(1) If one
parent relinquishes or proposes to relinquish or consents to the adoption of a child,
the agency or person having custody of the child shall file a petition in the juvenile
court to terminate the parent-child legal relationship of the other parent, unless the
other parent's relationship to the child has been previously terminated or
determined by a court not to exist. This section applies whether or not the other
parent is a presumed parent pursuant to section 19-4-105 (1).
(2) In an effort to identify the other birth parent, the court shall cause inquiry
to be made of the known parent and any other appropriate person. The inquiry shall
include the following: Whether the mother was married at the time of conception of
the child or at any time thereafter; whether the mother was cohabiting with a man
at the time of conception or birth of the child; whether the mother has received
support payments or promises of support with respect to the child or in connection
with her pregnancy; or whether any man has formally or informally acknowledged
or declared his possible paternity of the child.
(3) If, after the inquiry, the other birth parent is identified to the satisfaction
of the court or if more than one person is identified as a possible parent, each shall
be given notice of the proceeding in accordance with subsection (5) of this section,
including notice of the person's right to waive his or her right to appear and contest.
If any of them waives his or her right to appear and contest or fails to appear or, if
appearing, cannot personally assume legal and physical custody, taking into
account the child's age, needs, and individual circumstances, such person's parent-child legal relationship with reference to the child shall be terminated. If the other
birth parent or a person representing himself or herself to be the other birth parent
appears and demonstrates the desire and ability to personally assume legal and
physical custody of the child, taking into account the child's age, needs, and
individual circumstances, the court shall proceed to determine parentage under
article 4 of this title. If the court determines that the person is the other birth
parent, the court shall set a hearing, as expeditiously as possible, to determine
whether the interests of the child or of the community require that the other
parent's rights be terminated or, if they are not terminated, to determine whether:
(a) To award custody to the other birth parent or to the physical custodian of
the child; or
(b) To direct that a dependency and neglect action be filed pursuant to part
5 of article 3 of this title with appropriate orders for the protection of the child
during the pendency of the action.
(3.1) The court may order the termination of the other birth parent's parental
rights upon a finding that termination is in the best interests of the child and that
there is clear and convincing evidence of one or more of the following:
(a) That the parent is unfit. In considering the fitness of the child's parent,
the court shall consider the following:
(I) An emotional illness, a behavioral or mental health disorder, or an
intellectual and developmental disability of the parent of such duration or nature as
to render the parent unlikely, within a reasonable period of time, to care for the
ongoing physical, mental, and emotional needs of the child;
(II) A single incident of life-threatening or serious bodily injury or
disfigurement of the child or other children;
(III) Conduct toward the child or other children of a physically or sexually
abusive nature;
(IV) A history of violent behavior that demonstrates that the individual is
unfit to maintain a parent-child relationship with the minor, which may include an
incidence of sexual assault, as defined in section 19-1-103, that resulted in the
conception of the child;
(V) Excessive use of intoxicating liquors or use of controlled substances, as
defined in section 18-18-102 (5), C.R.S., that affects the ability of the individual to
care and provide for the child;
(VI) Neglect of the child or other children;
(VII) Injury or death of a sibling or other children due to proven abuse or
neglect by such parent;
(VIII) Whether, on two or more occasions, a child in the physical custody of
the parent has been adjudicated dependent or neglected in a proceeding under
article 3 of this title or comparable proceedings under the laws of another state or
the federal government;
(IX) Whether, on one or more prior occasions, a parent has had his or her
parent-child legal relationship terminated pursuant to this section or article 3 of
this title or comparable proceedings under the laws of another state or the federal
government.
(b) That the parent has not established a substantial, positive relationship
with the child. The court shall consider, but shall not be limited to, the following in
determining whether the parent has established a substantial, positive relationship
with the child:
(I) Whether the parent has maintained regular and meaningful contact with
the child;
(II) Whether the parent has openly lived with the child for at least one
hundred eighty days within the year preceding the filing of the relinquishment
petition or, if the child is less than one year old at the time of the filing of the
relinquishment petition, for at least one-half of the child's life; and
(III) Whether the parent has openly held out the child as his or her own child.
(c) That the parent has not promptly taken substantial parental
responsibility for the child. In making this determination the court shall consider,
but shall not be limited to, the following:
(I) Whether the parent who is the subject of the petition is served with notice
and fails to file an answer within thirty-five days after service of the notice and
petition to terminate the parent-child legal relationship, or within twenty-one days
if the petition for termination was filed pursuant to section 19-5-103.5, or fails to file
a paternity action, pursuant to article 4 of this title, within thirty-five days after the
birth of the child or within thirty-five days after receiving notice that he is the father
or likely father of the child, or, for those petitions filed pursuant to section 19-5-103.5, within twenty-one days after the birth of the child or after receiving notice
that he is the father or likely father of the child;
(II) Whether the parent has failed to pay regular and reasonable support for
the care of the child, according to that parent's means; and
(III) Whether the birth father has failed to substantially assist the mother in
the payment of the medical, hospital, and nursing expenses, according to that
parent's means, incurred in connection with the pregnancy and birth of the child.
(3.2) In considering the termination of a parent's parental rights, the court
shall give paramount consideration to the physical, mental, and emotional
conditions and needs of the child. Such consideration shall specifically include
whether the child has formed a strong, positive bond with the child's physical
custodian, the time period that the bond has existed, and whether removal of the
child from the physical custodian would likely cause significant psychological harm
to the child.
(3.3) If the child is under one year of age at the time that the relinquishment
petition is filed, there is an affirmative defense to any allegations under
subparagraph (VI) of paragraph (a), paragraph (b), and paragraph (c) of subsection
(3.1) of this section that the parent's neglect, failure to establish a substantial
relationship, or failure to take substantial responsibility for the child was due to
impediments created by the other parent or person having custody. A parent shall
demonstrate such impediments created by the other parent or person having
custody by a preponderance of the evidence.
(3.4) (a) If the court determines not to terminate the nonrelinquishing
parent's parental rights nor to direct that a dependency and neglect action be filed,
the court shall proceed to determine custody of the child, parenting time with the
child, duty of support, and recovery of child support debt.
(b) The court shall determine custody based upon the best interests of the
child giving paramount consideration to the physical, mental, and emotional
conditions and needs of the child.
(c) If the child or youth has been out of the birth parents' care for more than
one year, irrespective of incidental communications from the relinquishing or
nonrelinquishing parent, there is a rebuttable presumption that the best interests of
the child or youth will be served by granting custody to the person in whose care
the child or youth has been for that period. Such presumption may be overcome by
a preponderance of the evidence.
(3.5) Notwithstanding subsection (3.4) of this section, the court shall grant
custody of the child to the nonrelinquishing birth parent if the court finds that the
birth parent has the ability and the desire to assume personally legal and physical
custody of the child promptly and that all of the following exists:
(a) The nonrelinquishing parent has established a substantial, positive
relationship with the child;
(b) The nonrelinquishing parent has promptly taken substantial parental
responsibility for the child; and
(c) The award of custody to the nonrelinquishing parent is in the best
interests of the child.
(3.6) Except for a parent whose parental rights have been relinquished
pursuant to section 19-5-104, a person who has or did have the child in his or her
care has the right to intervene as an interested party and to present evidence to the
court regarding the nonrelinquishing parent's contact, communication, and
relationship with the child. If custody is at issue pursuant to subsection (3.4) of this
section, such person also has the right to present evidence regarding the best
interests of the child and his or her own suitability as a placement for the child.
(4) If, after the inquiry, the court is unable to identify the other birth parent
or any other possible birth parent and no person has appeared claiming to be the
other birth parent and claiming custodial rights, the court shall enter an order
terminating the unknown birth parent's parent-child legal relationship with
reference to the child. Subject to the disposition of an appeal upon the expiration of
thirty-five days after an order terminating a parent-child legal relationship is issued
under subsection (3) of this section or this subsection (4), the order cannot be
questioned by any person, in any manner, or upon any ground, except fraud upon
the court or fraud upon a party. Upon an allegation of fraud, the termination order
cannot be questioned by any person, in any manner or upon any ground, after the
expiration of ninety-one days from the date that the order was entered.
(5) Notice of the proceeding shall be given to every person identified as the
other birth parent or a possible birth parent in the manner appropriate under the
Colorado rules of juvenile procedure for the service of process or in any manner the
court directs. The notice shall inform the parent or alleged parent whose rights are
to be determined that failure to file an answer or to appear within thirty-five days
after service and, in the case of an alleged father, failure to file a claim of paternity
under article 4 of this title within thirty-five days after service, if a claim has not
previously been filed, may likely result in termination of the parent's or the alleged
parent's parental rights to the minor. The notice also shall inform the parent or
alleged parent whose rights are to be determined that such person has the right to
waive his or her right to appear and contest and that failure to appear and contest
may likely result in termination of the parent's or the alleged parent's parental
rights to the minor. Proof of giving the notice shall be filed with the court before the
petition is heard. If no person has been identified as the birth parent, the court shall
order that notice be provided to all possible parents by publication or public posting
of the notice at times and in places and manner the court deems appropriate.
(6) In those cases in which a parent proposes to relinquish his or her parent-child legal relationship with a child who is under one year of age, pursuant to the
expedited procedures set forth in section 19-5-103.5, the licensed child placement
agency or the county department of human or social services assisting the
relinquishing parent shall proceed with filing the petition for termination of the
other birth parent's or possible birth parents' parent-child legal relationship and
notify the other birth parent or possible birth parents as provided in section 19-5-103.5 (2).