Peo in Interest of EG-M

23CA1142 Peo in Interest of EG-M 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1142

El Paso County District Court No. 20JV866

Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.G-M. and V.G-M., Children,

and Concerning G.M.,

Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE NAVARRO

Pawar and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County

Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant

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¶ 1 In this dependency and neglect proceeding, G.M. (presumptive

father) appeals the judgment declaring F.E.G. (biological father) the

legal father of twins, E.G-M. and V.G-M. (the children). We affirm.

I. Background

¶ 2 In November 2020, the El Paso County Department of Human

Services (the Department) filed a petition in dependency and

neglect, alleging that presumptive father was not able to meet the

heightened needs of the children, who were twenty-one months old.

The juvenile court granted temporary custody of the children to the

Department for placement in foster care.

¶ 3 The petition listed presumptive father, unknown mother, and

unknown father as respondents. At the shelter hearing,

presumptive father asserted that paternity was not at issue. The

court adjudicated the children dependent and neglected and

adopted a treatment plan for presumptive father.

¶ 4 Eight months later, mother appeared in the case for the first

time. At the next hearing, the juvenile court ordered presumptive

father to complete genetic testing based on representations from

mother that he might not be the child’s genetic father. Presumptive

father objected to testing “on the basis he feels he has been the

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father and is on the birth certificate.” The court affirmed that

presumptive father had a presumption of parentage but ordered

genetic testing nonetheless because “there may be other legal

presumptive parents out there.”

¶ 5 A few months after that hearing, mother filed a paternity

affidavit listing biological father as the only possible genetic father

of the children. The court again ordered presumptive father to

complete genetic testing. The court amended the petition and

added biological father as a respondent.

¶ 6 In February 2022 (over two years after the petition was filed),

the juvenile court ordered both presumptive father and biological

father to complete genetic testing, noting this would be the third

order for presumptive father to participate in the testing.

¶ 7 Two months later, presumptive father requested a paternity

hearing. Although genetic testing revealed that presumptive father

was not the child’s genetic parent, he asserted two presumptions of

paternity: (1) he was married to mother at the time of the birth and

appeared on the birth certificates and (2) he was the psychological

father. Biological father had not yet completed a scheduled genetic

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test; even so, he asserted that he believed he was the genetic father

and asked the Department to arrange for family time.

¶ 8 A February 2023 parentage hearing was converted into an

appearance review at presumptive father’s request because of a

change in his counsel. At that hearing, the parties agreed that all

the pending hearings should “start over” and should be held in

front of a district court judge. All parties agreed that paternity was

the “number one” issue that needed to be resolved.

¶ 9 Following a contested hearing in May 2023, the juvenile court

adjudicated biological father as the legal father of the children.

II. Parentage

¶ 10 A juvenile court may determine a child’s parentage as part of a

dependency and neglect proceeding. See People in Interest of J.G.C.,

2013 COA 171, ¶ 10. When a parentage issue arises in a

nonpaternity proceeding, the court must follow the procedures

outlined in Colorado’s Uniform Parentage Act (UPA). Id. at ¶ 11.

¶ 11 Under the Children’s Code, a “parent” is “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), C.R.S. 2023.

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¶ 12 Under article 4 (the UPA), a presumption of parentage may

arise from various circumstances. As relevant here, such a

presumption may arise if:

• the person was married to the parent who gave birth to

the child when the child was born, as provided in section

19-4-105(1)(a), C.R.S. 2023;

• the person receives the child into their home and “openly

holds out the child as the person’s natural child,” as

provided in section 19-4-105(1)(d); or

• genetic or other tests of inherited characteristics have

been administered, and the results show that the alleged

parent is not excluded as the probable genetic parent and

that the probability of their parentage is ninety-seven

percent or higher, as provided in section 19-4-105(1)(f).

¶ 13 A presumption of parentage can be rebutted by clear and

convincing evidence. § 19-4-105(2)(a). None of the presumptions is

conclusive, including the presumption based on biology. N.A.H. v.

S.L.S., 9 P.3d 354, 361-62 (Colo. 2000).

¶ 14 If two or more conflicting presumptions arise, and none has

been overcome by clear and convincing evidence, the presumption

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that is founded on the weightier considerations of policy and logic

controls. § 19-4-105(2)(a). In determining which of the conflicting

presumptions controls, the court must consider “all pertinent

factors” including those listed in section 19-4-105(2)(a)(I)–(VIII). The

inquiry is fact-intensive, and the court must focus on the best

interests of the child when weighing competing presumptions of

parenthood. N.A.H., 9 P.3d at 362.

¶ 15 In a parentage decision, the juvenile court has the authority to

assess the credibility of the witnesses, evidence, and parties’

competing claims as to the children’s best interests. Id. at 365. We

“afford[] the trial judge significant deference” in the assessment of

the “myriad relevant facts that may properly influence” a

determination of parentage. Id. Therefore, we defer to the court’s

factual findings if they are supported by the record. People In

Interest of K.L.W., 2021 COA 56, ¶ 42.

A. Competing Presumptions

¶ 16 It is uncontested that presumptive father and biological father

were each entitled to competing presumptions.

¶ 17 Presumptive father asserted that he was entitled to

presumptions of parentage because he was married to mother when

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the children were born, appeared on their birth certificates, and

received the children into his home.

¶ 18 Biological father asserted that he was entitled to a

presumption of parentage because he completed genetic testing that

showed the probability of his parentage was higher than ninety-

seven percent.

¶ 19 At the hearing, no party attempted to rebut the presumptions.

Instead, the argument of the parties and the analysis of the juvenile

court centered on the factors listed in section 19-4-105(2)(a).

B. A Voluntary Acknowledgment of Parentage

¶ 20 A voluntary acknowledgement of parentage that complies with

section 19-4-105 and other statutes “is equivalent to an

adjudication of parentage” and may be challenged only “on the

basis of fraud, duress, or mistake of material fact, with the burden

of proof upon the challenger.” § 19-4-105(2)(c)-(d).

¶ 21 Presumptive father asserts that the juvenile court erred by not

determining if his appearance on the children’s birth certificates

gave rise to a legal finding of paternity that would have rebutted all

other presumptions of parentage.

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¶ 22 That is not, however, the argument he made before the

juvenile court.

¶ 23 Throughout the proceeding, presumptive father asserted that

his name was listed on the birth certificate. But he always made

this assertion in the context of his claim that he was entitled to

multiple presumptions of parentage. For example, during closing

arguments at the parentage hearing, he asserted he “me[t] criteria

under several of those presumptions” because he appeared on the

birth certificates.

¶ 24 Because presumptive father’s argument on appeal (that the

birth certificate may have qualified as an independent adjudication

of parentage) is different from his argument to the juvenile court

(that the birth certificate created a presumption of parentage), we

decline to address it. See People in Interest of M.B., 2020 COA 13,

¶ 14; People v. Ujaama, 2012 COA 36, ¶ 37 (explaining that issues

are unpreserved when the grounds raised on appeal are different

from those raised below).

C. The Impact of Delaying a Parentage Finding

¶ 25 Presumptive father next contends that the juvenile court erred

by “wrongfully infer[ring] that [he] had not promptly and proactively

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asserted his parental status” and then applying that inference to its

analysis under the factors in section 19-4-105(2)(a). Because there

is some record support for the court’s findings, we will not disturb

them.

¶ 26 In its oral ruling, the court thoroughly weighed the factors in

section 19-4-105(2)(a). The first factor is the length of time between

the proceedings and when the presumed parent was placed on

notice that they might not be the genetic parent. § 19-4-105(2)(a)(I).

The court found that both presumptive father and biological father

“sat on this for a significant amount of time.” As relevant to

presumptive father’s appeal, the court found that obtaining a legal

parentage finding was not a priority to presumptive father and that

he could have brought the motion sooner if he “truly wanted to be

found the children’s legal father.”

¶ 27 Presumptive father contends that juvenile court’s finding that

he delayed in asserting his paternity was erroneous. True, he

asserted that he was the children’s father throughout the

proceedings and asked for a parentage hearing in April 2022, more

than a year before the hearing was finally held. The magistrate who

oversaw much of the case noted that delays in holding the

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parentage hearing were largely attributed to “logistical issues”

including docketing problems that caused an eight-month gap

between hearings of any kind in the case.

¶ 28 And we acknowledge that the district court might not have

started the parentage hearing fully aware of these docketing delays.

At the start of the hearing, the court noted that presumptive father

filed a written motion only two days before the hearing and asked if

the parties were prepared to address the parentage issue.

¶ 29 Still, we are not persuaded by presumptive father’s argument

for two reasons. First, in response to the court’s questions about

the “late motion,” the parties said that parentage had “been raised

orally in court . . . at every single hearing” since biological father

was added as a respondent and that they “had been requesting a

paternity hearing for over a year” in front of the magistrate. All

parties agreed that the purpose of the May 2023 hearing was to

address parentage. Furthermore, at the end of the hearing, the

court acknowledged the delay and “apologize[d] that it took that

long to get [parentage] handled. That should have happened far

ahead of today’s date.”

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¶ 30 Second, the court heard evidence that presumptive father

knew or should have known that he was not the biological father

before the Department became involved, but he did not take steps

to establish his parentage. Presumptive father testified that he did

not know mother was pregnant with the children and was not

present for their birth. He testified that mother never told him that

the children were his. After first refusing to answer if he and

mother had sexual intercourse within the ten months before the

children were born, presumptive father testified that he could not

remember. Presumptive father did not meet the children until they

were “maybe six or seven months” old. He testified that he knew

the children existed before then but could not recall how or when

he learned of their birth. Presumptive father testified that other

people suggested that the children were not his, but he did not

accept that idea because, when he married mother, he “took the

load” of caring for them. He also testified, however, that he knew

mother had another child with his last name but who lived with her

“real father.” Presumptive father testified that, even after he found

out he was not the children’s genetic father, he “still remained their

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daddy.” But it was unclear from his testimony when he learned or

started to believe that he was not their genetic parent.

¶ 31 It was the juvenile court’s responsibility, as the trier of fact, to

determine the sufficiency, probative effect, and weight of the

evidence and to assess witness credibility. People in Interest of

C.A.K., 652 P.2d 603, 613 (Colo. 1982). When the evidence

conflicts, a reviewing court may not reweigh the evidence or

substitute its judgment for the juvenile court’s judgment merely

because there might be evidence supporting a different result. See

People in the Interest of A.J.L., 243 P.3d 244, 256 (Colo. 2010).

¶ 32 Given that there is record support for the juvenile court’s

finding that presumptive father delayed pursuing a finding of legal

parentage, we will not disturb the court’s findings or legal

conclusions based on those findings, including the court’s weighing

of the other factors in section 19-4-105(2)(a).

III. Ineffective Assistance of Counsel

¶ 33 Presumptive father next contends that, by “failing to

adequately apprise the court of the duration and seriousness of

[presumptive father]’s commitment to parenting the children,

[presumptive father]’s trial counsel provided him with ineffective

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assistance of counsel, prejudicing the outcome of the parentage

hearing.” In particular, presumptive father asserts that trial

counsel should have called his psychiatrist, pain management

doctor, and life skills worker to testify. We are not persuaded.

¶ 34 Colorado case law recognizes that a parent’s statutory right to

counsel includes the right to effective assistance of counsel. See

A.R. v. D.R., 2020 CO 10, ¶ 47; People in Interest of S.L., 2017 COA

160, ¶ 58; People in Interest of C.H., 166 P.3d 288, 290 (Colo. App.

2007).

¶ 35 To successfully make an ineffective assistance of counsel

claim, a parent must show that (1) counsel’s performance was

outside the wide range of professionally competent assistance and

(2) the parent was prejudiced by counsel’s errors. A.R., ¶¶ 48, 60;

C.H., 166 P.3d at 291-92.

¶ 36 An ineffective assistance of counsel claim must allege facts

with sufficient specificity to be successful if those facts were true,

including, for example, the expected names of witnesses to be

called, the expected substance of testimony, and a clear explanation

of how that testimony would demonstrate that trial counsel’s

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performance was outside the wide range of professionally competent

assistance. See C.H., 166 P.3d at 291.

¶ 37 To show prejudice, the parent must show a reasonable

probability that the outcome of the proceeding would have been

different but for counsel’s deficient performance or unprofessional

errors. A.R., ¶ 60. If the parent’s allegations lack sufficient

specificity, we may summarily deny the ineffective assistance claim.

See C.H., 166 P.3d at 291. In other words, a remand for an

evidentiary hearing is required only if the parent’s allegations are

sufficiently specific and compelling to constitute a prima facie

showing of ineffective assistance of counsel. Id.

¶ 38 We conclude that presumptive father’s allegations lack

sufficient specificity to warrant a hearing. See id. While

presumptive father suggests specific witnesses who might have

been called, he does not provide the expected substance of their

testimony. Presumptive father refers instead to earlier testimony

provided by his psychologist and pain management doctor. The

juvenile court, however, heard testimony from those professionals.

As the court explained, their testimony “wasn’t as to paternity, but .

. . as to some of the other issues we’ve had in the case quite a long

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time ago.” Regarding presumptive father’s assertion that his life

skills provider “would have testified to [presumptive father]’s

positive parenting attributes,” the assertion is not specific enough

to constitute the prima facie showing necessary to remand the

matter.

¶ 39 Furthermore, while presumptive father now alleges that his

counsel failed to apprise the court of the “duration and seriousness

of [his] commitment to parenting the children,” our review of the

record reveals that this desire was not in doubt. Presumptive father

testified that he stepped in to care for the children when they were

around six or seven months old. His desire to continue parenting

the children was also supported by the caseworker, who reported

that presumptive father (1) was “a nice guy and he loves these

children”; (2) had good interactions with the children at her last

observation; and (3) was “very loving and affectionate” with the

children. The juvenile court said it “simply can’t find there is a

significant close relationship . . . . Not because [presumptive father]

doesn’t love them, not because he doesn’t want to be there for

[them], [but] because we haven’t been able to progress very far in

this case.”

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¶ 40 Therefore, we conclude that presumptive father has not raised

sufficiently specific or compelling allegations to constitute a prima

facie showing of ineffective assistance of counsel.

IV. Conclusion

¶ 41 The judgment is affirmed.

JUDGE PAWAR and JUDGE JOHNSON