in Interest of M.B

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
January 23, 2020

2020COA13

No. 19CA0760, People in Interest of M.B. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship — Uniform Parentage Act — Pretrial
Proceedings

In this termination of parental rights case, a division of the

court of appeals affirms the paternity determination in favor of the

biological father as to the child. In doing so, the division addresses

whether, in a dependency and neglect proceeding, paternity must

be resolved “as soon as practicable” — the standard under the

Uniform Parentage Act, sections 19-4-101 to -130, C.R.S. 2019.

The division also declines to review unpreserved due process and

equal protection contentions under the plain error doctrine, but

does so for a miscarriage of justice.
COLORADO COURT OF APPEALS 2020COA13

Court of Appeals No. 19CA0760
Arapahoe County District Court No. 18JV43
Honorable Natalie T. Chase, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.B., a Child,

and Concerning B.B.,

Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE WEBB
Bernard, C.J., and Casebolt*, J., concur

Announced January 23, 2020

Ron Carl, County Attorney, Linda Arnold, Assistant County Attorney, Aurora,
Colorado, for Appellee

Brittany Radic, Guardian Ad Litem

Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, 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. 2019.
¶1 In this termination of parental rights case as to M.B. (the

child), the juvenile court’s paternity determination raises a novel

question about whether, in a dependency and neglect proceeding,

paternity must be resolved “as soon as practicable” — the standard

under the Uniform Parentage Act, sections 19-4-101 to -130, C.R.S.

2019 (UPA). B.B., whom the juvenile court found to be a

presumptive father of the child, appeals the court’s order that J.G.

(biological father) — another presumptive father — is the child’s

legal father. According to B.B., the court erred in two ways. First,

by not resolving the child’s paternity until more than one year into

the proceeding, the court violated the UPA, resulting in a denial of

due process. Second, by adjudicating the child as to biological

father but not as to B.B., and then providing only biological father

with a dispositional hearing and a treatment plan, the juvenile

court subjected B.B. to disparate treatment that denied him equal

protection.

¶2 The Arapahoe County Department of Human Services (the

Department) disputes preservation of the due process and equal

protection contentions. We agree that these contentions were

unpreserved. Further, we decline B.B.’s invitation to extend the

1
plain error doctrine into dependency and neglect proceedings. And

so, we refuse to address these contentions because B.B.’s due

process argument does not implicate a miscarriage of justice, and

because the record is inadequate to address equal protection as

applied. Finally, turning to the merits, we reject B.B.’s statutory

untimeliness argument and affirm the paternity determination in

favor of biological father.

I. Background

¶3 In January 2018, the Department filed a petition in

dependency and neglect concerning the child and two other

children, both of whom were B.B.’s biological children. Before filing

the petition, the Department knew that although B.B. was not the

child’s biological father, he had signed the child’s birth certificate.

The petition identified B.B. as the child’s “presumed father” and

named John Doe as the “alleged father.” A month later, the

Department amended the petition to name biological father as the

alleged father.

¶4 When the petition was filed, all of the children, their mother,

and B.B. lived together. After the juvenile court ordered mother to

leave the family home because of domestic violence, the children

2
remained with B.B. Then in February 2018, the children were

removed and later placed in foster care. Biological father was never

involved with the child, nor did he seek to become involved after

being named in this action.

¶5 During a February 2018 hearing, B.B.’s counsel acknowledged

receipt of a treatment plan for him, but the court deferred action on

it. At the adjudicatory and dispositional hearing on March 2, 2018,

only the other two children were adjudicated as to B.B. He agreed

to a treatment plan that was then presented to and approved by the

court. The signature page component of the family services plan

confirms that B.B. received a copy. But because the treatment plan

is not in the record, we must infer its contents from other

documents.

¶6 The family services plan presented at the March 29, 2019,

hearing identifies three objectives for B.B.: parenting time,

caseworker contact, and a drug/alcohol evaluation. The start date

for the first and second objectives was January 31, 2018. The start

date for the third objective was March 2, 2018. The last date is

corroborated by discussion of substance abuse at the adjudicatory

and dispositional hearing on March 2. Importantly, the purpose of

3
the parenting time objective is “[t]o assist [the child] in developing

and maintaining a positive and appropriate relationship with

[B.B.].”

¶7 In June 2018, genetic testing established that biological father

was the child’s biological father. The following month, the court

adjudicated the child as to biological father, although it had not yet

determined that he was the child’s legal father. 1 Then the

Department proposed a treatment plan for him. Later, the

Department moved to terminate biological father’s parental rights,

but it did not address those of B.B. at that time.

¶8 During a November 2018 hearing, B.B. asked the court, “Am I

able to get involved with that myself so I can take custody of [the

child]?” At a January 2019 hearing, the Department’s counsel told

the court that biological father “does not wish to be involved [with

the child].” Then B.B. said that he was “asserting status as a

psychological or any parentage toward [the child].”

¶9 Up to this point in the proceeding, neither the Department nor

B.B. had requested a paternity hearing. Nor had the court

1 We express no opinion on the propriety of this action.

4
determined paternity. When the Department requested a paternity

determination, the court set a hearing for February 2, 2019. After

the hearing was continued, the court discussed with the parties

doing the paternity hearing and the termination hearing on the

same day, with the termination hearing to follow the paternity

determination.

¶ 10 After the court scheduled the hearings together, the

Department filed an amended motion to terminate parental rights in

the child, adding B.B. The combined hearings occurred on March

29, 2019. The Department told the court that biological father

would confess the termination motion. Neither mother nor B.B.

appeared. The court refused their counsels’ request to participate

by telephone.

¶ 11 The court took up paternity first. It heard testimony from the

caseworker that B.B. had not seen the child since his removal from

the family home; B.B. had not pursued visitation; neither B.B. nor

biological father had “acted as a parent” to the child; both B.B.’s

and biological father’s treatment plans had been unsuccessful; and

naming biological father as the child’s father would be in the child’s

5
best interests because if the child inquired, biological father could

provide information about the child’s biological roots.

¶ 12 The court treated paternity as a contest between two

presumed fathers, found that biological father was the child’s legal

father, and excused counsel to B.B. from the hearing. The court

explained that knowing who his biological parents were for medical

purposes and family history would be in the child’s best interests.

It pointed out that at the start of the case, B.B. had told the

Department that he did not want to pursue a relationship with the

child; since the child was removed, he had not provided support for

the child; he had not seen the child for over a year; and despite his

November inquiry concerning a relationship with the child, he had

not done anything to seek visitation.

II. Preservation

¶ 13 B.B. was represented by counsel throughout the dependency

and neglect proceedings. His counsel never raised the due process

or equal protection issues that B.B. now argues on appeal.

¶ 14 An action to terminate the parent-child legal relationship is a

civil action. See People in Interest of C.G., 885 P.2d 355, 357 (Colo.

App. 1994). And so, like other civil actions, dependency and neglect

6
proceedings are subject to the limitation that except where

jurisdiction is implicated, generally appellate courts review only

issues presented to and ruled on by the lower court. See, e.g.,

People in Interest of T.E.R., 2013 COA 73, ¶ 26 (“[T]o the extent that

[mother] now argues an evidentiary hearing was required before the

juvenile court could rule, she has waived this argument.”); People in

Interest of A.L.B., 994 P.2d 476, 480 (Colo. App. 1999) (“[T]hat

contention was not argued to the trial court at the conclusion of the

evidentiary hearing. Hence, we decline to address it for the first

time on appeal.”); People in Interest of V.W., 958 P.2d 1132, 1134

(Colo. App. 1998) (“[F]ather contends that the petition in

dependency or neglect was insufficient because it did not allege

abandonment as a potential ground for termination. Because the

issue was not raised in the trial court, we decline to address it on

appeal.”); People in Interest of T.S., 781 P.2d 130, 132 (Colo. App.

1989) (“Because mother failed to object in the trial court on the

grounds now asserted, she is deemed to have waived any objection

and cannot raise it on appeal.”).

¶ 15 B.B. does not challenge the juvenile court’s jurisdiction to

determine paternity in a dependency and neglect proceeding. Nor

7
could he. See People in Interest of J.G.C., 2013 COA 171, ¶ 10

(“[W]e conclude that a paternity action may be joined with a

dependency and neglect proceeding.”).

¶ 16 Instead, B.B.’s reply brief responds to the Department’s

preservation challenge concerning due process that because, as a

presumed father, he had a statutory right to a paternity

determination, and his mere failure to request a paternity hearing

cannot be deemed a waiver of his right to a prompt paternity

determination. The reply brief does not explain his failure to have

preserved the equal protection argument.

¶ 17 Even accepting B.B.’s position on waiver, two questions

remain unanswered. First, why would disregard of a statutory

timeliness requirement allow B.B. to raise a previously

unarticulated due process claim? And, second, why should B.B. be

allowed to assert an as-applied equal protection violation for the

first time on appeal?

A. Review of Unpreserved Errors

¶ 18 B.B. requests plain error review of both his due process and

equal protection claims. But plain error derives from Crim. P. 52(b),

which governs criminal cases: “Plain errors or defects affecting

8
substantial rights may be noticed although they were not brought

to the attention of the court.” 2

¶ 19 By contrast, “[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). So, appellate courts 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)).

¶ 20 In Colorado, manifest injustice has never been applied to

address an unpreserved issue in a dependency and neglect

proceeding. However, such issues have been reviewed to prevent a

miscarriage of justice. In re R.G.B., 98 P.3d 958, 959 (Colo. App.

2004) (“Where an error of the trial court is considered fundamental

or involves a miscarriage of justice, we may consider the issue for

the first time on appeal.”); People in Interest of A.E., 914 P.2d 534,

2Under this rule, appellate courts apply a three-part plain error
analysis. See, e.g., Deleon v. People, 2019 CO 85, ¶ 38 (“Plain error
occurs if there is (1) an error, (2) that is obvious, and (3) that so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”).

9
539 (Colo. App. 1996) (“This case presents one of those limited

situations in which an error by the trial court, not otherwise

properly preserved for appeal, should be characterized as

fundamental or one causing a miscarriage of justice . . . .”); People

in Interest of T.A.F. v. B.F., 624 P.2d 349, 353 (Colo. App. 1980)

(citing C.A.R. 1(d)). But these cases do not mention plain error. 3

Nor do they cite Crim. P. 52(b).4

¶ 21 Of course, “we are not bound to follow decisions of other

divisions of this court.” Roque v. Allstate Ins. Co., 2012 COA 10,

¶ 20. Still, given the constitutional nature of parental rights, we

will recognize a miscarriage of justice exception for review of

unpreserved errors. See, e.g., People in Interest of C.G., 2015 COA

3 In People in Interest of M.B. v. J.B., 188 Colo. 370, 376, 535 P.2d
192, 196 (1975), the supreme court said, without analysis, “[w]here
the object of the amended petition was to terminate parental rights,
it was plain error to proceed to the dispositional hearing in the
absence of counsel for the children.”
4 The lack of reference to Crim. P. 52(b) is unsurprising because

following that path to discern a miscarriage of justice would first
require deciding if review is a matter of grace or right. See People v.
Butcher, 2018 COA 54M, ¶ 26 (“Following Olano, we conclude that
relief under Crim. P. 52(b) is a matter of discretion, not of right.”)
(cert. granted Apr. 22, 2019). If review is a matter of right, the
reviewing court would then have to consider obviousness and
resolve whether undermining fundamental fairness is a different
standard than miscarriage of justice.

10
106, ¶ 44 (“Moreover, the issue of what efforts due diligence

requires before a parent may be served by publication under section

19-3-503(8)(b) affects parental rights of constitutional magnitude.”).

¶ 22 The parties do not cite, nor have we found, a Colorado case

defining “miscarriage of justice.” And we have not found an

out-of-state case doing so in the context of terminating parental

rights.

¶ 23 Criminal cases in other jurisdictions have defined this phrase

narrowly. See, e.g., Calderon v. Thompson, 523 U.S. 538, 559

(1998) (“‘[T]he miscarriage of justice exception is concerned with

actual as compared to legal innocence.’ We have often emphasized

‘the narrow scope’ of the exception.” (quoting Sawyer v. Whitley,

505 U.S. 333, 339, 340 (1992))); Trenkler v. United States, 536 F.3d

85, 99 (1st Cir. 2008) (“The Supreme Court has defined the term

‘miscarriage of justice’ as encompassing only those ‘extraordinary

instances when a constitutional violation probably has caused the

conviction of one innocent of the crime.’” (quoting McCleskey v.

Zant, 499 U.S. 467, 494 (1991))); Jeremias v. State, 412 P.3d 43, 49

(Nev. 2018) (miscarriage of justice “defined as a ‘grossly unfair’

outcome”).

11
¶ 24 The comparatively fewer civil cases applying this test also take

a narrow view. See, e.g., Huffman v. Interstate Brands Corp., 17

Cal. Rptr. 3d 397, 407 (Ct. App. 2d Dist. 2004) (“In civil cases, a

miscarriage of justice should be declared only when the reviewing

court, after an examination of the entire cause, including the

evidence, is of the opinion that it is reasonably probable that a

result more favorable to the appealing party would have been

reached in the absence of the error.”); Risko v. Thompson Muller

Auto. Grp., Inc., 20 A.3d 1123, 1133 (N.J. 2011) (A “miscarriage of

justice” has been described as a “pervading sense of ‘wrongness’

needed to justify [an] appellate or trial judge undoing of a jury

verdict . . . [which] can arise . . . from manifest lack of inherently

credible evidence to support the finding, obvious overlooking or

undervaluation of crucial evidence, [or] a clearly unjust result . . . .”

(quoting Lindenmuth v. Holden, 685 A.2d 1351, 1354 (N.J. Super.

Ct. App. Div. 1996))); see also Black’s Law Dictionary 1195 (11th

ed. 2019) (miscarriage of justice means “[a] grossly unfair outcome

in a judicial proceeding”).

¶ 25 But because B.B.’s due process argument would not get over

even a much lower bar, we need not decide whether the bar is so

12
high in a dependency and neglect case. And the equal protection

argument suffers from a fatally inadequate record, independent of

lack of preservation.

B. Due Process

¶ 26 Even if we accept everything that B.B. says about

nonwaiveability of his statutory right to a prompt paternity hearing

and the necessity to resolve paternity before parental rights can be

terminated, he fails to explain how mere delay in determining

paternity deprived him of due process. Cf. People in Interest of J.W.

v. C.O., 2017 CO 105, ¶ 35 (“[T]he trial court’s failure to enter a

written adjudication order confirming the children’s status prior to

terminating the parent-child legal relationship did not impair the

fundamental fairness of the proceedings or deprive Mother of due

process.”). After all, the juvenile court held a hearing on B.B.’s

status as a presumed father, just not as quickly as he now wishes it

had. And other than timeliness, B.B. does not identify any UPA

procedure that he was denied.

¶ 27 Instead, B.B. points out that he did not receive a treatment

plan, assistance from the Department, an adjudication, or a

dispositional hearing. But even assuming that he was entitled to

13
these statutory procedures, he cites no authority supporting his

characterization of the failure to receive a treatment plan or

assistance from the Department as a due process issue. See

§ 19-3-507(1)(b), C.R.S. 2019 (services); § 19-3-508(1)(e)(I), C.R.S.

2019 (treatment plan). Nor does he cite any authority that entitles

a presumed father to either a treatment plan or departmental

assistance, much less to an adjudicatory or a dispositional hearing.

See § 19-3-505(2), C.R.S. 2019 (adjudicatory hearing);

§ 19-3-507(1)(b) (dispositional hearing).

¶ 28 In any event, statutorily created rights are not constitutional

rights and are not necessarily fundamental rights. See, e.g., People

v. Owen, 122 P.3d 1006, 1009 (Colo. App. 2005) (“A violation of a

statutory right to speedy trial does not create a fundamental,

constitutional bar to the court’s power to enter a conviction and

sentence.”); People v. Martinez, 83 P.3d 1174, 1181 (Colo. App.

2003) (“[T]he right of allocution is a statutory right, not a

constitutional one . . . .”).

¶ 29 True, in dependency and neglect proceedings, some statutory

rights are fundamental. For example, “the statutory right to

counsel in a termination of parental rights proceeding” has been

14
held to ensure “that respondent parents receive fundamentally fair

procedures.” People in Interest of A.R., 2018 COA 176, ¶ 10 (cert.

granted Mar. 4, 2019). But along the continuum from

constitutional to fundamental to mere statutory rights, B.B.’s

argument that the court should have resolved paternity more

quickly does not elevate this statutory right to a fundamental or

constitutional right. See Owen, 122 P.3d at 1009.

¶ 30 By contrast, in dependency and neglect actions, “[p]rocedural

due process requires that a parent be given notice of the

proceedings, an opportunity to be heard, and the assistance of legal

counsel. These rights are satisfied if the parent appears through

counsel and is given the opportunity to present evidence and cross-

examine witnesses.” People in Interest of A.E.L., 181 P.3d 1186,

1192 (Colo. App. 2008).

¶ 31 When the juvenile court held a paternity hearing, albeit later

than B.B. belatedly asserts it should have, B.B. enjoyed all of these

opportunities. B.B. received ample prior notice of the hearing date,

but for reasons known only to him did not appear.

15
¶ 32 Still, his counsel participated. Counsel could have called

witnesses, but chose not to do so. And counsel made a closing

argument. Due process requires no more.

¶ 33 For these reasons, we need not take up the unpreserved due

process argument to prevent a “miscarriage of justice.” 5

C. Equal Protection

¶ 34 Divisions of this court are divided on taking up unpreserved

equal protection arguments in dependency and neglect cases.

Compare In re M.G., 58 P.3d 1145, 1147 (Colo. App. 2002)

(“Petitioner also asserts that [section] 19-1-117[, C.R.S. 2001,]

violates her right to equal protection under the United States

Constitution. However, that argument is raised for the first time on

appeal, and we will not consider it.”), and People in Interest of J.L.P.,

870 P.2d 1252, 1259 (Colo. App. 1994) (“The [guardian ad litem

(GAL)] also argues that the application of the BIA Guidelines

without consideration of the best interests of the child violates the

Equal Protection Clause of the Fourteenth Amendment and Colo.

5 In saying this much, we take care to point out that we do not
foreclose the possibility of a due process violation producing a
miscarriage of justice.

16
Const., Art. II, § 25. However, we do not address this issue because

it was raised for the first time in the reply brief.”), with People in

Interest of C.E., 923 P.2d 383, 384-85 (Colo. App. 1996) (The

division entertained maternal aunt’s unpreserved argument that

“extended family members have a fundamental liberty interest in

the society and custody of kindred children,” because “the issues

here [including equal protection] concern alleged fundamental

constitutional rights and have been fully briefed by the parties.”).

¶ 35 On this record, we need neither pick a side nor factor

miscarriage of justice into the calculus. B.B. does not assert facial

unconstitutionality, so his equal protection argument must be

considered as applied. In re Estate of Becker, 32 P.3d 557, 561

(Colo. App. 2000), aff’d, 54 P.3d 849 (Colo. 2002). But because the

juvenile court made no findings concerning the alleged disparity in

treatment plans and other procedures as between B.B. and

biological father, “[i]nadequacy of the record also disfavors

addressing an as-applied challenge for the first time on appeal.”

People v. Mountjoy, 2016 COA 86, ¶ 37 (collecting cases), aff’d on

other grounds, 2018 CO 92M.

17
¶ 36 For example, the court could have addressed the reasons for

and significance of any differences between B.B.’s treatment plan,

apparently for all three children, and biological father’s treatment

plan for the child. At the August 2018 hearing, the court told B.B.,

“I would really expect that you were further along with your

treatment plan.” But no one gave the court any reason to

undertake a comparative analysis of biological father’s treatment

plan.

¶ 37 True, only the other two children, but not M.B., were

adjudicated as to B.B. in March 2018. The court did not explain

this anomaly. Still, at the May 2018 permanency planning hearing,

the court proceeded as if all three children had been adjudicated

when it “adopt[ed] trifecta goals of return home, APR, and adoption”

for all of them as to B.B.

¶ 38 For these reasons, we also decline to take up the equal

protection argument. But B.B.’s statutory argument remains to be

addressed.

18
III. Paternity Determination

A. Standard of Review and Law

¶ 39 The parties agree that a paternity determination is subject to

the clearly erroneous standard of review under C.R.C.P. 52. See

People in Interest of A.A.T., 191 Colo. 494, 497, 554 P.2d 302, 305

(1976) (“[T]here was sufficient evidence to support a finding of

paternity. Findings of the trial court will not be disturbed on

review, unless they are clearly erroneous. C.R.C.P. 52.”).

¶ 40 Interpretation of the UPA, like that of any statute, is de novo.

See L.A.N. v. L.M.B., 2013 CO 6, ¶ 13 (“We first review . . . the

dependency and neglect provisions of the Children’s Code, sections

19-3-100.5 to 19-3-703, C.R.S. (2012), de novo . . . .”).

¶ 41 Because the juvenile court held a paternity hearing, the only

procedural question is the timeliness of that hearing. Even in the

face of a statutory limit on timing, trial courts enjoy some

discretion. In re H & R Block, 159 S.W.3d 127, 130 (Tex. App. 2004)

(“‘[A]s soon as practicable’ indicates a discretionary authority in the

trial court to determine the appropriate time for ruling on a

motion . . . .”). “A court abuses its discretion when its ruling is

19
manifestly arbitrary, unreasonable, or unfair.” People in Interest of

T.M.S., 2019 COA 136, ¶ 43.

¶ 42 Under the UPA, a paternity action can be commenced by “a

county department of human or social services” as well as by a

presumed father, among others. § 19-4-107(1), C.R.S. 2019. A

man is presumed to be the natural father of a child if, as relevant

here, “[h]e acknowledges his paternity of the child in a writing filed

with the court or registrar of vital statistics” or genetic testing

establishes “that the probability of his parentage is ninety-seven

percent or higher.” § 19-4-105(1)(e), (f), C.R.S. 2019.6

¶ 43 Where two or more conflicting presumptions of paternity arise

and no presumption has been rebutted by clear and convincing

evidence, “the presumption which on the facts is founded on the

weightier considerations of policy and logic controls.”

§ 19-4-105(2)(a). In balancing these considerations, “the judge or

magistrate shall consider all pertinent factors, including but not

limited to” eight factors listed in the statute. Id. Then, “[t]he result

6 A presumption of paternity may arise under a variety of
circumstances as provided by section 19-4-105(1)(a)-(f), C.R.S.
2019.

20
of a final determination of paternity is to render one presumptive

father the child’s parent. The other presumptive father becomes a

nonparent who does not have rights to visit a child or to make any

decisions about the child’s education, health, or upbringing.”

People in Interest of C.L.S., 313 P.3d 662, 667 (Colo. App. 2011).

¶ 44 The UPA requires that “an informal hearing” be held “[a]s soon

as practicable after an action to declare the existence or

nonexistence of the father-child relationship has been brought” if

the court determines holding a hearing to be “in the child’s best

interest.” § 19-4-111(1), C.R.S. 2019. Unsurprisingly, parentage

disputes are usually resolved on that basis. See, e.g., N.A.H. v.

S.L.S., 9 P.3d 354, 358 (Colo. 2000) (“The magistrate held a hearing

on the issue . . . .”); C.L.S., 313 P.3d at 664 (“After a hearing, the

magistrate entered a series of findings.”).

¶ 45 B.B. does not cite, nor have we found, a Colorado case holding

that where a paternity question arises in an ongoing dependency

and neglect proceeding, the “as soon as practicable” requirement

applies.

21
B. Application

1. B.B. Was a Presumed Father

¶ 46 The Department named B.B. as the child’s presumed father in

its initial dependency and neglect petition and referred to him as

the child’s “adoptive father” in several family services plans. At the

first hearing in January 2018, the GAL told the juvenile court that

B.B. “is on [the child]’s birth certificate.” Although the birth

certificate is not in the record, in opening statement at the paternity

hearing, the Department told the court, “We have a situation of

[B.B.] being on the birth certificate.” Several witnesses testified that

B.B. was on the birth certificate.

¶ 47 At the conclusion of the paternity hearing, the court noted

that B.B. “has raised the presumption of being on [the child]’s birth

certificate, essentially holding [the child] out [as] his own in that

regards.” Then the court turned to “weighing and determining a

legal father between two competing presumptions of paternity.”

Under these circumstances, the absence of more particularized

findings, such as whether mother was notified of B.B.’s paternity

acknowledgment and whether she disputed it under section

19-4-105(1)(e), is understandable.

22
¶ 48 For the first time on appeal, the Department argues that B.B.

was not a presumed father. We conclude that the Department is

judicially estopped from taking a position contrary to the position it

took before the juvenile court, and which the court adopted, that

B.B. was a presumed father. See 23 LTD v. Herman, 2019 COA

113, ¶ 65.

2. The Juvenile Court Held a Timely Hearing to Determine Whether
B.B. Was the Child’s Legal Father

¶ 49 During the January 22, 2019, hearing, immediately after B.B.

told the court for the first time that he was asserting psychological

parent status, the Department responded that it would need to

amend the termination motion. Then the court said, “[W]e need to

hold a paternity hearing.” The court set the hearing for February 2

and told B.B. “I need you to be present on the phone for me to make

those paternity findings.”

¶ 50 When B.B. failed to appear, the court concluded, “I think we

need notice just so our record’s clear.” Based on the court’s

schedule and counsel’s availability, the paternity hearing was reset

to March 29 (the same date as the termination hearing). It occurred

on that date.

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¶ 51 B.B. argues that this date was not “as soon as practicable”

because the original petition named him as a presumed father and

as of June 2018, genetic testing established biological father’s

status as another presumed father. So, he continues, the court was

aware of competing presumptions that needed resolution before the

dependency and neglect case could meaningfully proceed.

¶ 52 The phrase “as soon as practicable” has never been interpreted

for purposes of section 19-4-111(1). Numerous Colorado cases

have addressed the phrase in other contexts. For example, where

the phrase appears in an insurance policy, it “means that notice

must be given within a reasonable length of time under the

circumstances.” Clementi v. Nationwide Mut. Fire Ins. Co., 16 P.3d

223, 226 (Colo. 2001).

¶ 53 Even assuming that the “as soon as practicable” requirement

applies in a dependency and neglect proceeding, under the UPA, the

temporal mandate applies only after “an action to declare the

existence or nonexistence of the father-child relationship has been

brought.” § 19-4-111(1). To be sure, a paternity action can be

joined with other proceedings. § 19-4-109(1), C.R.S. 2019. For

purposes of starting the clock, a dependency and neglect proceeding

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is not such an action. And without a discrete starting event, this

standard cannot be meaningfully applied to test the court’s exercise

of its discretion.

¶ 54 Despite the difference between a dependency and neglect

proceeding and “an action to declare the existence or nonexistence

of the father-child relationship,” B.B. argues that the juvenile court

did not act “as soon as practicable” because the GAL’s statements

at the January 2018 hearing that “there are competing

presumptions of paternity” teed up the paternity issue. But the

GAL went on to request genetic testing. As indicated, the court did

not receive the results until June 2018.

¶ 55 As for the six-month period from July 2018 until the January

22, 2019, hearing, B.B. asserts that because he was “left merely a

presumed parent,” he was not provided with either “a treatment

plan to reunite with [the child]” or “any services from the

Department, to reunite with [the child].” B.B.’s assertions miss the

mark in two ways.

¶ 56 First, B.B. fails to address whether this six-month delay was

“reasonable . . . under the circumstances,” even if the clock had

begun running, which we have concluded it had not. B.B. and his

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counsel had ample opportunities to expedite the process by

requesting a paternity hearing at the July or August hearings, but

did not do so. Indeed, at the November 2018 hearing, B.B. raised

his becoming involved with the child, but again said nothing about

a paternity determination.

¶ 57 Second, B.B. would have been entitled to a treatment plan and

services only after he was determined to be the legal father. See In

re Marriage of Ohr, 97 P.3d 354, 357 (Colo. App. 2004) (“Intervenor’s

status as a presumptive father was extinguished when the court

determined that, for all legal purposes, husband was the child’s

father.”). But because the court ultimately ruled against B.B. and

in favor of biological father on paternity, we need not undertake a

retrospective analysis of alleged denial of the statutory rights that

B.B. would have enjoyed, had he been held the child’s legal father.

¶ 58 Even so, B.B. asserts that he would have been named the legal

father, “had a timely paternity determination been made at the

beginning of the case.” But he does not explain why a different

outcome might have resulted from an earlier paternity hearing. To

the contrary, the record shows that from the onset of the case, the

court was aware of another potential father and the need for the

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genetic testing that was completed by June. Had B.B. desired to

bolster his claim to becoming the child’s legal father, he could have

requested visitation during February, March, April, and May. He

did not. Instead, according to the family services plan introduced at

the paternity hearing, as of May 14, 2018, B.B. “had stated that he

was not [the child’s] biological father and had no interest in

pursuing a relationship with him, so a parenting time-referral was

not requested.”

¶ 59 Finally, turning to the period between January 22 and March

29, 2019, B.B. does not discuss, nor can we discern, why a delay

from February 2 to March 29 would not be “reasonable . . . under

the circumstances.” After all, one of the reasons was B.B.’s failure

to appear or call in on February 2 and the purpose of the

continuance was to ensure that he could not dispute the parentage

determination for lack of notice.

¶ 60 Despite all of this, B.B. asserts multiple abuses of discretion,

including the following: by leaving the two presumed fathers “in

legal limbo for over a year,” both of them were denied “the

constitutional protections afforded by law”; the court adjudicated

the child as to one of the presumed fathers, but never as to a legal

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father; the Department failed to provide B.B. with “an adjudication,

dispositional hearing, and treatment plan”; by determining

paternity on the day of the termination hearing, the court accepted

“an invalid confession [from biological father] which was premised

on an invalid adjudication of a presumed father”; and even

assuming that after “a timely paternity hearing was held the court

found biological father was the legal father, [B.B.] could have

immediately appealed that order to receive meaningful appellate

review.”

¶ 61 This somewhat overlapping parade of horribles suffers from

three flaws. First, most of them assume rights and procedures to

which B.B. would have been entitled only after having been

determined to be the child’s legal father. Second, some of them

raise issues involving biological father, whose rights B.B. lacks

standing to assert. See, e.g., People in Interest of J.A.S., 160 P.3d

257, 261 (Colo. App. 2007) (one parent does not have standing to

raise issues regarding the propriety of termination of the other

parent’s rights); People in Interest of J.M.B., 60 P.3d 790, 792 (Colo.

App. 2002) (father lacked standing to challenge the appropriateness

of mother’s treatment plan). Third, B.B. does not explain how his

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appeal is less “meaningful” than it would have been following a

paternity determination as of mid-2018. See Sinclair Transp. Co. v.

Sandberg, 2014 COA 75M, ¶ 14 n.1 (declining to address an

assertion “presented without any developed argument”); Barnett v.

Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010) (“We will

not consider a bald legal proposition presented without argument or

development.”).

¶ 62 In the end, the juvenile court acted within its discretion in

holding the paternity hearing on March 29, 2019.

C. The Juvenile Court Acted Within Its Discretion in Finding
Biological Father to Be the Child’s Legal Father

¶ 63 According to the opening brief, B.B. “appeals the court’s order

that he was not the legal father of [the child].” Similarly, the reply

brief asks us to “reverse the trial court’s paternity ruling.” In

support of this relief, B.B. makes three developed arguments: denial

of his statutory right to a speedy paternity determination, denial of

due process, and denial of equal protection. But the record shows

that the due process and equal protection arguments were

unpreserved; we have declined to exercise our discretion to

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entertain either of them. Next, we have addressed and rejected his

statutory untimeliness argument.

¶ 64 Apart from these three assertions, B.B. has failed to develop

any argument that the record did not support the finding that

biological father was the child’s legal father. Therefore, we decline

to revisit that finding.

IV. Conclusion

¶ 65 The order determining biological father to be the child’s legal

father is affirmed.

CHIEF JUDGE BERNARD and JUDGE CASEBOLT concur.

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