C.R.S. v. T.A.M.

Justice SCOTT

dissenting:

I join the dissent of Justice Lohr. I write separately only to emphasize my concern that the majority gives impetus to those who believe that “possession is nine-tenths of the law”29 and to those who might find it advantageous to ignore the Children’s Code when seeking to adopt or claim custody of a child.

While I agree with the majority that “C.R.S. had no statutory right under the Children’s Code to the automatic return of C.C.R.S.,”30 maj. op. at 254, I do not agree, *263however, that the Uniform Dissolution of Marriage Act, section 14-10-123, 6B C.R.S. (1987), provides respondents with the requisite standing to obtain custody of C.C.R.S., a child sought outside the marital relationship. Hence, because the majority creates rights based on “physical custody” or possession in individuals whom our relinquishment and adoption statutes under the Children’s Code31 do not recognize and, in effect, denies the protections embodied in the Children’s Code, I cannot join its judgment. Moreover, because I believe the better reasoned analysis and result is that set forth in the dissenting opinion of Judge Taubman, In re Custody of C.C.R.S., 872 P.2d 1337, 1345-55 (Colo.App.1993) (Taubman, J., dissenting), I respectfully dissent.

It has been firmly established by this court that when interpreting statutes, we must strive to meet the intent of the General Assembly, thus giving meaningful effect to the whole of the statute. Colorado State Bd. of Medical Examiners v. Saddoris, 825 P.2d 39, 42 (Colo.1992) (statutes must be construed as a whole to give consistent, harmonious and sensible effect to all their parts); City of Lakewood v. Mavromatis, 817 P.2d 90, 96 (Colo.1991) (primary goal in determining meaning of statute is to ascertain and give effect to intent of legislature); Charlton v. Kimata, 815 P.2d 946, 949 (Colo.1991) (if possible, supreme court must give effect to every word of statute). Thus, when interpreting rights of parties before the court under comprehensive legislation such as the Children’s Code, we are obliged to give meaning to all its provisions in an effort to further the public policy represented by the legislative scheme. A.B. Hirschfeld Press, Inc. v. Denver, 806 P.2d 917, 920 (Colo.1991). If statutes elsewhere in our laws touch upon the same subject but are potentially conflicting, courts should reconcile the statutes, if possible, to ensure a consistent and sensible application of the law. In re Estate of David v. Snelson, 776 P.2d 813, 818 (Colo.1989). Where the statutes cannot be reconciled, and there is a conflict between specific and general statutes, the provisions of the specific statute control to the extent of the inconsistency. In re M.S. v. People, 812 P.2d 632, 637 (Colo.1991).

By giving deferential effect to comprehensive statutes adopted by our General Assembly, courts recognize that legislators, not judges, are uniquely authorized to choose between alternatives of general application and, as a consequence, determine matters of public policy. This is true with regard to rights and procedures as to relinquishment and adoption, which is addressed comprehensively by the Children’s Code on one hand, and, on the other hand, custody disputes arising out of the termination of a marital relationship, where child custody is regulated by the Uniform Dissolution of Marriage Act. Here, then, our task should be clear. The General Assembly has specifically designated that child adoptions be conducted under the relinquishment and adoption statutes appearing within the Children’s Code.

In setting forth its legislative intent under the Children’s Code at section 19-5-100.2, 8B C.R.S. (1994 Supp.), the General Assembly evinced its desire that all matters affecting the adoption of children be resolved within the Children’s Code:

Legislative declaration. (1) The general assembly hereby finds that parental relinquishment and adoption of children are important and necessary options to facilitate the permanent placement of minor children if the birth parents are unable or unwilling to provide proper parental care. The general assembly further finds that adoption offers significant psychological, legal, economic, and social benefits not only for children who might otherwise be homeless but also for parents who are unable to care for their children and for adoptive parents who desire children to nurture, care for, and support. Conversely, the general assembly recognizes that disrupted adoptive placements often have a profound and negative impact on individu*264als, particularly children, involved in the adoption proceedings.
(2) It is the purpose of this article to promote the integrity and finality of adoptions to ensure that children placed in adoptive placements will be raised in stable, loving, and permanent families. The general assembly intends that by enacting this legislation, it will be protecting children from being uprooted from adoptive placements and from the life-long emotional and psychological trauma that often accompanies being indiscriminately moved.

§ 19-5-100.2, 8B C.R.S. (1994 Supp.). Moreover, within the Children’s Code, the General Assembly has made provisions for birth parent counseling, adoptive parent screening and other protective measures, including the application of limited but significant public resources to ensure, as much as possible, the permanent success of adoptive placements. The General Assembly has recognized the profound impact that adoption has on the lives of all who are affected by it, especially the children involved, and accordingly the adoption statutes are specially devised to provide maximum protection. Unlike the adoption statutes of the Children’s Code which were specifically designed to be applied in situations where biological family structures are being permanently severed, parental rights being completely terminated, and new adoptive families created, the Uniform Dissolution of Marriage Act was created primarily to deal with custody disputes arising out of a termination of the marital relationship.

It seems obvious then, that the General Assembly did not intend that unrelated adults would utilize the Uniform Dissolution of Marriage Act to obtain standing to effect a permanent parental relinquishment and child adoption. By allowing the respondents to prevail in this case and receive permanent legal custody of C.C.R.S. without the benefit of the protections inherent in the Children’s Code, the majority has subjected children and parents, biological and psychological, to harms the General Assembly has acted to avoid.

Accordingly, I respectfully dissent.

I am authorized to say that Justice LOHR and Justice KIRSHBAUM join in this dissent.

. See Swain v. Vogt, 206 A.D.2d 703, 614 N.Y.S.2d 780, 784 (3 Dept. 1994) (Peters, J„ dissenting) ("Unlike the old adage, in matters concerning parental rights and the best interests of a ... child, possession is not nine-tenths of the law.”) (citations omitted).

Make no mistake, this admonition applies to both the biological as well as the psychological parents in their dealings with or about children. Our constitution is not intended for adults alone. In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967).

.C.R.S.'s claim for immediate and automatic return of C.C.R.S. is subject to the interests of the state as set forth in our dependency and neglect statutes of the Children’s Code, in particular the Child Protection Act of 1975, §§ 19-3-100.5 -103 (1994 Supp.), which allows the state to assume temporary protective custody, and the *263Parent-Child Legal Relationship Termination Act of 1977, §§ 19-5-101, -104 and -105 (1994 Supp.), which allows the state to terminate the parent-child legal relationship.

. Our Children's Code at Title 19 includes in article 5 a comprehensive scheme for relinquishment and adoption. §§ 19-5-100.2 to -403, 8B C.R.S. (1994 Supp.).