Colorado Supreme Court on Parents’ Getting Back Custody of Children After Voluntarily Appointing Temporary Guardians

A very interesting case handed down Monday, In the Matter of D.I.S. and Sidman v. Sidman (4-3 vote). Here’s the key legal issue, and the holding:

Reviewing an unpublished opinion of the court of appeals, we address whether, in seeking to terminate a guardianship established by parental consent, fit parents may invoke the constitutional presumption that they make custodial decisions in the best interests of their child. The United States Supreme Court enunciated this presumption in Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), which we have implemented in In re Adoption of C.A.,137 P.3d 318 (Colo. 2006), and in In re B.J., 242 P.3d 1128 (Colo. 2010)….

Just as the fit parents’ decision to consent to a guardianship is presumed to be in the best interests of the child, so too their decision to seek termination of the guardianship and regain care, custody, and control of the child is presumed to be in the best interests of the child, unless the guardianship order contains an express provision limiting the parents from asserting this presumption. In the absence of such a limitation in the guardianship order, as here, when fit parents seek to terminate the guardianship, guardians bear the burden of demonstrating by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child….

[T]he Troxel presumption and the court’s statutory role in considering what is in the child’s best interests can be accommodated through the guardian bearing the burden of proof by a preponderance of the evidence. We hold that, in a proceeding brought by fit parents to terminate a guardianship established by consent under section 15-14-204(2)(a), guardians must demonstrate by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child. This is consistent with section 13-25-127(1), C.R.S. (2010), which applies a preponderance standard when the degree of proof is not otherwise specified. Our holding in this case recognizes that non-custodial parents seeking to terminate a guardianship are not in the same position as the custodial parents in C.A. and B.J….

Accordingly, in this termination of guardianship proceeding, the trial court must give “special weight” to the parents’ decision to terminate the guardianship, and the non-parent guardians have the burden to show by a preponderance of the evidence that terminating the guardianship is not in the best interests of the child. This accords with Colorado’s longstanding history of affording respect to parental authority while consistently recognizing that the best interests of the child must be taken into account….

This is not to say that parents who petition for termination of a guardianship will automatically regain custody of the child; the longer the child resides with and is cared for by guardians, the more likely it may be that guardians, despite the presumption in parents? favor, will be able to show by a preponderance of evidence that the best interests of the child are served by continuation of the guardianship.

So though this is billed as a victory for the parents, note that the parents may still lose based simply on a finding that it’s more likely than not in the child’s best interest to stay with the guardian. This is a very different standard than for termination of the custodial rights of parents who currently have custody — there, the parents win unless there’s clear and convincing evidence that they are unfit parents (and not just that shifting custody is in the child’s best interests). I’m not saying this to criticize the court’s decision; it may well be that when a child is raised for nearly all of his several-year-long life by the guardians, the switch back to the biological parents and away from those people whom the child has long seen as parents will be too traumatic. I just want to note that the standard adopted by the decision is not particularly pro-biological-parent.

In any case, here’s part of the majority’s rationale for at least providing some protection for the parents, followed by the majority’s statement of the key facts of the case:

Failure to accord the parents a presumption in favor of their decision to terminate the guardianship would penalize their initial decision that it was in the best interest of the child to enter into a consensual guardianship relationship with the non-parent relatives under section 15-14-204(2)(a). An inquiry that focuses solely on the best interest of the child creates the possibility that the desires of fit and suitable parents may lose out to guardians who are able to provide the child a nicer home, a better school district, or more extracurricular activities. The legislature did not intend to foster a system in which “the poor should beget the children and the rich should rear them.” Wilson, 48 Colo. at 468, 111 P. at 26.

There would be a chilling effect on parental willingness to give consent to a guardianship under section 15-14-204(2)(a) — even when circumstances dictate that it would be in the best interests of the child — if fit parents’ interests are not appropriately recognized and protected when they seek to terminate the consensual guardianship. Few parents are likely to enter into a consensual guardianship designed to care for their child while they are experiencing and addressing significant problems that threaten the parent-child relationship if, by doing so, they must surrender their liberty interest in the care, custody and control of their child.

The facts:

D.I.S. was born to Alan and Sheryl Sidman (“father” and “mother,” or collectively, “the parents”) in Massachusetts in 1999. Soon after his birth, mother developed severe post-partum depression that prohibited her from providing care for the child. While father attempted to care for both mother and D.I.S., the situation became untenable. At nine months of age, the parents placed D.I.S. with his paternal grandparents, who also lived in Massachusetts. For the next ten months father visited his child on a weekly basis. However, based on the grandparents’ age and health issues, the parents decided to place D.I.S. in the care of the child’s paternal aunt and uncle, Michael and Renee Sidman of Colorado Springs (“the guardians”).

In May of 2001 father flew to Colorado with D.I.S. and placed him in the home of the guardians. D.I.S. was nineteen months old. Prior to relocating their child to Colorado, the parents delegated to these relatives the power to perform “any and all acts necessary for medical, educational, residential, or other care” of D.I.S., pursuant to a signed power of attorney. § 15-10-104, C.R.S. (2010). In addition, father signed a letter addressed to the guardians detailing the reasons for placing his child in their care, with the understanding that the guardians would “support [father’s] efforts to visit with and be in [D.I.S.’s] life and ultimately be reunited with D.I.S. in [the parents’] home.”

Seven months after D.I.S.’s arrival in Colorado, the guardians obtained the services of legal counsel and petitioned the El Paso County District Court for guardianship of D.I.S., asserting this would allow them to travel out of state with D.I.S., provide him with medical insurance, and make emergency medical decisions on his behalf. While reluctant to agree, the parents signed consents to the guardianship, inserting the word “temporary” in the language granting their consent. The parents also provided an addendum explaining their preference to extend the power of attorney rather than enter into a guardianship, and that their consent to the guardianship rested on assuming that the guardianship, based as it was on a joint agreement with their relatives, would support ultimate reunification of D.I.S. with the parents.

At the guardianship hearing in January 2002, father appeared by phone without counsel. The magistrate engaged in a colloquy with father regarding the consent forms both parents had executed, pointing out that these forms “specify a consent to temporary guardianship.” The magistrate then said that Colorado’s guardianship statutes utilize “temporary” as “a term of art” limited to six months as opposed to indefinite-in-¬duration “permanent guardianships.” Father indicated he understood this guardianship would likely have to be longer than six months but its object would be reunification of the parents with their son. The magistrate assured father he could request termination of the guardianship if the parents’ situation changed and, if the parents were to withdraw their consent, the “guardianship will cease to exist.” The magistrate’s written order establishing the guardianship did not contain such a limitation on the guardianship; rather, the order recites that the parents knowingly and voluntarily entered into an “unlimited” guardianship with the guardians subject to a duty “to contact and consult with [the father] for major decisions.”

In late November 2002, mother’s post-partum depression appeared to be improving and the parents discussed with the guardians their desire to reunite with their child. However, reunification discussions halted in July 2003, when mother had a psychological breakdown. On the day of the breakdown, mother became paranoid that the guardians had planted a bomb in the car she and father were driving, and ultimately commandeered another person’s vehicle, leading police on a high speed chase. After apprehension by the authorities, mother was hospitalized for approximately four to six weeks and diagnosed with bi-polar disorder. All criminal charges were dismissed based on her inability to form criminal intent.

After her psychological breakdown and discharge from the hospital, mother sought treatment from a psychiatrist. Due to consistent therapy and appropriate medication to treat her bi¬polar disorder, mother has been stable for over seven years.

In April of 2004, the parents again initiated reunification discussions with the guardians. At this point, more than half of D.I.S.’s life had been spent in Colorado Springs, and he perceived the guardians as parental figures. Neither father nor mother had visited D.I.S. with regularity; mother’s first visit occurred in June of 2004, over three years after the guardians assumed care of D.I.S. Father’s visits were more consistent, occurring approximately two to three times per year, but his attempts to procure medical attention for his wife made traveling across the country difficult. The guardians viewed the parents’ inconsistent visitation with D.I.S. as a lack of commitment to their son, a contention the parents vigorously dispute. Throughout the entirety of the guardianship, the parents have financed D.I.S.’s care.

Both parties retained experts, in Colorado Springs and Boston, to develop a reunification plan in late 2005 and early 2006, but the record shows no meeting of the minds as to what such a plan might entail. The parties and their experts labored under disparate understandings; the Colorado expert viewed reunification as a conditional goal, to proceed only if it were in the best interests of D.I.S., while the Boston expert believed reunification was an undisputed, mutual goal of the parties and that the parties were going to work on the most appropriate way to transition the child back to his parents.

Reunification discussions eventually collapsed due to a myriad of conflicting expectations. Despite reassurances from the parents, the guardians refused to travel to Massachusetts with D.I.S. to visit the parents and other members of the extended family, for fear that the parents would begin legal proceedings to prevent D.I.S. from returning to Colorado. In addition, the guardians did not allow D.I.S. to spend the night with his parents in their hotel room during their visits to Colorado Springs. While the parents hoped to spend a significant amount of time with D.I.S. in the summer of 2006, as part of a slow transition plan to allow them to assume parental responsibility, the guardians frustrated these trips by scheduling several out-of-state vacations during the same time period. The parents felt that the guardians obstructed their attempts to visit D.I.S. and develop a deeper relationship with their son. In turn, the guardians maintained that the parents’ history of sporadic visits and mother’s lack of an independent relationship with D.I.S. posed an obstacle to reunification.

In June of 2006, the parents filed a motion to terminate the guardianship. Prior to the hearing, the district court magistrate entered two orders. In the first, dated August 16, 2006, the magistrate determined that the motion to terminate guardianship would be decided under the best interests of the child standard. The second, dated June 22, 2007, ruled that the parents were not entitled to a presumption that their decisions regarding the custody of D.I.S. were in his best interests, and that this presumption had been extinguished when the parents consented to the placement of the child with the guardians. The order further assigned the parents the burden of proof, by a preponderance of the evidence, to show that termination of the guardianship was in the best interests of D.I.S.

The hearing on the parent’s motion to terminate guardianship occurred in August, 2007. The court found that mother had resolved any health issues that prevented her from parenting D.I.S …. Nevertheless, relying on a child and family investigator (“CFI”) report, the trial court denied the parents’ motion to terminate the guardianship. The magistrate found that the parents had failed to demonstrate by a preponderance of the evidence that termination of the guardianship would be in the best interests of D.I.S. In particular, the court adopted the CFI’s view that removing D.I.S. from the guardians’ home would be “traumatic” for him, and his relationship to his father was more “avuncular” than parental. With regard to the child’ s mother, the court found her able to parent her child but noted the “dearth” of interaction between her and her child since his placement in Colorado. The magistrate appointed a parenting coordinator to develop a parenting schedule that would allow the parents to visit their child in Colorado every six weeks. The magistrate did not dispute the love and affection that the parents have for their child and acknowledged the consistent financial support that parents had given…