In re Reese

• Decision Date: 04 February 2010
• Docket Number: No. 08CA2428.,08CA2428.
• Citation: 227 P.3d 900
• Parties: In re the Parental Responsibilities of Randy REESE and Candice Reese, Petitioners-Appellees, and Adriana Henderson, Respondent-Appellant, and Concerning E.B.H., a Child.
• Court: Colorado Court of Appeals

227 P.3d 900

In re the Parental Responsibilities of Randy REESE and Candice Reese, Petitioners-Appellees, and Adriana Henderson, Respondent-Appellant, and Concerning E.B.H., a Child.

No. 08CA2428.

Colorado Court of Appeals, Div. II.

February 4, 2010.

Covington Law Firm, P.C., Lisa M. Covington, Denver, Colorado, for Petitioners-Appellees.

The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Respondent-Appellant.

Opinion by Judge CARPARELLI.

Adriana Henderson is the adoptive mother of E.B.H. She appeals from the order awarding sole decision-making authority and majority parenting time to Randy Reese and Candice Reese (petitioners). We vacate the order and remand for factual findings based on clear and convincing evidence.

I. Background

Mother began caring for E.B.H., who is the biological child of her husband's cousin, soon after the child was born in 2004. The petitioners, who attended the same church as mother, offered to assist her in caring for the child. After mother agreed, the petitioners began to care for the child and their care gradually increased until early 2005 when, according to the petitioners, the child was living full-time with them and had only minimal contact with mother. Nonetheless, mother adopted the child in July 2005.

For the next three years, mother did not object to the petitioners' care of the child, including taking her out of Colorado for vacations. In December 2007, a dispute arose between the parties involving mother's request to have the child for a week at Christmas, and mother reported that the child had been kidnapped. A police officer went to the petitioners' home and saw that the child was living with them. No charges were brought as a result of the incident. However, the petitioners then filed a petition for allocation of parental responsibilities pursuant to section 14-10-123, C.R.S.2009.

The trial court appointed a child and family investigator (CFI) who conducted an investigation and recommended that the petitioners have primary parental responsibilities. After addressing the parenting time considerations provided in section 14-10-124(1.5), C.R.S.2009, and concluding that the record supported the CFI's findings regarding the allocation of decision-making responsibility, the court found it was in the child's best interest to grant the petitioners sole decision-making responsibility and nearly all parenting time. The court granted mother parenting time of one weekday per week and every other Saturday, additional holiday time, and no overnight time.

II. Protection of Mother's Constitutional Right to Parent Her Child

Mother argues that the trial court did not give special weight to her determination of the child's best interests, and, in so doing, violated her constitutional rights as a parent. We conclude that mother was entitled to a presumption that, as a fit parent, she would act in the best interests of the child, and that this presumption could be rebutted only by findings based on clear and convincing evidence that the grant of decision-making responsibility and parenting time to the petitioners is in the child's best interests. Because the trial court did not apply this standard of proof, we conclude that it erred. In so holding, we reject the petitioners' contention that, in accordance with In Interest of E.L.M.C., 100 P.3d 546 (Colo.App.2004), the court's finding that they were psychological parents was sufficient to protect mother's rights. We also reject mother's contention that, in accordance with In re Marriage of Ciesluk, 113 P.3d 135, 145 (Colo.2005), the petitioners were required to show that she was unfit or that her determination of the child's best interests would result in substantial or significant harm to the child.

A. Standard of Review

Although the allocation of parental responsibilities is generally within the sound discretion of the trial court, an appellate court reviews the legal standard applied by the court de novo. See In re Marriage of McSoud, 131 P.3d 1208, 1214 (Colo.App. 2006).

B. Section 14-10-123

Section 14-10-123 permits a non-parent to petition for allocation of parental responsibilities when, among other circumstances, the child is not in the physical custody of a parent, or the petitioner has had physical care of the child for a period of six months or more and the petition is filed within six months after that care terminated. § 14-10-123(1)(b)(c), C.R.S.2009. "This statutory grant of standing to a non-parent to seek legal custody of a child constitutes legislative recognition of the importance of `psychological parenting' to the best interests of a child." In re V.R.P.F., 939 P.2d 512, 514 (Colo.App.1997).

When a non-parent has standing under section 14-10-123, the court has statutory authority to allocate parental responsibilities based on the best interests of the child in accordance with section 14-10-124, C.R.S. 2009. See In re Custody of C.C.R.S., 892 P.2d 246, 251 (Colo.1995). Pursuant to section 14-10-124(1.5), a court allocates parental responsibilities "in accordance with the best interests of the child giving paramount consideration to the physical, mental, and emotional conditions and needs of the child," and considering all relevant factors, including those listed in subsections (1.5)(a) and (b).

C. Parental Determinations Accorded Special Weight

The Supreme Court has consistently held that the "Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); accord Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

In Troxel, the state statute gave any person standing to seek visitation rights at any time and gave courts authority to grant such rights whenever they concluded that such visitation might serve the best interests of the child. The Supreme Court ruled that, as applied by the trial court, the statute violated the Due Process Clause because it placed no limits on either the persons who could petition for visitation or the circumstances in which such a petition could be granted. Troxel, 530 U.S. at 72-73, 120 S.Ct. 2054. The Court noted that the trial court's order granting the grandparents visitation "was not founded on any special factors that might justify the State's interference with the mother's fundamental right to make decisions concerning the rearing of her two daughters." Id. at 68, 120 S.Ct. 2054. The Court also concluded that the trial court not only gave no "special weight" to the mother's determination of her daughters' best interests, but also appeared to have presumed the grandparents' request should be granted unless the children would be adversely affected. The Court held that, in so doing, the trial court had placed on the fit mother the burden of proving that visitation would not be in the best interests of her daughters. Id. at 69, 120 S.Ct. 2054. This, the Court said, "directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child." Id.

D. Clear and Convincing Proof Required to Overcome Presumption Favoring a Parent's Determination

Neither section 14-10-123 nor the decision in Troxel states how the presumption affects the proof process or how courts must accord special weight to it.

In Adoption of C.A., the Colorado Supreme Court addressed the Troxel "special factors" and "special weight" requirements. In re Adoption of C.A., 137 P.3d 318, 324, 327 (Colo.2006). Although the court did so in the context of grandparent visitation under section 19-1-117, C.R.S.2009, which is not at issue here, we conclude that the court's rulings are equally applicable in the context of non-parent petitions under section 14-10-123.

In C.A., the child's grandparents sought visitation under section 19-1-117. Although that statute does not enumerate special factors courts must consider, the supreme court stated that "many if not all of the factors contained in section 14-10-124(1.5)(a)(I)-(XI), C.R.S. 2009, may also be relevant for the court's consideration when considering a grandparent visitation petition." C.A., 137 P.3d at 324. In addition, the court held that findings of fact and conclusions of law identifying the special factors justifying the order and evidence supporting those findings satisfy the Troxel "special factors" requirement. Id. at 327.

The supreme court also addressed the Troxel "special weight" requirement and concluded that employing a clear and convincing standard in such proceedings would accord due process to parents, just as it does in the context of termination of parental rights. Id. Accordingly, the court construed section 19-1-117 "to contain a presumption that parental determinations about grandparent visitation are in the child's best interests." Id. However, the court also ruled that this presumption may be rebutted by proof by clear and convincing evidence that the parent is unfit or that the parent's visitation determination is not in the best interests of the child.

The court held that application of this standard ensures that trial courts "will adequately give the `special weight' required by Troxel to parental determinations." Id. at 328.

Accordingly, based on C.A., we conclude that when a non-parent seeks an allocation of parental responsibilities contrary to the wishes of a parent, the court may not allocate parental responsibilities to the non-parent unless it complies with the Troxel requirement to accord "special weight" to the parent's determination of the best interests of the child. We further conclude that, to do so, the court must consider all relevant factors including those listed in section 14-10-124(1.5)(a) and (b). In addition, the court may allocate parental responsibilities to the...