In re Petition of RA

• Decision Date: 26 September 2002
• Docket Number: No. 01CA1739.,01CA1739.
• Citation: 66 P.3d 146
• Parties: In the Matter of the PETITION OF R.A. and T.A., Petitioners-Appellants, For the Adoption of C.A., a child, and Concerning N.F. and A.F., Appellees, and The State of Colorado, Intervenor-Appellee.
• Court: Colorado Court of Appeals

66 P.3d 146

In the Matter of the PETITION OF R.A. and T.A., Petitioners-Appellants,

For the Adoption of C.A., a child,

and

Concerning N.F. and A.F., Appellees,

and

The State of Colorado, Intervenor-Appellee.

No. 01CA1739.

Colorado Court of Appeals, Div. I.

September 26, 2002.

Certiorari Denied April 14, 2003.

Beltz & West, W. Thomas Beltz, Daniel A. West, Colorado Springs, Colorado, for Petitioners-Appellants.

Alan L. Bugg & Associates, P.C., Alan L. Bugg, Colorado Springs, Colorado, for Appellees.

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

Opinion by Judge CASEBOLT.

In this adoption proceeding concerning the minor child, C.A., petitioners, R.A. and T.A., the child's adoptive parents, appeal a declaratory judgment entered in favor of N.F. and A.F., the child's paternal grandparents, upholding the constitutionality of the grandparent visitation statute, § 19-1-117, C.R.S. 2002. We affirm in part and remand for further proceedings.

The child's father died in 1994, and his mother died in 1997. Petitioners, his maternal aunt and uncle, were appointed as his guardians in 1997 pursuant to the mother's testamentary designation.

Following the guardianship designation, the parties stipulated to a visitation schedule for the grandparents. When petitioners commenced this adoption proceeding, the grandparents filed a conditional objection to the adoption and a request for visitation pursuant to § 19-1-117(1)(c), C.R.S.2002, asserting that they had helped raise the child and that he had spent a significant period in their home before his parents' deaths. They alleged that their relationship with the child was very close and that the adoption would not be in his best interests unless adequate provisions were made to ensure continuation of reasonable visitation.

Following an evidentiary hearing, the magistrate determined that the child's best interests would be served by adoption, and he entered a final decree to that effect. Also in the decree, the magistrate found that petitioners had acted in good faith concerning the grandparents' requests for visitation, but had failed to recognize the child's need for separate attention from the grandparents. The magistrate then set forth a specific visitation schedule for the grandparents. The magistrate noted that petitioners had challenged the constitutionality of § 19-1-117 both facially and as applied, but held that he lacked authority to address that issue.

Neither party directly appealed the magistrate's decree. However, petitioners subsequently filed a motion in the adoption proceeding for declaratory judgment and a request that the district court determine whether § 19-1-117 is constitutional, both facially and as applied. The state attorney general intervened for the limited purpose of addressing the challenge to § 19-1-117.

The district court upheld the facial constitutionality of the statute, but did not address its constitutionality as applied. This appeal followed.

I.

Petitioners first contend the district court erred in determining that, on its face, § 19-1-117 does not violate the due process guarantees of the federal and state constitutions. We disagree.

As pertinent here, § 19-1-117(1) permits a grandparent to seek a visitation order when there is or has been "a child custody case or a case concerning the allocation of parental responsibilities relating to that child." The statute defines such a case in three ways:

(a) That the marriage of the child's parents has been declared invalid or has been dissolved by a court or that a court has entered a decree of legal separation with regard to such marriage;

(b) That legal custody of or parental responsibilities with respect to the child have been given or allocated to a party other than the child's parent or that the child has been placed outside of and does not reside in the home of the child's parent, excluding any child who has been placed for adoption or whose adoption has been legally finalized; or

(c) That the child's parent, who is the child of the grandparent, has died.

A division of this court recently reviewed the constitutionality of § 19-1-117 in light of the Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The division declined to find § 19-1-117 facially unconstitutional. Instead, it read the statute as requiring courts to give special significance to the parent's decisions concerning grandparent visitation in the context of the best interests of the child. In re Custody of C.M., 2002 WL 31116773, ___ P.3d ___ (Colo.App. No. 00CA2313, Sept. 12, 2002).

The C.M. division noted that, unlike the Washington statute found unconstitutional in Troxel, § 19-1-117 employs the best interests standard, limits standing to grandparents, and permits a petition for visitation only if there is or has been a child custody case. Relying upon In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995), the division explained that the best interests standard must be applied with a presumption that the biological parent has the primary right to custody. The division concluded that, because § 19-1-117 is more narrowly drawn than the statute at issue in Troxel and can be construed to incorporate the presumption favoring custodial parents inherent in the best interests standard, it satisfies the constitutional requirements set forth by Troxel.

We agree with the finding of facial constitutionality in C.M. Although petitioners further argue that § 19-1-117 also deprives them of due process under the Colorado Constitution, they have identified no specific state constitutional requirements that differ from or are more exacting than those set forth in Troxel. Thus, we need not separately examine the facial constitutionality of § 19-1-117 under the Colorado Constitution. See In re Petition of M.G., 58 P.3d 1145 (Colo.App.2002).

Finally, petitioners suggest due process requires that parental unfitness be shown before the best interests analysis is undertaken. However, the supreme court has determined that due process does not impose such a requirement. See In re Custody of C.C.R.S., supra (in a custody dispute between biological and psychological parents, the best interests of the child are paramount).

Accordingly, we conclude that § 19-1-117 is constitutional on its face.

II.

Petitioners next assert that an irreconcilable conflict exists between § 19-1-117(1)(b) and (c). Essentially, they contend that under § 19-1-117(1)(b), grandparents may seek a visitation order when either legal custody of the child has been given to a party other than the child's parent or the child has been placed outside of and does not reside in the home of his parent. However, the ability to seek visitation under subsection (b) terminates when either the child is placed for adoption or an adoption of that child has been legally finalized, which petitioners contend has occurred here. In contrast to this termination provision, under § 19-1-117(1)(c) a grandparent may nevertheless seek visitation even after an adoption if a parent is deceased. We perceive no irreconcilable conflict.

First, we note that grandparents did not rely upon § 19-1-117(1)(b) in seeking visitation. Instead, they relied solely upon § 19-1-117(1)(c).

Second, the so-called "adoption exclusion" in § 19-1-117(1)(b) has been construed to apply only when a child becomes available for adoption because the natural parents' rights have been legally terminated. See People in Interest of N.S., 821 P.2d 931 (Colo.App.1991). Thus, § 19-1-117(1)(b) creates an interim statutory right in favor of grandparents to visit grandchildren until placement of the child for adoption or entry of a final decree of adoption. See also People in Interest of J.W.W., 936 P.2d 599 (Colo. App.1997).

Accordingly, the adoption exclusion of § 19-1-117(1)(b) is not applicable here, despite the adoption, because the biological parents' rights were not terminated in dependency and neglect, relinquishment, or similar proceedings; rather, their deaths provide the sole basis both for grandparents' request and for the adoption. Hence, we perceive no irreconcilable conflict between subsections (b) and (c). See also In re Marriage of Aragon, 764 P.2d 419 (Colo.App.1988)(grand-parents' visitation rights were derived from § 19-1-117(1)(a), because the parents' marriage had been dissolved and the child was adopted by his stepfather); cf. People in Interest of N.S., supra (distinguishing Aragon and applying adoption exclusion of § 19-1-117(1)(b) where parents' legal rights were terminated in dependency and neglect proceeding).

III.

Petitioners next contend the district court erred in determining that § 19-1-117 does not violate their right to equal protection. Again, we disagree.

Adoption is the act by which relations of maternity, paternity, and affiliation become legally recognized between persons not so related by birth. See Graham v. Francis, 83 Colo. 346, 265 P. 690 (1928).

Adoption is not recognized by the common law. Wright v. Wysowatcky, 147 Colo. 317, 363 P.2d 1046 (1961). It is a creature of statute and is governed by the provisions of § 19-5-200.2, et seq., C.R.S. 2002. See In re Petition of S.O., 795 P.2d 254 (Colo.1990). Therefore, it is within the power of the General Assembly to define and regulate adoption. See In re Adoption of T.K.J., 931 P.2d 488 (Colo.App.1996).

The equal protection guarantee of the United States Constitution requires like treatment of persons who are similarly situated. Rodriguez v. Schutt, 914 P.2d 921 (Colo.1996). When a statute is challenged as violating equal protection because it treats two groups differently, the threshold question is whether those two groups are similarly situated. If they are not similarly situated, the equal protection guarantee is not implicated. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo.1997).

A.

Petiti...