In re Custody of CM, No. 00CA2313.

• Docket Nº: No. 00CA2313.
• Citation: 74 P.3d 342
• Case Date: September 12, 2002
• Court: Court of Appeals of Colorado

74 P.3d 342

In re the CUSTODY OF C.M., a minor child,
P.B.C., Appellant, and
J.D.M., Respondent, and
Concerning K.D., Intervenor-Appellee, and
State of Colorado, Intervenor-Appellee

No. 00CA2313.

Colorado Court of Appeals, Div. I.

September 12, 2002.

As Modified on Denial of Rehearing January 2, 2003.

Certiorari Denied August 4, 2003.

74 P.3d 343

Law Offices of Joseph H. Antolinez, L.L.C., Joseph H. Antolinez, Lakewood, Law Office of Melissa E. Miller, L.L.C., Melissa E. Miller, Denver, CO, for Appellant

K.D., Pro Se.

Ken Salazar, Attorney General, Steven S. Knowlton, Assistant Attorney General, Denver, CO, for Intervenor-Appellee State of Colorado.

Opinion by Judge METZGER.

In this post-decree proceeding, P.B.C. (mother) appeals the trial court's order awarding visitation to intervenor K.D. (grandmother). We vacate the order and remand the case for further proceedings.

Pursuant to the 1998 stipulated permanent orders in the dissolution action between mother and J.D.M. (father), mother received sole custody of their minor child, and all parenting time awarded to father was to be supervised by grandmother, his mother. The stipulation provided for supervised parenting time on weekends with alternating overnights on Saturdays. The parties also alternated legal holidays. The stipulation further specified that no formal grandparent visitation order was necessary because grandmother was to receive the same visitation as father, and he was not required to be present during her visitation. Grandmother also signed the stipulation.

Mother later moved to terminate father's parenting time based upon his alleged substance abuse and to reduce grandmother's visitation to one day per month with no overnights. The court terminated father's parenting time and also entered a temporary order that continued grandmother's visitation according to the established schedule, but outside father's presence. Grandmother responded that mother had denied scheduled visitation, and she requested not only that the existing schedule be permanently continued, but also that additional visitation be ordered to make up for denied visits.

After an evidentiary hearing, the trial court noted that mother, as the sole custodian, had decision-making authority for all major issues involving the child. Nevertheless, the court continued the basic schedule except for minor adjustments. The court ordered visitation on the first Saturday of every month from 9:00 a.m. to 7:00 p.m., and on the third weekend of every month from 9:00 a.m. Saturday to 10:00 a.m. Sunday. The court expressly provided that mother could be present during such visitation when she so desired. The court also ordered visitation overnight on grandmother's birthday every year and on grandparents' day in odd-numbered years. Grandmother was given visitation from 5:00 p.m. on December 23 until 8:00 p.m. on December 24, one overnight during the four-day Thanksgiving holiday, and the Saturday before Easter.

Mother appeals.

I.

We reject mother's contention that § 19-1-117, C.R.S.2001, which authorizes a trial court to award a grandparent reasonable visitation with a grandchild if such an

74 P.3d 344

award is in the best interests of the child, see In re Marriage of Oswald, 847 P.2d 251 (Colo.App.1993), is unconstitutional on its face

A.

A legislative enactment that infringes on a fundamental right is constitutionally permissible only if it is necessary to promote a compelling state interest and does so in the least restrictive manner possible. Evans v. Romer, 882 P.2d 1335 (Colo.1994), aff'd, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Collins v. Jaquez, 15 P.3d 299 (Colo.App.2000).

A statute is unconstitutional on its face if no conceivable set of circumstances exists under which it may be applied in a constitutionally permissible manner. Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); People v. Juvenile Court, 893 P.2d 81 (Colo.1995).

When a statute is susceptible of both constitutional and unconstitutional interpretations, we must adopt the constitutional interpretation. Renteria v. Colorado State Dep't of Pers., 811 P.2d 797, 799 (Colo.1991).

B.

The Supreme Court has addressed the issue of parental autonomy in a number of cases over the years and has always used strict scrutiny when deciding those cases. Lassiter v. Dep't of Social Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); see generally Maegen E. Peek, Grandparent Visitation Statutes: Do Legislatures Know the Way to Carry the Sleigh Through the Wide and Drifting Law?, 53 Fla. L.Rev. 321 (2001).

In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the Supreme Court considered the Washington grandparent visitation statute, but did not specify the appropriate level of scrutiny for statutes that infringe on the parent-child relationship. See Bryan Thomas White, Note, Muddling Through the Murky Waters of Troxel: Will Grandparent Visitation Sink or Swim?, 39 Fam. & Conciliation Cts. Rev. 104, 108 (2001). The Court also did not decide whether the state's interest was a compelling one. However, the potential intrusions upon fundamental parental rights posed by the Washington statute clearly led the Court to determine that the statute did not satisfy due process. Thus, we conclude...