of Crouch

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 14, 2021
2021COA3
No. 19CA2084, Marriage of Crouch — Family Law — Post-
dissolution — Modification of Custody or Decision-making
Responsibility
A division of the court of appeals addresses the appropriate
burden of proof to apply when considering a request to modify the
allocation of decision-making responsibility between parents for
vaccinating their children when one parent has a religious-based
objection to vaccination. The division concludes that when applying
the endangerment standard under section 14-10-131(2)(c), C.R.S.
2020, it is error for a court to impose an additional burden on the
moving parent to show substantial harm to the children.
COLORADO COURT OF APPEALS 2021COA3
Court of Appeals No. 19CA2084
La Plata County District Court No. 17DR30001
Honorable Suzanne F. Carlson, Judge
In re the Marriage of
Rebecca Greene Crouch,
Appellee,
and
William Blake Crouch,
Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE PAWAR
J. Jones and Berger, JJ., concur
Announced January 14, 2021
The Law Firm of Lisa Ward, LLC, Lisa Ward, Donald Lawrence, Jr., Durango,
Colorado, for Appellee
Willoughby & Associates, Kim Willoughby, Kaela Zihlman, Golden, Colorado,
for Appellant
¶1 In Colorado, parents can elect not to vaccinate their children.
But what happens when parents divorce and one parent later has a
change of heart about vaccinating the children, while the other
maintains a religious-based objection to vaccination? In this
post-dissolution of marriage dispute, we address the appropriate
burden of proof for the district court to apply when considering the
request of William Blake Crouch (father) to modify joint medical
decision-making responsibility to allow him to vaccinate the
children, over the objection of Rebecca Greene Crouch (mother).
¶2 Following a hearing on father’s motion to modify medical
decision-making responsibility, the district court found that
remaining unvaccinated “endangers the health of the children.”
But, because mother objected to vaccinating the children based, in
part, on her religious beliefs, the court imposed an additional
burden on father “to prove substantial harm to the children” in
order to overcome “[m]other’s right to exercise religion freely.” The
court found that father failed to meet the additional burden and
denied his request to modify medical decision-making
responsibility.
1
¶3 Father appeals the district court’s order. We reverse the order
and remand the case for further proceedings.
I. Background
¶4 Mother and father divorced in 2017, and their parenting plan
was approved by the court and incorporated into the decree. In
relevant part, the plan provides for joint medical decision-making
authority and that “[a]bsent joint mutual agreement or court order,
the children will not be vaccinated.”
¶5 In 2018, however, father had a change of heart about the
children remaining unvaccinated. Father said that his position
evolved after the parties’ divorce when he researched the issue and
concluded that the children should be vaccinated. He described a
“wake-up moment” he had when traveling for business to Seattle
while the city was experiencing a measles outbreak, and then being
afraid to be around the children after he got home out of fear of
unknowingly exposing them. He said that he travels often for work,
including to international destinations, and that he wanted to travel
to other countries with the children and believed their world would
be increasingly too small without such opportunities. He further
2
expressed concern about the children contracting
vaccine-preventable diseases and exposing others.
¶6 For her part, mother opposed vaccinating the children, in part,
because it conflicted with her religious beliefs. Father, however,
asserted that he did not hold the same religious beliefs as mother
and that the children did not adhere to restrictions dictated by
mother’s religion during his parenting time. In addition to her
religious-based objection, mother also argued that vaccines pose a
risk of side effects for the children. Specifically, because mother
has an autoimmune disease and the children all had midline
defects at birth, she asserted that vaccinations for the children are
contraindicated.
¶7 Because they were at an impasse, the parties stipulated to the
appointment of a parenting coordinator/decision-maker (PCDM) to
decide the issue. After noting the parties’ respective positions, the
PCDM declined to render a decision, stating that the issue was
outside of her expertise and likened rendering a decision on it to
“practicing medicine without a license.”
¶8 Having received no decision from the PCDM, father filed an
expedited motion with the district court seeking an order allowing
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him to have the children vaccinated in accordance with the Centers
for Disease Control and Prevention guidelines and awarding him
sole medical decision-making responsibility. Mother responded,
objecting to vaccinations for the children and to father’s request for
sole medical decision-making responsibility, and the district court
set a hearing on the matter.
¶9 Each party testified at the hearing. Additionally, father
presented expert testimony from a physician, who was qualified as
an expert in pediatrics and vaccinations. Mother did not present
any expert testimony or any witnesses other than herself.
¶ 10 After the hearing, the court credited father’s expert’s
testimony, rejected mother’s medical-based objections, and found
that the “failure to vaccinate endangers the health of the children.”
Recognizing that mother had also asserted a religious-based
objection, however, the court went on to find that vaccination would
interfere with mother’s “right to exercise religion freely,” and
therefore imposed an “additional burden” on father “to prove
substantial harm to the children” if they remained unvaccinated.
The court ruled that father had not met this additional burden and
denied his motion to modify. The court went on to find, however,
4
that if any of the children are wounded, thereby requiring a tetanus
shot; if a disease outbreak occurs in the community preventable by
vaccination; or if the children are to travel by air or internationally,
such circumstances would constitute “substantial harm warranting
a forthwith modification of decision-making.” And because the
court found that “air travel and international travel do create
substantial harm,” it prohibited the children from air travel or
international travel unless they are vaccinated.
¶ 11 Father moved to reconsider the court’s order under C.R.C.P.
59. In denying his motion, the court clarified that it was not ruling
that the children could not be vaccinated, but only that father had
not met his burden to modify decision-making responsibility so that
he could make that decision.
¶ 12 Father appeals, contending that the court erred by (1)
enforcing what he describes as an unenforceable “agreement to
agree” in the parties’ parenting plan; (2) making inconsistent
findings under the endangerment standard; (3) failing to apply a
strict scrutiny analysis to mother’s religious rights objection; and
(4) failing to consider and weigh his fundamental rights as well as
mother’s rights. We conclude that the court erred by misapplying
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the endangerment standard in section 14-10-131(2)(c), C.R.S. 2020.
Consequently, we reverse the court’s order and remand the case for
further proceedings.
II. Father’s Claim that the Parenting Plan’s Vaccination Provision Is
an Unenforceable “Agreement to Agree” Was Not Preserved
¶ 13 Father initially claims that the parties’ parenting plan
provision stating that the children would not be vaccinated unless
the parties agree is unenforceable as an “agreement to agree.”
Because father failed to argue this issue in the district court,
however, he cannot argue it for the first time on appeal. See In re
Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo. App. 2008); see
also Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182,
1188 n.4 (Colo. App. 2011) (“A party’s mere opposition to its
adversary’s request . . . does not preserve all potential avenues for
relief on appeal. We review only the specific arguments a party
pursued before the district court.”).
¶ 14 Father cites to his post-trial motion — in which he asserted
that the court must decide the vaccination issue because the
parties disagree on it — as sufficient to preserve the argument he
now presents. We disagree. Father did not, at any point during the
6
proceedings or in his post-trial motion, argue that the vaccination
provision was an unenforceable agreement to agree. Rather, he
asked the district court to modify the vaccination provision and
medical decision-making responsibility so that he can have the
children vaccinated, and that is the issue on which the court ruled.
Accordingly, the enforceability of the agreement’s vaccine provision
has not been preserved, and we do not address it. See Melat,
Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,
¶ 18; Valentine, 252 P.3d at 1188 n.4.
III. Which Legal Standard Applies: Endangerment, Substantial
Harm, or Strict Scrutiny?
¶ 15 Father’s remaining contentions challenge various burdens of
proof that he contends the court either improperly applied or
improperly overlooked. First, father argues that the court made
inconsistent findings under the endangerment standard by finding
that “failing to vaccinate the children endangers their health,” but
also finding that father did not meet his “burden of showing
substantial harm to the children.” Next, he argues that because
mother raised a religious objection to vaccination, the trial court
should have applied a strict scrutiny analysis and found a
7
compelling state interest to overcome her objection. Finally, father
argues that because he has a constitutional right to travel and to
parent his children, the court erred by failing to recognize and
weigh the parents’ competing constitutional interests.
¶ 16 We address father’s remaining issues collectively to determine
the correct legal standard to apply, and, in doing so, we conclude
that by subjecting father to the “additional burden” to prove
substantial harm, the court misapplied the endangerment standard
in section 14-10-131(2)(c).
A. Preservation
¶ 17 Initially, we reject mother’s argument that we may not review
father’s contention as it applies to the court’s findings of
endangerment and substantial harm because father did not raise it
in the district court until his post-trial motion. “[A] party is not
required to object to the trial court’s findings in the trial court to
preserve a challenge to those findings.” People in Interest of D.B.,
2017 COA 139, ¶ 30; see C.R.C.P. 52. Thus, we may review father’s
challenge to the court’s endangerment and substantial harm
findings in relation to the application of the proper legal standard.
8
B. Additional Background
¶ 18 Based on father’s expert’s testimony, the court made the
following factual findings in applying section 14-10-131(2)(c):
• “Because of the way diseases are transmitted and
because Durango [where the children live] is a tourist
destination, the Court finds failure to vaccinate
endangers the health of the children even though they
are home schooled.”
• Vaccination provides benefits to the children, including
“preventing severe illness, permanent severe damage, and
death.”
• The risks of vaccination are “extremely low.”
¶ 19 Neither party has challenged the court’s factual findings, and
because they are supported by the record, they are binding on us
on appeal. See In re Marriage of Newell, 192 P.3d 529, 534-
35 (Colo. App. 2008) (declining to disturb endangerment findings
that were supported by the record). Father’s physician expert
witness disagreed with mother’s position on the medical risks of
vaccination. He further testified that although the parties’ oldest
child had a low percentage risk of contracting a vaccine-preventable
9
disease (because most people in the community have been
vaccinated), he had a high percentage risk of contracting such
diseases if he were exposed to an infected person, and the
repercussions for him could be severe.
¶ 20 The court expressly found that the children’s physical health
was endangered, see § 14-10-131(2)(c). It is unclear, however,
whether it considered the second prong of section 14-10-131(2)(c),
that is, whether the harm likely to be caused by the change in
decision-making is outweighed by the advantage to the child.
Instead, the court expanded its analysis and determined that
because vaccinating the children would interfere with mother’s right
to freely exercise her religion, father must meet an additional
burden of showing that the failure to vaccinate caused the children
substantial harm. It concluded that father did not meet that
burden and therefore denied his motion to modify.
C. Legal Standards
¶ 21 Allocating parental responsibilities is a matter within the
sound discretion of the district court. In re Parental Resps. of
B.R.D., 2012 COA 63, ¶ 15. However, we review de novo whether
the district court applied the correct legal standard. Id.10
¶ 22 A court shall not modify a decree allocating decision-making
responsibility unless it finds, based on facts that have arisen since
the decree, that a change has occurred in the circumstances of the
child or of a party to whom decision-making responsibility was
allocated and that modification is necessary to serve the child’s best
interests. § 14-10-131(2). In applying these standards, the court
shall retain the decision-making responsibility allocation from the
prior decree unless, as relevant here, doing so “would endanger the
child’s physical health” and the harm likely to be caused by a
change in decision-making responsibility is outweighed by the
advantage to the child. § 14-10-131(2)(c); see B.R.D., ¶¶ 17-18.
D. Endangerment, Strict Scrutiny, and Substantial Harm
Under McSoud
¶ 23 The district court relied on In re Marriage of McSoud, 131 P.3d
1208 (Colo. App. 2006), to impose the additional burden on father
to show substantial harm after it found endangerment under
section 14-10-131(2)(c). In doing so, the court erroneously applied
the burden that applies when the government — here, the court —
interferes with a parent’s constitutional right, instead of the burden
applicable when allocating sole decision-making to one parent over
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the other. To be sure, father claims, on the one hand, that the
court erred by making inconsistent findings regarding
endangerment and substantial harm and, on the other hand, that
the court erred by failing to apply a strict scrutiny analysis when
considering mother’s religious-based objection. To resolve both
claims, we briefly review the circumstances in McSoud that
warranted a strict scrutiny analysis and conclude that analysis is
inapplicable here.
¶ 24 The court in McSoud restricted the child’s mother from taking
the child to a church of her religious choosing during her parenting
time unless she also supported the child’s participation in father’s
church. 131 P.3d at 1214, 1219-20. A division of this court held
that by preventing mother from taking the child to her church
during her parenting time, the court unconstitutionally restricted
mother’s religious rights. And, to the extent the order also required
the mother to accompany the child to the father’s church services
during her parenting time, it further restricted her religious rights.
Id. at 1219. Because the court was imposing the restrictions, such
orders required strict scrutiny. That is, before the court could
infringe on the mother’s religious rights, it must show a compelling
12
state interest — for example, substantial harm to the child from the
mother’s actions in exposing the child to her religion and church.
Id. at 1220.
¶ 25 But the McSoud division applied strict scrutiny to require a
showing of a compelling state interest, namely, substantial harm,
only as to the portion of the court’s order where the court, as the
state actor, infringed on the mother’s religious rights. See id. at
1219-20; see also id. at 1216 (“Governmental interference with the
constitutional rights of a fit, legal parent is subject to strict
scrutiny.”).
¶ 26 Conversely, here, the court clearly recognized that it was not
mandating either vaccination or no vaccination for the children;
rather, it was ruling on father’s motion to modify vaccination and
medical decision-making responsibility, in which father sought to
make that decision for the children.
¶ 27 A parent’s free exercise rights are not implicated by a court’s
allocation of decision-making responsibility between parents.
Indeed, McSoud expressly rejects the need for strict scrutiny, and
therefore the need to show substantial harm, when allocating
decision-making responsibility between the child’s parents because,
13
in that context, the court is merely expanding one parent’s
fundamental right at the expense of the other parent’s similar right.
Id. at 1218-19. In short, the McSoud division upheld the lower
court’s allocation of religious decision-making responsibility
between the child’s two parents without requiring a showing of
substantial harm to withstand strict scrutiny. See id.; cf.
Vanderborgh v. Krauth, 2016 COA 27, ¶¶ 20-21 (noting that a
father’s fundamental rights to parent were not implicated in a
parenting time dispute between him and the child’s mother).
¶ 28 Accordingly, here, the court erred by imposing a heightened
burden on father to show substantial harm — a burden only
relevant to show a compelling state interest under a strict scrutiny
analysis — when considering his request to modify the allocation of
decision-making responsibility between him and mother. Instead,
once the court found, with record support, that father met his
burden to show that the failure to vaccinate endangers the
children’s physical health, and that the risks of vaccination are
“extremely low” as compared to its benefits of “preventing severe
illness, permanent severe damage, and death,” it should have
proceeded to the second prong of the inquiry, namely, whether the
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harm likely to be caused by changing decision-making
responsibility outweighed the benefit to the child. See § 14-10-
131(2)(c).
¶ 29 Based on the above reasoning, we also reject father’s claim
that the court should have applied a strict scrutiny analysis to
mother’s asserted religious objection and erred by failing to do so.
As discussed, a strict scrutiny analysis is not required when
allocating decision-making responsibility between parents. So, the
court was not required, as father contends, to find that mother’s
religious-based objection established a compelling state interest
sufficient to withstand strict scrutiny. See McSoud, 131 P.3d at
1218-19 (holding that a compelling state interest need not be found
in order to allocate religious decision-making responsibility to only
one parent).
E. Parents’ Competing Constitutional Interests Under Ciesluk
¶ 30 Father last contends that the district court erred by not
recognizing his constitutional rights to parent and to travel, and by
failing to weigh his and mother’s competing rights in accordance
with In re Marriage of Ciesluk, 113 P.3d 135, 147-48 (Colo. 2005).
Though we reverse the court’s order on other grounds, because it
15
may arise on remand, we briefly address father’s contention and
specifically how the Ciesluk balancing of interests test applies in the
context of an endangerment finding under section 14-10-131(2)(c).
¶ 31 In Ciesluk, the supreme court determined that the trial court
erred by failing to weigh the parents’ competing constitutional
rights when it reviewed a modification of parenting time under a
best interests standard — specifically, the relocation standard
under section 14-10-129(2)(c). But here, the court was tasked with
considering a modification to decision-making responsibility under
an endangerment standard. And a division of this court has
observed that “while endangerment will necessarily encompass best
interests, few best interests arguments will show endangerment.”
In re Marriage of West, 94 P.3d 1248, 1251 (Colo. App. 2004).
Additionally, the Colorado legislature has recognized that children
have the right to be physically safe while in their parents’ care. §
14-10-123.4(1)(b), C.R.S. 2020.
¶ 32 Section 14-10-131(2) directs that a court “shall not modify”
decision-making responsibility unless circumstances have changed
such that a “modification is necessary to serve the best interests of
the child”; included among the list of circumstances that authorize
16
modification is when the court finds endangerment, as the court did
here. We do not interpret the statute to mean that parents’
constitutional interests are never appropriate considerations when
considering a request to modify decision-making responsibility
alleging endangerment. Rather, to the extent parents’
constitutional rights are relevant to the endangerment inquiry, they
should be considered and weighed — without heightened scrutiny
or deference. In other words, the parents’ constitutional rights
should be considered like any other factor that informs whether the
harm likely to be caused by a reallocation of decision-making
responsibility is outweighed by the advantage of the change. See §
14-10-131(2)(c).
¶ 33 Finally, based on the disposition reached in this opinion, we
need not address father’s challenge to the court’s restriction
preventing the children from traveling by plane or outside of the
United States with him.
IV. Conclusion and Remand Instructions
¶ 34 The order is reversed, and the case is remanded for the court
to reconsider father’s motion to modify medical decision-making
responsibility under section 14-10-131(2)(c) by applying the
17
endangerment standard consistent with this opinion. The court
may rely on the evidence presented at the prior hearing or, in its
discretion, provide the parties an opportunity to present any new
evidence concerning their or the children’s changed circumstances.
¶ 35 The proceedings on remand shall occur forthwith. See § 14-
10-128(1), C.R.S. 2020.
JUDGE J. JONES and JUDGE BERGER concur.
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