In re B.J.
| Decision Date | 30 November 2010 |
| Docket Number | No. 10SA146.,10SA146. |
| Citation | 242 P.3d 1128 |
| Parties | In re the Parental Responsibilities Concerning B.J. and K.J. Nicole Anne Glab and Jason Glab, Petitioners v. Ronald David Julian and Coy Lynn Summers, Respondents. |
| Court | Colorado Supreme Court |
Colorado Legal Services, Jill M. Brady, Colorado Springs, CO, Attorneys for Petitioner, Ronald D. Julian.
Brandes & Associates, P.C., Leta Brandes, Niceta Bradburn, Greenwood Village, CO, Attorneys for Respondent.
We issued our rule to show cause, pursuant to C.A.R. 21, to determine whether the standards enunciated in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and In re Adoption of C.A., 137 P.3d 318 (Colo.2006), apply to a trial court's consideration of any order allocating parental responsibilities to a non-parent over the objection of a fit, custodial parent.
In this allocation of parental responsibilities ("APR") case, the District Court for El Paso County ordered several daytime and two overnight stays in the home of the children's former foster parents, Nicole and Jason Glab ("the Glabs"), against the wishes of Ronald Julian, the children's biological father and sole custodian. In issuing its order, the district court did not apply the Troxel and C.A. analysis and failed to provide any reasons for interfering with Julian's fundamental right to make decisions concerning the care, custody, and control of his children.
We hold the constitutional presumption that a fit parent acts in the best interests of the child applies to all stages of an APR proceeding. The applicable standard for consideration of an order granting any parenting time to non-parents in the face of the parent's objection includes 1) a presumption in favor of the parental determination; 2) an opportunity to rebut this presumption with a showing by the non-parents through clear and convincing evidence that the parental determination is not in the child's best interests; and 3) placement of the ultimate burden on the non-parents to establish by clear and convincing evidence that allocation of parenting time to them is in the best interests of the child. In allowing any parenting time to non-parents, the court must make findings of fact identifying those "special factors" on which it relies. The district court abused its discretion by not applying this standard and making the requisite findings of fact when it ordered daytime and overnight stays in the Glabs' household.
Accordingly, we make our rule absolute, setting aside the district court's order for visitation with the Glabs in their household, and return this case to the district court for further proceedings consistent with this opinion.
Julian is the biological father of minor children B.J. and K.J. The Glabs provided foster care to these children during an eleven-month period beginning in late December 2004 during a dependency and neglect ("D & N") case filed against Julian and Coy Summers, the children's biological mother. In December of 2005, the juvenile court granted Julian, who had complied with all conditions imposed as a result of the D & N proceeding, sole custody of B.J. and K.J. The final order of the D & N proceeding made permanent a prior no-contact order between Summers and the children.
Julian allowed the children significant ongoing contact with the Glabs from December 2005 until May 2009, when Julian decided to sever further contact with the Glabs. A summary of this time is as follows. From March to June, 2006, the children lived with the Glabs full time. In the fall of 2006 the children lived with the Glabs on Monday, Tuesday, and Wednesday nights. Thursday through Sunday they resided with their father. Julian and Ms. Glab agreed that, starting in January 2007, B.J. would begin to attend the same school as the Glabs' children and from January 2007 until August 2007 both children lived with the Glabs Monday through Thursday. Starting in August 2007 B.J. lived with the Glabs Sundays through Fridays, and in August 2008 both children began living with the Glabs Sunday night through Friday night.
In March of 2009 Julian determined to cease having the children in the Glabs' home, except that he allowed the children to spend two weekends with them in April of 2009, in addition to Mother's Day weekend of May, 2009. The Glabs responded by petitioning for an allocation of parenting responsibilities pursuant to section 14-10-123(1)(c), C.R.S. (2010), on May 1, 2009.
Julian's decision to allow the Glabs significant parenting time after he had received sole custody of the children resulted in the establishment of a psychological bond between the children and the Glabs. At a hearing before the magistrate on September 24, 2009, Julian testified that the children referred to Mrs. Glab as "Mom," and Mr. Glab as "Daddy Jason." They either called Julian "Daddy Ron," or simply "Daddy." The Glabs handled interactions with doctors and school officials, attended parent-teacher conferences and extra-curricular events, and paid half of the children's school tuition.
Julian acknowledged that both children had formed a "very unique bond" with the Glabs. The magistrate found that, during this three and one-half year period, with Julian's consent, the Glabs had become psychological parents of both children. The magistrate went on to find that, after Julian determined to have his children live exclusively with him, the children adjusted well to life without the Glabs. The children's psychologist observed that the Glabs did not show up in drawings of "important people" in their lives and reintroducing the Glabs back into their lives would disrupt this stability.
The magistrate concluded that the Glabs did not have standing to pursue an APR action under section 14-10-123(1)(c). This statutory section allows a non-parent who has had the physical care of a child for a period of six months or more to petition for parenting time, so long as the non-parent initiates the action within six months of the termination of physical care. The magistrate ruled that, as of the date of the September 2009 hearing, the children had been exclusively within Julian's household for over six months and the Glabs no longer had standing to pursue the APR proceeding. The magistrate found Julian to be a fit parent whose parenting plan was in the best interests of the children.
After a hearing to review the magistrate's ruling, the district court accepted the magistrate's findings, made findings of its own, and concluded that the Glabs did have standing because they had initiated the APR action on May 1, 2009, well within six months of March 2009, when Julian determined to cease having the children live with the Glabs. The district court refused the Glabs' request for a temporary order for parenting time pending the APR proceeding. Consistent with the magistrate's findings, the district court found that granting temporary parenting time to the Glabs would "disrupt the minor children who have adjusted to their current situation which would not be in the best interest of the minor children."
In so ruling, the district court recognized that Julian had a due process interest in the care, custody, and control of his children and the court must presume his decisions to be in their best interests. Accordingly, it ruled that consideration of any temporary or permanent order for non-parent parenting time must proceed under the standards set forth in the Troxel and C.A. cases.
The Glabs then sought appointment of a Child and Family Investigator ("CFI"). The district court granted the motion and appointed Dr. Michael Wilbourn as CFI. After briefly meeting the children, Dr. Wilbourn recommended that they spend three Saturdays with the Glabs, after which he would meet with the children and observe their interactions with Mr. and Mrs. Glab. Over Julian's protests, these visits took place in mid-April, 2010, nearly one year after the children's last contact with the Glabs. Dr. Wilbourn did not report his findings to the court at the next status conference. Instead, he recommended that the court order two Saturday overnight parenting stays in the Glabs' household to assist his report.
Julian objected to the overnight visitations, reasserting that the court could not order any parenting time between the Glabs and his children without clear and convincing evidence to justify interference with his constitutional rights. The district court concluded that the Troxel and C.A. standards are inapplicable to the investigatory stage of an APR proceeding.
The court ordered the overnight stays to occur during the weekends of May 15 and 22, 2010, and Julian petitioned for issuance of our rule to show cause. We accepted jurisdiction pursuant to C.A.R. 21 and now makeour rule absolute, reversing the district court's order.
We hold the constitutional presumption that a fit parent acts in the best interests of the child applies to all stages of an APR proceeding. The applicable standard for consideration of an order granting any parenting time to a non-parent in the face of the parent's objection includes 1) a presumption in favor of the parental determination; 2) an opportunity to rebut this presumption with a showing by the non-parents through clear and convincing evidence that the parental determination is not in the child's best interests; and 3) placement of the ultimate burden on the non-parents to establish by clear and convincing evidence that allocation of parenting time to them is in the best interests of the child. In allowing any parenting time to non-parents, the court must make findings of fact identifying those "special factors" on which it relies. The district court abused its discretion by not applying these standards and making the requisite findings of fact when it ordered daytime and overnight stays in the Glabs' household.
We defer to the magistrate's and district courts' findings of fact if they...
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