Parental Resp Conc SL

• Court: Colorado Court of Appeals
• Decided: August 29, 2024
• Docket: 23CA1269
• Status: Unknown

Opinion

23CA1269 Parental Resp Conc SL 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1269

Larimer County District Court No. 12DR150

Honorable Joseph D. Findley, Judge

In re the Parental Responsibilities Concerning S.L., a Child,

and Concerning Susan McClain,

Appellee,

and

Lisa Lipsie,

Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE GOMEZ

Kuhn, J., concurs

Richman*, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 29, 2024

The Lathrop Law Office, P.C., Jennifer S. Easterday, Fort Collins, Colorado, for

Appellee

Faegre Drinker Biddle & Reath LLP, Teresa G. Akkara, 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

¶ 1 Lisa Lipsie (mother) appeals the district court’s order denying

her motions for modification of parenting time and decision-making

responsibility with respect to the child, S.L. Because the district

court’s findings are insufficient to establish that the court applied

the correct legal framework under Troxel v. Granville, 530 U.S. 57

(2000) (plurality opinion), and In re Parental Responsibilities

Concerning B.R.D., 2012 COA 63, in denying her motions, we

reverse the order and remand the case with directions to consider

mother’s motions under the correct legal framework.

I. Background

¶ 2 Mother gave birth to S.L. in 2009. Less than two years later,

Larimer County filed a dependency and neglect case with respect to

the child, and mother stipulated to a deferred adjudication.

1

Mother and the child’s father later agreed to a stipulation allocating

parental responsibilities to Susan McClain, the child’s maternal

1

We take judicial notice of the court records from the earlier

dependency and neglect case. See Medina v. People, 2023 CO 46,

¶ 5 n.1 (“A court may take judicial notice of the contents of court

records in a related proceeding.” (quoting People v. Sa’ra, 117 P.3d

51, 56 (Colo. App. 2004))).

2

grandmother (grandmother). That stipulation was certified into a

domestic relations case and became an order of the court.

¶ 3 As relevant here, the stipulation provided that (1) grandmother

was “allocated sole parental responsibilities” for S.L.;

(2) grandmother was the “primary physical and legal custodian” of

S.L.; and (3) any parenting time for mother or father was to be

“determined at the sole discretion of [grandmother],” with

grandmother expressly having the right to deny parenting time, to

require that parenting time be supervised, or to require drug

screening as a condition of exercising parenting time. It also

provided that any modification of these terms would be determined

by the domestic relations court.

¶ 4 Over a decade later, mother, who appeared pro se, filed the

underlying motions to modify parenting time and decision-making

responsibility. Through her motions, she sought to have more

parenting time with and more decision-making responsibility for the

child. At a hearing on the motions, the district court took

testimony from mother, grandmother, and several other witnesses,

and it received into evidence a report from a court-appointed child

and family investigator (CFI), who disagreed with mother’s

3

requested modifications but recommended that the court impose a

set parenting time schedule. The court also conducted an in

camera interview of the child.

¶ 5 The court later issued an order denying both motions.

¶ 6 As to the request to modify parenting time, the court made

findings for nine of the eleven best-interests factors listed in section

14-10-124(1.5)(a), C.R.S. 2024. It then concluded,

The [c]ourt strongly considered the wishes of

the [m]inor [c]hild and the recommendations of

the CFI. The [c]ourt is sympathetic to the

recommendation for a stricter parenting time

schedule with less deference to [g]randmother

as recommended by the CFI to remove

communication from [grandmother] and

[mother] regarding coordination of parenting

time. However, the evidence provided left the

[c]ourt uncertain regarding [m]other’s living

situation, the presence of people in her life

who lead the [m]inor [c]hild to feel unsafe, and

[m]other’s continuing ability to support a

stable environment that would support

regularly-scheduled parenting time. When the

[c]ourt considered all the evidence, together

with the wishes of the [m]inor [c]hild, the

[c]ourt fears for the long-term best interest of

the [m]inor [c]hild if a schedule without

deference to the [m]inor [c]hild and

[g]randmother were imposed even if certain

safety measures were put into place.

4

¶ 7 As to the request to modify decision-making responsibility, the

court reasoned,

The [c]ourt does not find that matters have

sufficiently changed to justify a change in

decision-making authority pursuant to [section

14-10-131(2), C.R.S. 2024]. Mother made

allegations as to changes based on family

controversies and grievances [she] has

collected regarding [g]randmother to indicate

such a change in circumstances. However, the

[c]ourt was persuaded by the various witnesses

who testified to [grandmother’s] continued

ability to make sound decisions and her

maintenance of a safe environment that has

led to prosperity for the [m]inor [c]hild in

school and her overall security. Nothing

indicated to the [c]ourt a change in information

or circumstances that would justify a change

to decision-making authority.

¶ 8 Mother contends that the court erred in three ways: (1) by

failing to apply the legal framework set forth in Troxel and B.R.D.;

(2) by delegating to grandmother the right to make parenting time

decisions; and (3) by continuing a parenting time restriction without

making the statutorily required endangerment finding or

considering less drastic alternatives. We agree with the first

contention, reverse and remand on that basis, and decline to

consider the other two contentions.

5

II. Discussion

A. Standard of Review

¶ 9 Allocating parental responsibilities is a matter within the

sound discretion of the district court, and when there is record

support for the district court’s findings, its resolution of conflicting

evidence is binding on review. B.R.D., ¶ 15. However, whether the

court applied the correct legal standard presents a question of law

that we review de novo. Id.

B. Legal Standards

¶ 10 The United States Supreme Court has long recognized parents’

fundamental due process right to make decisions concerning the

care, custody, and control of their children. Troxel, 530 U.S. at 66

(citing cases). The plurality in Troxel also recognized a

“presumption that fit parents act in the best interests of their

children.” Id. at 68. Thus, the plurality concluded, “so long as a

parent adequately cares for his or her children (i.e., is fit), there will

normally be no reason for the State to inject itself into the private

realm of the family to further question the ability of that parent to

make the best decisions concerning the rearing of that parent’s

children.” Id. at 68-69. And where a parent’s decision becomes

6

subject to judicial review, a court “must accord at least some

special weight to the parent’s own determination.” Id. at 70.

¶ 11 This Troxel presumption applies even if a parent has

voluntarily delegated the day-to-day care, custody, and control of

their children to a nonparent. In re D.I.S., 249 P.3d 775, 779 (Colo.

2011). In such instances, unless the parties’ agreement expressly

provides otherwise, the parent may seek to terminate the

arrangement and is entitled to a presumption that their decision to

reassert care, custody, and control is in the best interests of the

children. Id. at 783-84. The nonparent has the burden of proving

otherwise by a preponderance of the evidence. Id. at 786.

¶ 12 In B.R.D., a division of this court applied these standards to

circumstances very similar to those in this case. There, a parent

sought to modify orders he had previously stipulated to, which gave

nonparents majority parenting time and sole decision-making

responsibility over his child. B.R.D., ¶¶ 6, 8. Applying Troxel,

D.I.S., and other cases, the division outlined four critical points to a

court’s analysis in such circumstances. B.R.D., ¶¶ 31-37.

¶ 13 First, rather than presuming that the existing order remains in

effect, the court must give “special weight” to a parent’s request to

7

modify that order. Id. at ¶ 32. This means there is a presumption

in favor of modifying the orders at the parent’s request. Id.

¶ 14 Second, the court must give a nonparent an opportunity to

present evidence (1) to rebut this presumption by showing that the

proposed modification is not in the child’s best interests and that

the existing order doesn’t endanger the child and (2) to prove that

the existing order is in the child’s best interests. Id. at ¶ 33. To

satisfy these two evidentiary obligations in the context of changes to

parenting time and decision-making responsibility, the nonparent

would need to show that

• no new facts that have arisen or become known since the

existing order show that a change in the nonparent’s or

the child’s circumstances would make the parent’s

proposed modification necessary to serve the child’s best

interests;

• the child’s present environment doesn’t endanger the

child’s physical health or impair the child’s emotional

development, and any harm likely to be caused by the

parent’s proposed modification would not be outweighed

by its advantages; and

8

• the existing order gives paramount consideration to the

child’s physical, mental, and emotional conditions and

needs by applying the factors in section 14-10-124(1.5).

B.R.D., ¶ 34.

¶ 15 Third, the applicable burden of proof on the nonparent is the

preponderance of the evidence standard. Id. at ¶¶ 35-36.

¶ 16 And fourth, if the court denies the parent’s request, it must

make findings of fact identifying the special factors on which it

relies. Id. at ¶ 37. This includes the factors listed in section 14-10-

124(1.5) (for allocation of parenting time and decision-making

responsibility); section 14-10-129(2), C.R.S. 2024 (for modification

of parenting time); and section 14-10-131(2) (for modification of

decision-making responsibility). B.R.D., ¶ 37.

C. Preservation

¶ 17 We disagree with grandmother’s assertion that mother didn’t

preserve her argument relating to the applicable legal framework.

See Gestner v. Gestner, 2024 COA 55, ¶ 18.

¶ 18 We don’t require “talismanic language” to preserve an issue for

appeal. Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50

(quoting Owens v. Dominguez, 2017 COA 53, ¶ 21). Instead, “[i]f a

9

party ‘presented to the trial court the sum and substance of the

argument it . . . makes on appeal, we consider that argument

properly preserved for appellate review.’” Id. (quoting Berra v.

Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)).

We also liberally interpret the pleadings of a pro se party. Adams

Cnty. Hous. Auth. v. Panzlau, 2022 COA 148, ¶ 8.

¶ 19 Here, mother, who appeared pro se, presented the sum and

substance of her argument to the district court. In the trial

management certificate, she cited the same legal standards from

B.R.D. that she relies on in this appeal, including that “special

weight” must be given to a parent’s motion to modify parental

responsibilities where a nonparent has primary residential custody

and sole decision-making responsibility and that, in such cases,

“there is a presumption in favor of modifying the order at the

parent’s request.” Then, at the hearing, she argued that “never

have I been deemed unfit as a parent,” “so you would presume that

I’m acting in [the child’s] best interests.” And in her written closing

argument, she cited Troxel in arguing that grandmother “did not

provide evidence that I am an unfit parent, so the presumption is

10

that I am acting in my child’s best interest.” This was sufficient to

preserve the issue.

D. Analysis

¶ 20 As an initial matter, we note that the earlier dependency and

neglect proceedings did not alter the presumption that mother is a

fit parent who is acting in the child’s best interests. Although an

adjudication may overcome that presumption, a deferred

adjudication generally will not. See People in Interest of N.G., 2012

COA 131, ¶ 36. And while grandmother cites evidence regarding

the dependency and neglect case, mother’s criminal history, and

mother’s history of drug use, the juvenile court in this case never

expressly found that mother was unfit. In the absence of any

finding that mother wasn’t a fit parent, she is still entitled to the

presumption that she is acting in the child’s best interests. See

Troxel, 530 U.S. at 68.

¶ 21 Thus, under Troxel and B.R.D., the district court needed to

give special weight to mother’s requests to modify the existing order

and needed to begin its analysis by applying a presumption in favor

of her modification requests.

11

¶ 22 Grandmother argues that, while the district court didn’t cite

the Troxel or B.R.D. standards in its order, it applied those

standards and implicitly found that she had overcome the

presumption in favor of mother’s modification requests. While the

court may not be required to expressly cite those standards, its

ruling must demonstrate that it applied the correct legal standards,

and we’re not convinced that its ruling sufficiently demonstrates

that it did. Cf. 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 enable the

appellate court to determine the grounds upon which it rendered its

decision.”).

¶ 23 It is true, as grandmother points out, that the district court

weighed at least some of the relevant considerations, including

making findings on the parenting time factors listed in section

14-10-124(1.5)(a). But the court’s findings don’t demonstrate that,

in doing so, the court applied the presumption in mother’s favor

and required grandmother to rebut that presumption.

12

¶ 24 The district court recited the ordinary statutory provisions in

sections 14-10-124, 14-10-129, and 14-10-131. Yet those

provisions don’t establish any presumption in favor of a parent’s

request to modify parental responsibilities — and in some instances

they establish a presumption in favor of the status quo, which in

this case favors grandmother. See, e.g., §§ 14-10-129(2), 14-10-

131(2). The Troxel presumption, however, requires additional

considerations to protect a parent’s due process rights. See D.I.S.,

249 P.3d at 783-86; B.R.D., ¶ 30. So if the district court

mechanically applied only the statutory provisions it cited in its

order, then it misapplied the law. And it’s unclear from the court’s

order whether it did so.

¶ 25 The district court also expressed that it was “uncertain” about

mother’s living situation, the presence of people in mother’s life who

lead the child to feel unsafe, and mother’s ability to establish a

stable environment to support regularly scheduled parenting time.

But if the court were truly applying a presumption in mother’s favor

and requiring grandmother to rebut that presumption, then any

uncertainty would be resolved in mother’s favor — not

grandmother’s. But the court relied on its uncertainty to deny

13

mother’s motions, suggesting that it may instead have resolved the

uncertainties in grandmother’s favor.

¶ 26 Because the court’s findings and conclusions are insufficient

to show that the court applied the correct legal framework to its

decisions on mother’s motions to modify parenting time and

decision-making responsibility, we reverse the order denying those

motions and remand the case with instructions to consider them

under the legal standards set forth in Troxel and B.R.D. See B.R.D.,

¶ 43 (reversing a district court order denying a parent’s requests for

modification of parenting time and decision-making responsibility

and remanding the case for new factual findings under the

standards described in the opinion).

¶ 27 On remand, the district court should apply these standards

and determine whether a modification of parenting time and

decision-making responsibility would be in the child’s best

interests. In doing so, the court must (1) begin with a presumption

favoring mother’s requests; (2) determine whether grandmother

rebutted this presumption by showing that the proposed

modification is not in the child’s best interests, that the existing

order on parenting time and allocation of parental responsibilities

14

doesn’t endanger the child, and that the existing order is in the

child’s best interests; and (3) place the ultimate burden on

grandmother to establish this burden by a preponderance of the

evidence. See id. at ¶¶ 32-36. If, after applying this test, the court

denies mother’s requests, it must make factual findings identifying

those special factors on which it relies. See id. at ¶ 37.

¶ 28 We recognize, however, that the child’s circumstances may

have changed since the district court entered its order in this case,

and that the court must determine the child’s best interests based

on her circumstances as of the time of remand proceedings. See

In re Parental Responsibilities Concerning M.W., 2012 COA 162,

¶ 27. Thus, although the court may rely on the existing record in

determining the child’s best interests, it must also provide the

parties the opportunity to present additional evidence concerning

her current circumstances. See id.

III. Disposition

¶ 29 The order is reversed, and the case is remanded for further

proceedings consistent with this opinion.

JUDGE KUHN concurs.

JUDGE RICHMAN dissents.

15

JUDGE RICHMAN, dissenting.

¶ 30 In my opinion, this case presents the following issue: Whether

an order denying a parent’s motion to modify parenting time and

decision-making in favor of a custodial nonparent may satisfy the

presumption in Troxel v. Granville, 530 U.S. 57, 69 (2000) (plurality

opinion), without expressly citing Troxel, when it meets the

framework set forth in In re Parental Responsibilities Concerning

B.R.D., 2012 COA 63. I conclude that it can.

¶ 31 On June 7, 2023, following a full-day hearing, the district

court entered a detailed seven-page order denying the motions of

Lisa Lipsie (mother) for modification of parenting time and decision-

making authority with respect to the child, S.L. I conclude the

district court did not abuse its discretion in denying the motions,

nor did it fail to properly apply the Troxel presumption or relevant

statutory provisions as required by the controlling decisions of our

court. Therefore, I dissent and would affirm the judgment.

I. Background

¶ 32 As the majority recounts above, in 2011, Larimer County

opened a dependency and neglect case with respect to the child,

and on September 15, 2011, mother signed a stipulation that

16

allocated sole parental responsibilities to Susan McClain, the child’s

maternal grandmother, and dictated that all parenting time shall be

as determined at the sole discretion of Ms. McClain, including the

ability to require that visits be supervised and that any party

submit a urinalysis screening.

¶ 33 In June 2022, mother filed her pro se motion to modify

decision-making authority, and in July 2022, she filed her pro se

motion to modify parenting time. The motion to modify decision-

making authority requested that custody be returned to mother,

and her motion to modify parenting time requested that the child be

“move[d] in with mother” and that Ms. McClain be allowed two

weekends of visits per month.

II. The District Court’s Rulings

¶ 34 On May 15, 2023, the district court held a hearing on the

motions, at which mother appeared pro se and Ms. McClain

 Mother acknowledges that during this period she was “struggling

to overcome drug addiction.” The record shows that mother

pleaded guilty in 2012 to felony assault and burglary, was

sentenced to incarceration, and, in 2016, was charged with escape

and returned to prison. Ms. McClain was concerned about

acquaintances of mother who had criminal records being around

S.L.

17

appeared with counsel. The court took testimony from both parties

and received into evidence a report from the child and family

investigator (CFI), which was filed on January 17, 2023. The court

also interviewed the child, who by then was over thirteen years old,

in camera without counsel or the parties present.

¶ 35 In a thorough written order entered June 7, 2023, the district

court denied both motions. The court summarized mother’s

position as follows:

Mother requests no specific schedule in the

Joint Trial Management Certificate filed on

April 19, 2023. Mother argues that [Ms.

McClain] has been manipulative and is

attempting to alienate the Minor Child from

Mother. As to decision-making responsibility

Mother argues that [Ms. McClain] discourages

a relationship with Mother and will not

communicate.

¶ 36 The court summarized Ms. McClain’s position as follows:

[Ms. McClain] requests that if a parenting

schedule is awarded to Mother that it is no

more than alternating weekends from noon on

Saturday to 4:00 P.M. Sunday. Further, [Ms.

McClain] requests that no other adult is

present during Mother’s parenting time and if

someone is present that the Minor Child be

returned to [Ms. McClain] immediately. [Ms.

McClain] states that Mother is unable to

demonstrate that she is capable [of] making

appropriate decisions for the Minor Child.

18

Further, she argues that there is no evidence

to show that modification of decision-making

authority is appropriate.

¶ 37 In denying the requested modification of decision-making, the

court found and concluded the following:

The Court does not find that matters have

sufficiently changed to justify a change in

decision making authority pursuant to [section

14-10-131(2), C.R.S. 2024]. Mother made

allegations as to changes based on family

controversies and grievances Respondent has

collected regarding [Ms. McClain] to indicate

such a change in circumstances. However, the

Court was persuaded by the various witnesses

who testified to Petitioner’s continued ability to

make sound decisions and her maintenance of

a safe environment that has led to prosperity

for the Minor Child in school and her overall

security. Nothing indicated to the Court a

change in information or circumstances that

would justify a change to decision-making

authority.

¶ 38 In denying the motion to modify parenting time, the court

made findings with respect to nine of the eleven factors enumerated

in section 14-10-124(1.5)(a), C.R.S. 2024. It also considered

evidence of the child’s best interests, and it determined that the

extreme nature of mother’s allegations about Ms. McClain were

without persuasive evidence and of “no relevant concern other than

to serve” mother’s grievances.

19

¶ 39 The court concluded its order stating,

The Court strongly considered the wishes of

the Minor Child and the recommendations of

the CFI. The Court is sympathetic to the

recommendation for a stricter parenting time

schedule with less deference to [Ms. McClain]

as recommended by the CFI to remove

communication from the Petitioner and

Respondent regarding coordination of

parenting time. However, the evidence

provided left the Court uncertain regarding

Mother’s living situation, the presence of

people in her life who lead the Minor Child to

feel unsafe, and Mother’s continuing ability to

support a stable environment that would

support regularly-scheduled parenting time.

When the Court considered all the evidence,

together with the wishes of the Minor Child,

the Court fears for the long-term best interest

of the Minor Child if a schedule without

deference to the Minor Child and [Ms. McClain]

were imposed even if certain safety measures

were put into place.

III. Issues on Appeal

¶ 40 On appeal, mother first argues the district court’s order did

not properly consider the presumption accorded to a fit parent

under Troxel and B.R.D. She also contends that the court erred in

“conditioning” mother’s parenting time on Ms. McClain’s consent,

because district courts may not delegate decisions regarding

parenting time to a third party, relying on In re Marriage of Dauwe,

20

148 P.3d 282 (Colo. App. 2006). She further argues the court did

not make the requisite “endangerment” findings before restricting

parenting time or consider less detrimental alternatives to

restricting parenting time, relying on In re Marriage of Hatton, 160

P.3d 326, 331 (Colo. App. 2007). I disagree with mother’s

contentions and address each argument in turn.

IV. Standard of Review

¶ 41 Allocating parental responsibilities is a matter within the

sound discretion of the district court, and when there is record

support for the district court’s findings, its resolution of conflicting

evidence is binding on review. B.R.D., ¶ 15. However, whether a

court has applied the correct legal standard presents a question of

law that we review de novo. Id.

V. The Troxel Presumption and B.R.D.

¶ 42 Mother contends the court did not afford her the presumption

established under Troxel and recognized in B.R.D.: that a fit parent

is presumed to act in the best interest of her child and her decision

concerning her child must be accorded special weight. Troxel, 530

U.S. at 69-70; B.R.D., ¶ 24.

21

¶ 43 Ms. McClain argues on appeal that mother did not preserve

this argument, and even if she did, she was not shown to be a fit

mother deserving this presumption.

¶ 44 Mother represented herself at the hearing on the modification

motions. While I acknowledge that she did not expressly argue to

the court that she was entitled to a presumption under these cases,

she did argue that she was the child’s mother, and “you would

presume that I’m acting in her best interests.” Moreover, in the

trial management certificate she argued that special weight must be

given to a parent’s motion to modify parental responsibilities and

specifically cited B.R.D. I agree with the majority that mother

sufficiently preserved her argument as to the applicability of the

Troxel presumption.

¶ 45 Ms. McClain also argues that mother failed to show her

entitlement to the presumption because the record shows that she

was not a “fit” mother. She argues that mother’s criminal record

and the fact that this case started as a dependency and neglect case

demonstrate mother’s lack of fitness. However, as Ms. McClain

acknowledges, the district court did not make any findings as to

whether mother was a fit parent, and it does not appear that it was

22

argued that she was unfit. I therefore cannot conclude, in the

absence of factual findings, that the Troxel presumption should be

denied here because mother was not a “fit” parent.

¶ 46 Finally, I consider mother’s argument and the majority’s

position that the district court failed to afford her the Troxel

presumption. I conclude that under the nuanced analysis of the

Troxel presumption, as set forth in B.R.D., the district court

properly applied the presumption and the law.

VI. The Framework under B.R.D.

¶ 47 In B.R.D., ¶ 6, the opposing parties were a custodial couple

who, like Ms. McClain here, obtained sole parental and decision-

making responsibility of the child pursuant to a stipulation with the

birth parents. The mother and father, two years after entering into

the stipulation, sought to modify it, asserting changed

circumstances, like mother here. Id. at ¶ 8. The district court

denied the mother and father’s request but directed specific

parenting time for them. Id. at ¶ 12. The father appealed, asserting

that the district court did not properly apply the Troxel

presumption. Id. at ¶ 14.

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¶ 48 A division of our court concluded that the district court had

misapplied the presumption. Id. This was primarily because the

district court had relied on In re Parental Responsibilities Concerning

M.J.K., 200 P.3d 1106 (Colo. App. 2008), a case whose holding was

rejected by the supreme court in In re D.I.S., 249 P.3d 775, 781

(Colo. 2011), a case decided after the district court’s ruling in the

case. B.R.D., ¶ 14. The B.R.D. opinion, after discussing the

modification statutes, described several general frameworks for

applying the Troxel presumption to conflicts between a parent and a

nonparent over custody of a child, one of which applies to the facts

of this case:

A fit parent who has relinquished custody of a

child and agreed to a court order placing the

child with a non-parent guardian is

nonetheless entitled to the presumption that

his or her decisions about the child’s custody

are in the child’s best interests. Thus, unless

the guardianship order contains express

limitations, a parent may move to terminate

the guardianship and reclaim custody of the

child. The guardian bears the burden of

proving, by a preponderance of the evidence,

that terminating the guardianship is not in the

child’s best interests.

Id. at ¶ 25 (citing D.I.S., 249 P.3d at 779).

24

¶ 49 B.R.D., ¶¶ 32-37, then outlined how a district court should

apply the presumption and the statutory requirements involved in

motions to modify pre-existing decision-making and motions to

modify parenting time orders between a parent and a nonparent.

¶ 50 First, rather than presuming that the existing order remains in

effect, the court must give “special weight” to the parent’s request to

modify them. Id. at ¶ 32. This means that there is a presumption

in favor of modifying the orders at the parent’s request. Id.

¶ 51 Second, the court must give the custodial nonparent an

opportunity (1) to rebut this presumption by showing that the

proposed modification is not in the child’s best interests and that

the present allocation of parental responsibilities does not endanger

her and (2) to prove that the present allocation of parental

responsibilities is in the child’s best interests. Id. at ¶ 33. The

parent seeking modification is entitled to present evidence in

support of the proposed modification. Id.

¶ 52 Under the circumstances present here, this means several

things. First, in order to rebut the presumption in favor of mother’s

request to modify parenting time and decision-making responsibility

in the existing order and establish that the proposed modification is

25

not in the child’s best interests, Ms. McClain must show that

(1) there are no facts that have arisen since, or were unknown when

the existing order was entered, that show a change has occurred in

Ms. McClain’s circumstances or the child’s circumstances that

would make mother’s proposed modification “necessary to serve the

best interests of the child,” §§ 14-10-129(2), -131(2), C.R.S. 2024;

and (2) the child’s present environment does not endanger her

physical health or impair her emotional development, and any harm

likely to be caused by mother’s proposed modification would not be

outweighed by the advantages of the proposed modification, see

§§ 14-10-129(2)(d), -131(2)(c).

¶ 53 Second, in order to show that the present allocation of

parental responsibilities is in the child’s best interests, Ms. McClain

must show that the existing allocation gives “paramount

consideration to the [child’s] physical, mental, and emotional

conditions and needs” by applying the factors found in section 14-

10-124(1.5). B.R.D., ¶ 34 (quoting § 14-10-124(1.5), C.R.S. 2012).

And, under the circumstances in this case, Ms. McClain can satisfy

her burden by a preponderance of the evidence because mother

initially consented to an order vesting Ms. McClain with sole

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decision-making authority and giving her primary residential

custody. Id. at ¶¶ 35-36. To determine whether there is a showing

by a preponderance of evidence, the district court takes into

account all the evidence presented, whether offered by Ms. McClain

or mother.

¶ 54 Finally, in denying mother’s request and continuing with the

present allocation of parental responsibilities to Ms. McClain, the

court must make findings of fact identifying the special factors on

which it relies. Id. at ¶ 37. These special factors are found in

section 14-10-124(1.5) (stating factors for allocation of parenting

time and decision-making responsibility), section 14-10-129(2)

(stating factors for modification of parenting time), and section 14-

10-131(2) (stating factors for modification of decision-making

responsibility). Id.

VII. The District Court Properly Applied the B.R.D. Framework

¶ 55 I acknowledge that the district court decision does not

expressly cite to Troxel or B.R.D., or state that mother’s preference

was being afforded the presumption of a fit parent. But, as noted,

mother had not expressly argued for such findings. Nonetheless,

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my review of the analysis undertaken by the district court shows

that it complied with the B.R.D. framework.

¶ 56 What Troxel sets forth is a rebuttable presumption that the

parent is presumed to be acting in the best interest of the child, and

therefore the parent’s decisions are to be accorded special weight.

B.R.D., ¶ 24. But the rebuttable presumption is just that —

rebuttable. And if the evidence as to the child’s best interest

overcomes the presumption by a preponderance, then special

weight is not afforded to the parent’s choice. Id. at ¶ 25.

¶ 57 Although the court below did not state that there was “a

presumption in favor of modifying the orders at mother’s request,” it

did require and find evidence to rebut the presumption by showing

that the proposed modification was not in the child’s best interests

and the present allocation did not endanger the child.

¶ 58 The presumption was rebutted by the evidence showing that

there were no facts that had arisen since the existing order was

entered to show that a change had occurred in Ms. McClain’s or the

child’s circumstances that made the proposed modification

necessary. See id. at ¶ 34. In this regard the district court stated:

“The Court does not find that matters have sufficiently changed to

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justify a change in decision making authority pursuant to C.R.S.

14-10-131(2),” and “[n]othing indicated to the Court a change in

information or circumstances that would justify a change to

decision-making authority.”

¶ 59 The report of the CFI, on which the district court relied, also

stated that “the current parenting plan . . . does not warrant a

modification of allocation of decision-making responsibilities.” And

it concluded that “there is no legal justification of a modification of

decision-making.” To me, this finding rebuts the presumption in

mother’s favor.

¶ 60 In accordance with the requirement in B.R.D., that the

nonparent must show that the proposed modification is not

“necessary to serve the child’s best interest,” the district court

found that the best interests of the child were served by the current

allocation:

When the Court considered all the evidence,

together with the wishes of the Minor Child,

the Court fears for the long-term best interest

of the Minor Child if a schedule without

deference to the Minor Child and [Ms. McClain]

were imposed even if certain safety measures

were put into place.

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¶ 61 In addition, the CFI report opined that mother’s requested

modification was not in the child’s best interests. I read the court’s

finding and conclusion as satisfying B.R.D.’s requirement regarding

the current parenting plan and rebutting any presumption that a

change in parenting is in the best interest of this child.

¶ 62 The district court also found that B.R.D.’s requirement that

the child’s present environment does not endanger her physical

health or impair her emotional development was met:

[T]he Court was persuaded by the various

witnesses who testified to [Ms. McClain’s]

continued ability to make sound decisions and

her maintenance of a safe environment that

has led to prosperity for the Minor Child in

school and her overall security.

¶ 63 In addition, the CFI report opined that Ms. McClain’s home

and interactions with the child were safe for the child. This again

rebuts any presumption in favor of changing decision-making

authority under the applicable statute.

¶ 64 With respect to the requirement of B.R.D., ¶ 34, to show that

the present allocation of parental responsibilities is in the child’s

best interest, the nonparent must show that the existing allocation

gives paramount consideration to the child’s physical, mental, and

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emotional conditions, in accordance with section 14-10-124(1.5). I

note that the district court expressly addressed nine of the eleven

factors listed in the statute.

¶ 65 The court observed that based on an in camera interview with

the child, she clearly expressed her wishes to maintain her stable

living situation and control over her time with mother. The court

gave “great weight” to her “wishes [as] subject to her best interests.”

¶ 66 The court also observed that the child has grown accustomed

to limited parenting time with mother, and to time with mother only

as the child wished to participate. The court concluded that

testimony from the parties and their witnesses “established that

events in the past have contributed to the Minor Child’s sense of

anxiety with her time at the home of the Mother.”

¶ 67 The court also found no physical ailments that impacted

parenting time. And the court stated that given the testimony

provided, especially the in camera interview with the child, it found

no indication that Ms. McClain “has fostered any improper

influence upon the child’s determination not to request time with

Mother in recent months.”

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¶ 68 The court stated that it considered the evidence of the child’s

best interests, and it considered the extreme nature of mother’s

allegations about Ms. McClain without persuasive evidence to be of

no relevant concern other than to serve mother’s grievances.

¶ 69 Finally, the district court stated that it had “strongly

considered the wishes of the Minor Child and the recommendations

of the CFI.” As noted, the child strongly wished to continue the

current arrangement with Ms. McClain, she did not want to be

forced to spend time with mother, and the CFI agreed that

modifying the parenting time, as requested by mother, was not in

the child’s best interest and there was no justification for a

modification of decision-making.

¶ 70 I emphasize that the child here was over thirteen years of age,

sufficiently mature to express reasoned and independent

preferences, when she expressed her views to the court. Unlike the

situations in the B.R.D. and D.I.S. cases, where the subject children

 When the court evaluates the best interests of the child, it is

required to consider the wishes of the child. To ascertain the best

interests of the child, the court may interview the child concerning

the child’s wishes. In re Marriage of Hartley, 886 P.2d 665, 672

(Colo. 1994).

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were at most four or six years old and did not testify, here S.L.

expressed strongly held views to the court about her custody and

parenting arrangements. As the district court said, it placed “great

weight” on S.L.’s preferences. Given her age and experience, those

preferences were entitled to weight, and those preferences support

the conclusion that any presumption in favor of the mother was

overcome.

¶ 71 To support its inference that the district court did not afford

mother the Troxel presumption, the majority refers to a statement

by the district court that it was “uncertain” about mother’s living

situation. Supra ¶ 25. I do not read that remark as an evidentiary

uncertainty about mother’s lifestyle; rather, I read it as the court

saying it was doubtful that mother’s living arrangements were

suitable to the child residing with her.

¶ 72 The majority also states that while the district court may not

be required to expressly cite to the Troxel or B.R.D. standards, its

ruling must demonstrate that it applied those standards. Supra

¶ 22. I agree that a talismanic reference to Troxel or B.R.D. is

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unnecessary so long as the district court follows the nuanced

framework set forth in B.R.D.

¶ 73 On the basis of this record, I conclude that the district

complied with the requirements of B.R.D. insofar as mother was

entitled to a parental presumption and that presumption was

overcome by the evidence before the court. I further conclude that

the district court did not abuse its discretion in denying mother’s

motions to modify decision-making authority and parenting time.

VIII. The Parenting Plan Does not Improperly Delegate Authority

¶ 74 Mother contends that by continuing the parenting plan

contained in the stipulation, the district court improperly delegated

to Ms. McClain the authority to determine parenting time.

¶ 75 I first note that the district court did not enter a parenting

time order in response to mother’s motions; it merely continued the

parenting time arrangement put in place some ten years earlier by

mother’s stipulation. I do not read the current order denying a

modification to the parenting time plan to amount to a delegation.

 In re Parental Responsibilities of Reese, 227 P.3d 900, 903 (Colo.

App. 2010), expressly states that the court is not required to

“explicitly state that it accorded [the parent] the Troxel

presumption” provided it applies the appropriate standard of proof.

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¶ 76 Mother nonetheless argues that Dauwe precluded this type of

delegation.

¶ 77 Dauwe concluded that the district court’s order, delegating

parenting time decisions to a parenting coordinator, contradicted

the provisions of section 14-10-128.1(3), C.R.S. 2024, which does

not authorize a parenting coordinator to make parenting time

decisions. 148 P.3d at 285. Of course, in this case, there is no

issue of delegation to a parenting coordinator.

¶ 78 Other cases have concluded that the delegation of parenting

time decisions to a noncustodial third party under the facts of those

cases is also improper. In Interest of D.R.V-A., 976 P.2d 881 (Colo.

App. 1999) (holding it was error for the district court to delegate

decisions regarding parenting time to guardian ad litem); In re

Marriage of McNamara, 962 P.2d 330 (Colo. App. 1998) (same); In re

Marriage of Elmer, 936 P.2d 617 (Colo. App. 1997) (holding it was

error for the district court to delegate to psychiatrist authority to

determine whether to permit overnight visitation). This case does

not involve any of those factual situations.

¶ 79 The only case I have found that addresses whether delegation

of parenting time decisions to a custodial party is improper is

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Hatton. There, the division concluded that the district court’s

delegation of parenting time decisions to the father was improper.

Hatton, 160 P.3d at 334-35. But the facts of that case reflected an

extreme situation.

¶ 80 First, the district court had ruled that the mother could not

have any contact whatsoever with the children in any form, “unless

she has signed, written permission from [the father] that is specific

with regard to the child or children and date, time and place.” Id. at

334. The division stated the district court could not “completely

deny” the mother’s parenting time without considering the least

detrimental alternative under the best interests standard. Id. at

333. And the division concluded that the district court had denied

the mother any parenting time and any contact whatsoever with the

children without expressly considering the least detrimental

alternative to ensure the children’s development. Id.

¶ 81 The situation in our case significantly differs from that in

Hatton. First, the stipulation is not an order of the court foisted

upon mother, but rather an agreement she made when she

transferred custody to Ms. McClain. Second, the stipulation does

not direct a complete denial of parental visitation. It provides that

36

Ms. McClain has sole discretion as to when visitation may occur

and who may participate. It provides that Ms. McClain shall decide

how holidays shall be allocated, but it does not provide that she

may deny all holiday visits. Third, and most importantly, over the

years that the stipulation has been in effect, mother has had ample

visitation with the child as noted in the CFI report: mother and

child enjoyed weekends together by agreement of the parties until

spring 2022 when mother and Ms. McClain disagreed about several

issues. That prompted the filing of the motions in this case, but the

CFI notes that even after that the child had spent time with mother,

although less frequently. And the district court encouraged a

resumption of the prior parenting time exercised, subject to the

wishes of the child.

¶ 82 Because the facts of this case are so different from Hatton, I do

not read the parenting plan contained in the stipulation as

amounting to an improper delegation of authority.

IX. Findings on Endangerment

¶ 83 Mother also contends the district court’s order fails because it

does not contain the findings regarding endangerment required

under section 14-10-129(1)(b) and (2)(d).

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¶ 84 Section 14-10-129(1)(b) provides that parenting time may not

be restricted absent a finding that the parenting time “would

endanger the child’s physical health or significantly impair the

child’s emotional development.” I do not view the court’s order

denying a modification to the parenting time arrangement contained

in the longstanding stipulation to amount to a “restriction” on

parenting time. Again, the court’s order merely denied a

modification to that plan. And because I do not agree that the

district court restricted mother’s parenting time, there was no

restriction, and the court was not required to consider or address

least detrimental alternatives. See Hatton, 160 P.3d at 333 (holding

parenting time may not be “completely den[ied]” without expressly

considering whether doing so is the least detrimental alternative).

¶ 85 Section 14-10-129(2)(d) provides that the court shall retain the

parenting time schedule unless “[t]he child’s present environment

endangers the child’s physical health or significantly impairs the

child’s emotional development.” For the reasons discussed at

length above, I conclude that the district court’s order found a lack

of endangerment in the child’s present environment so that no

change in the current parenting arrangement was required.

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¶ 86 I would affirm the district court’s order in all respects.