Parental Resp Conc KMRT ( 2024 )

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<div>23CA1977 Parental Resp Conc <span>KMR</span>T 10-10-2024 </div>
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<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 23CA1977 </div>
<div>Adams County District Court No. 21DR30244 </div>
<div>Honorable Kelley R. Southerland, Judge </div>
<div> </div>
<div> </div>
<div>In re the Parental Responsibilities Concerning K.M.R.T., a Child, </div>
<div> </div>
<div>and Concerning Christine Thieman, </div>
<div> </div>
<div>Appellant, </div>
<div> </div>
<div>and </div>
<div> </div>
<div>Tegan Roland, </div>
<div> </div>
<div>Appellee. </div>
<div> </div>
<div> </div>
<div>JUDGMENT<span> AFFIRMED </span>
</div>
<div> </div>
<div>Division VII </div>
<div>Opinion by JUDGE SCHUTZ </div>
<div>T<span>ow</span><span> and Pawar, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 10, 2024 </div>
<div> </div>
<div> </div>
<div>Christine Thieman, Pro Se </div>
<div> </div>
<div>Melusky Law, LLC, David J. Melusky, Greeley, Colorado, for Appellee </div>
<div> </div>
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<div>1 </div>
<div>¶ 1<span> </span><span>This appeal arises from the <span>district court’s permanent order </span></span>
</div>
<div>allocating parental responsibilities for K.M.R.T. to Tegan Roland </div>
<div>(father)<span>. <span>Christine Thieman (grandmother) appeals the district </span></span>
</div>
<div>court’s <span>judgment. We affirm. </span>
</div>
<div>I.<span> <span>Background </span></span>
</div>
<div>¶ 2<span> </span><span>K.M.R.T. and his twin were born in 2019. K.M.R.T.<span>’s twin died </span></span>
</div>
<div>tragically two months later<span>. </span><span>The baby’s death greatly impacted </span>the </div>
<div>family<span>. <span>Both parents struggled in its wake and were unable to </span></span>
</div>
<div>provide proper care for K.M.R.T.<span> </span>Father became addicted to </div>
<div>methamphetamine, had several criminal charges filed against him, </div>
<div>and struggled on probation<span>. </span>Mother moved to Texas and had </div>
<div>minimal contact with K.M.R.T<span>. </span>Grandmother filled the void left by </div>
<div>K.M.R.T.’s parents and provided a safe and stable environment <span></span>for </div>
<div>K.M.R.T. during his first few years of life. </div>
<div>¶ 3<span> </span><span>In April 2021, grandmother filed a petition for allocation of </span>
</div>
<div>parental responsibilities and, in October 2021, was granted </div>
<div>exclusive custody of K.M.R.T. through a temporary order<span>. </span>As father </div>
<div>got his life back on track, the court granted him supervised </div>
<div>parenting time with K.M.R.T. After six months, that change<span></span>d to </div>
<div>unsupervised parenting time, with the goal of reunifying K.M.R.<span></span>T. </div>
</div></div>
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<div>2 </div>
<div>with him.<span> </span><span>At the time of the district court’s </span>permanent order </div>
<div>allocating parental rights, father had successfully complete<span></span>d </div>
<div>probation and been sober for over 1,000 days. </div>
<div>¶ 4<span> </span><span>As f<span>ather’s parenting time with K.M.R.T. increased, </span></span>
</div>
<div>g<span>randmother’s behavior became increasingly erratic, and<span> </span></span>
</div>
<div>consequently she became less credible to the district court. </div>
<div>¶ 5<span> </span><span>Grandmother began making allegations that K.M.R.T. was </span>
</div>
<div>sexually abused while in f<span>ather’s care. Sometimes she alleged t<span></span>hat </span>
</div>
<div>father was the perpetrator of the abuse, and sometimes she referred </div>
<div>vaguely to “something happening”<span> to K.M.R.T. while in </span><span>father’s</span><span> care. </span>
</div>
<div>For the next eighteen months, grandmother continued to insist<span></span> that </div>
<div>K.M.R.T. had been the victim of sexual abuse. During that <span></span>time </div>
<div>several professionals, including a caseworker, multiple doct<span></span>ors, </div>
<div>therapists, a c<span>ourt </span>family investigator (CFI), and <span>a </span>child legal </div>
<div>representative (CLR), evaluated K.M.R.T. None concluded that </div>
<div>K.M.R.T. had been abused. </div>
<div>¶ 6<span> </span><span>In July 2023, the district court found that g<span>randmother’s</span> </span>
</div>
<div>actions<span>, which included repeatedly photographing K.M.R.<span></span>T.’s </span>
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<div>genitals and buttocks, and subjecting him to repeated interviews </div>
<div>and therapies, endangered K.M.R.T.<span>’s emotion</span><span>al</span> health. The </div>
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<div>3 </div>
<div>district court removed K.M.R.T. from grandmother<span>’s care </span>and placed </div>
<div>him with father.<span> </span>
</div>
<div>¶ 7<span> </span><span>K.M.R.T. remained with father through the permanent orders </span>
</div>
<div>hearing, which was held in October 2023<span>. </span>After an evidentiary </div>
<div>hearing, the district court awarded father full parent<span>al</span> </div>
<div>responsibility for K.M.R.T., with parenting time for mothe<span></span>r at </div>
<div>father’s discretion.<span> <span>The court granted grandmother supervised </span></span>
</div>
<div>visits with K.M.R.T. in the form of phone and video calls up t<span></span>o twice </div>
<div>a week but denied her request for custody or in-person visitation </div>
<div>with K.M.R.T. The court also denied her request for joint deci<span></span>sion-</div>
<div>making.<span> </span>
</div>
<div>II.<span> <span>Analysis </span></span>
</div>
<div>¶ 8<span> </span><span>Grandmother raises several issues on appeal. </span>
</div>
<div>¶ 9<span> </span><span>First, she argues that the district court applied the incorrect </span>
</div>
<div>burden of proof during the permanent orders hearing. </div>
<div>¶ 10<span> </span><span>Second, she argues that the district <span>court “delegated its </span></span>
</div>
<div>authority as a trier of fact” to the <span>C<span>FI</span><span> and CLR. <span> </span>As we understan<span></span>d </span></span>
</div>
<div>her argument, grandmother asserts that the district court </div>
<div>improperly considered the CFI’s report and the CLR’<span></span>s </div>
</div></div>
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<div>4 </div>
<div>recommendations when allocating father sole custody and decisi<span></span>on-</div>
<div>making for K.M.R.T. </div>
<div>¶ 11<span> </span><span>Finally, grandmother argues that the permanent order should </span>
</div>
<div>be vacated because it <span>“punished” her for “two perceived misd<span></span>eeds.”<span> </span></span>
</div>
<div>A.<span> <span>Standards of Review and Applicable Law </span></span>
</div>
<div>¶ 12<span> </span><span>We<span> review the district court<span>’s application of the correct legal </span></span></span>
</div>
<div>standard de novo<span>. </span><span>Tallman v. Aune</span>, 2019 COA 12, ¶ 21. We revi<span></span>ew </div>
<div>the district court’s factual findings for <span>clear error<span>. </span><span>Lo Viento Blanco, </span></span>
</div>
<div>LLC v. Woodbridge Condo. Ass<span>’n</span><span>, 2021 CO 56, <span>¶ <span>17.</span><span> </span></span><span>W</span><span>e </span>also review </span>
</div>
<div>a district court’s order allocating custody and decision<span>-making for </span>
</div>
<div>an abuse of discretion. <span>In re Marriage of Lampton</span>, 704 P.2d 8<span></span>47, </div>
<div>849 (Colo. 1985). </div>
<div>1.<span> </span><span>Non<span>parent Seeking Parental Responsibilities </span></span>
</div>
<div>¶ 13<span> </span><span>A nonparent may file a petition for allocation of parental </span>
</div>
<div>responsibilities when a child is not in the physical custody of a </div>
<div>parent, or the petition<span>er</span> has had physical care of the child fo<span></span>r six </div>
<div>months or longer, and the petition is filed within six months <span></span>of the </div>
<div>nonparent’s car<span>e ending. § 14-<span>10</span>-123(1)(b)-(c), C.R.S. 2024.<span> </span></span>
</div>
<div>Grandmother timely filed her petition.<span> </span>
</div>
</div></div>
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<div>5 </div>
<div>¶ 14<span> </span><span>In<span> <span>Troxel v. Granville</span><span>, </span>530 U.S. 57, 68 (2000), the United States </span></span>
</div>
<div>Supreme Court held that a fit parent is presumed to act in the <span></span>best </div>
<div>interests of their children. Therefore, a <span>fit parent’s decisions </span>
</div>
<div>concerning the child <span>are accorded “special weight.” <span>Id<span>.</span></span></span> at 70. But </div>
<div>this special weight may be rebutted by a nonparent through cle<span></span>ar </div>
<div>and convincing evidence that the parent is unfit or the parent<span></span>’s </div>
<div>decision is not in the best interests of the child. <span>In r<span>e </span>Pa<span></span>rental </span>
</div>
<div>Responsibilities of Reese<span>, 227 P.3d 900, 905 (Colo. App. 2010).<span> </span></span>
</div>
<div>Therefore, when allocating parental responsibilities between a </div>
<div>parent and a nonparent, the trial court must (1) accord special </div>
<div>weight to the parent’s determination of the child’s best int<span></span>erests; </div>
<div>(2) <span>consider all relevant factors concerning the child’s b</span>est interests, </div>
<div>including section 14-<span>10</span>-124(1.5)(a) and (b), C.R.S. 2024; and </div>
<div>(3) allocate parental responsibilities to the nonparent only <span></span>if it </div>
<div>enters findings <span>based upon clear and convincing proof</span> laying out the </div>
<div>special factors upon which it relied in determining that the best </div>
<div>interests of the child justify such an allocation. <span>Reese</span><span>, </span>227 P.3d at </div>
<div>905. </div>
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<div>6 </div>
<div>2.<span> <span>Professionals in APR Proceedings </span></span>
</div>
<div>¶ 15<span> </span><span>In Colorado, CFIs are appointed under section 14-<span>10</span><span>-116.5</span><span>, </span></span>
</div>
<div>C.R.S. 2024. The statute explains that the CFI <span>“shall make </span>
</div>
<div>independent and informed recommendations to the court, <span></span>in the </div>
<div>form of a written report<span>, unless otherwise ordered by t<span></span>he court.” <span> </span></span>
</div>
<div>§ <span>14<span>-<span>10</span></span></span>-116.5(2)(b). <span>That report “shall provide options that<span></span> serve </span>
</div>
<div>the best interests of the child.” <span>Id.</span><span> </span><span>When the court <span></span>appoints an </span>
</div>
<div>expert like a CFI, the <span>CFI’s report is </span>automatically accepted into </div>
<div>evidence without further foundation, unless a party notes an </div>
<div>objection in the trial management certificate<span>. </span>C.R.C.P. 16.2(g)(2)(C<span>).</span><span> </span>
</div>
<div>Alternatively<span>, <span>a party may notify the court and opposing party </span></span>
</div>
<div>within ten days of receiving a report if he or she intends to object t<span></span>o </div>
<div>the admission of the report or the “hearsay nature of t<span></span>he report.” </div>
<div>Pacheco v. Pacheco<span>, 554 P.2d 720, 722-23 (Colo. App. 197<span></span>6). <span>If</span> </span>
</div>
<div>there is no objection made within those ten <span>days, “any such </span>
</div>
<div>objections are waived.”<span> <span>Id</span><span>. </span>at 723. </span>
</div>
<div>¶ 16<span> </span><span>A court may also <span>“appoint an attorney, in good standing and </span></span>
</div>
<div>licensed to practice law in the state of Colorado, to serve as [a CLR],<span></span> </div>
<div>representing the best interests of the child in any domestic relations </div>
<div>proceeding that <span>involves the allocation of parental responsibilities.” <span></span> </span>
</div>
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<div>7 </div>
<div>§ 14-<span>10</span><span>-116(<span>1)</span></span>, C.R.S. 2024.<span> <span>A </span></span>CLR makes recommendations to the </div>
<div>district court based on the best interests of the child as define<span></span>d by </div>
<div>section <span>14<span>-<span>10</span></span></span>-124. § 14-<span>10</span>-116(2)(a). </div>
<div>B.<span> <span>The District Court’s Findings<span> </span></span></span>
</div>
<div>¶ 17<span> <span>Father’s parental rights were <span>never terminated. Father was </span></span></span>
</div>
<div>sober at the time of the final orders hearing, and the district <span></span>court </div>
<div>determined, with record support, that father was a fit parent </div>
<div>entitled to the <span>Troxel</span> presumption. Thus, the district court required </div>
<div>g<span>randmother to prove by “clear and convincing evidence” t<span></span>hat </span>
</div>
<div>allocating father parent<span>al</span> responsibilities for K.M.R.T. was not in </div>
<div>the child’s best interest. <span> </span>
</div>
<div>¶ 18<span> </span><span>Grandmother argues that the district court applied the wrong </span>
</div>
<div>burden of proof, asserting that father’s decisions concerning </div>
<div>K.M.R.T. were only entitled to “special weight.” But grandm<span></span>other’s </div>
<div>argument fails to recognize <span>Troxel</span><span>’s express holding that a </span>
</div>
<div>nonparent must overcome a fit parent’s decisions concerning <span></span>the </div>
<div>child’s best interest with clear and convincing evidence.<span> <span>Thus, we </span></span>
</div>
<div>reject grandmother’s suggestion that the district court erred <span></span>by </div>
<div>requiring her to <span>prove by “clear and convincing evidence”</span> that </div>
</div></div>
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<div>8 </div>
<div>father’s parenting time decisions were not in K.M.R.T.’s best </div>
<div>interest. </div>
<div>¶ 19<span> </span><span>Grandmother was unable to meet the clear and convincing </span>
</div>
<div>burden, in part, because of her own behavior.<span> </span>Grandmother </div>
<div>persisted in her unsupported allegations that K.M.R.T. was abused </div>
<div>during <span>father’s care</span><span>. </span>The district court found, with record support, </div>
<div>that grandmother refused to accept the results of mu<span></span>ltiple </div>
<div>investigations into her allegations and that her behavior was </div>
<div>increasingly erratic regarding the child’s parenting time with <span></span>father.<span> </span>
</div>
<div>The district court also noted that grandmother continued <span></span>to subject </div>
<div>K.M.R.T. to tests and interviews, and that by July 2023 these </div>
<div>unnecessary demands endangered K.M.R.T.’s emotional health.<span> </span>
</div>
<div>¶ 20<span> </span><span>In contrast, the court found that father remain<span>ed</span> sober and </span>
</div>
<div>provided K.M.R.T. with a happy and stable home. The court noted </div>
<div>that K.M.R.T. adjusted quickly to living with his father full <span></span>time and </div>
<div>wa<span>s generally happy living with father. The pair formed signific<span></span>ant </span>
</div>
<div>bonds in a short period of time. Father made good decisions </div>
<div>regarding K.M.R.T.’s care and used proper communit<span></span>y <span>and family </span>
</div>
<div>support to care for K.M.R.T.<span> </span>The court also noted that mother </div>
<div>support<span>ed</span><span> the award of custody and decision-making to fath<span></span>er and </span>
</div>
</div></div>
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<div>9 </div>
<div>that father continued to encourage a relationship between K.M.<span></span>R.T. </div>
<div>and mother. </div>
<div>¶ 21<span> </span><span>Based on these findings, the district court did not err by </span>
</div>
<div>denying grandmother’s request for an <span>allocation of parental </span>
</div>
<div>responsibilities and awarding father sole custody and decisi<span></span>on-</div>
<div>making for K.M.R.T. </div>
<div>C.<span> <span>Court Did Not Delegate its Decision-Making Authority </span></span>
</div>
<div>¶ 22<span> </span><span>As previously noted, the district court may admit a court-</span>
</div>
<div>appointed expert<span>’s </span>report into evidence without further fo<span></span>undation </div>
<div>unless a party timely objects. C.R.C.P. 16.2(g)(2)(C); <span>Pacheco</span>,<span></span> 554 </div>
<div>P.2d at 722-23. </div>
<div>¶ 23<span> </span><span>Here, the CFI was appointed by the court. Grandmother did </span>
</div>
<div>not file a trial management certificat<span>e.</span><span> </span>Father did not note an </div>
<div>objection <span>to the admission of the CFI’s report</span> in the trial </div>
<div>management certificate he filed<span>. </span>Additionally, neither party notified </div>
<div>the court or the opposing party that they object<span>ed</span> <span>to the CFI’s </span>
</div>
<div>report.<span> <span>Without objection from either party, the report was properly </span></span>
</div>
<div>received into evidence.<span> </span>Therefore, we find no error in the district </div>
<div>court’s consideration of the <span>substance of the </span>CFI’s re<span>port. </span>
</div>
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<div>10 </div>
<div>¶ 24<span> </span><span>Grandmother argues that the court could not consider t<span></span>he </span>
</div>
<div>hearsay within the report. Grandmother is correct that<span></span> hearsay </div>
<div>statements generally cannot be admitted as evidence unless the </div>
<div>statement falls within an exception recognized by the rules of </div>
<div>evidence or another statute that makes the statement admissible<span>. </span>
</div>
<div>CRE 802. However, grandmother is incorrect that the court could </div>
<div>not consider the hearsay within the CFI’s report. <span>The report was </span>
</div>
<div>admitted into evidence without objection from the parties. Once the </div>
<div>report was admitted, the court could consider the entire report, </div>
<div>including the hearsay within it, and give the contents of the repo<span></span>rt </div>
<div>the weight it deemed appropriate. </div>
<div>¶ 25<span> </span><span>CLRs are appointed under section 14-<span>10</span>-116(1) and represent </span>
</div>
<div>the best interests of the child.<span> </span>Here, the court appointed a CLR <span></span>to </div>
<div>represent K.M.R.T.’s best interests and considered her </div>
<div>recommendations. Because the court is permitted <span>to</span> consider the </div>
<div>CLR’s recommendation, we find no error <span>in it doing so. </span>
</div>
<div>¶ 26<span> <span>And contrary to grandmother’s argument, the district court<span></span> </span></span>
</div>
<div>did not simply defer to the CFI and CLR. Rather, the district court </div>
<div>made extensive written findings of fact. The district court found </div>
<div>that father was sober<span>, </span>that he was providing a safe and happy </div>
</div></div>
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<div>11 </div>
<div>environment for K.M.R.T., and that K.M.R.T. was happy and well-</div>
<div>adjusted while living with father. These findings, among others, </div>
<div>reflect that <span>the district court did not simply defer to eit<span></span>her the CFI’s </span>
</div>
<div>report or the CLR’s recommendation. Instead, the findings <span>reflected </span>
</div>
<div>the district court’s care and critical engagement with the<span> presented </span>
</div>
<div>evidence <span>as it made decisions in K.M.R.T.’s best interest.</span> </div>
<div>D.<span> <span>No Punishment of Grandmother </span></span>
</div>
<div>¶ 27<span> </span><span>Finally, we reject the contention that removing K.M.R.T. <span></span>from </span>
</div>
<div>g<span>randmother’s care <span>and awarding father parental responsibilities </span></span>
</div>
<div>was a means for the court to punish grandmother for missing a </div>
<div>court date and insisting that K.M.R.T. was sexually abused. <span></span> </div>
<div>Grandmother argues her insistence that K.M.R.<span></span>T. suffered abuse is </div>
<div>the natural worry of a grandparent who is fearful about sym<span></span>ptoms </div>
<div>she claims he exhibits. Grandmother is correct that a court cann<span></span>ot </div>
<div>give or take away parental responsibilities to punish a party.<span></span> </div>
<div>Rather, the focus is always on the best interests of the child.<span> </span>§ <span>14</span>-</div>
<div>10<span>-124(1.5). But grandmother provides no persuasive arg<span></span>ument </span>
</div>
<div>that the district court’s permanent order was intended to p<span></span>unish </div>
<div>her, rather than serve the best interests of K.M.R.T. </div>
</div></div>
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<div>12 </div>
<div>¶ 28<span> </span><span>The district court found that father <span>wa</span>s a fit parent, and </span>
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<div>grandmother failed to meet her burden of proof to show otherwise </div>
<div>by clear and convincing evidence.<span> </span>The court awarded father sole </div>
<div>parent<span>al</span><span> responsibilities for K.M.R.T. because it found that <span></span>it was in </span>
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<div>K.M.R.T.’s<span> best interest to be with father. </span>
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<div>¶ 29<span> </span><span>Grandmother cared for K.M.R.T. during his earliest years </span>
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<div>when both mother and father were unable to care for him. <span></span> She </div>
<div>clearly developed a strong bond with the child. However, the court </div>
<div>decided to move K.M.R.T. into <span>father’s</span> care because it was in the </div>
<div>best interest of K.M.R.T. to do so, not <span>as</span> a punishment for </div>
<div>grandmother devised by the court. </div>
<div>III.<span> <span>Disposition </span></span>
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<div>¶ 30<span> <span>The district court’s <span>judgment </span>denying grandmother’s motion </span></span>
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<div>for parenting time and decision-making, and instead allocati<span>ng</span> </div>
<div>parental responsibilities to father, is affirmed. </div>
<div>JUDGE <span>TOW</span> and JUDGE PAWAR concur. </div>
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