjudicated dependent or neglected in a proceeding under
article 3 of this title or comparable proceedings under the laws of another state or the federal government;
(IX) Whether, on one or more prior occasions, a parent has had his or her parent-child legal relationship terminated pursuant to this section or article
3 of this title or comparable proceedings under the laws of another state or the federal government.
(b) That the parent has not established a substantial, positive relationship with the child. The court shall consider, but shall not be limited to, the
following in determining whether the parent has established a substantial, positive relationship with the child:
(I) Whether the parent has maintained regular and meaningful contact with the child;
(II) Whether the parent has openly lived with the child for at least one hundred eighty days within the year preceding the filing of the relinquishment
petition or, if the child is less than one year old at the time of the filing of the relinquishment petition, for at least one-half of the child's life;
and
(III) Whether the parent has openly held out the child as his or her own child.
(c) That the parent has not promptly taken substantial parental responsibility for the child. In making this determination the court shall consider, but
shall not be limited to, the following:
(I) Whether the parent who is the subject of the petition is served with notice and fails to file an answer within thirty days after service of the notice
and petition to terminate the parent-child legal relationship, or within twenty days if the petition for termination was filed pursuant to section 19-5-103.5,
or fails to file a paternity action, pursuant to article 4 of this title, within thirty days after the birth of the child or within thirty days after receiving
notice that he is the father or likely father of the child, or, for those petitions filed pursuant to section 19-5-103.5, within twenty days after the birth
of the child or after receiving notice that he is the father or likely father of the child;
(II) Whether the parent has failed to pay regular and reasonable support for the care of the child, according to that parent's means; and
(III) Whether the birth father has failed to substantially assist the mother in the payment of the medical, hospital, and nursing expenses, according to
that parent's means, incurred in connection with the pregnancy and birth of the child.
(3.2) In considering the termination of a parent's parental rights, the court shall give paramount consideration to the physical, mental, and emotional
conditions and needs of the child. Such consideration shall specifically include whether the child has formed a strong, positive bond with the child's physical
custodian, the time period that the bond has existed, and whether removal of the child from the physical custodian would likely cause significant psychological
harm to the child.
(3.3) If the child is under one year of age at the time that the relinquishment petition is filed, 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. A parent shall demonstrate such impediments created by the other parent or person having custody by a preponderance of the evidence.
(3.4) (a) If the court determines not to terminate the nonrelinquishing parent's parental rights nor to direct that a dependency and neglect action be filed,
the court shall proceed to determine custody of the child, parenting time with the child, duty of support, and recovery of child support debt.
(b) The court shall determine custody based upon the best interests of the child giving paramount consideration to the physical, mental, and emotional conditions
and needs of the child.
(c) If the child has been out of his or her birth parents' care for more than one year, irrespective of incidental communications or visits from the relinquishing
or nonrelinquishing parent, there is a rebuttable presumption that the best interests of the child will be served by granting custody to the person in whose
care the child has been for that period. Such presumption may be overcome by a preponderance of the evidence.
(3.5) Notwithstanding subsection (3.4) of this section, the court shall grant custody of the child to the nonrelinquishing birth parent if the court finds
that the birth parent has the ability and the desire to assume personally legal and physical custody of the child promptly and that all of the following
exists:
(a) The nonrelinquishing parent has established a substantial, positive relationship with the child;
(b) The nonrelinquishing parent has promptly taken substantial parental responsibility for the child; and
(c) The award of custody to the nonrelinquishing parent is in the best interests of the child.
(3.6) Except for a parent whose parental rights have been relinquished pursuant to section 19-5-104, a person who has or did have the child in his or her
care has the right to intervene as an interested party and to present evidence to the court regarding the nonrelinquishing parent's contact, communication,
and relationship with the child. If custody is at issue pursuant to subsection (3.4) of this section, such person also has the right to present evidence
regarding the best interests of the child and his or her own suitability as a placement for the child.
(4) If, after the inquiry, the court is unable to identify the other birth parent or any other possible birth parent and no person has appeared claiming
to be the other birth parent and claiming custodial rights, the court shall enter an order terminating the unknown birth parent's parent-child legal relationship
with reference to the child. Subject to the disposition of an appeal upon the expiration of thirty days after an order terminating a parent-child legal
relationship is issued under subsection (3) of this section or this subsection (4), the order cannot be questioned by any person, in any manner, or upon
any ground, except fraud upon the court or fraud upon a party. Upon an allegation of fraud, the termination order cannot be questioned by any person, in
any manner or upon any ground, after the expiration of ninety days from the date that the order was entered.
(5) Notice of the proceeding shall be given to every person identified as the other birth parent or a possible birth parent in the manner appropriate under
the Colorado rules of juvenile procedure for the service of process or in any manner the court directs. The notice shall inform the parent or alleged parent
whose rights are to be determined that failure to file an answer or to appear within thirty days after service and, in the case of an alleged father, failure
to file a claim of paternity under article 4 of this title within thirty days after service, if a claim has not previously been filed, may likely result
in termination of the parent's or the alleged parent's parental rights to the minor. The notice also shall inform the parent or alleged parent whose rights
are to be determined that such person has the right to waive his or her right to appear and contest and that failure to appear and contest may likely result
in termination of the parent's or the alleged parent's parental rights to the minor. Proof of giving the notice shall be filed with the court before the
petition is heard. If no person has been identified as the birth parent, the court shall order that notice be provided to all possible parents by publication
or public posting of the notice at times and in places and manner the court deems appropriate.
(6) In those cases in which a parent proposes to relinquish his or her parent-child legal relationship with a child who is under one year of age, pursuant
to the expedited procedures set forth in section 19-5-103.5, the licensed child placement agency or the county department of social services assisting the
relinquishing parent shall proceed with filing the petition for termination of the other birth parent's or possible birth parents' parent-child legal relationship
and notify the other birth parent or possible birth parents as provided in section 19-5-103.5 (2).
History
Source: L. 87: Entire title R&RE, p. 803, § 1, effective October 1. L. 94: Entire section amended, p. 747, § 3, effective April 20. L. 97:
IP(3), (3.1)(c)(I), and (5) amended, p. 1160, § 3, effective July 1. L. 98: (3.1)(a)(II) amended, p. 1421, § 8, effective July 1. L. 2001: (3.1)(a)(VI)
amended and (3.1)(a)(VIII) and (3.1)(a)(IX) added, p. 499, § 2, effective May 4. L. 2003: (3.1)(c)(I) amended and (6) added, p. 872, § 3, effective
July 1.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-6-126 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "Adoption Procedures of Minor Children in Colorado", see 12 Colo. Law. 1057 (1983). For article, "Relinquishment
of Children in Colorado", see 15 Colo. Law. 2008 (1986).
No due process right for an incarcerated parent to be present at termination hearings where parent appeared in proceeding through counsel, presented evidence
as to parole date by affidavit, and submitted a brief. Matter of Catholic Charities, 942 P.2d 1380 (Colo. App. 1997).
The express purposes of the relinquishment and adoption statutes is to promote the integrity and finality of adoption. Court did not misconstrue this section
in finding that the father was unable personally to assume custody of the child promptly. Matter of Catholic Charities, 942 P.2d 1380 (Colo. App. 1997).
The general assembly intended that custody be given only if that parent can promptly assume ongoing parental responsibility for the child. Had the general
assembly intended to allow a nonrelinquishing parent to avoid termination by making alternative custodial arrangements, it would have so provided. Matter
of Catholic Charities, 942 P.2d 1380 (Colo. App. 1997).
Section does not authorize termination of the parent-child legal relationship of the other parent in anticipation of possible stepparent adoption. Statutes
governing parental relinquishment and adoption must be read together in order to effectuate the legislative intent and give consistent, harmonious, and
sensible effect to all their parts. Thus, since mother wanted to keep her relationship intact but involuntarily end father's in order to make children available
for stepparent adoption, reliance on this section was inappropriate. In re D.S.L., 18 P.3d 856 (Colo. App. 2001).
Any defect in subject matter jurisdiction resulting from a parent not having custody of child at time of filing petition to terminate parental rights is
cured by the filing of subsequent petitions to terminate by agency and adoptive parents. People in the Matter of A.L.B., 994 P.2d 476 (Colo. App. 1999).
19-5-106. Records. (Repealed)
History
Source: L. 87: Entire title R&RE, p. 804, § 1, effective October 1. L. 89: Entire section amended, p. 943, § 3, effective March 27. L. 90:
Entire section repealed, p. 1012, § 8, effective July 1.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-104 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
19-5-107. When notice of relinquishment proceedings required. (Repealed)
History
Source: L. 87: Entire title R&RE, p. 805, § 1, effective October 1. L. 91: Entire section amended, p. 254, § 13, effective July 1. L. 92:
Entire section amended, p. 2175, § 30, effective June 2. L. 94: Entire section repealed, p. 752, § 4, effective April 20.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-6-125 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
19-5-108. When notice of relinquishment proceedings required.
Statute text
If the custodial parent has assigned rights to support for a child who is the subject of relinquishment proceedings to the department of human services,
notice of the relinquishment proceedings shall be given, by the parent proposing to relinquish a child or by that parent's counsel, to the appropriate delegate
child support enforcement unit in cases where there is no adoption proceeding pending.
History
Source: L. 96: Entire section added, p. 613, § 15, effective July 1.
Part 2
ADOPTION
19-5-200.2. Legislative declaration.
Statute text
(1) Notwithstanding any other provisions of this title to the contrary, it is the intent of the general assembly that the court shall protect and promote
the best interests of the children who are the subjects of proceedings held pursuant to this part 2 while giving due regard to the interests of any other
individuals affected.
(2) The general assembly hereby finds and declares that:
(a) It is beneficial for a child placed for adoption to be able to continue relationships with his or her brothers and sisters, regardless of age, in order
that the siblings may share their strengths and association in their everyday and often common experiences;
(b) When parents and other adult relatives are no longer available to a child, the child's siblings constitute his or her biological family;
(c) When placing children in adoptive placements, efforts should be made to place siblings together, unless there is a danger of specific harm to a child
or it is not in the child's or children's best interests to be placed together. The general assembly further finds that if the county department locates
an appropriate, capable, willing, and available joint placement for all of the children in the sibling group, there should be a rebuttable presumption that
placement of the entire sibling group in the joint placement is in the best interests of the children. Such presumption should be rebuttable by a preponderance
of the evidence that placement of the entire sibling group in the joint placement is not in the best interests of a child or of the children.
History
Source: L. 94: Entire section added, p. 1198, § 1, effective May 19. L. 2000: Entire section amended, p. 476, § 6, effective July 1. L. 2003:
(2)(c) amended, p. 2627, § 9, effective June 5.
19-5-201. Who may be adopted.
Statute text
Any child under eighteen years of age present in the state at the time the petition for adoption is filed and legally available for adoption as provided
in section 19-5-203 may be adopted. Upon approval of the court, a person eighteen years of age or older and under twenty-one years of age may be adopted
as a child, and all provisions of this part 2 referring to the adoption of a child shall apply to such a person.
History
Source: L. 87: Entire title R&RE, p. 805, § 1, effective October 1.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-105 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
ANNOTATION
Annotations
Am. Jur.2d. See 2 Am. Jur.2d, Adoption, §§ 26-30.
C.J.S. See 2 C.J.S., Adoption of Persons, §§ 22-24.
Law reviews. For article, "The Adoption of Children in Colorado", see 37 Dicta 100 (1960). For article, "Adoption Procedures of Minor Children
in Colorado", see 12 Colo. Law, 1057 (1983). For article, "Lawful Permanent Residence and Citizenship for the Adopted Foreign Child", see
15 Colo. Law. 2207 (1986).
19-5-202. Who may adopt.
Statute text
(1) Any person twenty-one years of age or older, including a foster parent, may petition the court to decree an adoption.
(2) A minor, upon approval of the court, may petition the court to decree an adoption.
(3) A person having a living spouse from whom he is not legally separated shall petition jointly with such spouse, unless such spouse is the natural parent
of the child to be adopted or has previously adopted the child.
History
Source: L. 87: Entire title R&RE, p. 805, § 1, effective October 1. L. 88: (1) amended, p. 758, § 4, effective May 31.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-106 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
ANNOTATION
Annotations
Am. Jur.2d. See 2 Am. Jur.2d, Adoption, §§ 15-19.
C.J.S. See 2 C.J.S., Adoption of Persons, §§ 15, 16, 19.
Law reviews. For article, "The Adoption of Children in Colorado", see 37 Dicta 100 (1960). For article, "Adoption Procedures of Minor Children
in Colorado", see 12 Colo. Law, 1057 (1983). For article, "Lawful Permanent Residence and Citizenship for the Adopted Foreign Child", see
15 Colo. Law. 2207 (1986).
19-5-202.5. Adoption hearings - termination appeals - court docket priority - exceptions.
Statute text
(1) On and after July 1, 2002, any hearing concerning a petition for adoption filed in a district court, the Colorado court of appeals, or the Colorado
supreme court and any hearing concerning a petition filed in the Colorado court of appeals or the Colorado supreme court related to a child who is available
for adoption due to an order of the court terminating the parent-child legal relationship shall be given a priority on the court's docket. On and after
July 1, 2002, if there is no determination on a case concerning a petition for adoption or a case concerning a child who is available for adoption due to
an order of the court terminating the parent-child legal relationship by any such court within six months of the filing of the petition, it shall be given
a priority on the court's docket that supersedes the priority of any other priority civil hearing on the court's docket.
(2) Notwithstanding the provisions of subsection (1) of this section, nothing in this section shall affect the priority of a hearing concerning the issuance
of a temporary protection order pursuant to section 13-14-102, C.R.S.
(3) The provisions of this section shall be implemented within existing appropriations.
History
Source: L. 2002: Entire section added, p. 1643, § 1, effective July 1. L. 2003: (2) amended, p. 1016, § 28, effective July 1. L. 2004: (2) amended,
p. 557, § 16, effective July 1.
19-5-203. Availability for adoption.
Statute text
(1) A child may be available for adoption only upon:
(a) Order of the court terminating the parent-child legal relationship in a proceeding brought under article 3 or 5 of this title;
(b) Order of the court decreeing the voluntary relinquishment of the parent-child legal relationship under section 19-5-103, 19-5-103.5, or 19-5-105;
(c) Written and verified consent of the guardian of the person, appointed by the court, of a child whose parents are deceased;
(d) (I) Written and verified consent of the parent in a stepparent adoption where the other parent is deceased or his parent-child legal relationship has
been terminated under paragraph (a) or (b) of this subsection (1);
(II) Written and verified consent of the parent in a stepparent adoption, accompanied by an affidavit or sworn testimony of such parent, that the other
birth parent has abandoned the child for a period of one year or more or that the other birth parent has failed without cause to provide reasonable support
for such child for a period of one year or more. Upon filing of the petition in adoption, the court shall issue a notice directed to the other parent, which
notice shall state the nature of the relief sought, the names of the petitioner and the child, and the time and place set for hearing on the petition. If
the address of the other parent is known, service of such notice shall be in the manner provided by the Colorado rules of civil procedure for service of
process. Upon affidavit by the petitioner that, after diligent search, the address of the other parent remains unknown, the court shall order service upon
the other parent by one publication of the notice in a newspaper of general circulation in the county in which the hearing is to be held. The hearing shall
not be held sooner than thirty days after service of the notice is complete, and, at such time, the court may enter a final decree of adoption notwithstanding
the time limitation in section 19-5-210 (2).
(e) Written and verified consent of the parent having only residual parental responsibilities when custody or parental responsibilities have been awarded
or allocated to the other parent in a dissolution of marriage proceeding where the spouse of the parent having custody or parental responsibilities wishes
to adopt the child;
(f) Written and verified consent of the parent or parents as defined in section 19-1-103 (82) in a stepparent adoption where the child is conceived and
born out of wedlock;
(g) A statement by the department of human services or its designated agent as to whether any placement arranged outside the state of Colorado was carried
out by a child placement agency licensed or authorized under the laws of another state to make placements;
(h) Verification by the child placement agency, a county department of social services, or the attorney for the petitioner in any adoption proceeding that
any custody obtained outside the state of Colorado was acquired by:
(I) Proceedings to relinquish all parent-child legal relationships which complied with the laws of the state where conducted or conformed substantially
to the laws of this state; or
(II) Proceedings to terminate all parent-child legal relationships which complied with the laws of the state where conducted or conformed substantially
to the laws of this state; or
(III) Written and verified consent, under the conditions set forth in paragraphs (c) to (f) of this subsection (1), which was executed in accord with the
laws of the state where granted or in substantial conformity with the laws of this state;
(i) Verification by the department of human services or its designated agent that any custody obtained outside the state of Colorado was acquired by proceedings
sanctioned by the federal immigration and naturalization service in cooperation with the department of human services whenever such cooperation is authorized
or advised by federal law;
(j) Submission of an affidavit or sworn testimony of the adoptive relative in a kinship adoption that the birth parent or birth parents have abandoned the
child for a period of one year or more or that the birth parent or birth parents have failed without cause to provide reasonable support for such child
for a period of one year or more, and that the relative seeking the kinship adoption has had physical custody of the child for a period of one year or more
and the child is not the subject of a pending dependency and neglect proceeding pursuant to article 3 of this title. Upon filing of the petition in adoption,
the court shall issue a notice directed to the birth parent or birth parents, which notice shall state the nature of the relief sought, the names of the
petitioner and the child, and the time and place set for hearing on the petition. If the address of the birth parent is known, service of such notice shall
be in the manner provided by the Colorado rules of civil procedure for service of process. Upon affidavit by the petitioner that describes with specificity
the diligent search made by the petitioner, and that states that, after diligent search, the address of the birth parent or birth parents remains unknown,
the court shall order service upon the birth parent or birth parents by one publication of the notice in a newspaper of general circulation in the county
in which the hearing is to be held. The hearing shall not be held sooner than thirty days after service of the notice is complete, and, at such hearing,
the court may enter a final decree of adoption notwithstanding the time limitation in section 19-5-210 (2).
(k) Submission of an affidavit or sworn testimony of the legal custodian or legal guardian in a custodial adoption that the birth parent or birth parents
have abandoned the child for a period of one year or more or that the birth parent or birth parents have failed without cause to provide reasonable support
for such child for a period of one year or more and that the legal custodian or legal guardian seeking the custodial adoption has had the child in his or
her physical custody for a period of one year or more. Upon filing of the petition in adoption, the court shall issue a notice directed to the birth parent
or birth parents, which notice shall state the nature of the relief sought, the names of the petitioner and the child, and the time and place set for hearing
on the petition. If the address of the birth parent or birth parents is known, service of such notice shall be in the manner provided by the Colorado rules
of civil procedure for service of process. Upon affidavit by the petitioner that describes with specificity the diligent search made by the petitioner,
and that states that, after diligent search, the address of the birth parent or birth parents remains unknown, the court shall order service upon the birth
parent or birth parents by one publication of the notice in a newspaper of general circulation in the county in which the hearing is to be held. The hearing
shall not be held sooner than thirty days after service of the notice is complete, and, at such hearing, the court may enter a final decree of adoption
notwithstanding the time limitation in section 19-5-210 (2).
(2) Written consent to any proposed adoption shall be obtained from the person to be adopted if such person is twelve years of age or older.
History
Source: L. 87: Entire title R&RE and (1)(f) amended, pp. 805, 1587, §§ 1, 61, effective October 1. L. 94: (1)(g) and (1)(i) amended, p. 2688,
§ 211, effective July 1. L. 97: (1)(d)(II) amended, p. 1161, § 4, effective July 1. L. 98: (1)(f) amended, p. 822, § 29, effective August
5; (1)(e) amended, p. 1410, § 73, effective February 1, 1999. L. 99: (1)(j) and (1)(k) added, p. 1062, § 3, effective June 1. L. 2005: (1)(b)
amended, p. 765, § 25, effective June 1.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-107 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. Consent and Availability Without Consent.
I. GENERAL CONSIDERATION.
Am. Jur.2d. See 2 Am. Jur.2d, Adoption, §§ 26-30, 65, 66, 120.
C.J.S. See 2 C.J.S., Adoption of Persons, §§ 22, 49, 55, 57-61, 63-69.
Law reviews. For article, "The 1951 Amendments to the Relinquishment and Adoption Laws", see 28 Dicta 227 (1951). For article, "The Adoption
of Children in Colorado", see 37 Dicta 100 (1960). For note, "Batton v. Massar: The Finality of Colorado Adoptions", see 35 U. Colo. L. Rev.
314 (1963). For article, "Substantive Changes in Adoption and Relinquishment Law in Colorado", see 16 Colo. Law. 2183 (1987).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
Section held constitutional. Stjernholm v. Mazaheri, 180 Colo. 352, 506 P.2d 155 (1973).
Purpose of section. The prime purpose of the provisions relating to adoption definitely pertain to the care, support, training, and welfare of children
who are orphaned or left dependent during minority. Martin v. Cuellar, 131 Colo. 117, 279 P.2d 843 (1955).
The purpose of adoption proceedings is to change the status of a child and its adoptive parents and to create a new status, a new relationship of parent
and child. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).
The general assembly has evidenced a benign policy toward adopted persons. People ex rel. Dunbar v. White, 144 Colo. 212, 355 P.2d 963 (1960).
This section and § 19-5-211, when viewed together, exclude from the reach of adoption statutes all form of adoption not otherwise expressly permitted.
Adoption of T.K.J., 931 P.2d 488 (Colo. App. 1996).
This section, when read together with § 19-5-211 contemplates two types of adoptions. The first is an adoption in which the rights of the parents are
terminated by the court or are relinquished by the parents, or by the child's guardian if the parents are deceased. In such situation, final decree of adoption
has effect of divesting the child's natural parents of all legal rights and obligations with respect to the child. The second is a "stepparent adoption",
which constitutes the only exception to the general rule that an adoption divests both of the child's parents of all legal rights and duties relating to
the child. This exception applies only when custodial parent is married to the adopting stepparent. Adoption of T.K.J., 931 P.2d 488 (Colo. App. 1996);
In re D.S.L., 18 P.3d 856 (Colo. App. 2001).
Reading the plain language of this section in harmony with other statutes relating to adoption, children of same-sex couple whose parents were not married
and whose parents did not intend to relinquish or terminate custody of children were not available for adoption. Adoption of T.K.J., 931 P.2d 488 (Colo.
App. 1996).
Procedure mandatory. The procedure prescribed in subsection (1) cannot be ignored. Foley v. Carnesi, 123 Colo. 533, 232 P.2d 186 (1951).
Compliance with the provisions of the adoption statute is mandatory. Allen v. Huffman, 135 Colo. 1, 307 P.2d 802 (1957).
"One year" in former subsection (1)(e)(II) (now subsection (1)(b)(II)) means the consecutive 12-month period immediately preceding the filing
of the petition for stepparent adoption. In re R.H.N., 673 P.2d 805 (Colo. App. 1983); In re R.H.N., 710 P.2d 482 (Colo. 1985).
Responsibility of state to protect child's best interests. In an adoption proceeding, not only the custody, support, and education of a minor is involved,
but one or both the parents may be deprived of their rights as parents. In such cases the state has an obligation to see that the best interests of the
child and its welfare are served by the decree of adoption. Clerkin v. Geisendorfer, 137 Colo. 139, 323 P.2d 633 (1958).
The primary consideration in adoption proceedings is the welfare of the child, and secondly the rights of the parents. Moreau v. Buchholz, 124 Colo. 302,
236 P.2d 540 (1951).
Except when it is essential and of paramount necessity in the best interests of the child itself to provide otherwise, the law recognizes and enforces the
right to the custody of their own children which nature gives to parents. Allen v. Huffman, 135 Colo. 1, 307 P.2d 802 (1957).
In a valid adoption proceeding, the natural relationship of the parents is superseded by an artificial relationship, and courts should act with caution
and circumspection in such proceedings, exerting every effort commensurate with the welfare of the child to prevail upon the natural parents to accept and
fulfill their duties toward their child. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Parental rights (now parent-child legal relationship) must yield to interest and welfare of child. Stjernholm v. Mazaheri, 180 Colo. 352, 506 P.2d 155 (1973);
In re Petition of J.D.K., 37 P.3d 541 (Colo. App. 2001).
As child is ward of state. The initiation of any proceedings in a court in which the rights, status, and welfare of an infant may be affected immediately
establishes the infant's relation to the court as that of its ward. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
The power of the state to sever the ties between parent and child should be exercised with extreme care and only when the evidence clearly establishes the
necessity of so doing. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).
In assessing whether a parent has abandoned a child, the court must examine the totality of the circumstances, viewed in light of the best interests of
the child, which assessment must include recognition both that every child is entitled to support and nurturance and that, to preserve parental rights,
a parent must give appropriate attention to parental responsibilities, with the primary consideration being the welfare of the child second to the rights
of the parents. In re Petition of J.D.K., 37 P.3d 541 (Colo. App. 2001).
Where mother abandoned the child and did not have a relationship with the child, the court cannot benefit the best interests of the child by considering
the prospects that the mother, having abandoned a child, may later seek to establish a relationship with the child where there has been no support and nurturance.
In re Petition of J.D.K., 37 P.3d 541 (Colo. App. 2001).
A stepparent adoption proceeding is not based on a societal responsibility to improve a child's situation. The best interest of the child is only one of
the factors to be considered in evaluating a petition in such a proceeding. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).
A parent-child relationship may not be destroyed and a new one created by adoption solely because an official of the state may believe the child's welfare
and the stepparent's convenience will be served by such actions. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).
Where a petition for stepparent adoption is before the court, the court may consider the natural parent's past conduct and other relevant considerations
in making a determination as to whether it is unlikely that the natural parent will make future support payments on a regular and continuous basis. E.R.S.
v. O.D.A., 779 P.2d 844 (Colo. 1989).
A stepparent adoption proceeding, like all other adoption proceedings, is concluded by a final decree of adoption. It is only when the final decree is entered
that a natural parent is divested of all rights and obligations with respect to the child. People in Interest of S.M.O., 931 P.2d 572 (Colo. App. 1996).
A child is not available for adoption within the meaning of paragraph (f) of subsection (1), without the consent of both natural parents when both parents
are living and the identity and whereabouts of both parents are known or ascertainable by due diligence. In re the Petition of S.O., 795 P.2d 254 (Colo.
1990).
Natural father's motion to set aside stepparent adoption was properly denied where father knowingly, intelligently, and voluntarily consented to his child's
adoption by signing a waiver that was written in plain, clear, and unambiguous language. Father's claim that his consent was based on an understanding that
he would receive visitation rights was insufficient to overcome the written consent and evidence that the father was sufficiently informed by court clerk
as to the consequences of signing consent form. In re the Petition of S.O., 795 P.2d 254 (Colo. 1990).
Parent's incarceration. Incarceration is not a per se justification for failure to pay child support. The fact that a parent has been incarcerated for any
or all of the 12-month period immediately preceding the filing of the petition is one factor to be considered by the court in making its determinations.
In re R.H.N., 673 P.2d 805 (Colo. App. 1983); In re R.H.N., 710 P.2d 482 (Colo. 1985).
Determination of whether reasonable support was paid must be predicated on a party's financial circumstances rather than on a rigid interpretation of a
support order entered at a prior time. In re R.H.N., 678 P.2d 1070 (Colo. App. 1984).
But parents are not excused from their obligation to support their children merely because their incomes are small. Although incarceration is a factual
circumstance that the court may consider in deciding what level of support is reasonable, incarceration does not totally excuse a parent's obligation to
provide some child support. In re R.H.N., 710 P.2d 482 (Colo. 1985).
Once court has determined that a natural parent has failed to provide child support during 12-month period preceding filing of petition under former subsection
(1)(e)(II) (now subsection (1)(h)(II)), the court must look beyond the 12-month period to determine whether there is any likelihood that natural parent
will provide child support. In re R.H.N., 710 P.2d 482 (Colo. 1985).
Whether a parent has failed to provide "reasonable support" is question of fact to be determined by the trial court on a case by case basis. In
re F.J.H., 628 P.2d 159 (Colo. App. 1981); In re R.H.N., 710 P.2d 482 (Colo. 1985).
And parental rights not terminated whenever parent fails to provide support. This section does not permit the termination of parental rights (now parent-child
legal relationship) whenever a parent fails to provide the amount of support specified under a decree for a period of one year. In re F.J.H., 628 P.2d 159
(Colo. App. 1981).
Mistaken belief on support obligation considered in ruling on failure to provide support. While a divorced parent's support obligation is not legally suspended
by the other parent's violation of the visitation provisions in a custody decree, a mistaken belief to this effect is a factual circumstance which the trial
court may consider in ruling on the question of the failure to provide reasonable support without cause in a proceeding which involves the termination of
a parent-child legal relationship. In re F.J.H., 628 P.2d 159 (Colo. App. 1981).
Because of the harshness of permanently terminating parental rights, (now parent-child legal relationships) strict compliance with this section is required.
Petition of T.C.H. v. J.M.S., 190 Colo. 246, 545 P.2d 1357 (1976); In re F.J.H., 628 P.2d 159 (Colo. App. 1981).
Substantial compliance with the statutory provisions is essential and must appear of record. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82
(1976).
Burden of statutory adoption is same on all citizens. Chavez v. Shea, 185 Colo. 400, 525 P.2d 1148 (1974).
Exclusive method of adoption. Except in a very limited and unique situation, the only method of legal adoption under the laws of Colorado is pursuant to
the children's code. Chavez v. Shea, 185 Colo. 400, 525 P.2d 1148 (1974).
A juvenile court has exclusive jurisdiction in adoption proceedings, but such jurisdiction does not extend to ousting a district court of jurisdiction in
habeas corpus proceedings involving the unlawful restraint of an infant. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).
But court cannot determine custody apart from adoption. In adoption proceedings, where for lack of jurisdiction or failure to meet statutory requirements,
the effort to adopt fails, a juvenile court has no power to make an award of custody, nor to determine the relative rights of natural parents or of persons
seeking to adopt a child. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).
Parent's abandonment of child is question of intent. Lack of mental capacity may be cause for failure to provide support and the presumption that an insanity
adjudication results in the continuation of a state of mental incapacity applies in a proceeding under this section. Petition of D.L.M., 703 P.2d 1330 (Colo.
App. 1985).
Adoption and abandonment proceedings distinguished. The question of abandonment is one of the elements involved in adoption proceedings, but that does not
change adoption proceedings under this article to an abandonment proceeding under § 19-1-104. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).
An adjudication in a habeas corpus proceeding involving custody of a minor child is not an adjudication of abandonment as defined in the adoption statute,
nor as used in the dependent and neglected child statute since a district court has no jurisdiction in abandonment proceeding. Johnson v. Black, 137 Colo.
119, 322 P.2d 99 (1958).
Section may not be supplemented or supplanted by action in dependency. This section provides within itself sufficient means and authority to accomplish
its purpose, and it may not be supplemented or supplanted by an action in dependency. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).
A petition in dependency may not be converted into a proceeding for stepparent adoption by the actions either of the parties, the referee, or the trial
court. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).
And procedures are not interchangeable. Since a petition in dependency concerns different matters and fulfills a different purpose than a proceeding for
a stepparent adoption, procedures applicable to one may not be used to accomplish the ends of the other. People in Interest of S.S.T., 38 Colo. App. 110,
553 P.2d 82 (1976).
For the distinction between notice required by § 19-3-103 and that required by this section, see People in Interest of S.S.T., 38 Colo. App. 110, 553
P.2d 82 (1976).
Colorado courts have not recognized cultural adoption as being legal adoption. Chavez v. Shea, 185 Colo. 400, 525 P.2d 1148 (1974).
Equitable adoption for purposes of intestacy. Where there is "an oral contract to adopt a child, fully performed except that there was no statutory
adoption", the child could be held equitably adopted for purposes of intestacy. The court has never applied the doctrine to factual situations other
than those involving succession to an estate. Chavez v. Shea, 185 Colo. 400, 525 P.2d 1148 (1974).
Trial court's findings supported by evidence binding on appeal. Where the record contains evidence which supports the findings of the trial court that it
is not in the best interest of the child to proceed with adoption, those findings are binding on appeal. In re J.A.A. v. C.R., 618 P.2d 742 (Colo. App.
1980).
Applied in Board of Control of State Home v. Mulertz, 60 Colo. 468, 154 P. 742 (1916); People in Interest of K.S., 33 Colo. App. 72, 515 P.2d 130 (1973).
II. CONSENT AND AVAILABILITY WITHOUT CONSENT.
Law reviews. For note, "A Compilation of Consent Provisions of Adoption Statutes", see 24 Rocky Mt. L. Rev. 359 (1952). For comment on White v.
Davis (163 Colo. 122, 428 P.2d 909 (1967)), see 40 U. Colo. L. Rev. 151 (1967).
This section applies simply to consent and not to waiver, and, in view of the expressed intent of the general assembly to give the natural parents protection
from hurried and coerced decisions to give up their child, the meaning of this section cannot be extended to include waiver of notice. Thus, the notice
required may not be waived by a minor parent. Foley v. Carnesi, 123 Colo. 533, 232 P.2d 186 (1951).
General assembly has wide discretion in determining when and under what conditions child may be adopted without consent of natural parents. Stjernholm v.
Mazaheri, 180 Colo. 352, 506 P.2d 155 (1973).
Parent has no absolute right to child under any and all circumstances. Stjernholm v. Mazaheri, 180 Colo. 352, 506 P.2d 155 (1973).
The determination that a child is "available for adoption" is only a preliminary step toward the replacement of the child's natural parent with
one who appears to be more willing and able to provide the care, support, and training necessary for the child's proper development. People in Interest
of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).
Objecting parent must show willingness to assume obligations. While a natural parent's rights may not be disregarded, expressed public policy declares that
a parent seeking to prevent the adoption of his natural child by a stepparent may not stand upon his parental rights without demonstrating a willingness
to assume parental obligations. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).
Failure to support and abandonment separate grounds. The children's code specifies that failure to support without cause is a separate and independent ground
from that of abandonment for declaring a child available for adoption so that if sufficient proof on either or both grounds is submitted to the court, a
judgment based thereon will not be disturbed. Karkanen v. Valdesuso, 33 Colo. App. 47, 515 P.2d 128 (1973).
This section does not require that abandonment and nonsupport must both be shown to terminate parental rights (now parent-child legal relationship). Buder
v. Reynolds, 175 Colo. 28, 486 P.2d 432 (1971).
Prior court order mandating child support is not a prerequisite to a finding that a natural parent has failed without cause to provide child support. Accordingly,
a child could be adopted without the natural father's consent where the natural father had failed to provide any child support for over a year preceding
the filing for stepparent adoption, the evidence suggested that he would not pay child support in the future, and all procedural requirements of this section
had been met. In re I.R.D., 971 P.2d 702 (Colo. App. 1998).
In assessing whether a parent has abandoned a child, the court must examine the totality of the circumstances viewed in light of the best interests of the
child, and mother's single phone call made during the year prior to the filing of the petition for adoption would not preclude a finding of abandonment.
In re Petition of J.D.K., 37 P.3d 541 (Colo. App. 2001).
Termination of parental rights (now parent-child legal relationship) constitutional. Requiring only a showing that the natural parent has failed without
cause to provide reasonable support for a child for one year or more, when termination of a natural parent's rights is sought in a stepparent adoption,
does not violate the natural parent's constitutional rights. Buder v. Reynolds, 175 Colo. 28, 486 P.2d 432 (1971).
Consent is necessary in all adoptions, since without valid consents courts are without jurisdiction to enter decrees of adoption. Batton v. Massar, 149
Colo. 404, 369 P.2d 434 (1962).
Minor parent may give consent. Under this section, the minority of a natural parent is not a bar to such parent's consent to adoption. Batton v. Massar,
149 Colo. 404, 369 P.2d 434 (1962).
A mother's consent to the adoption is necessary unless she has forfeited her rights. Graham v. Francis, 83 Colo. 346, 265 P. 690 (1928).
When the petition in adoption was filed, there was no valid order of dependency. Without such a valid order the consent of the mother was essential, and
not being filed with that petition, the court was without jurisdiction to enter the decree of adoption, and its jurisdiction was no greater because of the
subsequent order of dependency based on a new petition. The adjudication of dependency entered subsequent to the filing of the petition in adoption could
not give vitality to the adoption petition. Storey v. Shumaker, 131 Colo. 131, 279 P.2d 1057 (1955).
Unverified consent ineffective. Where the written consent of the natural parent is not subscribed and sworn to as required by this section, a decree of
adoption will not be sustained. Allen v. Huffman, 135 Colo. 1, 307 P.2d 802 (1957).
Consent valid in absence of fraud, coercion, or misrepresentation. A mother may not avoid the consequences of her voluntary acts in consenting to the adoption
of her children, on the ground that she did not realize the seriousness and finality of the paper she was signing, in the absence of fraud, coercion, or
misrepresentation. Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).
Consent required where divorce decree specifically relieved father of duty to support child. T.C.H. v. J.M.S., 190 Colo. 246, 545 P.2d 1357 (1976).
After relinquishment, parental consent unnecessary. If there has been a relinquishment, then in proceedings for the adoption of the relinquished child,
the agency to which the child has been relinquished is the only one that can consent. Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).
Consent is not required where the parent has abandoned the child. Neville v. Bracher, 94 Colo. 550, 31 P.2d 911 (1934).
And such parent not entitled to notice of adoption. Where the mother abandons and deserts her child, she has no right to receive notice of the child's adoption.
Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Notice of adoption proceedings under this section need not be given where a valid relinquishment has been made, such relinquishment divesting the natural
parents of all legal right in their child. Smith v. Welfare Dept., 144 Colo. 103, 355 P.2d 317 (1960).
Under this section, no notice of an adoption proceeding is required to be given parents who have relinquished or lost their rights to the custody of their
children by prior court action. Olsen v. Davidson, 142 Colo. 205, 350 P.2d 338 (1960).
Hearing on adequacy of notice required. Where the motion to vacate the adoption decrees claims no notice whatsoever and further alleges that in support
of an order authorizing service by publication the procurer of the order made a false representation that he was unaware of the whereabouts of the natural
father, the inherent seriousness of such allegations require an evidentiary hearing to determine whether the due process requirements in the adoption proceedings
were met. White v. Davis, 163 Colo. 122, 428 P.2d 909 (1967) (decided under former § 4-1-16, C.R.S. 1963).
19-5-204. Venue.
Statute text
A petition for adoption shall be filed in the county of residence of the petitioner or in the county in which the placement agency is located.
History
Source: L. 87: Entire title R&RE, p. 806, § 1, effective October 1.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-1-105 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
19-5-205. Adoption decree of foreign country approved.
Statute text
(1) (a) A petition seeking a decree declaring valid an adoption granted by a court of any country other than the United States of America may be filed at
any time by residents of the state of Colorado.
(b) The petition shall contain all information required in section 19-5-207 (2); except that the court shall not require the petition to contain or be accompanied
by the written consent described in section 19-5-207 (1), the written home study report described in section 19-5-207 (2) (a), the fees described in section
19-5-207.5 (4), or a written legal memorandum with specific references to the applicable law of the foreign country.
(2) The court shall issue a decree declaring valid an adoption granted by a court of competent jurisdiction or other authorized individual or entity of
a country other than the United States of America upon a finding that:
(a) At the time the petition is filed, the petition contains a verified statement that at least one of the adopting parents is a citizen and resident of
the state of Colorado or other evidence that at least one of the adopting parents is a citizen and resident of the state of Colorado;
(b) The original or a certified copy of a valid foreign adoption decree, together with a notarized translation, is presented to the court; and
(c) The child is either a permanent resident or a naturalized citizen of the United States. A photocopy of the child's resident alien card issued by the
immigration and naturalization service of the United States department of justice, or any successor entity, shall be sufficient evidence that the child
is either a permanent resident or a naturalized citizen of the United States.
(2.5) The adopting parties filing a petition pursuant to this section shall not be required to be represented by an attorney.
(3) Any decree issued pursuant to this section shall have the same legal effect as any decree of adoption issued by the court.
History
Source: L. 87: Entire title R&RE, p. 806, § 1, effective October 1. L. 97: (1)(b) and (2) amended and (2.5) added, p. 1162, § 5, effective
July 1. L. 99: (1)(b) amended, p. 1024, § 5, effective May 29.
Annotations
Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar
to those contained in 19-4-107.5 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "Lawful Permanent Residence and Citizenship for the Adopted Foreign Child", see 15 Colo. Law. 2207 (1986).
19-5-205.5. Nonpublic agency interstate and foreign adoptions - legislative declaration - authority for department to select agencies.
Statute text
(1) The general assembly finds that timely processing of adoptions is in the best interests of the children being adopted. It is therefore the intent of
the general assembly to expedite permanency for those children who are being adopted. It is the purpose of this
