In re Adoption of I.E.H

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.

24