People ex rel. J.G.
| Decision Date | 08 April 2021 |
| Docket Number | Court of Appeals No. 20CA0800 |
| Citation | 486 P.3d 504 |
| Parties | The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF J.G. and C.G., Children, and Concerning A.M., a/k/a A.G., Appellant, and M.B., Special Respondent, Intervenor-Appellee. |
| Court | Colorado Court of Appeals |
Gina G. Bischofs, Guardian Ad Litem
Katayoun A. Donnelly, Office of Respondent Parent Counsel, Denver, Colorado, for Appellant
Houtchens Greenfield Sedlak & Zacheis, LLC, Kristin M. Zacheis, Mackenzie Moreno, Greeley, Colorado, for Intervenor-Appellee M.B.
Opinion by JUDGE BERGER
¶ 1 In this dependency and neglect proceeding, A.M. (mother) appeals the juvenile court's judgment allocating parental responsibilities for her children, J.G. and C.G., to their paternal grandmother, M.B. Mother raises three challenges to the judgment: (1) the grandmother lacked standing to seek parental responsibilities for the children; (2) she was a fit parent and, as such, was entitled to a presumption that she would act in the children's best interests in accordance with Troxel v. Granville , 530 U.S. 57, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; and (3) it is unconstitutional to grant sole parental responsibilities to a nonparent over a fit parent's objections.
¶ 2 We reject mother's first and third arguments. However, we agree that the juvenile court did not make sufficient findings regarding the second issue. As a result, we reverse the judgment and remand the case to the juvenile court for further proceedings.
¶ 3 This case has a complex history that spans nearly four years in the juvenile court. It began in May 2016 when the Weld County Department of Human Services learned that the children's father had shot mother in the ankle during an altercation in the paternal grandmother's home. A police officer responding to the incident shot father. Six-year-old J.G. and two-year-old C.G. were in the home (but not the room) when father shot mother. The Department was also concerned about possible drug use by the parents.
¶ 4 The juvenile court placed the children in the custody of a paternal aunt and uncle. Based on mother's admission, the court adjudicated the children dependent and neglected. It also adopted a treatment plan that required mother to (1) cooperate with the Department; (2) attend parenting time with the children and demonstrate protective parenting skills; (3) complete a substance abuse evaluation and recommended treatment as well as comply with sobriety monitoring; (4) participate in a mental health assessment and recommended treatment; (5) maintain a safe and stable home; (6) complete a domestic violence evaluation and treatment; and (7) comply with a parent-child interactional evaluation.
¶ 5 In early 2017, father pleaded guilty to two menacing counts stemming from the incident that initiated the case and began serving two consecutive, five-year prison sentences.
¶ 6 Later that year, the parties stipulated to increase mother's parenting time as part of a plan to transition the children back to her care. But the children promptly began demonstrating regressive behaviors in response to visits. As a result, the court ended the transition plan and limited mother to only having contact with the children in a family therapy setting.
¶ 7 The court later transferred custody of the children from aunt and uncle to the paternal grandmother. In October 2018, mother moved to have the children returned to her care because she had complied with the treatment plan and made progress in rebuilding her relationships with the children. While that request was pending, the children's guardian ad litem (GAL) moved to allocate parental responsibilities for the children to the paternal grandmother.
¶ 8 In July 2019, the court denied mother's motion to return the children home. After taking six days of evidence, the court determined that mother had complied with the treatment plan and was a fit parent. Still, it concluded that her relationship with the children was compromised and ordered the parties to research reintegration or clarification services.
¶ 9 Shortly after the court issued its ruling, the paternal grandmother also moved for an allocation of parental responsibilities (APR) for the children. A different judge presided over the APR requests filed by the GAL and the grandmother. The judge reviewed the six days of testimony presented during the earlier hearing and took further evidence over five days between January and March 2020.
¶ 10 Ultimately, the juvenile court allocated sole decision-making authority and primary parenting time to the paternal grandmother. As part of the APR order, the court (1) directed the grandmother to confer with mother before making decisions concerning the children; (2) granted mother a minimum of one supervised visit each week; and (3) encouraged the parties to facilitate additional community visits for mother and the children. The APR order was then certified into a domestic relations case.
¶ 11 Mother contends that the juvenile court erred by concluding that the grandmother had standing to request an APR when the children had been temporarily placed in her care over mother's objection. We reject this argument for two reasons.
¶ 12 First, mother's argument in her opening brief rests solely on the provisions of section 14-10-123(1)(c), C.R.S. 2020. In domestic relations proceedings, nonparent standing to seek an APR is governed by section 14-10-123 of the Uniform Dissolution of Marriage Act (UDMA). In the Interest of B.B.O. , 2012 CO 40, ¶ 8, 277 P.3d 818.
¶ 13 However, issues concerning custody or the allocation of parental responsibilities that arise in a dependency and neglect proceeding are not governed by the UDMA. People in Interest of L.B. , 254 P.3d 1203, 1208 (Colo. App. 2011). Rather, they are governed by the Children's Code. L.A.G. v. People in Interest of A.A.G. , 912 P.2d 1385, 1390 (Colo. 1996).
¶ 14 The Children's Code expressly authorizes a grandparent to intervene as a matter of right following a child's adjudication as dependent and neglected. § 19-3-507(5)(a), C.R.S. 2020; People in Interest of O.C. , 2013 CO 56, ¶ 22, 308 P.3d 1218. Generally, intervenors are granted the same rights as all other parties. A.M. v. A.C. , 2013 CO 16, ¶ 17, 296 P.3d 1026. Mother does not explain why the grandmother did not have standing to seek an APR as an intervenor under section 19-3-507(5)(a).
¶ 15 Second, the record reveals that the grandmother's motion requesting an APR was duplicative of the GAL's motion for an APR to the grandmother. Indeed, both motions requested the same relief and the court set them for a combined hearing. Mother does not contend that the GAL lacked standing to seek an APR to the paternal grandmother. This is particularly significant because a GAL is obligated to advocate for the child's best interests and is expressly authorized to participate at all steps of the legal proceeding once a dependency and neglect case has been initiated. C.W.B. v. A.S. , 2018 CO 8, ¶ 24, 410 P.3d 438 ; see also People in Interest of M.N. , 950 P.2d 674, 676 (Colo. App. 1997) ().
¶ 16 Mother next contends that the juvenile court erred by failing to apply the Troxel presumption in her favor before allocating parenting time to the paternal grandmother. We conclude that further findings are required.
¶ 17 We will not disturb a juvenile court's factual findings when they are supported by the record. People in Interest of A.J.L. , 243 P.3d 244, 250 (Colo. 2010). However, whether the juvenile court applied the correct legal standard in making its findings is a question of law that we review de novo. People in Interest of N.G.G. , 2020 COA 6, ¶ 10, 459 P.3d 664.
¶ 18 When determining custody or allocating parental responsibilities in a dependency and neglect proceeding, the court must consider the legislative purposes of the Children's Code under section 19-1-102, C.R.S. 2020. People in Interest of C.M. , 116 P.3d 1278, 1281 (Colo. App. 2005). These purposes include the following:
¶ 19 The overriding purpose of the Children's Code is to protect a child's welfare and safety by providing procedures through which the child's best interests can be served. L.G. v. People , 890 P.2d 647, 654 (Colo. 1995). Consequently, the court must allocate permanent custody and parental responsibilities in accordance with the child's best interests. L.B. , 254 P.3d at 1208 ; see also L.A.G. , 912 P.2d at 1391.
¶ 20 Even so, parents maintain a fundamental liberty interest in the care, custody, and control of their children. Troxel , 530 U.S. at 66, 120 S.Ct. 2054. In Troxel , the Supreme Court recognized that a parent who is adequately caring for his or her child — a fit parent — is presumed to act in the child's best interests. Id. at 68-69, 120 S.Ct. 2054 ; see also In Interest of Baby A , 2015 CO 72, ¶ 23, 363 P.3d 193.
¶ 21 The presumption requires that when a fit parent's parenting decision "becomes subject to judicial review, the court must accord at least...
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...interests and must identify special factors that justify interfering with mother's decisions. People in Interest of J.G., 2021 COA 47, 486 P.3d 504. Evidence of mother's acts in prior dependency and neglect cases for other children was relevant to jury's determination as to whether day-old ......