Olds v. Berry (In re B.B.O.)

• Decision Date: 29 May 2012
• Docket Number: No. 10SC623.,10SC623.
• Citation: 2012 CO 40,277 P.3d 818
• Parties: In the Interest of Child B.B.O. Virginia Olds, Petitioner. v. Gay Lakay Berry, Respondent.
• Court: Colorado Supreme Court

277 P.3d 818

2012 CO 40

In the Interest of Child B.B.O.Virginia Olds, Petitioner.

v.Gay Lakay Berry, Respondent.

No. 10SC623.

Supreme Court of Colorado, En Banc.

May 29, 2012.

Mile High Law Office, Katherine O. Ellis, Denver, Colorado, Attorneys for Petitioner.

James Wade Noland, Golden, Colorado, Attorneys for Respondent.

Hogan Lovells US, LLP, Michael C. Theis, Christopher O. Murray, Stephanie Villafuerte, Jeffrey C. Koy, Denver, Colorado, Attorneys for Amicus Curiae the Rocky Mountain Children's Law Center.

McGuane and Hogan, LLP, Brenda L. Storey, Denver, Colorado, Attorneys for Amicus Curiae the Family Law Section of the Colorado Bar Association.

Justice BOATRIGHT delivered the Opinion of the Court.

¶ 1 In this appeal, we review an unpublished opinion by the court of appeals reversing the trial court's allocation of primary parental responsibilities to the half-sister of a minor child on grounds that the sister lacked standing to petition for an allocation of parental responsibilities. The court of appeals construed sections 14–10–123(1)(b) and (1)(c), C.R.S. (2011), as requiring that, in order to establish standing to petition for an allocation of parental responsibilities, a nonparent must show that the child's parents voluntarily permitted the nonparent to assume responsibility for or share in the child's care. We construe the statute and hold that parental consent is not required for nonparent standing. We therefore reverse the judgment of the court of appeals and remand to the court of appeals for consideration of the remaining issues raised on appeal.

I. Factual and Procedural Background

¶ 2 This case involves the allocation of parental responsibilities (APR) of a minor child, B.B.O. B.B.O. is the biological child of Gay Lakay Berry (Berry) and Harry Lee Olds (Olds), and the half-sister of Virginia Olds (V.O.), Olds's adult child from a previous relationship. Berry and Olds divorced approximately five months before B.B.O. was born. B.B.O. resided out-of-state with her mother until she was approximately three years old, when, at Berry's request, Olds brought B.B.O. to live with him in Colorado. V.O. also was living with her father in Colorado.

¶ 3 B.B.O. resided with her father and her half-sister in Colorado for approximately six years until her father's death in 2008, at which time B.B.O. continued to reside with her half-sister. For the first one-and-one-half to two years that B.B.O. lived with her father in Colorado, her mother visited B.B.O. on a regular basis. During the last four or five years that B.B.O. lived with her father, her mother did not have any direct physical contact with B.B.O. but continued to interact by telephone, letters, and cards.

¶ 4 Two months after Olds's death, V.O. petitioned for an allocation of parental responsibilities. At that point, B.B.O. had lived with her half-sister for more than six years. The court appointed a child and family investigator (CFI) who recommended that V.O. have primary parental responsibility for B.B.O. with liberal parenting time for Berry. Berry moved to dismiss, and later moved for summary judgment, on the ground that V.O. lacked standing to seek an allocation of parental responsibilities under section 14–10–123(1)(b) or (1)(c), C.R.S. (2011). The trial court found that V.O. had standing under both sections 14–10–123(1)(b) and (1)(c) because B.B.O. was in the care of her half-sister and was not in the care of either parent, and Berry had implicitly consented and acquiesced to V.O. caring for B.B.O. Following a permanent orders hearing on the merits, the trial court determined that it was in B.B.O.'s best interest to reside primarily with her half-sister with scheduled parenting time for Berry as recommended by the CFI.

¶ 5 Berry appealed both the standing and best interest determinations by the trial court. With regard to V.O.'s standing to petition for an allocation of parental responsibilities, Berry argued that a nonparent does not have standing under section 14–10–123(1)(b) or (1)(c) unless a child's parents have consented to the nonparent providing care for the child. Berry asserted that she never consented to V.O. caring for B.B.O. in the absence of Olds. The court of appeals agreed. The court of appeals concluded that the manner by which a child comes to be in the possession of a nonparent is relevant to the standing determination. Relying on In re C.R.C., 148 P.3d 458, 463 (Colo.App.2006), an opinion by another division of the court of appeals, the court of appeals in this case held that, in order to establish standing under either 14–10–123(1)(b) or (1)(c), a “nonparent must show that the child's parents voluntarily permitted the nonparent to share in or assume the parents' responsibility for the child's care.” The court of appeals found no evidence in the record that Berry had consented to V.O. caring for B.B.O. in Olds's absence, and, applying C.R.C., concluded that V.O. lacked standing to seek an APR. Because the court of appeals decided the appeal on standing grounds, the court did not considerBerry's challenge to the trial court's substantive determination that allocating primary parental responsibility to V.O. was in the best interest of B.B.O. We granted certiorari and now reverse. ¹

II. Standard of Review

¶ 6 We review de novo a trial court's conclusions of law concerning the application and construction of statutes, Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff's Dep't, 196 P.3d 892, 897 (Colo.2008), while we review a trial court's findings of jurisdictional fact for clear error, Springer v. City and Cnty. of Denver, 13 P.3d 794, 798 (Colo.2000). Our main task in construing a statute is to ascertain and give effect to the intent of the General Assembly in enacting it. In re Marriage of Ikeler, 161 P.3d 663, 666 (Colo.2007). We begin with the language of the statute. Id. If the statutory language is clear, we interpret the statute according to its plain and ordinary meaning, without resort to other rules of statutory construction. People v. Rickman, 178 P.3d 1202, 1206 (Colo.2008).

III. Analysis

¶ 7 We begin by reviewing the language of the statute. Then, because the court of appeals relied on C.R.C. to inform its construction of the statute, we examine C.R.C., and two additional cases upon which it relied, to understand the source of the court of appeals' rationale.

A. The Language of Section 14–10–123(1)

¶ 8 Nonparent standing to seek an allocation of parental responsibilities is governed by section 14–10–123, C.R.S. (2011). Section 14–10–123(1) provides for a nonparent to seek an allocation of parental responsibilities in two circumstances that are relevant here: (1) if the child is not in the physical care of one of the child's parents, pursuant to subsection (1)(b); or (2) if the nonparent has had physical care of the child for at least six months and commences the action within six months of the termination of that care, pursuant to subsection (1)(c). To this end, the statute provides that an APR proceeding may be commenced:

(b) By a person other than a parent, by filing a petition seeking the allocation of parental responsibilities for the child ..., but only if the child is not in the physical care of one of the child's parents;

(c) By a person other than a parent who has had the physical care of a child for a period of six months or more, if such action is commenced within six months of the termination of such physical care;

....

§ 14–10–123(1).

¶ 9 According to the plain language of the statute, whether a nonparent has standing to petition for an allocation of parental responsibilities turns on who has or recently had physical care of the child. Nothing in the statutory language suggests that parental consent to a nonparent providing care for a child is necessary for the nonparent to establish standing. The word consent does not appear in the statutory text, nor is there any reference in the statute to the means by which the child comes to be in the nonparent's care. The term “care” is not defined in the statute but has a plain and ordinary meaning that contemplates “responsibility for or attention to safety and wellbeing.” Webster's Third New International Dictionary 338 (2002). Thus, there is no statutory basis for reading a consent requirement into the concept of care for standing purposes in section 14–10–123(1)(b) or (1)(c). Despite the plain language of the statute, the court of appeals looked beyond the statutory language to resolve this case. We examine the authority upon which the court of appeals relied to understand the source of the consent requirement that the court of appeals read into the statute.

B. The Court of Appeals' Rationale

¶ 10 As grounds for reversing the trial court's standing determination, the court of appeals relied on C.R.C., a prior decision by a division of the court of appeals, which held that parental consent was necessary for a nonparent to establish standing under sections 14–10–123(1)(b) and (1)(c). C.R.C. also went beyond the statutory language, relying instead on language from our decision in In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995) to reach its holding, and found confirmation in the United States Supreme Court's recognition of the fundamental rights of parents in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). To understand the court of appeals' rationale in this case, we review C.C.R.S. and Troxel and their application in C.R.C.

¶ 11 In C.C.R.S., we considered whether, for standing purposes, the term “physical custody” meant, literally, that a nonparent had actual physical possession of the child, or whether the term had legal connotations such that a nonparent must have a legal basis for physical custody before the nonparent could establish standing.²C.C.R.S., 892 P.2d at 251–52. In that case, the biological mother had released custody of her newborn son in contemplation of adoption, but later revoked the release of...