Adoption of AES

24CA1966 Adoption of AES 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1966
El Paso County District Court No. 22JA30015
Honorable Diana K. May, Judge

In re the Petition of R.P.H.,

Appellee,

for the Adoption of A.E.S., a Child,

and Concerning D.T.S.,

Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE BERNARD*
Welling and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 6, 2025

The Gasper Law Group, PLLC, Carrie E. Kelly, Colorado Springs, Colorado, for
Appellee

Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, 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. 2025.
¶1 This is a stepparent adoption case. A father, D.T.S., appeals

the judgment terminating the parent-child legal relationship

between him and his child, A.E.S. We reverse the judgment and

remand the case to the juvenile court for further proceedings.

I. Background

¶2 Following the child’s birth in July 2015, the child’s mother,

C.E.T., filed a petition for an allocation of parental responsibilities.

A domestic relations judge awarded mother physical custody and

sole decision-making responsibilities for the child; father received

two hours of supervised parenting time per week, and he was

ordered to pay child support.

¶3 The child’s stepfather, R.P.H., married mother in 2022. He

filed a petition for stepparent adoption, along with a petition to

terminate father’s parental rights. He also submitted (1) an

“Affidavit of Abandonment” from mother, in which she alleged father

had abandoned the child and had failed, without cause, to provide

reasonable support, and (2) mother’s “Consent to Adoption.”

¶4 In February 2023, the juvenile court declined to set the matter

for a contested hearing because father was undergoing a

competency evaluation in his criminal cases. The following month,

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the court learned the judge in the criminal cases had found father

incompetent to proceed, and the court again continued this case.

Eventually, the court decided this case could proceed to a hearing,

even though father was undergoing treatment to restore him to

competency for the purposes of his criminal cases.

¶5 In August 2024, the court held an evidentiary hearing. Father

was represented at the hearing by court-appointed counsel and a

guardian ad litem. The evidence showed father had not had any

contact with the child since September 2015, had not paid any

child support, and had not provided any other type of support

during the child’s life. After hearing the evidence, the court made

an oral ruling in which it considered the termination criteria in the

relinquishment statute, section 19-5-105, C.R.S. 2025, but it did

not cite the stepparent adoption statute, section 19-5-203(1)(d)(II),

C.R.S. 2025.

¶6 Stepfather then submitted a form order generally tracking the

court’s oral ruling, except the order added four references to the

stepparent adoption statute. Counsel for father approved the form

of the order submitted by stepfather’s counsel. The court then

approved the form order, noting, “[t]o the extent that these written

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orders diverge from any oral findings or orders, these written orders

shall control.”

II. Discussion

¶7 Father contends the court did not make necessary factual

findings to terminate his parental rights in a stepparent adoption

proceeding. We agree, and we therefore reverse the judgment and

remand the case to the court so it can consider whether it will make

those findings.

¶8 Father also asserts the juvenile court erred because it applied

the relinquishment statute, section 19-5-105, rather than the

stepparent adoption statute, section 19-5-203(1)(d)(II). We conclude

the emphasis on the relinquishment statute in the court’s oral

ruling and written order rendered it impossible for us to determine

whether the court had made the necessary factual findings

described in the previous paragraph.

A. Applicable Law and Standard of Review

¶9 The stepparent adoption statute and the relinquishment

statute provide different standards for terminating parental rights.

In re D.S.L., 18 P.3d 856, 858 (Colo. App. 2001). Because

termination of parental rights is a decision of paramount gravity

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affecting the parent’s fundamental interest in the care, custody, and

control of a child, a court must strictly comply with the appropriate

standards for termination. K.D. v. People, 139 P.3d 695, 700 (Colo.

2006).

¶ 10 To terminate parental rights under the stepparent adoption

statute, a juvenile court must find, by clear and convincing

evidence, that (1) termination and adoption are in the child’s best

interests, and (2) the child is available for adoption. In re R.H.N.,

710 P.2d 482, 485 (Colo. 1985). Under section 19-5-203(1)(d)(II), a

child is available for adoption if one parent consents and the other

parent has (1) abandoned the child for a period of one year or more,

or (2) failed without cause to provide reasonable support for a

period of one year or more. As to the former, the court must

consider whether the parent intended to abandon the child. In re

J.D.K., 37 P.3d 541, 543 (Colo. App. 2001). And as to the latter, the

court must determine whether there is any likelihood that the

parent will provide child support in the future. R.H.N., 710 P.2d at

487.

¶ 11 If a parent voluntarily relinquishes parental rights, the “agency

or person having custody of the child” may file a petition to

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terminate the other parent’s parental rights under the

relinquishment statute. § 19-5-105(1); see also 19-5-103, C.R.S.

2025 (describing the process by which parents may relinquish their

parental rights). Under section 19-5-105, the juvenile court may

terminate the non-relinquishing parent’s parental rights if it finds,

by clear and convincing evidence, that termination is in the child’s

best interests, along with one or more of the following criteria:

(1) the non-relinquishing parent is unfit; (2) the non-relinquishing

parent has not established a substantial, positive relationship with

the child; or (3) the non-relinquishing parent has not taken

substantial parental responsibility for the child. § 19-5-105(3.1).

¶ 12 Whether the juvenile court applied the correct legal standard

in making its findings is a question of law that we review de novo.

See People in Interest of K.L.W., 2021 COA 56, ¶ 42. “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.” In re E.R.S., 2019

COA 40, ¶ 52. “We 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.

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B. Analysis

¶ 13 On appeal, stepfather concedes the juvenile court did not

issue its findings under the correct statute during its oral ruling.

But he maintains any shortcomings in the court’s oral ruling were

corrected by the written order. See People in Interest of S.R.N.J-S.,

2020 COA 12, ¶ 16 (“Generally, a written order controls over a

conflicting oral ruling.”). We disagree the written order adequately

corrected those shortcomings.

¶ 14 We note there are minimal differences between the court’s oral

ruling and its written order. As noted, the court approved

stepfather’s form order, which inserted four references to the

stepparent adoption statute. This means the oral ruling and the

written order both erroneously invoked the relinquishment statute.

In fact, the court did not remove any of its extensive findings under

the relinquishment statute from the written order, even though that

statute had no bearing on this case. And, indeed, stepfather

concedes the court incorrectly cited the relinquishment statute in

its oral ruling and written order.

¶ 15 Most importantly, neither the court’s oral ruling nor its written

order referred to the specific criteria in the stepparent adoption

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statute. So we cannot glean the basis for its termination order. See

E.R.S., ¶ 52. Specifically, the court did not expressly address either

of the ways in which a child could be available for adoption. We

therefore cannot be certain whether the court found the child was

available for adoption because father abandoned the child, because

he failed without cause to support the child, or because he did both

things. See id. at ¶ 61 (“[A]bandonment and failure to provide

reasonable support are separate and independent grounds for

declaring a child available for adoption.”).

¶ 16 More granularly, the court did not make the required findings

in either the oral ruling or the written order that (1) father intended

to abandon the child, see D.P.H. v. J.L.B., 260 P.3d 320, 326 (Colo.

2011)(noting the court must make an “express determination” that

the parent had the intent to abandon the child), and (2) there was

no likelihood father would provide child support in the future, see

R.H.N., 710 P.2d at 487 (holding that fundamental fairness requires

the court to look beyond the twelve months immediately preceding

the petition’s filing). These are factual questions the court had to

consider. See D.P.H., 260 P.3d at 325 (intent to abandon); R.H.N.,

710 P.2d at 487 (likelihood of future support). And we cannot make

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factual findings on appeal. See People in Interest of S.Z.S., 2022

COA 133, ¶ 21. So we must reverse the judgment and remand this

case to the court to consider those factual questions.

¶ 17 We acknowledge the court made some findings in its oral

ruling and its written order that could be seen as satisfying the

stepparent adoption statute. For example, the court noted father

had “legally abandoned” the child. It also found father had made

no effort to support his child, either financially or in some other

way. And the court found father’s actions were “without cause.”

But, because there is no indication these findings were made under

the stepparent adoption statute and not under the relinquishment

statute, we cannot say with any certainty that the court properly

considered the evidence for purposes of termination under the

stepparent adoption statute. See D.P.H., 260 P.3d at 325 (intent to

abandon); R.H.N., 710 P.2d at 487 (likelihood of future support).

¶ 18 In sum, the findings in the court’s oral ruling and its written

order are inadequate because they do not conform to the statutory

criteria for termination in the stepparent adoption statute, and they

do not sufficiently address each of the requirements in that statute.

We therefore cannot adequately glean the basis for the court’s

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decision, so we cannot meaningfully review the oral ruling and the

written order.

III. Disposition

¶ 19 The judgment is reversed, and the case is remanded to the

juvenile court for further proceedings consistent with this opinion.

On remand, the court may base its determination on evidence

currently in the record or it may, within its discretion, take

additional evidence. See D.P.H., 260 P.3d at 326.

JUDGE WELLING and JUDGE SULLIVAN concur.

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