Peo in the Interest of NGG

2020 COA 6

• Court: Colorado Court of Appeals
• Decided: January 9, 2020
• Docket: 19CA0037
• Status: Published

Opinion

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 January 9, 2019

2020COA6

No. 19CA0037, Peo in the Interest of NGG — Children’s Code — Juvenile Court — Dependency and Neglect; Constitutional Law — Fourteenth Amendment — Due Process

In this dependency and neglect case, a division of the court of

appeals considers whether the legal presumption that a parent is

acting or will act in his or her child’s best interests may be restored

to a parent after it has been removed by an order adjudicating the

child dependent and neglected. The division concludes that the

presumption is restored when the juvenile court subsequently

determines that the parent has successfully complied with a

treatment plan and is able to safely parent the child.

Because the juvenile court in this case did not accord mother

the presumption when it ordered grandparent visitation as part of

the judgment allocating parental responsibilities for the children, we reverse the judgment and remand the case for a new hearing.

The division also concludes that the judgment must be reversed

because the relocation provision, which allows mother to relocate

with the children without father’s agreement if he is incarcerated,

violates the governing statute and is premature. COLORADO COURT OF APPEALS 2020COA6

Court of Appeals No. 19CA0037 Mesa County District Court No. 16JV217 Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Appellee,

In the Interest of N.G.G., A.R.G., and S.D.G., Children,

and Concerning J.G., V.M.,

Appellants,

and H.B.,

Appellee.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE ROMÁN Grove and Rothenberg*, JJ., concur

Announced January 9, 2019

J. Patrick Coleman, County Attorney, Jeremy Savage, Chief Deputy County Attorney, Katherine A. Barnes, Assistant County Attorney, Grand Junction, Colorado, for Appellee

Melinda Guthrie, Guardian Ad Litem

Susan C. Baker, Office of Respondent Parents’ Counsel, El Prado, New Mexico, for Appellant J.G.

Barbara A. Snow, Longmont, Colorado, for Appellant V.M.

Gregory J. Mueller, Grand Junction, Colorado, for Appellant H.B. *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2019. ¶1 In this dependency and neglect proceeding, V.M. (mother) and

J.G. (father) appeal the juvenile court’s judgment allocating

parental responsibilities for their children, N.G.G., A.R.G. and

S.D.G.

¶2 Where a juvenile court adjudicates a child dependent and

neglected, thereby removing the legal presumption that a parent is

acting or will act in the child’s best interests, is the presumption

restored where the court later finds that the parent has successfully

complied with a treatment plan and is able to safely parent the

child? We conclude that the answer is “yes.” We also conclude that

an order permitting a parent to relocate with a child without

notifying the other parent, if the other parent is incarcerated,

violates the governing statute. For these reasons, we reverse the

judgment and remand the case for further proceedings.

I. Dependency and Neglect Case

¶3 In July 2016, the Mesa County Department of Human Services

(Department) initiated a dependency and neglect case based on

concerns that the paternal grandmother, H.B., who was then the

children’s primary legal custodian, had provided inadequate care.

The juvenile court placed the children, then ages six, five, and

1 three, in mother’s custody under the protective supervision of the

Department.

¶4 Mother and father admitted that the children were dependent

and neglected through no fault of the parents.

¶5 The court also granted the grandmother’s request to be made

a respondent and contest the allegations in the petition. However, a

jury later determined that the grandmother had mistreated or

abused the children or allowed another to do so; that they lacked

proper parental care because of the grandmother’s acts or

omissions; that their environment was injurious to their welfare

based on the grandmother’s acts or failure to act; and that they

were without proper care or not domiciled with a parent through no

fault of the grandmother.

¶6 Based on that verdict, the court adjudicated the children

dependent and neglected based upon the grandmother’s care. It

also adopted a treatment plan for the parents and the grandmother.

¶7 The Department filed motions seeking a permanent allocation

of parental responsibilities (APR) for the children to mother, and the

juvenile court held a hearing on the Department’s request. After

considering the evidence and the parties’ written arguments, the

2 juvenile court determined that mother had successfully complied

with her treatment plan and issued a permanent APR judgment

granting mother sole decision-making authority for the children and

primary parenting time. The court also

• granted father supervised parenting time;

• awarded the grandmother supervised visitation and provided

for a possible transition to unsupervised visitation;

• required mother to notify the grandmother of the children’s

school-organized extracurricular activities;

• required mother and the grandmother to enroll in and

complete a high-conflict parenting class; and

• granted mother permission to relocate with the children under

certain circumstances.

¶8 The juvenile court certified the APR judgment into the parties’

pre-existing domestic relations case.

II. Mother’s Appeal

¶9 Mother contends that the juvenile court denied her

substantive due process by ordering grandparent visitation and

denying her the discretion to determine the amount of time the

grandmother spent with the children without according mother the

3 presumption that her decisions were in the children’s best interests,

as required by Troxel v. Granville, 530 U.S. 57, 66 (2000). We agree.

A. Governing Law

¶ 10 We will not disturb a juvenile court’s factual findings when

they are supported by the record. People in Interest of A.J.L., 243

P.3d 244, 250 (Colo. 2010). However, whether the court applied the

correct legal standard in making its findings is a question of law

that we review de novo. In re Parental Responsibilities Concerning

B.R.D., 2012 COA 63, ¶ 15.

¶ 11 The juvenile court has exclusive authority to determine the

legal custody of a child who comes within its jurisdiction. § 19-1-

104(1)(c), C.R.S. 2019; L.A.G. v. People in Interest of A.A.G., 912

P.2d 1385, 1389 (Colo. 1996). When determining custody or

allocating parental responsibilities, the court must consider the

legislative purposes of the Children’s Code under section 19-1-102,

C.R.S. 2019. People in Interest of C.M., 116 P.3d 1278, 1281 (Colo.

App. 2005). These purposes include the following:

• securing for each child the care and guidance, preferably in

his or her own home, that will best serve the child’s welfare

and the interests of society;

4 • preserving and strengthening family ties whenever possible,

including improving the home environment;

• removing a child from the custody of his or her parents only

when the child’s welfare and safety or the protection of the

public would otherwise be endangered, and for the courts to

proceed with all possible speed to a legal determination that

will serve the child’s best interests; and

• securing for any child removed from the custody of his or her

parents the necessary care, guidance, and discipline to assist

the child in becoming a responsible and productive member of

society.

§ 19-1-102(1)(a)-(d).

¶ 12 The 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. L.G. v. People, 890 P.2d 647,

654 (Colo. 1995); People in Interest of L.B., 254 P.3d 1203, 1208

(Colo. App. 2011); see also L.A.G., 912 P.2d at 1391.

¶ 13 The Due Process Clause of the Fourteenth Amendment

protects the fundamental right of parents to make decisions

5 concerning the care, custody, and control of their children. Troxel,

530 U.S. at 66.

¶ 14 In Troxel, the Supreme Court recognized that fit parents —

that is, parents who are adequately caring for their children — are

presumed to act in the children’s best interests. Id. at 68-69.

When a fit parent’s parenting decision “becomes subject to judicial

review, the court must accord at least some special weight to the

parent’s own determination” regarding the child’s best interests. Id.

at 70; see In re Adoption of C.A., 137 P.3d 318, 324 (Colo. 2006).

¶ 15 Thus, in proceedings between a parent and nonparent, the

parent is entitled to a constitutional presumption that the parent

acts in the child’s best interests. Troxel, 530 U.S. at 68; In re

Parental Responsibilities Concerning B.J., 242 P.3d 1128,

1134 (Colo. 2010); C.A., 137 P.3d at 327. This includes the

parent’s determination that he or she should have sole discretion to

determine when a nonparent may visit the child. See C.A., 137

P.3d at 328.

¶ 16 The 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 the nonparent’s request is in

6 the child’s best interests. B.J., 242 P.3d at 1134; C.A., 137 P.3d at

322, 327-28. Furthermore, the court must also identify special

factors that support entering an order contrary to the parent’s

wishes. B.J., 242 P.3d at 1130, 1134; C.A., 137 P.3d at 322, 328;

see In Interest of C.T.G., 179 P.3d 213, 226 (Colo. App. 2007)

(overturning visitation order based on Troxel when nonparent failed

to present evidence of special circumstances to justify an order

contrary to the parents’ wishes).

B. Analysis

1. Applicability of Troxel Presumption

¶ 17 A parent subject to a dependency and neglect case is not

always entitled to the presumption that he or she is acting in his or

her child’s best interests. Rather, the presumption is limited to a

parent who is adequately caring for his or her child. Troxel, 530

U.S. at 68-69. Thus, an order adjudicating a child dependent and

neglected overcomes the presumption that a parent is acting or will

act in the child’s best interests. People in Interest of N.G., 2012 COA

131, ¶ 33.

¶ 18 Here, following the adjudication, the juvenile court found that

mother had complied with her treatment plan, and that she was

7 able to safely parent the children. The court then awarded mother

primary parenting time and sole decision-making authority for the

children.

¶ 19 Under these circumstances, we conclude that mother was

entitled to the Troxel presumption that she was acting in the

children’s best interests.

2. The Record

¶ 20 During the APR hearing, mother agreed that the grandmother

should have supervised time with the children and the opportunity

to attend the children’s events. However, mother requested the

discretion to determine when such contact with the grandmother

would occur. She thus maintained that she was entitled to the

Troxel presumption that her decisions would be in the children’s

best interests. Mother cited several reasons for needing this

discretion, including that

• she and the grandmother did not have a harmonious

relationship;

• the grandmother had stated her intention to harass, threaten,

and stalk mother “until the rest [sic] of the earth,” and mother

was concerned that she would require police assistance to

8 force grandmother to return the children, as this had occurred

in the past; and

• she was concerned that the grandmother would not keep the

children safe from father.

¶ 21 The Department and the children’s guardian ad litem

supported mother’s position at the hearing that she should have the

discretion to determine when the grandmother’s visitation with the

children should occur. A caseworker expressed her opinion that

mother would promote a healthy relationship between the

grandmother and the children, and another caseworker expressed

her concern that, if mother were required to have contact with the

grandmother after the case was closed, it would result in “[a]

constant battle with [the grandmother] trying to take [mother’s]

children away from her.” None of the parties at the hearing

suggested there was a need for mother and the grandmother to

enroll in a parenting class together. Indeed, mother had

successfully completed a parenting class during the case.

¶ 22 The court nevertheless ordered the grandmother visitation

without applying the Troxel presumption. It stated its concern that

mother would cut off visitation with the grandmother and relied on

9 evidence that (1) the grandmother did well with the children during

her supervised visits; (2) the children loved her; and (3) it would be

healthy for them to continue to have contact with her.

¶ 23 Because the court did not cite any other factors that justified

interfering with mother’s discretion and did not apply the correct

legal standard set forth above, we reverse the judgment in its

entirety and remand the case for a new hearing. On remand, the

court must (1) apply the Troxel presumption in favor of mother’s

determination regarding the grandmother’s visitation and

notification to her of extracurricular activities; (2) determine

whether the grandmother has rebutted the Troxel presumption by

showing through clear and convincing evidence that mother should

not be allowed ordinary parental discretion that would allow her to

decide visits; and (3) place the burden on the grandmother to show

that her time with the children and the other impositions on

mother’s parenting time are in the children’s best interests. See

B.J., 242 P.3d at 1130; C.A., 137 P.3d at 322. Before the court may

order such grandparenting time or any other impositions against

mother’s wishes, the court must identify special factors that justify

interfering with mother’s discretion in making her determinations.

10 See B.J., 242 P.3d at 1130. Because the record does not show a

basis for requiring mother to complete a joint parenting class, that

provision cannot stand.

III. Father’s Appeal

¶ 24 Father contends that the juvenile court erred by permitting

mother to relocate with the children without his agreement if he is

incarcerated. We conclude the order permitting relocation is

premature and contrary to the governing statute. Therefore, we

agree with father that it must be reversed.

¶ 25 We review de novo whether the juvenile court applied the

correct legal standard. See B.R.D., ¶ 15.

¶ 26 The APR judgment entered by the juvenile court was certified

into a domestic relations case. Therefore, we apply the provisions

under the Uniform Dissolution of Marriage Act (UDMA). See § 19-1-

104(5)-(6) (addressing procedure for certifying a custody award or

an order allocating parental responsibilities between a dissolution of

marriage action and the juvenile court).

¶ 27 Section 14-10-129(1)(a)(II), (2)(c), C.R.S. 2019, of the UDMA

provides that a party intending to relocate with a child to a

11 residence that substantially changes the geographical ties between

the child and the other party shall provide the other party with

written notice as soon as practicable of the intent to relocate, the

location where the party intends to reside, the reason for the

relocation, and a proposed revised parenting time plan.

¶ 28 The statute further provides that the court, in determining

whether the modification of parenting time is in the best interests of

the child, shall take into account all relevant factors, including

those enumerated in paragraph (c) of subsection (2). § 14-10-

129(1)(a)(II). These factors include (1) the reasons why the party

wishes to relocate with the child; (2) the reasons why the opposing

party is objecting to the proposed relocation; (3) the history and

quality of each party’s relationship with the child since any previous

parenting time order; (4) the educational opportunities for the child

at the existing location and at the proposed new location; (5) the

presence or absence of extended family at the existing location and

at the proposed new location; (6) any advantages of the child

remaining with the primary caregiver; (7) the anticipated impact of

the move on the child; (8) whether the court will be able to fashion a

reasonable parenting time schedule if the change requested is

12 permitted; and (9) any other relevant factors bearing on the child’s

best interests. § 14-10-129(2)(c). The court must also consider the

best interests factors in section 14-10-124(1.5)(a), C.R.S. 2019. In

re Marriage of Ciesluk, 113 P.3d 135, 140 (Colo. 2005).

¶ 29 Importantly, the court’s determination of a child’s best

interests must be based on the circumstances existing at the time

of the proceeding. See In re Parental Responsibilities Concerning

M.W., 2012 COA 162, ¶ 27.

B. The Relocation Provision

¶ 30 Mother testified that she had no plans to move with the

children. Nevertheless, the court — perhaps viewing it as a matter

of judicial economy — included the following provision in its

judgment permitting the children’s removal from Mesa County or

the State of Colorado:

If [mother] desires to relocate with the children outside of Mesa County, she must notify [father]. If [father] agrees to the relocation, the agreement must be reduced to writing, including any change in parenting time, and file the agreement with the [c]ourt. [Sic.] If [father] cannot be located after diligent efforts by [mother] over the course of at least two months or if [father] is incarcerated, [mother] may relocate without an agreement. If [father] is located and not incarcerated and no

13 agreement is reached, [mother] may not relocate with the children. No relocation with the children outside of Mesa County shall be allowed unless [father’s] parenting time is commensurate with the parenting time he was accessing six months prior to relocating with no increase in the costs associated with parenting time for the non-relocating party, or a [c]ourt [o]rder is in place authorizing the relocation.

¶ 31 The court’s order did not afford father a meaningful

opportunity to be heard, see Patterson v. Cronin, 650 P.2d 531, 537

(Colo. 1982), and violated the requirement that the determination

whether relocation is appropriate must be based on the

circumstances existing at the time of the child’s proposed

relocation. See M.W., ¶ 27. Accordingly, the court must reconsider

the relocation provision of the APR judgment.

IV. Conclusion

¶ 32 The judgment is reversed, and the case is remanded to the

juvenile court for further proceedings in accordance with the views

expressed in this opinion.

JUDGE GROVE and JUDGE ROTHENBERG concur.