L.A.G. v. People in Interest of A.A.G., 95SC176

• Decision Date: 25 March 1996
• Docket Number: No. 95SC176,95SC176
• Parties: L.A.G., Petitioner, v. The PEOPLE of the State of Colorado, Upon the Petition of the Denver County Department of Social Services, Respondent, In the Interest of A.A.G., L.T.G., and V.N.G., Children, and Concerning A.G., Respondent.
• Court: Colorado Supreme Court

Page 1385

912 P.2d 1385

L.A.G., Petitioner, v. The PEOPLE of the State of Colorado, Upon the Petition of

the Denver County Department of Social Services, Respondent,

In the Interest of A.A.G., L.T.G., and V.N.G., Children,

and Concerning A.G., Respondent.

No. 95SC176.

Supreme Court of Colorado,

En Banc.

March 25, 1996.

Deborah Gans, Denver, for Petitioner.

No appearance by Respondents.

Justice KIRSHBAUM delivered the Opinion of the Court.

In People in the Interest of A.A.G., L.T.G., and V.N.G., 902 P.2d 437 (Colo.App.1995), the court of appeals affirmed an order of the Denver Juvenile Court in a dependency and neglect proceeding awarding joint custody of three minor children, A.A.G., L.T.G., and V.N.G., to the father, A.G., and to the mother, L.A.G. The juvenile court applied section 14-10-124(1) and (1.5), 6B C.R.S. (1987), of the Uniform Dissolution of Marriage Act (the Act) in rendering its decision. The court of appeals held that the juvenile court erred in applying the Act rather than the applicable provisions of the Children's Code, sections 19-1-101 to 19-6-106, 8B C.R.S. (1995 Supp.) (the Code), but affirmed the order of joint custody on the grounds that the legal standard applicable to the proceeding is identical to the standard applied by the juvenile court and because joint custody is a viable placement alternative under section 19-3-508(1)(a), 8B C.R.S. (1995 Supp.), of the Code. Having granted certiorari to review the propriety of the court of appeals' decision, we affirm in part, reverse in part, and remand the case to that court with directions to return the case to the juvenile court for further proceedings.

I

On February 16, 1990, the Denver Department of Social Services (the Department) filed a petition in dependency and neglect in the Denver Juvenile Court in the interest of A.A.G., L.T.G., and V.N.G. At that time, the children's parents, L.A.G. (the mother) and A.G. (the father), were parties to a dissolution of marriage proceeding in the Denver District Court.

The petition contained the following pertinent allegations respecting the requested relief:

(a) That their parent, guardian or legal custodian has abandoned them or subjected them to mistreatment or abuse, or has suffered or allowed another to mistreat or abuse the children without taking lawful means to stop such mistreatment or abuse and prevent it from recurring;

(b) That they lack proper parental care through the actions or omissions of the parent, guardian or legal custodian;

(c) That their environment is injurious to their welfare;

(d) That their parent, guardian or legal custodian fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for their health, guidance or well-being;

(e) That said children are homeless, without proper care or not domiciled with their parent, guardian or legal custodian through no fault of such parent, guardian or legal custodian.

(f) That said children have run away from home or are otherwise beyond the control of their parent, guardian or legal custodian.

The Department also alleged that L.T.G. had informed social workers and others that the father had sexually abused her, that a medical examination revealed that L.T.G. had "an enlarged vaginal opening with a tear," and that the father and mother were experiencing "severe marital stresses."

The mother waived her right to a jury trial and entered an admission that the children's environment was injurious to their welfare, asserting as a factual basis the allegations relating to sexual abuse and severe marital stresses. On March 15, 1990, based upon that admission, the juvenile court adjudicated the children dependent and neglected with respect to the mother.

The father denied the allegations that he had sexually abused L.T.G. and initially requested a jury trial. The Department subsequently filed an amended petition that incorporated all of the allegations contained in the initial petition and alleged additional, more detailed facts concerning the father's alleged sexual abuse of L.T.G. and the discord between the parents. The father continued to deny all allegations that he had sexually abused L.T.G., but ultimately entered an admission that the children's environment was injurious to their welfare, asserting as a factual basis the allegations relating to discord between the parents. On November 18, 1991, based upon this admission, the juvenile court adjudicated the children dependent and neglected with respect to the father.

On August 1, 1990, pursuant to section 19-1-104(4)(a), 8B C.R.S. (1995 Supp.), the district court entered an order in the dissolution of marriage proceeding directing the juvenile court to determine the issue of custody of the three minor children and to certify the results of that determination to the district court for incorporation into the permanent orders. The district court had previously entered an order granting temporary custody of the three children to the mother.

On January 31, 1992, the juvenile court adopted a treatment plan in the dependency and neglect proceeding with respect to the mother. The plan included provisions requiring supervised visits between the children and the father. The mother was twice found to be in contempt of court for failing to comply with the requirements for supervised visits between the children and the father. ¹

On October 5, 1992, the father filed a motion with the juvenile court seeking sole permanent custody of the children. A hearing on that motion was held on July 9, 1993. Prior to the hearing, the Department filed a report recommending that the mother retain custody of the three children. During the hearing, nine witnesses testified, including the father, the mother, one of the children, and two expert witnesses. Following the hearing, the Department withdrew its recommendation and declined to make any recommendation regarding custody. The court-appointed guardian ad litem recommended that the mother retain custody of the children.

On August 23, 1993, the juvenile court issued an order granting joint legal and physical custody of the three children to the father and the mother. In its order the juvenile court incorrectly referred to the father's motion for sole permanent custody as a motion for joint custody. Noting the district court's earlier order granting the mother temporary custody of the children, the juvenile court held that the provisions of section 14-10-124 of the Act governed the issue of permanent custody certified by the district court.

The juvenile court determined that the custody provisions of the Act are designed to "encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage" and to encourage parents to "share the rights and responsibilities of child-rearing...." The juvenile court then stated that allowing the mother to retain custody would not serve the goal of encouraging continued contact between the children and each parent because the mother did not encourage and may have discouraged visitation with the father and the development of a healthy relationship between the children and the father. ² The juvenile court found that the children's mental and physical health had deteriorated under the mother's care and that allegations of physical abuse of the children and sexual abuse of L.T.G. by the father were unsubstantiated. Furthermore, the juvenile court stated that the father had clearly demonstrated a willingness to cooperate in all aspects of the children's treatment and concluded that the father more likely than the mother would act in the best interests of the children and would encourage a healthy relationship between the children and the mother.

On appeal, the court of appeals affirmed the juvenile court's order. People in the Interest of A.A.G., L.T.G., and V.N.G., 902 P.2d 437 (Colo.App.1995). Although the court of appeals concluded that the juvenile court had erroneously failed to apply applicable provisions of the Code in determining the issue of custody, the court of appeals concluded that no reversible error occurred because the "best interests of the child" standard established by the Act is identical to the "best interests of the child" standard established by the Code and because joint custody is a viable placement alternative under section 19-3-508(1)(a) of the Code. People in Interest of A.A.G., 902 P.2d at 438-39.

II

The mother contends that the juvenile court erred in applying provisions of the Act rather than provisions of the Code. We agree with this argument, as did the court of appeals. However, we do not agree with the mother's implied argument that the court of appeals erred in failing to reverse the juvenile court's award of joint custody on this ground alone.

The court of appeals concluded that once an issue of child custody is certified to a juvenile court pursuant to section 19-1-104(4)(a), 8B C.R.S. (1995 Supp.), the juvenile court must determine the question of custody according to the provisions of the Code. We agree with that conclusion.

Dissolution of marriage proceedings in Colorado are governed by the Act. In determining issues of custody in the course of a dissolution of marriage proceeding, a district court must apply the provisions of section 14-10-124(1.5), 6B C.R.S. (1987), which statute provides as follows:

(1.5) The court shall determine custody in accordance with the best interests of the child. The court, upon the motion of either party or upon its own motion, may order joint or sole custody after making a finding that joint or sole custody would be advantageous to the child and in his best interests. In determining the best interests of the child, the court shall consider all relevant factors, including:

(a) The wishes of the child's parents as to his custody;

(b) The wishes of the child as to his custodian (c) The...