In re Adoption of C.A.

• Decision Date: 26 June 2006
• Docket Number: No. 05SC526.,05SC526.
• Citation: 137 P.3d 318
• Parties: In the Matter of the Petition for ADOPTION OF C.A., A Child, N.F. and A.F., Petitioners v. R.A., Jr. and T.A., Respondents.
• Court: Colorado Supreme Court

Page 318

137 P.3d 318

In the Matter of the Petition for ADOPTION OF C.A., A Child, N.F. and A.F., Petitioners v. R.A., Jr. and T.A., Respondents.

No. 05SC526.

Supreme Court of Colorado, En Banc.

June 26, 2006.

Law Firm of Kenton D. Kinnaird & Associates, P.C., Kenton D. Kinnaird, Sean Cloyes, Colorado Springs, Colorado, Attorneys for Petitioners.

Beltz, Edwards, Sabo & West, LLP, W. Thomas Beltz, Daniel A. West, Colorado Springs, Colorado, Attorneys for Respondents.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' judgment in In re Petition of R.A., 121 P.3d 295 (Colo.App.2005), construing Colorado's grandparent visitation statute, § 19-1-117, C.R.S. (2005).¹ This case, involving the child's paternal grandparents and the adoptive parents, who are the child's maternal uncle and aunt, concerns how Colorado implements the U.S. Supreme Court's "special weight" and "special factors" requirements announced in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). The court of appeals concluded that a court may not order a grandparent visitation schedule over the wishes of the parents unless the grandparents prove the parents unfit to make the visitation determination or the parents' visitation decision would substantially endanger the emotional health of the child. In re R.A., 121 P.3d at 300.

In Troxel, the Supreme Court did not require the standard of harm or potential harm to the child that the court of appeals adopted in this case. 530 U.S. at 73, 120 S.Ct. 2054. We conclude that the Supreme Court left to each state the responsibility for enunciating how its statutes and court decisions give "special weight" to parental determinations in the context of grandparent visitation orders.

To accommodate both the General Assembly's "best interests of the child" intent and the "special weight" and "special factors" requirements of Troxel, we hold that the appropriate standard for issuance of an order for grandparent visitation under section 19-1-117 requires: (1) a presumption in favor of the parental visitation determination; (2) to rebut this presumption, a showing by grandparents through clear and convincing evidence that the parental visitation determination is not in the child's best interests; and (3) placement of the ultimate burden on grandparents to establish by clear and convincing evidence that the visitation schedule they seek is in the best interests of the child. The court must apply this standard in grandparent visitation cases and, if it orders grandparent visitation, it must make findings of fact and conclusions of law identifying those "special factors" on which it relies.

Accordingly, we reverse the judgment of the court of appeals and return this case to it with directions that it be remanded to the district court for further proceedings consistent with this decision.

I.

C.A. was born to C.F. and D.F., the biological mother and father respectively, in May of 1992. D.F. died in May 1994, when C.A. was approximately two years old. C.F. was later diagnosed with cancer. In 1996, C.F. moved with C.A. to Colorado to live with her sister and brother-in-law, the child's uncle and aunt on the maternal side (hereinafter the "Parents" in light of their adoption of C.A.). As her illness advanced, C.F. completed a will in which she named the Parents as C.A.'s guardians. C.F. died in May 1997 when C.A. was five years old. The court's order of July 3, 1997, recognized the Parents' guardianship of C.A. The Grandparents did not contest the guardianship.

During the Parents' guardianship, the parties disagreed regarding the Grandparents' visitation and unsuccessfully attempted mediation. Although the parties eventually entered into a stipulation, disagreements arose over the meaning of terms in the stipulation. Despite the disagreements, the Grandparents visited periodically with C.A. and maintained phone contact from their home in Nevada.

In January 1999, the Parents filed a petition to adopt C.A., who was then six years old. In March 1999, the Grandparents conditionally objected to the adoption and requested visitation under Colorado's grandparent visitation statute, § 19-1-117, C.R.S. (2005). The Grandparents asserted it would not be in C.A.'s best interests to be adopted unless the court ensured visitation with them.

The magistrate granted the adoption in August 2000, when C.A. was eight years old. In a second order in October 2000, the magistrate ordered visitation with the Grandparents. In his October order, the magistrate recited findings in granting the adoption that the Parents were "of excellent moral character;" were fit to adopt the child and had the ability to support, educate, and provide a good home for him; and it would be in the child's best interests for them to adopt him. Nonetheless, the magistrate concluded that the Parents "have not fully recognized the child's need for separate attention related to his parental heritage," and that C.A.'s "best interests will be served by the Court ordering a specific visitation schedule" in order to "avoid conflicts between the parties in the future."²

The magistrate's written ruling sets forth the court-ordered visitation schedule at issue before us (the magistrate's order refers to the Parents as "Petitioners" and the Grandparents as "Interested Parties"):

A. For the year 2000, this shall include five (5) days of visitation where the Interested Parties choose, either during the Thanksgiving holiday or during the Christmas holiday (beginning no earlier than December 27th). Interested Parties shall advise Petitioners of their intent to exercise the said visitation on or before September 3, 2000.

B. Beginning for the calendar year of 2001 and for each successive year, Interested parties shall have the following visitation rights:

(1) Ten (10) consecutive days during the summer where Interested Parties choose.

(2) Five (5) consecutive days during the Thanksgiving or Christmas holiday (beginning on or after December 27, 2001) where Interested Parties choose.

C. The visits to the Interested Parties' residence beginning in 2001 shall only occur if they provide the Petitioners with notice of their intention to exercise said visitation on or before March 1st of each year. Interested Parties shall be required to arrange and pay for all transportation associated with the visits including providing a chaperone for the child until all four (4) parties to this action agree that the child is able to travel alone. Each day of extended visitation shall be twenty-four hours (24) so that, for example, when ten (10) days of visitation are exercised, Interested Parties shall be entitled to two hundred and forty hours (240) of continuance [sic] visitation. The time spent traveling to and from the Interested Parties' residence shall be included within (and shall not be in addition to) the visitation time.

The magistrate's order also provided that the Grandparents were entitled to exercise visitation rights in the Colorado Springs area for up to two weekends per year consisting of seventy-two consecutive hours each upon reasonable notice being given to the Parents. The magistrate's order retained jurisdiction to modify visitation "if such modifications serve the child's best interest."

The Parents requested that the issue concerning the constitutionality of the grandparent visitation statute be heard by a district court judge because the magistrate ruled that he did not have authority to declare a statute unconstitutional. The district court denied the Parents' declaratory judgment request. The district court affirmed the magistrate's grandparent visitation order and added a provision that the Parents make the child available for telephone contact with the Grandparents forty-five minutes prior to his bedtime each Sunday night.

On appeal, the court of appeals concluded that the grandparent visitation statute was not facially unconstitutional. In re Petition of R.A., 66 P.3d 146, 148 (Colo.App.2002) (hereinafter "R.A. I"). Regarding the Parents' unconstitutional as applied argument, the court of appeals ordered further proceedings for the district court to determine whether the magistrate gave "special significance" to the Parents' wishes, as required by In re Custody of C.M., 74 P.3d 342 (Colo. App.2002). R.A. I, 66 P.3d at 151.

On remand, the district court concluded that the record did not reflect whether the magistrate had given special significance to the Parents' wishes. It therefore vacated the order granting visitation, granted interim visitation, and referred the matter to the magistrate to clarify whether he had given special significance to the Parents' determinations.

Following a hearing, the magistrate issued a written order reaffirming and reentering the visitation schedule he had originally ordered. This order does not contain findings based on the evidence that enunciate those "special factors" the Troxel decision directs the court to articulate in entering a grandparent visitation order. In material part, the magistrate's order reads as follows:

5. The Magistrate reviewed the transcript from the contested August 3, 2000 hearing and conducted a supplemental evidentiary hearing on August 14, 2003 in order to obtain the input of the [adoptive parents] prior to entering this Order. At said hearing, the child's mother testified that the court ordered visitation placed stress on the family and that the parents had no intention of denying visitation to the grandparents, but that the parents should be trusted to do what was in the child's best interests instead of court ordered to do so. The father testified that the grandparents had not properly acknowledged the relationship that the child has to his legal parents and that this had contributed to the friction between the parties.

6. Special significance was previously given to the wishes of the...