Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously reversed an order and remanded a case involving a mandatory protection order.
According to court records, in January 2019 Nicholas Licata was accused of waking long-term partner A.B., saying “You are going to die now” and assaulting her. Court records indicate the couple’s child N.B. witnessed the alleged assault.
A.B. escaped with N.B. and called Licata’s parents for help. When Licata’s father arrived, Licata was accused of stabbing him to death with a sword. Licata was charged with first-degree murder, second-degree assault and child abuse.
The court entered a mandatory protection order under Colorado Revised Statute 18-1-1001, naming A.B. and N.B. as protected parties.
At a bench trial, the court found Licata not guilty by reason of insanity. The court committed Licata to the custody of the Department of Human Services until he’s found eligible for release. The court also extended the MPO for 99 years.
Licata’s counsel believed the MPO extension was a mistake, filing a motion to clarify and confirm the dismissal of the MPO based on the fact an NGRI verdict constituted an acquittal. The prosecution opposed the motion, agreeing the NGRI verdicts were acquittals under Colorado law, but argued the law failed to “appreciate and account for the circumstances at hand.” The prosecution also argued, based on the circumstances of the case, Licata remained a danger to A.B., N.B. and others.
The court held a nonevidentiary hearing and issued a written order extending the MPO making multiple contentions, including MPOs don’t automatically terminate with an NGRI verdict because 18-1-1001 contains no NGRI language and the statutory intent of 18-1-1001 is to provide protection for victims and witnesses during the pendency of a criminal matter.
Licata appealed, arguing the court misapplied the MPO statute and controlling case law in extending the MPO. The Colorado Court of Appeals agreed, determining state case law deems an NGRI verdict an acquittal and a final deposition of action, concluding under the plain language of 18-1-1001(1) and (8)(b), the MPO terminated upon the NGRI verdict.
The appeals court reversed the order and remanded the case to vacate the MPO.
The Colorado Court of Appeals unanimously affirmed an order concerning a request for visitation from grandparents.
According to court records, Samuel O’Connor and Aliza O’Connor are the parents of two children. As of the filing date of the parents’ dissolution of marriage case they all lived in Colorado. Samuel O’Connor later relocated to Maryland with the children. Aliza O’Connor’s parents, William Greenbaum and Hadassa Gerber (the grandparents), live in New York.
The parents’ marriage ended in 2017. At that time Aliza O’Connor had been exhibiting symptoms of mental illness, according to court records. The parents’ dissolution decree included a parenting plan for the children. The plan provided that Samuel O’Connor is the children’s sole residential parent and decision-maker and Aliza O’Connor’s parenting time was limited to four one-hour supervised visits each week.
When Aliza O’Connor’s mental illness became more severe, Greenbaum petitioned for appointment as her conservator. The court granted the petition and appointed a guardian ad litem and attorney to represent Aliza O’Connor’s interests. A court never held Aliza O’Connor wasn’t a fit parent.
After the dissolution of the parents’ marriage, Samuel O’Connor and the grandparents weren’t able to agree on the terms and conditions of the grandparents’ visitation with the children. In 2019, the grandparents filed a petition in the dissolution of marriage case for visitation rights under Colorado Revised Statute 19-1-117.
In the petition, they argued they had enjoyed regular and positive contact with the children before the dissolution, but now Samuel O’Connor was thwarting their efforts to see the children. The grandparents asked the court to enter an order allowing them to visit the children no more than once a month and to have regular phone contact with them.
Samuel O’Connor didn’t dispute the children should maintain contact with the grandparents. But in his response to the grandparents’ petition, he alleged the children were at a critical point in their development and the grandparents’ court-ordered involvement in their lives would pose a risk to their well-being.
The district court conducted a hearing on the petition and made multiple findings including: the parties stipulated Aliza O’Connor believed the proposed court-ordered visitations with the grandparents were in the children’s best interests; Samuel O’Connor argued any grandparent visitation should be on his terms and the court compelling it wouldn’t be in the best interest of his children; Samuel O’Connor has done a commendable job nurturing a relationship between the children and grandparents; and the grandparents care deeply for the children and wouldn’t use the visitation time inappropriately.
In 2006, the Colorado Supreme Court put forward the standard of resolving disputes when both parents oppose the grandparents’ request for visitation in re Adoption of C.A. According to the Colorado Court of Appeals, C.A. rests on two principles: a parent has a fundamental right to the care, custody and control their children and a dispute between parents and grandparents regarding grandparent visitation isn’t a contest of equals. The appeals court noted the procedure adopted in C.A. required a presumption in favor of the parental visitation determination.
The court in C.A. held in a grandparent-parent visitation dispute, a district court needs to presume parental determinations about grandparent visitations are in the child’s best interest, but grandparents can overcome the presumption by convincing evidence at a hearing.
The district court applied the procedures outlined in C.A. and denied the grandparents’ petition. On appeal, the grandparents asked whether C.A. applied in this case where the parents took conflicting positions.
The appeals court wrote it was guided by the test in C.A. and the 2000 U.S. Supreme Court decision Troxel v. Granville. Under Troxel, courts are required to afford a presumptive or special weight to fit a parent’s decision regarding their child’s visitation with third parties. The appeals court held a district court cannot disregard the parents’ fundamental right to make decisions regarding their kids under the theory that the parents’ presumptions cancel each other out.
The appeals court noted that because the opposing parents decision concerning the best interest of their children is the only parental decision subject to judicial review under 19-1-117, the presumption under Troxel extended solely to the determination made by the opposing parent.
The division concluded because the district court afforded Samuel O’Connor his presumption and provided Aliza O’Connor with the opportunity to present evidence and arguments, and because the grandparents failed to meet their burden of proof to overcome Samuel O’Connor’s presumption by clear and convincing evidence, the lower court didn’t err denying the grandparents’ request for court-ordered visitation.
The order was affirmed.