Parental Resp Conc NMD

24CA0001 Parental Resp Conc NMD 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0001
Adams County District Court No. 21DR30567
Honorable Rayna Gokli McIntyre, Judge

In re the Parental Responsibilities Concerning N.M.D., a Child,

and Concerning Gary Lynn Duerksen,

Appellant,

and

Sara Rae Hanson,

Appellee.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 26, 2024

Barrow Brown Carrington, PLLC, Dorothy Walsh Ripka, Greenwood Village,
Colorado, for Appellant

No Appearance for Appellee
¶1 Gary Lynn Duerksen (Duerksen) appeals the district court’s

order that allocated parental responsibilities concerning N.M.D. (the

child). We affirm.

I. Background

¶2 The child was born in 2015. Sara Rae Hanson (Hanson), the

child’s mother, identified Brian Jernigan (Jernigan) as the child’s

biological father.1 After the child’s birth, Hanson executed an

acknowledgement of paternity with Duerksen, and Duerksen was

named as the father on the child’s birth certificate. Jernigan died

two years later.

¶3 In 2021, Duerksen filed a petition for the allocation of parental

responsibilities concerning the child. Hanson disputed Duerksen’s

status as a legal parent, but the parties later stipulated that the

acknowledgment of paternity established Duerksen as the legal

father. The parties then agreed to a temporary parenting time

schedule that, over time, allowed Duerksen to exercise two non-

overnight visits with the child each week — one for eight hours and

the other for two to three hours.

1 The permanent orders had a different spelling for Jernigan’s name

but we use the spelling as found in the rest of the record.

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¶4 During the proceedings, Dr. Edward Budd (Dr. Budd) was

appointed as a parental responsibilities evaluator. After his

evaluation, Dr. Budd recommended that Hanson receive primary

parenting time and that Duerksen exercise around “four contacts

each month” with the child. Dr. Budd also recommended that

Hanson receive sole decision-making responsibility. At Duerksen’s

request, the court appointed Dr. Carolyna Smiley-Márquez (Dr.

Smiley-Márquez) as a supplemental parental responsibilities

evaluator. Dr. Smiley-Márquez similarly recommended limited

parenting time for Duerksen, though she believed that he should

have slightly more visits than Dr. Budd’s recommendation and a

few overnight visits during the year. Dr. Smiley-Márquez also

recommended that Duerksen have limited decision-making

authority.

¶5 After a hearing, the court allocated primary parenting time to

Hanson, and it allowed Duerksen to exercise a non-overnight visit

three days each month and an additional non-overnight visit during

the months that have a fifth Saturday. The court also allocated to

Hanson sole decision-making responsibility.

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¶6 Duerksen filed a motion for post-trial relief, and the court

denied his request.

II. Standard of Review

¶7 The district court has discretion over the allocation of parental

responsibilities, and, on review, we exercise every presumption in

favor of upholding its decision. In re Marriage of Collins, 2023 COA

116M, ¶ 8 (parenting time); In re Marriage of Morgan, 2018 COA

116M, ¶ 23 (decision-making responsibility). We will not disturb

the court’s allocation absent a showing that the court abused its

discretion. Collins, ¶ 8; Morgan, ¶ 26. A court abuses its discretion

when it acts in a manifestly arbitrary, unreasonable, or unfair

manner, or it misapplies the law. Collins, ¶ 8. We therefore will

affirm the court’s allocation if the record supports it. Id.; Morgan,

¶ 26.

III. The Child’s Biological Father

¶8 In the court’s permanent orders, the court noted that Jernigen

was the child’s biological father. Duerksen contends that the court

erred by making that finding. He argues that the parties’

acknowledgment of paternity established a presumption of paternity

in his favor, Jernigen never asserted a competing claim of paternity,

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and no evidence from the hearing overcame the presumption in his

favor concerning paternity. He thus argues that the court was not

authorized to make a finding regarding Jernigen’s biological

paternity. We are unpersuaded.

¶9 Under the Uniform Parentage Act (UPA), a court can resolve

competing presumptions of paternity and, when appropriate,

determine the child’s legal parents. See §§ 19-4-105, 19-4-107,

C.R.S. 2024; People in Interest of K.L.W., 2021 COA 56, ¶¶ 15, 19-

21. A child can have only “two legal parents,” and they are the ones

that enjoy the rights and responsibilities of parenthood. K.L.W.,

¶¶ 21, 39.

¶ 10 Duerksen appears to suggest that by finding Jernigen was the

child’s biological father, the court made an improper paternity

determination contrary to Duerksen’s parental rights. But the

court had already determined paternity, and nothing in the record

indicates that the court’s statement altered that determination.

Before permanent orders, the court determined that the

acknowledgment of paternity established Duerksen as the child’s

legal parent. See § 19-4-105(2)(a.5)(I), (2)(d). Then, in its

permanent orders, the court said it would not revisit the paternity

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determination, it again recognized Duerksen was the child’s “legal

[f]ather,” and it allocated parental responsibilities between him and

Hanson — the child’s two legal parents. See K.L.W., ¶¶ 21, 39.

Even though the court noted Jernigen’s biological connection to the

child, it did not recognize him as a legal parent or otherwise alter

Duerksen’s parental rights under the UPA. Cf. id. at ¶ 17 (noting

that a person’s biological connection to the child does not

conclusively establish parentage).

¶ 11 Duerksen further suggests that the court’s comment about

Jernigen was unnecessary and an abuse of the court’s discretion.

But he does not develop how or why the court’s brief statement

prejudiced him or affected his substantial rights as the child’s legal

parent. See C.A.R. 35(c) (We “may disregard any error or defect not

affecting the substantial rights of the parties.”); People in Interest of

A.C., 170 P.3d 844, 845 (Colo. App. 2007) (recognizing that an

alleged error, without a valid allegation of prejudice, does not

establish a ground for reversal on appeal).

¶ 12 To the extent Duerksen claims that the court’s comment had

no record support, Hanson testified that she had “no doubt” that

Jernigen was the child’s biological father, and the court credited her

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testimony. We must defer to that finding. See In re Marriage of

Thorburn, 2022 COA 80, ¶ 49 (recognizing that the district court

determines the credibility, weight, probative force, and sufficiency of

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

from the evidence).

¶ 13 Duerksen therefore does not establish any basis to disturb the

court’s finding that Jernigen was the child’s biological father.

IV. Allocation of Parental Responsibilities

¶ 14 Duerksen next contends that the district court’s allocation of

parenting time and decision-making responsibility was an abuse of

discretion. We consider and reject his contentions.

A. Applicable Law

¶ 15 When allocating parenting time and decision-making

responsibility, the court must focus on the child’s best interests,

giving paramount consideration to the child’s safety, needs, and

physical, mental, and emotional conditions. See §§ 14-10-

123.4(1)(a), 14-10-124(1.5), (1.7), C.R.S. 2024; Collins, ¶ 7. In

making its determination, the court must consider all relevant

factors, including the best interests factors identified in section 14-

10-124(1.5)(a) and (b). See Collins, ¶ 7; Morgan, ¶ 21.

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B. Parenting Time

¶ 16 Duerksen argues that the court’s allocation of parenting time

significantly reduced the amount of parenting time he enjoyed

under temporary orders and that such an allocation was contrary to

the facts and the child’s best interests. We discern no abuse of

discretion.

¶ 17 The court made detailed findings concerning the child’s best

interests, considering each of the factors. In particular, the court

found that Hanson and the child had a close relationship, the child

lived primarily with Hanson her entire life, the child was well

adjusted at Hanson’s home, the household was stable, and the

child had a supportive community surrounding her with Hanson.

See § 14-10-124(1.5)(a)(III), (IV), (VII). The court acknowledged that,

in the past, Hanson struggled with her mental and physical health

and had placed her needs ahead of the child’s needs, but it found

that, presently, Hanson was more stable than ever and that she had

brought stability to the child’s life. See § 14-10-124(1.5)(a)(V), (XI).

¶ 18 By contrast, the court found that the child did not view

Duerksen as a father figure, she was not entirely comfortable with

him, Duerksen had not been a consistent presence in the child’s

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life, and the child had never lived with Duerksen or spent an

overnight visit alone with him. See § 14-10-124(1.5)(a)(III), (VII).

The court also found that Duerksen struggled with interpersonal

skills, was socially isolated, and had poor social judgment. See §

14-10-124(1.5)(a)(III), (V). And it found that Duerksen was

inexperienced with caring for the child, was not always cognizant of

the child’s needs, and struggled in his ability to relate to the child.

See § 14-10-124(1.5)(a)(III). The court also found that the drive to

Duerksen’s home from Hanson’s home was over an hour and that

the child suffered from car sickness. The court reasoned that the

physical distance between the parties’ homes made it impractical to

grant Duerksen parenting time during the school week. See § 14-

10-124(1.5)(a)(VIII).

¶ 19 Hanson testified that the child had never lived with Duerksen

or spent an overnight visit alone with him. She also testified that

the child did not refer to Duerksen as her father and that she had

never spent consistent time with him until this case. Dr. Budd

reported that Duerksen’s relationship with the child resembled

more of a grandparent-grandchild relationship than a parent-child

relationship. Dr. Budd also opined that Duerksen had “striking

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interpersonal limitations,” poor social judgment, and failed to

understand the true nature of his relationship with the child. Dr.

Smiley-Márquez reported similar concerns with Duerksen’s social

skills and his relationship with the child, and she noted that he had

cared for the child only intermittently during her life. Dr. Budd

further noted the challenges imposed by the physical distance

between the parties, and he ultimately opined that “something like

four contacts each month would be consistent with [the child’s]

needs and the nature of her relationship with [Duerksen].”

¶ 20 The court weighed these factors and the evidence, and found

that while it was important for the child to spend time with

Duerksen, overnight visits with him were not in the child’s best

interests. The court then allocated Duerksen three non-overnight

weekend visits each month and an additional visit in the months

that had a fifth Saturday.

¶ 21 Although, as Duerksen argues, the court allocated to him less

parenting time than granted under the temporary parenting time

orders, the court’s allocation was based on the child’s best

interests, and the record supports its decision. See Collins, ¶¶ 8,

13.

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¶ 22 Still, Duerksen highlights other evidence that he believes

would support allowing him to exercise more time with the child.

But it was within the district court’s sound discretion to resolve the

conflicting evidence and weigh the best interests factors. See

Collins, ¶ 13; Thorburn, ¶ 49. We may not set aside the court’s

allocation based on those determinations when, as here, the record

supports it. See Collins, ¶¶ 8, 13.

¶ 23 The court thus acted within its discretion and allocated

parenting time based on the child’s best interests.

C. Decision-Making Responsibility

¶ 24 Duerksen also argues that the court’s allocation of sole

decision-making responsibility to Hanson did not promote the

child’s best interests. We are unpersuaded.

¶ 25 Based on its consideration of the best interests factors, the

court determined that allocating joint decision-making

responsibility between the parties was not feasible and would not be

successful. The court noted that the unbalanced and undisciplined

power dynamic between the parties over the course of their

relationship impeded their ability to make joint decisions for the

child. See § 14-10-124(1.5)(b)(I)-(II). The court also noted the

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parties would further struggle to make decisions cooperatively given

their vastly different views on Duerksen’s relationship with and

connection to the child. See id.

¶ 26 While Duerksen again highlights evidence that could have

supported an allocation differently than that ordered by the court,

the record supports the court’s decision-making determination, and

we will not disturb it. See Morgan, ¶ 26; Thorburn, ¶ 49.

Specifically, Hanson testified that she historically made the

decisions concerning the child and that continuing her ability to do

so served the child’s best interests. Hanson also testified that, in

the past, when she tried to involve Duerksen in decisions, he was

very pushy and tried to impose his will on her. She also described

that Duerksen would belittle her and was dismissive of her feelings

and opinions.

¶ 27 Dr. Budd reported that while there were times in the past

when the parties could communicate amicably about the child’s

needs, they are unable to do so now in light of their continued

conflict. Dr. Budd also observed that the parties “never really made

joint parenting decisions,” did not have similar values, approached

life very differently, and were not mutually supportive. Dr. Budd

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reported that Hanson historically made decisions concerning the

child, and he opined that imposing joint decision-making

responsibility now “would cause problems without solving any.”

¶ 28 Although Duerksen disagrees with the court’s allocation, given

the evidence, the court acted within its discretion to allocate sole

decision-making responsibility to Hanson.

V. Conclusion

¶ 29 The judgment is affirmed.

JUDGE FOX and JUDGE SCHOCK concur.

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