Parental Resp Conc CMC

24CA0243 Parental Resp Conc CMC 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0243
Weld County District Court No. 18DR163
Honorable Anita Crowther, Judge

In re the Parental Responsibilities Concerning C.M.C., a Child,

and Concerning Darcy Lucinda Smith, n/k/a Darcy Lucinda Steckman,

Appellee,

and

Christine Gardner,

Intervenor-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE YUN
Harris and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Cody Knebel, Fort Collins, Colorado, for Appellee Darcy Lucinda Steckman

Law Firm of Brian DeBauche, LLC, Brian DeBauche, Denver, Colorado, for
Intervenor-Appellant
¶1 This proceeding concerns the child of Darcy Lucinda Smith,

now known as Darcy Lucinda Steckman (mother), and Jacob

Thomas Crow (father). The appellant, Christine Gardner

(grandmother), is the maternal grandmother of the child.

Grandmother appeals the district court’s order denying her motion

for grandparent visitation. We affirm.

¶2 Father has not participated in the appeal.

I. Background

¶3 In September 2018, the court entered permanent orders

allocating parental responsibilities as to the child. Mother later

relocated with the child from Colorado to Wyoming, and father’s

parenting time was modified to two overnights of parenting time

every other weekend during the school year and alternating weeks

of parenting time during the summer.

¶4 In 2022, grandmother intervened in the proceeding and filed a

motion to establish a regular schedule of grandparent visitation.

Grandmother requested one weekend per month with the child

during the school year and one full week during the summer.

¶5 At the hearing, mother argued that court-ordered visitation

with grandmother was not in the child’s best interests because it

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would interfere with her limited weekend parenting time with the

child and his two half-siblings during the school year. While

mother did not oppose the child having contact with grandmother,

she maintained that the child received sufficient visitation with

grandmother during father’s parenting time given that father and

grandmother were on good terms, father lived near grandmother in

Colorado, and father often used grandmother for babysitting.

¶6 Father did not formally participate in the hearing, although he

was called as a witness by grandmother. Father testified that he

was in favor of grandmother’s request for visitation, but given his

already limited parenting time, any court-ordered visitation should

be taken from mother’s more significant parenting time.

¶7 The court denied grandmother’s motion, reasoning that it was

not in the child’s best interests to lose one of the two weekends per

month that the child currently spent with mother and his half-

siblings. Moreover, the court reasoned that the child was already

visiting with grandmother during father’s parenting time, and those

visits could continue at father’s discretion.

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II. Grandparent Visitation

A. Applicable Version of the Grandparent Visitation Statue

¶8 As an initial matter, we address grandmother’s assertion that

the district court erred by relying on section 19-1-117, C.R.S. 2022,

which, shortly before the grandparent visitation hearing, was

repealed and recodified with amendments at section 14-10-124.4,

C.R.S. 2024. See Ch. 243, secs. 2, 6, 8, § 14-10-124.4, 2023 Colo.

Sess. Laws 1302-08. We conclude that any error was harmless.

¶9 Before the repeal and recodification of the grandparent

visitation statute, section 19-1-117(2) provided for grandparent

visitation if it was in the child’s best interests, regardless of a

parental determination to the contrary.

¶ 10 Under the new statute, the best interests standard for

awarding grandparent visitation still applies. See § 14-10-124.4(4).

But, under the new statutory framework, “[i]n determining the best

interests of the child for the purpose of grandparent . . . family time,

the court shall presume the parental determination regarding

grandparent family time is in the best interests of the child,” and

“[a] grandparent . . . may overcome the presumption upon a

showing by clear and convincing evidence that the grandparent

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family time is in the child’s best interests.” Id. In making these

determinations, the court is to consider the statutory best interests

factors in section 14-10-124(1.5)(a), C.R.S. 2024. Id.

¶ 11 Section 14-10-124.4 represents the codification of In re

Adoption of C.A., 137 P.3d 318 (Colo. 2006). In C.A., the Colorado

Supreme Court applied the constitutional due process protections

afforded by Troxel v. Granville, 530 U.S. 57 (2000), to section

19-1-117, and therefore placed the burden on the grandparent to

demonstrate by clear and convincing evidence that grandparent

visitation is in the child’s best interests when there is an objecting

parent. C.A., 137 P.3d at 325-38; see also Troxel, 530 U.S. at 66

(“[I]t cannot now be doubted that the Due Process Clause of the

Fourteenth Amendment protects the fundamental right of parents

to make decisions concerning the care, custody, and control of their

children.”).

¶ 12 Although section 14-10-124.4 was in effect at the time of the

August 30, 2023, hearing, the district court applied the repealed

section 19-1-117 plus the due process protections of C.A. when

ruling on grandmother’s motion. Yet given that section

14-10-124.4 recodifies section 19-1-117 and incorporates the due

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process protections of C.A. and Troxel, the legal standard applicable

to grandparent visitation petitions has effectively remained the

same. Accordingly, the district court’s erroneous application of the

old statute was harmless.

B. Opposing Parental Determinations Concerning Grandparent
Visitation

¶ 13 As best as we can discern, grandmother contends that the

district court applied the incorrect legal standard and erroneously

placed an unfair burden on her to overcome mother’s opposition to

visitation because father testified in support of grandmother’s

request for visitation. We are not persuaded.

¶ 14 In reviewing grandmother’s remaining contentions, we defer to

the district court’s factual findings if they are supported by the

record, but we review de novo conclusions of law. See In re Parental

Responsibilities Concerning B.J., 242 P.3d 1128, 1132 (Colo. 2010).

¶ 15 In In re Marriage of O’Connor, 2023 COA 35, ¶ 1, a division of

this court recently addressed the presumption that a district court

must apply when two fit parents take opposite positions as to a

grandparent’s petition for court-ordered visitation with a

grandchild. Applying Troxel and C.A., O’Connor held that when

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parents take conflicting positions on grandparent visitation, “only

the opposing parent’s Troxel presumption is implicated,” and

“[t]hus, the grandparent[] must overcome the Troxel presumption of

the opposing parent” by clear and convincing evidence. O’Connor,

¶¶ 4, 32. The division in O’Connor reasoned that

[w]ere [the court] to allow the supporting
parent’s decision to cancel out the opposing
parent’s Troxel presumption and merely apply
the best interests of the child standard, [the]
grandparents’ argument in favor of visitation
would be accorded the same weight as the
opposing parent’s argument against visitation,
thereby depriving that parent of a fundamental
right.

Id. at ¶ 31.

¶ 16 Here, the district court applied O’Connor and therefore

required grandmother to overcome mother’s opposition to visitation

by clear and convincing evidence despite father’s general support

for visitation.

¶ 17 Grandmother argues that the district court instead should

have applied the rule adopted by the Arizona Supreme Court in In

re Marriage of Friedman, 418 P.3d 884, 892 (Ariz. 2018), providing

that when two fit parents disagree on grandparent visitation, their

constitutional presumptions cancel each other out, and the best

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interests of the child standard controls. But O’Connor, ¶¶ 13-14,

27-31, specifically rejected Friedman as inconsistent with Troxel,

and we agree with the O’Connor division’s analysis and do not see

any reason to depart from its holding.

¶ 18 Moreover, to the extent that grandmother suggests that the

district court erred because she had overcome mother’s objection by

presenting clear and convincing evidence that court-ordered

visitation was in the child’s best interests, we disagree. Credibility

determinations and the weight, probative force, and sufficiency of

the evidence, as well as the inferences and conclusions to be drawn

therefrom, are within the district court’s sole discretion. In re

Marriage of Lewis, 66 P.3d 204, 207 (Colo. App. 2003).

¶ 19 Here, the district court placed significant weight on mother’s

testimony that the court-ordered visitation would reduce her

weekend parenting time with the child and his stepsiblings, which

was the family’s main opportunity to spend quality time together

during the school year. Likewise the court found, with record

support, that the child visited with grandmother during father’s

parenting time. And while grandmother directs us to other evidence

that she contends supports visitation as being in the child’s best

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interests, such as her testimony concerning the quality of her

relationship with the child, we may not otherwise reweigh the

evidence in grandmother’s favor because the record supports the

district court’s findings. See In re Marriage of Nelson, 2012 COA

205, ¶ 35 (“[Even where] there is evidence in the record that could

have supported a different conclusion, we will not substitute our

judgment for that of the district court.”).

¶ 20 Nor are we persuaded by grandmother’s argument that the

district court failed to consider the statutory best interests factors

under section 14-10-124(1.5). In assessing the best interests

factors, “[t]he trial court need not make specific findings on each

and every factor listed in the statute so long as there is some

indication in the record that the pertinent factors were considered.”

See People in Interest of A.M.K., 68 P.3d 563, 566 (Colo. App. 2003).

Here, the district court cited the statutory best interests factors and

then placed significant emphasis on mother’s wishes as to

parenting time as well as the child’s relationship with mother and

his siblings. See § 14-10-124(1.5)(a)(I), (III). Thus, we cannot say

that the district court failed to consider the child’s best interests.

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¶ 21 Finally, to the extent that grandmother asserts that the

district court somehow violated father’s due process rights, she

lacks standing to vindicate his rights, and we therefore may not

consider such an assertion. See C.W.B. v. A.S., 2018 CO 8, ¶ 19

(recognizing that only “parties aggrieved may appeal” (quoting City

& Cnty. of Broomfield v. Farmers Reservoir & Irrigation Co., 235 P.3d

296, 302 (Colo. 2010))); cf. City of Greenwood Vill. v. Petitioners for

Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000) (“[P]arties

actually protected by a statute or constitutional provision are

generally best situated to vindicate their own rights.”).

III. Attorney Fees

¶ 22 Mother requests an award of her appellate attorney fees on the

grounds that grandmother’s appeal is without substantial

justification and is otherwise frivolous. See § 13-17-102, C.R.S.

2024. Although the issue is arguably close, we do not view

grandmother’s appeal as frivolous such that an award of appellate

attorney fees is appropriate. We therefore deny mother’s request.

¶ 23 Mother also seeks an award of appellate attorney fees based

on the discrepancy in financial resources between herself and

grandmother. But appellate attorney fees are only awardable if the

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party seeking them states a legal and factual basis for the award,

see C.A.R. 39.1, and the cases cited by mother do not indicate that

attorney fees based on disparate financial circumstances are

awardable in a grandparent visitation dispute. Accordingly,

mother’s request for attorney fees on that basis is also denied.

¶ 24 However, mother is entitled to an award of her appellate costs

and may seek those costs in the district court. See C.A.R. 39(a)(2)

and (c)(2) (costs are taxed against the appellant if a judgment is

affirmed and the “party who wants costs to be taxed . . . must file

an itemized and verified bill of costs with the clerk of the trial

court”).

IV. Disposition

¶ 25 The order is affirmed.

JUDGE HARRIS and JUDGE KUHN concur.

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