of Crouch

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 14, 2021

2021COA3

No. 19CA2084, Marriage of Crouch — Family Law — Post-
dissolution — Modification of Custody or Decision-making
Responsibility

A division of the court of appeals addresses the appropriate

burden of proof to apply when considering a request to modify the

allocation of decision-making responsibility between parents for

vaccinating their children when one parent has a religious-based

objection to vaccination. The division concludes that when applying

the endangerment standard under section 14-10-131(2)(c), C.R.S.

2020, it is error for a court to impose an additional burden on the

moving parent to show substantial harm to the children.
COLORADO COURT OF APPEALS 2021COA3

Court of Appeals No. 19CA2084
La Plata County District Court No. 17DR30001
Honorable Suzanne F. Carlson, Judge

In re the Marriage of

Rebecca Greene Crouch,

Appellee,

and

William Blake Crouch,

Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE PAWAR
J. Jones and Berger, JJ., concur

Announced January 14, 2021

The Law Firm of Lisa Ward, LLC, Lisa Ward, Donald Lawrence, Jr., Durango,
Colorado, for Appellee

Willoughby & Associates, Kim Willoughby, Kaela Zihlman, Golden, Colorado,
for Appellant
¶1 In Colorado, parents can elect not to vaccinate their children.

But what happens when parents divorce and one parent later has a

change of heart about vaccinating the children, while the other

maintains a religious-based objection to vaccination? In this

post-dissolution of marriage dispute, we address the appropriate

burden of proof for the district court to apply when considering the

request of William Blake Crouch (father) to modify joint medical

decision-making responsibility to allow him to vaccinate the

children, over the objection of Rebecca Greene Crouch (mother).

¶2 Following a hearing on father’s motion to modify medical

decision-making responsibility, the district court found that

remaining unvaccinated “endangers the health of the children.”

But, because mother objected to vaccinating the children based, in

part, on her religious beliefs, the court imposed an additional

burden on father “to prove substantial harm to the children” in

order to overcome “[m]other’s right to exercise religion freely.” The

court found that father failed to meet the additional burden and

denied his request to modify medical decision-making

responsibility.

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¶3 Father appeals the district court’s order. We reverse the order

and remand the case for further proceedings.

I. Background

¶4 Mother and father divorced in 2017, and their parenting plan

was approved by the court and incorporated into the decree. In

relevant part, the plan provides for joint medical decision-making

authority and that “[a]bsent joint mutual agreement or court order,

the children will not be vaccinated.”

¶5 In 2018, however, father had a change of heart about the

children remaining unvaccinated. Father said that his position

evolved after the parties’ divorce when he researched the issue and

concluded that the children should be vaccinated. He described a

“wake-up moment” he had when traveling for business to Seattle

while the city was experiencing a measles outbreak, and then being

afraid to be around the children after he got home out of fear of

unknowingly exposing them. He said that he travels often for work,

including to international destinations, and that he wanted to travel

to other countries with the children and believed their world would

be increasingly too small without such opportunities. He further

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expressed concern about the children contracting

vaccine-preventable diseases and exposing others.

¶6 For her part, mother opposed vaccinating the children, in part,

because it conflicted with her religious beliefs. Father, however,

asserted that he did not hold the same religious beliefs as mother

and that the children did not adhere to restrictions dictated by

mother’s religion during his parenting time. In addition to her

religious-based objection, mother also argued that vaccines pose a

risk of side effects for the children. Specifically, because mother

has an autoimmune disease and the children all had midline

defects at birth, she asserted that vaccinations for the children are

contraindicated.

¶7 Because they were at an impasse, the parties stipulated to the

appointment of a parenting coordinator/decision-maker (PCDM) to

decide the issue. After noting the parties’ respective positions, the

PCDM declined to render a decision, stating that the issue was

outside of her expertise and likened rendering a decision on it to

“practicing medicine without a license.”

¶8 Having received no decision from the PCDM, father filed an

expedited motion with the district court seeking an order allowing

3
him to have the children vaccinated in accordance with the Centers

for Disease Control and Prevention guidelines and awarding him

sole medical decision-making responsibility. Mother responded,

objecting to vaccinations for the children and to father’s request for

sole medical decision-making responsibility, and the district court

set a hearing on the matter.

¶9 Each party testified at the hearing. Additionally, father

presented expert testimony from a physician, who was qualified as

an expert in pediatrics and vaccinations. Mother did not present

any expert testimony or any witnesses other than herself.

¶ 10 After the hearing, the court credited father’s expert’s

testimony, rejected mother’s medical-based objections, and found

that the “failure to vaccinate endangers the health of the children.”

Recognizing that mother had also asserted a religious-based

objection, however, the court went on to find that vaccination would

interfere with mother’s “right to exercise religion freely,” and

therefore imposed an “additional burden” on father “to prove

substantial harm to the children” if they remained unvaccinated.

The court ruled that father had not met this additional burden and

denied his motion to modify. The court went on to find, however,

4
that if any of the children are wounded, thereby requiring a tetanus

shot; if a disease outbreak occurs in the community preventable by

vaccination; or if the children are to travel by air or internationally,

such circumstances would constitute “substantial harm warranting

a forthwith modification of decision-making.” And because the

court found that “air travel and international travel do create

substantial harm,” it prohibited the children from air travel or

international travel unless they are vaccinated.

¶ 11 Father moved to reconsider the court’s order under C.R.C.P.

59. In denying his motion, the court clarified that it was not ruling

that the children could not be vaccinated, but only that father had

not met his burden to modify decision-making responsibility so that

he could make that decision.

¶ 12 Father appeals, contending that the court erred by (1)

enforcing what he describes as an unenforceable “agreement to

agree” in the parties’ parenting plan; (2) making inconsistent

findings under the endangerment standard; (3) failing to apply a

strict scrutiny analysis to mother’s religious rights objection; and

(4) failing to consider and weigh his fundamental rights as well as

mother’s rights. We conclude that the court erred by misapplying

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the endangerment standard in section 14-10-131(2)(c), C.R.S. 2020.

Consequently, we reverse the court’s order and remand the case for

further proceedings.

II. Father’s Claim that the Parenting Plan’s Vaccination Provision Is
an Unenforceable “Agreement to Agree” Was Not Preserved

¶ 13 Father initially claims that the parties’ parenting plan

provision stating that the children would not be vaccinated unless

the parties agree is unenforceable as an “agreement to agree.”

Because father failed to argue this issue in the district court,

however, he cannot argue it for the first time on appeal. See In re

Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo. App. 2008); see

also Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182,

1188 n.4 (Colo. App. 2011) (“A party’s mere opposition to its

adversary’s request . . . does not preserve all potential avenues for

relief on appeal. We review only the specific arguments a party

pursued before the district court.”).

¶ 14 Father cites to his post-trial motion — in which he asserted

that the court must decide the vaccination issue because the

parties disagree on it — as sufficient to preserve the argument he

now presents. We disagree. Father did not, at any point during the

6
proceedings or in his post-trial motion, argue that the vaccination

provision was an unenforceable agreement to agree. Rather, he

asked the district court to modify the vaccination provision and

medical decision-making responsibility so that he can have the

children vaccinated, and that is the issue on which the court ruled.

Accordingly, the enforceability of the agreement’s vaccine provision

has not been preserved, and we do not address it. See Melat,

Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,

¶ 18; Valentine, 252 P.3d at 1188 n.4.

III. Which Legal Standard Applies: Endangerment, Substantial
Harm, or Strict Scrutiny?

¶ 15 Father’s remaining contentions challenge various burdens of

proof that he contends the court either improperly applied or

improperly overlooked. First, father argues that the court made

inconsistent findings under the endangerment standard by finding

that “failing to vaccinate the children endangers their health,” but

also finding that father did not meet his “burden of showing

substantial harm to the children.” Next, he argues that because

mother raised a religious objection to vaccination, the trial court

should have applied a strict scrutiny analysis and found a

7
compelling state interest to overcome her objection. Finally, father

argues that because he has a constitutional right to travel and to

parent his children, the court erred by failing to recognize and

weigh the parents’ competing constitutional interests.

¶ 16 We address father’s remaining issues collectively to determine

the correct legal standard to apply, and, in doing so, we conclude

that by subjecting father to the “additional burden” to prove

substantial harm, the court misapplied the endangerment standard

in section 14-10-131(2)(c).

A. Preservation

¶ 17 Initially, we reject mother’s argument that we may not review

father’s contention as it applies to the court’s findings of

endangerment and substantial harm because father did not raise it

in the district court until his post-trial motion. “[A] party is not

required to object to the trial court’s findings in the trial court to

preserve a challenge to those findings.” People in Interest of D.B.,

2017 COA 139, ¶ 30; see C.R.C.P. 52. Thus, we may review father’s

challenge to the court’s endangerment and substantial harm

findings in relation to the application of the proper legal standard.

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B. Additional Background

¶ 18 Based on father’s expert’s testimony, the court made the

following factual findings in applying section 14-10-131(2)(c):

• “Because of the way diseases are transmitted and

because Durango [where the children live] is a tourist

destination, the Court finds failure to vaccinate

endangers the health of the children even though they

are home schooled.”

• Vaccination provides benefits to the children, including

“preventing severe illness, permanent severe damage, and

death.”

• The risks of vaccination are “extremely low.”

¶ 19 Neither party has challenged the court’s factual findings, and

because they are supported by the record, they are binding on us

on appeal. See In re Marriage of Newell, 192 P.3d 529, 534-

35 (Colo. App. 2008) (declining to disturb endangerment findings

that were supported by the record). Father’s physician expert

witness disagreed with mother’s position on the medical risks of

vaccination. He further testified that although the parties’ oldest

child had a low percentage risk of contracting a vaccine-preventable

9
disease (because most people in the community have been

vaccinated), he had a high percentage risk of contracting such

diseases if he were exposed to an infected person, and the

repercussions for him could be severe.

¶ 20 The court expressly found that the children’s physical health

was endangered, see § 14-10-131(2)(c). It is unclear, however,

whether it considered the second prong of section 14-10-131(2)(c),

that is, whether the harm likely to be caused by the change in

decision-making is outweighed by the advantage to the child.

Instead, the court expanded its analysis and determined that

because vaccinating the children would interfere with mother’s right

to freely exercise her religion, father must meet an additional

burden of showing that the failure to vaccinate caused the children

substantial harm. It concluded that father did not meet that

burden and therefore denied his motion to modify.

C. Legal Standards

¶ 21 Allocating parental responsibilities is a matter within the

sound discretion of the district court. In re Parental Resps. of

B.R.D., 2012 COA 63, ¶ 15. However, we review de novo whether

the district court applied the correct legal standard. Id.

10
¶ 22 A court shall not modify a decree allocating decision-making

responsibility unless it finds, based on facts that have arisen since

the decree, that a change has occurred in the circumstances of the

child or of a party to whom decision-making responsibility was

allocated and that modification is necessary to serve the child’s best

interests. § 14-10-131(2). In applying these standards, the court

shall retain the decision-making responsibility allocation from the

prior decree unless, as relevant here, doing so “would endanger the

child’s physical health” and the harm likely to be caused by a

change in decision-making responsibility is outweighed by the

advantage to the child. § 14-10-131(2)(c); see B.R.D., ¶¶ 17-18.

D. Endangerment, Strict Scrutiny, and Substantial Harm
Under McSoud

¶ 23 The district court relied on In re Marriage of McSoud, 131 P.3d

1208 (Colo. App. 2006), to impose the additional burden on father

to show substantial harm after it found endangerment under

section 14-10-131(2)(c). In doing so, the court erroneously applied

the burden that applies when the government — here, the court —

interferes with a parent’s constitutional right, instead of the burden

applicable when allocating sole decision-making to one parent over

11
the other. To be sure, father claims, on the one hand, that the

court erred by making inconsistent findings regarding

endangerment and substantial harm and, on the other hand, that

the court erred by failing to apply a strict scrutiny analysis when

considering mother’s religious-based objection. To resolve both

claims, we briefly review the circumstances in McSoud that

warranted a strict scrutiny analysis and conclude that analysis is

inapplicable here.

¶ 24 The court in McSoud restricted the child’s mother from taking

the child to a church of her religious choosing during her parenting

time unless she also supported the child’s participation in father’s

church. 131 P.3d at 1214, 1219-20. A division of this court held

that by preventing mother from taking the child to her church

during her parenting time, the court unconstitutionally restricted

mother’s religious rights. And, to the extent the order also required

the mother to accompany the child to the father’s church services

during her parenting time, it further restricted her religious rights.

Id. at 1219. Because the court was imposing the restrictions, such

orders required strict scrutiny. That is, before the court could

infringe on the mother’s religious rights, it must show a compelling

12
state interest — for example, substantial harm to the child from the

mother’s actions in exposing the child to her religion and church.

Id. at 1220.

¶ 25 But the McSoud division applied strict scrutiny to require a

showing of a compelling state interest, namely, substantial harm,

only as to the portion of the court’s order where the court, as the

state actor, infringed on the mother’s religious rights. See id. at

1219-20; see also id. at 1216 (“Governmental interference with the

constitutional rights of a fit, legal parent is subject to strict

scrutiny.”).

¶ 26 Conversely, here, the court clearly recognized that it was not

mandating either vaccination or no vaccination for the children;

rather, it was ruling on father’s motion to modify vaccination and

medical decision-making responsibility, in which father sought to

make that decision for the children.

¶ 27 A parent’s free exercise rights are not implicated by a court’s

allocation of decision-making responsibility between parents.

Indeed, McSoud expressly rejects the need for strict scrutiny, and

therefore the need to show substantial harm, when allocating

decision-making responsibility between the child’s parents because,

13
in that context, the court is merely expanding one parent’s

fundamental right at the expense of the other parent’s similar right.

Id. at 1218-19. In short, the McSoud division upheld the lower

court’s allocation of religious decision-making responsibility

between the child’s two parents without requiring a showing of

substantial harm to withstand strict scrutiny. See id.; cf.

Vanderborgh v. Krauth, 2016 COA 27, ¶¶ 20-21 (noting that a

father’s fundamental rights to parent were not implicated in a

parenting time dispute between him and the child’s mother).

¶ 28 Accordingly, here, the court erred by imposing a heightened

burden on father to show substantial harm — a burden only

relevant to show a compelling state interest under a strict scrutiny

analysis — when considering his request to modify the allocation of

decision-making responsibility between him and mother. Instead,

once the court found, with record support, that father met his

burden to show that the failure to vaccinate endangers the

children’s physical health, and that the risks of vaccination are

“extremely low” as compared to its benefits of “preventing severe

illness, permanent severe damage, and death,” it should have

proceeded to the second prong of the inquiry, namely, whether the

14
harm likely to be caused by changing decision-making

responsibility outweighed the benefit to the child. See § 14-10-

131(2)(c).

¶ 29 Based on the above reasoning, we also reject father’s claim

that the court should have applied a strict scrutiny analysis to

mother’s asserted religious objection and erred by failing to do so.

As discussed, a strict scrutiny analysis is not required when

allocating decision-making responsibility between parents. So, the

court was not required, as father contends, to find that mother’s

religious-based objection established a compelling state interest

sufficient to withstand strict scrutiny. See McSoud, 131 P.3d at

1218-19 (holding that a compelling state interest need not be found

in order to allocate religious decision-making responsibility to only

one parent).

E. Parents’ Competing Constitutional Interests Under Ciesluk

¶ 30 Father last contends that the district court erred by not

recognizing his constitutional rights to parent and to travel, and by

failing to weigh his and mother’s competing rights in accordance

with In re Marriage of Ciesluk, 113 P.3d 135, 147-48 (Colo. 2005).

Though we reverse the court’s order on other grounds, because it

15
may arise on remand, we briefly address father’s contention and

specifically how the Ciesluk balancing of interests test applies in the

context of an endangerment finding under section 14-10-131(2)(c).

¶ 31 In Ciesluk, the supreme court determined that the trial court

erred by failing to weigh the parents’ competing constitutional

rights when it reviewed a modification of parenting time under a

best interests standard — specifically, the relocation standard

under section 14-10-129(2)(c). But here, the court was tasked with

considering a modification to decision-making responsibility under

an endangerment standard. And a division of this court has

observed that “while endangerment will necessarily encompass best

interests, few best interests arguments will show endangerment.”

In re Marriage of West, 94 P.3d 1248, 1251 (Colo. App. 2004).

Additionally, the Colorado legislature has recognized that children

have the right to be physically safe while in their parents’ care. §

14-10-123.4(1)(b), C.R.S. 2020.

¶ 32 Section 14-10-131(2) directs that a court “shall not modify”

decision-making responsibility unless circumstances have changed

such that a “modification is necessary to serve the best interests of

the child”; included among the list of circumstances that authorize

16
modification is when the court finds endangerment, as the court did

here. We do not interpret the statute to mean that parents’

constitutional interests are never appropriate considerations when

considering a request to modify decision-making responsibility

alleging endangerment. Rather, to the extent parents’

constitutional rights are relevant to the endangerment inquiry, they

should be considered and weighed — without heightened scrutiny

or deference. In other words, the parents’ constitutional rights

should be considered like any other factor that informs whether the

harm likely to be caused by a reallocation of decision-making

responsibility is outweighed by the advantage of the change. See §

14-10-131(2)(c).

¶ 33 Finally, based on the disposition reached in this opinion, we

need not address father’s challenge to the court’s restriction

preventing the children from traveling by plane or outside of the

United States with him.

IV. Conclusion and Remand Instructions

¶ 34 The order is reversed, and the case is remanded for the court

to reconsider father’s motion to modify medical decision-making

responsibility under section 14-10-131(2)(c) by applying the

17
endangerment standard consistent with this opinion. The court

may rely on the evidence presented at the prior hearing or, in its

discretion, provide the parties an opportunity to present any new

evidence concerning their or the children’s changed circumstances.

¶ 35 The proceedings on remand shall occur forthwith. See § 14-

10-128(1), C.R.S. 2020.

JUDGE J. JONES and JUDGE BERGER concur.

18