In re Parental Responsibilities Concerning B.R.D.

• Decision Date: 12 April 2012
• Docket Number: No. 10CA2386.,10CA2386.
• Citation: 2012 COA 63,280 P.3d 78
• Parties: In re the Parental Responsibilities Concerning B.R.D., a Child, and Concerning Phillip K. Decker and Sherry M. Decker, Petitioners–Appellees, and Adam Gordon, Respondent–Appellant.
• Court: Colorado Court of Appeals

280 P.3d 78

2012 COA 63

In re the Parental Responsibilities Concerning B.R.D., a Child, and Concerning Phillip K. Decker and Sherry M. Decker, Petitioners–Appellees, and Adam Gordon, Respondent–Appellant.

No. 10CA2386.

Colorado Court of Appeals,

Div. VII.

April 12, 2012.

Michael L. Garcia, Pueblo, Colorado, for Petitioners–Appellees.

Stephan E. Uslan, Denver, Colorado, for Respondent–Appellant.

Opinion by Judge BERNARD.

¶ 1 This appeal concerns a dispute between parents of a boy and a couple with whom the boy is living. At one point, the boy's parents and the couple entered into an agreement that gave the couple sole decision-making responsibility, primary residential caretaking, and majority parenting time. Father, Adam Gordon, subsequently asked a court to give him liberal and expanded parenting time and a share of decision-making authority. The couple, Phillip K. and Sherry M. Decker, opposed father's request.

¶ 2 We resolve this dispute by recognizing that, under the law, father's status as a parent creates a presumption that he is a fit parent who will act in the boy's best interests. To rebut this presumption, the couple must show that (1) it would not be in the boy's best interests to modify the order in the manner that father requests; and (2) it would be in his interests for the existing order to continue.

¶ 3 The trial court here did not accord father, a fit parent, the benefit of this presumption, nor did it require the couple to rebut the presumption or to show that it would be in the boy's best interests to maintain the existing order. Thus, we vacate the court's order awarding sole decision-making responsibility, primary residential caretaking, and majority parenting time to the couple. We remand for further proceedings to be conducted under the standards described in this opinion.

I. Background

¶ 4 Father and mother, Yen Hong Dang, are the biological parents of the boy, who was born in September 2005. Mother gave him up for adoption. He was placed with the couple shortly after his birth. In January 2006, mother filed a petition stating that she wished to relinquish her parental rights to the couple.

¶ 5 Several months later, father, who had not known of mother's pregnancy, contacted her and learned of the boy's birth. When he acknowledged his paternity and objected to the couple's proposed adoption of the boy, mother changed her mind. She asked the court to dismiss the relinquishment petition and have the boy returned to her. The couple responded by asking the court to terminate mother's and father's parental rights.

¶ 6 In June 2007, mother and father entered into a stipulation with the couple. They memorialized their stipulation in consensual permanent orders that allocated parental responsibilities by awarding (1) sole parental and decision-making responsibility to the couple; and (2) some parenting time to mother and father during the week, plus two weekend days per month. Mother and father explicitly reserved the right to ask the court to modify the allocation of parental responsibilities in the permanent orders. The court also ordered mother and father to pay monthly child support to the couple.

¶ 7 Over time, mother, father, and the couple came closer to sharing parenting time. In December 2008, mother moved to increase her parenting time and to provide her with more decision-making authority. She stated that she provided daily care for the boy and her relationship with him had matured.

¶ 8 In September 2009, father also asked the court to modify the orders concerning parenting time and parental responsibility. He alleged that circumstances had changed: he had moved to Colorado to be closer to the boy. He sought to modify the orders to give him more time with, and a larger say in decisions concerning, the boy. He stated that additional time together would deepen the bond between them. He added that it would be in the boy's best interests to grant this request.

¶ 9 In October 2010, the court held a three-day evidentiary hearing to resolve mother's and father's requests for expanded parenting time and decision-making authority. At the hearing's conclusion, the court found that the boy was “deeply” attached to father, mother, the couple, and the couple's child. Although the court expressed some concern that the parties would not encourage the boy to build on his relationships with one another, it also found that they could all put the child's needs ahead of their own.

¶ 10 Relying on In re Parental Responsibilities of M.J.K., 200 P.3d 1106 (Colo.App.2008), the court then concluded that the proper legal standard to resolve mother's and father's motions was the “endangerment” standard found in sections 14–10–129 and 14–10–131, C.R.S.2011. The court added that it had

considered whether a preference should be given to [father and mother] under the line of cases decided since Troxel v. Granville [530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ] ... was issued by the United States Supreme Court. The [c]ourt finds that the [consensual permanent order] approved by the [c]ourt ... was not a temporary order, although [father and mother] reserved the right to modify it. Therefore, the [c]ourt concludes that the interests of [father and mother] under Troxell have been adequately considered by the [c]ourt in reaching its decision.

[The division of the court of appeals] in ... M.J.K. held that subsequent legal proceedings after the initial proceeding are to be determined by the statutory standards for modifying allocations of parental responsibility and parenting time (which still allows the [c]ourt to consider the relationship between [father and mother] and [the child] ).... The Colorado Supreme [C]ourt in the case of In the Matter of D.I.S. [249 P.3d 775 (Colo.2011) ] has granted certiorari to revisit the holdings set forth in ... M.J.K. However, unless the Colorado Supreme Court establishes a different standard than applied by the [c]ourt in this [o]rder, the [c]ourt finds that the interests of [father and mother] have been appropriately considered.

¶ 11 Employing the standard from M.J.K., the court found that the environment the couple provided did not endanger the boy or impair his emotional development. The court added that changing this environment, as requested by father and mother, would not be in the boy's best interests, and that such a change would not provide him with any advantages that would outweigh the harm that the change was likely to cause.

¶ 12 The court decided that the couple should be the boy's primary residential custodians and that they should exercise sole decision-making authority concerning him. The court recognized that father, mother, and the couple had been sharing parenting time. But because father and mother lived in Denver and the couple lived in Penrose, “the current residences ... make [ ] that schedule impossible.” As a result, the court ordered that the boy would live with the couple during the week and live with father and mother on alternate weekends.

¶ 13 Only father appeals this order.

II. Analysis

¶ 14 Father contends that the trial court applied the wrong standard, which did not accord him the presumption that he is a fit parent acting in the best interests of the boy. We agree because the holding in the division's opinion upon which the court based its decision to apply that standard, M.J.K., was recently rejected by our supreme court in In re D.I.S., 249 P.3d 775, 781–82 (Colo.2011). As a result, we vacate the court's order awarding sole decision-making responsibility, primary residential caretaking, and majority parenting time to the couple. We remand for the court to conduct further proceedings consistent with the guidance we provide below.

A. Standard of Review

¶ 15 Allocating parental responsibilities is a matter within the sound discretion of the trial court, In re Marriage of McSoud, 131 P.3d 1208, 1214 (Colo.App.2006), and when there is record support for the trial court's findings, its resolution of conflicting evidence is binding on review. In re Marriage of Hatton, 160 P.3d 326, 335 (Colo.App.2007). However, whether a court has applied the correct legal standard presents a question of law that we review de novo. In re Parental Responsibilities of A.M., 251 P.3d 1119, 1121 (Colo.App.2010).

B. Pertinent Legal Principles

1. Modification Statutes

¶ 16 This appeal requires us to apply statutes governing modifications of orders allocating decision-making responsibility and parenting time.

¶ 17 Section 14–10–131 establishes the standard that a court must employ when modifying orders concerning decision-making responsibility. Under this statute, a court may not modify an order allocating decision-making responsibility unless (1) the court is presented with facts that arose after the order was entered or were unknown at that time; (2) these facts show that there have been changes to the circumstances of the child or of the person who has been allocated the authority to make decisions about the child; and (3) it is necessary to modify the order to serve the child's best interests. § 14–10–131(2), C.R.S.2011.

¶ 18 This statute also states that, in applying this standard, there is a presumption that the prior order allocating decision-making responsibility will remain in effect unless, as pertinent here, maintaining the status quo would endanger the child's physical health or significantly impair his emotional development, and any advantages that would result from making the change would outweigh the harm caused by the change. § 14–10–131(2)(c), C.R.S.2011; see In re Marriage of Newell, 192 P.3d 529, 534 (Colo.App. 2008) (applying statute).

¶ 19 Section 14–10–129 provides the standard that a court must use when modifying an order granting parenting time rights. A court may not modify an existing order in a manner that substantially alters parenting time and changes the person with whom the child primarily resides unless circumstances have...