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In the Interest of A.D.

2023 COA 6. No. 22CA0402. Colorado Uniform Guardianship and Protective Proceedings Act—Guardianship of Minor—Judicial Appointment of Guardian—Parents Unwilling or Unable to Exercise Parental Rights—Minor’s Best Interest.

January 19, 2023

A.D. lived with his mother, his only living parent. When he was 16 years old, his relationship with her began to deteriorate and A.D. ran away from home six times following various disagreements. Following their last disagreement, A.D. spent over a month away from home. Not long after returning home, A.D. was taken to the emergency room after appearing to overdose while out with friends, and the hospital made a mandatory report to the Department of Human Services (DHS). After discussions with DHS, L.D. agreed that it was in A.D.’s best interest to stay with I.S. and V.T. (petitioners). DHS attempted to work with petitioners and L.D. to manage A.D.’s care, but L.D. was uncooperative, and petitioners filed for appointment as A.D.’s guardians. L.D. objected to the petition, sought dismissal of the action, and requested attorney fees. Petitioners requested appointment of a guardian ad litem (GAL) to represent A.D.’s interests. Over L.D.’s objection, the court appointed a GAL under CRS § 15-14-115. Ultimately, the court granted petitioners an unlimited guardianship over A.D.

On appeal, L.D. argued that the district court erred by proceeding under the guardianship statute. She maintained that the court should have transferred the dispute to a juvenile court to afford her the process associated with a dependency and neglect proceeding. Under CRS § 15-14-204(2)(c), courts may appoint a qualified guardian if the moving party proves, by clear and convincing evidence, that (1) the parent is “unable or unwilling” to exercise their parental rights, and (2) the guardianship is in the minor’s best interest, notwithstanding the parent’s opposition to the guardianship. The court must also articulate the “special factors” it relies upon that justify the interference with parental rights. Here, the district court properly determined that petitioners showed, by clear and convincing evidence, that L.D. was unable to exercise her parental rights and the guardianship was in A.D.’s best interest, and it articulated numerous “special factors” on which it relied, including the complete breakdown in communication and trust between L.D. and A.D. The district court’s action was consistent with the jurisdictional provisions of the Probate Code, the Children’s Code, and binding precedent. Accordingly, the district court did not err by appointing petitioners as guardians.

L.D. also contended that the district court erred by appointing a GAL before it entered a finding that L.D. was unable or unwilling to exercise her parental rights. However, the court provided a reason for the appointment and articulated the breadth of the GAL’s representation, so there was no error.

L.D. also argued that the district court’s order regarding financial support for A.D. was improper. The court’s order only required L.D. to provide petitioners with a portion of the monthly survivorship benefit that she received on behalf of A.D. while she was receiving those benefits. L.D. is no longer receiving those benefits, so this issue is moot.

Petitioners requested attorney fees under C.A.R. 39.1. However, they failed to explain the legal or factual basis for the award as the rule requires.

The order was affirmed and petitioners’ request for attorney fees was denied.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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