Interest of JH

23CA0982 Interest of JH 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0982

Archuleta County District Court No. 18JV12

Honorable Jeffrey R. Wilson, Judge

In the Interest of J.H., a Child,

and Concerning C.D.,

Appellee,

and

A.H.,

Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE NAVARRO

Johnson and Hawthorne*, JJ., concur

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

Announced August 15, 2024

The Law Firm of Lisa Ward, LLC, Lisa Ward, Donald Lawrence, Jr., Durango,

Colorado, for Appellee

Anne Whalen Gill, LLC, Anne Whalen Gill, Castle Rock, 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. 2023.

1

¶ 1 A.H. (mother) appeals the district court’s judgment

adjudicating C.D. as the legal father of J.H. (the child), which

included the court’s order rejecting a magistrate’s earlier dismissal

of C.D.’s petition for paternity and adjudication of B.D. (biological

father) as the child’s legal father. We affirm.

I. Background

¶ 2 In July 2018, C.D. filed a petition for paternity asking to be

adjudicated the child’s legal father. C.D. admitted he was not the

child’s biological parent but alleged that he was the legal father

under the holding-out presumption in the Colorado Uniform

Parentage Act (UPA), section 19-4-105(1)(d), C.R.S. 2023. His

paternity claim was based on allegations that he received the child

into his home and openly held out the child as his natural child

while the child was under the age of majority. Mother objected to

the petition and claimed that C.D. never held out the child as his

own. Thereafter, biological father intervened in the case and

completed a paternity test, which indicated a greater than 99.99%

possibility that he was the child’s biological parent. Biological

father requested that he be adjudicated the child’s legal father

under the UPA.

2

¶ 3 In October 2019, a magistrate held a hearing on C.D.’s petition

for paternity. The magistrate bifurcated the hearing so that the

only issue to be decided was whether C.D. established a

presumption of paternity. At the close of C.D.’s case, mother moved

for a directed verdict, arguing that no evidence established that

C.D. had openly held out the child as his natural child. After

considering the parties’ supplemental briefing, the magistrate

dismissed C.D.’s petition for paternity, finding that he did not

establish a presumption under section 19-4-105(1)(d) because he

had not hold out the child as his natural child. Then, finding no

competing presumption of paternity, the magistrate adjudicated

biological father as the child’s legal father. The magistrate’s written

order included an advisement stating that “[a]ny appeal must be

taken in accordance with Rule 7(b) of the Colorado Rules for

Magistrates.”

¶ 4 Pursuant to the magistrate’s advisement and C.R.M. 7(b), C.D.

directly appealed the magistrate’s order to this court. A division of

this court dismissed the appeal for lack of jurisdiction, however,

because section 19-1-108, C.R.S. 2023, required C.D. to seek

review from the district court before he could appeal to this court,

3

regardless of the magistrate’s C.R.M. 7(b) advisement. See In re

Parental Responsibilities Concerning J.H., 2021 COA 94, ¶¶ 13-14

(J.H. I). The division determined that, while C.D.’s reliance on the

magistrate’s erroneous advisement could not confer appellate

jurisdiction, the district court could determine whether C.D.’s

reliance on the advisement established a proper basis under the

unique circumstances doctrine to excuse the untimely filing of a

petition for review in the district court. Id. at ¶¶ 15-19.

¶ 5 On the same date this court issued the mandate returning

jurisdiction to the district court, C.D. moved the district court to

accept his untimely petition for review. He asserted that unique

circumstances existed because he had reasonably relied on the

magistrate’s erroneous advisement directing him to file an appeal to

this court instead of a petition for review in the district court.

Mother opposed, arguing that it was not reasonable for C.D.’s

experienced counsel to rely on the magistrate’s erroneous

advisement.

¶ 6 The district court did not make specific findings as to whether

C.D.’s reliance on the magistrate’s advisement was sufficient to

invoke the unique circumstances doctrine. Instead, the court ruled

4

on the merits of C.D.’s petition for review, finding that the

magistrate had incorrectly interpreted section 19-4-105(1)(d) by

inserting a requirement that a person refer to a child as their

“biological” or “genetic” child in order to establish the holding-out

presumption. Thus, the court rejected the magistrate’s orders

dismissing C.D.’s petition and adjudicating biological father as legal

father.

¶ 7 Thereafter, the district court held a new hearing on C.D.’s

petition for paternity. After the hearing, the court took the matter

under advisement and later entered a written judgment, noting that

biological father had an undisputed presumption of paternity based

on genetic testing and finding that C.D. had established the

holding-out presumption of paternity. The court then weighed the

competing presumptions and found that it was in the child’s best

interests to adjudicate C.D. as the child’s legal father.

II. Acceptance of the Untimely Petition for Review

¶ 8 Mother first argues that the district court erred by accepting

C.D.’s untimely petition for review because C.D. failed to establish

grounds justifying his late filing. We disagree.

5

A. Preservation

¶ 9 C.D. argues that mother failed to specify the precise location

in the record where she raised the timeliness issue and where the

district court ruled on the issue. We are not persuaded because

mother argued, in her response to C.D.’s motion asking the court to

accept the petition for review, that he had failed to establish

grounds justifying the late filing of his petition. See Gebert v. Sears,

Roebuck & Co., 2023 COA 107, ¶ 25 (to properly preserve an

argument for appeal, a party must present “the sum and substance

of the argument” to the trial court) (citation omitted).

B. Applicable Law and Standard of Review

¶ 10 In a proceeding under Article 4 of the Colorado Children’s

Code, a petition for review of a magistrate’s order must be filed

within fourteen days. § 19-1-108(5.5), C.R.S. 2023. But the filing

deadline set out by section 19-1-108(5.5) is not jurisdictional. C.S.

v. People, 83 P.3d 627, 635 (Colo. 2004). Thus, a district court has

jurisdiction to consider an untimely petition for review. Id.

¶ 11 Our supreme court has recognized that a district court may

excuse the untimeliness of a petition for review when the delay is

the result of excusable neglect. Id. Excusable neglect exists in a

6

“situation where the failure to act results from circumstances which

would cause a reasonably careful person to neglect a duty.” People

in Interest of L.B-H-P., 2021 COA 5, ¶ 12 (quoting People in Interest

of M.A.M., 167 P.3d 169, 172 (Colo. App. 2007)). Moreover, as

noted in J.H. I, divisions of this court have recognized that a district

court may excuse the untimeliness of a petition when the delay is

the result of unique circumstances. See In re Marriage of Stockman,

251 P.3d 541, 543 (Colo. App. 2010). Unique circumstances exist

“if a party reasonably relies and acts upon an erroneous or

misleading statement or ruling by the trial court.” In Interest of

C.A.B.L., 221 P.3d 433, 440 (Colo. App. 2009) (quoting People in

Interest of A.J.H., 134 P.3d 528, 531 (Colo. App. 2006)).

¶ 12 We review a district court’s decision to entertain an untimely

petition for review for an abuse of discretion. See M.A.M., 167 P.3d

at 172. A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or if it is based on an erroneous

understanding or application of law. People in Interest of M.W.,

2022 COA 72, ¶ 12.

7

C. Analysis

¶ 13 Although mother argues that C.D. failed to establish excusable

neglect, he did not attempt to establish excusable neglect to justify

his late filing. Rather, he asked the district court to accept his

untimely petition for review because his error was caused by his

reliance on the magistrate’s erroneous advisement, which directed

him to C.R.M. 7(b) instead section 19-1-108(5.5). And the cases

mother cites to support her argument about excusable neglect did

not involve a party’s reliance on a magistrate’s erroneous or

misleading advisement. See L.B-H-P., ¶ 14 (the untimely filing of a

petition for review was based on counsel’s misunderstanding of the

filing deadline, medical condition, and other commitments); C.S., 83

P.3d at 633 (the untimely filing of the petition was based on

counsel’s lack of awareness that a magistrate had entered the

relevant order). Moreover, mother does not provide, and we have

not found, any legal authority holding that a finding of excusable

neglect is the only basis on which a district court may properly

exercise its discretion to accept an untimely petition for review.

¶ 14 Next, citing Bowles v. Russel, 551 U.S. 205 (2007), mother

argues that a district court cannot accept a late petition for review

8

based on the unique circumstances doctrine because the United

States Supreme Court has rejected this doctrine. The Bowles

decision, however, was not rooted in federal constitutional law but

in an interpretation of federal statutes and rules. Therefore, it does

not control a Colorado court’s application of Colorado law. And the

Colorado Supreme Court has not abolished the unique

circumstances doctrine. Cf. Converse v. Zinke, 635 P.2d 882, 886

(Colo. 1981) (applying the unique circumstances doctrine).

¶ 15 At any rate, Bowles is inapposite. There, the United States

Supreme Court decided that the unique circumstances doctrine

could not be invoked to excuse the late filing of a notice of appeal

because courts do not have the authority to “create equitable

exceptions to jurisdictional requirements.” Bowles, 551 U.S. at

214. But, as noted above, the timely filing of a petition for review is

not jurisdictional, unlike the timely filing of a notice of appeal. C.S.,

83 P.3d at 635. Thus, the reasoning of Bowles has no application

here.

¶ 16 To reiterate, C.D. argued that unique circumstances justified

his late filing of the petition for review, and the district court

accepted his petition and considered it on its merits. Thus, we

9

presume that the court determined that C.D. had established

sufficient justification for his untimely petition. That determination

was not an abuse of discretion, particularly in consideration of the

magistrate’s erroneous advisement.

¶ 17 Therefore, reversal is not warranted based on the district

court’s acceptance of the untimely petition for review. Because the

court reasonably exercised its discretion to entertain the untimely

petition, we have jurisdiction to review the issues presented on

appeal. See id. at 635-36.

III. Rejection of the Magistrate’s Order

¶ 18 Mother contends that the district court erred by rejecting the

magistrate’s order based solely on the magistrate’s erroneous

statutory interpretation, without deferring to the magistrate’s

factual findings. She asserts that, even under the court’s

interpretation of section 19-4-105(1)(d) set out in its ruling on

C.D.’s petition for review, the evidence presented at the hearing in

front of the magistrate was sufficient to show that C.D. had failed to

establish the holding-out presumption. In essence, mother argues

that the magistrate’s erroneous interpretation of section 19-4-

10

105(1)(d) was harmless and, thus, the court’s rejection of the

magistrate’s order was unwarranted.

¶ 19 C.D. argues that mother failed to preserve this argument, and

we agree.

¶ 20 When, as here, a district court has reviewed a magistrate’s

ruling, we effectively engage in a second layer of appellate review.

People in Interest of N.G., 2012 COA 131, ¶ 37. A party must

present a particular issue to the district court before that issue may

be raised to us on appeal. See People in Interest of K.L-P., 148 P.3d

402, 403 (Colo. App. 2006).

¶ 21 In her response to C.D.’s petition for review, mother argued

that the district court should reject C.D.’s argument that the

magistrate’s statutory interpretation of the holding-out presumption

was erroneous. Mother reiterated some of the magistrate’s factual

findings and asserted that C.D. oversimplified the magistrate’s

order. Mother also argued that the “law requires an open

acknowledgement of the claims of ‘natural’ parentage.” But she

never argued, as she does before this court, that the magistrate’s

factual findings supported a determination that C.D. failed to

establish the holding-out presumption under any interpretation of

11

the statute. Although mother asserts that she preserved the

argument in her C.R.C.P. 59 motion, she did not argue in that

motion that, even under the district court’s interpretation of section

19-4-105(1)(d), the magistrate’s factual findings nonetheless

supported a conclusion that C.D. failed to establish the holding-out

presumption. Instead, mother argued that the district court’s

interpretation of section 19-4-105(1)(d) was inconsistent with the

intent or purpose of the statute. Because she did not present the

sum and substance of her current argument to the district court,

she did not preserve it for our review. See Gebert, ¶ 25.

IV. Determination of Paternity

¶ 22 Lastly, mother contends that the district court erred by

determining that C.D. was the child’s legal father. Mother asserts

that, in its analysis of whether C.D. had established the holding-out

presumption, the court improperly focused on whether he acted as

a psychological parent instead of whether he held out the child as

his “natural child.” Mother also asserts that the court failed to

consider and address the pertinent statutory factors when weighing

the competing presumptions of paternity. We disagree.

12

A. Preservation

¶ 23 C.D. argues that mother failed to preserve her argument for

appeal because she fails to cite to the specific place in the record

where the argument was preserved and, instead, refers to a brief

she filed before the magistrate entered its initial order determining

paternity. We agree that mother’s statement that she “raised this

issue repeatedly,” along with citations to the briefs she filed before

the magistrate entered its initial order, do not meet the requirement

to provide “the precise location in the record where the issue was

raised and where the court ruled,” as required under C.A.R.

28(a)(7)(A). But C.A.R. 28(a)(7)(A) is a procedural rule that relieves

us from the burden of having to search the record to determine

whether an issue was raised and resolved in the trial courts. See

O’Quinn v. Baca, 250 P.3d 629, 631 (Colo. App. 2010). And while

we have no obligation to undertake such a search, in this case, it is

clear that mother raised this issue to the district court.

¶ 24 Throughout the hearing in front of the district court, mother’s

counsel repeatedly argued that the court could not consider the

factors relevant to the allocation of parental responsibilities (APR) or

the determination of whether a person is a psychological parent.

13

And in closing argument, mother’s counsel asserted that the district

court could not apply the “psychological parent statute” or the

“sharing of parental responsibilities statute.” Thus, because mother

presented the sum and substance of her argument to the district

court, she preserved it for appeal. See Gebert, ¶ 25.

B. Applicable Law and Standard of Review

¶ 25 Under the UPA, the determination of paternity involves two

steps. See People in Interest of C.L.S., 313 P.3d 662, 666-67 (Colo.

App. 2011). First, a court must determine whether one of the

statutory presumptions of parentage in section 19-4-

105(1) applies. Id. at 666. As relevant to this appeal, a person is a

presumed parent if the person “receives the child into the person’s

home and openly holds out the child as the person’s natural child”

or if genetic test results show that the alleged parent is not

excluded as the probable genetic parent and that the probability of

the person’s genetic parentage is ninety-seven percent or

higher. § 19-4-105(1)(d), (f). Once a presumption is established, it

may be rebutted only by clear and convincing evidence. People in

Interest of K.L.W., 2021 COA 56, ¶ 70.

14

¶ 26 If competing presumptions are established and not rebutted, a

court must move on to the second step of the analysis. C.L.S., 313

P.3d at 667. At that point, a court must apply a preponderance of

the evidence standard to resolve the competing presumptions and

determine which should control based on the weightier

considerations of policy and logic. K.L.W., ¶ 70. No presumption is

conclusive or “automatically eliminates other presumptions of

parentage.” Id. at ¶ 67. In determining which of two competing

presumptions controls, a court must consider all pertinent factors,

including but not limited to those listed in section 19-4-105(2)(a)(I)-

(VIII). The result of this process is to find one person the child’s

legal parent, while the other person becomes a “nonparent.” See

C.L.S., 313 P.3d at 667.

¶ 27 We review de novo a challenge to a court’s application of the

correct legal standards for determining parentage. K.L.W.,

¶ 42. But we defer to a court’s factual findings if they are

supported by the record. Id.

C. Analysis

¶ 28 Mother, throughout her argument regarding the district

court’s determination of paternity, refers to the evidence presented

15

during the hearing in front of the magistrate and the magistrate’s

factual findings. And mother implies that the district court should

have considered the magistrate’s factual findings in conjunction

with the evidence presented at the hearing in front of the district

court. After the district court had rejected the magistrate’s order,

however, it held a status conference at which the parties discussed

whether the court would consider the evidence presented at the

hearing in front of the magistrate. Mother’s counsel stated that she

did not understand how the court could rely on the transcript of the

magistrate’s hearing when the case turned on credibility, and the

court agreed that it could not “pick up credibility” based solely on a

transcript. Ultimately, the parties agreed that they would have an

entirely new hearing and that the evidence presented at the hearing

in front of the magistrate would not be considered. Accordingly,

during the hearing in front of the court, mother’s counsel

“reminded” the court that the parties had “agreed [they] were

starting th[e] hearing afresh and that the transcripts from the prior

hearing were not going to be entered in this case.” Therefore, in our

review of the court’s determination of paternity, we consider only

the evidence presented during the hearing in front of the court.

16

1. The Holding-Out Presumption

¶ 29 C.D. asserted that he was the presumed father of the child

under the holding-out presumption, which requires a person to

prove that, while the child was under the age of majority, the

person (1) received the child into their home and (2) held the child

out as their natural child. See § 19-4-105(1)(d). Mother argues

that C.D. failed to prove that he received the child into his home

and, instead, proved only that he lived with mother and the child

while his parents paid his portion of the rent. But section 19-4-

105(1)(d) does not state that a person must receive a child into their

own, separate home to meet the presumption. And mother has not

directed us to any legal authority supporting her position. Rather,

the court found, with record support, that because C.D. received

the child into the home he shared with mother, and they all lived

together for the first four-and-a-half years of the child’s life, the

statutory requirement was satisfied.

¶ 30 Mother also asserts that there was no credible evidence

showing that C.D. held the child out as his natural child. But

mother refers to the magistrate’s findings, not the district court’s

findings, to support this argument. And the district court found,

17

with record support, that C.D. had treated the child as his natural

son by caring for him, taking him to be circumcised, taking him to

and from preschool, and acting as if the child was his natural son

in public.

¶ 31 It is true that, after the district court determined that C.D. had

established his presumption by a preponderance of the evidence,

the court did not specifically address whether mother had

presented clear and convincing evidence to rebut the presumption.

See K.L.W., ¶ 70 (once a presumption is established, it may be

rebutted by clear and convincing evidence). But mother does not

point us to the clear and convincing evidence she now claims

showed that C.D. did not receive the child into his home or hold out

the child out as his natural child. And our review of the record

does not reveal such evidence. See L.S.S. v. S.A.P., 2022 COA 123,

¶ 39 (clear and convincing evidence is “evidence that is highly

probable and free from serious or substantial doubt”) (citation

omitted). Therefore, we discern no error in the district court’s

determination that C.D. established an unrebutted presumption of

paternity under section 19-4-105(1)(d).

18

2. Competing Presumptions

¶ 32 Next, because the district court found that C.D. had met his

presumption, and it was undisputed that biological father had a

competing presumption under section 19-4-105(1)(f), the court was

required to determine which presumption controlled. See K.L.W.,

¶ 70. In conducting this fact-intensive inquiry, the court was

required to focus on the best interests of the child and make the

determination of paternity with that standard at the forefront. See

C.L.S., 313 P.3d at 667. Although mother asserts that the burden

of proof for weighing the presumptions was clear and convincing

evidence, the court was required to apply the preponderance of the

evidence standard to resolve unrebutted competing parentage

presumptions and determine which should control. K.L.W., ¶ 70.

¶ 33 Mother asserts that the district court conflated the

requirements of establishing paternity with the requirements for

establishing that a party is a psychological parent or that a

nonparent is entitled to parenting time. But mother simultaneously

asserts that “the APR statute places the burden on a nonparent to

overcome the presumption in favor of the biological parent.” Then,

citing In re Parental Responsibilities Concerning B.J., 242 P.3d 1128

19

(Colo. 2010), she argues that the district court erred by failing to

make factual findings on the “special factors” on which it relied. We

reject this argument because B.J. articulates the requirements that

must be met for a court to allocate parenting time to a nonparent

under sections 14-10-123 and -124, C.R.S. 2023. As mother

repeatedly points out, the district court was required to apply only

section 19-4-105 to determine paternity, and it would have been

error for the court to consider the “special factors” related to

determining parenting time discussed in B.J.

¶ 34 Moreover, the record shows that the district court considered

the factors listed in section 19-4-105(2)(a) when determining which

presumption should control. After specifically citing the factors

listed in 19-4-105(2)(a), the court found, with record support, that

biological father had shown little interest in being the child’s father,

had never paid child support, and had seen the child on only four

occasions. The court then found, with record support, that C.D.

had been a part of the child’s first four-and-a-half years of life, that

C.D. had moved to Texas to be closer to the child in hope that he

would be able to participate in the child’s life again, and that the

child still remembered C.D. and wanted to see him. Thus, in

20

weighing the competing presumptions, the court found that it was

in the child’s best interests for C.D. to be adjudicated as the child’s

legal father.

¶ 35 Nonetheless, mother asserts that, because evidence showed

that biological father was the genetic father who had exercised some

parenting time with the child, the court erred by determining that it

was in the child’s best interests for C.D. to be adjudicated as the

child’s legal father. As noted earlier, however, no presumption —

not even the presumption shown by biology — is conclusive or

automatically eliminates other presumptions of paternity. See

N.A.H. v. S.L.S., 9 P.3d 354, 361-62 (Colo. 2000). And the district

court’s findings were based on its “determination as to the

credibility of the parties and the witnesses.” Ultimately, we cannot

reweigh the evidence and substitute our judgment for the

court’s. See K.L.W., ¶ 62. As a result, we discern no error in the

court’s adjudication of C.D. as the child’s legal father.

V. Appellate Attorney Fees

¶ 36 We deny both parties’ requests for an award of appellate

attorney fees.

21

¶ 37 C.D. requests appellate attorney fees under section 13-17-102,

C.R.S. 2023, claiming that mother’s appeal was frivolous and that

she did not comply with the requirements of C.A.R. 28. Although

we reject mother’s arguments, we do not agree that they were

frivolous or that they lacked substantial justification.

Consequently, we decline to award fees to C.D. See In re Estate of

Shimizu, 2016 COA 163, ¶ 34 (“Under section 13-17-102, an award

of fees on appeal is appropriate only in clear and unequivocal cases

where no rational argument is presented and thus, the appeal is

frivolous.”).

¶ 38 Mother requests appellate attorney fees under section 13-17-

102, claiming that C.D.’s answer brief was vexatious. Given our

disposition of this appeal, we decline to award fees to mother.

VI. Conclusion

¶ 39 The judgment is affirmed.

JUDGE JOHNSON and JUDGE HAWTHORNE concur.