Peo In Interest of OP

• Court: Colorado Court of Appeals
• Decided: July 3, 2024
• Docket: 23CA495
• Status: Unknown

Opinion

23CA0495 Peo In Interest of OP 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0495

El Paso County District Court No. 21JV106

Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of O.P., a Child,

and Concerning K.P.,

Appellant,

and

Z.L.,

Appellee.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE JOHNSON

Navarro and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Kenneth Hodges, County Attorney, Robert W. Kern Jr., Chief Deputy County

Attorney, Colorado Springs, Colorado, for Appellee The People of the State of

Colorado

Josi McCauley, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for

Appellant K.P.

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellee Z.L.

1

¶ 1 In this dependency and neglect case, the district court was

asked to determine the paternity of O.P. (the child) as it relates to

K.P., the child’s biological father, and Z.L., the petitioner of the

paternity action. Another man, J.H., did not assert a paternity

claim, but he was awarded protective supervised custody of the

child following the paternity adjudication. K.P. appeals the district

court’s judgment that determined Z.L. to be the child’s legal father

under the Colorado Uniform Parentage Act (UPA). We affirm.

I. Background

¶ 2 The child was born in Arkansas in September 2015. Although

S.L. (mother) was married to but separated from J.H at the time of

the child’s birth, mother was in a relationship with K.P. It is

undisputed that K.P. is the child’s biological father, as biological

test results indicate a 99.99% DNA match between him and the

child. And it is also undisputed that K.P.’s name is on the birth

certificate.

1

1

Because the birth certificate is not in the record, the parties do

not dispute that K.P.’s name is on the document, and the district

court found that his name is on the document, we presume that

this fact is supported by the record. See People v. Duran, 2015 COA

141, ¶ 21 (“Without an adequate record on appeal, we must

presume that the court’s order was correct.”).

2

¶ 3 K.P., the child, and mother remained in Arkansas for

approximately one year. The three then moved to California, where

they lived for approximately ten months. Mother and K.P. then split

up and each moved separately to Colorado.

¶ 4 In Colorado, mother began dating Z.L. in June 2017. In

December 2017, Z.L. moved in with mother and started to take care

of the child. Z.L. and mother married in December 2019 and

remained together until September 2022, when they separated and

Z.L. moved out.

2

¶ 5 Mother and the child came to the attention of the El Paso

County Department of Human Services (the Department) in

November 2020 because of mother’s drug and alcohol abuse and

her violent mistreatment of her children when intoxicated.

3

At first,

the Department instituted a safety plan that required Z.L. to

supervise mother with the child (and O.P.’s siblings). But the

Department was dissatisfied with Z.L.’s compliance with the safety

2

The record does not indicate when mother and J.H. were divorced.

3

In addition to O.P., mother has three children with J.H., all of

whom are older than O.P. Although the other children were part of

the dependency and neglect action, only O.P.’s paternity is at issue

in this appeal.

3

plan as he continued to leave the children alone with mother when

she drank.

¶ 6 As a result, the Department filed a petition in dependency or

neglect in February 2021. The petition named Z.L. as a special

respondent and K.P. as the biological father. The child was

adjudicated dependent and neglected as to mother in March 2021.

The Department did not serve K.P. with the petition until September

2021.

¶ 7 Once K.P. was served, he wanted the child to be returned to

his care. K.P. requested reintegration therapy so that he could

rebuild his relationship with the child.

¶ 8 In April 2022, Z.L. filed a motion in the dependency and

neglect action requesting a determination that he was the child’s

legal father. Z.L. argued that he was the child’s psychological

father, as the child referred to him as “Dad,” he held the child out

as his own, he had been in the child’s life for about five years, he

was the only father the child had known, and it would be

detrimental to the child to sever the relationship since “there is a

clear bond and attachment to [Z.L.].” At the time Z.L. filed his

paternity claim, the child was placed with Z.L.’s parents.

4

¶ 9 K.P. contested Z.L.’s paternity claim, arguing that mother

alienated him from child, the child and K.P. had bonded during

reintegration therapy, K.P. is the biological father, and K.P. cared

for the child “as an involved Father from her birth through

approximately her second year.” K.P. also argued that he has

cleared his active warrants and had stable employment and

housing.

¶ 10 A one-day paternity hearing was held in December 2022 with

the parties submitting written closing arguments. The Department

did not take a position on the paternity claims. The district court

found that both K.P. and Z.L. had established paternity

presumptions and that neither had rebutted the other man’s

presumption. Then, applying the UPA factors, the court found the

best interests of the child weighed in favor of adjudicating Z.L. the

child’s legal father.

4

¶ 11 K.P. appeals, contending that the district court erred in its

paternity adjudication because (1) it failed to consider the

significance of his name listed on the child’s birth certificate, and he

4

J.H. did not assert a paternity claim over the child although he

maintained custody of the child’s three half-siblings.

5

should have also had the paternity presumption in section 19-4-

105(1)(d), C.R.S. 2023; and (2) it abused its discretion by failing to

adjudicate K.P. as the child’s legal father based on the weightier

considerations of policy and logic.

II. Standard of Review and Applicable Law

¶ 12 “The UPA governs the court’s jurisdiction to establish a

parent-child relationship and mandates specific procedures that

must be followed when a party seeks to establish paternity.” In re

Support of E.K., 2013 COA 99, ¶ 9; see also §§ 19-4-101 to -130,

C.R.S. 2023. As a result, the UPA can be invoked as part of a

dependency and neglect proceeding. People in Interest of K.L.W.,

2021 COA 56, ¶ 14; see also People in Interest of J.G.C., 2013 COA

171, ¶ 10.

¶ 13 A man is presumed to be a child’s natural father if, while the

child is under the age of majority, he receives the child into his

home and openly holds out the child as his natural child. § 19-4-

6

105(1)(d); see People in Interest of O.S-H., 2021 COA 130, ¶ 52. A

biological father is also a presumed parent. See § 19-4-105(1)(f).

5

¶ 14 But neither presumption is conclusive, including the

presumption in favor of a biological parent. N.A.H. v. S.L.S., 9 P.3d

354, 361 (Colo. 2000) (“[S]ection 19-4-105 does not indicate that

the presumption of legitimacy automatically outweighs the

presumption of biology, or that the converse is true.”). Rather, any

presumption can be rebutted by clear and convincing evidence.

§ 19-4-105(2)(a); J.G.C., ¶ 21.

¶ 15 When two or more conflicting presumptions of paternity arise,

and neither has been rebutted by clear and convincing evidence,

the court must then determine by a preponderance of the evidence

that the presumption founded on the weightier considerations of

5

Section 19-4-105(1)(f) states that a person is a presumed natural

parent if

[t]he genetic tests or other tests of inherited

characteristics have been administered

pursuant to section 13-25-126, and the results

show that the alleged genetic parent is not

excluded as the probable genetic parent and

that the probability of the person’s genetic

parentage is ninety-seven percent or higher.

This subsection (3)(f) [sic] does not apply to a

donor as defined in section 19-1-103.

7

policy and logic controls. § 19-4-105(2)(a); J.G.C., ¶ 22. In

determining which presumption controls, the court considers, in

relevant part,

(I) The length of time between the proceeding

to determine parentage and the time that the

presumed parent was placed on notice that the

presumed parent might not be the genetic

parent . . . ;

(II) The length of time during which the

presumed parent has assumed the role of the

child’s parent;

(III) The facts surrounding the presumed

parent’s discovery of the possibility that the

presumed parent was not a genetic

parent . . . ;

(IV) The nature of the existing parent-child

relationship;

(V) The child’s age;

(VI) The child’s relationship to any presumed

parent or parents;

(VII) The extent to which the passage of time

reduces the chances of establishing another

person’s parentage and a child support

obligation in favor of the child; and

(VIII) Any other factors that may affect the

equities arising from the disruption of the

parent-child relationship between the child

and the presumed parent or parents or the

chance of other harm to the child.

8

§ 19-4-105(2)(a)(I)-(VIII).

¶ 16 This inquiry is fact intensive. N.A.H., 9 P.3d at 362. The

court’s primary concern in “making a parentage determination is

the child’s best interests and not the rights of, or the fairness to,

each of the presumptive parents.” K.L.W., ¶ 50; see In re Parental

Responsibilities Concerning A.R.L., 2013 COA 170, ¶ 18 (“[A]t the

heart of any parentage decision is the child’s best interests.”).

¶ 17 We review de novo whether the court considered and applied

the correct legal standard in determining paternity. K.L.W., ¶ 42.

But we review the court’s paternity determination for clear error,

People in Interest of M.B., 2020 COA 13, ¶ 39, which occurs if its

factual findings are unsupported by the record, People in Interest of

J.C.S., 169 P.3d 240, 243 (Colo. App. 2007) (“If the record supports

a factual finding, we are bound by it under the clear error test.”).

And we review for abuse of discretion the court’s fact-intensive

process of weighing the statutory factors and the child’s best

interest to determine which presumption should control. See W.C.

in Interest of A.M.K., 907 P.2d 719, 722-23 (Colo. App. 1995); see

also N.A.H., 9 P.3d at 362-66. An abuse of discretion occurs when

9

the court’s decision is manifestly arbitrary, unreasonable, or unfair

or a misapplication of the law. See W.C., 907 P.2d at 723.

III. Preservation

¶ 18 Z.L. contends that K.P. did not preserve his arguments raised

on appeal concerning the court’s consideration of certain

presumptions to which K.P. now argues he was entitled. We agree.

A. Name on Birth Certificate

¶ 19 K.P. contends that he preserved his argument that he was

entitled to a conclusive legal determination of parentage because

his name is on the child’s birth certificate and he is the biological

father. He relies on the presumption in 19-4-105(1)(f), which

governs the results of a genetic test that proved he was the

biological parent. He points to the paternity results he filed in June

2022 that established him as the child’s biological father.

¶ 20 He also relies on section 19-4-105(1)(e), C.R.S. 2021, a

provision that was in effect at the time Z.L. filed his motion seeking

adjudication as the child’s legal father. But the General Assembly

repealed that provision by the time the district court held the

hearing and entered the paternity judgment. When in effect,

section 19-4-105(1)(e) authorized a paternity presumption if a man

10

acknowledged the paternity of a child in writing and the writing was

filed with a court or the registrar of vital statistics. That provision

stated,

He acknowledges his paternity of the child in a

writing filed with the court or registrar of vital

statistics, which shall promptly inform the

mother of the filing of the acknowledgment,

and she does not dispute the acknowledgment

within a reasonable time after being informed

thereof, in a writing filed with the court or

registrar of vital statistics, if such

acknowledgment has not previously become a

legal finding pursuant to paragraph (b) of

subsection (2) of this section. If another man

is presumed under this section to be the

child’s father, acknowledgment may be effected

only with the written consent of the presumed

father or after the presumption has been

rebutted.[

6

]

§ 19-4-105(1)(e), C.R.S. 2021.

¶ 21 K.P.’s argument continues that, although it is unclear whether

mother asserted a paternity affidavit on his behalf, as required by

section 19-4-105(2)(b), his name on the birth certificate and being

6

This provision was removed from the UPA by the General

Assembly, effective August 10, 2022. See Ch. 210, sec. 4, § 19-4-

105(1)(e), 2022 Colo. Sess. Laws. 1390. Under the current version

of the UPA, some but not all the elements of former section 19-4-

105(1)(e) appear in section 19-4-105(2)(a.5), although the

requirements significantly differ.

11

the biological father entitled him to two presumptions, the

significance of which had not been considered by the court.

¶ 22 To support that he preserved these two presumptions, he

points us to the December 6, 2022 hearing where he stated, “[The

child] was already over 5 at that time [Z.L. filed his paternity

determination motion] and it is my understanding that [K.P.’s]

name did appear on the birth certificate of the child. In addition,

there was a DNA – a paternity test done by DNA.” And, although he

did not refer to his closing argument to support preservation, we

note that he also made a similar statement there that he was

entitled to two paternity presumptions.

¶ 23 We do not dispute that K.P. asserted these two presumptions

below. But, as we mention above, section 19-4-105(1)(e) was not in

effect by December 2022, and K.P. cannot rely on a presumption

that was repealed by the General Assembly.

¶ 24 And even assuming K.P. could rely on that presumption

because Z.L.’s paternity claim was filed before the provision was

repealed, K.P.’s arguments were not preserved. At the December 6,

2022 hearing, K.P. failed to make the connection that subsections

(1)(e) and (1)(f) entitled him to a conclusory parentage presumption

12

over Z.L., or that because he had two presumptions, he was entitled

to greater consideration under the UPA. He also did not make any

argument that the voluntary acknowledgment of his parentage on

the birth certificate entitled him to a de facto determination that he

was the child’s legal parent. Simply referring to statutory

provisions does not preserve an issue for appellate review if the

litigant fails to adequately put the district court on notice as to how

it should consider, interpret, or weigh those provisions. Therefore,

we deem this argument unpreserved. See Wolven v. Velez, 2024

COA 8, ¶ 8 (“To preserve an issue for appeal, an appellant, during

trial, must raise it in a manner specific enough that it ‘draws the

[trial] court’s attention to the asserted error.’” (quoting People v.

McFee, 2016 COA 97, ¶ 31)); Curry v. Zag Built LLC, 2018 COA 66,

¶ 61 (“To preserve a contention, a party does not have to cite a

specific statute, but it must at least raise the issue to the trial

court, so that the court has an opportunity to rule on it.”) (citations

omitted).

¶ 25 And any claim on appeal that he was entitled to a conclusive

determination of paternity is contrary to the position he took in his

closing argument, where he said that the case was one of competing

13

presumptions because no one presumption had been rebutted by

clear and convincing evidence, and therefore, the court needed to

decide the UPA claim on the “weightier considerations of policy and

logic.” Therefore, we will not address this argument on the merits.

See Laleh v. Johnson, 2016 COA 4, ¶ 8, aff’d on other grounds 2017

CO 93.

B. Section 19-4-105(1)(d)

¶ 26 K.P. also contends that “the district court failed to consider

that he was entitled to a presumption of paternity pursuant to

[section 19-4-105(1)(d)] in that for the first two years of [the child’s]

life she lived with K.P. and Mother as a family and K.P. openly held

her out as his natural child.” While that may be true, K.P.

specifically argued to the district court that he was entitled to the

presumptions in subsections (1)(f) and (1)(e) of section 19-4-105,

and that Z.L. was entitled to the presumption in subsection (1)(d).

So, not only is K.P.’s appellate argument unpreserved, but his

position below invited the court’s alleged error in failing to afford

him the presumption of section 19-4-105(1)(d). Thus, we will not

review his new claim. See People v. Zapata, 779 P.2d 1307, 1309

(Colo. 1989) (“[A] party may not complain on appeal of an error that

14

he has invited or injected into the case; he must abide by the

consequences of his acts.”).

7

IV. The Paternity Adjudication

¶ 27 K.P. contends the district court erred by determining that the

weightier considerations of policy and logic favored adjudicating

Z.L. as the child’s legal father. We disagree.

A. District Court Order

¶ 28 Although the district court did not explicitly identify which

presumption belonged to Z.L. and which belonged to K.P., it

determined that the men had competing presumptions. As noted

above, K.P. asserted the paternity presumption in section 19-4-

105(1)(f) that he was the child’s biological parent and the

presumption in section 19-4-105(1)(e) that his name appeared on

the child’s birth certificate. Z.L. asserted the presumption in

section 19-4-105(1)(d) that he had taken the child into his home

and had held the child out as his own. Although the court did not

explicitly find whether any presumptions had been rebutted by

7

And, though we need not decide it, we question whether the

biological father can even assert a paternity presumption under

section 19-4-105(1)(d).

15

clear and convincing evidence, it implicitly concluded that none had

been rebutted when it turned to the second part of the analysis in

the UPA.

¶ 29 For the reasons we stated above, K.P. had not preserved his

arguments that he had essentially rebutted Z.L.’s presumption by

being both the child’s biological parent and having his name on the

child’s birth certificate. And, as also noted above, K.P. took the

position in his closing argument, quoting section 19-4-105(2)(a),

that “no presumptions were rebutted, and the court must determine

the competing presumptions based on the ‘weightier considerations

of policy and logic.’”

¶ 30 The district court then resolved the competing presumptions

considering the factors in section 19-4-105(2)(a)(I)-(VIII) and what

would be in the child’s best interests, finding Z.L. to be the child’s

legal father. We conclude that the district court applied the correct

legal standard in determining paternity.

B. Weightier Considerations of Policy and Logic and Best

Interests Analysis

¶ 31 Turning to the merits determination, we conclude that the

district court did not abuse its discretion in weighing the factors

16

found in section 19-4-105(2)(a)(I)-(VIII), as there is evidence

supporting the court’s decision in the record. We also conclude

that the court did not abuse its discretion by determining that it

was in the best interests of the child for Z.L. to be adjudicated the

child’s legal father. Therefore, we discern no basis to disturb the

district court’s order.

¶ 32 Considering the length of time K.P. and Z.L. had assumed a

parental role under section 19-4-105(2)(a)(II), the district court

recognized that K.P. and mother “were an intact couple when child

was born and for the first [eighteen] months of her life,” and that

following K.P.’s disengagement, Z.L. had an immediate relationship

with the child “without a break from July of 2017 to now.” Indeed,

K.P. did not interact with the child from 2017 until after the

commencement of the dependency and neglect action giving rise to

the subject paternity determination, and the court surmised that

K.P. would not have reentered the child’s life but for the court

action. K.P. admitted that he had been absent from the child’s life

for “three to four years.”

¶ 33 The district court considered the nature of the existing

relationships between child and both Z.L. and K.P. under section

17

19-4-105(2)(a)(IV) and (VI). It determined that K.P. admitted he had

not prioritized the child for many years because he had been busy

with familial health issues and his criminal matters. K.P. stated,

“[B]efore I can get my daughter, I have to save my life,” when

referring to his criminal matters.

¶ 34 K.P. further claimed that he had been unable to maintain his

relationship with the child because of mother’s alienation. The

court found that, although there “has been alienation,” K.P.’s

disengagement was more a result of his failure to act than mother’s

behavior. For example, the court noted that “there was a domestic

violence incident [between K.P. and mother] and a protection order

was granted” for mother’s safety.

¶ 35 And mother asserted that she did not alienate K.P. from the

child, but that K.P. neglected his parental responsibilities once her

relationship with Z.L. was made “Facebook official” in 2017. The

record supports that, even though there was a protection order in

place, K.P. had been allowed to communicate with mother and the

child through the “Talking Parents app,” but he never did.

¶ 36 The district court considered the child’s age under section 19-

4-105(2)(a)(V). It concluded that K.P. was present in the child’s life

18

through the first few years, but that Z.L. “has been present for a

much longer duration of the child’s life.” Indeed, since June 2017,

Z.L. had held himself out as the child’s father and became a de

facto parent in K.P.’s absence.

¶ 37 And the record supports that even after Z.L. and mother had

separated, Z.L. continued to have contact with the child, including

midweek dinners and extended stays with the child every Sunday.

Z.L. testified that he supports the child “financially, emotionally,

pretty much psychologically. If she needs something, even if she

wants something, I feel not obligated but I’m driven to try to get it

for her.” Mother agreed with Z.L. that he is the child’s psychological

father.

¶ 38 The court noted that J.H. had the strongest case for paternity,

ostensibly because J.H. was the father of the child’s three half-

siblings. But as mentioned above, J.H. did not assert a paternity

claim. The court found instead that between Z.L. and K.P., the

child’s relationship was stronger with Z.L. The record indicates that

the child had been apprehensive to engage in reintegration therapy

with K.P. because “she only heard bad things about him” and her

maternal family has ill feelings toward him. The child, however,

19

later reported a positive relationship with K.P. after both engaged in

reintegration therapy.

¶ 39 Even so, the child referred to Z.L. as “Dad,” Z.L. held the child

out as his own, and Z.L. had acted as a parent by supporting but

also disciplining the child. The court found “there is a clear bond

and attachment” between the child and Z.L. When asked how he

knew the child loved him, Z.L. stated, “Aside from us telling each

other, ‘I love you,’ I just – I see it when I go to pick her up for visits

and stuff.” He pointed to specific instances, saying, “I ring the

doorbell and she suddenly appears behind me because she came

out of the garage and she’s all smiles and jumping up and down,

‘Where are we going? What are we doing?’ It’s cool to feel wanted

like that so I think it’s based in love.”

¶ 40 And despite the fact that Z.L. and mother were no longer a

couple, the court found that Z.L. continued to provide financial

support to mother and the child and Z.L. saw the child at least two

times a week. Indeed, when probed about his understanding that

he would potentially be required to pay child support if adjudicated

the legal father, Z.L. stated, “[T]hat doesn’t matter,” and “[t]hat’s my

daughter. I support her now anyways. I will continue to support

20

her. Even if I’m not required to pay child support or however this

goes, if [the child] ever needed anything from me, she could call on

me, so.” Although K.P. had asserted he had obtained a successful

job, there was no evidence that he had financially supported the

child for the previous four years. Specifically, mother testified that

K.P. provided financial support for the child when the two were a

couple, but once she began to date Z.L., K.P. stopped helping

financially and mother did not bother seeking child support.

¶ 41 Weighing all the factors together, the court considered the

child’s best interest and determined that, although it is important

for the child to have a relationship with her biological father, the

child’s relationship was stronger with Z.L. And the court credited

the court evaluator’s testimony that “[found] it highly detrimental to

sever the only parent child relationship she has.”

¶ 42 Nonetheless, K.P. rehashes the arguments that the court erred

in its analysis because he is the biological father and his name

appears on the birth certificate. But biology is not a dispositive

factor under the UPA, and it is measured against the other

presumptions listed in section 19-4-105(1) if another man has

asserted and has proved that he is also entitled to a paternity

21

presumption. See N.A.H., 9 P.3d at 361. By listing a myriad of

potential paternity presumptions, the General Assembly has

evinced its intent that no factor is dispositive but must be decided

under the UPA framework and guidelines, which is precisely what

the court did here. See People v. Coleman, 2018 COA 67, ¶ 41.

¶ 43 And many of K.P.’s arguments relate to the court’s application

of the statutory factors, which would require us to reweigh the

evidence, something we cannot do. See Owners Ins. Co. v. Dakota

Station II Condo. Ass’n, 2021 COA 114, ¶ 50 (it is within the sole

province of the fact finder to determine the sufficiency and weight of

the evidence, and we may not reweigh evidence or substitute our

own judgment for that of the fact finder). Nor is it proper for us to

make credibility determinations as to witness testimony. See

Chapman v. Willey, 134 P.3d 568, 569 (Colo. App. 2006) (noting

that a court’s credibility determination will only be disturbed if

clearly erroneous and not supported by the record).

¶ 44 For example, although the court found that both mother and

K.P. were not credible on their contrary allegations as to why they

separated, the court gave the edge to mother because a protection

order had been issued against K.P. given his domestically violent

22

actions toward mother. Based on K.P.’s many years’ absence from

the child’s life and his lack of financial support for the child, and

Z.L.’s continued presence and financial support, even though he

and mother are now separated, the court did not abuse its

discretion by concluding that it would be “detrimental” to sever the

relationship the child has with Z.L., and thus, it was in the child’s

best interest for Z.L. to be adjudicated the child’s legal father.

¶ 45 On this record, we discern no basis for reversal of the court’s

judgment.

V. Conclusion

¶ 46 The judgment is affirmed.

JUDGE NAVARRO and JUDGE PAWAR concur.