Wrongful Death

[Ohiogal]

No, but if the father reenters the child’s life that could kill the abandonment claim and doom the adoption if the father does not want to consent to adoption.

Frankly, I’m highly skeptical that having a guardian versus adoptive parent would make any difference in damages. Either way there is an adult there who fills the role of caring for and supporting the child. The label you put on it does not make a difference. I don’t see most Colorado jurors compensating the child more over that. I certainly wouldn’t give an extra penny over the difference in labels. What matters is what the child has lost compared to what the child now is receiving, whatever label you put on the child’s new caretakers.

Are you sure that abandonment can be cured in Colorado. In some states it cannot. I am looking and thus far I have found this:

http://www.lawfirmnewswire.com/2012/02/colorado-court-rules-child-abandonment-must-be-intentional/

Petition of Martensen, 129 Colo. 125, 267 P.2d 658 (1954)
Supreme Court of Colorado
March 1, 1954
267 P.2d 658
129 Colo. 125
This is still good case law and discusses abandonment but I am not finding a case that says it can be cured.


In re Petition of J.A.V., 206 P.3d 467 (1 2009)
Court of Appeals of Colorado, First Division
March 5, 2009
206 P.3d 467

Petition of D.L.M., 703 P.2d 1330 (1985)
Court of Appeals of Colorado, First Division
June 6, 1985
703 P.2d 1330



Though this case in dicta could mean something regarding it: In re N.B., 199 P.3d 16 (5 2007)
Court of Appeals of Colorado, Fifth Division
September 6, 2007
199 P.3d 16



If you have something that says abandonment for more than a year can be cured, could you share it with me? /no snark/ That is a sincere question.

 

[Taxing Matters]

If you have something that says abandonment for more than a year can be cured, could you share it with me? /no snark/ That is a sincere question.

The issue is that in Colorado the trial court must determine the issue of abandonment by reviewing what occurred in the year immediately preceding the filing of the petition for adoption. As the Colorado Supreme Court stated not very many years ago:

Regarding the appropriate timeframe for determining intent to abandon, the trial court must examine evidence of intent from the twelve-month period preceding the filing of the adoption proceeding. As we concluded in R.H.N., “the phrase ‘period of one year’ ... ‘means the consecutive twelve-month period immediately preceding’ the stepparent adoption petition because that is the statute's ‘plain ordinary meaning.’ ” 710 P.2d at 487 (internal citation omitted). Section 19–5–203(1)(d)(II) is therefore retrospective in nature.

In R.H.N., we held that, in the context of termination for failure to pay child support, a court must not only look at the preceding twelve-month period, but also “look beyond the twelve-month period to determine whether there is any likelihood that the natural parent will provide child support.” Id. We decline to extend such reasoning, however, to cases such as this one that concern abandonment. In the context of non-payment, a relationship between the non-paying parent and the child could still exist, and examination of the post-filing period could assist the trial court in determining whether payment may be made to support that relationship in the future. In contrast, in cases concerning abandonment, there is no such relationship to protect.

In sum, the abandonment inquiry focuses on whether, under the totality of the circumstances, the parent's intent during the twelve months preceding the commencement of the adoption proceeding was to abandon the child.​

D.P.H. v. J.L.B., 260 P.3d 320, 324 (Colo. 2011). Thus, if the father reenters the picture and shows interest in being a father prior to the filing of the adoption proceeding that may well negatively impact a finding of abandonment. In Colorado a determination of abandonment must be made on clear and convincing evidence, so the persons seeking adoption would start to face an uphill battle once the father starts to take an interest in the child, and the longer that goes on the less likely the court will say the father abandoned the child. Abandonment cannot be cured after the filing of the petition, however. Thus, filing the petition before the father comes back to start trying reclaim a role in the child’s life would help preserve an abandonment claim. Filing it after the father has returned runs a risk that the court may say there is no abandonment.

 

[Ohiogal]

The issue is that in Colorado the trial court must determine the issue of abandonment by reviewing what occurred in the year immediately preceding the filing of the petition for adoption. As the Colorado Supreme Court stated not very many years ago:

Regarding the appropriate timeframe for determining intent to abandon, the trial court must examine evidence of intent from the twelve-month period preceding the filing of the adoption proceeding. As we concluded in R.H.N., “the phrase ‘period of one year’ ... ‘means the consecutive twelve-month period immediately preceding’ the stepparent adoption petition because that is the statute's ‘plain ordinary meaning.’ ” 710 P.2d at 487 (internal citation omitted). Section 19–5–203(1)(d)(II) is therefore retrospective in nature.

In R.H.N., we held that, in the context of termination for failure to pay child support, a court must not only look at the preceding twelve-month period, but also “look beyond the twelve-month period to determine whether there is any likelihood that the natural parent will provide child support.” Id. We decline to extend such reasoning, however, to cases such as this one that concern abandonment. In the context of non-payment, a relationship between the non-paying parent and the child could still exist, and examination of the post-filing period could assist the trial court in determining whether payment may be made to support that relationship in the future. In contrast, in cases concerning abandonment, there is no such relationship to protect.

In sum, the abandonment inquiry focuses on whether, under the totality of the circumstances, the parent's intent during the twelve months preceding the commencement of the adoption proceeding was to abandon the child.​

D.P.H. v. J.L.B., 260 P.3d 320, 324 (Colo. 2011). Thus, if the father reenters the picture and shows interest in being a father prior to the filing of the adoption proceeding that may well negatively impact a finding of abandonment. In Colorado a determination of abandonment must be made on clear and convincing evidence, so the persons seeking adoption would start to face an uphill battle once the father starts to take an interest in the child, and the longer that goes on the less likely the court will say the father abandoned the child. Abandonment cannot be cured after the filing of the petition, however. Thus, filing the petition before the father comes back to start trying reclaim a role in the child’s life would help preserve an abandonment claim. Filing it after the father has returned runs a risk that the court may say there is no abandonment.

Thank you. I appreciate this information because I hadn't found it. I found what I found. And I know in some states (mine for instance) once you abandon that is it. There is no coming back from it. And the caselaw I have seen doesn't change that.

 

[Taxing Matters]

Thank you. I appreciate this information because I hadn't found it. I found what I found. And I know in some states (mine for instance) once you abandon that is it. There is no coming back from it. And the caselaw I have seen doesn't change that.

That kind of inflexible position strikes me as illogical and not well thought out. Suppose that a father might have been considered to abandon his kid for a year but then had a change of mind and wanted to be involved with his kid. He gets very involved, providing support and spending a lot of time with his kid and that occurs for the next six years. Then the other parent’s spouse then files for adoption claiming the abandonment that occurred more than six years ago as the basis for terminating the father’s rights and granting the adoption. In my view it would be very wrong to grant that adoption at that point when the father has been consistently active and supportive of the child for the last six years and who shows every sign of continuing to do that. In that case, there is no need to replace an absent parent, which is really what the abandonment justification for adoption is all about.

 

[Ohiogal]

That kind of inflexible position strikes me as illogical and not well thought out. Suppose that a father might have been considered to abandon his kid for a year but then had a change of mind and wanted to be involved with his kid. He gets very involved, providing support and spending a lot of time with his kid and that occurs for the next six years. Then the other parent’s spouse then files for adoption claiming the abandonment that occurred more than six years ago as the basis for terminating the father’s rights and granting the adoption. In my view it would be very wrong to grant that adoption at that point when the father has been consistently active and supportive of the child for the last six years and who shows every sign of continuing to do that. In that case, there is no need to replace an absent parent, which is really what the abandonment justification for adoption is all about.

I see your point. The caselaw that applies has been where a parent was gone for more than a year and only decided to fight when adoption was filed.

 

[Taxing Matters]

I see your point. The caselaw that applies has been where a parent was gone for more than a year and only decided to fight when adoption was filed.

And in Colorado too the person would be unsuccessful if his/her attempts to suddenly play parent only occurred AFTER the petition for adoption was filed. In Colorado the filing of the petition sets a kind of bright line: once filed, the court looks to what evidence there was of abandonment in the year prior to that filing; what happens after is not considered. That makes some sense. If the parent is only interested once the adoption petition is filed that raises some doubt as to how genuine that interest is and how long it will last. But where the parent is making the attempt to be involved prior to the adoption petition being filed, I think that those efforts ought to be considered in the adoption proceeding. It’s useful line to draw, it seems to me.

But given that line, a person interested in adopting might want to file sooner rather than later once abandonment appears to have occurred to prevent the possibility that the parent may come back and get involved with supporting and raising the child prior to filing and thus potentially lose the abandonment claim.