author: Opinion by JUDGE RICHMAN

text:
    IN RE the Parental Responsibilities of A.C.H. and A.F., Children,
    and Concerning Anastasia C. Magana, Appellant, and Justin Lee Hill, Appellee.
    Court of Appeals No. 17CA2105
    Colorado Court of Appeals, Division V.
    Announced March 21, 2019
    The Kanthaka Group, John Scorsine, Colorado Springs, Colorado, for Appellant
    No Appearance for Appellee
    Sherman & Howard L.L.C., Jordan M. Fox, Denver, Colorado; Polidori, Franklin, Monahan, & Beattie L.L.C., Peter L. Franklin, Lakewood, Colorado, for Amicus Curiae the Colorado Chapter of the American Academy of Matrimonial Lawyers
   Opinion by JUDGE RICHMAN

¶1 Today, more and more children are a part of nontraditional families - they are raised by at least one person not biologically related to them, but who acts as a parent. Commonly referred to as a psychological parent, an unrelated person who meets statutory criteria may seek an order for parenting time and decision-making responsibility under section 14-10-123(1)(b), (c), C.R.S. 2018. See In re Parental Responsibilities Concerning E.L.M.C. , 100 P.3d 546, 559 (Colo. App. 2004) (A psychological parent is "someone other than a biological parent who develops a parent-child relationship with a child through day-to-day interaction, companionship, and caring for the child." (quoting In re Marriage of Martin , 42 P.3d 75, 77-78 (Colo. App. 2002) )). In fact, this "statutory grant of standing to a non-parent to seek legal custody of a child constitutes legislative recognition of the importance of 'psychological parenting' to the best interests of a child." In re Parental Responsibilities Concerning V.R.P.F. , 939 P.2d 512, 514 (Colo. App. 1997). Recognition as a psychological parent can occur through a contested proceeding, see, e.g. , In re Parental Responsibilities Concerning C.C.R.S. , 892 P.2d 246 (Colo. 1995), or can be achieved through agreement between the natural/adoptive and psychological parents.

¶2 But the statute addressing child support, section 14-10-115, C.R.S. 2018, does not define the term "parent," let alone mention a psychological parent. So it comes as little surprise that we are now asked to decide whether a psychological parent, who fought for and obtained a parenting time and decision-making responsibility order for his ex-girlfriend's biological child, can also be ordered to pay child support on behalf of that child. For the reasons discussed below, we answer this question "yes." As a result, we reverse the order denying child support from a psychological parent and remand the case to the district court for additional proceedings.

I. Relevant Facts

¶3 In 2006, Anastasia C. Magana (mother) and Justin Lee Hill (Hill) became romantically involved and immediately moved in together. At that time, mother had a three-month-old son, A.F., whose biological father had been absent since his birth. In 2007, mother gave birth to A.C.H., a daughter fathered by Hill, and all of them lived together as a family until 2010 when the couple broke up.

¶4 Following their split, the parties agreed to and followed an equal parenting time schedule with both children.

¶5 In 2016, seeking permission to relocate to Texas, mother petitioned the district court for an allocation of parental responsibilities with respect only to A.C.H., the parties' biological child. Hill, asserting that he was A.F.'s psychological parent, separately filed his own case seeking an allocation of parental responsibilities for A.F., moved to consolidate the two petitions, and argued for parental responsibilities as to both children, including payment of child support (to him). The district court consolidated the two cases.

¶6 Hill opposed the children's relocation and sought to be named their primary residential parent. He expressed a commitment to provide the children with a stable, loving, and more permanent home in Colorado. At Hill's request, the district court appointed a parental responsibility evaluator (PRE), a licensed mental health professional, to investigate, report, and make recommendations on parenting time. The district court subsequently granted an unopposed motion for a supplemental PRE.

¶7 The parties eventually stipulated, and the PREs agreed, that Hill was A.F.'s psychological parent, that mother could relocate to Texas, that the children should not be separated, and that the district court should enter the same parental responsibilities order for both children.

¶8 After a three-day permanent orders hearing, the district court

• noted that neither party pursued a paternity finding under the Uniform Parentage Act, sections 19 -4-101 to - 130, C.R.S. 2018;
• determined that Hill was A.F.'s psychological parent under section 14-10-123 ;
• found that "the children [were] well bonded and attached to both parents";
• concluded that it was in the children's best interests for them to reside primarily with mother in Texas, but allocated substantial parenting time to Hill during school breaks and over the summer, with a total of 107 overnights; and
• further concluded that mother should have sole decision-making responsibility as to education and extracurricular activities for the children, but the parties should share joint decision-making as to all other major decisions.

¶9 The court reserved the issue of child support and asked for supplemental briefing.

¶10 Later, in a separate, detailed, and thoughtfully written order, the district court surveyed the reported case law in Colorado and concluded that it could not impose a child support obligation on Hill for the benefit of his psychological child, A.F., absent a "legal parent-child relationship or some other narrowly defined exceptional circumstance that is not present here."

¶11 Mother appeals only that portion of the district court's judgment declining to award child support for A.F. Hill has not filed a brief or appeared in our court. However, we have invited and received an amicus brief supporting Hill's position filed by the Colorado Chapter of the American Academy of Matrimonial Lawyers.

II. Discussion

¶12 Mother contends that as A.F.'s psychological parent, Hill is on equal footing with her as a biological parent. This, she suggests, means that he also has the responsibility to pay child support for A.F. We agree only to the extent that a psychological parent status may, under the circumstances present here, trigger an obligation to provide support under section 14-10-115.

¶13 The amicus brief correctly argues that there is no statutory provision expressly imposing financial obligations on a psychological parent. In relevant part, section 14-10-115(2)(a) provides that in a proceeding for child support the district court "may order either or both parents owing a duty of support to a child ... to pay an amount reasonable or necessary for the child's support." (Emphasis added.) Section 14-10-115, however, does not define the term "parent."

¶14 The amicus brief also correctly argues that no reported decision by Colorado appellate courts expressly concludes that child support must be paid to a biological parent by a psychological parent. But no reported decision addresses whether a "psychological parent" comes within the statutory term "parent" as applied in section 14-10-115.

¶15 Though neither the statute nor any reported decision expressly imposes financial obligations on a psychological parent, we find support for the proposition that such obligations may be imposed in the statute and in case law precedent.

¶16 "When interpreting a statute, we strive to give effect to the legislative purposes by adopting an interpretation that best effectuates those purposes." In re Marriage of Joel & Roohi , 2012 COA 128, ¶ 18, 404 P.3d 1251. Section 14-10-115(1)(a) outlines the statute's purpose:

(I) To establish as state policy an adequate standard of support for children, subject to the ability of parents to pay;
(II) To make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and
(III) To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.

The first two purposes are relevant to our analysis. Imposing financial obligations on a psychological parent helps to establish an adequate standard of support. And when a psychological parent occupies circumstances equivalent to those of a legal parent, it is equitable to impose financial obligations on him or her, pursuant to the factors outlined in the statute. To that end, our courts have interpreted the term "parent," as used in the child support statute, to include adoptive parents. See In re Marriage of Ashlock , 629 P.2d 1108, 1109 (Colo. App. 1981).

¶17 Divisions of this court have upheld orders that child support be paid by a person who is neither a biological nor an adoptive parent. We conclude that a survey of those decisions, as well as those reversing orders awarding child support against nonbiological parents, provides guidance and informs how we should decide this case.

¶18 In People in Interest of P.D. , 41 Colo. App. 109, 580 P.2d 836 (1978), the district court permanently terminated the parental rights of the child's natural parents and awarded a husband and wife legal and physical custody of the child, anticipating that they would complete adoption proceedings. See id. at 111, 580 P.2d at 837. But before any adoption proceedings were initiated, the custodial parents filed a dissolution action. See id. The resulting decree of dissolution awarded custody of the child to the wife and required the husband to pay child support, despite the husband's request to terminate custody and the accompanying child support obligation. See id.

¶19 In reversing, the division held that because the husband was only the child's legal custodian, and not an adoptive parent, he was serving in a voluntary capacity and could end his support obligation at will. See id. at 112-13, 580 P.2d at 838. Pertinent to the court's decision was the fact that the husband had filed a motion to terminate legal custody of the child. Id. at 111-12, 580 P.2d at 837.

¶20 By contrast, in In re Marriage of Bonifas , 879 P.2d 478, 478 (Colo. App. 1994), the couple signed an agreement to adopt a child and expressly agreed to assume "full financial responsibility for a child" and pay all expenses relating to the care of the child. The couple raised the child for ten years but did not complete the formal adoption. Id. When the couple separated, the district court ordered the husband to pay child support for the child, noting that he had accepted "full financial responsibility for a child." Id. at 479.

¶21 On appeal, the husband argued that he had no duty to support the child under the decision in P.D. and the child support statute. Id. The division agreed with husband. Id. But it concluded that, under a contract theory, husband's agreement to provide financial support was binding on him, and the child was a third-party beneficiary of that agreement. Id. The division also concluded that the husband had received some benefit of the agreement as he was awarded "liberal visitation rights" with the child. Id. at 479-80.

¶22 In In re Marriage of Rodrick , 176 P.3d 806 (Colo. App. 2007), the division affirmed an order directing a custodial father to pay child support for a nonbiological child as part of a dissolution proceeding. Pursuant to an "Order of Permanent Parental Responsibility" the husband and wife had obtained custody of the biological child of a friend and had raised the child in their home for several years. Id. at 809. As described by the division, the parental responsibility order was designed to be a step toward adopting the child, but adoption proceedings were not commenced. Id. The couple later separated and filed a dissolution proceeding. Id. at 809-10. Husband stated at the dissolution hearing that he wanted parenting time with the child but argued that since he was only a legal guardian of the child, he had no duty to pay child support under section 14-10-115. Id. at 810. Relying on Bonifas , the district court concluded the husband had a contractual duty to support the child and awarded child support. Id.

¶23 The division affirmed the order awarding child support but did so on statutory grounds. The division concluded that

[t]he parental responsibility order was entered under § 14-10-123, which is part of article 10 of title 14. It established a child support obligation by imposing the duties on husband and wife, described in § 19-1-103(73)(a), to provide [the child] with the necessities of life. Therefore, the trial court had the authority, under § 14-10-115(1) and (17), to order husband to pay child support.

Id. at 812. The division distinguished this case from P.D. because husband had not asked the court to relieve him of custody or terminate his relationship with the child; rather, he wanted "parenting time and parental decision-making responsibility." Id.

¶24 In People in Interest of B.S.M. , 251 P.3d 511 (Colo. App. 2010), the stepfather, who was not the child's adoptive parent, declined to exercise parenting time despite an out-of-state joint custody order. He then refused to take custody of the child during a dependency and neglect proceeding against the mother. Id. at 512. The Department of Human Services initiated a petition and obtained an order from the district court directing that, as joint custodian, stepfather was obligated to support the child financially and pay foster care fees incurred for the child. Id.

¶25 A division of this court, relying on (1) the definition of "parent" in the Children's Code, see §§ 19-1-115(4)(d), - 103(82)(a), C.R.S. 2018, as the child's natural parent or parent by adoption; (2) P.D. 's holding that a child's legal custodian may elect to terminate that status at any time and has no legal obligation to continue supporting the child; and (3) the distinction in Rodrick that the psychological parent in that case had sought parenting time, reversed the financial award against the stepfather. Id. at 513-14.

¶26 And in Sidman v. Sidman , 240 P.3d 360, 362-63 (Colo. App. 2009), the division determined that only the parents' income, and not the guardians' income, can be included when determining child support payable to the guardians under section 14-10-115. See id. at 362. This was appropriate, said the division, because there was no parental responsibility order and the guardians did not hold themselves out as the child's "de facto parents," but instead were designated his legal guardians by a court order. Id. at 362-63.

¶27 Thus, the amicus brief correctly points out that Colorado has not obligated a nonbiological or nonadoptive parent to financially support another's natural child, absent the exception of an expressed intent to adopt. But none of the relevant cases involved a biological parent seeking child support from a recognized psychological parent who had raised and supported a child as his own, taken real and substantial legal steps to seek and maintain the same parental rights as the biological parent, and obtained a court order enforcing those rights.

¶28 In those cases where child support was ordered to be paid, Bonifas and Rodrick , a common and, perhaps decisive, factor was that the husband who was ordered to pay child support had sought and received a continuing relationship with the child. This is the case with Hill. In those cases where child support was not ordered, P.D. and B.S.M. , the husband and stepfather, respectively, had taken affirmative steps to terminate the relationship with the child.

¶29 While we found no Colorado decision that deals with the precise circumstances in this case - where a psychological parent sought and fought for the same parental responsibilities as a natural or adoptive parent - cases from other states have addressed this situation and their decisions have heavily weighted the actions of a psychological parent who seeks to maintain a parental relationship with a child in determining child support obligations.

¶30 A very recent Alaska Supreme Court decision addressed this scenario. In Moore v. McGillis , 408 P.3d 1196 (Alaska 2018), the stepfather, in petitioning for dissolution of marriage, sought legal and physical custody for his biological daughter and his stepson, the mother's child from a previous relationship. Id. at 1198. He had established himself as the stepson's psychological parent and had received summer and holiday visitation and shared legal custody of him. Id. A few years later, the stepson's biological father reappeared and intervened in the case. Id. at 1198-99. The mother argued that the stepfather could not maintain custody of the stepson and yet absolve himself of his child support obligation. Id. The Alaska Supreme Court agreed with mother:

[Stepfather] has not sought to disestablish his parental relationship to the [stepson] here. The trial court found that he has continued to act as the boy's psychological father, and [he] has fought for and obtained continued physical and legal custody of the child. We have stated that those with legal custody of a child are obliged to support that child.

Id. at 1203.

¶31 A decision by the Pennsylvania Supreme Court on this issue is also pertinent. In A.S. v. I.S. , 634 Pa. 629, 130 A.3d 763 (2015), the child's stepfather "haled a fit [biological mother] into court, repeatedly litigating to achieve the same legal and physical custodial rights as would naturally accrue to any biological parent." Id. at 770. The court described the case as not a typical one "of a stepparent who has grown to love his stepchildren and wants to maintain a post-separation relationship with them." Id. Instead, the stepfather "ha[d] litigated and obtained full legal and physical custody rights, and ha[d] also asserted those parental rights to prevent a competent biological mother from relocating with her children." Id. The Pennsylvania Supreme Court held that, because the stepfather had "taken sufficient affirmative steps legally to obtain parental rights," he "should share in parental obligations, such as paying child support." Id. at 770-71. The supreme court added, "[e]quity prohibits [the] [s]tepfather from disavowing his parental status to avoid a support obligation to the children he so vigorously sought to parent." Id. at 771.

¶32 The reasoning in these cases is persuasive. Here too, Hill held himself out as A.F.'s father, almost from birth, by treating him as his own. They lived together as a family for nearly four years, and Hill is the only father A.F. has ever known. And even after the parties broke up, Hill did not take his relationship with A.F. for granted. He exercised equal parenting time with the child for the next six years. When mother wanted to relocate with the child to Texas, he initiated an allocation of parental responsibilities, including a PRE investigation, and, at all times, he insisted that he be named the child's primary parent in Colorado. In the end, after numerous hearings, the court ultimately granted him an order for parenting time and decision-making responsibility for the child.

¶33 We laud his efforts to maintain this bond with the child, but with the privileges of parenting should go the duties, including financial support. We cannot embrace a situation in which a psychological parent who fights for and obtains all the same responsibilities of a legal parent does not also assume the responsibility to pay child support. We find these circumstances much more akin to those in Bonifas and Rodrick (where parents attempted adoption and continued a parent-child relationship) than to P.D. and B.S.M. (where former stepfathers denied that they were the child's parent).

¶34 We emphasize that here, as in Rodrick , the court has entered a parental responsibilities order under section 14-10-123 that was intended to be permanent. Like the order entered in Rodrick , the parenting time and decision-making order entered in favor of Hill imposes a duty to provide the child with the necessities of life. Rodrick , 176 P.3d at 812.

¶35 We conclude that in cases like Rodrick and this one the district court has the authority to determine that a psychological parent owes a "duty of support" to the child within the meaning of section 14-10-115(2), and, upon such a finding, the district court has the authority to impose a child support obligation on a psychological parent.

¶36 We emphasize that our opinion is limited to those psychological parents who have (1) established themselves as "parents," rather than "guardians"; and (2) sought and received an intended-to-be-permanent allocation of parental responsibilities. We are not creating a new class of stepparent obligors, nor are we suggesting that the mere existence of a psychological parent-child relationship, on its own, establishes a support obligation under section 14-10-115. And we note that our opinion does not mean that A.F.'s biological father, if found, is relieved from his duty to support his child.

¶37 We acknowledge that the district court was persuaded on public policy considerations in reaching its decision. Citing B.S.M. , 251 P.3d at 514, it stated:

A stepparent who tried to create a warm family atmosphere with his or her stepchildren would be penalized by being forced to pay support for them in the event of a divorce. At the same time, a stepparent who refused to have anything to do with his or her stepchildren beyond supporting them would be rewarded by not having to pay support in the event of a divorce.

The court further indicated that if it were to "impose a child support obligation on [Hill] for caring for [A.F.] as if he were his own son, it would unfairly penalize him for behavior that should be encouraged, and it would create a perverse incentive for him to diminish the relationship in order to reduce his child support obligation." And when considering the broader implications, it added, "Good-[S]amaritan relatives who [take] on substantial responsibilities with minimal or no compensation, could find their humanitarian good deeds penalized in the form of a substantial child support order."

¶38 But Hill here did more than create a "warm family atmosphere" with A.F. See id. He took active legal steps to place himself on equal footing with the biological mother and prevent her relocation. And he sought an allocation of parental responsibilities , rather than an order of guardianship. By concluding that a psychological parent, under these circumstances, is responsible for child support, we "increase the likelihood that only individuals who are truly dedicated and intend to be a stable fixture in a child's life will take the steps to litigate and obtain rights equal to those of the child's parent." See A.S. , 130 A.3d at 771.

III. Conclusion

¶39 We reverse that part of the district court's order holding that it was foreclosed from ordering Hill to pay child support as to A.F., and we remand with directions to further consider Hill's child support obligations in accordance with section 14-10-115.

JUDGE ROMÁN and JUDGE BERGER concur.

      We acknowledge that a psychological parent does not generally share equal footing with a biological parent. See Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.").

      Other statutes define "parent." See § 13-92-102(4), C.R.S. 2018 (The statutory provision creating the Office of the Respondent Parents' Counsel defines parent as "a natural parent of a child, ... a parent by adoption, or a legal guardian."); § 15-14-102(9), C.R.S. 2018 (probate code defines parent as one whose parental rights have not been terminated); § 19-1-103(82)(a), C.R.S. 2018 (children's code defining parent as either a natural parent of a child or a parent by adoption); § 22-7-302(6), C.R.S. 2018 (The statute creating the Colorado State Advisory Council for Parent Involvement in Education defines parent as "a child's biological parent, adoptive parent, or legal guardian or another adult person recognized by the child's school as the child's primary caregiver."); § 22-33-104.5(1)(b), C.R.S. 2018 (Under school attendance law of 1963, " '[p]arent' includes a parent or guardian.").

      Michigan, New Jersey, and Connecticut courts have also held that a stepparent's duty to pay child support after divorce can be enforced by applying principles of estoppel. See Nygard v. Nygard , 156 Mich.App. 94, 401 N.W.2d 323, 326-27 (1986) (applying promissory estoppel to conclude that a husband who had agreed to raise an unborn child as his own could be held responsible for child support); see also Miller v. Miller , 97 N.J. 154, 478 A.2d 351, 357-58 (1984) (applying equitable estoppel to enforce child support where the husband had discussed adopting the wife's children and he had prohibited any support from or visitation with the natural father during their marriage); W. v. W. , 256 Conn. 657, 779 A.2d 716, 720-22 (2001). Mother in this case does not assert an estoppel theory.


source: Caselaw Access Project

author: Opinion by JUDGE TOW

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee,
    IN the INTEREST OF A.N-B., I.N-B., I.N-B., and A.N-B., Children, and Concerning D.B. and R.N., Respondents-Appellants.
    Court of Appeals No. 18CA0417
    Colorado Court of Appeals, Division I.
    Announced March 21, 2019
    Ellen G. Wakeman, County Attorney, Sarah L. Oviatt, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee
    Diana M. Richett, Guardian Ad Litem
    Ingelhart Law Office LLC, Kimberly A. Ingelhart, Glenwood Springs, Colorado, for Respondent-Appellant D.B.
    The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for Respondent-Appellant R.N.
   Opinion by JUDGE TOW

¶1 Mother, D.B., and father, R.N., appeal the juvenile court's judgment terminating their parent-child relationships with A.N-B., I.N-B., I.N-B., and A.N-B. We affirm.

I. Background

¶2 The family has been involved with child protective services agencies on two prior occasions. In January 2014, the Adams County Department of Human Services opened a voluntary case with the family after one of the boys suffered a fractured femur while in father's care. The child was then six months old. The injury was not explained. The case was closed in June 2014.

¶3 In September 2014, the same child suffered another fractured femur and fractured ribs. At the same time, the other twin was found to have healing fractures to his ribs, skull, and forearm. The Adams County Department of Human Services opened a dependency and neglect case. The case was closed with mother having full custody of the children, supervised visitation for father, and a permanent protection order barring father from contact with the boy who had suffered fractured femurs.

¶4 In this case, in January 2017, the Jefferson County Division of Children, Youth, and Families filed a petition in dependency and neglect after mother left the three-year-old twins home alone for over six hours. Neighbors reported that the children were screaming and crying. Police arrived to find the children locked in a bedroom with no food or water. The room smelled of urine, and the home was extremely dirty. The Division removed the children and placed them with their maternal grandfather, where they remained throughout the proceedings.

¶5 The juvenile court adjudicated the children dependent and neglected. In March 2017, the court adopted treatment plans for the parents. On August 28, 2017, the guardian ad litem (GAL) filed a motion to terminate the parent-child relationships. Over three days in December 2017 and January 2018, the court conducted an evidentiary hearing on the motion to terminate. In January 2018, the court terminated both parents' parental rights.

II. Analysis

A. The Juvenile Court Did Not Violate Mother's Attorney-Client Privilege

¶6 Mother contends that the juvenile court violated her attorney-client privilege when it required disclosure of a report drafted by mother's expert and admitted the report and the expert's testimony at the termination hearing. We disagree.

1. Additional Background

¶7 Before the hearing, mother requested appointment of an expert in child psychology to evaluate her parenting time. Due to mother's indigency, the expert was appointed at state expense pursuant to section 19-3-607(1), C.R.S. 2018. The expert conducted a parent-child interactional evaluation, which included a clinical interview of mother and direct observation of mother interacting with each of the four children. Based on the expert's report, mother elected not to call the expert as a witness.

¶8 Just prior to the hearing, the GAL requested that the expert's report be disclosed to her. Mother objected, asserting that the report was protected by attorney-client privilege. The juvenile court ordered the report disclosed and permitted the GAL to call the expert to testify to the results of his evaluation at the termination hearing.

2. Standard of Review

¶9 We review the juvenile court's resolution of discovery issues for an abuse of discretion. People in Interest of A.D.T. , 232 P.3d 313, 316 (Colo. App. 2010). We also review the juvenile court's evidentiary rulings for an abuse of discretion. People in Interest of M.V. , 2018 COA 163, ¶ 52, 432 P.3d 628. A juvenile court abuses its discretion "when its decision is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law." People in Interest of E.R. , 2018 COA 58, ¶ 6. The application of the attorney-client privilege is a question of law we review de novo. People v. Trammell , 2014 COA 34, ¶ 9, 345 P.3d 945.

3. State-Paid Experts and the Attorney-Client Privilege

¶10 In 1977, the Colorado legislature enacted the Parent-Child Legal Relationship Termination Act of 1977. Ch. 248, 1977 Colo. Sess. Laws 1026-1032. In this Act, the legislature provided that "[a]n indigent parent has the right to have appointed one expert witness of his own choosing whose reasonable fees and expenses, subject to the court's review and approval, shall be paid by the state of Colorado pursuant to section 19-11-110." Sec. 1, § 19-11-107(1), 1977 Colo. Sess. Laws at 1028. Ten years later, when the legislature repealed and reenacted the Colorado Children's Code, this provision was relocated to section 19-3-607, altering only the section reference to the new section 19-3-610. Ch. 138, sec. 1, § 19-3-607(1), 1987 Colo. Sess. Laws 790. The provision has since been substantively amended only once, when the legislature transferred the budgetary review and approval of the expert's fees and costs from the court to the office of the respondent parents' counsel. Ch. 216, sec. 1, § 19-3-607(1), 2016 Colo. Sess. Laws 830.

¶11 When an indigent parent's attorney requests the appointment of an expert under this provision, the attorney-client privilege generally protects communications between the parent and the expert. B.B. v. People , 785 P.2d 132, 138 (Colo. 1990) (interpreting section 19-11-107(1), C.R.S. 1986). However, this privilege "is not absolute." D.A.S. v. People , 863 P.2d 291, 295 (Colo. 1993). In other words, "under a variety of circumstances the cloak of confidentiality afforded by the attorney-client privilege does not extend to particular communications between an attorney (or his agent) and a client." Id. For example, the "privilege applies only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential." Id. (quoting Lanari v. People , 827 P.2d 495, 499 (Colo. 1992) ).

¶12 In B.B. , the expert was retained to conduct a disability evaluation of the parent, which included administering intelligence and personality tests as well as interviewing the parent. 785 P.2d at 134-35. The People called the expert to testify in their case-in-chief, over the parent's objection. Id. The supreme court ruled that, because the expert was an agent of the parent's attorney, the attorney-client privilege protected confidential communications between the parent and the expert. Id. at 139.

¶13 Three years later, the supreme court addressed the issue in a different context. In D.A.S. , the supreme court held that the attorney-client privilege did not attach to the testimony and report of an expert who conducted a parent-child interactional assessment. 863 P.2d at 295-96. In distinguishing B.B. , the court focused on several factors, including that (1) much of the expert's testimony concerned his observations of the children, not the parent's statements; (2) the parent's attorney knew, before the expert's appointment, that the expert would likely conduct the parent-child interactional evaluation; (3) there was no request to forego the evaluation; (4) the children participated in the evaluation of the parent and themselves; (5) the children's participation was not necessary to make the evaluation possible; and (6) the expert's report had been given to opposing counsel before trial. Id. at 296.

4. Application

¶14 The facts of this case are far more similar to those in D.A.S. than to those in B.B. Mother hired an expert in child psychology to evaluate her parenting ability through a parent-child interactional evaluation. After reviewing the expert's report, mother decided not to call him as a witness.

¶15 However, the GAL moved to compel disclosure of the expert's report. The juvenile court found that D.A.S . was dispositive of the issue and granted the motion. At the termination hearing, the juvenile court admitted the expert's report and testimony over mother's objection.

¶16 With regard to the parent-child interactional evaluation, much of the expert's testimony concerned his observations of the children and, thus, did not fall within the scope of the privilege. See id. at 294 (attorney-client privilege protects communications between parent and expert, not expert's observations and conclusions regarding children). In addition, the expert testified regarding the clinical interview he conducted with mother. However, he testified that this interview was integral to the parent-child interactional evaluation.

¶17 Mother's attorney requested the evaluation of mother's parenting skills and asked that the children participate. Thus, mother's attorney knew the expert would conduct the evaluation, desired it to occur, and requested the children's participation.

¶18 True, the expert's report was not disclosed to opposing counsel until the court granted the GAL's request to do so. This fact is different than D.A.S. , where it appears the expert himself provided a copy of his report to all counsel. However, under the statute in effect at the time, the GAL in D.A.S. was likely entitled to the report without having to request it.

¶19 Finally, and in our view most significantly, the expert advised mother, both orally and in writing, that the evaluation and interview would not be considered confidential and were being conducted to inform the juvenile court with respect to the dependency and neglect proceeding. Thus, mother had no expectation of privacy in the results of the evaluation or the clinical interview. See Lanari , 827 P.2d at 499. Indeed, even B.B. acknowledged that the privilege only attaches to confidential communications. 785 P.2d at 139.

¶20 Mother urges us to follow the reasoning of the dissent in D.A.S. We, of course, cannot do so, as we are bound by the supreme court's majority opinion. In re Estate of Ramstetter , 2016 COA 81, ¶ 40, 411 P.3d 1043.

¶21 Mother also argues that the law has changed since the decision in D.A.S. But as noted, the only statutory change that has occurred is the shift in responsibility for the approval of experts to the office of the respondent parents' counsel. In other words, a parent is now able to retain an expert without a court order. One (perhaps unintended) result of this change is that fewer expert reports will be court-ordered, and therefore fewer will automatically be subject to disclosure under section 19-3-607(2), C.R.S. 2018. Nevertheless, because the juvenile court did not order disclosure pursuant to section 19-3-607(2), this statutory change does not alter our analysis.

¶22 Thus, we conclude that the juvenile court did not violate mother's attorney-client privilege when it required disclosure of the expert's report and admitted the report and the expert's testimony.

B. The Juvenile Court Properly Terminated Mother's Parental Rights

¶23 A court may terminate parental rights if it finds by clear and convincing evidence that (1) the parent has not complied with an appropriate, court-approved treatment plan or the plan was unsuccessful; (2) the parent is unfit; and (3) the parent's conduct or condition is unlikely to change within a reasonable time. § 19-3-604(1)(c).

¶24 "The credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence, as well as the inferences and conclusions to be drawn from it, are within the discretion of the trial court." People in Interest of D.B-J. , 89 P.3d 530, 532 (Colo. App. 2004). We will uphold the juvenile court's findings and conclusions unless they are so clearly erroneous as to find no support in the record. People in Interest of C.A.K. , 652 P.2d 603, 613 (Colo. 1982).

1. Mother Did Not Successfully Comply with Her Treatment Plan

¶25 As an initial matter, we reject mother's contention that the lack of reasonable efforts by the Division rendered her treatment plan inappropriate. Mother's argument conflates two distinct issues: (1) the appropriateness of the treatment plan and (2) whether the Department made reasonable efforts to rehabilitate the parent. Before a court may terminate a parent-child relationship, it must find that

(1) the parent has not reasonably complied with an appropriate treatment plan, the plan has been unsuccessful, or the court had previously found that an appropriate plan could not be devised; (2) the parent is unfit; and (3) the parent's conduct or condition is unlikely to change within a reasonable time.

People in Interest of L.M. , 2018 CO 34, ¶ 27, 416 P.3d 875.

¶26 "In determining unfitness, conduct, or condition," the juvenile court must also consider whether the Division made reasonable efforts to rehabilitate mother. § 19-3-604(2)(h). But the question of reasonable efforts is not related to the appropriateness of the treatment plan. Instead, the appropriateness of a treatment plan is measured in light of facts existing at the time of the plan's approval. People in Interest of B.C. , 122 P.3d 1067, 1071 (Colo. App. 2005). Thus, the Division's later efforts to implement the plan have no bearing on whether or not the plan was appropriate.

¶27 The GAL asserts that we should not address mother's contention that she reasonably complied with her treatment plan because she did not raise the issue in the juvenile court. Divisions of this court have split on the question of whether a parent must specifically preserve issues by raising specific arguments related to each of the statutory criteria, or if failing to do so results in a waiver of appellate review as to the criteria not challenged. Compare People in Interest of S.N-V. , 300 P.3d 911, 916 (Colo. App. 2011) (holding that a parent's failure to object to services does not bar appellate review of a reasonable efforts finding), with People in Interest of D.P. , 160 P.3d 351, 355-56 (Colo. App. 2007) (declining to review reasonable efforts finding because parent failed to object in the trial court to the services provided). We need not pick sides in this case because even if we assume mother preserved her claim, we discern no error.

¶28 The parent is responsible for assuring compliance with and success of the treatment plan. People in Interest of R.J.A. , 994 P.2d 470, 472 (Colo. App. 1999). "[P]artial compliance, or even substantial compliance, may not be sufficient to correct or improve the parent's conduct or condition." People in Interest of A.J. , 143 P.3d 1143, 1151 (Colo. App. 2006).

¶29 When, as here, a dependency and neglect proceeding involves a child under the age of six, a court cannot find that a treatment plan has been successful if the parent exhibits the same problems addressed in the treatment plan without adequate progress, including improvement in the relationship with the child, and is unable or unwilling to provide nurturing and safe parenting sufficiently adequate to meet the child's physical, emotional, and mental health needs and conditions. § 19-3-604(1)(c)(I).

¶30 The juvenile court found that mother had not resolved the protective concerns addressed in her treatment plan. In particular, mother still did not recognize the danger that father posed to the children. The caseworker testified that mother continued to steadfastly refuse to consider the possibility that father had abused the children despite the children's severe injuries and their reports of physical abuse. See People in Interest of C.T.S. , 140 P.3d 332, 334 (Colo. App. 2006) (a parent who chooses to remain in a relationship with someone who poses a threat to the child's welfare may be deemed unfit if such conduct prevents the parent from providing adequate protection).

¶31 The court also found that mother did not have a healthy relationship with the children. The child psychologist testified that mother struggled to manage the children and they did not see her as having authority. The caseworker testified that mother had not progressed beyond therapeutic visits when she visited all four children together, and still had supervised visitation when she visited with the two boys or the two girls separately. The caseworker was concerned that the children would regress if they returned to mother's care at that time.

¶32 Thus, the record supports the juvenile court's finding that mother's treatment plan was not successful because she continued to exhibit the same problems addressed in the treatment plan without adequate improvement. Further, she was unable to provide nurturing and safe parenting adequate to meet the children's physical, emotional, and mental health needs and conditions. § 19-3-604(1)(c)(I).

2. Mother Was Not Entitled to More Time to Comply with Her Treatment Plan

¶33 Mother contends that the juvenile court erred when it terminated her parental rights without affording her a reasonable time to comply with her treatment plan. See People in Interest of D.Y. , 176 P.3d 874, 876 (Colo. App. 2007) (a parent must be given a reasonable time to comply with an appropriate treatment plan before parental rights can be terminated). We perceive no error.

¶34 Mother received services for approximately ten months after the court approved her treatment plan. Cf. People in Interest of T.S.B. , 757 P.2d 1112, 1113 (Colo. App. 1988) (nine months from adoption of treatment plan to termination was reasonable); People in Interest of R.B.S. , 717 P.2d 1004, 1006 (Colo. App. 1986) (same). It was mother's responsibility to use those services to get the help she needed to comply with her treatment plan. People in Interest of J.C.R. , 259 P.3d 1279, 1285 (Colo. App. 2011). In this context, "[a] reasonable time is not an indefinite time, and it must be determined by considering the physical, mental, and emotional conditions and needs of the child." A.J. , 143 P.3d at 1152. Courts may also consider the parent's social history, the chronic or long-term nature of the parent's conduct or condition, and whether any change has occurred during the pendency of the dependency and neglect proceeding. Id.

¶35 The psychologist noted that this was the second time the family had been involved in a dependency and neglect proceeding. He testified that episodes of such involvement were extremely rare in the general population, so multiple episodes in one family presented a notable risk factor. He opined that a parent's history and ability to respond to intervention over time were the best predictors of the parent's future behavior. He observed that, despite considerable intervention, mother still did not recognize her parenting deficits. Thus, the psychologist concluded that it would be very difficult for mother to make substantive changes.

¶36 The caseworker testified that mother needed at least an additional six months of therapy. In addition, the caseworker saw a significant protection concern in mother's ongoing, covert contact with father despite having completed a treatment plan in a prior dependency and neglect case that required her commitment to keep father away from the children.

¶37 The juvenile court found that, although mother had made genuine efforts, she did not understand the danger father posed to the children or the effects of domestic violence on the children. The court found that mother would need a lot more therapy before it would be safe to return the children to her. The court noted that the case was subject to the expedited permanency planning guidelines because the children were under six years old. See §§ 19-1-102(1.6), 19-1-123, 19-3-702(2.5), 19-3-703, C.R.S. 2018.

¶38 Thus, we conclude that the juvenile court did not err when it terminated mother's parental rights without affording her more time to comply with her treatment plan.

C. Father Was Not Entitled to More Time to Comply with His Treatment Plan

¶39 Father contends that the juvenile court erred when it terminated his parental rights without affording him a reasonable time to comply with his treatment plan. We perceive no error.

¶40 The determination of a reasonable period to comply with a treatment plan is necessarily fact-specific, and what constitutes a reasonable time may vary from case to case. D.Y. , 176 P.3d at 876.

¶41 The Division argues that father failed to preserve this issue because, though it was mentioned in father's opening statement, it was not addressed at all in his closing argument. As we discussed above in relation to mother's preservation, we again need not decide whether father preserved this claim because even if we assume he did, we discern no error.

¶42 Father asserts that (1) the only component of his treatment plan with which he was not in compliance was visitation; (2) he could not comply with the visitation provisions due to a criminal protection order; (3) the GAL had fought his attempts to modify the protection order; (4) a hearing on the protection order was set for two weeks after the termination hearing; and (5) thus, it was possible he would soon be able to begin visitation.

¶43 But evidence at the termination hearing contradicted father's assertion that visitation could begin almost immediately and was the only barrier to successful completion of his treatment plan.

¶44 Father testified that he had no idea how each of the boys had sustained injuries that included fractured bones. He did not believe the children were afraid of him.

¶45 In contrast, the boys' therapist testified that the boy who had suffered two fractured femurs reported that father had squeezed his leg and twisted it, which hurt a lot. He said that father hurt him and locked him in his room. The therapist said both boys talked about father spanking them, hurting them, and being mean. She testified that both boys had post-traumatic stress disorder and were hypervigilant and fearful.

¶46 The elder girl's therapist testified that the girl described witnessing ongoing domestic violence between her parents. The girl reported that father hit her and her brothers, and that it was scary when mother and father fought. The therapist had diagnosed the girl with post-traumatic stress disorder.

¶47 The caseworker testified that the children's therapists had recommended against beginning visitation with father due to the children's continued disclosure of physical abuse and their fear of him. She also testified that father had completed only four to six sessions of dialectical behavioral therapy out of twenty-six. He had made very little progress on his treatment plan. He had not taken ownership or acceptance of his negative impact on the children when they were in his care. The caseworker opined that it was not in the children's best interests to maintain a relationship with father.

¶48 Thus, we conclude that the record supports the juvenile court's decision to terminate father's parental rights without affording him additional time to comply with his treatment plan.

D. Less Drastic Alternatives

¶49 Mother and father contend that the juvenile court erred when it found that an allocation of parental responsibilities (APR) to the maternal grandfather was not a viable less drastic alternative to termination of their parental rights. We disagree.

¶50 A juvenile court must consider and eliminate less drastic alternatives before entering an order of termination. D.B-J. , 89 P.3d at 531. In doing so, the court must give primary consideration to the child's physical, mental, and emotional conditions and needs. D.P. , 160 P.3d at 356 ; see also § 19-3-604(3). The court may consider whether an ongoing relationship with the parent would benefit the child. See People in Interest of L.M. , 2018 COA 57M, ¶ 29, 433 P.3d 114 ; People in Interest of J.L.M. , 143 P.3d 1125, 1127 (Colo. App. 2006). Long-term placement with a relative is not a viable less drastic alternative if the child needs a stable, permanent home that can be assured only by adoption. People in Interest of M.B. , 70 P.3d 618, 627 (Colo. App. 2003).

¶51 We must accept the juvenile court's determination that no less drastic alternative to termination was available unless the finding is so clearly erroneous as to find no support in the record. People in Interest of C.Z. , 2015 COA 87, ¶ 64, 360 P.3d 228.

¶52 The juvenile court found that an ongoing relationship with the parents would not benefit the children. The children had no relationship with father, whom they had not seen in over a year. And there was no evidence of a healthy attachment bond between mother and the children, who did not see mother as a caregiver or someone who would keep them safe. The court found that the children needed to know that they were in a permanent home and their father could not get to them. Testimony by the caseworker and the psychologist supports these findings.

¶53 Other evidence at the termination hearing supported the juvenile court's finding that mother would likely violate the conditions of an APR by allowing father to have contact with the children. The caseworker testified that mother had been diagnosed with a dependent personality disorder, which led her to stay in unhealthy relationships to avoid being alone. Mother testified that, despite the protection order in place after the prior dependency and neglect proceeding, she had habitually called father to help with the boys when she became frustrated because they behaved better when he was there.

¶54 The grandfather testified he did not trust mother to keep father away from the children. He said protection orders had failed to protect the children and that adoption would make sure that line was never crossed again.

¶55 We therefore conclude that the record supports the juvenile court's finding that an APR to the grandfather was not a viable less drastic alternative to termination of parental rights.

III. Conclusion

¶56 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE BERGER concur.

      The statute in effect at the time (as well as the current statute) required any report from a court-ordered evaluation to be provided to counsel prior to the hearing. § 19-3-607(2), C.R.S. 1990. Because the court appointed the expert, the expert's report was essentially court-ordered. See People in Interest of D.A.S. , 863 P.2d 291, 295 (Colo. 1993).


author: Opinion by JUDGE LIPINSKY

text:
    WHITING-TURNER CONTRACTING COMPANY, Third-Party Plaintiff-Appellee, v. GUARANTEE COMPANY OF NORTH AMERICA USA, Third-Party Defendant-Appellant.
    Court of Appeals No. 17CA2160
    Colorado Court of Appeals, Division II.
    Announced March 21, 2019
    Husch Blackwell LLP, Jeffrey D. Whitney, Jeffrey M. Van der Veer, Denver, Colorado, for Third-Party Plaintiff-Appellee
    Woods & Aitken LLP, Kory D. George, Colin P. Baumchen, Denver, Colorado, for Third-Party Defendant-Appellant
   Opinion by JUDGE LIPINSKY

¶1 Performance bonds, like other forms of surety bonds, are critical to managing the risk inherent in construction projects. If a subcontractor fails to complete its work at a construction site, the surety that underwrote the performance bond assumes responsibility for the subcontractor's obligations. Without performance bonds, a construction project could come to a halt if a single subcontractor walked off the job.

¶2 Performance bonds specify the actions that will trigger the surety's obligations. In this appeal, a surety, Guarantee Company of North America USA (GCNA), and a general contractor, Whiting-Turner Contracting Company, dispute whether Whiting-Turner triggered GCNA's obligations under a performance bond after a subcontractor, Klempco Construction (2013) Inc., stopped work at Whiting-Turner's construction project. The parties' disagreement centers on whether Whiting-Turner paid GCNA the "Balance of the Contract Price," a key term in the performance bond, thereby satisfying one of the bond's conditions precedent.

¶3 Following a bench trial, the trial court entered judgment in favor of Whiting-Turner and against GCNA. The trial court found that Whiting-Turner had complied with the condition precedent set forth in section 3.3 of the performance bond and that GCNA had failed to perform its obligations under the bond.

¶4 On appeal, GCNA contends that the trial court applied the wrong legal standard in determining whether Whiting-Turner complied with section 3.3 of the performance bond, erred in finding that GCNA had waived its argument regarding Whiting-Turner's compliance with section 3.3, erroneously found that Whiting-Turner satisfied the condition precedent in section 3.3, awarded duplicative damages to Whiting-Turner, and improperly awarded attorney fees to Whiting-Turner.

¶5 We affirm.

I. Whiting-Turner's Disputes with Klempco and GCNA

A. Klempco Signs a Subcontract for Work at Whiting-Turner's Project

¶6 Whiting-Turner served as the general contractor for an office building construction project in Denver (the Project). Whiting-Turner and Klempco entered into an agreement (the Subcontract) for Klempco's construction of an anchor system at the Project's underground parking garage. The anchor system was necessary to keep the sides of the excavated site from collapsing during the initial phases of construction. Klempco's work included the installation of sprayed concrete, known as shotcrete, to support the anchoring system. Whiting-Turner and Klempco agreed to a Subcontract price of $1,785,783.00.

B. GCNA Provides a Performance Bond and a Payment Bond

¶7 Whiting-Turner required Klempco to furnish a performance bond and a payment bond. (A surety that underwrites a payment bond is obligated to pay the sub-subcontractors if the subcontractor fails to do so.) Klempco obtained the bonds from GCNA. The bonds, which followed American Institute of Architects form A312, incorporated the Subcontract by reference. See 4A Philip L. Bruner & Patrick J. O'Connor, Jr., Bruner & O'Connor on Construction Law § 12:16, Westlaw (database updated June 2018) (explaining that the A312 surety bond is a standard form in the construction industry).

¶8 Section 3 of the performance bond specified the three conditions precedent that Whiting-Turner would need to satisfy to trigger GCNA's obligations as surety:

• provide notice to Klempco and GCNA that Whiting-Turner was considering declaring Klempco in default (section 3.1);
• declare Klempco in default, terminate the Subcontract, and notify GCNA of these actions (section 3.2); and
• "pay the Balance of the Contract Price in accordance with the terms of the [Subcontract] to [GCNA] or to a contractor selected to perform the [Subcontract]" (section 3.3).

¶9 The performance bond defined "Balance of the Contract Price" as "[t]he total amount payable by [Whiting-Turner] to [Klempco] under the [Subcontract] after all proper adjustments have been made , ... reduced by all valid and proper payments made to or on behalf of [Klempco] under the [Subcontract] ." (Emphases added.)

C. Klempco Stops Work at the Project

¶10 Klempco fell behind schedule almost immediately and stopped paying its sub-subcontractors. Klempco subsequently directed Whiting-Turner to assume responsibility for the shotcrete installation and to work directly with two of Klempco's sub-subcontractors.

¶11 Whiting-Turner sent Klempco and GCNA a letter declaring Klempco in default under the Subcontract. In the letter, Whiting-Turner stated that Klempco was incapable of completing its work at the Project and "is apparently unable to complete payments to its sub-subcontractors for previously completed work, and by its own admissions is unable to cure such default." Whiting-Turner requested a meeting with Klempco representatives "to discuss the details of Klempco's request that Whiting-Turner take over its work." Whiting-Turner asked GCNA to attend the meeting "to advise Whiting-Turner on how [GCNA] wishes for Whiting-Turner to proceed in connection with the completion of Klempco's work and payment of its vendors."

¶12 Representatives of Whiting-Turner, Klempco, and GCNA met on April 30, 2014, to discuss, among other issues, Klempco's request that Whiting-Turner take over the shotcrete work and pay Klempco's sub-subcontractors directly. At the meeting, Whiting-Turner and Klempco amended the Subcontract to reduce Klempco's payment by $553,707.00 - the price of the shotcrete work. Whiting-Turner, Klempco, and GCNA agreed that the shotcrete sub-subcontractor would invoice Whiting-Turner directly.

¶13 Two days later, Klempco notified Whiting-Turner that, because Whiting-Turner had declared Klempco in default and was refusing to pay Klempco, Klempco would demobilize from the Project. Whiting-Turner asked GCNA how Whiting-Turner should proceed in light of Klempco's decision to leave the Project. GCNA did not respond.

D. Whiting-Turner Terminates Klempco's Subcontract

¶14 Whiting-Turner terminated the Subcontract after Klempco failed to cure its default. GCNA did not respond to Whiting-Turner's repeated demands that, in light of the termination of the Subcontract, GCNA honor its obligations under the performance bond and advise Whiting-Turner how GCNA intended to proceed.

¶15 On June 24, 2014, Whiting-Turner provided GCNA with its calculation of the "Balance of the Contract Price." Whiting-Turner said that it had paid $1,064,919.00 of the "Balance of the Contract Price" to Klempco and its sub-subcontractors, leaving a balance of $720,819.00. Whiting-Turner deducted certain expenses from this balance:

• $256,897.90 for Whiting-Turner's payments to five unpaid sub-subcontractors who had recorded, or were threatening to record, mechanic's liens against the Project; and
• $553,707.00 for the shotcrete work for which Whiting-Turner had assumed responsibility.

These adjustments resulted in a negative "Balance of the Contract Price."

E. The Trial Court Enters Judgment Against Klempco and GCNA

¶16 Klempco filed suit against Whiting-Turner claiming, among other allegations, that Whiting-Turner had breached the Subcontract by failing to pay sums due to Klempco. Whiting-Turner asserted a counterclaim for breach of the Subcontract. Whiting-Turner also filed third-party claims against GCNA for breach of the performance bond and the payment bond.

¶17 GCNA argued that Whiting-Turner had failed to comply with the condition precedent set forth in section 3.3 of the performance bond and, therefore, never trigged GCNA's obligations under the bond. Specifically, GCNA asserted that Whiting-Turner miscalculated the "Balance of the Contract Price" and, consequently, failed to pay the correct sum to GCNA pursuant to section 3.3.

¶18 The case proceeded to a bench trial. In its findings of fact and conclusions of law, the trial court found that Klempco had breached the Subcontract. In addition, the trial court found that Whiting-Turner had complied with the condition precedent set forth in section 3.3 of the performance bond. The trial court further found that GCNA had breached the performance bond and the payment bond. The trial court held that GCNA was jointly and severally liable with Klempco for Whiting-Turner's damages.

¶19 Alternatively, the trial court found that GCNA had waived its arguments regarding Whiting-Turner's compliance with section 3.3 by failing to respond to Whiting-Turner's repeated requests for guidance after Klempco stopped performing under the Subcontract.

¶20 The trial court found that, as a consequence of GCNA's breach of the performance bond, Whiting-Turner had incurred $798,248.93 in damages, including $124,146.95 in prejudgment interest. The trial court calculated Whiting-Turner's damages by first determining how much Whiting-Turner had paid the sub-subcontractors to complete the work specified in the Subcontract. The trial court subtracted from this number the sum that Whiting-Turner had agreed to pay Klempco in the original Subcontract.

¶21 The trial court later revised its damage calculations to reflect two adjustments to the $798,248.93 figure: (1) a reduction of $3,322.90 for unrecoverable overhead and (2) additional prejudgment interest in the amount of $37,334.21. The trial court awarded Whiting-Turner $832,260.24 in damages against Klempco and GCNA, jointly and severally.

¶22 Whiting-Turner moved for an award of attorney fees and costs against Klempco and GCNA under the Subcontract; Colorado's mechanic's lien statute, section 38-22-128, C.R.S. 2018; and the performance and payment bonds. GCNA opposed Whiting-Turner's request for attorney fees and argued, in the alternative, that GCNA was liable only for those fees attributable to Whiting-Turner's claims against GCNA. GCNA contended that it was not liable for Whiting-Turner's fees attributable to its defenses to Klempco's claims, Whiting-Turner's claims against Klempco, or Whiting-Turner's claim against GCNA for breach of the payment bond.

¶23 The trial court found that it could not apportion Whiting-Turner's fees among the various claims and defenses litigated in the case, however, because "all of the claims of both parties ar[o]se out of the same operative facts." The trial court held Klempco and GCNA jointly and severally liable to Whiting-Turner for $504,785.27 in attorney fees and costs and $18,990.14 in interest.

¶24 GCNA appeals the trial court's post-trial rulings on damages and attorney fees. (The trial court subsequently increased the amount of attorney fees awarded to Whiting-Turner. GCNA did not file an amended notice of appeal to obtain review of this decision, however. We therefore address the two appealed orders only. See Baldwin v. Bright Mortg. Co. , 757 P.2d 1072, 1074 (Colo. 1988) (holding that attorney fees award is separately appealable from judgment on the merits).)

II. The Record Does Not Indicate that the Trial Court Applied an Incorrect Legal Standard in Analyzing Whether Whiting-Turner Complied with Section 3.3 of the Performance Bond

¶25 GCNA contends that the trial court erred in finding that Whiting-Turner was required only to substantially comply, rather than strictly comply, with the condition precedent set forth in section 3.3 of the performance bond. GCNA asks us to hold that contractors must strictly comply with the conditions precedent in a performance bond and, therefore, reverse the trial court's finding that Whiting-Turner complied with section 3.3.

¶26 The record does not support GCNA's contention, however. Because the trial court did not find that Whiting-Turner only substantially complied with section 3.3, we need not address in this context the proper legal standard for determining whether a contractor satisfied a condition precedent in a performance bond. See Zingone v. Zingone , 136 Colo. 39, 43, 314 P.2d 304, 306 (1957) (holding that appellate court may not consider a party's version of what transpired in the lower court that does not appear in the record).

¶27 GCNA's argument regarding the substantial compliance standard rests on a single sentence in the trial court's discussion of Whiting-Turner's compliance with the notice provision in the payment bond . The trial court said that "only substantial performance with bond notice requirements is required...."

¶28 This is a correct statement regarding the standard for compliance with the notice provision in a surety bond. Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co. , 923 P.2d 328, 334 (Colo. App. 1996), aff'd , 940 P.2d 348 (Colo. 1997). But this case does not concern Whiting-Turner's compliance with a notice requirement.

¶29 GCNA does not point to anything in the record demonstrating that the trial court found that Whiting-Turner was required only to substantially comply with the condition precedent in section 3.3 of the performance bond. Moreover, GCNA does not contend that the trial court found that Whiting-Turner only substantially complied, and did not strictly comply, with section 3.3.

¶30 We therefore decline to address this argument.

III. We Need Not Address GCNA's Waiver Argument

¶31 GCNA contends that the trial court erred in finding that GCNA waived its argument that Whiting-Turner failed to satisfy the condition precedent set forth in section 3.3. The trial court inserted a single sentence regarding waiver in the midst of its extensive discussion of Whiting-Turner's compliance with section 3.3, however.

¶32 The trial court's ruling in favor of Whiting-Turner rested not only on waiver but also on the trial court's thorough analysis of the merits of Whiting-Turner's claims. The trial court's reference to waiver therefore reflected, at most, an alternative basis for its findings of fact and conclusions of law.

¶33 We need not address whether GCNA waived its arguments concerning Whiting-Turner's compliance with section 3.3 because, as we explain in Part IV below, we agree with the trial court that Whiting-Turner properly triggered GCNA's obligations under the performance bond. See Archuleta v. Gomez , 140 P.3d 281, 285 (Colo. App. 2006) (declining to address the trial court's alternative ruling when the record supported the trial court's findings and verdict on the claim). We therefore now turn to the merits of GCNA's argument regarding section 3.3.

IV. The Trial Court Did Not Err in Finding that Whiting-Turner Satisfied the Condition Precedent Set Forth in Section 3.3 of the Performance Bond

¶34 GCNA contends that the trial court erred in finding that Whiting-Turner satisfied the condition precedent in section 3.3 of the performance bond. GCNA asserts that Whiting-Turner did not comply with section 3.3 because it miscalculated the "Balance of the Contract Price" and did not pay the correct amount to GCNA. GCNA specifically argues that Whiting-Turner improperly reduced the "Balance of the Contract Price" by

• the amount of Whiting-Turner's anticipated payments to five unpaid sub-subcontractors that had recorded, or were threatening to record, mechanic's liens against the Project;
• the $553,707.00 reduction in the "Balance of the Contract Price" to which Whiting-Turner and Klempco agreed at the April 30 meeting (which GCNA also attended); and
• a back charge of $30,702.00.

Lastly, GCNA asserts that we should adopt the reasoning of an unpublished New York state trial court decision that, according to GCNA, supports its position that Whiting-Turner failed to comply with section 3.3.

¶35 The record supports the trial court's finding that Whiting-Turner satisfied the condition precedent in section 3.3 of the performance bond.

A. Standard of Review

¶36 We review de novo questions of law, such as the interpretation of a provision in a surety bond. See Brighton Sch. Dist. 27J , 923 P.2d at 333. We review a court's findings of fact for clear error. Id. A factual finding is clearly erroneous if nothing in the record supports it. Loveland Essential Grp., LLC v. Grommon Farms, Inc. , 251 P.3d 1109, 1117 (Colo. App. 2010).

B. The Trial Court Did Not Err in Finding that Whiting-Turner Correctly Calculated the "Balance of the Contract Price"

1. Whiting-Turner Properly Deducted from the "Balance of the Contract Price" Its Payments to the Five Unpaid Sub-Subcontractors

¶37 GCNA contends that the trial court erred in finding that Whiting-Turner properly reduced the "Balance of the Contract Price" by the $256,897.90 that Whiting-Turner paid to the five unpaid sub-subcontractors. We disagree.

¶38 The Subcontract authorized Whiting-Turner to pay Klempco's unpaid sub-subcontractors and to subtract those payments from the "Balance of the Contract Price." Under the Subcontract, Klempco was required to "... take any and all necessary actions to keep the Project free and clear of all claims for liens...." If Klempco failed to take the "necessary actions," Whiting-Turner could "take all actions which it deems reasonable or necessary to protect the Project from liens and claims and the costs of any such actions ... shall be deducted from amounts payable by [Whiting-Turner] to [Klempco]" under the Subcontract.

¶39 Despite this language, GCNA asserts that the "Balance of the Contract Price" became fixed in place as of the moment Whiting-Turner terminated the Subcontract. Therefore, according to GCNA, Whiting-Turner's post-termination payments to Klempco's unpaid sub-subcontractors, who were clamoring for payment and threatening to record liens against the Project, could not reduce the "Balance of the Contract Price."

¶40 No language in either section 3.3 or the Subcontract barred Whiting-Turner from reducing the "Balance of the Contract Price" by the amount of its post-termination payments to unpaid sub-subcontractors, however. The five sub-subcontractors had already completed their work on the Project and had either recorded or were threatening to record liens against the Project. Thus, Whiting-Turner paid Klempco's sub-subcontractors "to protect the Project from liens and claims...."

¶41 GCNA cites to several cases to support its assertion that none of Whiting-Turner's payments postdating the termination of the Subcontract properly reduced the "Balance of the Contract Price." These cases do not assist GCNA, however. They hold that, when a general contractor hires a replacement subcontractor without the surety's consent, the general contractor has failed to satisfy the conditions precedent in the performance bond. Under those circumstances, the general contractor cannot reduce the "Balance of the Contract Price" by the amount of its payments to replacement subcontractors. See LaSalle Grp., Inc. v. JST Props., L.L.C. , No. 10-14380, 2011 WL 3268099, at *6 (E.D. Mich. July 29, 2011) ("[T]he hiring of a replacement contractor fails to satisfy the requirement of paragraph 3.3 [of a form A312 bond].") (emphasis added); Enter. Capital, Inc. v. San-Gra Corp. , 284 F.Supp.2d 166, 177 (D. Mass. 2003) (explaining that the "notice requirement in the Construction Contract exists precisely to provide the surety an opportunity to protect itself against loss by participating in the selection of the successor contractor ") (emphasis added); Sch. Bd. v. TIG Premier Ins. Co. , 110 F.Supp.2d 1351, 1354 (N.D. Fla. 2000) (obligee "could not contract with another party ... prior to giving [the surety] notice ") (emphasis added); Solai & Cameron, Inc. v. Plainfield Cmty. Consol. Sch. Dist. No. 202 , 374 Ill.App.3d 825, 313 Ill.Dec. 217, 871 N.E.2d 944, 954 (2007) ("[R]eplacement is a form of mitigation available only to [the surety] under the provisions of [the performance bond].") (emphasis added).

¶42 None of the sub-subcontractors Whiting-Turner paid was a replacement contractor. Klempco had selected all five of the subcontractors. Accordingly, we conclude that the $256,897.90 Whiting-Turner paid to the five unpaid sub-subcontractors after the termination of the Subcontract properly reduced the "Balance of the Contract Price." (GCNA also contends that the trial court improperly reduced the "Balance of the Contract Price" by $99,901.65 that Whiting-Turner paid to sub-subcontractors. The record reflects, however, that these payments were included within the $256,897.90 Whiting-Turner paid to the five sub-subcontractors.)

2. Whiting-Turner Properly Subtracted from the "Balance of the Contract Price" the $553,707.00 Reduction in Its Payment to Klempco

¶43 GCNA also contends that the trial court improperly reduced the "Balance of the Contract Price" by the $553,707.00 reduction in the price payable to Klempco under the Subcontract for the shotcrete work. We conclude that the trial court did not err by reducing the "Balance of the Contract Price" by this amount.

¶44 The trial court found that, at their April 30 meeting with GCNA, Whiting-Turner and Klempco agreed to reduce the amount payable to Klempco by the $553,707.00 specified in the Subcontract for the shotcrete work. Whiting-Turner advised GCNA and Klempco in letters dated May 2, 2014, and May 9, 2014, that it intended to incur the expense of completing the shotcrete work. When Whiting-Turner asked GCNA in a May 2, 2014, email if it was acceptable for Whiting-Turner to pay for the shotcrete work directly, GCNA responded "Yes." GCNA therefore at least tacitly consented to reduction of the "Balance of the Contract Price" by $553,707.00.

¶45 Whiting-Turner and Klempco had the right to amend their agreement memorialized in the Subcontract, and did so when they reduced Klempco's payment by $553,707.00. Accordingly, we conclude that the trial court did not err in finding that Whiting-Turner properly reduced the "Balance of the Contract Price" by the $553,707.00 reduction in the Subcontract price.

3. Whiting-Turner Correctly Subtracted the Back Charge from the "Balance of the Contract Price"

¶46 GCNA lastly contends that the trial court improperly reduced the "Balance of the Contract Price" by a back charge of $30,702.00 because the trial court disallowed the amount of the back charge as an item of damages. (GCNA fails to acknowledge that the trial court adjusted the amount of the back charge to $5,915.00.) We disagree.

¶47 As GCNA notes, the trial court reduced Whiting-Turner's damages by the amount of the back charge. GCNA provides no explanation, beyond a one-sentence, conclusory statement, to support the proposition that, because Whiting-Turner could not recover the amount of the back charge as a component of its damages, the payment could not also reduce the "Balance of the Contract Price." We decline to address an undeveloped argument without legal support. See Holley v. Huang , 284 P.3d 81, 87 (Colo. App. 2011) (declining to address "bald assertions of error" unsupported by legal authority).

4. The New York Trial Court Decision on Which GCNA Relies Does Not Support GCNA's Argument that Whiting-Turner Failed to Satisfy the Condition Precedent in Section 3.3

¶48 We are not persuaded that the New York unpublished trial court decision cited by GCNA supports its argument that Whiting-Turner failed to comply with the condition precedent in section 3.3.

¶49 In East 49th Street Development II, LLC v. Prestige Air & Design, LLC , 938 N.Y.S.2d 226, 2011 WL 4599708 (N.Y. Sup. Ct. Oct. 6, 2011) (unpublished table decision), the contractor failed to tender the balance of the contract price to the surety, even though the balance of the contract price was positive, in violation of section 3.3 of the form A312 performance bond. Id. at *9. The East 49th Street court explained that an offer to pay the contract balance, even if the balance was negative, was sufficient to satisfy section 3.3 of the performance bond. Id. at *10.

¶50 Unlike the contractors in East 49th Street , Whiting-Turner acknowledged in its June 24, 2014, letter that it was required to pay GCNA the remainder of the "Balance of the Contract Price." Based on Whiting-Turner's tender of the "Balance of the Contract Price" to GCNA - albeit a negative balance - the trial court correctly found that Whiting-Turner had satisfied section 3.3 of the performance bond.

¶51 The law supports this conclusion. See U.S. Fid. & Guar. Co. v. Braspetro Oil Servs. Co. , 369 F.3d 34, 59 (2d Cir. 2004) ("[T]he relevant inquiry is whether the Obligees actually agreed to pay the Balance of the Contract Price - not, as the Sureties urge, whether the Obligees agreed with the Sureties' assessment of what the respective Balances were at the time of the declarations of default."). Accordingly, East 49th Street does not support GCNA's argument that Whiting-Turner failed to comply with section 3.3.

V. The Trial Court Did Not Award Duplicative Damages to Whiting-Turner

¶52 GCNA contends that "Whiting-Turner essentially 'triple-dipp[ed]' in that it sought the very same dollars in three ways" by (1) reducing the "Balance of the Contract Price" payable to GCNA; (2) seeking payment of the same amount under the performance bond; and (3) attempting to recover this sum under the payment bond.

¶53 The record does not reflect that the trial court awarded Whiting-Turner any duplicative damages, however. The trial court reduced the amount of the judgment to permit Whiting-Turner to recover only under the performance bond. In doing so, the trial court correctly subtracted from the judgment the sum that Whiting-Turner would have been required to pay Klempco had Klempco not breached the Subcontract.

¶54 Therefore, the trial court's judgment did not reflect "triple dipping." GCNA appears to acknowledge this fact in both its opening and reply brief. Accordingly, we disagree with GCNA that the trial court awarded duplicative damages to Whiting-Turner.

VI. The Trial Court Properly Awarded Whiting-Turner Its Attorney Fees

¶55 GCNA lastly contends that the trial court erroneously awarded attorney fees to Whiting-Turner under the performance bond. GCNA asserts that, because Whiting-Turner did not satisfy the condition precedent in section 3.3, Whiting-Turner could not recover attorney fees. Alternatively, GCNA argues that the trial court improperly failed to segregate the fees awardable to Whiting-Turner for its claim against GCNA from the fees attributable to Whiting-Turner's other claims and defenses. We disagree with both contentions.

A. Standard of Review

¶56 When awarding attorney fees and costs under a contractual fee-shifting provision, "[t]he determination of which party prevailed is committed to the discretion of the trial court and is subject to an abuse of discretion standard of review on appeal." Dennis I. SpencerContractor, Inc. v. City of Aurora , 884 P.2d 326, 328 n.6 (Colo. 1994) (citing Smith v. Freeman , 921 F.2d 1120, 1122 (10th Cir. 1990) ). A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or when it is based on an erroneous view of the law. Zeke Coffee, Inc. v. Pappas-Alstad P'ship , 2015 COA 104, ¶ 12, 370 P.3d 261, 265. We will not disturb such a decision if it is supported by the record. Double Oak Constr., L.L.C. v. Cornerstone Dev. Int'l, L.L.C. , 97 P.3d 140, 151 (Colo. App. 2003).

B. The Law Governing Attorney Fees

¶57 "[I]f the parties agree, in a contract clause known as a fee-shifting provision, ... the prevailing party will be entitled to recover its attorney fees and costs." S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v. Weinstein , 2014 COA 171, ¶ 10, 343 P.3d 1044, 1047.

¶58 A party can recover all of its attorney fees for a lawsuit containing "multiple claims 'involv[ing] a common core of facts' or 'based on related legal theories,' [when] counsel's efforts on an individual claim [cannot] be distinguished from work on the whole of the litigation...." Rocky Mountain Festivals, Inc. v. Parsons Corp. , 242 P.3d 1067, 1073 (Colo. 2010) (quoting Hensley v. Eckerhart , 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ). However, when the party "presented 'distinctly different claims for relief that [were] based on different facts and legal theories,' " the party may recover only those legal fees attributable to the claims on which the party prevailed. Id. (quoting Hensley , 461 U.S. at 435, 103 S.Ct. 1933 ).

C. Discussion

1. The Trial Court Properly Awarded Attorney Fees to Whiting-Turner Under the Performance Bond

¶59 Because Whiting-Turner complied with section 3.3, we agree with the trial court that Whiting-Turner had the right to recover attorney fees under the performance bond. The performance bond bound Klempco and GCNA, "jointly and severally, ... to [Whiting-Turner] for the performance of the [Subcontract], which is incorporated herein by reference." The Subcontract required Klempco to pay "[t]he amount of completion costs, as well as any other costs, damages, or expenses, including [Whiting-Turner's] legal fees and expense[s], incurred as a result of [Klempco's] default...." The Subcontract also required Klempco to indemnify Whiting-Turner "against any and all claims, suits, liens, judgments, damages, losses and expenses, including, but not limited to, attorney's fees, arising in whole or in part and in any manner for the acts or omissions of [Klempco] ... in the performance of the [Subcontract]...."

¶60 The language of the Subcontract demonstrates that Klempco and Whiting-Turner intended that Klempco would pay any legal fees that Whiting-Turner incurred as a consequence of Klempco's default. See Powder Horn Constructors, Inc. v. City of Florence , 754 P.2d 356, 365 (Colo. 1988) (language of the contract determines intent (citing Gen. Ins. Co. of Am. v. City of Colorado Springs , 638 P.2d 752, 757 (Colo. 1981) )). Because the performance bond provided that GCNA was jointly and severally liable with Klempco for all sums that Klempco owed Whiting-Turner under the Subcontract, GCNA was liable to Whiting-Turner for the attorney fees that Klempco owed to Whiting-Turner. We therefore conclude that the trial court did not abuse its discretion in awarding attorney fees to Whiting-Turner under the performance bond.

2. The Trial Court Did Not Err in Not Segregating the Fees Awarded to Whiting-Turner

¶61 GCNA challenges the lack of segregation between Whiting-Turner's fees attributable to Whiting-Turner's claims against GCNA arising under the performance bond and Whiting-Turner's fees relating to the other claims and defenses in the case. The trial court found, however, "that it is improper[ ] to segregate out Whiting-Turner defense costs against Klempco versus the cost and fees that [Whiting-Turner] incurred in bringing its claims against Klempco for completion of the [P]roject." The trial court explained that "all of the claims of both parties arise out of the same operative facts...." (Emphasis added.)

¶62 To prosecute its claim for breach of the performance bond, Whiting-Turner had to prove its compliance with each of the three conditions precedent set forth in the performance bond: (1) notification to Klempco and GCNA that Whiting-Turner was considering declaring Klempco in default; (2) notification to GCNA that Whiting-Turner had declared a default and terminated the Subcontract; and (3) payment of the "Balance of the Contract Price" to GCNA or a designated replacement subcontractor. Whiting-Turner therefore could not prove its claim under the performance bond unless it established, among other facts, that it had properly declared Klempco in default and terminated the Subcontract.

¶63 All the claims in the case, including Whiting-Turner's claim under the performance bond, therefore "involv[ed] a common core of facts." Rocky Mountain Festivals, Inc. , 242 P.3d at 1073 (quoting Hensley , 461 U.S. at 435, 103 S.Ct. 1933 ). We discern no error in the trial court's finding that Whiting-Turner's attorney fees could not be apportioned amongst Whiting-Turner's claims against GCNA, claims against Klempco, and defenses to Klempco's claims, as all such claims and defenses were intertwined. The trial court thus correctly held that, under the performance bond, GCNA was liable to Whiting-Turner for all of Whiting-Turner's attorney fees incurred in the litigation.

¶64 For these reasons, we conclude that the trial court did not abuse its discretion in awarding Whiting-Turner its attorney fees incurred in this litigation or in calculating the amount of such fees.

VII. Conclusion

¶65 The judgment is affirmed.

JUDGE DAILEY and JUDGE FURMAN concur.