252 P.3d 556
Colo. Ct. App.2011Background
- Mother engaged Lutheran Family Services to place child for adoption and falsely claimed she did not know the father's identity or whereabouts.
- LFS filed an expedited relinquishment in Larimer County and provided publication notice to the allegedly unknown father.
- District court found father in default for failure to respond to publication and terminated both parents’ rights and granted custody to LFS for adoption.
- Mother had actual knowledge of father’s identity and whereabouts and communicated with him during relinquishment proceedings, contrary to representations.
- Adoption decree entered in Jefferson County; final decree dated June 23, 2008; child remained with adoptive parents.
- Father filed motions alleging lack of notice and fraud, seeking relief from judgment; district court denied as time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the default termination violated due process due to lack of notice | Father | LFS/Intervenors | Judgment void for lack of notice |
| Whether the judgment can be attacked despite time limits because it is void | Father | LFS/Intervenors | Void judgments may be attacked anytime; relief granted |
| Whether 9-5-105(4) and Rule 60(b) bar relief when the judgment is void | Father | LFS/Intervenors | Limitations do not apply to void judgments; relief under 60(b)(8) required |
| What relief and remand are proper given due process violations | Father | LFS/Intervenors | Reverse, vacate, remand for relinguishment hearing; paternity issue if disputed |
Key Cases Cited
- Armstrong v. Manzo, 380 U.S. 545 (1965) (due process notice required in termination actions)
- In re J.M.A., 240 P.3d 547 (Colo. App. 2010) (notice and due process in parental rights terminations)
- First Nat'l Bank v. Fleisher, 2 P.3d 706 (Colo.2000) (due process; void judgments may require vacating)
- Mason-Jares, Ltd. v. Peterson, 989 P.2d 522 (Colo. App. 1997) (due process; publication notice issues)
- Davidson Chevrolet, Inc. v. City & County of Denver, 138 Colo. 171 (Colo.1958) (voidness when publication notice fails to meet due process)
- In re S.O., 795 P.2d 254 (Colo.1990) (statutory timing not controlling where void judgment exists)