This appeal of a termination of parental rights proceeding concerns the timeliness of a paternity determination in favor of the biological father. B.B., a presumptive father who the juvenile court determined not to be the legal father, raised two issues on appeal: (a) denial of due process by not resolving paternity until a year into the proceeding; and (b) deprivation of equal protection by providing only the biological father with a dispositional hearing and a treatment plan. The Court of Appeals also considers the application of the Uniform Parentage Act (“UPA”) requirement that paternity be resolved “as soon as practicable” in a D&N proceeding.
The D&N proceeding began in January 2018, when the department filed a petition concerning three children, two of whom were B.B.’s biological children. With regard to the third child, M.B., B.B. signed the birth certificate, and the petition identified him as M.B.’s presumed father. Only B.B.’s two biological children were adjudicated as dependent and neglected as to B.B. and a dispositional hearing occurred on March 2, 2018. Genetic testing established that “biological father” was M.B.’s father in June 2018, and the court adjudicated M.B. as to “biological father” in July. The department eventually moved to terminate “biological father’s” parental rights. In November 2018, B.B. asked the court whether he was “able to get involved with that myself so I can take custody”, and in January 2019, B.B. stated he was “asserting status as a psychological or any parentage.” Neither the department nor B.B. requested a paternity determination regarding B.B. up to that point. The Department eventually requested a paternity determination and the court set a hearing for February 2, 2019. This hearing was continued to March 29, 2019, at which point the court held a combined hearing on an amended motion to terminate parental rights to M.B. that also included B.B. At that hearing, the court found that M.B.’s biological father was his legal father and excused counsel for B.B.

With regard to B.B.’s constitutional claims, the Court of Appeals holds that B.B. did not preserve his due process claim because his counsel never raised it. The Court of Appeals declines B.B.’s request to apply the plain error doctrine to allow review of his claim, noting that this doctrine derives from Criminal Procedure 52(b). The Court explains that appellate courts apply plain error to only the “’rare’ civil case, involving ‘unusual or special’ circumstances—and even then, only ‘when necessary to avert unequivocal and manifest injustice.’” (quoting Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1269 (Colo. App. 2010)). Noting that Colorado appellate courts have never applied manifest injustice to address an unpreserved issue in a D&N proceeding, the Court acknowledges precedent from other civil cases allowing the review of unpreserved issues to prevent a miscarriage of justice and recognizes this exception in D&N cases. Unable to find a Colorado case defining “miscarriage of justice,” the Court of Appeals looks to other jurisdictions and determines that B.B.’s due process claim does not satisfy any definition because B.B. does not explain how the court’s delay in determining paternity deprived him of due process; moreover, B.B. does not identify any other procedure under the UPA which he was denied. The Court therefore declines to address B.B.’s unpreserved due process claim. Similarly, with regard to B.B.’s equal protection claim, the Court holds that because B.B.’s attorney did not raise this issue at the trial level, the record is inadequate to address this claim.

The Court then considers whether the asserted delay in the court’s paternity order violated the UPA’s “as soon as practicable” requirement. The UPA requires “an informal hearing” to be held as “soon as practicable after an action to declare the existence or nonexistence of the father-child relationship has been brought” if the court determines the hearing to be “in the child’s best interest.” C.R.S. 19-4-111(1). The Court does not find any cases determining the applicability of this provision to D&N cases, but holds that even if it does, it applies only after the action to determine parentage has been brought. The filing of the D&N proceeding alone does not constitute that action, as a paternity case can be joined with a D&N case. Considering each of points of the case that could possibly be construed as an action to declare the existence or non-existence of the father-child relationship, the Court holds that the juvenile court acted within its discretion in holding the paternity hearing in March 2019. The Court affirms the juvenile court’s order determining M.B.’s biological father to be his legal father.

Click here to access the case in Westlaw.