The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 21, 2019
2019COA40
No. 17CA0956, Adoption of I.E.H. — Family Law — Children’s Code — Relinquishment and Adoption — Stepparent Adoption
A division of the court of appeals considers whether an
appellate court can review an order that terminates parental rights
in anticipation of a stepparent adoption when the juvenile court has
not finalized the adoption. The division concludes that the order is
final and reviewable. After considering mother’s substantive
arguments, the division affirms the juvenile court’s judgment
terminating mother’s parental rights. COLORADO COURT OF APPEALS 2019COA40
Court of Appeals No. 17CA0956 Grand County District Court No. 16JA1 Honorable Mary C. Hoak, Judge
In re the Petition of E.R.S.,
Petitioner-Appellee,
for the Adoption of I.E.H., a Child,
and Concerning J.H.,
Respondent-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by CHIEF JUDGE BERNARD Terry and J. Jones, JJ., concur
Announced March 21, 2019
Maxine LaBarre-Krostue, Grand Lake, Colorado, for Petitioner-Appellee
Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado, for Respondent-Appellant ¶1 This is a stepparent adoption proceeding. J.H., mother, and
J.D.S., father, had a child, I.E.H., in 2008. Mother appeals the
juvenile court’s judgment terminating her legal relationship with the
child. But, before we get to mother’s substantive contentions, we
must decide a preliminary question — Can we review an order that
terminates parental rights in anticipation of a stepparent adoption
when the court has not finalized the adoption? We answer this
question “yes,” concluding that the order is final and that we can
review it on appeal.
¶2 We next turn to mother’s substantive contentions. We first
conclude that the juvenile court in this case had jurisdiction to
resolve the petition for stepparent adoption even though the child
was subject to an existing parenting time order in a paternity
proceeding.
¶3 Second, we decline to address a series of issues that mother
raises on appeal but that she did not preserve in the juvenile court.
¶4 Third, we deny mother’s assertion that her counsel was
ineffective.
¶5 Fourth, we reject mother’s contention that the juvenile court’s
findings were insufficient.
1 ¶6 We therefore affirm the juvenile court’s judgment terminating
mother’s legal relationship with the child.
I. Background
¶7 Mother was wounded while serving in the military. She suffers
from post-traumatic stress disorder.
¶8 She was the child’s primary caregiver when he was born.
When the child was about seventeen months old, father initiated a
paternity proceeding. After father proved that he was the child’s
father, the juvenile court adopted a parenting plan that gave father
three nights of parenting time each week.
¶9 In May 2013, mother agreed that the child should live full-time
with father so that she could have the opportunity to rebuild her
life. Five months later, mother and father formalized this
agreement by filing a written stipulation in the paternity case. It
stated that “[m]other shall have parenting time upon agreement of
the parties once she is able to regain her stability with housing and
employment.” But it also contained two provisions that are central
to our analysis.
¶ 10 One provision encouraged mother to maintain her relationship
with the child and to spend time with him as (1) her schedule
2 allowed; and (2) as mother and father would agree. The second
provision obligated mother to pay $569.38 each month in child
support.
¶ 11 The juvenile court adopted the stipulation. But, by 2014,
mother had not paid any child support, so the court activated an
income assignment to collect it. There was no further action in the
paternity case.
¶ 12 In August 2016, the child’s stepmother, E.R.S., filed a petition
to adopt the child and to terminate mother’s parental rights. The
juvenile court opened an adoption case, which was separate from
the paternity case. Mother filed an objection to the petition in late
November.
¶ 13 The juvenile court held a hearing in the adoption case over
three days from January to April 2017. At the end of the hearing,
the court decided that mother had abandoned the child and that
she had not demonstrated sufficient cause to excuse her breach of
her obligation to pay child support. The court then determined that
it was in the child’s best interests to terminate mother’s parental
rights and to allow stepmother to adopt him.
3 ¶ 14 But the court did not issue an adoption decree. It instead
continued the case to hold a final hearing at which it would issue
the decree. It also said that, if mother appealed the order
terminating her rights and allowing stepmother to adopt the
child — which we shall refer to simply as the “termination
order” — it would wait to hold the final hearing until after the
appeal was resolved.
¶ 15 Mother then filed this appeal in the adoption case. Because it
looked like the termination order would not be final until the
juvenile court issued the adoption decree, we stayed the appeal to
allow stepmother to ask the juvenile court to issue one. But mother
objected to the stay. We therefore recertified the appeal, and we
ordered mother and stepmother to file simultaneous briefs
addressing the question whether the termination order was final.
II. Finality of Termination Order
¶ 16 We must decide, as an initial matter, whether the termination
order is final even though the juvenile court did not issue an
adoption decree. We conclude that the order was final and,
therefore, it is appealable.
4 ¶ 17 Section 19-1-109, C.R.S. 2018, governs appeals from
proceedings under the Colorado Children’s Code, including
stepparent adoptions. Referencing section 13-4-102(1), C.R.S.
2018, section 19-1-109(1) states that a party may appeal “any
order, decree, or judgment.” Section 13-4-102(1) adds that the
court of appeals has initial jurisdiction over appeals from final
judgments.
¶ 18 Applying this framework, a division of this court concluded in
People in Interest of S.M.O., 931 P.2d 572, 573 (Colo. App. 1996),
that the statutory scheme for stepparent adoption did not allow for
an appeal of the interlocutory determination that a child was
available for adoption, even when the determination was
accompanied by an order that terminated parental rights. The
division reasoned that a stepparent adoption proceeding, like all
other adoption proceedings, becomes final when the court enters a
final adoption decree. This is so because a parent retains rights
and obligations concerning the child until the decree severs them.
Id.
¶ 19 In 1997, however, the legislature, in the wake of S.M.O., added
subsection (2)(b) to section 19-1-109. Ch. 254, sec. 7,
5 § 19-1-109(2)(b), 1997 Colo. Sess. Laws 1433. Subsection (2)(b)
states that an order terminating or declining to terminate the legal
relationship between a parent and a child is a final and appealable
order. Id.
¶ 20 Our supreme court recently considered the interplay between
section 19-1-109(1) and (2) in the context of a dependency and
neglect proceeding. See People in Interest of R.S. v. G.S., 2018 CO
31, ¶¶ 14-29. The court explained that subsection (1) authorizes
the appeal of any final order in a dependency and neglect
proceeding. Id. at ¶ 19. It added that subsection (2)(b) does not
limit the types of orders that can be appealed, but, rather, it
authorizes appeals from certain additional orders beyond those
authorized by subsection (1). Id. In other words, subsection (1)
codifies a general rule of finality, and subsection (2)(b) provides an
exception to that general rule by authorizing the appeal of specified
termination orders that would not otherwise be final. Id. at ¶ 20.
¶ 21 As a result of the change in the law, we conclude that the
juvenile court’s order terminating mother’s parental rights in this
stepparent adoption proceeding was final for appellate purposes
even though the court had not issued the adoption decree.
6 III. Jurisdiction
¶ 22 Mother contends that the juvenile court did not have subject
matter jurisdiction to terminate her parental rights because the
court order in the paternity case allowed her to resume parental
responsibilities when she was ready. We disagree. Instead, we
conclude, for the following reasons, that the juvenile court had
jurisdiction to terminate her parental rights to the child.
¶ 23 Whether a juvenile court has subject matter jurisdiction is a
question of law that we review de novo. See People in Interest of
M.S., 2017 COA 60, ¶ 14.
¶ 24 Subject matter jurisdiction concerns a court’s authority to
decide a legal question. In re Support of E.K., 2013 COA 99, ¶ 8.
Adoption proceedings are governed by the Children’s Code. The
Children’s Code expressly states that, when a district court has
issued an order awarding custody or an order allocating parental
responsibilities in a dissolution of marriage action or in another
proceeding, and the district court assumes continuing jurisdiction
over the case, then a juvenile court has jurisdiction in a case
involving the same child if she comes within the jurisdiction of the
juvenile court. § 19-1-104(5), C.R.S. 2018.
7 ¶ 25 A juvenile court has exclusive original jurisdiction in cases
involving adoptions and cases involving the termination of parental
rights. § 19-1-104(1)(d), (g); see also In re Adoption of K.L.L., 160
P.3d 383, 385 (Colo. App. 2007). In other words, a juvenile court
has jurisdiction over an adoption case even though a district court
may have a parenting time issue before it in a pending dissolution
of marriage case. See D.P.H. v. J.L.B., 260 P.3d 320, 327 (Colo.
2011).
¶ 26 In this case, the juvenile court — as opposed to the district
court — had continuing jurisdiction over the child via the paternity
proceeding. Nonetheless, the juvenile court’s ongoing jurisdiction
over the child through the parenting time order in the paternity
case did not affect its original jurisdiction under section
19-1-104(1)(g) to hear the adoption case.
¶ 27 Mother relies on In re D.I.S., 249 P.3d 775, 781-82 (Colo.
2011), for the proposition that the juvenile court lacked jurisdiction
to consider the stepparent adoption. She adds that, under D.I.S.,
the juvenile court should have enforced the stipulated parenting
time agreement.
8 ¶ 28 True, our supreme court concluded in D.I.S. that a fit parent’s
decision to seek termination of a guardianship and to regain the
care, custody, and control of his or her child is presumed to be in
the child’s best interests. Id. at 779. It reasoned that a parent’s
decision to place a child under the care of a third party, for the
purposes of furthering the child’s best interests, did not result in
the relinquishment of the parent’s liberty interest in parenting the
child. Id. at 781. But D.I.S. did not address, and therefore has no
bearing on, the independent issue of whether a juvenile court has
subject matter jurisdiction to consider an adoption petition when
the child is subject to an existing parenting time order in another
case.
¶ 29 To the extent that mother also asserts that the juvenile court
did not have jurisdiction because it did not cite D.I.S. in its
termination ruling, we reject her argument. Cf. Early v. Packer, 537
U.S. 3, 8 (2002)(A state court does not have to cite, or even be
aware of, United States Supreme Court cases to avoid making a
decision that is contrary to clearly established Supreme Court
precedent; what is necessary is that the state court’s reasoning and
result do not contradict the established precedent). Indeed, mother
9 has not cited any authority, and we do not know of any, that
requires a juvenile court to cite a particular case when terminating
parental rights in a stepparent adoption proceeding.
IV. Constitutionality of Stepparent Adoption
¶ 30 Mother contends that the stepparent adoption scheme is
unconstitutional on its face and as applied to her because it violates
her rights to liberty, to due process of law, and to equal protection
of the law. Specifically, she asserts that the stepparent adoption
statutes (1) ignore the constitutional presumption that the decisions
of a fit parent are in the child’s best interests; (2) disregard the
constitutional rights and best interests of children; (3) allow a court
to terminate a parent’s parental rights if she has not paid child
support without providing the parent with notice and an
opportunity to redress the lack of payments; and (4) do not provide
parents with the same process and safeguards that are offered in
dependency and neglect proceedings. She also asks us to require
juvenile courts to apply the beyond-a-reasonable-doubt burden of
proof, which is normally employed in criminal cases, to stepparent
adoption proceedings to better protect parents and to impress
juvenile courts with the importance of such decisions.
10 ¶ 31 We will not address these contentions because mother did not
raise them in the juvenile court. See People in Interest of C.E., 923
P.2d 383, 385 (Colo. App. 1996). The fact that mother raises facial
and as-applied challenges to some of the stepparent adoption
statutes does not lead to a different result. See In re Catholic
Charities & Cmty. Servs., 942 P.2d 1380, 1384 (Colo. App.
1997)(electing not to address a parent’s contention that a
relinquishment statute was unconstitutionally vague when he did
not raise it in the juvenile court), superseded by statute as stated in
In re R.A.M., 2014 COA 68.
¶ 32 The primary reason why we will not address these issues is
because this stepparent adoption proceeding is a civil case. It is
governed by sections 19-5-203(1)(d)(II) and 19-5-210(6), C.R.S.
2018, which are part of the Children’s Code. C.R.J.P. 1 states that
proceedings brought in the juvenile court under the Children’s Code
are “civil in nature and where not governed by these rules or the
procedures set forth in [the Children’s Code] shall be conducted
according to the Colorado Rules of Civil Procedure.” Accord People
in Interest of K.J.B., 2014 COA 168, ¶ 9 (“[T]he Colorado Rules of
Civil Procedure [generally] apply to those juvenile matters that are
11 not governed by the Colorado Rules of Juvenile Procedure or the
Children’s Code.”); see also People in Interest of Z.P., 167 P.3d 211,
214 (Colo. App. 2007)(“Dependency and neglect proceedings are
civil in nature . . . .”); People in Interest of C.G., 885 P.2d 355, 357
(Colo. App. 1994)(“An action for termination of the parent-child
legal relationship is a civil action . . . .”); cf. A.S. v. People, 2013 CO
63, ¶ 14 (“[W]e recognize juvenile justice proceedings as civil, rather
than criminal, in nature.”). But see People in Interest of C.Z., 262
P.3d 895, 901 (Colo. App. 2010)(“Analogizing the role of appointed
counsel in dependency and neglect cases to that of appointed
counsel in criminal cases makes sense because, unlike most civil
cases, dependency and neglect cases affect fundamental liberty
interests.”). This case is therefore a civil case.
¶ 33 Our supreme court has “often noted that issues not presented
to or raised in the trial court [in civil cases] will not, as a general
matter, be considered on appeal.” Roberts v. Am. Family Mut. Ins.
Co., 144 P.3d 546, 549 (Colo. 2006); accord People in Interest of
K.L-P., 148 P.3d 402, 403 (Colo. App. 2006)(applying the same rule
in a dependency and neglect case); People in Interest of V.W., 958
P.2d 1132, 1134 (Colo. App. 1998)(same).
12 ¶ 34 This general rule is different from the one addressed by Crim.
P. 52(b), which governs criminal cases: “Plain errors or defects
affecting substantial rights may be noticed although they were not
brought to the attention of the court.”
¶ 35 But “[t]here is no civil rule analogue” to Crim. P. 52(b). Wycoff
v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1269
(Colo. App. 2010). We therefore apply plain error only in the “‘rare’
civil case, involving ‘unusual or special’ circumstances — and even
then, only ‘when necessary to avert unequivocal and manifest
injustice.’” Id. (quoting Harris Grp., Inc. v. Robinson, 209 P.3d 1188,
1195 (Colo. App. 2009), which discussed Blueflame Gas, Inc. v. Van
Hoose, 679 P.2d 579, 586-87 (Colo. 1984), and Robinson v. City &
Cty. of Denver, 30 P.3d 677, 684 (Colo. App. 2000)).
¶ 36 Mother urges us to do more in this case than apply the plain
error doctrine. She instead wants us to push past plain error to
employ a concept uniquely rooted in criminal cases known as
“structural error.” “Structural error applies to ‘structural defects’ in
a criminal trial that affect ‘the entire conduct of the trial from
beginning to end’ such that the ‘criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or innocence.’”
13 Black v. Sw. Water Conservation Dist., 74 P.3d 462, 473 (Colo. App.
2003)(quoting People v. Price, 969 P.2d 766, 768-69 (Colo. App.
1998)). Examples of structural error include “the absence of
defense counsel, a biased adjudicator, the unlawful exclusion of
members of the defendant’s race from the grand jury, and
[violations of] the right to a public trial.” Price, 969 P.2d at 768-69
(citations omitted). Structural errors “are not amenable to either a
harmless error or a plain error analysis because such errors affect
‘the framework within which the trial proceeds,’ and are not errors
in the trial process itself.” Griego v. People, 19 P.3d 1, 7 (Colo.
2001) (quoting Bogdanov v. People, 941 P.2d 247, 252-53 (Colo.
1997)). As a result, “[t]hey require automatic reversal without
individualized analysis of how the error impairs the reliability of the
judgment of conviction.” People v. Flockhart, 2013 CO 42, ¶ 17.
But the United States Supreme Court has recognized that
structural error occurs “[o]nly in rare cases.” Washington v.
Recuenco, 548 U.S. 212, 218-19 (2006).
¶ 37 We conclude that structural error does not apply to civil cases
such as this one because “neither the United States Supreme Court
nor the Colorado Supreme Court has extended the structural error
14 analysis to civil cases.” People in Interest of R.D., 2012 COA 35,
¶ 31 (termination of parental rights in the context of a dependency
and neglect case); see also Laura A. Newman, LLC v. Roberts, 2016
CO 9, ¶ 24 (“No concept of ‘structural error’ . . . has been recognized
in the civil arena.”).
¶ 38 We instead proceed to apply the familiar principles native to
civil cases: Is this one of those rare cases, involving unusual or
special circumstances, in which we must apply the plain error
doctrine to prevent an unequivocal and manifest injustice? See
Wycoff, 251 P.3d at 1269. For the following reasons, we answer
this question “no.”
¶ 39 First, there were no unusual or special circumstances that
made this case rare. We recognize the seriousness of the core issue
in this case: mother had a “fundamental liberty interest . . . in the
care, custody, and management” of the child. People in Interest of
A.M.D., 648 P.2d 625, 632 (Colo. 1982)(quoting Santosky v. Kramer,
455 U.S. 745, 753-54 (1982)). But, with such seriousness in mind,
we nonetheless recognize that the juvenile court followed
established procedures while applying the adoption statute, section
19-5-203(1)(d)(II), which had been in effect for some time.
15 ¶ 40 The facts leading to termination of parental rights in the
context of adoption cases obviously differ from case to case. But
nothing in this case to suggests that it is categorically different from
other adoption cases involving the termination of parental rights.
¶ 41 Second, there was no unequivocal and manifest injustice in
this case. Mother was entitled to fundamentally fair procedures,
id., and the procedures in this case were fundamentally fair. She
had an attorney; she received timely notice that her parental rights
could be terminated; the juvenile court held a hearing at which she
had an opportunity to present evidence, at which her attorney
cross-examined the witnesses against her, and after which the
court’s termination order was based on the clear-and-convincing
standard of proof; there is no indication that the juvenile court
abandoned its role as an impartial decisionmaker; and the juvenile
court was required to find that termination of mother’s parental
rights was in the child’s best interests. See A.M. v. A.C., 2013 CO
16, ¶¶ 28-29; D.P.H., 260 P.3d at 323; E.R.S. v. O.D.A., 779 P.2d
844, 847-48 (Colo. 1989); In re R.H.N., 710 P.2d 482, 486 (Colo.
1985).
16 V. Ineffective Assistance of Counsel
¶ 42 Mother alleges that her trial counsel was ineffective because
she did not raise the various issues discussed in Part IV. She did
not make these allegations in the juvenile court. Rather, she first
made them in this appeal in two similar sentences in the opening
brief.
¶ 43 The first sentence is in a section entitled “Statement of the
Issues Presented for Review”: “Whether mother’s pro bono counsel,
who had not been trained to represent parents in termination
proceedings, was ineffective because, among other things, she failed
to cite the controlling legal authorities and request that the court
afford the mother and the child the required constitutionally
required protections during the termination proceedings.”
¶ 44 The second sentence appears in a section of the argument
entitled “Ineffective Assistance of Counsel”: “[M]other’s untrained
pro bono counsel’s failure to cite to the applicable law and raise the
issues raised in this appeal is ineffective assistance of counsel per
se, forced on . . . mother by the [juvenile] court’s failure to provide
her and her child trained appointed counsel.”
17 ¶ 45 These allegations lack significant detail and specificity. What
training did trial counsel lack? Why would such training lead
counsel to raise the issues that mother has now raised on appeal?
And, importantly, mother does not describe on appeal how trial
counsel’s performance was “outside of the wide range of
professionally competent assistance” or how she was “prejudiced by
counsel’s errors.” People in Interest of C.H., 166 P.3d 288, 291
(Colo. App. 2007).
¶ 46 “If [a] parent’s allegations lack sufficient specificity, the
ineffective assistance claim may be denied without further inquiry.”
Id.; accord People in Interest of S.L., 2017 COA 160, ¶ 60. We
conclude that mother’s allegation that trial counsel was ineffective
lacks sufficient specificity. We therefore deny it without further
inquiry.
VI. Failure to Provide Reasonable Support
¶ 47 Mother contends that the juvenile court did not make
sufficient findings to support its decision that she had not provided
reasonable support for the child. She asserts that the court did not
give her due credit for her efforts to pay monthly support within her
means, that it did not identify what a reasonable amount of support
18 would have been, and that it did not explain how she lacked cause
to pay that amount. She also submits that the record does not
support the court’s determination that she was unlikely to pay
support in the future, adding that there is no evidence that her lack
of support payments evinced an intent to abandon the child.
¶ 48 Although we are not persuaded by any of these contentions,
we recognize that mother was wounded serving her country and has
encountered significant difficulty since. But the child’s best
interests in this case are paramount. “The conflict between the best
interests of the child and the natural parent’s right to parenthood,
which can arise in a stepparent adoption [case] . . ., is resolved in
Colorado law by placing primary importance on the best interests of
the child.” E.R.S. v. O.D.A., 779 P.2d 844, 850 (Colo. 1989).
A. Applicable Law
¶ 49 The appropriate timeframe for determining whether a parent
has failed, without cause, to provide reasonable support to a child
is the twelve months preceding the filing of the adoption petition.
R.H.N., 710 P.2d at 487. Once the court decides that the parent
has not paid reasonable support during this twelve-month period, it
19 then looks beyond that period to determine whether there is any
likelihood that the parent will provide child support. Id.
¶ 50 In determining the likelihood that the parent will pay future
support, the court should consider the frequency, consistency, and
duration of the parent’s past payments; the parent’s statements
about his or her intent to pay in the future; and other evidence,
including stability in employment, change of employment, or
changes in other relevant circumstances. In re I.R.D., 971 P.2d 702,
706 (Colo. App. 1998).
¶ 51 The questions whether a parent has not paid reasonable
support and whether she is likely to pay support in the future are
factual ones that the court must decide on a case-by-case basis,
considering all the evidence as a whole, including the credibility of
the witnesses. In re F.J.H., 628 P.2d 159, 160 (Colo. App. 1981);
see E.R.S., 779 P.2d at 849.
B. Sufficiency of the Court’s Findings
¶ 52 A juvenile court’s findings are adequate when they conform to
the statutory criteria for termination and when they sufficiently
address each requirement for termination of parental rights. See
People in Interest of T.L.B., 148 P.3d 450, 457 (Colo. App. 2006). We
20 will not set aside a termination order if the court’s findings conform
to the statutory criteria and we can determine the basis for the
court’s order. Id. We conclude, for the reasons we explain next,
that (1) we can glean the basis for the juvenile court’s order from
the record; and (2) the court’s findings conformed to the statutory
criteria.
¶ 53 Contrary to mother’s assertion, the juvenile court did not
disregard or dismiss mother’s efforts to make support payments
within her means. Indeed, the court acknowledged that mother had
been unable to make the full court-ordered child support payment
each month. The court also recognized that mother had made three
child support payments during the year preceding the filing of the
adoption petition. The three payments totaled $125.
¶ 54 Nonetheless, the court decided that mother had failed, without
cause, to provide reasonable support for the child. As mother
points out, the court did not identify what specific amount would
have been reasonable. But it noted that mother had been receiving
a varying monthly benefit from the Bureau of Veterans Affairs and
that she did not have housing expenses. The court determined that
the $125 that she had paid was “minimal” and unreasonable.
21 C. Likelihood of Future Support
¶ 55 Next, we address mother’s contention that the record does not
support the juvenile court’s determination that mother was unlikely
to pay support in the future. We disagree for the following reasons.
¶ 56 As the trial court recognized, in addition to the $125, mother
made three more monthly child support payments totaling $175
after the filing of the adoption proceeding. However, the court
decided that mother was unlikely to pay future support, given that
she had not done so even though she had the opportunity and the
ability.
¶ 57 The record supports this determination. Mother explained
that, from 2013 until April 2016, she had received just under $600
per month in veterans’ benefits, although the agency had withheld
the benefits at times because of a debt. Starting in April, she began
to receive over $1300 per month in benefits. She also worked
occasional jobs.
¶ 58 During part of the year preceding the filing of the adoption
proceeding, mother had stayed with a friend rent-free. And, from
January through April 2016, mother participated in an inpatient
veterans’ program. She then lived in a place that provided care for
22 veterans until she was able to obtain an apartment through a
veterans’ housing program.
¶ 59 Despite these benefits, mother paid just $125 through the
child support registry in the year before stepmother filed her
petition to adopt the child. A primary consideration in determining
whether a parent will pay child support on a regular and consistent
basis in the future is the parent’s past conduct regarding child
support payments. E.R.S., 779 P.2d at 849. And a parent’s
noncompliance with a court order to make support payments over a
period of a year or more is strong evidence that the parent is
unlikely to pay child support in the future. Id.
D. Abandonment
¶ 60 We next turn to mother’s assertion that there is no evidence in
the record showing that her failure to pay child support proved that
she intended to abandon the child. We reject this assertion
because (1) we think that it conflates two independent grounds for
termination of parental rights; and (2) the juvenile court did not
conflate these grounds.
¶ 61 It is true that the juvenile court found that mother had
intended to abandon the child. But abandonment and failure to
23 provide reasonable support are separate and independent grounds
for declaring a child available for adoption. See Karkanen v.
Valdesuso, 33 Colo. App. 47, 50, 515 P.2d 128, 130 (1973). And
there is no indication that the court considered mother’s failure to
provide reasonable support as evidence of abandonment.
¶ 62 Rather, the juvenile court relied on evidence in the record
showing that mother had not seen or otherwise contacted the child
since 2013. The court pointed to the fact that mother did not ask
the court for help in contacting the child, even though she also
claimed that father had prevented her from doing so. The court
referred to circumstantial evidence indicating that mother had
become frightened to reinsert herself into the child’s life. And
mother does not challenge the juvenile court’s determination that
this evidence established that she had intended to abandon the
child.
¶ 63 The judgment terminating mother’s parental rights is affirmed.
JUDGE TERRY and JUDGE J. JONES concur.