Colorado § 15-14-204 - Judicial appointment of guardian - conditions for appointment - definition.

§ 15-14-204. Judicial appointment of guardian - conditions for appointment - definition.

(1) A minor or a person interested in the welfare of a minor may petition for appointment of a guardian.

(2) The court may appoint a guardian for a minor if the court finds the appointment is in the minor's best interest, and:

(a) The parents consent;

(b) All parental rights have been terminated;

(c) The parents are unwilling or unable to exercise their parental rights; or

(d) Guardianship of a child has previously been granted to a third party and the third party has subsequently died or become incapacitated and the guardian has not made an appointment of a guardian either by will or written instrument; however, the court shall not presume it is in the best interests of a child to be in the care of a parent in circumstances where a court has previously granted custody of a child to a third party.

(2.5) (a) For purposes of this subsection (2.5) only, "minor" means an unmarried individual who has not attained twenty-one years of age.

(b) The court may enter an order appointing a guardian of a minor, as defined in subsection (2.5)(a) of this section, and a determination of whether the minor shall be reunified with a parent or parents, when the requirements of subsection (2) of this section are met, the order is in the minor's best interests, and:

(I) The minor has not attained twenty-one years of age;

(II) The minor is residing with and dependent upon a caregiver; and

(III) A request is made for findings from the court to establish the minor's eligibility for classification as a special immigrant juvenile pursuant to 8 U.S.C. sec. 1101 (a)(27)(J).

(c) If a request is made for findings establishing the minor's eligibility for classification as a special immigrant juvenile under federal law and the court determines there is sufficient evidence to support the findings, the court shall enter an order, including factual findings and conclusions of law, determining that:

(I) The minor has been placed under the custody of an individual appointed by the court through the appointment of a guardian;

(II) Reunification of the minor with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found pursuant to state law. For purposes of this subsection (2.5)(c)(II), "abandonment" includes, but is not limited to, the death of one or both parents.

(III) It is not in the best interests of the minor to be returned to the minor's or parents' previous country of nationality or country of last habitual residence.

(3) If a guardian is appointed by a parent or guardian pursuant to section 15-14-202 and the appointment has not been prevented or terminated under section 15-14-203 (1) or the minor has consented to the appointment pursuant to section 15-14-203 (2), that appointee has priority for appointment. However, the court may proceed with another appointment upon a finding that the appointee under section 15-14-202 has failed to accept the appointment within thirty days after notice of the guardianship proceeding.

(4) If necessary and on petition or motion and whether or not the conditions of subsection (2) have been established, the court may appoint a temporary guardian for a minor upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor. Notice in the manner provided in section 15-14-113 must be given to the parents and to a minor who has attained twelve years of age. Except as otherwise ordered by the court, the temporary guardian has the authority of an unlimited guardian, but the duration of the temporary guardianship may not exceed six months. Within five days after the appointment, the temporary guardian shall send or deliver a copy of the order to all individuals who would be entitled to notice of hearing under section 15-14-205.

(5) If the court finds that following the procedures of this part 2 will likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor. The duration of the emergency guardian's authority may not exceed sixty days and the emergency guardian may exercise only the powers specified in the order. Reasonable notice of the time and place of a hearing on the petition for appointment of an emergency guardian must be given to the minor, if the minor has attained twelve years of age, to each living parent of the minor, and a person having care or custody of the minor, if other than a parent. The court may dispense with the notice if it finds from affidavit or testimony that the minor will be substantially harmed before a hearing can be held on the petition. If the emergency guardian is appointed without notice, notice of the appointment must be given within forty-eight hours after the appointment and a hearing on the appropriateness of the appointment held within five days after the appointment.

Source: L. 2000: Entire part R&RE, p. 1788, § 1, effective January 1, 2001 (see § 15-17-103); entire section amended, p. 293, § 11, effective January 1, 2001. L. 2003: (5) amended, p. 2110, § 4, effective May 22. L. 2019: (2.5) added, (HB 19-1042), ch. 55, p. 192, § 2, effective March 28. L. 2024: IP(2.5)(c) and (2.5)(c)(II) amended, (SB 24-119), ch. 33, p. 102, § 2, effective August 7.

Editor's note: This section is similar to former § 15-14-204 as it existed prior to 2001.

ANNOTATION

Law reviews. For article, "Legal Protection of Children in Nontraditional Families", see 29 Colo. Law. 79 (Nov. 2000).

Best interest of the child standard applies when a court must appoint a guardian for a minor when a person with the care or custody of the child objects to a testamentary appointment. The testamentary nomination, while one of many factors to consider, shall not be considered binding where the trial court determines that a party with the care or custody of the minor is better suited to act as permanent guardian. In re R.M.S., 128 P.3d 783 (Colo. 2006).

There would be a chilling effect on parental willingness to give consent to a guardianship under subsection (2)(a) if fit parents' interests are not appropriately recognized and protected when they seek to terminate the consensual guardianship. 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 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 the presumption. In the absence of such a limitation in the guardianship order, 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. In re D.I.S., 249 P.3d 775 (Colo. 2011).