In re R.A., Jr., 04CA0503.

• Citation: 121 P.3d 295
• Decision Date: 03 October 2005
• Docket Number: No. 04CA0503.,04CA0503.
• Parties: In the Matter of the Petition of R.A., Jr. and T.A., Petitioners-Appellants, for the Adoption of C.A., a Child, and Concerning N.F. and A.F., Respondents-Appellees.
• Court: Supreme Court of Colorado

121 P.3d 295

In the Matter of the Petition of R.A., Jr. and T.A., Petitioners-Appellants,

for the Adoption of C.A., a Child, and Concerning N.F. and A.F., Respondents-Appellees.

No. 04CA0503.

Colorado Court of Appeals, Div. III.

April 7, 2005.

Rehearing Denied June 23, 2005.

Certiorari Granted October 3, 2005.

Beltz & West, P.C., W. Thomas Beltz, Colorado Springs, Colorado, for Petitioners-Appellants.

Kenton D. Kinnaird & Associates, P.C., Kenton D. Kinnaird, Colorado Springs, Colorado, for Respondents-Appellees.

DAILEY, J.

In this post-adoption proceeding, R.A., Jr. and T.A. (parents), the adoptive parents of C.A., appeal from an order reinstating visitation rights to N.F. and A.F., the child's paternal grandparents. We vacate the order.

The child was born in May 1992. His father died just before he turned two, and his mother died just before he turned five. He and his mother had come to Colorado in 1996 to live with his maternal uncle and aunt, R.A and T.A. Following mother's death in 1997, R.A. and T.A. were appointed as his guardians. In 1999, R.A. and T.A. filed a petition to adopt the child, and the child's paternal grandparents, who live in Nevada, filed a conditional objection to the adoption and a request for visitation.

In October 2000, after an evidentiary hearing, the magistrate granted the petition for adoption. The magistrate also found that visitation with the grandparents was in the child's best interests and that, although R.A. and T.A. had acted in good faith concerning requests by the grandparents for visitation, they had not "fully recognized the child's need for separate attention related to his parental heritage." Concluding that it would be in the child's best interests to establish a specific visitation schedule to avoid future conflicts between the parties, the magistrate included a visitation schedule in the adoption decree.

Neither party requested a review of the adoption decree. However, parents moved for a declaratory judgment as to the constitutionality of § 19-1-117, C.R.S.2004, the grandparent visitation statute, both on its face and as applied to them. The district court upheld the facial constitutionality of the statute, but did not address parents' "as applied" constitutional challenge. Parents appealed, and a division of this court upheld the facial constitutionality of the statute but remanded for further proceedings on the "as applied" challenge. See In re Petition of R.A., 66 P.3d 146, 149-51 (Colo.App.2002). The division instructed the district court to determine on remand whether the magistrate had given "special significance" to the parents' wishes, as required under In re Custody of C.M., 74 P.3d 342 (Colo.App.2002). See In re Petition of R.A., supra, 66 P.3d at 151.

Unable to determine from the record whether the magistrate had given "special significance" to parents' wishes, the district court vacated the visitation portion of the decree and remanded the matter to the magistrate for further proceedings. After conducting a supplemental evidentiary hearing, the magistrate stated that he had initially given, and was still giving, special significance to parents' wishes; nonetheless, he reinstated the visitation order, based on his conclusion that it was in the best interests of the child to do so.

The district court adopted the magistrate's order.

I.

Initially, we reject parents' contention that the district court erred in remanding the matter to the magistrate to conduct further proceedings.

A division of this court had remanded the case for further proceedings, instructing the district court, in the first instance, to determine whether the magistrate had given special significance to parents' wishes regarding visitation. Further, the division directed that:

If, on remand, the district court determines that the magistrate gave no special significance to [parents'] wishes, or it cannot discern whether the magistrate did so, it shall vacate that portion of the decree granting visitation and shall remand to the magistrate for further proceedings. If it determines that the magistrate did so, the judgment shall stand affirmed.

In re Petition of R.A., supra, 66 P.3d at 151.

Here, when the district court could not determine whether the magistrate had given special significance to parents' wishes, it had no option but to remand the matter to the magistrate for further proceedings. See Powell v. Hart, 854 P.2d 1266, 1267 (Colo.1993) (trial court must comply with mandate of appellate court); Colo. State Bd. of Med. Exam'rs v. McCroskey, 940 P.2d 1044, 1046 (Colo.App.1996) (trial court must comply with specific directions of an appellate court mandate on remand).

Parents' reliance on § 19-1-108(3)(a), C.R.S.2004, is misplaced. Under § 19-1-108(3)(a), each party in a juvenile matter has the right to a hearing before a judge in the first instance, but if that right is waived, the party is bound by the findings and recommendations of the magistrate, subject to a request for review by the court.

Here, the visitation issue was originally submitted to and decided by the magistrate without objection by either party. Parents appealed not the visitation provisions of the adoption decree, but rather the denial of a subsequent motion seeking declaratory relief with respect to those provisions. In light of this procedural history, parents were in no position to argue that on remand the district court, rather than the magistrate, had to decide issues integrally related to those originally decided by the magistrate.

II.

Parents also contend that the magistrate did not give "special significance" to their wishes when granting grandparent visitation. We agree.

A.

We are not persuaded by grandparents' assertion that adoptive parents' wishes are not entitled to as much weight as those of natural parents.

In the prior appeal, the division found that, for equal protection purposes, adoptive and biological parents were not similarly situated for purposes of determining the threshold circumstances under which grandparents could be permitted to seek court-enforced visitation rights. See In re Petition of R.A., supra, 66 P.3d at 150-51. However, nothing in that opinion indicated that the wishes of adoptive parents should be given less weight than those of biological parents in determining the merits of the visitation request. If anything, the division's remand order necessarily implies that the wishes of adoptive parents, like those of biological parents, are to be given "special significance."

Further, adoption is a creature of statute; therefore, it is within the power of the General Assembly to define and regulate. See In re Petition of R.A., supra, 66 P.3d at 149.

Under § 19-5-211(1), C.R.S.2004, an adopted child is, "to all intents and purposes, the child of the [adoptive parents]" and is "entitled to all the rights and privileges and be subject to all the obligations of a child born in lawful wedlock to the [adoptive parents]." Colorado courts have long recognized that the intent underlying the adoption statute is to place an adopted child in the same position as a natural child. In re Marriage of Ashlock, 629 P.2d 1108, 1109 (Colo.App.1981); see also People v. Estate of Murphy, 29 Colo.App. 195, 197, 481 P.2d 420, 421 (1971) (adopted child is placed "in the same legal status as a lineal descendant of the adopting parents"). Correspondingly, the intent of the statute is to bestow upon adoptive parents all the rights and duties of natural parents. See In re Adoption of T.K.J., 931 P.2d 488, 492 (Colo.App.1996).

Because we discern no statutory basis for differentiating between the rights of natural and adoptive parents in this area, we conclude that, in a dispute over grandparent visitation, the wishes of adoptive parents are entitled to the same consideration as those of natural parents.

B.

At common law, grandparents had no rights of visitation, and "a parent's obligation, if any, to facilitate a relationship between the child and the child's grandparents was a moral one only." Glidden v. Conley, 175 Vt. 111, 820 A.2d 197, 203 (2003).

In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court found an open-ended nonparent visitation statute unconstitutional as applied because it impermissibly infringed upon the long-established due process right of parents to make decisions concerning the care, custody, and control of their children. In the case, a four-member plurality of the Court recognized that, because of the traditional presumption that fit parents act in the best interests of their children, "at least some special weight" must be given to such parents' wishes regarding grandparent visitation. See Troxel v. Granville, supra, 530 U.S. at 70, 120 S.Ct. at 2062.

Subsequently, the division in In re Custody of C.M., supra, 74 P.3d at 345, construed § 19-1-117 to require biological parents' decisions be given "special weight and significance" in determining whether to grant visitation rights to grandparents.

Neither the Supreme Court in Troxel nor the division in In re Custody of C.M., supra, however, elaborated on how to analyze or apply the "special weight" requirement.

Courts recognize that, in light of the rebuttable nature of the presumption to which it is linked, the "special weight" requirement does not insulate parental wishes from judicial review. See Fenn v. Sherriff, 109 Cal.App.4th 1466, 1 Cal.Rptr.3d 185, 195 & n. 4 (2003) ("Giving the parent's determination `special weight' is different than insulating the parent's determination from any court intervention whatsoever."); Deem v. Lobato, 136 N.M. 266, 96 P.3d 1186, 1190 (Ct.App.2004) (while Troxel "require[s] courts to give special consideration to the wishes of parents," it does not give "parents the ultimate veto on visitation in every instance").

However, courts have not applied the "special weight" requirement uniformly. Some courts hold that it...