In the Interest of C.T.G., a Child, Upon the Petition of P.G and T.L.W. and Concerning K.R.W.
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COLORADO COURT OF APPEALS
______________________________________________________________________________
Court of Appeals No.: 05CA0783
Jefferson County District Court No. 05DR70
Honorable Margie L. Enquist, Judge
______________________________________________________________________________
In the Interest of C.T.G., a Child,
Upon the Petition of P.G and T.L.W.,
Appellants,
and Concerning K.R.W.,
Appellee.
______________________________________________________________________________
ORDERS REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by: JUDGE ROTHENBERG
Márquez and Bernard, JJ., concur
Announced: February 8, 2007
______________________________________________________________________________
DiGiacomo & Jaggers, LLP, David R. DiGiacomo, Douglas J. Perko, Arvada,
Colorado, for Appellants
Law Offices of Stephen J. Harhai, Sara A. Willhite, Denver, Colorado, for
Appellee
P.G. (father) and T.L.W. (mother) (collectively, the parents)
appeal from the trial court’ orders denying their request to
s
terminate the parenting time awarded to K.R.W. (stepfather) for
their minor child, C.T.G. They also appeal from the trial court’
s
award of attorney fees to stepfather. We reverse the order related to
stepfather’ parenting time and the order awarding him attorney
s
fees, and we remand with directions.
The salient facts are undisputed. In 1997, while mother and
stepfather were married and living in Minnesota, she had intimate
relations with father and became pregnant. C.T.G. was born on
August 12, 1998. In 1999, mother and father learned father and
not stepfather was the biological father of the child. However,
stepfather was not informed of this fact until 2001, when father filed
a paternity action and tests were conducted. By that time the child
was three years old.
In 2002, the Minnesota court decreed that father was the
biological father and awarded joint legal custody of C.T.G. to father
and mother, with sole physical custody to mother. The court’ order
s
also provided that stepfather would have visitation “ an interim
on
1
basis to be established by the parties and a guardian ad litem
pending further agreement or court orders.”
In 2003, the marriage between mother and stepfather was
dissolved. Mother and father were then living together with the
child, and they relocated to Colorado and later married. Thereafter,
stepfather traveled to Colorado one weekend per month to visit the
child.
In February 2005, jurisdiction was transferred to Colorado,
and the parents filed an emergency motion to suspend stepfather’
s
visitation. Stepfather responded by filing a motion to enforce
parenting time pursuant to § 14-10-129.5, C.R.S. 2006.
Following a brief evidentiary hearing, the trial court reinstated
stepfather’ visitation of one weekend per month, finding he was a
s
“
psychological parent”to C.R.C.P.G. at the time of the Minnesota
order and the termination of his relationship with her would likely
result in psychological harm to her.
Mother and father then filed a motion to terminate stepfather’
s
visitation rights, and the court conducted a full evidentiary hearing.
Following that hearing, the trial court found that (1) stepfather is a
2
psychological parent to C.T.G.; (2) the child is not in any danger of
emotional or physical harm when she is with him; (3) the parents’
actions created stress around the visits; and (4) their attempts to
eliminate stepfather’ contact with the child endangered her
s
emotional development. The court ordered stepfather’ parenting
s
time to continue. The parents appeal from that ruling.
I.
Initially, we address and reject the parents’contention that
stepfather, as a nonparent, lacks standing to assert parenting time
rights.
Stepfather had standing based on the Minnesota court’
s
judgment and decree awarding such rights to him, see People v.
J.M., 22 P.3d 545 (Colo. App. 2000)(party directly affected by order
has standing to challenge it), and on the trial court’ finding that he
s
is a psychological parent to C.T.G. See In re E.L.M.C., 100 P.3d 546
(Colo. App. 2004)(recognizing psychological parenting and
concluding a third party has standing if that person can show the
existence of a “
parent-like”relationship as evidenced by recent
physical care, even if such care is not exclusive); see also § 14-10-
3
123(1)(b) and (c), C.R.S. 2006 (permitting a proceeding for the
allocation of parental responsibility by a person other than a parent
“
only if the child is not in the physical care of one of the child’
s
parents”or “ a person other than a parent who has had the
by
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” In re Marriage of Dureno, 854 P.2d 1352 (Colo. App.
);
1992)(permitting stepparent visitation based on child’ best
s
interests).
II.
However, we agree with the parents that the trial court erred in
concluding the visitation award contained in the Minnesota
paternity decree and order was a permanent order, in treating their
motion as a request for modification, and in applying the
endangerment standard in § 14-10-129(2)(d), C.R.S. 2006.
A.
Whether an order for allocation of parental responsibility or
custody is temporary or final is determined from the substance and
effect of the order. In re Marriage of Murphy, 834 P.2d 1287 (Colo.
4
App. 1992), disapproved on other grounds by In re Marriage of Wall,
868 P.2d 387 (Colo. 1994).
Permanent orders establish parental rights that stay in effect
until one party establishes a change in circumstances sufficient to
support a modification. Temporary orders regarding parenting time
and decision-making responsibility are intended to determine those
matters pending final orders, and they do not carry res judicata
effect. In re Marriage of Fickling, 100 P.3d 571 (Colo. App. 2004).
In Fickling, the parents entered into a stipulated parenting
plan which provided that the child would alternate between the
mother’ and the father’ residences on a weekly basis. Thereafter,
s
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the trial court entered permanent orders significantly reducing the
amount of overnights the child spent with the father. On appeal,
the father challenged the trial court’ ruling, contending it erred as
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a matter of law by applying the best interests of the child standard
in substantially reducing his parenting time instead of the
endangerment standard in § 14-10-129(1)(b)(I).
A division of this court disagreed, concluding the parties’
stipulated agreement for parenting time was a temporary order and
5
was modifiable under the best interests of the child standard under
§ 14-10-124(1.5), C.R.S. 2006, which has historically been applied
to original determinations of parental responsibility. See In re
Marriage of Monteil, 960 P.2d 717 (Colo. App. 1998)(addressing
former version of statute which allocated physical and legal
custody).
In this case, the Minnesota court fully adjudicated the issue of
paternity and awarded joint custody of C.T.G. to the parents.
However, the parenting time awarded to stepfather specifically
stated that it was to occur according to an “
interim”schedule, that
the court and the parties were unable to set a permanent schedule
because of mother and father’ anticipated relocation, and that the
s
existing schedule which had been established in conjunction with a
guardian ad litem would remain in effect. The Minnesota court thus
recognized the need for future changes in the visitation schedule
because of the parents’anticipated relocation. See Johnson v.
Johnson, 223 Minn. 420, 428, 27 N.W.2d 289, 293-94
(1947)(recognizing that orders affecting custody and the
maintenance of children are not final).
6
Interim is defined as “
[d]one, made, or occurring for an
s
intervening time; temporary or provisional.” Black’ Law Dictionary
819 (7th ed. 1999)(emphasis added).
We therefore conclude that the Minnesota paternity decree
operated as a final order and permanent allocation as to paternity
and custody, but that its award of parenting time to stepfather was
a temporary order. The fact that the parties adhered to the
schedule for nearly three years does not change the nature of the
order. We would reach the same conclusion applying Minnesota or
Colorado law.
Accordingly, we further conclude that in ruling on the parties’
motions, the trial court here should have applied the standard for
an original determination of visitation, which is based on the best
interest of the child. See In re Marriage of Fickling, supra.
Nor was the court’ error in applying the wrong standard
s
harmless because the court applied the statute governing the
modification of parenting time, which contains an endangerment
standard. That statute provides, in pertinent part:
The court shall not modify a prior order
concerning parenting time that substantially
7
changes the parenting time as well as changes
the party with whom the child resides a
majority of the time unless it finds, upon the
basis of facts that have arisen since the prior
decree or that were unknown to the court at
the time of the prior decree, that a change has
occurred in the circumstances of the child . . .
and that the modification is necessary to serve
the best interests of the child. In applying
these standards, the court shall retain the
parenting time schedule established in the
prior decree unless:
...
(d) The child’ present environment endangers
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the child’ physical health or significantly
s
impairs the child’ emotional development and
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the harm likely to be caused by a change of
environment is outweighed by the advantage of
a change to the child.
Section 14-10-129(2)(d) (emphasis added).
Therefore, we agree with the parents that the trial court erred
as a matter of law in treating their motions to suspend or terminate
stepfather’ visitation as requests for modification of a permanent
s
order and in applying the endangerment standard in § 14-10129(2)(d), rather than the best interests standard.
Given our conclusion that the Minnesota order permitting
stepfather’ visitation was a temporary order, we need not decide
s
whether – even if that order had been permanent -- the
8
endangerment standard could still be applied without violating the
due process rights of the parents.
B.
In addition, Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054,
147 L.Ed.2d 49 (2000), and In re Adoption of C.A., 137 P.3d 318
(Colo. 2006), have changed the legal landscape by recognizing that a
parent has a “
fundamental right to the care, custody, and control of
his or her children.” In re Adoption of C.A., supra, 137 P.3d at 324.
In Troxel, a plurality of the Supreme Court explained that
parents have a protected liberty interest in the care, custody, and
control of their children and that this fundamental right of parents
encompasses the presumption that a fit parent will act in the best
interests of his or her child. Therefore, the Supreme Court
concluded some special weight must be accorded to a parent’ own
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determination.
In In re Adoption of C.A., supra, which was announced after
the trial court’ ruling in this case, the Colorado Supreme Court
s
examined how the special weight prescribed in Troxel is to be
defined in the context of grandparent visitation. The court in C.A.
9
rejected a standard that required a showing of unfitness or
emotional harm, because such a standard did not provide sufficient
latitude.
However, the court required the application of a presumption
that parental determinations are in the child’ best interests, and
s
specified that this presumption could only be rebutted by clear and
convincing evidence the parent is unfit to make the visitation
decision, or that the parent’ visitation decision is not in the child’
s
s
best interests. In re Adoption of C.A., supra, 137 P.3d at 327-28;
see People v. Taylor, 618 P.2d 1127 (Colo. 1980)(proof by "clear and
convincing evidence" is proof which persuades the trier of fact that
the truth of the contention is highly likely; it is evidence which is
stronger than a preponderance of the evidence).
We conclude the same analysis is applicable to visitation with
other third parties who are able to establish standing and to
demonstrate to the court that they are the psychological parents of a
child. See Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct.
App. 2006)(concluding there was overwhelming evidence of
compelling circumstances to overcome the presumption that the
10
mother’ decisions to deny her ex-boyfriend’ visitation with child
s
s
was in child’ best interests). Troxel and C.A. thus require that the
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trial court give presumptive effect to the parents’wishes regarding a
third party’ visitation, and place upon the third party the burden of
s
proving by clear and convincing evidence that the visitation is in the
child’ best interests and is based on special circumstances.
s
Here, the effect of the trial court’ ruling was to place the
s
burden on the parents to show endangerment. However, Troxel and
C.A. have made it clear that the parents are presumed to act in the
best interests of their children and that the burden is on the third
party to show otherwise. Contrary to stepfather’ contention, the
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trial court’ finding in this case that he is a psychological parent to
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C.T.G. does not place him on equal footing with the natural parents.
We recognize that the trial court here did not have the benefit
of C.A. when it ruled. Nevertheless, we are bound by that
precedent, and we conclude the trial court erred in several respects.
First, it did not afford the parents the presumption that they
were acting in the child’ best interests, as required by C.A. To the
s
contrary, the trial court placed upon the parents the burden of
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demonstrating that visitation with stepfather would endanger the
child.
Second, the trial court did not apply the clear and convincing
evidence standard required by C.A.
Third, while there is record support for the trial court’ finding
s
that stepfather was a psychological parent at the time of the
Minnesota decree, which was approximately three years earlier, the
court did not address the current circumstances of the child, which
have changed significantly. The parents and the child now reside in
Colorado, the child is of school age, and there was expert testimony
that her ties to father have been strengthened while those to
stepfather appear to have been dissipated by time and distance.
Fourth, the trial court did not point to any “
special
circumstances”that would justify stepfather’ continued visitation
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in Colorado.
Fifth, while there was testimony supporting the court’ finding
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that visitation would not endanger the child, we have found no
competent evidence in the record to support the court’ finding that
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C.T.G. would suffer emotional harm if stepfather’ parenting time
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with her were terminated, or that it was in her best interests for
such visitation to continue. The guardian ad litem in Minnesota (a
family attorney) originally recommended that stepfather’ contact be
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continued, but she admitted during her testimony by telephone that
she had not seen or spoken to the child since the family moved to
Colorado several years earlier. Neither the report of the special
advocate nor that of the parental responsibility evaluator supports a
finding that continued visitation was in the child’ best interests,
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much less that termination of stepfather’ parenting time would
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psychologically harm her by impairing her emotional development.
Dr. Lee Hockman, a licensed psychologist, was the only expert
who testified at the hearing. He testified, as relevant here, as
follows: (1) the child told him in interviews she does not want to visit
stepfather; (2) the significance of her bond with stepfather “
has been
affected by the last . . . four and a half years”and he is a less
significant emotional figure than he had been in the past; (3) father
“
has increasingly become a significant and a consistent father figure
to the child”and he has always been at least privately opposed to
the visits; (5) in terms of the child’ attachment, stepfather’
s
s
13
“
significance is different” and (6) at times stepfather shows a lack of
;
empathy for the child and minimizes the degree of her stress.
The expert testified that the child at times felt uncomfortable
talking to him about the stepfather’ role and his marriage to her
s
mother. The expert also observed that the parties “
have different
versions of the truth in this case,”and that the child “
gets exposed
to different perspectives of it, that keep her constantly in the
middle.”He also expressed his opinion that the parents actually
“
believe this is best for [the child], that she not have a relationship
with [stepfather].”
Although the child’ current therapist did not testify, the
s
record contains a letter from her stating: (1) the child had been in
that expert’ care “ and on since she arrived in Colorado” (2)
s
off
;
there was stress for the child “
around [stepfather’ visits and has
s]
been since their onset” (3) the child “
;
has now well adjusted to the
family she experiences with [the parents] and [she] gets frustrated
when that is interrupted” (4) the child expressed to the therapist
;
that “
she would like not to see [stepfather] again” and (5) “
;
[a]n
environment with little stress and conflict would be the healthiest
14
for [her].”
Sixth, the trial court criticized the parents’motives in
discouraging C.T.G.’ relationship with stepfather, concluding they
s
were based on the parents’concern about their reputations and
their inability to recognize the harm they were causing by
sabotaging the visits and creating stress for her. The trial court also
emphasized the fact that the parties had created this problem and
that the child would have to live with this confusion for the rest of
her life.
While we agree with the trial court that the parents may have
made unwise decisions in the past, this does not provide a reason to
continue stepfather’ visitation where, as here, the parents oppose
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it, and there was no competent evidence that continuation of such
visits was in the child’ best interests or that she would suffer
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emotional harm if the visits were terminated.
Thus, even if we view the evidence in the light most favorable
to stepfather and assume he is a psychological parent to C.T.G., we
conclude as a matter of law that (1) he failed to present clear and
convincing evidence to rebut the presumption that the parents were
15
acting in their child’ best interests by terminating his visitation and
s
(2) he failed to show special circumstances that would justify the
court’ order allowing visitation against the wishes of the parents.
s
See Troxel, supra; C.A., supra. In other words, we perceive no basis
for embroiling the child in an indeterminate, confusing, and
stressful situation based on this record.
In Middleton v. Johnson, supra, the South Carolina Court of
Appeals addressed an issue analogous to the one we face here. The
court considered the type of special circumstances that would
warrant visitation by a third person over the parents’objection.
There, the mother invited Middleton to act as a father. She sent
him pictures of the baby boy (Josh) and insinuated that he was
Josh's father. When Josh was three years old, the mother and
Middleton worked out a schedule whereby he had Josh from
Thursday through Sunday every week. Middleton paid at least half
of the daycare costs and was listed as the emergency contact on the
daycare registration.
Middleton accompanied Josh to his first day of kindergarten,
brought him to school almost every morning, picked him up almost
16
daily, and accompanied him on school field trips. Middleton took
him to doctor and dentist appointments, and Josh attended family
reunions and functions with Middleton.
The court observed:
For the first ten years of his life, Josh spent a
considerable amount of time with Middleton.
Mother cultivated this relationship by giving
Middleton parental responsibilities and by
allowing Josh to spend a significant amount of
his childhood with Middleton. In essence, Josh
lived with Middleton at least half of the week
for most of his life. Mother, by ceding over a
large part of her parental responsibilities to
Middleton, fostered the parent-child bond
between Middleton and Josh.
. . . Josh had his own room, clothes, and
school books in Middleton's house.
. . . Middleton assumed the obligations of
parenthood by taking significant responsibility
for Josh's care, education, and development.
Middleton paid for Josh's preschool.
Additionally, he paid mother $250 dollars per
month while Josh was in Mother's custody. . .
[H]e was able to document approximately
$12,000 he had given Mother over the years.
Further, Middleton established a savings
account for Josh's education.
. . . On Sundays, Middleton and Josh attended
church. [The biological father], on the other
hand, made no attempt to fulfill Josh's
emotional need for a father. In fact, other than
17
seeing Josh one time when he was three days
old, [he] has never visited Josh. This parental
void left by Josh's biological father coupled
with the parental obligations assumed by
Middleton compel us to find that Middleton
undertook the responsibilities necessary to
meet the [requirements] of the psychologicalparent test.
. . . Dr. Newman, the court-appointed
therapist, opined that Middleton is a
psychological parent to Josh. She stated that
even though Josh has not seen Middleton in
two years, he wanted her to tell the court that
he misses Middleton and wants to see
Middleton. In her clinical opinion, the
emotional attachment between Josh and
Middleton is so strong that despite the passing
of two years' time, Josh still feels a sense of
loss [and] the severance of the relationship
between Middleton and Josh will have a
profound, negative impact for the rest of his
life.
....
Dr. Newman, who counseled Josh for eighteen
months prior to the final hearing, explained
that . . . Josh, who was ten years old when his
relationship with Middleton abruptly ended,
was particularly devastated by the loss
because he was at a stage in life when he was
learning how to socialize [and] that [his] loss of
contact with Middleton rendered Josh “
at-risk
regarding his ability to trust, [and to] form and
maintain close relationships.”
Middleton v. Johnson, supra, 369 S.C. at 599-603, 633 S.E.2d at
18
171-73 (footnote omitted). The South Carolina court added: “
Dr.
Newman says that Josh knows he has a biological father, but does
not sense a loss in not knowing him. Josh's sense of loss is directly
related to the loss of Middleton in his life.” Middleton v. Johnson,
supra, 369 S.C. at 601 n.3, 633 S.E.2d at 170.
Unlike in Middleton, where the record was “
replete with
evidence illustrating how Mother's refusal to allow Middleton to visit
with Josh has caused Josh significant harm,” Middleton v.
Johnson, supra, 369 S.C. at 603, 633 S.E.2d at 172, here, there
was no competent evidence demonstrating that the termination of
stepfather’ visitation would result in a negative impact on the child
s
or that it was in her best interests to continue with such visitation.
We therefore agree with the parents that the trial court’
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visitation order infringed upon their fundamental right to direct the
upbringing of their child because, as in Troxel, the order “
was not
founded on any special factors that might justify the State's
interference with [the mother’ fundamental right to make
s]
decisions”regarding her children. Troxel, supra, 530 U.S. at 68,
120 S.Ct. at 2061.
19
In reaching our conclusion, we are not without sympathy for
stepfather, and we do not doubt his sincerity and his commitment
to this child. However, we agree with other courts that have
expressed “
extreme trepidation”in expanding the psychological
parent doctrine beyond the perimeters set forth in Troxel and C.A.
See Middleton v. Johnson, supra, 369 S.C. at 605, 633 S.E.2d at
173 (Kittredge, J., concurring).
Accordingly, we conclude the trial court erred in not granting
the parents’motion to terminate such visitation.
III.
We also vacate the trial court’ award of attorney fees to
s
stepfather.
Stepfather based his request for fees on §§ 13-17-102, 14-10119, and 14-10-129.5, C.R.S. 2006. See In re K.M.B., 80 P.3d 914
(Colo. App. 2003)(a court may award attorney fees in a domestic
proceeding including a parental responsibility action brought by a
nonparent under either § 13-17-102 or § 14-10-119, C.R.S. 2006).
However, the trial court did not specify the statutory basis
upon which it relied in making the award or make findings as to the
20
parties’financial resources. Although some language in the trial
court’ December 2005 order suggests the court considered the
s
parents’
motion to terminate frivolous and groundless, our
conclusions above preclude an award of attorney fees to stepfather
on that basis. And, while the record contains a fee affidavit and the
expert opinions submitted by the parties, we do not have the benefit
of a transcript of the attorney fee hearing and any comments by the
trial court that might have revealed the basis for its determination.
Accordingly, we vacate the award of attorney fees to stepfather
and also deny his request for attorney fees on appeal under C.A.R.
38(d).
The orders are reversed, and the case is remanded with
directions to grant the parents’
motion forthwith and for such
further proceedings as are necessary and consistent with the views
expressed in this opinion.
JUDGE MÁRQUEZ and JUDGE BERNARD concur.
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