Petition of R.M.C. III

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
April 21, 2022

2022COA46

No. 21CA0520, Adoption of E.A.T. — Family Law — Stepparent
Adoption — Allocation of Parental Responsibilities —
Psychological Parent

In this stepparent adoption case, a division of the court of

appeals holds that the decree of adoption does not vitiate a

previously ordered allocation of parental responsibilities (APR) to a

psychological parent; rather, the domestic relations court retains

exclusive jurisdiction to modify or abrogate the APR order.
COLORADO COURT OF APPEALS 2022COA46

Court of Appeals No. 21CA0520
Morgan County District Court No. 20JA18
Honorable Kevin L. Hoyer, Judge

In re the Petition of R.M.C. III,

Appellant and Cross-Appellee,

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

and Concerning J.D.L.,

Appellee and Cross-Appellant.

ORDERS AFFIRMED

Division IV
Opinion by JUDGE TOW
Richman and Grove, JJ., concur

Announced April 21, 2022

Hampton & Pigott LLP, Natalie T. Chase, Broomfield, Colorado, for Appellant
and Cross-Appellee

Marquez Law, Jason A. Marquez, Denver, Colorado, for Appellee and Cross-
Appellant
¶1 In this stepparent adoption proceeding, R.M.C. III (adoptive

father) appeals two separate orders dated March 5, 2021, issued by

the Morgan County District Court (the adoption court), which

vacated a prior order supplementing the adoption decree. J.D.L.

(psychological father)1 cross-appeals the same orders, asserting that

the court erroneously denied his request to intervene in the

adoption action and to set aside the adoption decree. Psychological

father also challenges an April 8, 2021, order denying access to the

adoption case file and register of actions.

¶2 We hold, as a matter of first impression, that a decree of

adoption does not vitiate a prior allocation of parental

responsibilities (APR) to a nonparent. Rather, the court that issued

the prior order retains jurisdiction related to the nonparent’s APR.

We also hold that the nonparent is not entitled to receive notice of,

and participate in, the adoption proceeding. Consequently, we

affirm the orders.

1 A psychological parent is “someone other than a biological parent
who develops a parent-child relationship through day-to-day
interaction, companionship, and caring for the child.” In re Parental
Responsibilities Concerning E.L.M.C., 100 P.3d 546, 559 (Colo. App.
2004).

1
I. Background

¶3 Mother and A.R. (biological father) had E.A.T. (child) in 2015.

In 2017, mother married psychological father. They separated

shortly thereafter and mother began living with adoptive father. In

2019, psychological father filed for dissolution of marriage in the El

Paso County District Court (the domestic relations court). In

August 2020, the domestic relations court orally entered a decree

dissolving the marriage and announced permanent orders, though

neither the decree nor the permanent orders were reduced to

writing at that time.2

¶4 In October 2020, before the written decree and permanent

orders were entered in the dissolution of marriage case, adoptive

father filed a petition in the adoption court for stepparent adoption.

Mother and biological father consented to the adoption.

Psychological father was not given notice of the adoption petition.

2 For some aspects of the timeline, we take judicial notice of the
filings and orders in the dissolution of marriage case, El Paso
County District Court Case No. 2019 DR 30762. See People v.
Sa’ra, 117 P.3d 51, 55-56 (Colo. App. 2004) (“A court may take
judicial notice of the contents of court records in a related
proceeding.”).

2
¶5 Three weeks later, the domestic relations court entered the

written decree and permanent orders finding, as relevant to this

case, that psychological father was the child’s psychological parent

and granting him parenting time.

¶6 Shortly thereafter, the adoption court entered an adoption

decree. The court also entered a supplemental order, finding that

 the court had jurisdiction;

 psychological father had been previously granted

parenting time through an action in El Paso County;

 there was no “scientific or biological” basis for

psychological father to be “the actual psychological father

of the minor child”;

 because of the adoption, mother and adoptive father are

parents who get to make parenting and visitation

decisions; and

 psychological father would be permitted no further

contact or parenting time with the child.

¶7 One month later, mother and psychological father appeared in

the domestic relations court on a motion regarding parenting time.

The domestic relations court recognized that an adoption decree

3
had been entered, making adoptive father the legal father. The

court also acknowledged that, as a result of the adoption decree,

there was “a competing order indicating that [psychological father

was] to have no contact.” But the domestic relations court

concluded that it had original and continuing jurisdiction over the

parental responsibilities concerning the child and denied

modifications to the parenting time schedule set forth in the

permanent orders.

¶8 Psychological father filed a motion in the adoption court to

intervene in the adoption action. He asserted that the domestic

relations court had previously entered permanent orders naming

him the child’s psychological parent and allocating certain “parental

rights.” He further argued that, after the adoption court had

entered the adoption decree, the domestic relations court had

entered another order that, among other things, reaffirmed its

jurisdiction over the parental responsibilities concerning the child.

¶9 Psychological father also filed a motion in the adoption court

to set aside the adoption decree. He asserted that, as a

psychological parent, his rights “are equivalent to the rights of a

legal parent.” He argued that he had “a protected liberty interest

4
because he was granted parental rights” and was thus entitled to —

but did not — receive notice of the stepparent adoption before the

decree had been entered; therefore, his “parental rights” had been

terminated without due process. He further contended that he was

entitled to relief under C.R.C.P. 60(b)(1)-(3), (5).

¶ 10 On March 5, 2021, the adoption court denied both of

psychological father’s motions. In denying the motion to set aside

the adoption decree, the court ruled that psychological father was

not entitled to notice of the adoption proceeding and lacked

standing to challenge the adoption decree because he was not a

“natural parent” as defined in section 19-1-103(105), C.R.S. 2021.

In denying the motion to intervene, the court ruled that the

stepparent adoption statute, § 19-5-203(1)(f), C.R.S. 2021, does not

provide for intervention by anyone who is not a natural parent;

therefore, psychological father did not have an unconditional right

to intervene under C.R.C.P. 24. The court also found that, because

an order regarding psychological father’s parenting time had been

entered in the domestic relations court, psychological father had

“failed to demonstrate that the stepparent adoption may impair or

impede his ability to protect his interest in visitation with the child.”

5
¶ 11 Because the domestic relations court had asserted original

and continuing jurisdiction with regard to psychological father’s

parenting time, however, the adoption court also vacated the

supplemental order. The adoption court reiterated that the

domestic relations court was the only court that had jurisdiction

over psychological father’s parenting time with the child and

disputes regarding such time should be resolved there.

¶ 12 Psychological father then filed a motion in the adoption court

for access to the adoption case file and register of actions. He

argued that he needed the case file and register of actions to appeal

the orders denying his motions to intervene and set aside the

adoption decree.

¶ 13 On April 8, 2021, the adoption court denied psychological

father’s motion for access to the adoption court file and register of

actions. In doing so, the court found that under section 19-5-305,

C.R.S. 2021, psychological father does not fall within the class of

people permitted to access confidential adoption records.

II. Adoptive Father’s Contention

¶ 14 Adoptive father contends that the adoption court erred by

vacating the supplemental order. Specifically, he argues that the

6
court’s decision was based on an erroneous conclusion that the

domestic relations court has continuing jurisdiction to determine

psychological father’s parenting time. We disagree.

¶ 15 Juvenile courts (including the juvenile divisions of district

courts outside of the City and County of Denver) have exclusive

original jurisdiction in proceedings concerning adoption. See

§ 19-1-104(1)(g), C.R.S. 2021; see also § 19-1-103(89); In re C.A.O.,

192 P.3d 508, 510 (Colo. App. 2008). District courts have

jurisdiction over domestic relations matters, including APR. Colo.

Const. art. VI, § 9; § 14-10-123, C.R.S. 2021. The district court’s

jurisdiction in a case, even if continuing, does not preclude the

juvenile court from taking jurisdiction in another case involving

other issues related to the same child. § 19-1-104(5) (“Where a

custody award or an order allocating parental responsibilities with

respect to a child has been made in a district court in a dissolution

of marriage action or another proceeding and the jurisdiction of the

district court in the case is continuing, the juvenile court may take

jurisdiction in a case involving the same child if the child comes

within the jurisdiction of the juvenile court.”).

7
¶ 16 In this case, the domestic relations court was the district court

that had original jurisdiction over the APR concerning the child,

having entered an APR in the dissolution of marriage action. The

adoption court was the juvenile court (or, more accurately, the

juvenile division of the Morgan County District Court) that then

took jurisdiction over the adoption-related issues in the stepparent

adoption action. Thus, both courts properly exercised jurisdiction

over certain issues related to the child.

¶ 17 To be sure, nothing in section 19-1-104(5) permitted the

adoption court to modify an existing APR to a nonparent. In

contrast, that section explicitly contemplates the juvenile court

making such modifications in dependency and neglect cases and in

juvenile delinquency cases. 3

¶ 18 True, as adoptive father points out, the effect of the adoption

decree is that he “is entitled to all the rights and privileges and is

subject to all the obligations of a child born to” him. § 19-5-211(1),

C.R.S. 2021. Further, “[t]he parents [are] divested of all legal rights

3The scope of the juvenile court’s authority differs depending on
whether it is sitting in an adoption case, a dependency and neglect
case, or a delinquency case. This opinion addresses only what may
be done by a juvenile court handling an adoption matter.

8
and obligations with respect to the child.” § 19-5-211(2).4 But,

contrary to adoptive father’s contention, this language does not

automatically vitiate the domestic relations court’s order granting

parenting time to psychological father.

¶ 19 Psychological father is not a “parent” for purposes of the

adoption statute. The Children’s Code defines parent as “either a

natural parent of a child, as may be established pursuant to article

4 of this title 19, or a parent by adoption.” § 19-1-103(105)(a). At

oral argument, psychological father’s counsel invoked the language

from a different part of the same statute: “‘Parent,’ as used in

sections 19-1-114, [C.R.S. 2021;] 19-2.5-501, [C.R.S. 2021;] and

19-2.5-611, [C.R.S. 2021,] includes . . . a parent allocated parental

responsibilities with respect to a child.” § 19-1-103(105)(b). But

this provision is unavailing for two reasons: (1) by its terms, this

definition of parent applies to only three statutory sections, none of

which is at issue here; and (2) it still refers to a “parent” — rather

than a “person” — who has been allocated parental responsibilities.

4 Because this was a stepparent adoption, the statute clarifies that
the decree of adoption had no impact on mother’s rights and
obligations. § 19-5-211(3), C.R.S. 2021.

9
Significantly, the General Assembly has used the phrase “person to

whom parental responsibilities have been allocated” elsewhere in

the Children’s Code. See, e.g., § 19-1-111(2)(a)(I), C.R.S. 2021

(setting forth the conditions for appointing a guardian ad litem);

§ 19-1-114(1) (authorizing the juvenile court to “make an order of

protection” setting forth “reasonable conditions of behavior” not

only on a parent but on a “person to whom parental responsibilities

have been allocated”). Clearly, when the legislature wants to

include people in psychological father’s position in the same group

as parents, it knows how to do so. See Meardon v. Freedom Life Ins.

Co., 2018 COA 32, ¶ 46.

¶ 20 As it relates to psychological father’s allocation of parental

responsibilities, the “rights and privileges” adoptive father enjoys

and the “obligations” to which he is subject are no more than those

enjoyed by the child’s biological father before the adoption. In other

words, adoptive father is subject to the existing parenting time

order, including the allocation of parenting time to psychological

father. Adoptive father can no more ignore that order than

biological father could have before the adoption.

10
¶ 21 In short, by entering the supplemental order, the adoption

court improperly modified an existing APR order. This was outside

the purview of section 19-1-104(5) and in derogation of section

19-1-104(8)(a)(II). By vacating the supplemental order, the adoption

court correctly recognized that the domestic relations court had

jurisdiction over psychological father and matters related to his

parenting time.

¶ 22 Indeed, if adoptive father’s position on the issues in this case

were correct, a psychological parent would not be entitled to

participate in an adoption proceeding, but his rights under an

existing court order could nevertheless be taken away. We cannot

conclude that the legislature intended to create such a blatant due

process problem.

¶ 23 Adoptive father argues that the supplemental order “was the

only protection” he and mother had to protect their parental rights

because — now that the order has been vacated — the domestic

relations court can deny his and mother’s rights to the child and

grant rights to a nonparent. But this argument ignores that the

domestic relations court had already granted APR to psychological

father. Nothing in section 19-1-104 precludes adoptive father from

11
seeking to modify parenting time and asserting his Troxel

presumption in the domestic relations court. See Troxel v.

Granville, 530 U.S. 57, 66 (2000).5

¶ 24 Accordingly, we conclude that the adoption court’s order

vacating the supplemental order was not only proper, but

necessary.

III. Psychological Father’s Contentions

A. Motions to Intervene

¶ 25 Psychological father contends that the adoption court erred by

denying his motion to intervene in the adoption action. In

particular, he argues that he is a legal parent and section

14-10-123 gave him an unconditional right to intervene under

C.R.C.P. 24(a). We disagree.

5 At oral argument, adoptive father’s counsel represented that
adoptive father’s attempt to intervene in the domestic relations
court had been denied. This representation appears to be incorrect.
According to a December 15, 2021, minute order in the domestic
relations case, the parties stipulated that adoptive father would be
joined as a respondent. Adoptive father’s counsel was instructed to
file a written motion if adoptive father sought to raise any issue
related to parenting time, but no such motion appears to have been
filed.

12
¶ 26 We review de novo the denial of a motion to intervene under

C.R.C.P. 24. In Interest of K.L.O-V., 151 P.3d 637, 640 (Colo. App.

2006).

¶ 27 C.R.C.P. 24(a)(1) provides that a person shall be permitted to

intervene when a statute confers an unconditional right to

intervene. “Although a statutory scheme may not expressly provide

for intervention, the mechanism of intervention may be inherent in

the scheme when it provides to a nonparty absolute redress against

a party in the context of an existing lawsuit.” K.L.O-V., 151 P.3d at

640.

¶ 28 Initially, we reiterate that psychological father is not a legal

parent. We recognize that the domestic relations court noted that

psychological father had “significant rights that are equivalent to a

legal parent.” But the court’s statement does not make

psychological father a legal parent. It is undisputed that, prior to

the adoption, mother and biological father were the child’s legal

parents. And the child can only have two legal parents. See People

in Interest of K.L.W., 2021 COA 56, ¶ 2.

¶ 29 We next conclude that section 14-10-123 does not expressly

provide for intervention in a stepparent adoption. Section

13
14-10-123(1)(c) gives psychological father, as a nonparent, the

ability to seek an APR. See People in Interest of E.L.M.C., 100 P.3d

546, 553 (Colo. App. 2004). But this statute does not vest a

nonparent with an absolute right to an APR. See People in Interest

of K.M.B., 80 P.3d 914, 917 (Colo. App. 2003) (noting “no such

parental responsibility award [to a nonparent] will be made unless a

court in fact determines that it would be in the best interests of the

child.”)

¶ 30 As we have observed above, issues concerning an APR are

separate from a stepparent adoption. The statute clearly evinces a

legislative intent that issues related to an APR be resolved by a

district court handling the domestic relations matter rather than a

juvenile court handling an adoption. Consequently, we conclude

that section 14-10-123 does not confer an unconditional right to

intervene under C.R.C.P. 24(a) in a stepparent adoption.

¶ 31 To the extent psychological father argues that he had a

conditional right to intervene under C.R.C.P. 24(b) because his

claim to parenting time and the stepparent adoption have a

question of law or fact in common, we are unconvinced. Contrary

to his contention, his rights to parenting time were not terminated.

14
Even though the adoption court initially terminated his parenting

time through the supplemental order, the court subsequently

corrected that error by vacating that order, and we have affirmed

that decision. And, to the extent there is overlap, the statute clearly

requires that the APR issues remain in the domestic relations court.

¶ 32 Accordingly, we conclude that the adoption court did not err

by denying the motion to intervene.

B. Motion to Set Aside Adoption Decree

¶ 33 Psychological father contends that the adoption court erred by

denying his motion to set aside the adoption decree. Specifically, he

argues that the court should not have granted the adoption decree

because the child was not available for adoption under section

19-5-203(1), C.R.S. 2021. He also asserts that the court violated

his due process rights. We discern no basis for reversal.

¶ 34 We review the denial of a C.R.C.P. 60(b) motion to set aside a

judgment for an abuse of discretion. Gold Hill Dev. Co. v. TSG Ski &

Golf, LLC, 2015 COA 177, ¶ 65. A court abuses its discretion if the

ruling is manifestly arbitrary, unreasonable, or unfair, or based on

a misunderstanding of the law. Id.

15
¶ 35 We conclude that the child was available for adoption. Section

19-5-203(1)(f) provides that a child may be available for adoption

upon written or verified consent of the parent or parents where the

child’s parents were not married at the time the child was conceived

or born. Again, for purposes of the Children’s Code, “[p]arent”

means either a natural parent or a parent by adoption.

§ 19-1-103(105)(a). At the time of the adoption, mother and

biological father were the child’s natural parents and they

consented to the adoption. Therefore, the child was available for

adoption. See § 19-5-203(1)(f).

¶ 36 We also conclude that the adoption court did not violate

psychological father’s due process rights. We review procedural due

process claims de novo. People in Interest of C.J., 2017 COA 157,

¶ 25. To establish a violation of due process, one must first

establish a constitutionally protected liberty interest that warrants

due process protections. Id. To be sure, a legal parent has a

fundamental liberty interest in the care, custody, and control of her

child. Troxel, 530 U.S. at 66. To protect the parental liberty

interest, due process requires the state to provide fundamentally

fair procedures to a legal parent facing termination. A.M. v. A.C.,

16
2013 CO 16, ¶ 28; see also Santosky v. Kramer, 455 U.S. 745, 753-

54 (1982). These procedures include a legal parent receiving notice

of the hearing, advice of counsel, and the opportunity to be heard

and defend. People in Interest of Z.P.S., 2016 COA 20, ¶ 40.

¶ 37 But psychological father was not a legal parent facing

termination of his parental rights. And his ability to protect his

interests related to the APR remains intact, albeit in the domestic

relations court. Therefore, the court did not have to ensure that

psychological father received notice and the opportunity to be heard

on the issue of stepparent adoption.6

6 That being said, the General Assembly may wish to consider
requiring notice of an adoption to a person to whom parental
responsibilities have been allocated. Such a person — perhaps, as
here, a psychological parent or a family member who was allocated
parental responsibilities in lieu of terminating a parent’s rights at
the conclusion of a dependency and neglect case — may very well
be able to provide an adoption court with valuable information
related to the factors the court must consider when determining
whether to grant the adoption request, including, among other
things, the moral character of the party seeking to adopt the child,
whether the adoption is in the best interest of the child, and
whether the child has a significant relationship with a sibling or
half-sibling that might be adversely impacted by the adoption. See
§ 19-5-210(2), C.R.S. 2021 (enumerating the factors an adoption
court is to consider before granting an adoption request).

17
¶ 38 Accordingly, we conclude that the adoption court did not err

by denying the motion to set aside.

C. Motion for Access

¶ 39 We next reject psychological father’s contention that he is

entitled to access to the adoption case file and register of actions.

Psychological father is not within the class of persons who are

permitted to receive access to adoption records under section

19-5-305(2)(b)(I)(A).7 While the statute permits a court to authorize

disclosure of these records to other parties for good cause shown,

§ 19-5-305(1), there is no such good cause here. Psychological

father sought access to the records to assist in his appeal of the

denial of his request to intervene and set aside the adoption for lack

of notice. Because this claim turns on the purely legal issue of

whether psychological father is statutorily entitled to notice and to

participate in the adoption case, psychological father can

adequately brief the issue (and has done so) without access to the

record.

7In addition, adoption cases are sealed and not accessible to
nonparties. Chief Justice Directive 05-01, Directive Concerning
Access to Court Records § 4.60(b)(1) (effective Jan. 4, 2022).

18
¶ 40 Accordingly, we conclude that the adoption court did not err

by denying the motion for access.

IV. Appellate Attorney Fees

¶ 41 Finally, we decline adoptive father’s and psychological father’s

requests for appellate attorney fees under C.A.R. 39.5 and section

13-17-102, C.R.S. 2021. Given our resolution of the issues, it

cannot be said that either party’s position was substantially

groundless, frivolous, or vexatious.

V. Conclusion

¶ 42 The orders are affirmed.

JUDGE RICHMAN and JUDGE GROVE concur.

19