In re C.T.G.

• Citation: 179 P.3d 213
• Decision Date: 09 August 2007
• Docket Number: No. 05CA0783.,05CA0783.
• Parties: In the Interest of C.T.G., a Child, Upon the Petition of P.G and T.L.W., Appellants, and Concerning K.R.W., Appellee.
• Court: Court of Appeals of Colorado

179 P.3d 213

In the Interest of C.T.G., a Child Upon the Petition of P.G and T.L.W., Appellants, and Concerning K.R.W., Appellee.

No. 05CA0783.

Colorado Court of Appeals, Div. I.

August 9, 2007.

Certiorari Denied September 11, 2007.

DiGiacomo & Jaggers, LLP, David R. DiGiacomo, Douglas J. Perko, Arvada, Colorado, for Appellants.

Law Offices of Stephen J. Harhai, Sara A. Willhite, Denver, Colorado, for Appellee.

Opinion by Judge ROTHENBERG.

P.G. (father) and T.L.W. (mother) (collectively, the parents) appeal from the trial court's orders denying their request to terminate the parenting time awarded to K.R.W. (stepfather) for their minor child, C.T.G., and the trial court's award of attorney fees to stepfather. Because we conclude that stepfather lacks standing to seek parenting time and that even if he had standing, he would not be entitled to parenting time, we reverse the orders related to stepfather's parenting time and the order awarding him attorney fees, and we remand with directions to grant the parents' motion to terminate visitation.

I. Background

The basic facts are undisputed. In 1997, while mother and stepfather were married and living in Minnesota, she had intimate relations with father and became pregnant. C.T.G. was born on August 12, 1998. In 1999, mother and father learned that father was the biological father of the child, but stepfather was not informed of this fact until 2001 when father filed a paternity action and tests were conducted.

In 2002, the Minnesota court decreed that father was the biological father and awarded joint legal custody of C.T.G. to father and mother, with sole physical custody to mother. The court's order also provided that stepfather would have visitation "on an interim basis to be established by the parties and a guardian ad litem pending further agreement or court orders." During that same year, mother and stepfather separated.

In 2003, the marriage between mother and stepfather was dissolved in Minnesota. Mother and father were then living together with the child and had relocated to Colorado, and stepfather traveled to Colorado one weekend per month to visit the child. The parents married in 2005.

Minor problems arose during stepfather's visits in Colorado, which escalated in early 2005 when mother and stepfather had an altercation. Mother reportedly became angry and pushed or slapped stepfather as he was returning the child after a visit. He filed a complaint against her at a nearby police station, and she was arrested later that day in the presence of the child. According to the parents, this resulted in considerable trauma to the child, who began expressing fear that stepfather would have mother arrested again and displaying physical symptoms when it was time for visitation.

In February 2005, the parents filed an emergency motion to suspend stepfather's visitation, and jurisdiction was transferred from Minnesota to Colorado. Stepfather filed a motion to enforce parenting time pursuant to § 14-10-129.5, C.R.S.2006 (addressing disputes concerning parenting time). Following a brief evidentiary hearing, the trial court reinstated stepfather's visitation of one weekend per month, finding he was a "psychological parent" to C.T.G. at the time of the Minnesota order and the termination of his relationship with her would likely result in psychological harm to her.

The parents then filed a motion to terminate stepfather's visitation rights, and the court conducted a full evidentiary hearing. Following that hearing, the trial court found that (1) stepfather is a psychological parent to C.T.G.; (2) the child is not in any danger of emotional or physical harm when she is with him; (3) the parents' actions created stress around the visits; and (4) their attempts to eliminate stepfather's contact with the child endangered her emotional development. The court ordered stepfather's parenting time to continue. The parents appeal from that ruling.

II. Standing

The parents contend stepfather lacks standing to assert parenting time rights in this case. Relying largely on In re E.L.M.C., 100 P.3d 546 (Colo.App.2004), stepfather contends his status as a "psychological parent" to C.T.G. conferred standing on him. We agree with the parents.

A. General Principles

"The question of standing involves a consideration of whether a plaintiff has asserted a legal basis on which a claim for relief can be predicated." Bd. of County Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1052 (Colo.1992). Standing therefore is that concept of justiciability that is concerned with whether a particular person may raise legal arguments or claims. See Romer v. Bd. of County Comm'rs, 956 P.2d 566, 572 (Colo. 1998) (citing Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968)); Stamford Hosp. v. Vega, 236 Conn. 646, 657, 674 A.2d 821, 828 (1996) ("Standing is the legal right to set judicial machinery in motion." (quoting Tomlinson v. Bd. of Educ., 226 Conn. 704, 717, 629 A.2d 333, 341 (1993))).

Standing may be lost for many reasons. As the United States Supreme Court has observed, the doctrine of standing requires that an individual "maintain a `personal stake' in the outcome of the litigation throughout its course." Gollust v. Mendell, 501 U.S. 115, 126, 111 S.Ct. 2173, 2180, 115 L.Ed.2d 109, 121 (1991) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395-97, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980)); see In re Marriage of Yates, 148 P.3d 304, 314 (Colo.App.2006)("[W]hile husband had standing to litigate the division of marital property in the trial court, he lost standing to pursue the issue on appeal." (emphasis added)); In re Baby Boy K., 546 N.W.2d 86, 102 (S.D.1996)(concluding alleged biological father had standing to assert claim that his potential liberty interest as parent had been infringed by termination of parental rights without sufficient notice, but he lost standing to assert a motion to vacate the termination order after he failed to assert his parental right within the statutory time period following the child's birth); cf. Branick v. Downey Sav. & Loan Ass'n, 39 Cal.4th 235, 243, 46 Cal.Rptr.3d 66, 138 P.3d 214, 218 (2006)(concluding plaintiff in pending unfair competition case lost standing by intervening adoption of state constitutional amendment); Chamberlain v. Farm Bureau Mut. Ins. Co., 36 Kan.App.2d 163, 174, 137 P.3d 1081, 1089 (2006) (concluding plaintiff lost standing as representative plaintiff for class action claims against an automobile insurer to recover personal injury protection benefits when she settled with the alleged tortfeasor and his insurer); Denver Area Meat Cutters & Employers Pension Plan v. Clayton, 120 S.W.3d 841 (Tenn.Ct.App.2003) (concluding plaintiff lost standing to pursue its stockholders' derivative suit after merger occurred).

B. Nonparents' Statutory Standing

At common law, third parties such as grandparents, stepparents, and siblings, had no custody or visitation rights and therefore no standing to assert such rights. In re R.A., 121 P.3d 295, 298 (Colo.App.2005), rev'd on other grounds sub nom. In re Adoption of C.A., 137 P.3d 318 (Colo.2006); In re Hood, 252 Kan. 689, 692-93, 847 P.2d 1300, 1303 (1993); see Kulla v. McNulty, 472 N.W.2d 175, 181-82 (Minn.Ct.App.1991)(holding that, but for the legislative enactment of Minn. Stat. § 257.022(2)(b) (now § 257C.08(2)(b)) a nonparent would have no right to visitation whatsoever).

This principle is based on the constitutionally protected right of parents to determine how their children will be raised. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (recognizing that parents have a protected liberty interest in the care, custody, and control of their children and that this fundamental right encompasses the presumption that a fit parent will act in the best interests of his or her child); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982); Hede v. Gilstrap, 107 P.3d 158, 173-74 (Wyo. 2005)("The parents' obligation to allow visitation with the grandparent was characterized as a moral, not a legal, obligation." (quoting Ward v. Ward, 537 A.2d 1063, 1066-69 (Del. Fam.Ct.1987))).

In People in Interest of E.S., 49 P.3d 1221, 1223 (Colo.App.2002), a division of this court rejected the contention that a stepparent has a fundamental liberty interest in the care, custody, and control of his or her stepchild and is therefore entitled to constitutional due process protections, including the right to be heard and to defend against a petition in dependency and neglect. The division expressed its concern that "to extend such an interest where, as here, the rights of both of the natural parents are intact could create an untenable conflict by pitting the rights of a stepparent against those of the natural or adoptive parents, which would compromise the welfare of the child." People in Interest of E.S., supra, 49 P.3d at 1223.

By 2005, all fifty states had enacted statutes conferring on grandparents the right to seek visitation with their grandchildren in various situations. See § 19-11-17(1), C.R.S. 2006; F. McGuane, K. Hogan & B. Storey, 19 Colorado Practice §§ 28.11, 28.45 (2006).

Some states, not including Colorado, have also enacted statutes expressly recognizing and delineating the rights of other caregivers, such as stepparents, to seek custody or visitation with children with whom they have a close bond. See In re Marriage of Riggs, 35 Kan.App.2d 61, 64, 129 P.3d 601, 604 (2006)(relying on Kan. Stat. Ann. § 60-1616(b), which provides that grandparents and stepparents may be granted visitation rights). As the Pennsylvania Supreme Court stated:

It is well-established that there is a stringent test for standing in third-party suits for visitation or partial custody due to the respect for the traditionally strong right of parents to raise their children as they see fit. The courts...