Opinion
April 7, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 629
Holland & Hart, John S. Castellano, Denver, for plaintiffs in error.
George A. Hinshaw, Aurora, for defendant in error Aloma Ann Wilbur.
DUFFORD, Judge.
This case was originally filed in the Supreme Court and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The action is one of adoption by the plaintiffs in error, petitioners below, and whom we shall refer to as 'the Wellses.' Mrs. Wells is the sister of the defendant in error, respondent below, Aloma Wilbur. Aloma Wilbur is the natural mother of the child, Noel Wilbur, whom the Wellses sought to adopt.
The Wellses instituted their action to adopt in accordance with the provisions of C.R.S.1963, 4--1--1 et seq. In their petition the Wellses alleged that the parental rights of Aloma Wilbur and of the natural father, Ronald Wilbur, had been lost for the reason that these persons had abandoned the child, and had failed, without cause, to provide reasonable support for such child for a period of one year or more. The natural father apparently did not question the loss of his parental rights. However, Aloma Wilbur did respond to the petition, denied her loss of parental rights, and refused to consent to the adoption of Noel.
At the time of hearing, the only witnesses called were the Wellses. Aloma Wilbur was present during the course of the hearing, but was not called to testify. Certain documents, including letters from Mrs. Wells to Aloma Wilbur, were placed in evidence. From the testimony of the Wellses and the documentary evidence, several facts and inferences can be drawn. The only ones which we feel should be commented upon here are the following:
(a) Following her divorce from Ronald Wilbur and for reasons of her health and financial condition, Aloma Wilbur surrendered the care of Noel to the Wellses; and they agreed to furnish such care until Aloma Wilbur was able to care for the child and to meet his and her own financial needs and those of her other child.
(b) From the time Noel was placed under the primary care of the Wellses and until the commencement of the adoption proceedings, the Wellses did carry the entire burden of meeting the material needs of Noel.
(c) During such period of time there were numerous instances during which the Wellses and Aloma Wilbur were living with the parents of Mrs. Wells and Aloma Wilbur. During such instances, Aloma Wilbur was in physical contact with Noel, although the degree of care and concern which she extended to the child during such periods is a matter of doubt.
At the conclusion of the hearing, the trial court ruled that the allegations of the Wellses' petition had not been sustained and denied their request for adoption of Noel. The Wellses have appealed, claiming that the trial court erred in its application of the law to the facts of this case. The Wellses contend that a finding by the trial court to the effect that the Wellses voluntarily assumed the care of Noel and that Aloma Wilbur voluntarily surrendered such care is immaterial to the issues of this case, and assert that such finding should not have been a consideration in determining, as a matter of law, whether Aloma Wilbur abandoned Noel.
It is our opinion that the decision of the trial court should be affirmed. Under the law of this jurisdiction, it is presumed that the natural parents of a child are fit and suitable persons to be entrusted with the care of their minor child. In a statutory adoption action of this type brought by relatives of the child, the rights of the natural parent can be denied only if the natural parent consents to the adoption or if it is clearly established that the natural parent has forfeited, by abandonment, his or her parental rights. Allen v. Huffman, 135 Colo. 1, 307 P.2d 802. It is our opinion that the voluntary and temporary arrangements which were reached between the Wellses and Aloma Wilbur for the care and raising of Noel were factors which did bear upon the legal question of whether Aloma Wilbur had abandoned Noel. Such facts also ran to the question of whether Aloma Wilbur had failed, Without cause, to provide support for the child. These questions were dominant as to whether the Wellses should succeed or fail with their petition for adoption.
The judgment of the trial court is affirmed.
COYTE and DWYER, JJ., concur.