The Mesa County Department of Human Services (Department) initiated a dependency and neglect case based on concerns that the children’s primary legal custodian, their paternal grandmother, had provided inadequate care. The juvenile court placed the children in mother’s custody under the Department’s protective supervision, adjudicated the children dependent and neglected, and adopted a treatment plan for the parents and the grandmother. After a hearing, the juvenile court determined that mother had successfully complied with her treatment plan and issued a permanent allocation of parental responsibilities (APR) judgment granting mother sole decision making authority for the children and primary parenting time. The court also granted grandmother supervised visitation, granted father supervised parenting time, and gave mother permission to relocate with the children without father’s agreement if he becomes incarcerated.

On appeal, mother contended that the juvenile court denied her substantive due process by ordering grandparent visitation. She contended that the court failed to apply the presumption that her decisions were in the children’s best interests and denied her the discretion to determine the amount of time grandmother spent with the children. In proceedings between a parent and nonparent, the parent is entitled to a constitutional presumption that she acts in the child’s best interests, including her determination that she should have sole discretion to decide when a nonparent may visit the child. An order adjudicating a child dependent and neglected as to the parent overcomes this presumption. However, the presumption is restored when the court later finds that the parent has successfully complied with a treatment plan and is able to safely parent the child. Here, following the adjudication, the juvenile court found that mother had complied with her treatment plan and was able to safely parent the children. The court then awarded mother primary parenting time and sole decision-making authority for the children, but it did not accord mother the presumption when it ordered grandparent visitation, and it did not identify any special factors to support entry of an order contrary to mother’s wishes. Accordingly, mother was denied due process.

Father argued that the juvenile court erred by allowing mother to relocate with the children without his agreement if he is incarcerated. The Uniform Dissolution of Marriage Act requires that a party who intends to relocate with a child to a place that substantially changes the geographical ties between the child and the other party must provide the other party written notice of the intent to relocate and a proposed revised parenting time plan. When determining whether a parenting time modification is in the child’s best interests, the court must consider all relevant factors, and its determination of the child’s best interest must be based on circumstances existing at the time of the proceeding. Here, the court’s order did not afford father a meaningful opportunity to be heard and violated the requirement that the relocation determination be based on circumstances existing at the time of the proposed relocation. The order permitting relocation is thus premature and contrary to the governing statute. Accordingly, the court must reconsider the judgment’s relocation provision.

The judgment was reversed and the case was remanded for further proceedings.