Peo in Interest of FM

24CA1471 Peo in Interest of FM 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1471
Weld County District Court No. 21JV262
Honorable Anita Crowther, Judge

The People of the State of Colorado,

Appellee,

In the Interest of F.M., a Child,

and Concerning J.O.,

Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Bruce T. Barker, County Attorney, David S. Anderson, Assistant County
Attorney, Greeley, Colorado, for Appellee

Jenna L. Mazzucca, Counsel for Youth, Salida, Colorado, for F.M.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, J.O. (mother)

appeals the juvenile court’s judgment allocating parental

responsibilities for F.M. (the child) to the child’s paternal

grandmother. We reverse the judgment and remand the case for

further proceedings.

I. Background

¶2 In April 2021, the Weld County Department of Human

Services received a referral indicating that the then-ten-year-old

child reported that her father sexually abused her and drank too

much; that she had homicidal ideations toward him; and that she

would kill herself if she had to go back to him. The Department

noted that the parents were involved in a “very contentious divorce

case” and that mother was living in Utah. After conducting an

investigation, the Department filed a petition in dependency and

neglect alleging concerns about the parents’ domestic violence and

substance use, as well as the child’s mental health.

¶3 The juvenile court granted temporary custody to the

Department, and the child was placed with her paternal

grandmother. Based on the parents’ admissions, the court

adjudicated the child dependent or neglected. The court then

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adopted treatment plans for both parents. Shortly thereafter, the

caseworker reported that mother began to comply with her

treatment plan by completing a psychological evaluation; engaging

in individual and family therapy; regularly communicating with the

Department; and attending in-person family time with the child.

¶4 In November 2021, the Department received an approved

home study under the Interstate Compact on the Placement of

Children (ICPC) for mother’s home in Utah, but the caseworker

reported that the home study did not include certain documents.

Around the same time, the caseworker noted that the child wanted

to move to Utah to live with their mother. In January 2022, mother

moved the juvenile court to order that the child be returned to her

in Utah, but the Department was still waiting for the remainder of

the ICPC documents. And by that point, counsel for youth (CFY)

reported that the child changed her mind and no longer wished to

move to Utah.

¶5 In the summer of 2022, the child began refusing to go to

family therapy or family time with mother. Consequently, mother

moved the juvenile court to find that the Department was not

making reasonable efforts and asked it to reinstate family therapy.

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Thereafter, the CFY moved for an allocation of parental

responsibilities (APR) to paternal grandmother.

¶6 Beginning in June 2023, the juvenile court held a four-day

APR hearing over the course of four months. In December 2023,

the court issued an order finding that: (1) mother had completed all

treatment requirements and was a fit parent; (2) father was not a fit

parent; (3) the caseworker’s testimony was not credible; (4) paternal

grandmother’s testimony was not credible, (5) the thirteen-year-old

child wanted to remain with paternal grandmother but was “not

sufficiently mature” to make that decision; (6) the Department had

not made reasonable efforts to reunite mother with the child; and

(7) the CFY failed to meet his burden. The court further found that

it was not in the child’s best interest for paternal grandmother to

have sole APR at that time, ordered the Department to arrange

reunification therapy, and held the APR motion in abeyance.

¶7 Six months later, the court heard additional testimony from

the family therapist, who the court found credible. The therapist

opined that the child was not afraid of mother, that she had no

safety concerns preventing reunification, and that she supported a

three-phase transition plan that would transition the child to Utah

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to live with mother. The therapist said the child could go back to

mother immediately and that such returns happen all the time;

however, she believed the transition plan was the more thoughtful

approach, given the communications difficulties among the family

members. The juvenile court reaffirmed its earlier finding that

mother was a fit parent and father was not. But it found that the

child’s relocation to Utah was not in her best interest and that

mother’s Troxel presumption had been overcome by clear and

convincing evidence. The juvenile court then issued an order

allocating parental responsibilities to paternal grandmother and

granting mother weekend parenting time twice per month. It

certified the APR judgment into the parties’ pre-existing domestic

relations case.

II. Applicable Law and Standard of Review

¶8 The Children’s Code authorizes a juvenile court to enter an

order allocating parental responsibilities and addressing parenting

time when it maintains jurisdiction in a case involving a child who

is dependent and neglected. § 19-1-104(5)-(6), C.R.S. 2024; People

in Interest of E.Q., 2020 COA 118, ¶ 10. When allocating parental

responsibilities in a dependency and neglect proceeding, the court

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must consider the legislative purposes of the Children’s Code

under section 19-1-102, C.R.S. 2024. People in Interest of J.G.,

2021 COA 47, ¶ 18. The overriding purpose of the Children’s Code

is to protect a child’s welfare and safety by providing procedures

through which the child’s best interests can be served. Id. at

¶ 19. Consequently, the court must allocate parental

responsibilities in accordance with the child’s best interests. Id.

¶9 Nonetheless, parents maintain a fundamental liberty interest

in the care, custody, and control of their children. See Troxel v.

Granville, 530 U.S. 57, 66 (2000). In Troxel, the Supreme Court

recognized that a parent who is adequately caring for his or her

child — a fit parent — is presumed to act in the child’s best

interests. Id. at 68-69. Thus, if the court determines that a parent

in a dependency and neglect proceeding has become fit, it must

apply the Troxel presumption before awarding an APR to a

nonparent. J.G., ¶¶ 21, 27; see also People in Interest of N.G.G.,

2020 COA 6, ¶¶ 18-19.

¶ 10 Applying the Troxel presumption requires the court to accord

“at least some special weight to the parent’s own determination

regarding the child’s best interests.” J.G., ¶ 21 (quoting Troxel, 530

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U.S. at 70). This includes the parent’s determination that he or she

should have sole discretion to determine when a nonparent may

visit the child. N.G.G., ¶ 15.

¶ 11 The Troxel presumption may only be rebutted if the nonparent

shows by clear and convincing evidence that the parent’s

determination is not in the child’s best interests and that the

nonparent’s request is in the child’s best interests. Id. at ¶ 16; see

also In re Parental Responsibilities Concerning B.J., 242 P.3d 1128,

1132 (Colo. 2010). The ultimate burden is on the non-parent. Id.

The court must also identify special factors that support entering

an order contrary to the parent’s wishes. J.G., ¶ 22; see also In

Interest of C.T.G., 179 P.3d 213, 226 (Colo. App. 2007) (overturning

a visitation order based on Troxel when the non-parent failed to

present evidence of special circumstances to justify an order

contrary to the parents’ wishes).

¶ 12 Allocating parental responsibilities is a matter within the

sound discretion of the juvenile court. In re Parental Responsibilities

Concerning B.R.D., 2012 COA 63, ¶ 15. A court abuses its

discretion when its ruling is “manifestly arbitrary, unreasonable, or

unfair, or when it misapplies the law.” People in Interest of M.H-K.,

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2018 COA 178, ¶ 60. Further, we will not disturb a court’s factual

findings unless they are (1) unsupported by the record, see J.G.,

¶ 17, or (2) supported by the record, but we are nonetheless left,

after a review of the entire evidence, with the firm and definite

conviction that a mistake has been made, see Indian Mountain Corp.

v. Indian Mountain Metro. Dist., 2016 COA 118M, ¶ 31. Whether a

court applied the correct legal standard in making its findings,

however, is a question of law that we review de novo. J.G., ¶ 17.

III. Discussion

¶ 13 Mother contends that the juvenile court erred by concluding

that her Troxel presumption had been overcome. She also argues

that the record did not support the court’s finding that an APR to

paternal grandmother was in the child’s best interests. Because

these issues are intertwined, we address them together and

conclude that the court’s APR judgment constituted an abuse of

discretion.

a. Additional Background

¶ 14 At the end of June 2023, the juvenile court began its hearing

on the CFY’s motion for an APR to paternal grandmother. At that

time, the court heard testimony from the caseworker, the child,

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paternal grandmother, maternal grandmother, maternal

grandfather, and an expert witness endorsed by mother. In

September 2023, the hearing concluded after mother and her expert

witness testified. Three months later, the court issued an order

holding the APR in abeyance for six months. It found, as relevant

here, the following:

• By the time the child began refusing to attend family time

and family therapy, mother had completed her treatment

plan and was “by all accounts . . . a fit and proper parent.”

• The Department “failed to implement remedies or make any

attempts to reunify [mother and the child] for over a year,”

which constituted a lack of reasonable efforts.

• The caseworker was not credible “regarding multiple areas

of her testimony.”

• The child was not sufficiently mature enough to make the

initial decision to refuse all contact with mother, and she

was not mature enough to make that decision at the time of

the hearing; it was “unfair that the adults in this case

expected her to.”

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• Paternal grandmother’s testimony that she was “willing to

encourage the relationship and communicate with mother

regarding [the child] was not credible.”

• At that time, it was “not in [the child’s] best interest[s] for

[paternal grandmother] to have sole [APR], and the CFY has

failed to meet his burden.”

¶ 15 Over the six months following the juvenile court’s order, it held

several review hearings but did not take additional evidence related

to the APR motion. In May 2024, mother filed a forthwith motion

for a court-ordered plan to return the child to her. At that time, she

proposed a transition plan that would start with her exercising

extended parenting time in Colorado and eventually end with the

child moving to Utah and an APR to mother. Around the same

time, the caseworker filed a family services plan which indicated

that paternal grandmother told the head of the Department’s child

support division that father was living with her and was providing

all of the child’s care and transportation, despite father’s failure to

comply with substance abuse treatment and random urinalysis.

But neither father nor paternal grandmother had informed the

caseworker of this apparent change in living arrangements.

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¶ 16 In June 2024, the court held another hearing at which only

the family therapist testified. At the end of that hearing, the court

stated that this case was “essentially a domestic relations case” and

that it did not need another hearing or any argument to rule on the

APR motion. But it ordered the Department to file an updated

family services plan and all parties to file updated, “ideal” proposed

parenting plans before it entered its final APR judgment. Notably,

the Department’s updated family services plan reiterated that father

may be living in the home with the child. It also stated that father’s

recent urinalysis result was abnormal and that he reported he had

relapsed. And, contrary to father’s representations that he had

engaged in domestic violence treatment, “it was discovered that [he]

only attended one session and was dismissed from treatment for

not being honest with the treatment provider.” Moreover, the

Department reported that the relationship between mother and the

child is “positive”; that there were no safety concerns related to

mother; and that nothing in the child’s medical records indicated

that the child was having direct anxiety from her family time with

mother.

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¶ 17 Over a year after the APR hearing started, the juvenile court

entered a final APR judgment granting joint decision-making

between mother and paternal grandmother and ordering that the

child’s primary residence remain with paternal grandmother while

mother would have weekend parenting time twice per month. The

court found, as relevant here, the following:

• “Mother is a fit and proper parent,” but “father is not fit.”

• “At the APR hearing [conducted in June and September

2023], the Department and [CFY] presented substantial

evidence to rebut the presumption that mother will act in

the child’s best interests, including [the child’s] own

testimony.”

• The family therapist [who testified in 2024] was the “only

credible professional to provide evidence” who had worked

with both mother and the child.

• “Mother’s Troxel presumption . . . [was] overcome by clear

and convincing evidence as demonstrated by the

Department and the CFY at the APR hearing, and by the

[family therapist’s] testimony . . .”

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• “Mother’s request for the child to move immediately to Utah

[was not] in the child’s best interest[s],” and a move to Utah

would be detrimental to the child’s emotional and mental

health.

¶ 18 The court made no findings concerning the three-phase

transition plan mother proposed and with which the family

therapist agreed.

b. Analysis

¶ 19 We begin by acknowledging that the juvenile court correctly

articulated the applicable legal standards for determining whether

an APR to paternal grandmother could be entered over mother’s

objection. Specifically, the court noted that because mother was a

fit parent, she was entitled to a Troxel presumption, and that the

presumption could only be rebutted by clear and convincing

evidence showing that mother’s determination was not in the child’s

best interests and that the CFY’s request was.

¶ 20 Nonetheless, we conclude that the court abused its discretion

by relying largely on evidence it had previously found to be

insufficient and making findings that conflicted with its prior

findings without explanation. See S. Cross Ranches, LLC v. JBC

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Agric. Mgmt., LLC, 2019 COA 58, ¶¶ 46-49 (holding that district

court abused its discretion by making inconsistent rulings without

explanation or consideration of prior ruling). Recall that in

December 2023, after hearing four days of evidence on the CFY’s

motion for an APR to paternal grandmother, the court specifically

found that the CFY “failed to meet his burden” and that an APR to

paternal grandmother was not in the child’s best interest. But six

months later, the court credited that same evidence to support an

opposite finding — that the CFY met his burden to overcome

mother’s Troxel presumption and to show that an APR to paternal

grandmother was in the child’s best interest. More specifically, in

its final APR judgment, the court relied heavily on “the child’s own

testimony” despite its earlier finding, based on the same evidence,

that the child was not sufficiently mature enough to be making

decisions about whether she should have parenting time with

mother. The court also found that the Department presented

“substantial evidence” despite its earlier finding, based on the same

evidence, that the Department’s only witness, the caseworker, was

not credible. It further found that paternal grandmother “supported

[the child’s] relationships with both parents” despite its earlier

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finding, based on the same evidence, that paternal grandmother’s

testimony that she was willing to encourage the child’s relationship

with mother “was not credible.”

¶ 21 We acknowledge that the juvenile court also credited the

family therapist’s testimony, which was the only new evidence it

heard after its first order finding that the CFY failed to meet his

burden. But the court did not explain how the therapist’s

testimony, on its own, showed, by clear and convincing evidence,

that mother’s request for the child to move to Utah was not in the

child’s best interests and that the CFY’s request for an APR to

paternal grandmother was. True, the therapist testified that a move

to Utah could impact the child’s relationships with the rest of her

family and that the child was not “imagining a life in Utah.” She

also testified that the child had been having extreme anxiety, and

that the child’s individual therapist had said the conversation about

moving to Utah had been “triggering.” And the juvenile court cited

this testimony in its order. But even assuming that these were the

“special factors” the court relied upon in making its determination

under Troxel, it did not explain how these factors justified

interfering with mother’s wishes, particularly given the court’s

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determination that mother was the child’s only fit parent. See J.G.,

¶ 44.

¶ 22 Additionally, we note that the family therapist testified that

that she could not say if an immediate move to Utah would have a

positive or negative impact on the child; that mother and the child

had a “foundation and a mutual reciprocated emotional

connection”; that the “best case scenario” would be for mother to

“gradually shift into [a] parent-child dynamic” with the child; and

that the child was not afraid of mother in any way. And she stated

that “it was about time” for mother to be given the opportunity to

parent her child and that she had never been part of a case “where

a mom finished her treatment plan and [had] done the work and

showed up, [but] hadn’t been given at least the opportunity to . . .

be a parent to her child.” Although we do not reweigh the evidence

on appeal, we cannot decipher, in light of the foregoing, how the

juvenile court concluded that the therapist’s testimony — combined

with testimony it had previously found incredible or insufficient —

was sufficient to support its finding that mother’s request for the

child to move to Utah was not in the child’s best interests. See

Indian Mountain Corp., ¶ 31.

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¶ 23 Moreover, the record indicates that although the juvenile court

was required to base its determination on the circumstances

existing at the time of the proceeding, see N.G.G., ¶ 29, by the time

it entered its final APR judgment, it had been over a year since it

heard the majority of the evidence. And, according to the court,

“things [had] changed since the last court order.” Indeed, a week

before the family therapist testified, the court stated it would need

to know “what happened in the past six months” and anticipated

“hearing from” the child, the family therapist, the caseworker, and

the parents. And by that point, the Department had already filed at

least one family services plan in which the caseworker reported that

father was apparently living with paternal grandmother and the

child despite the Department’s concerns about his sobriety and

treatment plan compliance. Then, at the hearing, the family

therapist testified that “lots of things [had] changed” since the “last

court hearing,” including having a “new team of people working

with [the family], a new caseworker, a new supervisor, [and] a new

therap[ist].” After that, the Department filed another family

services plan in which the caseworker reiterated the Department’s

concerns about father’s sobriety and lack of domestic violence

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treatment but acknowledged mother’s significant progress and

noted the Department’s lack of concerns about mother’s

relationship with the child. Even so, by the time it entered the APR

judgment, the court apparently changed its mind about the

necessity of more up-to-date testimony from any of the parties and

instead relied on evidence that was presented a year before it

entered its final judgment. Although we do not imply that a court

may never rely on year-old evidence, we conclude that in this

instance, such reliance constituted an abuse of discretion,

particularly considering that the court acknowledged that

circumstances had changed, and it had already found the year-old

evidence to be insufficient to support an APR to paternal

grandmother.

IV. Disposition

¶ 24 The judgment is reversed, and the case is remanded to the

juvenile court. On remand, the court must take additional evidence

concerning the current circumstances and (1) apply the Troxel

presumption in favor of mother’s decisions regarding the child; (2)

determine whether the presumption has been rebutted by clear and

convincing evidence showing that mother’s decisions are not in the

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child’s best interests; and (3) place the ultimate burden on the CFY

to show that the APR to paternal grandmother is in the child’s best

interests. If the court determines the CFY has met the burden to

overcome mother’s Troxel presumption, the court must identify

special factors that justify interfering with mother’s decisions.

JUDGE SCHOCK and JUDGE SULLIVAN concur.

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