Parental Resp Conc KMS

• Court: Colorado Court of Appeals
• Decided: November 7, 2024
• Docket: 24CA0253
• Status: Unpublished

Opinion

24CA0253 Parental Resp Conc KMS 11-07-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0253 Montrose County District Court No. 20DR30044 Honorable Mary E. Deganhart, Judge

In re the Parental Responsibilities Concerning K.M.S., M.D.S., and R.E.S., Children,

and Concerning Suzanne Nicolas and August Nicolas,

Appellants,

and

Jayne Mecque Sullivan and Daniel Francis Sullivan,

Appellees.

ORDER AFFIRMED

Division IV Opinion by JUDGE KUHN Harris and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 7, 2024

Hogan Omidi, P.C., Hollie A. Hinton, Denver, Colorado, for Appellants

Grob & Eirich, LLC, Timothy J. Eirich, Lakewood, Colorado, for Appellees ¶1 Suzanne Nicolas and August Nicolas appeal the district court’s

order denying their C.R.C.P. 60(b)(3) motion for relief from

judgment, which sought to vacate an order providing Jayne Mecque

Sullivan and Daniel Francis Sullivan with grandparent visitation

rights. We affirm.

I. Background

¶2 The Nicolases are the maternal grandparents, and adoptive

parents, of K.M.S., M.D.S., and R.E.S. The Sullivans are the

biological, paternal grandparents of K.M.S. and M.D.S., and the

legal, paternal grandparents of R.E.S., whom the Sullivans’ son had

adopted. Both of the children’s parents (the Nicolases’ daughter

and the Sullivans’ son) died in April 2020.

¶3 During the resulting probate proceedings, the court appointed

the Nicolases as the children’s permanent guardians, and the court

adopted a stipulated grandparent visitation plan allowing the

Sullivans to regularly visit the children.

¶4 In October 2021, the Nicolases adopted the children, at which

time all matters concerning the children were moved into a

previously stayed domestic relations case that had been initiated by

the Sullivans. In closing the probate proceedings, the district court

1 indicated that the Sullivans anticipated filing a motion for expanded

grandparent visitation in the domestic relations case, which they

subsequently did. The Sullivans then filed that motion under

section 19-1-117, C.R.S. 2021 (later amended and relocated to

section 14-10-124.4, C.R.S. 2024). After applying the presumption

that the Nicolases, as the children’s legal parents, were acting in the

children’s best interests, the district court issued a grandparent

visitation order, which denied expanded visitation and instead

adopted a visitation schedule that the Nicolases had proposed with

additional set holidays.

¶5 Almost two years later, the Nicolases filed a C.R.C.P. 60(b)(3)

motion for relief from judgment, seeking to vacate that grandparent

visitation order. The Nicolases asserted that the Sullivans lacked

standing to seek grandparent visitation because, following the

Nicolases’ adoption of the children, the Sullivans no longer qualified

as “grandparents” under the grandparent visitation statute.

Accordingly, the Nicolases asserted that the district court lacked

jurisdiction to issue the grandparent visitation order. The district

court denied the Nicolases’ motion.

2 II. Discussion

¶6 The Nicolases’ sole contention on appeal is that the Sullivans

lacked standing to seek grandparent visitation following the

Nicolases’ adoption of the children, and therefore, the district court

erred in denying their C.R.C.P. 60(b)(3) motion. We disagree.

A. Applicable Law and Standard of Review

¶7 We review de novo a district court’s determination that a party

has standing. In re Parental Responsibilities Concerning E.S., 264

P.3d 623, 625 (Colo. App. 2011). Standing generally refers to a

particular litigant’s right to raise legal arguments or claims. See

HealthONE v. Rodriguez, 50 P.3d 879, 891-92 (Colo. 2002). When a

party “brings a claim under a statute, the standing inquiry turns on

whether the statutory provision ‘can properly be understood as

granting persons in the plaintiff’s position a right to judicial relief.’”

Vickery v. Evelyn V. Trumble Living Trust, 277 P.3d 864, 868 (Colo.

App. 2011) (quoting Pomerantz v. Microsoft Corp., 50 P.3d 929, 932

(Colo.App.2002)). “Standing is a jurisdictional prerequisite that can

be raised any time during the proceedings,” Hickenlooper v.

Freedom from Religion Found., Inc., 2014 CO 77, ¶ 7, and where the

party petitioning the court lacks standing, the court accordingly

3 lacks jurisdiction over the dispute, Ainscough v. Owens, 90 P.3d

851, 855 (Colo. 2004).

¶8 “[A] judgment rendered without jurisdiction is void,” In re

Marriage of Stroud, 631 P.2d 168, 170 (Colo. 1981), and C.R.C.P.

60(b)(3) allows litigants to seek relief from void judgments, see

McGuire v. Champion Fence & Const., Inc., 104 P.3d 327, 329 (Colo.

App. 2004). A void judgment may be challenged at any time and

must be vacated upon request. Id. We review de novo a proceeding

under C.R.C.P. 60(b)(3) to set aside a judgment or order as void. Id.

B. Applicable Version of the Grandparent Visitation Statute

¶9 As a threshold issue, we agree with the parties that, in

resolving the Nicolases’ motion, the district court erroneously

applied the current version of the grandparent visitation statute,

section 14-10-124.4. In 2023, the legislature repealed section

19-1-117 and portions of section 19-1-103, C.R.S. 2021, and

recodified them with amendments into section 14-10-124.4. See

Ch. 243, secs. 2, 6, 8, § 14-10-124.4, 2023 Colo. Sess. Laws

1302-08. But because the Nicolases’ motion challenged the

Sullivans’ standing to petition for grandparent visitation as of

October 2021, sections 19-1-117 and 19-1-103, as they existed

4 then, governed instead of the later enacted section 14-10-124.4.

However, we also agree with the parties that any error in applying

that statute was harmless because the relevant language of the

grandparent visitation statute remained substantially unchanged

by the 2023 recodification and amendment. Regardless, we will

apply sections 19-1-117 and 19-1-103, C.R.S. 2021, in reviewing

the district court’s order.

C. Discussion

¶ 10 In interpreting the relevant statutory provisions, “[o]ur main

task . . . is to ascertain and give effect to the intent of the General

Assembly.” In re Marriage of Ikeler, 161 P.3d 663, 666 (Colo. 2007).

In completing this task, we read and consider the statute as a

whole, giving “consistent, harmonious, and sensible effect to all its

parts.” Id. at 666-67. We start with the plain language of the

statute, using its commonly accepted and understood meaning. In

re Marriage of Joel, 2012 COA 128, ¶ 18. “If, upon doing so, we

determine that the language of the statute is clear and

unambiguous, we must apply the statute as written.” Id.

¶ 11 As relevant here, section 19-1-117(1) permitted a grandparent

to request visitation when there is or has been “a child custody case

5 or a case concerning the allocation of parental responsibilities

relating to that child.” The statute defined such a case as

encompassing the following circumstances:

(a) That the marriage of the child’s parents has been declared invalid or has been dissolved by a court or that a court has entered a decree of legal separation with regard to such marriage;

(b) That legal custody of or parental responsibilities with respect to the child have been given or allocated to a party other than the child’s parent or that the child has been placed outside of and does not reside in the home of the child’s parent, excluding any child who has been placed for adoption or whose adoption has been legally finalized; or

(c) That the child’s parent, who is the child of the grandparent, has died.

Id. Accordingly, the statute laid out three independent bases upon

which grandparents may petition for visitation. See People v.

Pellegrin, 2021 COA 118, ¶ 69 (recognizing that the use of the word

“or” in a statute is presumed to be in the disjunctive sense, absent

clear legislative intent to the contrary), aff’d, 2023 CO 37.

¶ 12 In turn, section 19-1-103(70)(a) defined “grandparent” for

purposes of section 19-1-117 as “a person who is the parent of a

child’s father or mother, who is related to the child by blood, in

6 whole or by half, adoption, or marriage,” although section

19-1-103(70)(b) excepted “the parent of a child’s legal father or

mother whose parental rights have been terminated in accordance

with sections 19-5-101 and 19-1-104(1)(d).”

¶ 13 The Nicolases contend that the Sullivans could not petition for

visitation under section 19-1-117 because, as of the filing of the

petition, the Nicolases had adopted the children, making them the

children’s “father or mother” under section 19-1-103(70)(a).

Therefore, according to the Nicolases, because the Sullivans were

not the present “parent[s] of [the children’s] father or mother,” the

Sullivans were not grandparents under section 19-1-103(70)(a) and

lacked the standing to petition for grandparent visitation.

¶ 14 We reject the Nicolases’ interpretation of “grandparent” in

section 19-1-103(70)(a) for three reasons.

¶ 15 First, the Nicolases’ reading of section 19-1-103(70)(a) is

inconsistent with the overall statutory scheme of grandparent

visitation because, under their reading of that section, the definition

of “grandparent” itself would automatically cut off the right to

grandparent visitation upon the adoption of the child by a third

party. But we must read the statute as a whole, see Ikeler, 161

7 P.3d at 666-67, and section 19-1-117(1) specifically prevents

grandparents from seeking visitation following the adoption of a

child only if custody or parental responsibilities have been allocated

to a non-parent. See § 19-1-117(1)(b).

¶ 16 The specific limitation on grandparent visitation created by

section 19-1-117(1)(b) is known as the “adoption exclusion.” In re

R.A., 66 P.3d 146, 149 (Colo. App. 2002). Where the biological

parents’ rights were “terminated in dependency and neglect,

relinquishment, or similar proceedings,” the adoption exclusion

serves to “create[] an interim statutory right in favor of

grandparents to visit grandchildren until placement of the child for

adoption or entry of a final decree of adoption.” Id.; see also People

in Interest of N.S., 821 P.2d 931, 932-33 (Colo. App. 1991) (The

adoption exclusion “creates a statutory right in favor of

grandparents to visit their grandchildren during the pendency of

dependency and neglect proceedings, but that the visitation right

terminates automatically upon placement of the child for adoption

or entry of a final decree of adoption.”).

¶ 17 However, the adoption exclusion is only found in the text of

section 19-1-117(1)(b), providing for grandparent visitation where a

8 child has been placed with a non-parent, and not in sections

19-1-117(1)(a) or (c), which alternately provide for grandparent

visitation in dissolution proceedings or where a child’s parent, who

was the child of the grandparent, has died. Accordingly, we agree

with other divisions of this court that the adoption exclusion applies

only to petitions based on section 19-1-117(1)(b). See R.A., 66 P.3d

at 149 (holding that “the adoption exclusion of § 19-1-117(1)(b)

[wa]s not applicable . . . despite the adoption, because the biological

parents’ rights were not terminated in dependency and neglect,

relinquishment, or similar proceedings; rather, their deaths

provide[d] the sole basis both for [the] grandparents’ request”); In re

Marriage of Aragon, 764 P.2d 419, 420 (Colo. App. 1988) (holding

that adoption of the grandchild by her stepfather following her

mother’s remarriage did not prevent the child’s biological, paternal

grandmother from seeking visitation because the adoption

exclusion was limited to petitions filed under section 19-1-117(1)(b),

and the grandmother had petitioned under section 19-1-117(1)(a)).

¶ 18 Here, while the Nicolases suggest that the Sullivans failed to

specify which subpart of section 19-1-117(1) they were proceeding

under, the district court found that, because the Sullivans’ son was

9 deceased, their petition plainly fell within section 19-1-117(1)(c).

We perceive no error in that determination, and accordingly, the

adoption exclusion did not apply. See R.A., 66 P.3d at 147-49.

¶ 19 Yet the Nicolases ask us, via the definitional operation of

section 19-1-103(70), to nevertheless bar the Sullivans from seeking

grandparent visitation under section 19-1-117(1)(c) because the

Nicolases had adopted the children as of the date of the petition.

But if, based on the definition of “grandparent” in section

19-1-103(70)(a), the grandparents of a child were already

automatically disqualified from petitioning for visitation upon the

child’s adoption by a third party, then the adoption exclusion, as

found solely in section 19-1-117(1)(b), would be largely superfluous.

The Nicolases’ proposed reading of section 19-1-103(70)(a) would

thus require us to disregard the principles of statutory

interpretation. See Aragon, 764 P.2d at 420 (“Where possible, a

statute should be interpreted so as to give consistent, harmonious,

and sensible effect to all of its parts . . . .”); Colo. Real Est. Comm’n

v. Bartlett, 272 P.3d 1099, 1102 (Colo. App. 2011) (recognizing that

courts should “avoid constructions that would render a part of the

statute meaningless”).

10 ¶ 20 Therefore, we decline to read section 19-1-103(70)(a) as

imposing what would effectively be a universal exclusion barring

grandparents from seeking visitation after the adoption of a child by

a third party. Indeed, if the legislature had intended to bar

grandparent visitation in all such instances, it could have done so.

See Well Augmentation Subdistrict of Cent. Colo. Water Conservancy

Dist. v. City of Aurora, 221 P.3d 399, 419 (Colo. 2009) (“When the

General Assembly includes a provision in one section of a statute,

but excludes the same provision from another section, we presume

that the General Assembly did so purposefully.”). Instead, the

legislature included an adoption exclusion in section 19-1-117(1)(b)

only, and we may not otherwise rewrite the statute to impose a

broader exclusion. See Spahmer v. Gullette, 113 P.3d 158, 162

(Colo. 2005) (“We will not create an addition to a statute that the

plain language does not suggest or demand.”).

¶ 21 Second, the Nicolases’ interpretation of the grandparent

visitation statute is undermined by the plain language of section

19-1-103(70)(a), see Joel, ¶ 18, which provided that a grandparent

is “the parent” of the relevant child’s “father or mother, who is

related to the child by blood, . . . adoption, or marriage.”

11 Importantly, the statute contained no language temporally

restricting the definition of grandparent to the parents of the child’s

father or mother as of the date of the petition. And we decline to

otherwise read such a restriction into the definition of grandparent

when the plain text of the statute does not warrant it. See

Spahmer, 113 P.3d at 162.

¶ 22 Therefore, under a plain reading of section 19-1-103(70), the

Sullivans fall within the definition of grandparents, regardless of

when they filed their petition for grandparent visitation. They are

the biological parents of the children’s father; they are related to

K.M.S. and M.D.S. by blood, and R.E.S. by adoption; and their

son’s parental rights as to the children had not been terminated at

the time of his death. See § 19-1-103(70)(a), (b).

¶ 23 Lastly, we disagree that allowing the Sullivans to petition for

visitation impermissibly treats the children, as the Nicolases’

adoptive children, in a manner different from natural-born children.

While the adoption statute provides that an adopted child is “for all

intents and purposes, the child of the petitioner” and “is entitled to

all the rights and privileges and is subject to all the obligations of a

child born to the petitioner,” § 19-5-211(1), C.R.S. 2024, like

12 adoption, “a grandparent’s right of visitation with his grandchild is

statutorily derived,” Aragon, 764 P.2d at 421. Accordingly, the

grandparent visitation statute reflects “the General Assembly’s

intent . . . that, in certain circumstances, a grandparent’s statutory

right to grandchild visitation is not to be frustrated by the adoption

statutes,” and instead, “the legislative scheme evinces an intent to

allow grandparent visitation in the case of . . . [the] death of a

parent, even if a parent . . . objects,” as has occurred here. Id.

¶ 24 In sum, because the Sullivans had standing to petition for

grandparent visitation, the district court did err in denying the

Nicolases’ C.R.C.P. 60(b)(3) motion.

III. Disposition

¶ 25 The order is affirmed.

JUDGE HARRIS and JUDGE YUN concur.