dissenting:
I dissent from the court’s upholding the natural father’s consent to the adoption as knowing, intelligent, and voluntary, when, as here, there is substantial evidence in the record of the natural father’s mistaken belief that he would be entitled to exercise continued visitation with his child after the entry of a final decree of adoption.
Because a natural parent has a constitutionally protected liberty interest in the parent-child relationship, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), a natural parent’s consent to an adoption must be knowingly, intelligently, and voluntarily made. A consent is knowing and intelligent when the natural parent is aware of the import and consequences of an adoption decree to which the consent is directed — that is, that the effect of the adoption decree will be to divest the natural parent “of all legal rights and obligations with respect to the child.” § 19-5-211(2), 8B C.R.S. (1989 Supp.). See, e.g., People in the Interest of J.B.P., 44 Colo.App. 95, 608 P.2d 847 (1980); K.W.E. v. People, 31 Colo.App. 219, 500 P.2d 167 (1972). A consent is voluntary when it is the product of a free and uncon*261strained choice of the maker. A consent induced by a promise or representation that the natural parent will retain the legal right of visitation after the entry of the adoption decree, when in fact the natural parent will be divested of such right, obviously does not qualify as a voluntary consent.
The evidence in this case demonstrates that the natural father, D.J.T., executed the consent form on the basis of the representation by the adopting parent, S.O., and T.O., the natural mother and S.O.’s wife, that D.J.T. would be permitted to exercise continued visitation with the child subsequent to the adoption. During the hearing on D.J.T.’s motion to vacate the adoption decree, S.O. admitted that he had assured D.J.T. that he would be permitted to continue his visitation with the child subsequent to the adoption decree. Notwithstanding that representation, S.O., at the hearing on his petition to adopt the child, never informed the juvenile court commissioner of his representation to D.J.T. In similar fashion, the natural mother, when asked by the commissioner during the adoption hearing whether D.J.T. understood that his right of visitation would be terminated by the decree, replied, “Right.” Because D.J.T. was never provided with notice of the adoption hearing, he never had the opportunity to inform the commissioner that his consent was based on his.understanding that he would retain his legal right of visitation and was executed in reliance upon the joint representation of S.O. and T.O. that the adoption decree would not terminate that right.
I would resolve this case by adopting the reasoning of the Pennsylvania Supreme Court in In re Adoption of Singer, 457 Pa. 518, 326 A.2d 275 (1974), a case factually similar to the instant controversy. In Singer, the natural father and natural mother, Frederick and Shirley Singer, were divorced in New Jersey, and custody of their minor daughter was awarded to the mother. Upon the mother’s remarriage to Thomas Forbes, the natural father executed an agreement modifying the earlier separation agreement to provide that he would consent to the adoption of his daughter by Forbes and that his visitation rights would continue. The Forbes thereafter filed a petition for adoption in Pennsylvania, and the trial court denied the petition because the natural father’s consent was not unconditional. The Forbes then obtained the natural father’s signature to an unconditional form of consent and, relying upon that document, again petitioned the Pennsylvania court for a decree of adoption, and the trial court entered an adoption decree. Approximately six months later the natural father filed a petition to open the decree on the basis that he had received no notice of the adoption hearing and that his signature had been obtained by deception. At the hearing to open the adoption decree, the natural father testified that Thomas Forbes told him that the judge had been informed of all the conditions that were involved in the adoption and that the new consent form had the same meaning as the one previously executed by the natural father. The trial court concluded that there was a mutual mistake of fact and law between the parties as to the legal effect and consequences of the adoption decree and ordered that the decree be opened. The Pennsylvania Supreme Court affirmed, reasoning as follows:
A decree of adoption here would terminate forever all relations between [the daughter] and her natural father. For all purposes, legal and practical, she would be dead to [the natural father] and he would lose his right ever to see her again or ever to know of her whereabouts .... The [natural] father simply did not consent to such an adoption. The record clearly indicates that from the time that he first agreed to an adoption in the amendment of the New Jersey divorce decree, [the natural father] never intended to give up his parental rights. Although his signature did appear on the unconditional consent form, it was nevertheless conditioned upon the retention of these rights.
* * * * * *
The problem is that the preservation of these rights, even through an informal agreement, or on a goodwill basis, con*262flicts with the incident of complete control and custody of an adopted child by an adopting parent as contemplated by law. We cannot say that a consent conditioned upon the preservation of certain rights with respect to the child is sufficient to effectively establish the statutorily required consent. The severance of natural ties occasioned by adoption is of such obvious finality as to demand clear and unequivocal consent by a natural parent and we believe that [the natural father’s] consent here was insufficient.
457 Pa. at 524, 326 A.2d at 278; see also McCormick v. State, 218 Neb. 338, 354 N.W.2d 160 (1984) (relinquishment for adoption not voluntary and hence invalid where natural parents were told that they had a chance to see their son through an “open adoption” — an adoption in which the natural parents continue to have contact with the child — if they signed a relinquishment, and natural parents executed their relinquishment on that representation); McLaughlin v. Strickland, 279 S.C. 513, 309 S.E.2d 787 (S.C.App.1983) (natural father’s execution of a consent to adoption was not valid where the consent was qualified by father’s intent to retain parental visitation with child).
Given the state of the record in this case, the juvenile court’s determination that D.J. T.’s consent was knowingly, intelligently, and voluntarily made is manifestly contrary to the evidence and should be reversed. I accordingly would reverse the judgment of the Denver Juvenile Court and remand the matter to that court with directions to set aside the decree of adoption on the basis that the natural father’s consent was not knowingly, intelligently, and voluntarily made.
I am authorized to say that Chief Justice ROVIRA and Justice ERICKSON join in this dissent.