In re the Parental Responsibilities of A.M.

• Decision Date: 16 September 2010
• Docket Number: No. 09CA1430.,09CA1430.
• Citation: 251 P.3d 1119
• Parties: In re the Parental Responsibilities of A.M., a Child,andConcerning Jessica L. Burton, n/k/a Jessica L. Goebel, and Lawrence Goebel, Petitioners–Appellees,andRoger Medina and Antonia Medina, Respondents–Appellants.
• Court: Colorado Court of Appeals

251 P.3d 1119

In re the Parental Responsibilities of A.M., a Child,andConcerning Jessica L. Burton, n/k/a Jessica L. Goebel, and Lawrence Goebel, Petitioners–Appellees,andRoger Medina and Antonia Medina, Respondents–Appellants.

No. 09CA1430.

Colorado Court of Appeals, Div. II.

Sept. 16, 2010.

The Marrison Law Firm, M. Patricia Marrison, Robert L. Hunt, John H. Bohlen, Lauren M. Hulse, Colorado Springs, Colorado, for Petitioners–Appellees.Beltz & West, P.C., Daniel A. West, W. Thomas Beltz, Colorado Springs, Colorado, for Respondents–Appellants.Opinion by Judge CASEBOLT.

In this parental responsibilities and support action concerning A.M., respondents, Roger and Antonia Medina, the child's paternal biological grandparents, appeal the trial court's order in favor of petitioners, Jessica L. Goebel and Lawrence Goebel, A.M.'s mother and adoptive father, terminating grandparent visitation. We affirm.

I. Background

In 2005, the trial court entered an allocation of parental responsibility order awarding mother sole residential and decision-making responsibility over A.M., who was born in 1999. The court declined to award parenting time to A.M.'s biological father, who was then incarcerated. As part of its order, the court recognized and commended mother for taking A.M. to visit his grandparents and for encouraging the establishment of a bond between them.

In May 2008, asserting that mother had denied them the regular weekend visitation they had formerly enjoyed with A.M., grandparents moved for an order allowing grandparent visitation under section 19–1–117, C.R.S.2010. In September 2008, the trial court granted the motion and awarded grandparents visitation with A.M. one weekend per month during the day.

In February 2009, mother moved to terminate grandparent visitation. As grounds, she asserted that the parental rights of A.M.'s biological father had been terminated, that her husband had adopted A.M. on February 13, 2009, and that she and her husband believed that termination of further contact with the grandparents would be in A.M.'s best interests. Following an evidentiary hearing, the trial court added the adoptive father as a petitioner and granted the motion.

The court relied upon In re Adoption of C.A., 137 P.3d 318 (Colo.2006), and concluded that, for orders concerning grandparent visitation under section 19–1–117, a presumption must be applied in favor of the parent's decision concerning grandparent visitation, which could be rebutted by grandparents only through clear and convincing evidence that the parent's visitation decision was not in the child's best interests and, conversely, that the visitation they sought was in the child's best interests. The court determined that grandparents had not met their burden to prove by clear and convincing evidence either that mother and adoptive father's decision to terminate their visitation was not in A.M.'s best interests, or that a continuation of grandparent visitation would be in his best interests.

The court found that A.M. liked to visit with his grandparents, but determined that decisions regarding A.M. should be made by his parents, not his grandparents, and that at his age, it was particularly important for his parents to shield him from any negative influences present at the grandparents' home. The court considered evidence of A.M.'s special needs and disability and concluded that he had difficulty managing the noise and tension present in the grandparents' home, where the paternal uncle also resided with his girlfriend and her children.

The court also specifically relied on the testimony of A.M.'s therapist that he had described to her certain incidents suggestive of drug use or drug activity in the grandparents' home, and that A.M. had not been coached to say so. It further credited mother's testimony that, when she lived in the grandparents' home during her pregnancy with A.M. and the first few months after his birth, she had witnessed drug use by the family, including grandmother, and that, at that time, the child's biological father and uncle were in a gang, an affiliation the grandparents appeared to tolerate.

Finally, the court observed that the grandparents' testimony indicated a refusal to acknowledge any role in or contribution to their son's incarceration, and it was concerned about grandmother's position that it was permissible for her to smoke cigarettes with mother when mother was a pregnant fifteen-year-old based on the justification that no one had any control over mother at that time.

II. Proper Legal Standard

Grandparents first contend that the trial court erred by applying an incorrect legal standard to mother's and adoptive father's termination motion. They argue that the clear and convincing standard announced in In re Adoption of C.A., and used by the trial court here, applies exclusively to original determinations of a grandparent visitation request. They contend that, because in the September 2008 order, the court had already “found justification for inserting itself into the private realm” of the parents' decision regarding grandparent visitation, the C.A. standard is no longer applicable and that the parents' request to terminate or modify the visitation requires the parents to prove, by a preponderance of the evidence, that such termination or modification is in the best interests of the child. Accordingly, they further assert that the trial court improperly placed the burden of proof on them, rather than on mother and adoptive father as the movants. We conclude that the trial court correctly required clear and convincing evidence and properly allocated the burden of proof to grandparents.

A. Standard of Review

Whether a court has applied the correct legal standard to a case presents a question of law that we review de novo. Freedom Colo. Info. Inc. v. El Paso County Sheriff's Dep't, 196 P.3d 892, 897 (Colo.2008); People in Interest of J.R.T., 55 P.3d 217, 219 (Colo.App.2002), aff'd sub nom. People v. Martinez, 70 P.3d 474 (Colo.2003).

B. Applicable Law

Pursuant to section 19–1–117(4), C.R.S.2010, the court may modify or terminate grandparent visitation rights “whenever such order would serve the best interests of the child.” The issue of the proper burden of proof and the party bearing it when the parent seeks to change or stop visitation previously granted to a grandparent under section 19–1–117 presents an issue of first impression.

In In re Adoption of C.A., the supreme court construed the grandparent visitation statute in light of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), to determine the manner in which the statute should be interpreted and applied to ensure that parental determinations receive the “special weight” required to satisfy due process. It noted the Supreme Court's reiteration in Troxel of the long-accepted principles recognizing fit parents' fundamental right to the care, custody, and control of their children and the presumption that must be accorded to fit parents that they act in the best interests of their children. C.A., 137 P.3d at 324–25. The court then noted the Troxel Court's conclusion that, because state intrusion into the private realm of the family to question a parent's child-based decisions is not ordinarily justified or tolerated, a court may not constitutionally override a fit parent's decisions without giving those decisions special weight and identifying special factors that might warrant the interference. Id.

The court determined that the Troxel requirement of special weight could be implemented in the context of grandparent visitation proceedings through the adoption of the clear and convincing evidence standard. Id. at 327. It then instructed that the grandparent must initially rebut the presumption that the parental determination is in the child's best interests and that, once the grandparent meets that burden through clear and convincing evidence, the burden shifts to the parent to adduce evidence in support of his or her decision. Id. at 327–28. However, the court clarified that the grandparent must bear the ultimate burden of proof by showing, again through clear and convincing evidence, that the child's best interests will be served only by the visitation the grandparent seeks.

The clear and convincing standard applied to initial requests for grandparent visitation also applies when a nonparent requests an allocation of parental responsibility under section 14–10–123, C.R.S.2010. See In re Parental Responsibilities of Reese, 227 P.3d 900, 901 (Colo.App.2010) (concluding that the parental presumption that applied to mother as a fit parent could be rebutted only by findings based on clear and convincing evidence that the grant of decision-making responsibility and parenting time to third-party petitioners was in the child's best interests).

C. Analysis

In urging that the preponderance of the evidence standard is the correct legal standard to use in proceedings to modify grandparent visitation, grandparents analogize to parental responsibility modifications under sections 14–10–129 and 14–10–131, C.R.S.2010, and rely on In re Parental Responsibilities of M.J.K., 200 P.3d 1106 (Colo.App.2008). We conclude that their reliance is misplaced.

In M.J.K., the mother sought to terminate the maternal grandmother's guardianships of her older children and to modify the grandmother's parental responsibilities for her younger children. The maternal grandmother had previously been awarded sole decision-making responsibility and primary care of the younger children. The division in M.J.K. determined that the application of the settled statutory standards for terminating guardianships and modifying allocations of parental responsibility, which placed the burden of proof by a preponderance of the evidence on the mother as movant, did not violate her constitutional rights. M.J.K., 200 P.3d at 1112–13. The division declined to extend the parental...