In Re BJ

Citation: 242 P.3d 1128Docket: 10SA146

Court: Supreme Court of Colorado; November 29, 2010; Colorado; State Supreme Court

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The Colorado Supreme Court case In re the Parental Responsibilities Concerning B.J. and K.J. addresses the allocation of parental responsibilities to non-parents, specifically examining the standards established in Troxel v. Granville and In re Adoption of C.A. The El Paso County District Court had ordered visitation for the children's former foster parents, Nicole and Jason Glab, which conflicted with the wishes of Ronald Julian, the biological father and sole custodian. The Supreme Court found that the district court failed to apply the necessary legal standards, which require a presumption favoring the fit parent's rights and an opportunity for non-parents to present clear and convincing evidence to overcome this presumption.

The court emphasized that the constitutional presumption that a fit parent acts in the best interests of the child must be adhered to throughout the allocation of parental responsibilities proceedings. The decision must involve findings of fact regarding any 'special factors' justifying interference with the parent's rights. The Supreme Court ruled that the district court abused its discretion by not applying these standards, leading to the reversal of the visitation order and remanding the case for further proceedings consistent with this opinion.

Julian, having obtained sole custody of his children in December 2005 after fulfilling the requirements of a dependency and neglect case, had allowed the Glabs some contact until May 2009, when he decided to end this relationship. The excerpt provides a background of the Glabs' involvement, noting various living arrangements the children had with them from 2006 to 2008.

In March 2009, Julian decided to stop having his children stay with the Glabs, allowing only two weekends in April and Mother’s Day weekend in May. The Glabs filed a petition for parenting responsibilities on May 1, 2009, claiming a psychological bond had formed with the children due to their significant parenting time. During a September 2009 hearing, Julian testified that the children referred to the Glabs as 'Mom' and 'Daddy Jason,' and acknowledged their unique bond. The magistrate found that the Glabs had become psychological parents over a three-and-a-half-year period with Julian's consent. However, after Julian decided to have the children live exclusively with him, the children adjusted well and did not include the Glabs in their drawings of important people. The magistrate ruled that the Glabs lacked standing to pursue an Allocation of Parenting Responsibilities (APR) action since they had not been physically involved with the children for six months prior to the hearing. The district court later upheld the magistrate's findings but determined that the Glabs had standing because they filed their petition within six months of Julian's decision. Despite this, the court denied the Glabs' request for temporary parenting time, citing that it would disrupt the children's adjustment and recognizing Julian's due process rights as a fit parent. The court ruled that any future considerations for parenting time must follow the standards established in the Troxel and C.A. cases. The Glabs then sought a Child and Family Investigator (CFI), and Dr. Michael Wilbourn was appointed. He recommended that the children spend three Saturdays with the Glabs, which occurred in mid-April 2010, nearly a year after their last contact, but he did not report findings at the next status conference, instead suggesting overnight visits to aid his assessment.

Julian objected to overnight visitations with the Glabs, arguing that the court required clear and convincing evidence to justify any interference with his constitutional rights regarding parenting time. The district court ruled that the Troxel and C.A. standards did not apply at the investigatory stage of an Allocation of Parental Responsibilities (APR) proceeding and ordered the overnight visits for specific weekends in May 2010. Julian subsequently petitioned for a rule to show cause, which was accepted by the court, leading to the reversal of the district court’s order.

The court established that the constitutional presumption favoring fit parents applies throughout all stages of an APR proceeding. It noted that to grant parenting time to non-parents against a parent's objection, the following standards must be met: (1) a presumption in favor of the parent's decision; (2) a burden on non-parents to rebut this presumption by clear and convincing evidence that the parent's decision is not in the child's best interest; and (3) the ultimate burden lies with non-parents to show that their request for parenting time serves the child's best interests. The court further emphasized that any decision allowing non-parental parenting time must include findings of fact concerning the 'special factors' supporting that decision. The district court failed to apply these standards when ordering the visits.

Regarding the allocation of parental responsibilities, once a non-parent has standing under section 14-10-123, the court considers their request for parenting time under section 14-10-124(1.5)(a). Although 'parenting time' is not explicitly defined, it encompasses what was previously termed 'visitation.' The 1993 legislative change aimed to reflect the significance of the relationship between noncustodial parents and children without altering existing legal rights. Consequently, 'parenting time' generally refers to the time a child spends away from their primary residence in the care of someone with parental responsibilities. The court can issue temporary orders for parental responsibilities during an APR proceeding, which are not final determinations.

The 'best interests of the child' standard is integral to child custody determinations, having been established in Colorado law since 1963 and affirmed in case law. A presumption exists favoring parental custody over non-parent custody, which can be challenged by evidence showing that a child's best interests are better served by a non-parent. Courts have the authority to appoint a Child and Family Investigator (CFI) with appropriate qualifications to assess these situations, whose role involves investigating and making recommendations regarding the children's best interests based on statutory criteria. The CFI must utilize professional methods of data collection, ensuring that the investigation is thorough yet minimally invasive. Ultimately, while the court considers the CFI's recommendations, it is not bound to follow them and retains the sole authority to allocate parenting time.

In evaluating requests for non-parent parenting time, courts must adhere to standards from relevant case law that underscore the fundamental rights of parents under the Due Process Clause. The U.S. Supreme Court has emphasized that fit parents are presumed to act in their children's best interests and that the state cannot interfere in parental decisions unless there is substantial justification for doing so. This legal framework establishes a strong presumption in favor of parental rights against claims for parenting time by non-parents.

The Court in Troxel addressed Washington's broad third-party visitation statute, emphasizing that due process mandates that a parent's decision regarding non-parent visitation must be given 'special weight.' The ruling determined that a visitation order infringing on a parent's fundamental rights requires a court to demonstrate 'special factors' justifying state interference. States are tasked with defining how 'special weight' is applied to parental decisions. To balance the 'best interests of the child' standard with Troxel's requirements, a three-part test for grandparent visitation was established: (1) a presumption favoring the parent's visitation decision; (2) the burden on the grandparent to provide clear and convincing evidence that the parent's decision is not in the child's best interests; and (3) the grandparent must also prove by clear and convincing evidence that the proposed visitation aligns with the child's best interests. Courts must provide findings of fact to support any visitation orders. The Colorado Court of Appeals, in In re Parental Responsibilities of Reese, reiterated that parental decisions should be respected, and any challenge requires clear evidence that contradicts the parent's assessment of the child's best interests. The district court's actions in this case, which allowed visitation for the Glabs against the wishes of sole custodian Julian, failed to adhere to these established standards. The court did not apply the required clear and convincing evidence standard or provide necessary findings of fact to justify the visitation.

The Glabs contend that the short duration of ordered visitations renders the Troxel and C.A. legal standards irrelevant, a position the court rejects. Both the magistrate and district court recognize Julian as a fit parent with sole custody, which grants him a constitutional right to make parenting decisions, including the allowance of visitation. In cases involving non-parents, there is a constitutional presumption favoring parental decisions from the outset, which continues unless challenged by clear and convincing evidence as per due process requirements. The absence of an investigatory exception is emphasized, as failing to uphold the parental presumption could undermine a parent's rights. 

The court highlights that allowing non-parent visitation without parental consent requires strong justification, which includes specific findings and evidence of special needs. Julian has cared for the children for over a year, and their adjustment to his home is noted positively. The district court's decision to grant visitation to the Glabs was based solely on recommendations from a Child and Family Investigator (CFI), without adequate scrutiny or exploration of less intrusive alternatives. This approach did not comply with the required standards, leading to an abuse of discretion by the district court. Consequently, the visitation order is reversed, and the case is remanded for further proceedings that align with the established legal framework.