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23CA0738 Peo in Interest of CS 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0738

Garfield County District Court No. 22JV60

Honorable James B. Boyd, Judge

The People of the State of Colorado,

Petitioner,

In the Interest of C.S., a Child,

and Concerning B.S.,

Appellant,

and J.P. and M.M.,

Appellees.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE FOX

Johnson and Schock, JJ., concur

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

Announced September 12, 2024

No appearance for Petitioner

Josie L. Burt, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for

Appellant

Peter A. Rachesky, Office of Respondent Parents’ Counsel, Lara L. Horst, Office

of Respondent Parents’ Counsel, Glenwood Springs, Colorado, for Appellee J.P.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for

Appellee M.M.

¶ 1 B.S. (biological father) appeals the judgment adjudicating J.P.

(psychological father) the legal father of C.S. (the child). We affirm.

I. Background

¶ 2 The child was born in 2019. At that time, M.M. (mother) was

in a relationship with biological father, who was present at the

child’s birth and was named on the birth certificate. After the

child’s birth, mother and biological father continued living together

and began raising the child together. Mother and biological father

later married in 2020.

¶ 3 Shortly thereafter, mother and biological father split up.

Mother began dating psychological father and later moved into

psychological father’s home with the child. After mother and

biological father broke up, biological father’s presence in the child’s

life waned. Mother and psychological father had previously had

sexual relations during the gestational period for the child, and

mother indicated to psychological father he may be the biological

father. Psychological father then held the child out as his own and

took on a fatherly role that continued after he and mother broke up.

¶ 4 In 2022, biological father moved for an allocation of parental

responsibilities (APR) in the domestic relations court and later filed

an affidavit of parentage in the same case. That case was not

completed, however, because it was certified into the juvenile court

after a dependency and neglect petition concerning the child was

filed.

¶ 5 The juvenile court held a contested paternity hearing at which

biological father and psychological father claimed various

presumptions of paternity. When the hearing concluded, the court

adjudicated psychological father the child’s legal father.

II. Discussion

¶ 6 Biological father asserts the juvenile court erred by

adjudicating psychological father the child’s legal father. We

disagree.

A. Applicable Law and Standard of Review

¶ 7 As part of a dependency and neglect proceeding, a juvenile

court may determine a child’s parentage. People in Interest of

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

nonparentage proceeding, the court must follow the Uniform

Parentage Act (UPA). See People in Interest of O.S-H., 2021 COA

130, ¶ 40.

¶ 8 Under the UPA, establishing parentage is not limited to

persons who have a biological connection to the child. In re

Parental Responsibilities Concerning A.R.L., 2013 COA 170, ¶ 19.

Instead, the court must first determine whether one of the statutory

presumptions of parentage outlined in section 19-4-105(1), C.R.S.

2024, applies. People in Interest of C.L.S., 313 P.3d 662, 666 (Colo.

App. 2011).

¶ 9 The UPA establishes five categories under which a person may

be presumed to be the natural father of a child. § 19-4-105(1)(a)-(f).

As relevant here, a person is a presumed parent if (1) “[a]fter the

child’s birth, the person and the parent who gave birth to the child

have married” and “the person is named as the child’s parent on the

child’s birth certificate”; (2) the person “receives the child into the

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

natural child”; or (3) genetic testing shows the person cannot be

excluded as the likely biological parent and “the probability of the

person’s genetic parentage is ninety-seven percent or higher.” § 19-

4-105(1)(c)(II), (d), (f).

¶ 10 If a presumption is established, parties may rebut it by clear

and convincing evidence. § 19-4-105(2)(a). If competing

presumptions remain after this first step, the court must then

“resolve the competing parentage presumptions and determine

which should control based on the weightier considerations of

policy and logic.” See People in Interest of K.L.W., 2021 COA 56,

¶ 70. The court must consider the various factors in section 19-4-

105(2)(a)(I)-(VII) in making this determination, but the court is not

limited to those factors. Id. at ¶ 52. This is a fact-intensive inquiry,

and the court must focus on the child’s best interests when

weighing the competing presumptions. N.A.H. v. S.L.S., 9 P.3d 354,

362 (Colo. 2000).

¶ 11 After conducting this analysis, the court will render one

person the child’s legal parent, while the other person becomes a

“nonparent” who has no rights and responsibilities with respect to

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

¶ 12 We review whether the juvenile court applied the correct legal

standard de novo. K.L.W., ¶ 42. But we defer to the court’s factual

findings if they are supported by the record. Id.

B. Findings as to Each Presumption

¶ 13 The crux of biological father’s argument centers around the

first step of analysis necessary under section 19-4-105(1) — the

determination of whether a person is presumed to be the natural

parent of a child. Specifically, biological father asserts that the

court could not have moved to the second step of analysis —

determining which of the competing presumptions between he and

J.P. were founded on the weightier considerations of policy and

logic — “when the competing presumptions were not correctly

identified in the first place.” We disagree.

¶ 14 Here, the court specifically found “that one or more statutory

presumptions of paternity apply to both [r]espondent [B.S.] and

[r]espondent [J.P.] and that the presumptions were not rebutted by

clear and convincing evidence.”

¶ 15 Even though the court did not make specific findings

regarding each statutory basis for biological father’s presumptions,

it is undisputed that (1) after the child’s birth, biological father and

mother married and with mother’s consent, she added biological

father’s name to the birth certificate, § 19-4-105(1)(c)(II); (2) he had

a genetic probability that he was the genetic father, § 19-4-105(1)(f);

(3) he welcomed the child into his home and held the child out as

his natural child; and, (4) though no longer a presumption

pursuant to statute, he filed an admission of paternity with the

domestic relations court, an argument we address further below in

Part II.C. Psychological father established the presumption under

section 19-4-105(1)(d) because he received the child into his home

and held the child out as his own. Therefore, both biological father

and psychological father were presumed to be the natural parent of

the child.

¶ 16 Moreover, the statute requires the court to consider which of

two or more conflicting presumptions controls, but biological father

cites to no authority, and we aware of none, requiring the court to

make specific findings as to each statutory presumption that might

apply to a presumed father. The court’s failure to make more

detailed findings regarding each presumption biological father

might have had is also irrelevant, given that no presumption carries

greater weight than another and the court had already found two

competing presumptions existed between biological father and

psychological father, and biological father does not state what

evidence would have rebutted psychological father’s presumption.

¶ 17 Having found that biological father and psychological father

each were presumed to be the parent on at least one statutory

ground, the court was faced with conflicting presumptions and was

not required to make further findings about every presumption in

each possible father’s favor.

¶ 18 The court then found that neither possible father’s

presumption had been rebutted by clear and convincing evidence

and moved on to the next step of resolving which competing

presumption controlled. Notably, biological father does not argue

that he rebutted psychological father’s presumption by clear and

convincing evidence.

C. Failure to Consider Repealed Statutory Provision

¶ 19 Biological father also asserts that the juvenile court’s failure to

consider a now-repealed subsection of the paternity presumption

statute constitutes reversible error. We disagree.

¶ 20 Before August 10, 2022, an additional presumption under the

UPA existed. See § 19-4-105(1)(e), C.R.S. 2022. At that time, a

presumption of paternity arose if a potential father “acknowledge[d]

his paternity in a writing filed with the court” and a mother, after

receiving knowledge of the filing, did not dispute the

acknowledgment within a reasonable time. Id.; see also O.S-H.,

¶ 41.

¶ 21 This admission of parentage would become a legal finding sixty

days after its execution, “unless another man is presumed to be the

child’s father.” O.S-H., ¶ 41. “If another man is presumed under

this section to be the child’s father, acknowledgment may be

effected only with the written consent of the presumed father or

after the presumption has been rebutted.” § 19-4-105(1)(e).

¶ 22 Biological father filed his admission of parentage in May 2022,

before the statute was repealed, and this admission was not

disputed by mother. However, J.P. was a psychological father who

never joined or filed written consent into the APR case, nor was that

presumption rebutted before certifying the record into the juvenile

court. This was despite biological father having knowledge of

psychological father beginning in March 2022. Therefore, the

admission of parentage could not have become a legal conclusion

sixty days after its execution in this case.

¶ 23 Accordingly, even if the court erred by failing to consider this

presumption, we conclude such an error is harmless because the

child had another presumed father and thus a legally effective

acknowledgment of paternity could not have been made without all

the presumed or alleged natural fathers being named parties to the

action. People in Interest of E.K., 2013 COA 99, ¶ 12 (a court lacks

subject matter jurisdiction if not all presumed fathers and alleged

natural fathers are made parties to or given notice of the paternity

action).

D. Factual Errors and Abuse of Discretion

¶ 24 Biological father further asserts that the juvenile court erred

by making erroneous findings of fact that have no record support,

and that such errors constitute an abuse of discretion necessarily

mandating reversal. Specifically, he asserts the court erred by

finding psychological father took on a father-like role for two years

beginning in January 2022 and by characterizing the kinship

placement as maternal grandparents. In light of the court’s other

findings, however, we conclude these errors are harmless.

¶ 25 To constitute an abuse of discretion, a court’s decision must

be “manifestly arbitrary, unreasonable, or unfair.” People v. Rath,

44 P.3d 1033, 1043 (Colo. 2002).

¶ 26 The juvenile court found that psychological father had taken

on a father-like role in “January 2022” and assumed the role for

two years. This appears to be a typographical error because the

testimony from the kinship placement provider, mother, and

psychological father revealed that psychological father began his

father-like role in 2021. The court further found that psychological

father (1) “unequivocally” began his father-like role when mother

and psychological father began living together and (2) had

“continued in that role in a manner that often occurs when parents

live some distance apart.” Alternatively, the court found biological

father “for [the] most part stopped acting in a father-like role when

he and [m]other split.”

¶ 27 Biological father further asserts it was impossible for the court

to conclude psychological father had assumed the role for a longer

period. However, while the record is unclear as to when

psychological father assumed a father-like role, testimony from the

kinship placement provider and mother supports the court’s finding

that psychological father assumed the role for longer and that

biological father’s involvement with the child lessened after he and

mother separated.

¶ 28 The court also erroneously characterized the kinship

placement providers as “maternal grandparents.” The record

indicates that the kinship placement providers are psychological

grandparents who had guardianship over mother for a period while

she was still a minor.

¶ 29 Despite these erroneous findings, the record supports the

remainder of the court’s paternity order findings.

¶ 30 The court found psychological father preserved his parenting

role with the child more than biological father after separating from

mother. This coincides with testimony from psychological father’s

witness M.B., the kinship placement provider, mother, and

psychological father. True, biological father testified he was

prevented from seeing the child, but his testimony is contradicted

by testimony from the kinship placement provider. As the reviewing

court, we cannot reweigh the evidence. See In re Marriage of Kann,

2017 COA 94, ¶ 36 (“[O]ur supreme court has . . . expressed

unbridled confidence in trial courts to weigh conflicting evidence.”).

We must defer to the court’s findings of fact unless they are clearly

erroneous. People v. Mendoza-Balderama, 981 P.2d 150, 158 (Colo.

1999).

¶ 31 In addition, the court found psychological father had a current

parent-child like bond with the child, unlike biological father. This

coincides with testimony from the kinship placement provider,

mother, and psychological father, which included that psychological

father engaged in activities with the child and the residents who

lived around psychological father’s home in Wyoming also

considered him the father of the child.

¶ 32 The court further found — with record support — that mother

and biological father would likely not support the child’s

relationship with one another, which would be a detriment to the

child. At the time of the paternity hearing, biological father had

pending charges of alleged harassment against mother as an act of

domestic violence. Further, mother previously alleged biological

father had ruined her credit, was attempting to negatively impact

her life, and was fearful that he was included in the dependency

and neglect case. Mother testified that she was the victim of

domestic violence perpetrated by biological father. Additionally, the

court considered racist and inappropriate text messages submitted

as an exhibit and found the messages were consistent with the

court’s assessment that the biological parents would not support

each other’s relationship with the child.

¶ 33 Finally, the court found that the child herself had a father in

her mind and that father was psychological father. The court

specifically found their “relationship is a positive and supportive

one. It is in the range of a typical father-daughter bond.

[Preserving] it will serv[e] [the child’s] best interests. Disrupting it

will disserve her.” There is testimonial support for this finding from

witness B.M., the kinship placement provider, and mother. The

court also found that because biological father did not have a

current relationship with the child, it would need to be rebuilt.

¶ 34 To the extent biological father argues that the court improperly

placed weight on the kinship placement provider’s testimony, we

discern no basis for reversal. The kinship providers have been the

child’s most consistent placement throughout her life. Given that

their involvement in the child’s life would indicate they likely had

relevant knowledge about the child and could opine about the

child’s best interests, it was not error for the court to credit their

testimony.

¶ 35 With these findings, the court determined it was in the child’s

best interests for psychological father to be adjudicated the child’s

legal father. Given the record support for the court’s findings, we

conclude the court did not clearly err.

III. Disposition

¶ 36 The judgment is affirmed.

JUDGE JOHNSON and JUDGE SCHOCK concur.

23CA0738 Peo in Interest of CS 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0738
Garfield County District Court No. 22JV60
Honorable James B. Boyd, Judge

The People of the State of Colorado,

Petitioner,

In the Interest of C.S., a Child,

and Concerning B.S.,

Appellant,

and J.P. and M.M.,

Appellees.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 12, 2024

No appearance for Petitioner

Josie L. Burt, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant

Peter A. Rachesky, Office of Respondent Parents’ Counsel, Lara L. Horst, Office
of Respondent Parents’ Counsel, Glenwood Springs, Colorado, for Appellee J.P.
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellee M.M.
¶1 B.S. (biological father) appeals the judgment adjudicating J.P.

(psychological father) the legal father of C.S. (the child). We affirm.

I. Background

¶2 The child was born in 2019. At that time, M.M. (mother) was

in a relationship with biological father, who was present at the

child’s birth and was named on the birth certificate. After the

child’s birth, mother and biological father continued living together

and began raising the child together. Mother and biological father

later married in 2020.

¶3 Shortly thereafter, mother and biological father split up.