2020 COA 13
Colo. Ct. App.2020Background
- In Jan 2018 the Arapahoe County Dept. of Human Services filed a dependency and neglect petition naming B.B. as a presumed father (he was listed on the child’s birth certificate); genetic testing later identified J.G. as the biological father.
- The children were removed from the home in Feb 2018; B.B. lived with the family prior to removal, but had little contact with the subject child after removal and had earlier told the Department he did not want to pursue a relationship.
- The Department did not request a paternity hearing until early 2019; the paternity hearing and a termination hearing were scheduled together for March 29, 2019; B.B. did not appear in person and his counsel was excused during the paternity ruling.
- At the March 29 hearing the juvenile court treated the dispute as between two presumed fathers, found J.G. (the biological father) to be the child’s legal father, and the court approved termination proceedings against J.G.; B.B. appealed.
- On appeal B.B. argued (1) the UPA’s requirement that paternity be resolved “as soon as practicable” was violated (statutory untimeliness), (2) the delay denied him due process, and (3) he was denied equal protection by disparate treatment; the Court of Appeals found these contentions unpreserved and declined plain-error review, addressed the statutory timing claim on the merits, and affirmed the paternity determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the UPA requirement that paternity be resolved “as soon as practicable” required an early paternity determination in a dependency/neglect case | B.B.: court violated UPA by not resolving paternity until ~15 months into the case; the delay prejudiced his rights | Department: preservation challenge; also a dependency petition is not the same as an independent paternity action that triggers the UPA timing clock; trial court has discretion on timing | Held: the UPA timing provision applies after an independent action to declare parentage is brought; a dependency proceeding is not a discrete triggering action and the court did not abuse its discretion in holding paternity hearing on March 29, 2019 |
| Whether delay in resolving paternity violated procedural due process | B.B.: delay (and lack of treatment plan/dispositional hearing) denied him fundamental fairness and due process | Department: issues unpreserved; when paternity hearing was held B.B. had notice and counsel participated; statutory remedies are not necessarily constitutional rights | Held: unpreserved and no miscarriage-of-justice shown; when the hearing occurred B.B. (through counsel) had notice, opportunity to be heard, and cross-examine — due process satisfied |
| Whether the juvenile court violated equal protection by adjudicating or providing services to the biological father but not to B.B. | B.B.: disparate treatment — biological father received adjudication/dispositional process and services but B.B. did not | Department: preservation challenge and the record is inadequate to evaluate any as-applied equal protection claim | Held: unpreserved; court declines to address equal protection because the record lacks necessary findings for an as-applied challenge |
| Whether the juvenile court’s factual finding that J.G. is the child’s legal father was clearly erroneous | B.B.: asks reversal of paternity finding (implied errors in process and timing) | Department: evidence and statutory presumptions support the court’s weighing of conflicting presumptions | Held: affirmed — B.B. failed to develop any substantive challenge to the factual finding and the court’s resolution of competing presumptions was within its discretion |
Key Cases Cited
- People in Interest of C.G., 885 P.2d 355 (Colo. App. 1994) (termination proceedings are civil actions; preservation rules apply)
- People in Interest of C.L.S., 313 P.3d 662 (Colo. App. 2011) (effect of a final paternity determination — one presumed father becomes nonparent)
- N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000) (parentage disputes resolved by hearing)
- In re R.G.B., 98 P.3d 958 (Colo. App. 2004) (unpreserved errors in dependency/neglect may be reviewed to prevent miscarriage of justice)
- People in Interest of A.E., 914 P.2d 534 (Colo. App. 1996) (limited situations where unpreserved trial error may be considered for miscarriage of justice)
- People in Interest of J.A.S., 160 P.3d 257 (Colo. App. 2007) (a parent lacks standing to raise challenges to termination of another parent’s rights)
- Calderon v. Thompson, 523 U.S. 538 (1998) (miscarriage-of-justice exception in criminal context is narrowly construed)
- Sawyer v. Whitley, 505 U.S. 333 (1992) (discussing miscarriage-of-justice as proof of actual innocence)