Adoption of ACZ

• Court: Colorado Court of Appeals
• Decided: December 5, 2024
• Docket: 24CA0307
• Status: Unpublished

Opinion

24CA0307 Adoption of ACZ 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0307 El Paso County District Court Nos. 23JA105 & 23JA106 Honorable Lin Billings Vela, Judge

In the Matter of the Petition of K.R.N.,

Appellee,

for the Adoption of A.C.Z. and F.P.Z., Children,

and Concerning A.Z-M.,

Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE WELLING Brown and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 5, 2024

Grob & Eirich, LLC, Timothy J. Eirich, Lakewood, Colorado, for Appellee

The Drexler Law Group, LLC, Matthew B. Drexler, Teresa A. Drexler, M. Addison Freebairn, Colorado Springs, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this stepparent adoption proceeding, A.Z-M. (father) appeals

the juvenile court’s judgment terminating his parent-child legal

relationships with A.C.Z. and F.P.Z. (the children). We affirm.

I. Background

¶2 Father began paying child support for the children though the

Family Support Registry in 2014. A dependency and neglect case

opened in 2016 but closed in 2017 with a judgment allocating

parental responsibilities (APR). The APR granted sole decision-

making responsibility and primary custody to mother and allowed

“no visitation between father and the children until further order of

the court.”

¶3 K.R.N. (stepfather) filed a petition to adopt the children in May

2023. Stepfather argued that father’s parental rights should be

terminated because father abandoned the children for one year or

more and failed, without cause, to pay reasonable support. When

the petition was filed, A.C.Z. was fifteen years old and F.P.Z. was

thirteen years old. Both children consented to the filing of the

petition and their adoption by stepfather.

1 ¶4 After a contested hearing, the juvenile court terminated

father’s parental rights based on both his failure to pay reasonable

support and abandonment.

II. Continuance

¶5 Father first contends that the juvenile court erred by denying

two requests for a continuance. We discern no error.

¶6 A motion for continuance is left to the sound discretion of the

juvenile court, and its ruling won’t be disturbed on appeal absent a

clear abuse of that discretion. In re C.A.O., 192 P.3d 508, 512

(Colo. App. 2008). In ruling on the motion, the court should

balance the need for orderly and expeditious administration of

justice against the facts underlying the motion, while considering

the child’s need for permanency. Id.

¶7 First, father contends that continuing the hearing would have

allowed him to appear in person, but that’s not what he told the

juvenile court. At the beginning of the hearing, father’s counsel

requested a continuance “so that [father] could appear in the future

by Webex.” The court denied the request to continue and

encouraged father’s participation by Webex that day, even though

he failed to file a pretrial motion for a remote appearance. Shortly

2 thereafter, father joined the hearing by Webex, was given

permission to text with his attorney to communicate during the

course of the hearing, and later testified.

¶8 Next, father contends that the juvenile court erred by declining

a second request for a continuance. Father argues that he had

evidence that would have demonstrated his intent to pay child

support but was “not permitted to provide it to the court” because

the court denied his request to return at a later date with the

documentation.

¶9 Father testified that he had money order receipts that would

show that he tried to send funds to the Family Support Registry.

But he wasn’t near the courthouse, couldn’t come in person, and

didn’t have the documentation with him to refer to during his

testimony. Father testified that he didn’t plan to have the

documentation with him because “everything was supposed to show

up in the record from the family registry” which stepfather disclosed

before the hearing. In closing arguments, father’s counsel argued

that “if the court is willing to continue the matter, [father would]

bring whatever documentation he has.”

3 ¶ 10 The juvenile court considered this request but found that it

was unlikely that father made the payments he claimed.

Furthermore, the court found that father was familiar with the

court system, knew about the termination hearing, chose not to

appear in person, and chose not to have documentation with him.

And the court found that any further delay wasn’t in the children’s

best interests.

¶ 11 The court’s ruling reflects a “proper balancing of the reasons

proffered for the continuance, the need for prompt resolution of the

proceeding, and the children’s best interests.” People in Interest of

T.E.M., 124 P.3d 905, 909 (Colo. App. 2005). We therefore perceive

no abuse of discretion in the court’s denial of the motion to

continue.

III. Termination of Father’s Parental Rights

¶ 12 Father next challenges the merits of the juvenile court’s ruling

granting stepfather’s petition to adopt the children. Before a

juvenile court may grant a stepparent’s petition for adoption and

terminate a natural parent’s parental rights, the court must make

two findings: (1) that the stepparent adoption is in the children’s

best interest; and (2) that the children are “available for adoption.”

4 In re I.R.D., 971 P.2d 702, 705 (Colo. App. 1998); see also § 19-5-

203(1)(d)(II), C.R.S. 2024. Both findings must be supported by clear

and convincing evidence. In re Petition of R.H.N., 710 P.2d 482, 488

n.5 (Colo. 1985). Clear and convincing evidence is “evidence that is

highly probable and free from serious or substantial doubt.” L.S.S.

v. S.A.P., 2022 COA 123, ¶ 39 (citation omitted).

¶ 13 On appeal, father challenges the juvenile court’s finding that

the children are available for adoption, but not its best interest

finding. A child may be found available for adoption by a

stepparent when a “birth parent has abandoned the child for a

period of one year or more or . . . has failed without cause to

provide reasonable support for such child for a period of one year or

more.” § 19-5-203(1)(d)(II). Either ground is sufficient, as

“abandonment and failure to provide reasonable support are

separate and independent grounds for declaring a child available for

adoption.” E.R.S., ¶ 61

A. Failure to Provide Reasonable Support

1. Standard of Review and Applicable Law

¶ 14 The appropriate time frame for determining whether a parent

has failed without cause to provide reasonable support is the twelve

5 months before the filing of the adoption petition. In re E.R.S., 2019

COA 40, ¶ 49. If the court determines that a parent hasn’t paid

reasonable support during that twelve-month period, it then looks

beyond that period to determine whether there is a likelihood that

the parent will provide support in the future. Id.

¶ 15 Whether a parent has paid reasonable support in the past or

is likely to provide reasonable support in the future are factual

questions for the juvenile court to determine on a case-by-case

basis, considering the evidence as a whole, including the credibility

of the witnesses. Id. at ¶ 51.

¶ 16 “We review the juvenile court’s findings of evidentiary fact —

the raw, historical data underlying the controversy — for clear error

and accept them if they have record support.” People in Interest of

S.R.N.J-S., 2020 COA 12, ¶ 10. When the evidence conflicts, a

reviewing court may not reweigh the evidence or substitute its

judgment for the juvenile court’s judgment merely because there

might be evidence supporting a different result. See People in

Interest of A.J.L., 243 P.3d 244, 256 (Colo. 2010).

6 2. Failure Without Cause to Provide Reasonable Support

¶ 17 The juvenile court found that father didn’t provide any support

to the children in the year before the filing of the petition. In

reaching this conclusion, the court considered father’s testimony

that he attempted to make some payments to the registry. The

court found there was “no likelihood” that father made any

payments during the relevant time frame — the year prior to the

filing of the petition — and, “if any payments were attempted by

[father], they weren’t attempted until the filing of this petition in

May of 2023.” The court found, “[e]ven taking the evidence in the

light most favorable to [father], there’s nothing in the Family

Support Registry that shows any attempts to make payments

between September 9th of 2020 and July 20, 2023.” The court

found that it was “absolutely clear there [were] no payments made

or attempted to be made according to the records between

September 2020 and, at the earliest, July of 2023.”

¶ 18 The record supports these findings. Mother and stepfather

testified that the last child support payment they received was in

September 2020. Two reports from the Family Support Registry

were entered into evidence; both reflected that the last payment

7 distributed was in September 2020. Father’s testimony, which the

court didn’t find credible, was that he made “maybe six or seven”

payments in the year before the petition was filed. While the

registry’s record suggested that some money was received but not

paid out to mother, all of those entries were after the filing of the

petition.

¶ 19 Moreover, the juvenile court found father’s testimony that he

made or attempted to make payments during the relevant time

period incredible. The court “found [father’s] answers to be

somewhat evasive” and not “focus[ed] on the question being asked.”

¶ 20 To the extent that father now argues that the court erred by

making a credibility determination over Webex, we aren’t

persuaded. It’s for the juvenile court, as the trier of fact, to

determine the sufficiency, probative effect, and weight of the

evidence and to assess witness credibility. People in Interest of

C.A.K., 652 P.2d 603, 613 (Colo. 1982). The court noted that father

“chose not to come” to court in person and because of that choice

the court was “denied the opportunity . . . [and] the ability to

observe him in court.”

8 ¶ 21 Father further contends that his failure to pay wasn’t “without

cause.” But the juvenile court found that although father was

working, it “didn’t hear anything about something beyond [father’s]

control that left him unable to pay reasonable support.” Notably,

father didn’t argue before the juvenile court that he had cause for

his failure to provide reasonable support. See People in Interest of

T.E.R., 2013 COA 73, ¶ 30 (generally, issues not raised in the trial

court will not be considered on appeal).

¶ 22 Father next asserts that his attempts to send payments to the

Family Support Registry “should have given rise to sufficient doubt

to preclude” a finding that he failed to provide reasonable support.

¶ 23 It’s within the juvenile court’s purview to weigh evidence,

including conflicting evidence, and determine witness credibility.

See In re Marriage of Kann, 2017 COA 94, ¶ 36 (noting that “our

supreme court has . . . expressed unbridled confidence in [trial]

courts to weigh conflicting evidence”); see Carrillo v. People, 974

P.2d 478, 486 (Colo. 1999) (recognizing “the trial court’s unique role

and perspective in evaluating the demeanor and body language of

live witnesses” and “discourag[ing] an appellate court from second-

guessing those judgments based on a cold record”).

9 ¶ 24 We therefore conclude that the record supports the juvenile

court’s findings, and we perceive no error in the court’s legal

conclusion that father failed without cause to provide reasonable

support to the children in the twelve months before the filing of the

stepparent adoption petition.

3. Likelihood of Future Support

¶ 25 Father further argues that the juvenile court erred by finding

that he was unlikely to provide reasonable support in the future.

Again, we discern no error.

¶ 26 In determining the likelihood a parent will pay future support,

a juvenile court may consider factors including: frequency,

consistency, and duration of past payments of support; statements

regarding intent; and other evidence such as employment stability

and any change in circumstances. E.R.S., ¶ 50.

¶ 27 The juvenile court found that father was unlikely to provide

future support. In doing so, the court reviewed the history of child

support payments starting in 2014 and found that father’s payment

history was sporadic and inconsistent “with significant gaps in

payments.” The court also found that the irregular amounts of “a

lot of payments” indicated that money was not coming from father

10 but was “perhaps intercepted through some other resource.” The

court found that father owed more than $33,000 in arrearages.

¶ 28 The juvenile court did find that father had attempted some

payments after the petition had been filed. But the court also found

father’s testimony “that he intended or has had the intent to

continue to pay child support” was “just not consistent with the

testimony of [mother] who’s had to resort to the court for

enforcement, nor is it consistent with the payment history from the

family registry account.”

¶ 29 The record supports these findings. The Family Support

Registry disbursement record reveals irregular and inconsistent

payments over a span of almost ten years. The disbursement

record doesn’t have any entries for the year before the petition was

filed or the eighteen months before that. The Family Support

Registry’s Account Summary lists a past due balance of $33,616.86

— a figure that father didn’t contest. Mother’s uncontested

testimony was that she “routinely” asked the domestic relations

court to enforce payment of father’s support obligation. The Family

Support Registry record lists amounts received between July 2023

and November 2023 — after the petition was filed — that were, for

11 reasons not explored by the parties, not paid to mother.

Regardless, these amounts aren’t regular or consistent.

¶ 30 Given this record, we perceive no error in the court’s findings

or legal conclusion that father was unlikely to provide support for

the children in the future.

B. Abandonment

¶ 31 Finally, father contends that the juvenile court erred by

finding he abandoned the children. Because we discern no error in

the court’s findings that father failed without cause to provide

support to the children, we need not address this argument. See

E.R.S., ¶ 61.

IV. Disposition

¶ 32 The judgment is affirmed.

JUDGE BROWN and JUDGE HAWTHORNE concur.