Parental Resp Conc MMK

• Court: Colorado Court of Appeals
• Decided: June 5, 2025
• Docket: 24CA1540
• Status: Unpublished

Opinion

24CA1540 Parental Resp Conc MMK 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1540 City and County of Denver District Court No. 23DR31456 Honorable Jennifer B. Torrington, Judge

In re the Parental Responsibilities Concerning M.M.K. and L.M.K., Children,

and Concerning Sarah Nyarok Achyo,

Appellee,

and

Madit William Dau Kot, a/k/a William Dau Madit,

Appellant.

JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE BERNARD* Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025

Isabel P. Posso, Lakewood, Colorado, for Appellee

Price Family Law, LLC, Bria Burgamy, Denver, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 A father, Madit William Dau Kot, appeals the district court’s

order allocating parental responsibilities for his two children to the

children’s grandmother, Sarah Nyarok Achyo. We vacate the

judgment, and we remand the case for further proceedings.

I. Background

¶2 In November 2023, grandmother filed a petition for allocation

of parental responsibilities. Grandmother alleged that the

children’s mother died in April 2023 but that the children and their

mother had lived with her for the five years before the mother’s

death.

¶3 Grandmother also alleged that father “forcibly” took the

children to Nebraska about two months after mother died. She

asked the court to grant her sole decision-making responsibility and

to limit father’s parenting time to supervised visits based on his

“history of substance abuse and addiction.”

¶4 The parties appeared at the initial status conference and a

second status conference, both of which were held by a family court

facilitator. At the second status conference, the facilitator

scheduled another “status conference with [the] courtroom” to

1 “discuss how [the] case shall move forward.” The facilitator later

issued a “Notice of Remote Hearing” advising the parties that “a

remote Status Conference ha[d] been set” for February 26, 2024, at

9:00 a.m.

¶5 On that day, grandmother and her attorney appeared, but

father did not. The court found that, although father had received

proper notice of the scheduled proceeding, he had voluntarily not

shown up.

¶6 The court then said that the “purpose of today’s hearing is to

determine standing.” Grandmother began her testimony, but she

did not finish it because her interpreter had to leave. The court

continued the hearing for two weeks and ordered grandmother’s

counsel to send notice of the new hearing date to father. Later that

day, grandmother’s counsel filed a “Notice of Status Hearing via

Webex,” which notified father that a “status hearing via Webex” had

been scheduled for March 12, 2024, at 9:00 am. The notice stated

that it had been mailed to father.

2 ¶7 Father did not appear on March 12. The court again found

that he had received notice but that he had voluntarily not shown

up.

¶8 After hearing the remainder of grandmother’s testimony, the

court found that grandmother had standing to seek an allocation of

parental responsibilities; that Colorado was the children’s home

state; and that grandmother had, by clear and convincing evidence,

rebutted father’s Troxel presumption and proven that her proposed

parenting plan was in the children’s best interests. See Troxel v.

Granville, 530 U.S. 57, 68 (2000)(“[T]here is a presumption that fit

parents act in the best interests of their children.”).

¶9 Two weeks later, the court issued written permanent orders.

The orders allocated sole parenting time and decision-making

responsibility to grandmother, while limiting father to supervised

therapeutic parenting time.

¶ 10 Father filed a motion for post-trial relief under C.R.C.P. 59.

He argued that he had not received proper notice of the hearings

and that the court had not appropriately considered his

constitutional rights or the children’s best interests when allocating

3 parental responsibilities to grandmother. The court did not rule on

father’s post-trial motion, so it was deemed denied under C.R.C.P.

59(j).

II. Procedural Due Process

¶ 11 Father contends that the court violated his due process rights

by deciding that grandmother had standing and by entering the

permanent orders allocating parental responsibilities to her without

giving him proper notice of the hearings and a meaningful

opportunity to be heard. We agree.

A. Applicable Law and Standard of Review

¶ 12 Due process requires a party to be provided with notice and a

meaningful opportunity to be heard. See In re C.L.S., 252 P.3d 556,

559 (Colo. App. 2011); In re Marriage of Hatton, 160 P.3d 326, 329

(Colo. App. 2007). The essence of procedural due process, however,

is fundamental fairness. Van Sickle v. Boyes, 797 P.2d 1267, 1273

(Colo. 1990). It is therefore “flexible and calls for such procedural

protections as the particular situation demands.” Id. (quoting

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Accordingly, notice

is sufficient if it is reasonably calculated, under the circumstances,

4 to apprise a party of the pendency of the action and afford the party

an opportunity to present objections. C.L.S., 252 P.3d at 559.

¶ 13 We review a procedural due process claim de novo. People in

Interest of R.J.B., 2021 COA 4, ¶ 26.

¶ 14 In his reply brief, father submits that grandmother violated

C.A.R. 28(b) because she did not state in her answer brief whether

she agreed with father’s proposed standard of review for the due

process claim. Father then requests that we strike the portion of

the answer brief dealing with the due process claim.

¶ 15 We will not do so. While the answer brief does not explicitly

use the words “agree” or “disagree,” grandmother implied that she

disagreed with father’s proposed standard of review by proposing

that we employ a different one: abuse-of-discretion review. That is

clear enough for us to understand her position on the standard of

review. We nonetheless reject grandmother’s proposed abuse-of-

discretion review because, as we have stated above, the proper

standard of review for father’s due process contention is de novo.

5 B. Analysis

¶ 16 As an initial matter, we reject grandmother’s assertion that

father did not preserve his due process contention. True, father

argued that he did not have adequate notice of the hearings for the

first time in his post-trial motion. See Briargate at Seventeenth Ave.

Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66 (noting that, in

general, arguments made for the first time in a post-trial motion are

deemed waived for purposes of appeal).

¶ 17 But the crux of father’s due process contention is that,

because of the insufficient notice, he could not have known that the

court was planning to hold a hearing on standing or on permanent

orders until after the court had already done so. As a result, father

could not have raised his due process contention before the court

had held the hearings and entered its orders. See In re Marriage of

Herold, 2021 COA 16, ¶ 7 (noting that we may review an issue

raised for the first time on appeal if the appellant did not have the

opportunity to object or to raise the issue to the trial court). And

the court had the opportunity to rule on the due process contention

because father raised it in his post-trial motion. See Grant Bros.

6 Ranch, LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 11 (“All

that is needed to preserve an issue for appeal is for the issue to be

brought to the district court’s attention so that the court has an

opportunity to rule on it.”).

¶ 18 Next, as we understand father’s argument, he does not dispute

that he knew about the dates and the times of the court settings.

Rather, he asserts that the notice he received did not adequately

inform him of what was scheduled to happen on those dates and

times. For example, he points out the notice did not inform him

that the court would hear testimony, that it would decide whether

grandmother had standing, that it would enter permanent orders,

or that it would resolve the entire case.

¶ 19 Recall that, according to the minute order, the facilitator

scheduled a “status conference” with the court to “discuss how [the]

case shall move forward.” Although the facilitator issued a “Notice

of Remote Hearing,” the notice stated that a “status conference” had

been scheduled. When grandmother’s counsel issued the second

notice, the notice stated that a “status hearing” had been

scheduled.

7 ¶ 20 Importantly, neither of the notices informed father that the

hearing would cover the issues of standing, permanent orders, or

whether the court would allocate parental responsibilities to

grandmother. Neither of the notices contained anything to inform

father that the court would be hearing testimony or entering any

final orders on the issues of parenting time and decision-making.

¶ 21 The court’s decision to resolve the entire case and to enter

permanent orders at the “status hearing” contradicted its case

management order. Specifically, the management order stated that

grandmother, as the petitioner, was required to schedule mediation

within seven days of the initial status conference and that

mediation “must be completed prior to the permanent orders

hearing.” But nothing in the record shows that grandmother tried

to schedule mediation.

¶ 22 The management order also stated that

• grandmother and father were required to participate in a

co-parenting class; but nothing in the record indicates

that either of them did so;

8 • any party with counsel was required to file, at least seven

days before a contested hearing, a joint trial management

certificate to identify the disputed issues in the case, any

witnesses, and any exhibits to be presented at trial; but

grandmother, who was represented by counsel, did not

file such a certificate before the February 26 or March 12

hearings; and

• any party without counsel was required to submit a pre-

trial statement at least seven days before a permanent

orders hearing; but father did not have the opportunity to

do so because he had not been informed that permanent

orders would be discussed at either the February 26 or

March 12 hearings.

¶ 23 “A parental responsibilities dispute between a parent and a

nonparent is not a contest between equals[.]” In re Parental

Responsibilities Concerning M.W., 2012 COA 162, ¶ 13. Unlike

grandmother, father has a fundamental right to make decisions

concerning the care, custody, and control of his children, and he is

9 entitled to a presumption that he acts in his children’s best

interests. Id. at ¶¶ 13-15; see also Troxel, 530 U.S. at 65.

¶ 24 We conclude that, although the record establishes that father

knew about the scheduled proceedings, the notice was insufficient

to apprise him of the nature of those proceedings or what the court

intended to decide at them. As a result, he did not have a

meaningful opportunity to be heard at them.

¶ 25 We further conclude that, without proper notice and a

meaningful opportunity to be heard, father was not (1) able to

protect his fundamental right to make decisions concerning the

care, custody, and control of his children, and (2) given the benefit

of the presumption that he acts in his children’s best interests. We

therefore vacate the judgment. We remand the case to the court to

schedule new proceedings on grandmother’s petition for an

allocation of parental responsibilities and to provide father with

proper notice of, and with a meaningful opportunity to be heard at,

those proceedings. See C.L.S., 252 P.3d at 559 (stating that a

judgment entered in violation of due process is void).

10 ¶ 26 Because we vacate the judgment and remand the case, we do

not address father’s contention that the court abused its discretion

by allocating sole parenting time and decision-making responsibility

to grandmother. We take no position on the merits of

grandmother’s petition.

III. Appellate Attorney Fees

¶ 27 Grandmother requests appellate attorney fees under section

13-17-102, C.R.S. 2024, because father’s appeal was frivolous,

groundless, and vexatious. We deny that request because we have

ruled in father’s favor on appeal.

¶ 28 Grandmother also asks us to award her appellate attorney fees

under section 14-10-119, C.R.S. 2024, because of “the disparity in

income” between father and grandmother. Because the court is

better equipped to determine the factual issues regarding the

parties’ current financial resources, we direct it to address this

request on remand. See C.A.R. 39.1; In re Marriage of Schlundt,

2021 COA 58, ¶ 54.

IV. Disposition

¶ 29 The judgment is vacated, and the case is remanded for further

proceedings to resolve grandmother’s petition for allocation of 11 parental responsibilities. The court shall ensure that father is

provided with proper notice of all proceedings and a meaningful

opportunity to be heard at them. The court shall also determine

grandmother’s request for appellate attorney fees under section 14-

10-119 based on the parties’ relative financial resources at the time

of the remand proceedings.

JUDGE KUHN and JUDGE MOULTRIE concur.