In the Matter of Minor Child D.I.S.Alan Sidman v. Sidman, No. 09SC483.

Docket NºNo. 09SC483.
Citation249 P.3d 775
Case DateApril 11, 2011
CourtSupreme Court of Colorado

249 P.3d 775

In the Matter of Minor Child D.I.S.Alan Sidman and Sheryl Sidman, Petitioners
v.
Michael Sidman and Renee Sidman, Respondents.

No. 09SC483.

Supreme Court of Colorado, En Banc.

March 21, 2011.Rehearing Denied April 11, 2011.*


[249 P.3d 776]

Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, Attorneys for Petitioners.Leo L. Finkelstein, Colorado Springs, Colorado, Attorney for Respondents.Donna Furth, San Francisco, California, National Association of Counsel for Children, Maureen Farrell–Stevenson, Aurora, Colorado, Attorneys for Amicus Curiae National Association of Counsel for Children.Office of the Child's Representative, Sheri Danz, Denver, Colorado, Attorneys for Amicus Curiae Colorado Office of the Child's Representative.Rocky Mountain Children's Law Center, Jeff Koy, Elizabeth Fordyce, Denver, Colorado, Attorneys for Amicus Curiae Rocky Mountain Children's Law Center.Litvak, Litvak, Merhtens and Epstein, P.C., Timothy R.J. Merhtens, Denver, Colorado, Attorneys for Amicus Curiae American Academy of Matrimonial Lawyers, Colorado Chapter.Justice HOBBS delivered the Opinion of the Court.

Reviewing an unpublished opinion of the court of appeals, we address whether, in seeking to terminate a guardianship established by parental consent, fit parents may invoke the constitutional presumption that they make custodial decisions in the best interests of their child.1 The United States Supreme Court enunciated this presumption in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)(plurality opinion),2 which we have implemented in In re Adoption of C.A., 137 P.3d 318 (Colo.2006), and in In re B.J., 242 P.3d 1128 (Colo.2010).

Parents in this case entered into a guardianship relationship with non-parent relatives under section 15–14–204(2)(a), C.R.S. (2010), so that mother could address significant health issues affecting their ability to care for the child. After mother successfully resolved her health issues, parents petitioned for termination of the guardianship.

The non-parent guardians opposed termination of the guardianship. The trial court and court of appeals ruled that, by consenting to the guardianship, parents implicitly lost the constitutional presumption that they make care, custody and control decisions in the best interests of their child, and could not invoke this presumption in seeking to terminate the guardianship. Analyzing our statutes and cases concerning custody and consensual guardianships, we disagree.

We hold that, in a guardianship established through parental consent under section 15–14–204(2)(a), parents delegate the day-to-day care, custody, and control of their child to the guardians as provided through the court's guardianship order. Parents may not interfere with the guardian's day-to-day decision-making, except in accordance with limitations contained in the order. Just as the fit parents' decision to consent to a guardianship is presumed to be in the best interests of the child, so too their decision to seek termination of the guardianship and regain care, custody, and control of the child is presumed to be in the best interests of the child, unless the guardianship order contains an express provision limiting the parents from asserting this presumption. In the absence of such a limitation in the guardianship order, as here, when fit parents seek to terminate the guardianship, guardians bear the burden of demonstrating by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child. Accordingly, we reverse the judgment of the court of appeals.

[249 P.3d 777]

I.

D.I.S. was born to Alan and Sheryl Sidman (“father” and “mother,” or collectively, “the parents”) in Massachusetts in 1999. Soon after his birth, mother developed severe post-partum depression that prohibited her from providing care for the child. While father attempted to care for both mother and D.I.S., the situation became untenable. At nine months of age, the parents placed D.I.S. with his paternal grandparents, who also lived in Massachusetts. For the next ten months father visited his child on a weekly basis. However, based on the grandparents' age and health issues, the parents decided to place D.I.S. in the care of the child's paternal aunt and uncle, Michael and Renee Sidman of Colorado Springs (“the guardians”).

In May of 2001 father flew to Colorado with D.I.S. and placed him in the home of the guardians. D.I.S. was nineteen months old. Prior to relocating their child to Colorado, the parents delegated to these relatives the power to perform “any and all acts necessary for medical, educational, residential, or other care” of D.I.S., pursuant to a signed power of attorney. § 15–10–104, C.R.S. (2010). In addition, father signed a letter addressed to the guardians detailing the reasons for placing his child in their care, with the understanding that the guardians would “support [father's] efforts to visit with and be in [D.I.S.'s] life and ultimately be reunited with D.I.S. in [the parents'] home.”

Seven months after D.I.S.'s arrival in Colorado, the guardians obtained the services of legal counsel and petitioned the El Paso County District Court for guardianship of D.I.S., asserting this would allow them to travel out of state with D.I.S., provide him with medical insurance, and make emergency medical decisions on his behalf. While reluctant to agree, the parents signed consents to the guardianship, inserting the word “temporary” in the language granting their consent. The parents also provided an addendum explaining their preference to extend the power of attorney rather than enter into a guardianship, and that their consent to the guardianship rested on assuming that the guardianship, based as it was on a joint agreement with their relatives, would support ultimate reunification of D.I.S. with the parents.

At the guardianship hearing in January 2002, father appeared by phone without counsel. The magistrate engaged in a colloquy with father regarding the consent forms both parents had executed, pointing out that these forms “specify a consent to temporary guardianship.” The magistrate then said that Colorado's guardianship statutes utilize “temporary” as “a term of art” limited to six months as opposed to indefinite-in-duration “permanent guardianships.” Father indicated he understood this guardianship would likely have to be longer than six months but its object would be reunification of the parents with their son. The magistrate assured father he could request termination of the guardianship if the parents' situation changed and, if the parents were to withdraw their consent, the “guardianship will cease to exist.” The magistrate's written order establishing the guardianship did not contain such a limitation on the guardianship; rather, the order recites that the parents knowingly and voluntarily entered into an “unlimited” guardianship with the guardians subject to a duty “to contact and consult with [the father] for major decisions.”

In late November 2002, mother's post-partum depression appeared to be improving and the parents discussed with the guardians their desire to reunite with their child. However, reunification discussions halted in July 2003, when mother had a psychological breakdown. On the day of the breakdown, mother became paranoid that the guardians had planted a bomb in the car she and father were driving, and ultimately commandeered another person's vehicle, leading police on a high speed chase. After apprehension by the authorities, mother was hospitalized for approximately four to six weeks and diagnosed with bi-polar disorder. All criminal charges were dismissed based on her inability to form criminal intent.

After her psychological breakdown and discharge from the hospital, mother sought treatment from a psychiatrist. Due to consistent therapy and appropriate medication to treat her bipolar disorder, mother has been stable for over seven years.

[249 P.3d 778]

In April of 2004, the parents again initiated reunification discussions with the guardians. At this point, more than half of D.I.S.'s life had been spent in Colorado Springs, and he perceived the guardians as parental figures. Neither father nor mother had visited D.I.S. with regularity; mother's first visit occurred in June of 2004, over three years after the guardians assumed care of D.I.S. Father's visits were more consistent, occurring approximately two to three times per year, but his attempts to procure medical attention for his wife made traveling across the country difficult. The guardians viewed the parents' inconsistent visitation with D.I.S. as a lack of commitment to their son, a contention the parents vigorously dispute. Throughout the entirety of the guardianship, the parents have financed D.I.S.'s care.

Both parties retained experts, in Colorado Springs and Boston, to develop a reunification plan in late 2005 and early 2006, but the record shows no meeting of the minds as to what such a plan might entail. The parties and their experts labored under disparate understandings; the Colorado expert viewed reunification as a conditional goal, to proceed only if it were in the best interests of D.I.S., while the Boston expert believed reunification was an undisputed, mutual goal of the parties and that the parties were going to work on the most appropriate way to transition the child back to his parents.

Reunification discussions eventually collapsed due to a myriad of conflicting expectations. Despite reassurances from the parents, the guardians refused to travel to Massachusetts with D.I.S. to visit the parents and other members of the extended family, for fear that the parents would begin legal proceedings to prevent D.I.S. from returning to Colorado. In addition, the guardians did not allow D.I.S. to spend the night with his parents in their hotel room during their visits to Colorado Springs. While the parents hoped to...

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28 practice notes
  • In re Zakai F., SC 20234
    • United States
    • Supreme Court of Connecticut
    • July 22, 2020
    ...best interests can be accommodated through the guardian bearing the burden of proof by a preponderance of the evidence." In re D.I.S., 249 P.3d 775, 786 (Colo. 2011); see also In re Guardianship of David C., 10 A.3d 684, 686 (Me. 2010) ("although a parent seeking to terminate a guardianship......
  • Troesken v. Herrington (In re S.H.), No. CV–14–475
    • United States
    • Supreme Court of Arkansas
    • February 26, 2015
    ...approaches to the burden the guardian carries when a fit parent brings a petition to terminate the guardianship. Compare In re D.I.S., 249 P.3d 775, 786 (Colo. 2011) (preponderance of the evidence) with In re Guardianship of Reena D., 163 N.H. 107, 35 A.3d 509, 515 (N.H. 2011) (clear and co......
  • In re Zakai F., SC 20234
    • United States
    • Supreme Court of Connecticut
    • July 22, 2020
    ...best interests can be accommodated through the guardian bearing the burden of proof by a preponderance of the evidence." In re D.I.S ., 249 P.3d 775, 786 (Colo. 2011) ; see also 255 A.3d 800 In re Guardianship of David C. , 10 A.3d 684, 686 (Me. 2010) ("although a parent seeking to terminat......
  • Epler v. Graunitz, 04C33678
    • United States
    • Court of Appeals of Oregon
    • September 11, 2013
    ...to guardians who are able to provide the child a nicer home, a better school district, or more extracurricular activities.”In re D.I.S., 249 P.3d 775, 787 (Colo.2011). Although we are sympathetic to those concerns, we decline to preempt the legislature's role in addressing them by establish......
  • Request a trial to view additional results
28 cases
  • In re Zakai F., SC 20234
    • United States
    • Supreme Court of Connecticut
    • July 22, 2020
    ...best interests can be accommodated through the guardian bearing the burden of proof by a preponderance of the evidence." In re D.I.S., 249 P.3d 775, 786 (Colo. 2011); see also In re Guardianship of David C., 10 A.3d 684, 686 (Me. 2010) ("although a parent seeking to terminate a guardianship......
  • Troesken v. Herrington (In re S.H.), No. CV–14–475
    • United States
    • Supreme Court of Arkansas
    • February 26, 2015
    ...approaches to the burden the guardian carries when a fit parent brings a petition to terminate the guardianship. Compare In re D.I.S., 249 P.3d 775, 786 (Colo. 2011) (preponderance of the evidence) with In re Guardianship of Reena D., 163 N.H. 107, 35 A.3d 509, 515 (N.H. 2011) (clear and co......
  • In re Zakai F., SC 20234
    • United States
    • Supreme Court of Connecticut
    • July 22, 2020
    ...best interests can be accommodated through the guardian bearing the burden of proof by a preponderance of the evidence." In re D.I.S ., 249 P.3d 775, 786 (Colo. 2011) ; see also 255 A.3d 800 In re Guardianship of David C. , 10 A.3d 684, 686 (Me. 2010) ("although a parent seeking to terminat......
  • Epler v. Graunitz, 04C33678
    • United States
    • Court of Appeals of Oregon
    • September 11, 2013
    ...to guardians who are able to provide the child a nicer home, a better school district, or more extracurricular activities.”In re D.I.S., 249 P.3d 775, 787 (Colo.2011). Although we are sympathetic to those concerns, we decline to preempt the legislature's role in addressing them by establish......
  • Request a trial to view additional results

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