Peo in Interest of NRR

• Court: Colorado Court of Appeals
• Decided: January 23, 2025
• Docket: 24CA1257
• Status: Unpublished

Opinion

24CA1257 Peo in Interest of NRR 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1257 El Paso County District Court No. 23JV30402 Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of N.R.R., M.R.R., and K.R.R., Children,

and Concerning I.R.P.,

Appellant.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE BERGER* Tow and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025

Kenneth Hodges, County Attorney, Shannon Boydstun, Assistant County Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem, for N.R.R. and M.R.R.

Josi McCauley, Counsel for Youth, Superior, Colorado, for K.R.R

Lindsey Parlin, Office of Respondent Parents’ Counsel, 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 In this dependency and neglect action, I.R.P. (mother) appeals

the judgment allocating parental responsibilities for N.R.R., M.R.R.,

and K.R.R (the children).1 We affirm.

I. Background

¶2 In 2019, mother and I.R.D. (father) adopted the children.

¶3 In March 2023, the El Paso County Department of Human

Services (Department) filed a petition in dependency and neglect

based on concerns about domestic violence between mother and

father, mistreatment or abuse of the children, and a lack of proper

parental care.2 Legal custody of the children was placed with the

Department, and the children were placed with kin.

¶4 The juvenile court entered a stipulated deferred adjudication

as to father. The court adjudicated the children dependent and

neglected as to mother. The court adopted treatment plans that

1 K.R.R. turned twelve during the proceedings. Thereafter, the guardian ad litem (GAL) appointed for the children acted as counsel for youth for K.R.R. while continuing to act in her role as GAL for N.R.R. and M.R.R. For simplicity, we will refer to this attorney as the GAL. 2 The petition also concerned mother and father’s two other

adoptive children, A.R.R. and J.R.R, who are the biological half- siblings of the three children at issue in this appeal. Neither A.R.R. nor J.R.R. are at issue in this appeal. 1 required both parents to (1) communicate with the professionals in

the case; (2) provide the children with a safe and stable

environment; (3) develop parental protective capacity; (4) address

domestic violence concerns; and (5) address any mental health

issues.

¶5 At the same time, the juvenile court ordered the children, who

were placed with father’s adult daughter, D.R., to return to the

family home with D.R. Father was then permitted to move back

into the family home and resided there with the children and D.R.

After father’s return, D.R. stayed in the family home for about three

months.

¶6 Six months after their return to the family home, the children

moved into mother’s home. Mother moved for an allocation of

parental responsibilities (APR) requesting that she be the children’s

primary residential parent and that father have parenting time

every other weekend and during weekly dinners. The parties agreed

with mother’s proposed APR. However, shortly thereafter, an

incident occurred between mother and K.R.R., which stemmed from

a dispute about discipline. The incident involved mother pouring or

2 splashing water on K.R.R. K.R.R. then ran away from mother’s

home and ultimately returned to father’s home. All three of the

children then moved back into father’s home.

¶7 In response to the “water” incident, the guardian ad litem

(GAL) filed a motion for an APR, which requested that father be the

children’s primary residential parent and that mother enjoy

parenting time every other weekend and during weekly dinners.

¶8 The juvenile court held an evidentiary hearing on the

competing motions and heard testimony from the caseworker,

father, and mother. The Department and father supported the APR

proposed by the GAL. The juvenile court largely adopted the GAL’s

proposed APR and determined that it was in the best interests of

the children to reside primarily with father.

¶9 Mother now appeals.

II. Discussion

¶ 10 Mother’s sole contention on appeal is that the juvenile court

abused its discretion by designating father as the children’s primary

residential parent. We discern no error.

3 A. Applicable Law and Standard of Review

¶ 11 The Colorado 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(6), C.R.S. 2024;

People in Interest of E.Q., 2020 COA 118, ¶ 10.

¶ 12 When allocating parental responsibilities in a dependency and

neglect proceeding, the court 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.; see also People in Interest of H.K.W., 2017 COA 70, ¶

13 (while the court may consider the factors listed in the Uniform

Dissolution of Marriage Act, section 14-10-124(1.5)(a), C.R.S. 2024,

the focus must be on the protection and safety of the child and not

the custodial interests of the parents).

4 ¶ 13 An APR is within the sound discretion of the juvenile court.

See In re Parental Responsibilities Concerning B.R.D., 2012 COA 63,

¶ 15. The juvenile court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair or when it misapplies

the law. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 32. It

is for the juvenile court, as the trier of fact, to determine the

sufficiency, probative effect, and weight of the evidence, and to

assess the credibility of witnesses. People in Interest of A.J.L., 243

P.3d 244, 249-50 (Colo. 2010). When there is record support for

the court’s findings, its resolution of conflicting evidence is binding

on review. B.R.D., ¶ 15.

B. Analysis

¶ 14 The juvenile court determined that it was in the children’s best

interest to designate father the primary residential parent. In

support, the court found the caseworker’s and father’s testimony to

be more credible than mother’s.

¶ 15 The court found that there was a “documented pattern of

physical discipline” by mother “without any remediation work

having been done to address” it. As to the “water” incident with

5 K.R.R., the court did not find credible mother’s testimony that she

splashed water on K.R.R. just to calm her down but rather found

that such incident was “far more serious” than mother was willing

to admit. In contrast, the court credited father’s testimony that he

does not use physical discipline.

¶ 16 In addition, the juvenile court found that K.R.R., who was

twelve at the time of the hearing, was old enough to express her

wishes and that those wishes were to “live more full-time” with

father. The court also considered that it was important that the

children stay together, given their history. Namely, the children

had stayed together through the termination of their biological

mother’s parental rights, the death of their biological father, and

their adoption in 2019. Relatedly, the court found that the children

are well adjusted to father’s home as well as to their half-siblings

who reside with father.

¶ 17 The record supports the juvenile court’s findings. The

caseworker testified that the parties adopted the children and their

two half-siblings following the death of their biological father and

incarceration of their biological mother. It was undisputed that the

6 children began residing with the parties before their adoption in

2019.

¶ 18 The caseworker testified that the case opened due to concerns

related to domestic violence as well as reports of physical discipline

rising to the level of abuse. The caseworker testified about her

concern that mother continued to resort to physical discipline when

she became frustrated. Mother was compliant with her treatment

plan up until the incident with K.R.R. Following the incident, she

was referred to intensive family services, but she refused to

participate. While mother testified that the relevant service provider

cancelled and never rescheduled her appointment, it was

undisputed that she never engaged in intensive family services.

¶ 19 Father testified that he does not use physical discipline with

the children but that mother, on the other hand, had gotten

“physical” with the children multiple times. Father testified that

mother would slap and push the children, and, on one occasion, a

couple of the children had black eyes. On another, mother put her

foot on a child’s neck. The court allowed father to testify that

7 K.R.R. had expressed that mother poured water on her, kicked her

in the chest, and hit her; consequently, K.R.R. ran away.

¶ 20 The caseworker opined that the children should reside

primarily with father. The caseworker testified that her opinion was

based, in part, on K.R.R.’s expressed preference.

¶ 21 Father testified that, at the time of the hearing, the children

resided in his home with their two half-sisters and his biological

son. He testified that the children are “very close” with their half-

sisters and that his biological son is “like a big brother” for the

children. Father also testified that the children spend a lot of time

with D.R. and “call her auntie.” Father testified that the children

are “very responsive” with him. He testified that the children

engage in well-established routines in his home and that they are

aware of their responsibilities including completing homework and

picking up after themselves.

¶ 22 We reject mother’s contention that the juvenile court erred

because she had generally complied with her treatment plan and

had historically been the children’s primary caregiver. The court

found that although mother “essentially completed her treatment

8 plan . . . and was compliant, there was the incident [involving

K.R.R.]” The court determined that mother’s ongoing, unremedied

physical discipline, paired with the importance of the children

staying together, outweighed evidence that may have been in

mother’s favor, such as her engagement in services or her historical

role as the primary caregiver. See § 19-1-102(1)(b) (noting that one

of the purposes of the Children’s Code is “[t]o preserve and

strengthen family ties whenever possible”).

¶ 23 Weighing of the evidence falls within the court’s province as

factfinder, see A.J.L., 243 P.3d at 249-50, and it is not our role to

reweigh the evidence or substitute our judgment for that of the

juvenile court, see People in Interest of K.L.W., 2021 COA 56, ¶ 62.

Further, as was the case here, the court must be guided by the

children’s best interests, not the custodial interests of the parents.

See H.K.W., ¶ 13.

¶ 24 Nor do we agree with mother’s argument that the incident with

K.R.R. “was utilized to flip-flop the prior custody arrangement” and

“was not one that warranted the significate (sic) change in

designation of parenting time.” In support of her contention that

9 the incident was not severe, mother points to her testimony, which

was disputed at hearing, that the Department failed to follow up

about the incident.

¶ 25 However, the juvenile court did not credit mother’s account of

the incident and, as noted above, found it was “far more serious”

than she was willing to admit. The court also found mother’s

pattern of physical discipline had not been remedied.

¶ 26 Lastly, mother argues that father “inappropriately prevented”

her from seeing the children in the wake of the incident involving

K.R.R. On this issue, the juvenile court said, “I specifically find that

[father] was not seeking to limit [mother’s] parenting time.” While

noting that there may have been some confusion about parenting

time following the incident, the court found, with record support,

that father indeed sought clarification and permission from the

professionals to ensure mother’s parenting time resumed. Thus, we

reject mother’s argument.

¶ 27 In sum, because the juvenile court’s designation of father as

the primary residential parent was a determination made with

10 record support and the court correctly applied the law, the district

court did not abuse its discretion. See M.A.W., ¶ 32; B.R.D., ¶ 15.

III. Disposition

¶ 28 The judgment is affirmed.

JUDGE TOW and JUSTICE MARTINEZ concur.