23CA1879 Marriage of Battles 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1879 Arapahoe County District Court No. 21DR31702 Honorable Cajardo Lindsey, Judge
In re the Marriage of
Meghann Mary Ward Battles, n/k/a Meghann Mary Ward McPherson,
Appellee,
and
Cort Owen Battles,
Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE LUM Freyre and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
Meghann Mary Ward McPherson, Pro Se
Caroline C. Cooley, Christopher J. Linas, Castle Rock, Colorado, for Appellant ¶1 In this dissolution of marriage proceeding, Cort Owen Battles
(father) appeals the portion of the permanent orders that allocate
parental responsibilities for the two minor children to Meghann
Mary Ward McPherson, f/k/a Meghann Mary Ward Battles
(mother). Father also appeals the trial court’s denial of his motion
for a new trial.
¶2 We affirm in part, reverse in part, and remand for further
proceedings.
I. Background
¶3 Mother and father are the parents of two minor children, C.B.
and F.B., who were thirteen and eleven (respectively) at the time of
permanent orders. Because of allegations that father had verbally
(and sometimes physically) abused the children, the children’s
therapist made a report to the Department of Human Services.
Early in the case, the court ordered that father’s parenting time be
supervised by a reintegration therapist. The court also appointed
Dr. Edward Budd as the parental responsibilities evaluator (PRE).
¶4 During the pendency of the case, both children participated in
individual therapy, along with sessions with the reintegration
therapist. F.B. participated in some sessions with the reintegration
1 therapist and father, while C.B. refused to have contact with father.
After the permanent orders hearing, the court ordered that father
would not have any parenting time with either child, and mother
would have sole decision-making responsibility.
¶5 Father filed a C.R.C.P. 59 motion based on newly discovered
evidence; namely, a status report from the reintegration therapist.
The court denied father’s motion.
¶6 Father now appeals. He contends the trial court erred by
restricting his parenting time, allocating sole decision-making
authority to mother, and denying the motion for a new trial.
II. Parenting Time
¶7 Father contends that the trial court erred by (1) restricting his
parenting time without applying the endangerment standard; (2)
restricting his parenting time without considering less detrimental
alternatives; (3) improperly delegating parenting time decisions to
the children; and (4) failing to consider his constitutional rights.
A. Applicable Law and Standard of Review
¶8 In all cases, the trial court must determine the allocation of
parenting time according to the child’s best interests, “giving
paramount consideration to the child’s safety and the physical,
2 mental, and emotional conditions and needs of the child.” § 14-10-
124(1.5), C.R.S. 2024. In making the best interests determination,
the court must consider the factors set forth in section 14-10-
124(1.5)(a)(I)-(XI). In re Marriage of Finer, 920 P.2d 325, 327 (Colo.
App. 1996).
¶9 However, for a court to “impos[e] . . . a parenting time
restriction,” the court must also find “that parenting time by the
[restricted] party would endanger the child’s physical health or
significantly impair the child’s emotional development” and
“enumerate the specific factual findings supporting the restriction,”
including findings related to child abuse. § 14-10-124(1.5)(a).
“[W]hat constitutes endangerment to a particular child’s physical or
emotional health is a highly individualized determination . . . .” In
re Marriage of Parr, 240 P.3d 509, 512 (Colo. App. 2010).
¶ 10 The determination of parenting time falls within the broad
discretion of the trial court, and we will exercise every presumption
that supports upholding the court’s decision. In re Marriage of
Hatton, 160 P.3d 326, 330 (Colo. App. 2007). A court abuses its
discretion if its decision is manifestly arbitrary, unreasonable, or
3 unfair, or if it misapplies the law. In re Marriage of Badawiyeh,
2023 COA 4, ¶ 9.
¶ 11 “It is the responsibility of the trial court as the trier of fact to
determine the credibility of the witnesses and the sufficiency,
probative effect, and weight of the evidence.” Hatton, 160 P.3d at
330. We review de novo, however, whether the court applied the
correct legal standards in determining parenting time. In re
Parental Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15.
B. Additional Facts
¶ 12 During the permanent orders hearing, the court heard
testimony from mother; father; Dr. Budd; and Dr. Shelley Bresnick,
the children’s reintegration therapist. By agreement, the court also
considered the deposition testimony of Dr. Andrew Loizeaux, an
expert retained by father to review Dr. Budd’s work. The court
found all the professional witnesses credible and concluded that Dr.
Budd was more credible than Dr. Loizeaux.
¶ 13 Regarding the children’s progress in reintegration therapy
during the pendency of the case, the court found that
• C.B. had adamantly refused any contact with father,
including in a therapeutic setting;
4 • F.B. and father had attended reintegration therapy together
and “interact in a positive and affectionate manner”;
• during F.B.’s sessions with father, “[b]oth appear very
happy to see one another”; and
• regarding F.B., father had taken Dr. Bresnick’s feedback
well and “demonstrated insight into his behaviors.”
¶ 14 Mother requested that father have no parenting time with C.B.
Father proposed that C.B. continue to work with his individual
therapist and with the reintegration therapist on an individual
basis. After three months, father proposed that he and C.B. have
joint reunification sessions every other week. Father also urged the
court to set periodic status conferences regarding C.B.’s parenting
time.
¶ 15 Mother proposed that father and F.B. continue having joint
reintegration therapy sessions and that the parties could reassess
moving beyond reintegration therapy when and if Dr. Bresnick and
F.B.’s therapist believed F.B. was ready. Father proposed a step-up
plan in which he would receive supervised visits after a month of
reintegration therapy, followed by unsupervised visits, which would
gradually increase until the parties had equal parenting time.
5 ¶ 16 In considering the children’s best interest, the court made the
following additional relevant findings1:
• On one occasion, father forcibly stuffed candy wrappers in
C.B.’s mouth while holding him against the wall by his
neck.
• The children described “verbal derogation by [father] on a
more or less daily basis.”
• Father “verbally belittled and physically intimidated the
[children], on a frequent basis, over a period of years . . . .
[Father’s] behavior produced father-child relationships so
troubling for the [children] that whether the damage can be
repaired is unclear.”
• Father had “grabb[ed] [the children] by the necks and arms
and call[ed] them cocksuckers, pussies, bitches, fuck holes,
ass holes, retarded fucks, and pieces of shit.”
• Father committed child abuse.
1 Some of the court’s findings were adopted from Dr. Budd’s PRE
report, Dr. Bresnick’s status reports, or from statements made by the parties.
6 • C.B. had been taken to the emergency room on two previous
occasions with suicidal ideation.
• C.B. told Dr. Budd that he did not want to see father “ever
again under any circumstances.”
• F.B. told Dr. Budd that he wanted to see father “every two
weeks and only in the presence of a supervisor.”
• Both children would strongly prefer to live with mother.
• “Each party has psychological limitations that helped cause
and perpetuate problems in the family. Each externalizes
responsibility.”
• “Neither party is especially supportive of the other’s
relationship with the children.”
• Both parents can place the children’s needs ahead of their
own, though each parent had “blind spots.”
¶ 17 Father did not testify about any of the incidents of verbal
degradation of the children or the incident with the candy wrappers.
However, he confirmed the candy wrapper incident to Dr. Budd.
The court also took judicial notice of apology letters father wrote to
the children in which father acknowledged that he “bullied” the
children and that his words were “hurtful and abusive.”
7 ¶ 18 Ultimately, the court ordered that C.B. continue therapy with
his individual therapist and with Dr. Bresnick. However, the court
ordered that C.B. could not be required to participate in
reintegration therapy with his father if he displayed resistance to
doing so. The court further ordered that, based on the
professionals’ opinions and the abuse and trauma C.B. suffered,
parenting time between father and C.B. would not be in C.B.’s best
interests.
¶ 19 The court made nearly identical orders regarding F.B. The
court noted that it seemed F.B. was ready to participate in
reintegration therapy, but nevertheless, F.B. could not be forced
into therapy if he displayed resistance.
C. Analysis
1. Endangerment Standard
¶ 20 Father contends that the trial court failed to apply the
endangerment standard when restricting his parenting time with
the children. Father also asserts that the court’s findings that
father abused the children concerned only past acts of child abuse,
and the court failed to consider whether parenting time with father
would presently endanger the children or significantly impair their
8 emotional development. We disagree as to C.B. but conclude that
more findings are necessary as to F.B.
a. C.B.
¶ 21 We recognize that the court did not specifically find that
parenting time with father “would endanger [C.B.]’s physical health
or significantly impair [C.B.]’s emotional development.” § 14-10-
124(1.5)(a). We also recognize that, as father argues, father’s past
acts of child abuse do not automatically mean that parenting time
with him would presently endanger C.B. See In re Marriage of
Bertsch, 97 P.3d 219, 222 (Colo. App. 2004).
¶ 22 Nevertheless, we can infer from the trial court’s findings and
order that it considered and applied the endangerment standard
and concluded that contact with father would significantly impair
C.B.’s emotional development or endanger his physical health. See
In re Marriage of Garst, 955 P.2d 1056, 1059 (Colo. App. 1998)
(noting that, while the court could have made more specific
findings, the findings made and reference to the parenting
evaluation “demonstrate that the trial court considered” the
appropriate best interests factors).
9 ¶ 23 The court began by citing the correct statutory standard for
endangerment, along with the statutory best interests factors. To
the extent father contends that the court’s slight paraphrasing of
the statutory language indicates that the court didn’t understand or
apply the correct law, we disagree.
¶ 24 In allocating parenting time, the court said that it “cannot, in
good conscience, order any parenting time between Father and
[C.B.]” The court based its decision on “the credible opinions of Dr.
Budd and Dr. Loizeaux” and “evidence of [C.B.]’s abuse and
trauma.”
¶ 25 Immediately before making this order, the court referenced Dr.
Budd’s testimony that forcing C.B. to see father was a “bad idea”
because a child who is forced into reintegration therapy often goes
“nuts.” The court also discussed Dr. Budd’s testimony that a child
in that situation may become estranged from both parents because
the child perceives that the parent who forced them to attend
therapy “failed to protect them or even betrayed them.”
¶ 26 The court additionally referenced Dr. Budd’s concern that a
child who has a history of extreme behaviors is more likely to repeat
such behaviors under duress. For this reason, Dr. Budd testified
10 that learning about C.B.’s history of suicidal ideation would have
increased his trepidation about forcing C.B. into reintegration
therapy with father.
¶ 27 Finally, the court noted that these concerns were somewhat
echoed by Dr. Loizeaux, who testified that “[in] a case when you
have kids going to the emergency room for suicidal ideation and
fear of their father, you have to have a lot of checks and balances
before you move ahead.”
¶ 28 In light of the court’s reference to this testimony, we can
discern the court’s concern that forcing C.B. to see father (in
reintegration therapy or otherwise) would have endangered C.B.’s
physical health and significantly impaired his emotional
development by putting him at risk for “extreme behavior” — such
as suicidal ideation — and estrangement from both parents. See id.
¶ 29 We are unconvinced by father’s contention that the court
couldn’t rely on the above-described testimony because it was
somewhat hypothetical. Dr. Budd’s pertinent concerns arose in
regard to the specific circumstances C.B. faced: being unwilling to
contact father after a history of abuse and having been previously
hospitalized for suicidal ideation. While none of the experts could
11 say that C.B. would certainly experience negative consequences if
he were forced to see father, father doesn’t cite, and we haven’t
found, any authority that prevents a court from relying on expert
opinion about the general risks of a child under circumstances
similar to those in the case before it.
¶ 30 Finally, to the extent father contends that the court erred by
applying the incorrect legal standard at temporary orders hearings,
we don’t consider his argument because the temporary orders are
not on appeal. See In re Marriage of Brantley, 674 P.2d 1388, 1389
(Colo. App. 1983) (noting that temporary parenting orders are not
subject to appellate review); § 14-10-108(5)(a), C.R.S. 2024
(providing that temporary orders do not prejudice the parties’ rights
adjudicated at subsequent hearings).
¶ 31 For the foregoing reasons we conclude that the trial court
applied the correct legal standard in restricting father’s parenting
time with respect to C.B.
b. F.B.
¶ 32 In contrast to the findings about C.B., we can’t tell whether
the trial court appropriately applied the endangerment standard to
F.B. While the court repeated that it was not granting father
12 parenting time with F.B. because of the “professionals’ opinions and
evidence of abuse and trauma,” the testimony about the risks of
forcing contact between father and the children pertained primarily
to C.B., not F.B. The court also referenced testimony from
professionals indicating that F.B. was willing to participate in
reintegration therapy with father and had at least some positive
experiences with it. At the same time, Dr. Budd expressed that he
wasn’t sure if either child’s relationship with father could be
repaired and unequivocally recommended that “[n]either [C.B.] nor
[F.B.] should be compelled to spend time with their dad.”
¶ 33 Due to the lack of findings specific to F.B. and the lack of
reference to any testimony regarding ongoing risks to a child in
F.B.’s circumstances, we are unable to determine whether the court
appropriately applied the endangerment standard to F.B. when it
completely eliminated father’s parenting time, nor can we determine
why the court concluded that the complete elimination of parenting
time was in F.B.’s best interests. See In re Marriage of Rozzi, 190
P.3d 815, 822 (Colo. App. 2008) (“A trial court’s order must contain
findings of fact and conclusions of law sufficiently explicit to give an
appellate court a clear understanding of the basis of its order and to
13 enable the appellate court to determine the grounds upon which it
rendered its decision.”).
¶ 34 Accordingly, we remand to the trial court for additional
findings concerning F.B. See § 14-10-124(1.5)(a). On remand, the
trial court must consider the parties’ and F.B.’s circumstances at
the time of the remand proceeding and permit the parties to present
new evidence of such circumstances. See In re Marriage of
Schlundt, 2021 COA 58, ¶ 56. The trial court must give priority to
the remand proceeding under section 14-10-128(1), C.R.S. 2024,
but we decline father’s request to order the trial court to hold a
hearing “as soon as possible.”2 The existing order shall remain in
effect pending entry of a new order by the trial court. See Schlundt,
¶ 56.
¶ 35 Because of our disposition, we need not consider father’s
remaining contentions as they relate to F.B.’s parenting time.
2 As best we can discern, Father relies on the remand instructions
in In re Marriage of Wollert, 2020 CO 47, in making this request. Wollert concerned the remand for an emergency hearing under section 14-10-129(4), C.R.S. 2024, which, under the circumstances of that case, required the court to hold a hearing within fourteen days. Wollert, ¶ 41 n.8. Parenting time proceedings under section 14-10-124, C.R.S. 2024, have no similar time requirement.
14 2. Less Detrimental Alternatives
¶ 36 Father’s next contention is that the trial court erred by
restricting father’s parenting time with C.B. without first
considering a less detrimental alternative. Under the
circumstances of this case, we perceive no reversible error.
¶ 37 The concept of the “least detrimental alternative” recognizes
that some “detriment to a child is present in every [parenting time]
decision, [and] a court’s task is to make the [parenting time] choice
‘least detrimental’ to the child.” In re Marriage of Martin, 42 P.3d
75, 78 (Colo. App. 2002) (citation omitted). The “least detrimental
alternative” analysis is subsumed within the concept of the best
interests of the child. Id. However, at least one division of this
court has previously held that a court may not “completely deny [a
parent] parenting time under the best interests standard without
express consideration of whether doing so is the least detrimental
alternative.” Hatton, 160 P.3d at 333 (emphasis added).
¶ 38 We acknowledge that the court’s permanent orders did not
include the phrase “least detrimental alternative.” But assuming,
without deciding, that the court erred by not making express
findings about whether providing C.B. with control over his
15 attendance at joint reintegration sessions was the least detrimental
alternative, the error was harmless under the circumstances here.
Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (holding that an error
only affects a party’s substantial rights if “it can be said with fair
assurance that the error substantially influenced the outcome of
the case or impaired the basic fairness of the trial itself” (quoting
Banek v. Thomas, 733 P.2d 1171, 1178 (Colo. 1986))).
¶ 39 Specifically, the court’s order demonstrates that the court
considered, and rejected, the only other alternative available:
father’s proposed parenting plan. The only substantive difference
between father’s proposed parenting plan for C.B. and the court’s
order was that, under father’s plan, C.B. would be required to
attend joint reintegration sessions with father and Dr. Bresnick
after three months of individual therapy. The court noted father’s
proposed plan in its findings. However, as set forth above, it
found — with ample record support — that forcing C.B. into contact
with father would not be in C.B.’s best interests. Father doesn’t
explain, and we can’t discern, what other alternatives the court
should have considered. Under these circumstances, we don’t
perceive how the court’s failure to expressly state that it considered
16 other alternatives and concluded that the plan it chose was the
least detrimental “substantially influenced the outcome of the case.”
Id. Accordingly, the court didn’t reversibly err.
3. Delegating Parenting Time Decisions
¶ 40 Father asserts that the trial court improperly delegated
parenting time decisions to C.B. when it ordered that C.B. could not
be required to attend joint reintegration therapy sessions with him.
¶ 41 A court may not delegate parenting time decisions to any third
party, including the child. See In Interest of D.R.V-A., 976 P.2d 881,
884 (Colo. App. 1999). However, while the court gave C.B.
autonomy over his participation in reintegration therapy, the
reintegration therapy isn’t parenting time under these
circumstances. Indeed, the court expressly said that father had no
parenting time. Therefore, there is no parenting time to delegate,
and we perceive no error.
4. Constitutional Rights
¶ 42 Father contends that the court failed to consider his
constitutional right to parent and was required to find “compelling
circumstances” before restricting his parenting time. We disagree.
17 ¶ 43 Parents have fundamental constitutional rights to the care,
custody, and control of their children. Troxel v. Granville, 530 U.S.
57, 65 (2000). However, such rights are not implicated when a
court allocates parental responsibilities between two parents, both
of whom have the same fundamental rights. See Vanderborgh v.
Krauth, 2016 COA 27, ¶¶ 20-21; In re Marriage of DePalma, 176
P.3d 829, 832 (Colo. App. 2007); cf. In re Marriage of McSoud, 131
P.3d 1208, 1219 (Colo. App. 2006) (noting that by allocating sole
religious decision-making responsibility to one parent, “the court
expanded one parent’s right to the care, custody, and control of a
child at the expense of the other parent’s similar right,” which
didn’t implicate constitutional rights).
¶ 44 Father’s reliance on People v. Zoller, 2023 COA 117, is
misplaced. That case concerns conditions of supervised release in a
criminal setting, not an allocation of parental responsibilities
between two parents. Id. at ¶¶ 19-20.
III. Decision-Making
¶ 45 Father contends that the trial court erred by granting mother
sole decision-making authority with respect to both children
because the court (1) didn’t make sufficient factual findings to
18 support its conclusion that father committed child abuse and (2)
failed to consider father’s constitutional rights.
¶ 46 When allocating decision-making responsibility under section
14-10-124(1.5)(b), a court shall generally consider (1) credible
evidence of the parties to cooperate and make decisions jointly; (2)
whether the parties’ past pattern of involvement with the child
reflects a system of values and mutual support that would indicate
the parties’ ability to provide a positive relationship with the child
as joint decision-makers; and (3) whether an allocation of joint
decision-making responsibility would promote more frequent
contact between the child and each of the parties.
¶ 47 In addition, where a claim of child abuse is made, the court
shall consider “[w]hether one of the parties has committed an act of
child abuse or neglect as defined in section 18-6-401, C.R.S. [2024],
or as defined under the law of any state, which factor must be
supported by a preponderance of the evidence.” § 14-10-
124(4)(a)(I); see also In re Marriage of McCaulley-Elfert, 70 P.3d 590,
593 (Colo. App. 2003). Under section 18-6-401(1)(a),
19 A person commits child abuse if such person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.
The term “health” includes both physical and mental well-being.
People v. Sherrod, 204 P.3d 472, 475 (Colo. App. 2007), rev’d on
other grounds, 204 P.3d 466 (Colo. 2009).
¶ 48 If the court finds that child abuse occurred, “it shall not be in
the best interests of the child to allocate mutual decision-making
with respect to any issue over the objection of the other party . . .
unless the court finds that there is credible evidence” that the
parties can “make decisions cooperatively in the best interest of the
child.” § 14-10-124(4)(a)(II)(A).
¶ 49 Allocation of decision-making responsibilities falls within the
sound discretion of the trial court. In re Marriage of Morgan, 2018
COA 116M, ¶ 23.
20 B. Applicable Facts
¶ 50 Mother requested sole decision-making authority. Father
requested that the court order joint decision-making authority.
¶ 51 The trial court found that father had committed child abuse by
a preponderance of the evidence in three ways:
• Father “unreasonably placed [C.B.] in a situation that posed
a threat of injury to [C.B.]’s life by stuffing candy wrappers
into his mouth while holding him against a wall by his
neck.”
• Father “caused injury to [C.B.]’s and [F.B.’]s mental health
by grabbing them by the necks and arms” and verbally
denigrating them.
• Father “engaged in a continued pattern of conduct that
resulted in mistreatment” when he verbally denigrated C.B.
and F.B.
¶ 52 Based on the child abuse finding, the trial court awarded sole-
decision making authority to mother.
21 C. Analysis
1. Child Abuse
¶ 53 Father contends that none of the ways in which the trial court
found father committed child abuse meet the technical
requirements of section 18-6-401(1)(a).
¶ 54 Father first argues that the court failed to articulate how the
candy wrappers threatened C.B.’s life. On this record, we disagree
that any further findings are necessary. Forcibly shoving candy
wrappers into a child’s mouth while holding the child against the
wall by his neck3 presents an obvious choking risk. While more
might be required to convict someone beyond a reasonable doubt,
this was sufficient for the court to find that the candy wrapper
incident was an act of child abuse by a preponderance of the
evidence. Cf. McCaulley-Elfert, 70 P.3d at 592-93 (holding that,
when the court credited wife’s testimony that her daughter had
been sexually abused over husband’s denial, that evidence was
3 Father repeatedly asserts that he grabbed C.B. by the back of the
neck rather than the front of the neck. This distinction doesn’t affect our view of the court’s child abuse finding in this case.
22 sufficient to support a finding of child abuse by a preponderance of
the evidence).
¶ 55 Next, father asserts that the record does not support the trial
court’s findings of child abuse because the trial court did not find
father acted with the appropriate mens rea. Assuming, without
deciding, that the trial court had to make a mens rea finding, any
error is harmless.
¶ 56 Child abuse may be committed knowingly, recklessly, or with
criminal negligence. § 18-6-401(7). A person commits child abuse
with criminal negligence when, “through a gross deviation from the
standard of care that a reasonable person would exercise, he fails to
perceive a substantial and unjustifiable risk,” § 18-1-501(3), C.R.S.
2024, that, “in light of the child’s circumstances, a particular act or
omission will place [the] child in a situation which poses a threat of
injury to the child’s life or health,” People v. Deskins, 927 P.2d 368,
371 (Colo. 1996) (describing reckless child abuse). In other words,
criminally negligent child abuse occurs when the actor should have
been aware (but was not) of the risk that his “conduct could result
in an injury to a child’s life or health.” Id. at 373 (emphasis added)
(describing risk of which perpetrator is required to be aware for
23 reckless child abuse); see also Mata-Medina v. People, 71 P.3d 973,
978 (Colo. 2003) (“[A]n actor is criminally negligent when he should
have been aware of the risk but was not.” (quoting People v. Hall,
999 P.2d 207, 219 (Colo. 2000))).
¶ 57 The record amply supports a conclusion that father acted
with, at a minimum, criminal negligence. He doesn’t explain, and
we can’t discern, how the trial court could have found that it was
reasonable for him to be unaware of the risk that stuffing candy
wrappers in a child’s mouth could result in an injury to the child’s
life or health. Because we perceive no other way to view the record
in this case, the court’s error (if any) in not making a mens rea
finding is harmless. See Bly, 241 P.3d at 535 (holding that an error
is harmless unless it can be shown with fair assurance that the
error substantially impacted the outcome of the case).
¶ 58 Because we affirm the trial court’s child abuse finding on
these grounds, we need not consider father’s contentions regarding
the other acts of child abuse that the court found father committed.
24 2. Constitutional Considerations
¶ 59 Father claims the trial court erred by failing to consider his
constitutional rights before allocating decision-making. We
disagree for the same reasons set forth supra Part II.C.4.
IV. Newly Discovered Evidence
¶ 60 After the permanent orders, father filed a C.R.C.P. 59 motion,
asserting that there had been positive developments in his
relationship with F.B. since the permanent orders hearing and
citing recent status reports from Dr. Bresnick as newly discovered
evidence. The court denied the motion, concluding that evidence
that came into existence after the hearing wasn’t “newly-discovered
evidence” under C.R.C.P. 59(d)(4).
¶ 61 Father contends that the court erred by denying his motion on
those grounds. However, because we have reversed the parenting
time order as to F.B. and because the court must consider F.B.’s
and the parties’ circumstances at the time of remand, we need not
consider this contention.4
4 Father’s C.R.C.P. 59 motion also alleged that there was newly
discovered evidence as to C.B. Because father doesn’t raise this issue on appeal, we don’t consider it.
25 V. Disposition
¶ 62 We reverse the portion of the trial court’s permanent orders
regarding the allocation of father’s parenting time with F.B. and
remand for proceedings consistent with this opinion.
¶ 63 We affirm in all other respects.
JUDGE FREYRE and JUDGE GROVE concur.