In re ELMC, No. 03CA1121.

• Decision Date: 01 July 2004
• Docket Number: No. 03CA1121.
• Parties: In the Interest of E.L.M.C., a Child, and Concerning Cheryl Ann Clark, Appellant, and Elsey Maxwell McLeod, Appellee.
• Court: Colorado Court of Appeals

100 P.3d 546

In the Interest of E.L.M.C., a Child, and

Concerning Cheryl Ann Clark, Appellant, and

Elsey Maxwell McLeod, Appellee.

No. 03CA1121.

Colorado Court of Appeals, Div. V.

July 1, 2004.

Certiorari Denied October 25, 2004.¹

Rouse & Associates, PC, James P. Rouse, Amy D. Desai, Greenwood Village, Colorado, for Appellant.

Mills and Weitzenkorn, PC, Gina B. Weitzenkorn, Denver, Colorado, for Appellee.

Peterson, Dymond, & Reagor, LLP, David D. Schlachter, Englewood, Colorado; Mathew D. Staver, Longwood, Florida, for Amicus Curiae Liberty Counsel.

Brett B. Harvey, Scottsdale, Arizona; Langdon & Shafer, LLC, Jeffrey A. Shafer, Cincinnati, Ohio, for Amicus Curiae Rocky Mountain Family Council.

Hoffman, Reilley, Pozner & Williamson, Kyle C. Velte, Denver, Colorado; Michael E. Brewer, Denver, Colorado, for Amicus Curiae Center's Legal Initiatives Project.

Willoughby Law Firm, LLC, Kimberly R. Willoughby, Denver, Colorado; Shannon Minter, Courtney Joslin, San Francisco, California, for Amicus Curiae National Center for Lesbian Rights.

Heather R. Hanneman, Denver, Colorado; Mark Silverstein, Denver, Colorado, for Amicus Curiae American Civil Liberties Union.

Opinion by Judge WEBB.

In this proceeding concerning statutory allocation of parental responsibilities for E.L.M.C., a minor child, Cheryl Ann Clark, the child's adoptive mother, appeals the trial court's order awarding joint parental responsibilities, except for religion and dental care, to Elsey Maxwell McLeod, Clark's former domestic partner. Clark also appeals the order's prohibition against her exposing E.L.M.C. to "religious upbringing or teaching... that can be considered homophobic."

This case illustrates the evolving nature of parenthood. See N.A.H. v. S.L.S., 9 P.3d 354, 359 (Colo.2000)

("Parenthood in our complex society comprises much more than biological ties, and litigants increasingly are asking courts to address issues that involve delicate balances between traditional expectations and current realities."); see also Troxel v. Granville, 530 U.S. 57, 63, 120 S.Ct. 2054, 2059, 147 L.Ed.2d 49 (2000)("The demographic changes of the past century make it difficult to speak of an average American family.").

Clark relies primarily on Troxel, supra.

There, the Supreme Court held a state grandparent visitation statute unconstitutional, as applied, because the order for grandparent visitation unjustifiably interfered with the natural mother's due process right to make decisions concerning the care, custody, and control of her children.

Hence, we consider whether here, in light of Troxel, the trial court's award of joint parental responsibilities to McLeod, neither a natural nor an adoptive parent, under §§ 14-10-123, 14-10-123.4, and 14-10-124(1.5), C.R.S.2003, unconstitutionally interferes with Clark's fundamental right as the fit, legal parent to make decisions regarding E.L.M.C. We affirm the trial court's parental responsibilities allocation on the basis that McLeod had become E.L.M.C.'s psychological parent, E.L.M.C.'s continuous recognition of McLeod as a parent almost from birth, E.L.M.C.'s age—nine years when the trial court entered permanent orders—and the risk of emotional harm to her inherent in Clark's parenting plan, which curtailed and then terminated McLeod's court-ordered parenting time. Whether a child's best interests could justify subordinating a legal parent's constitutional rights to the claim of a nonparent seeking parental responsibilities, without the threat of emotional harm, is a question we leave for another day.

We also consider whether the prohibition against homophobic religious teachings impermissibly invades Clark's rights to control the religious upbringing of E.L.M.C. under the Free Exercise Clause of the First Amendment to the United States Constitution and its Colorado counterpart. We vacate the order as to this limitation and remand this aspect of the case to the trial court for findings required by § 14-10-130(1), C.R.S.2003, which are also necessary to resolve the First Amendment issue.

Table of Contents

I. Facts II. Legal Framework A. In re Custody of C.C.R.S. B. Troxel v. Granville C. Level of Scrutiny III. Jurisdiction A. Legal Relationship B. Incident to Dissolution Proceedings C. Exclusive Physical Care D. Petition Within Six Months IV. Allocation of Parental Responsibilities A. Federal Constitutional Considerations B. Parental Unfitness and Harm C. The Psychological Parent Doctrine and Harm D. Trial Court Findings and Record V. Religious Upbringing

(This Table of Contents and the section headings throughout this opinion are offered solely for the convenience of the reader and do not control or modify the substance of each section.)

I. Facts

The trial court found, with record support, the following facts. Clark and McLeod lived in a committed relationship for eleven years before this action; they owned a home in joint tenancy, had a commitment ceremony, and discussed having a child through in vitro fertilization or by adoption. In 1994, Clark began the process of applying for the adoption of a child from China.

The social worker who performed the background check for the adoption indicated China would not permit an adoption by a same-sex couple. For this reason, the adoption papers were made out in the name of Clark alone. However, Clark and McLeod traveled to China together, where Clark adopted E.L.M.C., who was then about six months old.

Shortly thereafter, Colorado recognized Clark's adoption of E.L.M.C. Clark and McLeod sent an "arrival announcement" to friends:

[E.L.M.C.] was born in the Hunan providence of the People's Republic of China. She lived the first six months of her life in the Yue Yang Children's Welfare Home in Yue Yang, China. She now lives with two adoring moms. [McLeod] and [Clark] live in Denver, Colorado.

The couple filed a joint "Petition for Custody" under § 14-10-123 with Clark as a parent and McLeod as a nonparent in 1996. The petition for custody stated:

Co-Petitioners have lived together for the past six and one-half years as a couple. They had a commitment ceremony on July 31, 1993. They carefully discussed having a family together. Clark's plans to adopt [E.L.M.C.] included an intention to have [E.L.M.C.] raised by Clark and McLeod as one family with two parents.

The joint trial brief submitted in support of the petition for custody stated, in pertinent part:

[E.L.M.C.] considers each of the Co-Petitioners to be a parent; she refers to McLeod as "mommy" and Clark as "momma." She looks to both Co-Petitioners for love, affection and nurturance. Co-Petitioners have shared the financial cost of supporting [E.L.M.C.] and they share all major decisions involving [E.L.M.C.'s] life, including provisions of daycare during the times that Co-Petitioners must both work.

The district court awarded joint custody of E.L.M.C. to Clark and McLeod. Neither party appealed.

Clark also petitioned to change the child's name to include McLeod's name "to acknowledge an important family member instrumental to [the child's] adoption from China." Clark signed the pediatrician's information sheet that identified McLeod as a "mother." Both women were listed as mothers of the child in the school directory.

The child's nanny testified that both Clark and McLeod interviewed her for the job and that, during her approximately two and one-half years of caring for E.L.M.C., she observed that they were equally parenting the child.

When the relationship between Clark and McLeod began to fail, approximately five years after the joint custody award and six years after the adoption, Clark sent a letter to McLeod, stating, in relevant part:

As I review the last two and one-half years since we adopted [E.L.M.C.], I see several areas that plague and distress me. First of all, shortly after we got back from China we started to talk about ways to protect your legal relationship with [E.L.M.C.]. This was important to both of us and we pursued and accomplished that the best we can in Colorado ... we changed [E.L.M.C.'s] name to include yours. I changed my will before we left to designate you as her guardian should anything happen to me, and we pursued joint custody. All these actions work towards protecting your family integrity and specifically your relationship, legally, with [E.L.M.C.]....

You attached to [E.L.M.C.] so strongly that I felt that I could not get in; that you would not let me in as you bonded to [her]. I have watched this attachment to her from the beginning and while much of it is wonderful ... I also feel that you leave me out and had not really responded to my several requests to help me with that.

Thus, although Clark was the only legal parent, the record supports the trial court's conclusion that it was "abundantly clear" both women intended to, and did, coparent E.L.M.C.

In 2001, after the parties' relationship ended and a dispute over parenting time arose, Clark sought to restrict McLeod to ten overnights per month in 2003 and six overnights per month in 2004, and to terminate all court-ordered parenting time in 2005. McLeod petitioned for roughly equal parenting time.

Clark filed a motion for temporary orders and challenged the validity of the 1996 joint custody order. A magistrate declared the joint custody order void on the basis that the district court lacked jurisdiction because no controversy existed between the parties, but temporarily ordered joint parenting time and joint decision-making. Clark's appeal of the magistrate's order to this court was dismissed without prejudice because no final order had been entered by the district court.

After a hearing on permanent orders, the trial court concluded that jurisdiction over the initial joint custody proceedings was proper and that, even if that court had lacked jurisdiction, the magistrate could not declare void the joint custody award of a district court judge. Nevertheless, without either relying on...