In re M.J.K.

• Decision Date: 13 November 2008
• Docket Number: No. 07CA2109.,07CA2109.
• Citation: 200 P.3d 1106
• Parties: In re the Parental Responsibilities of M.J.K., R.A.K., M.K.D., and Z.D.D., Children, Upon the Petition of Cheryl Goff, Petitioner-Appellee, and Concerning Jennifer Vawter, Appellant.
• Court: Colorado Court of Appeals

200 P.3d 1106

In re the Parental Responsibilities of M.J.K., R.A.K., M.K.D., and Z.D.D., Children Upon the Petition of Cheryl Goff, Petitioner-Appellee, and Concerning Jennifer Vawter, Appellant.

No. 07CA2109.

Colorado Court of Appeals, Div. V.

November 13, 2008.

No Appearance for Petitioner-Appellee.

Jennifer Vawter, Pro Se.

Opinion by Judge GABRIEL.

In this consolidated proceeding for termination of the guardianships of her older children, M.J.K. and R.A.K., and for modification of the parental responsibilities of her younger children, M.K.D. and Z.D.D., Jennifer Vawter (mother) appeals from the trial court's order continuing the guardianships and maintaining the sole decision-making responsibility and primary residential care previously granted to her mother, Cheryl Goff (grandmother). The central question before us is whether the trial court erred in applying the statutory standards generally governing petitions to terminate guardianships and motions to modify allocations of parental responsibility to a biological parent who sought such relief after having agreed to the guardianships and allocations at issue. Mother principally claims that application of these standards to her in the context of this case violates her fundamental rights to custody, care, and management of her children. We disagree and therefore affirm.

I. Background

The record before us, albeit incomplete, reflects that grandmother originally assumed the care and custody of the children with mother's consent. Pursuant to uncontested orders, grandmother received guardianship of M.J.K. and R.A.K. and decision-making responsibility and primary residential care of M.K.D. and Z.D.D. These orders do not reflect that the guardianships, parental responsibilities, or residential care were to be temporary. Moreover, it is undisputed that the children have been in grandmother's care since 2003 and that mother has exercised parenting time with varying frequency subject to grandmother's supervision.

In December 2005, mother filed a motion for modification requesting that primary residential care and sole decision-making responsibility be returned to her. As grounds for this motion, mother claimed that the caretaking arrangement was to last only for one year, during which time she was to work on regaining her sobriety and establishing a stable life, which she had done. In June 2007, mother filed petitions to terminate the guardianships, based on these and other circumstances not relevant here. Grandmother opposed the motion and petitions.

Following a consolidated evidentiary hearing, the court found that mother had done good work to address her addictions and other issues and was now able to perform parenting tasks in a responsible manner. Nevertheless, the court denied both mother's petitions and her motion to modify. In reaching this conclusion, the court applied the best interest standard set forth in section 15-14-210, C.R.S.2008, to mother's request to terminate the guardianships and the endangerment standards set forth in sections 14-10-129 and 14-10-131, C.R.S.2008, to her motion to modify parenting time and decision-making. Finding that the best interests of the children would be served by "preserving the stability the children have known for years," the court determined that grandmother should remain the primary residential caretaker with sole decision-making authority. The court did, however, modify mother's parenting time by adopting the parenting plan proposed by the child and family investigator (CFI), which incorporated consistent, regular, and unsupervised parenting time as long as mother maintained her sobriety.

Mother now appeals.

II. Notice

Mother first contends that the original order allocating parental responsibilities is void and not binding on her because she did not receive proper notice of the proceedings leading to it. We disagree.

If a judgment is entered without sufficient notice to the respondent, such judgment offends due process, and it must be vacated upon request. See Don J. Best Trust v. Cherry Creek Nat'l Bank, 792 P.2d 302, 305 (Colo.App.1990).

Here, although mother contends that grandmother never served her with a copy of the original petition and that she had no knowledge or notice of the proceeding, it is undisputed that she joined in the petition as co-petitioner and thus knew of and sought the same relief requested by grandmother. Hence, she consented to the allocation of parental responsibilities entered by the court and appears to have abided by it without any previous challenge. In these circumstances, we conclude that any such due process violation has been waived. See Columbine Valley Constr. Co. v. Bd. of Dirs., 626 P.2d 686, 693 (Colo.1981) (due process rights to notice and hearing prior to entry of a civil judgment are subject to waiver); Norquist v. Norquist, 89 Colo. 486, 491, 4 P.2d 306, 307 (1931) (defendant waived his personal jurisdiction objection by failing to assert it until approximately five months after the court entered the order at issue).

We do not address mother's additional contention that her rights continued to be violated by grandmother's failure to provide notice of additional court proceedings because mother has not challenged on appeal any other specific orders arising from such proceedings. To the extent mother relies on sections 14-13-105 and 14-13-205(1), C.R.S. 2008, of the Uniform Child-Custody Jurisdiction and Enforcement Act, we note that the parties and the court invoked that Act only for a short time, when grandmother temporarily left the state with the children, and that issue is not before us on mother's appeal.

III. Standards Applicable to Mother's Motion and Petitions

Mother next contends that the trial court erred by applying the best interest and endangerment standards without according her the parental preference required under the Due Process Clause arising from her fundamental rights as a biological parent. We disagree.

A. The Legal Framework

In Troxel v. Granville, 530 U.S. 57, 72-73, 120 S.Ct. 2054, 2063-64, 147 L.Ed.2d 49 (2000) (plurality opinion), the Supreme Court struck down a statute that placed no limit on the class of persons who could petition for visitation. In that case, paternal grandparents petitioned for visitation with their grandchildren, who had been born out of wedlock to the grandparents' late son and the children's mother. The mother had asked the grandparents to limit the amount of time that they were visiting the grandchildren, and the grandparents filed their petition, which the trial court granted. The plurality found that Washington's visitation statute, which allowed any person to petition for visitation rights of children at any time, whenever such visitation might serve the best interests of the children, was "breathtakingly broad." Id. at 67, 120 S.Ct. at 2061. The plurality further concluded that this statute unconstitutionally infringed on the protected liberty interest of natural parents in the care, custody, and control of their children by permitting a court to disregard or override a parent's wishes based solely on the trial judge's personal view of the children's best interests. Id. Specifically, the plurality observed that a fit parent is presumed to act in the best interests of his or her children and that "if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." Id. at 68-70, 120 S.Ct. at 2061-62. Therefore,

so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.

Id. at 68-69, 120 S.Ct. at 2061 (plurality opinion); accord In re Adoption of C.A., 137 P.3d 318, 324-25 (Colo.2006).

Troxel was concerned with judicial interference in the day-to-day child-rearing decisions of fit, custodial parents. See In re Guardianship of L.V., 136 Cal.App.4th 481, 38 Cal.Rptr.3d 894, 902 (2006). It did not address situations in which the parent no longer has custody. See id. ("The decisions in Troxel and its California progeny have no application to this case because they dealt with judicial interference in the day-to-day child-rearing decisions of a fit, custodial parent. Here, the parents no longer had custody of the minor. A guardianship had been established and the guardians had provided the minor with day-to-day custody and care for several years.") (emphasis in original).

In contrast to Troxel, in Quilloin v. Walcott, 434 U.S. 246, 255-56, 98 S.Ct. 549, 555, 54 L.Ed.2d 511 (1978), the Supreme Court rejected the constitutional claim of a biological father who opposed the adoption of his child by the child's stepfather. The biological father argued that, in the absence of a finding of his unfitness as a parent, he had a constitutional right to veto the adoption. Id. at 252, 98 S.Ct. at 553. The Court disagreed, stating:

We have little doubt that the Due Process Clause would be offended "[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest." But this is not a case in which the unwed father at any time had, or sought, actual or legal custody of his child. Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except [the biological father]. Whatever might be required in other situations, we cannot say that the State was required in...