Interest of JH
Interest of JH
Interest of JH
Opinion
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.,
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
App. 2011). First, a court must determine whether one of the
statutory presumptions of parentage in section 19-4-
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.