Peo in the Interest of NGG , 2020 COA 6 ( 2020 )

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
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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
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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
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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;
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• 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
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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
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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
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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
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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
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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.
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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.
A. Governing Law
¶ 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
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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
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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
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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.
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