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23CA1879 Marriage of Battles 11-14-2024 modified

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1879
Arapahoe County District Court No. 21DR31702
Honorable Cajardo Lindsey, Judge

In re the Marriage of

Meghann Mary Ward Battles, n/k/a Meghann Mary Ward McPherson,

Appellee,

and

Cort Owen Battles,

Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

Opinion Modified On the Court’s Own Motion
and Petition for Rehearing DENIED

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Meghann Mary Ward McPherson, Pro Se

Caroline C. Cooley, Christopher J. Linas, Castle Rock, Colorado, for Appellant
OPINION is modified as follows:

Page 17, ¶¶ 40-41 currently reads:

Father asserts that the trial court improperly delegated

parenting time decisions to C.B. when it ordered that C.B. could not

be required to attend joint reintegration therapy sessions with him.

A court may not delegate parenting time decisions to any third

party, including the child. See In Interest of D.R.V-A., 976 P.2d 881,

884 (Colo. App. 1999). However, while the court gave C.B.

autonomy over his participation in reintegration therapy, the

reintegration therapy isn’t parenting time under these

circumstances. Indeed, the court expressly said that father had no

parenting time. Therefore, there is no parenting time to delegate,

and we perceive no error.

Opinion now reads:

Father asserts that the trial court improperly delegated

parenting time decisions to C.B. when it ordered that C.B. could not

be required to attend joint reintegration therapy sessions with him.

We disagree.

We agree with father that a court may not delegate its

authority to decide whether parenting time should occur to any
third party, including the child. See In Interest of D.R.V-A., 976

P.2d 881, 884 (Colo. App. 1999). However, to the extent father

relies on D.R.V-A. to suggest that reintegration therapy is always

“parenting time” for purposes of domestic relations proceedings

and, therefore, that a court may not grant a child autonomy over

whether to participate in reintegration therapy, we disagree.

Father relies on the following language in D.R.V-A.: The “order,

which effectively defers to the family therapist the trial court’s

decisions as to when mother should be allowed to participate in

family therapy or exercise unsupervised parenting time, constitutes

an improper delegation of the court’s authority.” Id. at 885. While

at first glance this language appears to support father’s contention,

the surrounding context reveals otherwise.

In D.R.V-A., mother had supervised parenting time “until such

time as the guardian [ad litem] and family therapist agreed that

unsupervised visits should resume.” Id. at 883. Mother’s ability to

obtain the family therapist’s agreement to resume unsupervised

parenting time was “affected by the lack of . . . family therapy.” Id.

The court ordered father to have the children participate in family

therapy but also ordered that mother could only be involved in the
therapy to the extent the therapist believed it appropriate. Id.

Finally, the court ordered that it would reconsider the issue of

unsupervised parenting time only when the family therapist filed a

recommendation for the same. Id.

On appeal, mother contended that “the trial court erred in

structuring the order in such a way that her ability to exercise

unsupervised parenting time is dependent upon the family therapist

filing such a recommendation with the court.” Id. at 884 (emphasis

added). A division of this court agreed, holding that the order

constituted an improper delegation of
authority because it precluded mother from
obtaining an evidentiary hearing until such
time as the family therapist recommended
unsupervised [parenting time]. When and if
that point was reached, presumably an
evidentiary hearing would be unnecessary.
Thus, we conclude that the decision to
condition the exercise of parenting time on the
assent of the family therapist was improper, as
was the court’s conditioning the setting of an
evidentiary hearing on such assent.

Id.

Without further analysis about why the order was improper,

the division then used the language on which father relies as the
concluding paragraph in the relevant section of the opinion. Id. at

885.

Viewed in context, particularly given the way mother framed

the issue on appeal, it’s clear that the issue in D.R.V-A. was not

mother’s participation in family therapy per se. It was that

mother’s ability to exercise unsupervised parenting time — or even

to obtain a hearing on that topic — was expressly conditioned on

the therapist’s recommendation. And in turn, that recommendation

was affected by the therapist’s authority to determine whether

mother participated in family therapy.

We therefore don’t perceive D.R.V-A. as holding that

reintegration therapy is always “parenting time” such that a child

can never be given autonomy over whether to participate in it. In

this case, it’s clear that the reintegration therapy is not parenting

time. Indeed, the court expressly stated that it “cannot, in good

conscience, order any parenting time between Father and [C.B.]”

because parenting time with father was not in C.B.’s best interests.

(Emphasis added.) And — unlike in D.R.V-A. — father’s ability to

exercise parenting time in the future is not expressly conditioned on

the therapist’s recommendation. Therefore, we do not perceive that
the court improperly delegated any decision about whether

parenting time between C.B. and father may take place.

Added footnote 3 on Page 20 reads:

3 To the extent In Interest of D.R.V-A., 976 P.2d 881 (Colo. App.

1999), does hold that reintegration therapy is always, as a matter of

law, “parenting time” in domestic relations proceedings, we

disagree. See Chavez v. Chavez, 2020 COA 70, ¶ 13 (“[D]ivisions

are not bound by the decisions of other divisions . . . .”). While

reintegration therapy may be considered “parenting time” in some

circumstances, the court’s order makes clear that it isn’t parenting

time under the circumstances of this case.

Footnote 3 on Page 22 currently reads:

3 Father repeatedly asserts that he grabbed C.B. by the back of

the neck rather than the front of the neck. This distinction doesn’t

affect our view of the court’s child abuse finding in this case.

Opinion now reads (as footnote 4):

4 Father repeatedly asserts that the record supports, at most,

that he grabbed C.B. by the back of the neck rather than the front

of the neck. This distinction doesn’t affect our view of the court’s

child abuse finding in this case.
¶1 In this dissolution of marriage proceeding, Cort Owen Battles

(father) appeals the portion of the permanent orders that allocate

parental responsibilities for the two minor children to Meghann

Mary Ward McPherson, f/k/a Meghann Mary Ward Battles

(mother). Father also appeals the trial court’s denial of his motion

for a new trial.

¶2 We affirm in part, reverse in part, and remand for further

proceedings.

I. Background

¶3 Mother and father are the parents of two minor children, C.B.

and F.B., who were thirteen and eleven (respectively) at the time of

permanent orders. Because of allegations that father had verbally

(and sometimes physically) abused the children, the children’s

therapist made a report to the Department of Human Services.

Early in the case, the court ordered that father’s parenting time be

supervised by a reintegration therapist. The court also appointed

Dr. Edward Budd as the parental responsibilities evaluator (PRE).

¶4 During the pendency of the case, both children participated in

individual therapy, along with sessions with the reintegration

therapist. F.B. participated in some sessions with the reintegration

1
therapist and father, while C.B. refused to have contact with father.

After the permanent orders hearing, the court ordered that father

would not have any parenting time with either child, and mother

would have sole decision-making responsibility.

¶5 Father filed a C.R.C.P. 59 motion based on newly discovered

evidence; namely, a status report from the reintegration therapist.

The court denied father’s motion.

¶6 Father now appeals. He contends the trial court erred by

restricting his parenting time, allocating sole decision-making

authority to mother, and denying the motion for a new trial.

II. Parenting Time

¶7 Father contends that the trial court erred by (1) restricting his

parenting time without applying the endangerment standard; (2)

restricting his parenting time without considering less detrimental

alternatives; (3) improperly delegating parenting time decisions to

the children; and (4) failing to consider his constitutional rights.

A. Applicable Law and Standard of Review

¶8 In all cases, the trial court must determine the allocation of

parenting time according to the child’s best interests, “giving

paramount consideration to the child’s safety and the physical,

2
mental, and emotional conditions and needs of the child.” § 14-10-

124(1.5), C.R.S. 2024. In making the best interests determination,

the court must consider the factors set forth in section 14-10-

124(1.5)(a)(I)-(XI). In re Marriage of Finer, 920 P.2d 325, 327 (Colo.

App. 1996).

¶9 However, for a court to “impos[e] . . . a parenting time

restriction,” the court must also find “that parenting time by the

[restricted] party would endanger the child’s physical health or

significantly impair the child’s emotional development” and

“enumerate the specific factual findings supporting the restriction,”

including findings related to child abuse. § 14-10-124(1.5)(a).

“[W]hat constitutes endangerment to a particular child’s physical or

emotional health is a highly individualized determination . . . .” In

re Marriage of Parr, 240 P.3d 509, 512 (Colo. App. 2010).

¶ 10 The determination of parenting time falls within the broad

discretion of the trial court, and we will exercise every presumption

that supports upholding the court’s decision. In re Marriage of

Hatton, 160 P.3d 326, 330 (Colo. App. 2007). A court abuses its

discretion if its decision is manifestly arbitrary, unreasonable, or

3
unfair, or if it misapplies the law. In re Marriage of Badawiyeh,

2023 COA 4, ¶ 9.

¶ 11 “It is the responsibility of the trial court as the trier of fact to

determine the credibility of the witnesses and the sufficiency,

probative effect, and weight of the evidence.” Hatton, 160 P.3d at

330. We review de novo, however, whether the court applied the

correct legal standards in determining parenting time. In re

Parental Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15.

B. Additional Facts

¶ 12 During the permanent orders hearing, the court heard

testimony from mother; father; Dr. Budd; and Dr. Shelley Bresnick,

the children’s reintegration therapist. By agreement, the court also

considered the deposition testimony of Dr. Andrew Loizeaux, an

expert retained by father to review Dr. Budd’s work. The court

found all the professional witnesses credible and concluded that Dr.

Budd was more credible than Dr. Loizeaux.

¶ 13 Regarding the children’s progress in reintegration therapy

during the pendency of the case, the court found that

• C.B. had adamantly refused any contact with father,

including in a therapeutic setting;

4
• F.B. and father had attended reintegration therapy together

and “interact in a positive and affectionate manner”;

• during F.B.’s sessions with father, “[b]oth appear very

happy to see one another”; and

• regarding F.B., father had taken Dr. Bresnick’s feedback

well and “demonstrated insight into his behaviors.”

¶ 14 Mother requested that father have no parenting time with C.B.

Father proposed that C.B. continue to work with his individual

therapist and with the reintegration therapist on an individual

basis. After three months, father proposed that he and C.B. have

joint reunification sessions every other week. Father also urged the

court to set periodic status conferences regarding C.B.’s parenting

time.

¶ 15 Mother proposed that father and F.B. continue having joint

reintegration therapy sessions and that the parties could reassess

moving beyond reintegration therapy when and if Dr. Bresnick and

F.B.’s therapist believed F.B. was ready. Father proposed a step-up

plan in which he would receive supervised visits after a month of

reintegration therapy, followed by unsupervised visits, which would

gradually increase until the parties had equal parenting time.

5
¶ 16 In considering the children’s best interest, the court made the

following additional relevant findings1:

• On one occasion, father forcibly stuffed candy wrappers in

C.B.’s mouth while holding him against the wall by his

neck.

• The children described “verbal derogation by [father] on a

more or less daily basis.”

• Father “verbally belittled and physically intimidated the

[children], on a frequent basis, over a period of years . . . .

[Father’s] behavior produced father-child relationships so

troubling for the [children] that whether the damage can be

repaired is unclear.”

• Father had “grabb[ed] [the children] by the necks and arms

and call[ed] them cocksuckers, pussies, bitches, fuck holes,

ass holes, retarded fucks, and pieces of shit.”

• Father committed child abuse.

1 Some of the court’s findings were adopted from Dr. Budd’s PRE

report, Dr. Bresnick’s status reports, or from statements made by
the parties.

6
• C.B. had been taken to the emergency room on two previous

occasions with suicidal ideation.

• C.B. told Dr. Budd that he did not want to see father “ever

again under any circumstances.”

• F.B. told Dr. Budd that he wanted to see father “every two

weeks and only in the presence of a supervisor.”

• Both children would strongly prefer to live with mother.

• “Each party has psychological limitations that helped cause

and perpetuate problems in the family. Each externalizes

responsibility.”

• “Neither party is especially supportive of the other’s

relationship with the children.”

• Both parents can place the children’s needs ahead of their

own, though each parent had “blind spots.”

¶ 17 Father did not testify about any of the incidents of verbal

degradation of the children or the incident with the candy wrappers.

However, he confirmed the candy wrapper incident to Dr. Budd.

The court also took judicial notice of apology letters father wrote to

the children in which father acknowledged that he “bullied” the

children and that his words were “hurtful and abusive.”

7
¶ 18 Ultimately, the court ordered that C.B. continue therapy with

his individual therapist and with Dr. Bresnick. However, the court

ordered that C.B. could not be required to participate in

reintegration therapy with his father if he displayed resistance to

doing so. The court further ordered that, based on the

professionals’ opinions and the abuse and trauma C.B. suffered,

parenting time between father and C.B. would not be in C.B.’s best

interests.

¶ 19 The court made nearly identical orders regarding F.B. The

court noted that it seemed F.B. was ready to participate in

reintegration therapy, but nevertheless, F.B. could not be forced

into therapy if he displayed resistance.

C. Analysis

1. Endangerment Standard

¶ 20 Father contends that the trial court failed to apply the

endangerment standard when restricting his parenting time with

the children. Father also asserts that the court’s findings that

father abused the children concerned only past acts of child abuse,

and the court failed to consider whether parenting time with father

would presently endanger the children or significantly impair their

8
emotional development. We disagree as to C.B. but conclude that

more findings are necessary as to F.B.

a. C.B.

¶ 21 We recognize that the court did not specifically find that

parenting time with father “would endanger [C.B.]’s physical health

or significantly impair [C.B.]’s emotional development.” § 14-10-

124(1.5)(a). We also recognize that, as father argues, father’s past

acts of child abuse do not automatically mean that parenting time

with him would presently endanger C.B. See In re Marriage of

Bertsch, 97 P.3d 219, 222 (Colo. App. 2004).

¶ 22 Nevertheless, we can infer from the trial court’s findings and

order that it considered and applied the endangerment standard

and concluded that contact with father would significantly impair

C.B.’s emotional development or endanger his physical health. See

In re Marriage of Garst, 955 P.2d 1056, 1059 (Colo. App. 1998)

(noting that, while the court could have made more specific

findings, the findings made and reference to the parenting

evaluation “demonstrate that the trial court considered” the

appropriate best interests factors).

9
¶ 23 The court began by citing the correct statutory standard for

endangerment, along with the statutory best interests factors. To

the extent father contends that the court’s slight paraphrasing of

the statutory language indicates that the court didn’t understand or

apply the correct law, we disagree.

¶ 24 In allocating parenting time, the court said that it “cannot, in

good conscience, order any parenting time between Father and

[C.B.]” The court based its decision on “the credible opinions of Dr.

Budd and Dr. Loizeaux” and “evidence of [C.B.]’s abuse and

trauma.”

¶ 25 Immediately before making this order, the court referenced Dr.

Budd’s testimony that forcing C.B. to see father was a “bad idea”

because a child who is forced into reintegration therapy often goes

“nuts.” The court also discussed Dr. Budd’s testimony that a child

in that situation may become estranged from both parents because

the child perceives that the parent who forced them to attend

therapy “failed to protect them or even betrayed them.”

¶ 26 The court additionally referenced Dr. Budd’s concern that a

child who has a history of extreme behaviors is more likely to repeat

such behaviors under duress. For this reason, Dr. Budd testified

10
that learning about C.B.’s history of suicidal ideation would have

increased his trepidation about forcing C.B. into reintegration

therapy with father.

¶ 27 Finally, the court noted that these concerns were somewhat

echoed by Dr. Loizeaux, who testified that “[in] a case when you

have kids going to the emergency room for suicidal ideation and

fear of their father, you have to have a lot of checks and balances

before you move ahead.”

¶ 28 In light of the court’s reference to this testimony, we can

discern the court’s concern that forcing C.B. to see father (in

reintegration therapy or otherwise) would have endangered C.B.’s

physical health and significantly impaired his emotional

development by putting him at risk for “extreme behavior” — such

as suicidal ideation — and estrangement from both parents. See id.

¶ 29 We are unconvinced by father’s contention that the court

couldn’t rely on the above-described testimony because it was

somewhat hypothetical. Dr. Budd’s pertinent concerns arose in

regard to the specific circumstances C.B. faced: being unwilling to

contact father after a history of abuse and having been previously

hospitalized for suicidal ideation. While none of the experts could

11
say that C.B. would certainly experience negative consequences if

he were forced to see father, father doesn’t cite, and we haven’t

found, any authority that prevents a court from relying on expert

opinion about the general risks of a child under circumstances

similar to those in the case before it.

¶ 30 Finally, to the extent father contends that the court erred by

applying the incorrect legal standard at temporary orders hearings,

we don’t consider his argument because the temporary orders are

not on appeal. See In re Marriage of Brantley, 674 P.2d 1388, 1389

(Colo. App. 1983) (noting that temporary parenting orders are not

subject to appellate review); § 14-10-108(5)(a), C.R.S. 2024

(providing that temporary orders do not prejudice the parties’ rights

adjudicated at subsequent hearings).

¶ 31 For the foregoing reasons we conclude that the trial court

applied the correct legal standard in restricting father’s parenting

time with respect to C.B.

b. F.B.

¶ 32 In contrast to the findings about C.B., we can’t tell whether

the trial court appropriately applied the endangerment standard to

F.B. While the court repeated that it was not granting father

12
parenting time with F.B. because of the “professionals’ opinions and

evidence of abuse and trauma,” the testimony about the risks of

forcing contact between father and the children pertained primarily

to C.B., not F.B. The court also referenced testimony from

professionals indicating that F.B. was willing to participate in

reintegration therapy with father and had at least some positive

experiences with it. At the same time, Dr. Budd expressed that he

wasn’t sure if either child’s relationship with father could be

repaired and unequivocally recommended that “[n]either [C.B.] nor

[F.B.] should be compelled to spend time with their dad.”

¶ 33 Due to the lack of findings specific to F.B. and the lack of

reference to any testimony regarding ongoing risks to a child in

F.B.’s circumstances, we are unable to determine whether the court

appropriately applied the endangerment standard to F.B. when it

completely eliminated father’s parenting time, nor can we determine

why the court concluded that the complete elimination of parenting

time was in F.B.’s best interests. See In re Marriage of Rozzi, 190

P.3d 815, 822 (Colo. App. 2008) (“A trial court’s order must contain

findings of fact and conclusions of law sufficiently explicit to give an

appellate court a clear understanding of the basis of its order and to

13
enable the appellate court to determine the grounds upon which it

rendered its decision.”).

¶ 34 Accordingly, we remand to the trial court for additional

findings concerning F.B. See § 14-10-124(1.5)(a). On remand, the

trial court must consider the parties’ and F.B.’s circumstances at

the time of the remand proceeding and permit the parties to present

new evidence of such circumstances. See In re Marriage of

Schlundt, 2021 COA 58, ¶ 56. The trial court must give priority to

the remand proceeding under section 14-10-128(1), C.R.S. 2024,

but we decline father’s request to order the trial court to hold a

hearing “as soon as possible.”2 The existing order shall remain in

effect pending entry of a new order by the trial court. See Schlundt,

¶ 56.

¶ 35 Because of our disposition, we need not consider father’s

remaining contentions as they relate to F.B.’s parenting time.

2 As best we can discern, Father relies on the remand instructions

in In re Marriage of Wollert, 2020 CO 47, in making this request.
Wollert concerned the remand for an emergency hearing under
section 14-10-129(4), C.R.S. 2024, which, under the circumstances
of that case, required the court to hold a hearing within fourteen
days. Wollert, ¶ 41 n.8. Parenting time proceedings under section
14-10-124, C.R.S. 2024, have no similar time requirement.

14
2. Less Detrimental Alternatives

¶ 36 Father’s next contention is that the trial court erred by

restricting father’s parenting time with C.B. without first

considering a less detrimental alternative. Under the

circumstances of this case, we perceive no reversible error.

¶ 37 The concept of the “least detrimental alternative” recognizes

that some “detriment to a child is present in every [parenting time]

decision, [and] a court’s task is to make the [parenting time] choice

‘least detrimental’ to the child.” In re Marriage of Martin, 42 P.3d

75, 78 (Colo. App. 2002) (citation omitted). The “least detrimental

alternative” analysis is subsumed within the concept of the best

interests of the child. Id. However, at least one division of this

court has previously held that a court may not “completely deny [a

parent] parenting time under the best interests standard without

express consideration of whether doing so is the least detrimental

alternative.” Hatton, 160 P.3d at 333 (emphasis added).

¶ 38 We acknowledge that the court’s permanent orders did not

include the phrase “least detrimental alternative.” But assuming,

without deciding, that the court erred by not making express

findings about whether providing C.B. with control over his

15
attendance at joint reintegration sessions was the least detrimental

alternative, the error was harmless under the circumstances here.

Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (holding that an error

only affects a party’s substantial rights if “it can be said with fair

assurance that the error substantially influenced the outcome of

the case or impaired the basic fairness of the trial itself” (quoting

Banek v. Thomas, 733 P.2d 1171, 1178 (Colo. 1986))).

¶ 39 Specifically, the court’s order demonstrates that the court

considered, and rejected, the only other alternative available:

father’s proposed parenting plan. The only substantive difference

between father’s proposed parenting plan for C.B. and the court’s

order was that, under father’s plan, C.B. would be required to

attend joint reintegration sessions with father and Dr. Bresnick

after three months of individual therapy. The court noted father’s

proposed plan in its findings. However, as set forth above, it

found — with ample record support — that forcing C.B. into contact

with father would not be in C.B.’s best interests. Father doesn’t

explain, and we can’t discern, what other alternatives the court

should have considered. Under these circumstances, we don’t

perceive how the court’s failure to expressly state that it considered

16
other alternatives and concluded that the plan it chose was the

least detrimental “substantially influenced the outcome of the case.”

Id. Accordingly, the court didn’t reversibly err.

3. Delegating Parenting Time Decisions

¶ 40 Father asserts that the trial court improperly delegated

parenting time decisions to C.B. when it ordered that C.B. could not

be required to attend joint reintegration therapy sessions with him.

We disagree.

¶ 41 We agree with father that a court may not delegate its

authority to decide whether parenting time should occur to any

third party, including the child. See In Interest of D.R.V-A., 976

P.2d 881, 884 (Colo. App. 1999). However, to the extent father

relies on D.R.V-A. to suggest that reintegration therapy is always

“parenting time” for purposes of domestic relations proceedings

and, therefore, that a court may not grant a child autonomy over

whether to participate in reintegration therapy, we disagree.

¶ 42 Father relies on the following language in D.R.V-A.: The “order,

which effectively defers to the family therapist the trial court’s

decisions as to when mother should be allowed to participate in

family therapy or exercise unsupervised parenting time, constitutes

17
an improper delegation of the court’s authority.” Id. at 885. While

at first glance this language appears to support father’s contention,

the surrounding context reveals otherwise.

¶ 43 In D.R.V-A., mother had supervised parenting time “until such

time as the guardian [ad litem] and family therapist agreed that

unsupervised visits should resume.” Id. at 883. Mother’s ability to

obtain the family therapist’s agreement to resume unsupervised

parenting time was “affected by the lack of . . . family therapy.” Id.

The court ordered father to have the children participate in family

therapy but also ordered that mother could only be involved in the

therapy to the extent the therapist believed it appropriate. Id.

Finally, the court ordered that it would reconsider the issue of

unsupervised parenting time only when the family therapist filed a

recommendation for the same. Id.

¶ 44 On appeal, mother contended that “the trial court erred in

structuring the order in such a way that her ability to exercise

unsupervised parenting time is dependent upon the family therapist

filing such a recommendation with the court.” Id. at 884 (emphasis

added). A division of this court agreed, holding that the order

18
constituted an improper delegation of
authority because it precluded mother from
obtaining an evidentiary hearing until such
time as the family therapist recommended
unsupervised [parenting time]. When and if
that point was reached, presumably an
evidentiary hearing would be unnecessary.
Thus, we conclude that the decision to
condition the exercise of parenting time on the
assent of the family therapist was improper, as
was the court’s conditioning the setting of an
evidentiary hearing on such assent.

Id.

¶ 45 Without further analysis about why the order was improper,

the division then used the language on which father relies as the

concluding paragraph in the relevant section of the opinion. Id. at

885.

¶ 46 Viewed in context, particularly given the way mother framed

the issue on appeal, it’s clear that the issue in D.R.V-A. was not

mother’s participation in family therapy per se. It was that

mother’s ability to exercise unsupervised parenting time — or even

to obtain a hearing on that topic — was expressly conditioned on

the therapist’s recommendation. And in turn, that recommendation

was affected by the therapist’s authority to determine whether

mother participated in family therapy.

19
¶ 47 We therefore don’t perceive D.R.V-A. as holding that

reintegration therapy is always “parenting time” such that a child

can never be given autonomy over whether to participate in it.3 In

this case, it’s clear that the reintegration therapy is not parenting

time. Indeed, the court expressly stated that it “cannot, in good

conscience, order any parenting time between Father and [C.B.]”

because parenting time with father was not in C.B.’s best interests.

(Emphasis added.) And — unlike in D.R.V-A. — father’s ability to

exercise parenting time in the future is not expressly conditioned on

the therapist’s recommendation. Therefore, we do not perceive that

the court improperly delegated any decision about whether

parenting time between C.B. and father may take place.

3 To the extent In Interest of D.R.V-A., 976 P.2d 881 (Colo. App.

1999), does hold that reintegration therapy is always, as a matter of
law, “parenting time” in domestic relations proceedings, we
disagree. See Chavez v. Chavez, 2020 COA 70, ¶ 13 (“[D]ivisions
are not bound by the decisions of other divisions . . . .”). While
reintegration therapy may be considered “parenting time” in some
circumstances, the court’s order makes clear that it isn’t parenting
time under the circumstances of this case.

20
4. Constitutional Rights

¶ 48 Father contends that the court failed to consider his

constitutional right to parent and was required to find “compelling

circumstances” before restricting his parenting time. We disagree.

¶ 49 Parents have fundamental constitutional rights to the care,

custody, and control of their children. Troxel v. Granville, 530 U.S.

57, 65 (2000). However, such rights are not implicated when a

court allocates parental responsibilities between two parents, both

of whom have the same fundamental rights. See Vanderborgh v.

Krauth, 2016 COA 27, ¶¶ 20-21; In re Marriage of DePalma, 176

P.3d 829, 832 (Colo. App. 2007); cf. In re Marriage of McSoud, 131

P.3d 1208, 1219 (Colo. App. 2006) (noting that by allocating sole

religious decision-making responsibility to one parent, “the court

expanded one parent’s right to the care, custody, and control of a

child at the expense of the other parent’s similar right,” which

didn’t implicate constitutional rights).

¶ 50 Father’s reliance on People v. Zoller, 2023 COA 117, is

misplaced. That case concerns conditions of supervised release in a

criminal setting, not an allocation of parental responsibilities

between two parents. Id. at ¶¶ 19-20.

21
III. Decision-Making

¶ 51 Father contends that the trial court erred by granting mother

sole decision-making authority with respect to both children

because the court (1) didn’t make sufficient factual findings to

support its conclusion that father committed child abuse and (2)

failed to consider father’s constitutional rights.

A. Applicable Law and Standard of Review

¶ 52 When allocating decision-making responsibility under section

14-10-124(1.5)(b), a court shall generally consider (1) credible

evidence of the parties to cooperate and make decisions jointly; (2)

whether the parties’ past pattern of involvement with the child

reflects a system of values and mutual support that would indicate

the parties’ ability to provide a positive relationship with the child

as joint decision-makers; and (3) whether an allocation of joint

decision-making responsibility would promote more frequent

contact between the child and each of the parties.

¶ 53 In addition, where a claim of child abuse is made, the court

shall consider “[w]hether one of the parties has committed an act of

child abuse or neglect as defined in section 18-6-401, C.R.S. [2024],

or as defined under the law of any state, which factor must be

22
supported by a preponderance of the evidence.” § 14-10-

124(4)(a)(I); see also In re Marriage of McCaulley-Elfert, 70 P.3d 590,

593 (Colo. App. 2003). Under section 18-6-401(1)(a),

A person commits child abuse if such person
causes an injury to a child’s life or health, or
permits a child to be unreasonably placed in a
situation that poses a threat of injury to the
child’s life or health, or engages in a continued
pattern of conduct that results in
malnourishment, lack of proper medical care,
cruel punishment, mistreatment, or an
accumulation of injuries that ultimately
results in the death of a child or serious bodily
injury to a child.

The term “health” includes both physical and mental well-being.

People v. Sherrod, 204 P.3d 472, 475 (Colo. App. 2007), rev’d on

other grounds, 204 P.3d 466 (Colo. 2009).

¶ 54 If the court finds that child abuse occurred, “it shall not be in

the best interests of the child to allocate mutual decision-making

with respect to any issue over the objection of the other party . . .

unless the court finds that there is credible evidence” that the

parties can “make decisions cooperatively in the best interest of the

child.” § 14-10-124(4)(a)(II)(A).

23
¶ 55 Allocation of decision-making responsibilities falls within the

sound discretion of the trial court. In re Marriage of Morgan, 2018

COA 116M, ¶ 23.

B. Applicable Facts

¶ 56 Mother requested sole decision-making authority. Father

requested that the court order joint decision-making authority.

¶ 57 The trial court found that father had committed child abuse by

a preponderance of the evidence in three ways:

• Father “unreasonably placed [C.B.] in a situation that posed

a threat of injury to [C.B.]’s life by stuffing candy wrappers

into his mouth while holding him against a wall by his

neck.”

• Father “caused injury to [C.B.]’s and [F.B.’]s mental health

by grabbing them by the necks and arms” and verbally

denigrating them.

• Father “engaged in a continued pattern of conduct that

resulted in mistreatment” when he verbally denigrated C.B.

and F.B.

¶ 58 Based on the child abuse finding, the trial court awarded sole-

decision making authority to mother.

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C. Analysis

1. Child Abuse

¶ 59 Father contends that none of the ways in which the trial court

found father committed child abuse meet the technical

requirements of section 18-6-401(1)(a).

¶ 60 Father first argues that the court failed to articulate how the

candy wrappers threatened C.B.’s life. On this record, we disagree

that any further findings are necessary. Forcibly shoving candy

wrappers into a child’s mouth while holding the child against the

wall by his neck4 presents an obvious choking risk. While more

might be required to convict someone beyond a reasonable doubt,

this was sufficient for the court to find that the candy wrapper

incident was an act of child abuse by a preponderance of the

evidence. Cf. McCaulley-Elfert, 70 P.3d at 592-93 (holding that,

when the court credited wife’s testimony that her daughter had

been sexually abused over husband’s denial, that evidence was

4 Father repeatedly asserts that the record supports, at most, that

he grabbed C.B. by back of the neck rather than the front of the
neck. This distinction doesn’t affect our view of the court’s child
abuse finding in this case.

25
sufficient to support a finding of child abuse by a preponderance of

the evidence).

¶ 61 Next, father asserts that the record does not support the trial

court’s findings of child abuse because the trial court did not find

father acted with the appropriate mens rea. Assuming, without

deciding, that the trial court had to make a mens rea finding, any

error is harmless.

¶ 62 Child abuse may be committed knowingly, recklessly, or with

criminal negligence. § 18-6-401(7). A person commits child abuse

with criminal negligence when, “through a gross deviation from the

standard of care that a reasonable person would exercise, he fails to

perceive a substantial and unjustifiable risk,” § 18-1-501(3), C.R.S.

2024, that, “in light of the child’s circumstances, a particular act or

omission will place [the] child in a situation which poses a threat of

injury to the child’s life or health,” People v. Deskins, 927 P.2d 368,

371 (Colo. 1996) (describing reckless child abuse). In other words,

criminally negligent child abuse occurs when the actor should have

been aware (but was not) of the risk that his “conduct could result

in an injury to a child’s life or health.” Id. at 373 (emphasis added)

(describing risk of which perpetrator is required to be aware for

26
reckless child abuse); see also Mata-Medina v. People, 71 P.3d 973,

978 (Colo. 2003) (“[A]n actor is criminally negligent when he should

have been aware of the risk but was not.” (quoting People v. Hall,

999 P.2d 207, 219 (Colo. 2000))).

¶ 63 The record amply supports a conclusion that father acted

with, at a minimum, criminal negligence. He doesn’t explain, and

we can’t discern, how the trial court could have found that it was

reasonable for him to be unaware of the risk that stuffing candy

wrappers in a child’s mouth could result in an injury to the child’s

life or health. Because we perceive no other way to view the record

in this case, the court’s error (if any) in not making a mens rea

finding is harmless. See Bly, 241 P.3d at 535 (holding that an error

is harmless unless it can be shown with fair assurance that the

error substantially impacted the outcome of the case).

¶ 64 Because we affirm the trial court’s child abuse finding on

these grounds, we need not consider father’s contentions regarding

the other acts of child abuse that the court found father committed.

27
2. Constitutional Considerations

¶ 65 Father claims the trial court erred by failing to consider his

constitutional rights before allocating decision-making. We

disagree for the same reasons set forth supra Part II.C.4.

IV. Newly Discovered Evidence

¶ 66 After the permanent orders, father filed a C.R.C.P. 59 motion,

asserting that there had been positive developments in his

relationship with F.B. since the permanent orders hearing and

citing recent status reports from Dr. Bresnick as newly discovered

evidence. The court denied the motion, concluding that evidence

that came into existence after the hearing wasn’t “newly-discovered

evidence” under C.R.C.P. 59(d)(4).

¶ 67 Father contends that the court erred by denying his motion on

those grounds. However, because we have reversed the parenting

time order as to F.B. and because the court must consider F.B.’s

and the parties’ circumstances at the time of remand, we need not

consider this contention.5

5 Father’s C.R.C.P. 59 motion also alleged that there was newly

discovered evidence as to C.B. Because father doesn’t raise this
issue on appeal, we don’t consider it.

28
V. Disposition

¶ 68 We reverse the portion of the trial court’s permanent orders

regarding the allocation of father’s parenting time with F.B. and

remand for proceedings consistent with this opinion.

¶ 69 We affirm in all other respects.

JUDGE FREYRE and JUDGE GROVE concur.

29
23CA1879 Marriage of Battles 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1879
Arapahoe County District Court No. 21DR31702
Honorable Cajardo Lindsey, Judge

In re the Marriage of

Meghann Mary Ward Battles, n/k/a Meghann Mary Ward McPherson,

Appellee,

and

Cort Owen Battles,

Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Meghann Mary Ward McPherson, Pro Se

Caroline C. Cooley, Christopher J. Linas, Castle Rock, Colorado, for Appellant
¶1 In this dissolution of marriage proceeding, Cort Owen Battles