The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY February 8, 2024
2024COA12
No. 22CA1714, People in Interest of E.E.L-T. — Family Law — Allocation of Decision-making Responsibility — Impasse Between Joint-Decision-makers — Best Interests of the Child
A division of the court of appeals, clarifying an issue not
directly addressed in In re Marriage of Thomas, 2021 COA 123,
holds that the district court need not find endangerment before
breaking an impasse between parents with joint decision-making
responsibility by making the disputed decision for the parents. COLORADO COURT OF APPEALS 2024COA12
Court of Appeals No. 22CA1714 City and County of Denver District Court No. 14DR30919 Honorable Christine C. Antoun, Judge
In re the Parental Responsibilities Concerning E.E.L-T., a Child,
and Concerning Robert Sean Larkin,
Appellee,
and
Lydia Dawn Toupin,
Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE TOW Lipinsky and Grove, JJ., concur
Announced February 8, 2024
Colorado Legal Group, Hannah M. Clark, Denver, Colorado, for Appellee
Peak Legal Services, LLC, Todd Narum, Denver, Colorado, for Appellant ¶1 In this post-decree proceeding concerning the allocation of
parental responsibilities for E.E.L-T. (the child), Lydia Dawn Toupin
(mother) appeals the district court’s order adopting a magistrate’s
order for the child to receive a COVID-19 vaccine. This dispute
requires us to clarify an issue not directly addressed in In re
Marriage of Thomas, 2021 COA 123: whether the district court must
find endangerment before breaking an impasse between parents
with joint decision-making responsibility. Concluding that no such
finding is required, we affirm.
I. Facts
¶2 Mother and Robert Sean Larkin (father) are the unmarried
parents of the child. Pursuant to the parties’ court-approved
parenting plan, they have shared responsibility for the child’s
medical decisions since 2015.
¶3 The parties reaffirmed their agreement for shared
decision-making responsibility for medical decisions in 2021.
However, they could not agree at that time whether the child should
receive a COVID-19 vaccine.
¶4 Father thereafter filed a verified motion to modify
decision-making under section 14-10-131, C.R.S. 2023, or,
1 alternatively, to authorize the then-seven-year-old child to receive a
COVID-19 vaccine. In his motion, father asked the court to
(1) grant him sole medical decision-making responsibility; (2) order
the child to receive a COVID-19 vaccine and future boosters; or
(3) grant him the authority to make decisions concerning the
specific issue of COVID-19 vaccines (but not award him full
decision-making responsibility).
¶5 After mother expressed “deep[] concern[s] about the minor
child’s health as it pertains to this vaccine,” the district court
magistrate set the matter for a hearing.
¶6 The magistrate heard from Dr. Mary Ellen Staat (a pediatric
infectious disease specialist) and Dr. Katie Dickinson (the child’s
pediatrician), both of whom appeared as lay witnesses and testified
that, in their personal experiences as clinicians, they had not seen
serious adverse reactions or deaths result from the administration
of a COVID-19 vaccine to a child. Dr. Staat further testified that
the Centers for Disease Control and Prevention (CDC) recommended
the vaccine for children five years of age and older. The magistrate
also heard from mother’s expert witness, Dr. Peter Andrew
McCullough (an internal medicine physician and cardiologist), who
2 testified that the risk of COVID-19 vaccination for children
outweighs the benefit, the vaccine had “alarmingly high rates” of
serious adverse effects or death, and a healthy child should not
receive the vaccine. Finally, mother testified that she had concerns
about the lack of testing for the COVID-19 vaccines, as well as their
efficacy and possible significant adverse effects.
¶7 After the hearing, the magistrate entered a written order that
included the following findings of fact:
The Court finds that the minor child is endangered and potentially endangering others by not having in place a party who can make decisions about whether the minor child can receive treatment surrounding the [COVID-19] virus. This issue will continue if not resolve[d] as different strains of [COVID-19] are emerging and booster vaccines are becoming available. Additionally, pursuant to those factors as enumerated in C.R.S. §14-10-124, [C.R.S. 2023,] that a modification of decision making is in the best interests of the child. As such, the Court finds, pursuant to C.R.S. §14-10- 131, that the modification of decision making is appropriate, to have in place someone who can make decisions regarding [COVID-19] for the minor child, until he becomes an adult and can make decisions for himself.
¶8 The court then entered the following order:
1. [Father]’s Emergency Verified Motion to Modify Decision Making or alternatively, allow
3 the Child to Receive the [COVID-19] Vaccine . . . is GRANTED.
2. Minor child may receive [COVID-19] vaccines along with subsequent boosters with parties agreeing to the type of vaccine. If no agreement on the type of vaccine[,] the child may receive the vaccines . . . from Pfizer.
3. Parties will retain joint decision making on all major decisions surrounding the minor child.
....
5. The Court finds these orders are in the best interests of the minor child.
¶9 Mother timely filed a C.R.M. 7(a) petition seeking relief from
the magistrate’s order, arguing, among other things, that the
evidence did not support what mother characterized as the
magistrate’s finding that the child was endangered by not receiving
a COVID-19 vaccine. The district court rejected mother’s argument:
The magistrate did not find that the minor child is endangered by not having the vaccine, but only that the minor child is endangered by not having a party in place to make decisions about the minor child’s treatment surrounding the COVID-19 virus. The magistrate found it was in the best interest of the minor child “to have in place someone who can make decisions regarding [COVID-19].” . . . Based on the statements made within the order, this Court concludes that the magistrate did not make a factual finding that the minor child
4 was endangered by not receiving the COVID-19 vaccine as [mother] alleges.
¶ 10 The district court went on to discuss the nature of the
magistrate’s order in light of father’s three alternative requests. The
district court initially characterized the magistrate’s order as having
selected father’s second alternative — ordering that the child would
receive the vaccine and future boosters. The district court
concluded that the magistrate’s order was “in accord with existing
case law, and not legally incorrect.”
¶ 11 However, later in the same order, the district court
characterized the magistrate’s decision as having “modified
decision-making ability finding it was in the best interest of the
minor child to have someone in place to make these decisions for
the minor child.”
II. Mootness and Show Cause Order
¶ 12 Before mother filed her notice of appeal, the child received a
COVID-19 vaccine. We issued an order to mother asking her to
show cause whether we had jurisdiction over what appeared to be a
moot appeal.
5 ¶ 13 An issue is moot when a judgment, if rendered, would have no
practical legal effect on the existing controversy. In re Marriage of
Dauwe, 148 P.3d 282, 284 (Colo. App. 2006). When an issue
presented on appeal becomes moot by subsequent events, we will
not render an opinion on the merits of the issue. Id.
¶ 14 The magistrate’s order authorizes the child to receive an initial
COVID-19 vaccine “along with subsequent boosters,” as needed.
Mother therefore asserts, and we agree, that the appeal is not moot.
See id. We discharge the show cause order and consider mother’s
appellate contentions.
III. Appellate Standard of Review
¶ 15 Our review of the district court’s decision is effectively a
second layer of appellate review, and, like the district court, we
must accept the magistrate’s factual findings unless they are clearly
erroneous. In re Marriage of Sheehan, 2022 COA 29, ¶ 22. “A
court’s factual findings are clearly erroneous only if there is no
support for them in the record.” Van Gundy v. Van Gundy, 2012
COA 194, ¶ 12. But we review de novo issues of law, including
whether the magistrate applied the proper legal standard. See
Sheehan, ¶ 22.
6 IV. The Nature of the Magistrate’s Order
¶ 16 The parties do not agree on the posture of this appeal. Mother
contends that the appeal concerns the magistrate’s erroneous
factual finding that the child was endangered by not receiving a
COVID-19 vaccine. Father counters that the magistrate made no
such finding and found only that the child was endangered “by not
having in place a party who can make decisions about whether the
minor child can receive treatment surrounding the [COVID-19]
virus.”
¶ 17 Both parties, however, appear to presume that the magistrate
modified decision-making responsibility by giving father the
authority to decide whether the child would receive a COVID-19
vaccine. For example, mother asserts that the magistrate “award[ed
father] the ability to make the decision for the specific issue of the
COVID Vaccine,” while father contends that the magistrate did not
“abuse her discretion in concluding that the tiebreaker should be”
father.
¶ 18 In fairness to the parties, neither the magistrate’s nor the
district court’s order is entirely clear. Both orders contain language
that suggests a modification of decision-making responsibility. For
7 example, the magistrate found that “a modification of decision
making is in the best interests of the child” and that “[i]t is not
necessary to modify decision making in any other area as the
parties have been able to reach agreements.” (Emphasis added.)
And, in adopting the magistrate’s order, the district court observed,
“The magistrate did not order [father] to vaccinate the minor child;
the magistrate modified decision-making ability finding it was in the
best interest of the minor child to have someone in place to make
these decisions for the minor child.”
¶ 19 But both orders also suggest that the magistrate did not
actually modify decision-making responsibility and, instead, simply
broke the impasse by making the decision herself. Nowhere in the
magistrate’s order does she state that father shall have
decision-making authority in this area. To the contrary, the
magistrate merely orders that the “[m]inor child may receive
[COVID-19] vaccines,” and that, if the parents could not agree on
the type of vaccine, the child would receive the Pfizer vaccine.
Indeed, the magistrate explicitly ordered that the “[p]arties will
retain joint decision making on all major decisions surrounding the
minor child.” For its part, the district court noted father’s three
8 alternative requests and concluded that the magistrate “accepted
[father’s] second alternative,” which was simply to order that the
minor child may receive a COVID-19 vaccine and future boosters.
Recall that the first alternative father requested was to be allocated
medical decision-making while the third was authorization to make
the decision for this specific issue — neither of which the
magistrate granted.
¶ 20 To the extent the magistrate and the district court considered
the order to be a change in decision-making, it appears that they
viewed the modification as making the court the decision-maker. To
the extent that is the case, we note that such a step is both
unnecessary and of no effect. A court allocates decision-making
authority “between the parties.” § 14-10-124(1.5)(b). When parents
who share joint decision-making cannot agree on a particular
decision, however, the court has authority to break the impasse by
making the decision for them. Thomas, ¶ 38. In doing so, the court
need not — indeed, cannot — take the affirmative step of allocating
decision-making authority to itself because it is not a party. See
§ 14-10-124(1.5)(b); see also Dauwe, 148 P.3d at 285 (noting that
9 the division was aware of “no authority that prohibits the court
from resolving a dispute between joint decision makers”).
¶ 21 Thus, notwithstanding the ambiguous language in both the
magistrate’s and the district court’s orders, we conclude that the
magistrate did not modify the allocation of decision-making
authority. Instead, when faced with an impasse between joint
decision-makers, the magistrate broke the tie herself.
¶ 22 We turn now to whether she did so appropriately.
V. No Endangerment Showing Is Required Before the Court Can Break an Impasse Between Joint Decision-Makers
¶ 23 Mother argues that the court can only break an impasse
between joint decision-makers if it finds that the child is
endangered. But neither Dauwe nor Thomas requires such a
finding.1
¶ 24 In Dauwe, the parents could not agree whether their children
should be in therapy. 148 P.3d at 285. In resolving this
1 Mother’s reliance on In re Marriage of Crouch, 2021 COA 3, is also
misplaced. In Crouch, the issue was not what showing was required for the court to break an impasse but, rather, what showing was required to modify the allocation of decision-making responsibility. Id. at ¶ 26. The case is therefore inapposite, as we have concluded that the magistrate here did not modify the allocation of decision-making responsibility.
10 “long-standing dispute,” the district court opted not to modify the
prior order granting joint decision-making responsibility but
ordered that the wife should have the authority to obtain therapy
for the children. Id. Significantly, the district court entered this
order “without finding . . . that retaining the existing allocation of
decision-making authority endangered or impaired the children.”
Id. A division of this court upheld that order. Id. at 286.
¶ 25 Later, in Thomas, the parties disputed whether to send their
child to high school in Adams County or Jefferson County.
Thomas, ¶ 9. Finding that the parties were at a “total impasse” in
resolving the school issue, the district court decided the issue for
the parties, ordering the child to attend school in Jefferson County.
Id. at ¶¶ 16, 38. In upholding this decision, the division reasoned
that, “when one or both of [the] parents are unable to responsibly
discharge their duty to make a particular decision, a court is
sometimes left with no alternative but to do so.” Id. at ¶ 36. The
division held that the district court has impasse-breaking authority
between two parents with joint decision-making responsibility. Id.
at ¶ 38. Nowhere in the Thomas decision did the division analyze
whether the child was endangered. Indeed, the district court had
11 initially denied the mother’s motion to make her the sole
educational decision-maker because she had failed to demonstrate
that the existing joint decision-making allocation endangered the
child. Id. at ¶ 12. Notwithstanding this lack of endangerment, after
other attempts by the district court to resolve the issue failed, the
court simply made the decision itself. Id. at ¶¶ 16-17.
¶ 26 Indeed, it makes no sense to require an endangerment finding
before a court exercises its impasse-breaking authority. If the court
were able to find endangerment, it would not need to make the
decision for the parents; the court, instead, could simply modify
decision-making authority and make one parent the sole
decision-maker. Moreover, if endangerment were required, the
inability to break the impasse would effectively grant veto power to
a joint decision-maker who prefers the status quo without any
consideration of the guiding principle in these cases — the best
interests of the child. See § 14-10-124(1.5) (charging the court with
acting “in accordance with the best interests of the child giving
paramount consideration to the child’s safety and the physical,
mental, and emotional conditions and needs of the child”).
12 ¶ 27 Instead, as Dauwe and Thomas illustrate, even if there is no
endangerment, when there is an impasse between joint
decision-makers, the court may break that impasse by making the
decision it determines to be in the best interests of the child.
Dauwe, 148 P.3d at 285; Thomas, ¶¶ 17, 38 n.7. Here, the
magistrate did just that, and mother does not challenge the
magistrate’s best interests determination.
¶ 28 Because the magistrate’s determination that getting
vaccinated was in the child’s best interest is supported by the
record, we discern no basis for reversal on this ground.2
VI. Inadmissible Opinion Testimony
¶ 29 Mother contends that the magistrate erred by allowing Drs.
Staat and Dickinson to offer expert opinion testimony in the guise
of personal knowledge and experience; characterizing Drs. Staat
and Dickinson as “non-retained” experts; and finding that Drs.
Staat and Dickinson could testify based on their own personal
knowledge, experiences, and qualifications. Assuming without
2 In light of our resolution of this issue, we need not determine
whether the magistrate’s specific endangerment finding has record support, because the finding was unnecessary.
13 deciding that the magistrate erred in these respects, any errors are
harmless.
¶ 30 We review evidentiary rulings in civil cases for harmless error.
Bernache v. Brown, 2020 COA 106, ¶ 26. If an error “does not
affect the substantial rights of the parties,” we must disregard it.
C.R.C.P. 61; see C.A.R. 35(c). An error affects a substantial right
only if it substantially influenced the outcome of the case or
impaired the basic fairness of the trial. Bly v. Story, 241 P.3d 529,
535 (Colo. 2010). We will reverse only if an error resulted in
substantial prejudice to a party. In re Mendy Brockman Disability
Tr., 2022 COA 75, ¶ 45.
¶ 31 No substantial prejudice occurred here. In her order, the
magistrate wrote, “While the doctors and experts presented all make
a reasonable argument for their positions, the [CDC] is the
authority in this matter.” Thus, the magistrate’s order clearly
reflects that she did not rely on the testimony of Dr. Staat or Dr.
Dickinson. Notably, mother’s witness, Dr. McCullough, testified
that the CDC made the recommendation that children receive the
COVID-19 vaccine, so the order is not without record support. See
Sheehan, ¶ 22; Van Gundy, ¶ 12. Consequently, we can say with
14 fair assurance that any errors in allowing Drs. Staat and Dickinson
to testify did not substantially influence the magistrate’s decision.
See Bly, 241 P.3d at 535. We therefore disregard the alleged errors.
VII. Disposition
¶ 32 The order is affirmed.
JUDGE LIPINSKY and JUDGE GROVE concur.