24CA1471 Peo in Interest of FM 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1471 Weld County District Court No. 21JV262 Honorable Anita Crowther, Judge
The People of the State of Colorado,
Appellee,
In the Interest of F.M., a Child,
and Concerning J.O.,
Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Bruce T. Barker, County Attorney, David S. Anderson, Assistant County Attorney, Greeley, Colorado, for Appellee
Jenna L. Mazzucca, Counsel for Youth, Salida, Colorado, for F.M.
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, J.O. (mother)
appeals the juvenile court’s judgment allocating parental
responsibilities for F.M. (the child) to the child’s paternal
grandmother. We reverse the judgment and remand the case for
further proceedings.
I. Background
¶2 In April 2021, the Weld County Department of Human
Services received a referral indicating that the then-ten-year-old
child reported that her father sexually abused her and drank too
much; that she had homicidal ideations toward him; and that she
would kill herself if she had to go back to him. The Department
noted that the parents were involved in a “very contentious divorce
case” and that mother was living in Utah. After conducting an
investigation, the Department filed a petition in dependency and
neglect alleging concerns about the parents’ domestic violence and
substance use, as well as the child’s mental health.
¶3 The juvenile court granted temporary custody to the
Department, and the child was placed with her paternal
grandmother. Based on the parents’ admissions, the court
adjudicated the child dependent or neglected. The court then
1 adopted treatment plans for both parents. Shortly thereafter, the
caseworker reported that mother began to comply with her
treatment plan by completing a psychological evaluation; engaging
in individual and family therapy; regularly communicating with the
Department; and attending in-person family time with the child.
¶4 In November 2021, the Department received an approved
home study under the Interstate Compact on the Placement of
Children (ICPC) for mother’s home in Utah, but the caseworker
reported that the home study did not include certain documents.
Around the same time, the caseworker noted that the child wanted
to move to Utah to live with their mother. In January 2022, mother
moved the juvenile court to order that the child be returned to her
in Utah, but the Department was still waiting for the remainder of
the ICPC documents. And by that point, counsel for youth (CFY)
reported that the child changed her mind and no longer wished to
move to Utah.
¶5 In the summer of 2022, the child began refusing to go to
family therapy or family time with mother. Consequently, mother
moved the juvenile court to find that the Department was not
making reasonable efforts and asked it to reinstate family therapy.
2 Thereafter, the CFY moved for an allocation of parental
responsibilities (APR) to paternal grandmother.
¶6 Beginning in June 2023, the juvenile court held a four-day
APR hearing over the course of four months. In December 2023,
the court issued an order finding that: (1) mother had completed all
treatment requirements and was a fit parent; (2) father was not a fit
parent; (3) the caseworker’s testimony was not credible; (4) paternal
grandmother’s testimony was not credible, (5) the thirteen-year-old
child wanted to remain with paternal grandmother but was “not
sufficiently mature” to make that decision; (6) the Department had
not made reasonable efforts to reunite mother with the child; and
(7) the CFY failed to meet his burden. The court further found that
it was not in the child’s best interest for paternal grandmother to
have sole APR at that time, ordered the Department to arrange
reunification therapy, and held the APR motion in abeyance.
¶7 Six months later, the court heard additional testimony from
the family therapist, who the court found credible. The therapist
opined that the child was not afraid of mother, that she had no
safety concerns preventing reunification, and that she supported a
three-phase transition plan that would transition the child to Utah
3 to live with mother. The therapist said the child could go back to
mother immediately and that such returns happen all the time;
however, she believed the transition plan was the more thoughtful
approach, given the communications difficulties among the family
members. The juvenile court reaffirmed its earlier finding that
mother was a fit parent and father was not. But it found that the
child’s relocation to Utah was not in her best interest and that
mother’s Troxel presumption had been overcome by clear and
convincing evidence. The juvenile court then issued an order
allocating parental responsibilities to paternal grandmother and
granting mother weekend parenting time twice per month. It
certified the APR judgment into the parties’ pre-existing domestic
relations case.
II. Applicable Law and Standard of Review
¶8 The Children’s Code authorizes a juvenile court to enter an
order allocating parental responsibilities and addressing parenting
time when it maintains jurisdiction in a case involving a child who
is dependent and neglected. § 19-1-104(5)-(6), C.R.S. 2024; People
in Interest of E.Q., 2020 COA 118, ¶ 10. When allocating parental
responsibilities in a dependency and neglect proceeding, the court
4 must consider the legislative purposes of the Children’s Code
under section 19-1-102, C.R.S. 2024. People in Interest of J.G.,
2021 COA 47, ¶ 18. The overriding purpose of the Children’s Code
is to protect a child’s welfare and safety by providing procedures
through which the child’s best interests can be served. Id. at
¶ 19. Consequently, the court must allocate parental
responsibilities in accordance with the child’s best interests. Id.
¶9 Nonetheless, parents maintain a fundamental liberty interest
in the care, custody, and control of their children. See Troxel v.
Granville, 530 U.S. 57, 66 (2000). In Troxel, the Supreme Court
recognized that a parent who is adequately caring for his or her
child — a fit parent — is presumed to act in the child’s best
interests. Id. at 68-69. Thus, if the court determines that a parent
in a dependency and neglect proceeding has become fit, it must
apply the Troxel presumption before awarding an APR to a
nonparent. J.G., ¶¶ 21, 27; see also People in Interest of N.G.G.,
2020 COA 6, ¶¶ 18-19.
¶ 10 Applying the Troxel presumption requires the court to accord
“at least some special weight to the parent’s own determination
regarding the child’s best interests.” J.G., ¶ 21 (quoting Troxel, 530
5 U.S. at 70). This includes the parent’s determination that he or she
should have sole discretion to determine when a nonparent may
visit the child. N.G.G., ¶ 15.
¶ 11 The Troxel presumption may only be rebutted if the nonparent
shows by clear and convincing evidence that the parent’s
determination is not in the child’s best interests and that the
nonparent’s request is in the child’s best interests. Id. at ¶ 16; see
also In re Parental Responsibilities Concerning B.J., 242 P.3d 1128,
1132 (Colo. 2010). The ultimate burden is on the non-parent. Id.
The court must also identify special factors that support entering
an order contrary to the parent’s wishes. J.G., ¶ 22; see also In
Interest of C.T.G., 179 P.3d 213, 226 (Colo. App. 2007) (overturning
a visitation order based on Troxel when the non-parent failed to
present evidence of special circumstances to justify an order
contrary to the parents’ wishes).
¶ 12 Allocating parental responsibilities is a matter within the
sound discretion of the juvenile court. In re Parental Responsibilities
Concerning B.R.D., 2012 COA 63, ¶ 15. A court abuses its
discretion when its ruling is “manifestly arbitrary, unreasonable, or
unfair, or when it misapplies the law.” People in Interest of M.H-K.,
6 2018 COA 178, ¶ 60. Further, we will not disturb a court’s factual
findings unless they are (1) unsupported by the record, see J.G.,
¶ 17, or (2) supported by the record, but we are nonetheless left,
after a review of the entire evidence, with the firm and definite
conviction that a mistake has been made, see Indian Mountain Corp.
v. Indian Mountain Metro. Dist., 2016 COA 118M, ¶ 31. Whether a
court applied the correct legal standard in making its findings,
however, is a question of law that we review de novo. J.G., ¶ 17.
III. Discussion
¶ 13 Mother contends that the juvenile court erred by concluding
that her Troxel presumption had been overcome. She also argues
that the record did not support the court’s finding that an APR to
paternal grandmother was in the child’s best interests. Because
these issues are intertwined, we address them together and
conclude that the court’s APR judgment constituted an abuse of
discretion.
a. Additional Background
¶ 14 At the end of June 2023, the juvenile court began its hearing
on the CFY’s motion for an APR to paternal grandmother. At that
time, the court heard testimony from the caseworker, the child,
7 paternal grandmother, maternal grandmother, maternal
grandfather, and an expert witness endorsed by mother. In
September 2023, the hearing concluded after mother and her expert
witness testified. Three months later, the court issued an order
holding the APR in abeyance for six months. It found, as relevant
here, the following:
• By the time the child began refusing to attend family time
and family therapy, mother had completed her treatment
plan and was “by all accounts . . . a fit and proper parent.”
• The Department “failed to implement remedies or make any
attempts to reunify [mother and the child] for over a year,”
which constituted a lack of reasonable efforts.
• The caseworker was not credible “regarding multiple areas
of her testimony.”
• The child was not sufficiently mature enough to make the
initial decision to refuse all contact with mother, and she
was not mature enough to make that decision at the time of
the hearing; it was “unfair that the adults in this case
expected her to.”
8 • Paternal grandmother’s testimony that she was “willing to
encourage the relationship and communicate with mother
regarding [the child] was not credible.”
• At that time, it was “not in [the child’s] best interest[s] for
[paternal grandmother] to have sole [APR], and the CFY has
failed to meet his burden.”
¶ 15 Over the six months following the juvenile court’s order, it held
several review hearings but did not take additional evidence related
to the APR motion. In May 2024, mother filed a forthwith motion
for a court-ordered plan to return the child to her. At that time, she
proposed a transition plan that would start with her exercising
extended parenting time in Colorado and eventually end with the
child moving to Utah and an APR to mother. Around the same
time, the caseworker filed a family services plan which indicated
that paternal grandmother told the head of the Department’s child
support division that father was living with her and was providing
all of the child’s care and transportation, despite father’s failure to
comply with substance abuse treatment and random urinalysis.
But neither father nor paternal grandmother had informed the
caseworker of this apparent change in living arrangements.
9 ¶ 16 In June 2024, the court held another hearing at which only
the family therapist testified. At the end of that hearing, the court
stated that this case was “essentially a domestic relations case” and
that it did not need another hearing or any argument to rule on the
APR motion. But it ordered the Department to file an updated
family services plan and all parties to file updated, “ideal” proposed
parenting plans before it entered its final APR judgment. Notably,
the Department’s updated family services plan reiterated that father
may be living in the home with the child. It also stated that father’s
recent urinalysis result was abnormal and that he reported he had
relapsed. And, contrary to father’s representations that he had
engaged in domestic violence treatment, “it was discovered that [he]
only attended one session and was dismissed from treatment for
not being honest with the treatment provider.” Moreover, the
Department reported that the relationship between mother and the
child is “positive”; that there were no safety concerns related to
mother; and that nothing in the child’s medical records indicated
that the child was having direct anxiety from her family time with
mother.
10 ¶ 17 Over a year after the APR hearing started, the juvenile court
entered a final APR judgment granting joint decision-making
between mother and paternal grandmother and ordering that the
child’s primary residence remain with paternal grandmother while
mother would have weekend parenting time twice per month. The
court found, as relevant here, the following:
• “Mother is a fit and proper parent,” but “father is not fit.”
• “At the APR hearing [conducted in June and September
2023], the Department and [CFY] presented substantial
evidence to rebut the presumption that mother will act in
the child’s best interests, including [the child’s] own
testimony.”
• The family therapist [who testified in 2024] was the “only
credible professional to provide evidence” who had worked
with both mother and the child.
• “Mother’s Troxel presumption . . . [was] overcome by clear
and convincing evidence as demonstrated by the
Department and the CFY at the APR hearing, and by the
[family therapist’s] testimony . . .”
11 • “Mother’s request for the child to move immediately to Utah
[was not] in the child’s best interest[s],” and a move to Utah
would be detrimental to the child’s emotional and mental
health.
¶ 18 The court made no findings concerning the three-phase
transition plan mother proposed and with which the family
therapist agreed.
b. Analysis
¶ 19 We begin by acknowledging that the juvenile court correctly
articulated the applicable legal standards for determining whether
an APR to paternal grandmother could be entered over mother’s
objection. Specifically, the court noted that because mother was a
fit parent, she was entitled to a Troxel presumption, and that the
presumption could only be rebutted by clear and convincing
evidence showing that mother’s determination was not in the child’s
best interests and that the CFY’s request was.
¶ 20 Nonetheless, we conclude that the court abused its discretion
by relying largely on evidence it had previously found to be
insufficient and making findings that conflicted with its prior
findings without explanation. See S. Cross Ranches, LLC v. JBC
12 Agric. Mgmt., LLC, 2019 COA 58, ¶¶ 46-49 (holding that district
court abused its discretion by making inconsistent rulings without
explanation or consideration of prior ruling). Recall that in
December 2023, after hearing four days of evidence on the CFY’s
motion for an APR to paternal grandmother, the court specifically
found that the CFY “failed to meet his burden” and that an APR to
paternal grandmother was not in the child’s best interest. But six
months later, the court credited that same evidence to support an
opposite finding — that the CFY met his burden to overcome
mother’s Troxel presumption and to show that an APR to paternal
grandmother was in the child’s best interest. More specifically, in
its final APR judgment, the court relied heavily on “the child’s own
testimony” despite its earlier finding, based on the same evidence,
that the child was not sufficiently mature enough to be making
decisions about whether she should have parenting time with
mother. The court also found that the Department presented
“substantial evidence” despite its earlier finding, based on the same
evidence, that the Department’s only witness, the caseworker, was
not credible. It further found that paternal grandmother “supported
[the child’s] relationships with both parents” despite its earlier
13 finding, based on the same evidence, that paternal grandmother’s
testimony that she was willing to encourage the child’s relationship
with mother “was not credible.”
¶ 21 We acknowledge that the juvenile court also credited the
family therapist’s testimony, which was the only new evidence it
heard after its first order finding that the CFY failed to meet his
burden. But the court did not explain how the therapist’s
testimony, on its own, showed, by clear and convincing evidence,
that mother’s request for the child to move to Utah was not in the
child’s best interests and that the CFY’s request for an APR to
paternal grandmother was. True, the therapist testified that a move
to Utah could impact the child’s relationships with the rest of her
family and that the child was not “imagining a life in Utah.” She
also testified that the child had been having extreme anxiety, and
that the child’s individual therapist had said the conversation about
moving to Utah had been “triggering.” And the juvenile court cited
this testimony in its order. But even assuming that these were the
“special factors” the court relied upon in making its determination
under Troxel, it did not explain how these factors justified
interfering with mother’s wishes, particularly given the court’s
14 determination that mother was the child’s only fit parent. See J.G.,
¶ 44.
¶ 22 Additionally, we note that the family therapist testified that
that she could not say if an immediate move to Utah would have a
positive or negative impact on the child; that mother and the child
had a “foundation and a mutual reciprocated emotional
connection”; that the “best case scenario” would be for mother to
“gradually shift into [a] parent-child dynamic” with the child; and
that the child was not afraid of mother in any way. And she stated
that “it was about time” for mother to be given the opportunity to
parent her child and that she had never been part of a case “where
a mom finished her treatment plan and [had] done the work and
showed up, [but] hadn’t been given at least the opportunity to . . .
be a parent to her child.” Although we do not reweigh the evidence
on appeal, we cannot decipher, in light of the foregoing, how the
juvenile court concluded that the therapist’s testimony — combined
with testimony it had previously found incredible or insufficient —
was sufficient to support its finding that mother’s request for the
child to move to Utah was not in the child’s best interests. See
Indian Mountain Corp., ¶ 31.
15 ¶ 23 Moreover, the record indicates that although the juvenile court
was required to base its determination on the circumstances
existing at the time of the proceeding, see N.G.G., ¶ 29, by the time
it entered its final APR judgment, it had been over a year since it
heard the majority of the evidence. And, according to the court,
“things [had] changed since the last court order.” Indeed, a week
before the family therapist testified, the court stated it would need
to know “what happened in the past six months” and anticipated
“hearing from” the child, the family therapist, the caseworker, and
the parents. And by that point, the Department had already filed at
least one family services plan in which the caseworker reported that
father was apparently living with paternal grandmother and the
child despite the Department’s concerns about his sobriety and
treatment plan compliance. Then, at the hearing, the family
therapist testified that “lots of things [had] changed” since the “last
court hearing,” including having a “new team of people working
with [the family], a new caseworker, a new supervisor, [and] a new
therap[ist].” After that, the Department filed another family
services plan in which the caseworker reiterated the Department’s
concerns about father’s sobriety and lack of domestic violence
16 treatment but acknowledged mother’s significant progress and
noted the Department’s lack of concerns about mother’s
relationship with the child. Even so, by the time it entered the APR
judgment, the court apparently changed its mind about the
necessity of more up-to-date testimony from any of the parties and
instead relied on evidence that was presented a year before it
entered its final judgment. Although we do not imply that a court
may never rely on year-old evidence, we conclude that in this
instance, such reliance constituted an abuse of discretion,
particularly considering that the court acknowledged that
circumstances had changed, and it had already found the year-old
evidence to be insufficient to support an APR to paternal
grandmother.
IV. Disposition
¶ 24 The judgment is reversed, and the case is remanded to the
juvenile court. On remand, the court must take additional evidence
concerning the current circumstances and (1) apply the Troxel
presumption in favor of mother’s decisions regarding the child; (2)
determine whether the presumption has been rebutted by clear and
convincing evidence showing that mother’s decisions are not in the
17 child’s best interests; and (3) place the ultimate burden on the CFY
to show that the APR to paternal grandmother is in the child’s best
interests. If the court determines the CFY has met the burden to
overcome mother’s Troxel presumption, the court must identify
special factors that justify interfering with mother’s decisions.
JUDGE SCHOCK and JUDGE SULLIVAN concur.