in Int. of S.A.G ( 2021 )

still had home-state jurisdiction. But whether the juvenile court will need to
contact an Arkansas court will depend on the results of the jurisdictional
factfinding on remand.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2021 CO 38Supreme Court Case No. 20SC314
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 19CA991
Petitioners:
The People of the State of Colorado,
In the Interest of Minor Child: S.A.G.;
and
S.A.G., Minor Child,
v.
Respondents:
B.A.G. and A.W.D.
Judgment Affirmed in Part and Reversed in Part
en banc
June 1, 2021
Attorneys for Petitioner the People of the State of Colorado:
Denver City Attorney’s Office
Kristin M. Bronson, Denver City Attorney
Laura Grzetic Eibsen, Assistant City Attorney
Tierney A. Shea, Assistant City Attorney
Denver, Colorado
Attorneys for Petitioner S.A.G.:
Law Office of Gina G. Bischofs, P.C.
Gina G. Bischofs, Guardian ad litem
Arvada, Colorado
Attorneys for Respondent B.A.G.:
Henson Law, LLC
Chelsea A. Carr
Patrick R. Henson
Denver, Colorado
Attorney for Respondent A.W.D.:
Susan C. Baker
El Prado, New Mexico
JUSTICE HOOD delivered the Opinion of the Court.
2
¶1 The night before S.A.G.’s third birthday, he crossed a street alone and
wandered into a gas station parking lot. The police found him inside, by the
refrigerator section, and took him into protective custody. S.A.G.’s family had
arrived in Colorado only a few weeks prior, and his parents insist that they were
temporarily visiting from Arkansas, where they have since returned. A Colorado
juvenile court asserted jurisdiction over the resulting dependency and neglect
proceeding and eventually terminated the legal relationship between S.A.G. and
his parents.
¶2 This opinion, announced the same day as People in Interest of B.H., 2021 CO
39, __ P.3d __, addresses when Colorado courts have the power to terminate
parental rights if Colorado isn’t a child’s home state. That jurisdictional question
turns on how we interpret Colorado’s codification of the Uniform Child-custody
Jurisdiction and Enforcement Act (“UCCJEA”).
¶3 A.W.D. (“mother”) and B.A.G. (“father”) argue that the juvenile court
lacked jurisdiction when it terminated their parental relationships with S.A.G. A
division of the court of appeals agreed, reasoning that the UCCJEA’s temporary
emergency jurisdiction provision did not authorize the termination order. The
division also concluded that the juvenile court had not acquired UCCJEA initial
custody (non-emergency) jurisdiction because the court had not communicated
3
with any court from S.A.G.’s home state and, therefore, no home-state court had
declined jurisdiction.
¶4 We affirm in part on other grounds and reverse in part. In keeping with the
plain language of the statute, we hold that UCCJEA temporary emergency
jurisdiction exists only to protect abandoned children or to prevent mistreatment
or abuse in emergencies. The juvenile court did not have temporary emergency
jurisdiction when it terminated parental rights here because S.A.G. was not then
abandoned and no emergency then existed. Thus, the division was right to vacate
the termination judgment. However, the division erred by requiring the juvenile
court to communicate with an Arkansas court without further analysis. Since it is
possible but not certain that Arkansas had home-state jurisdiction over S.A.G. on
the date of the termination order, we conclude that the juvenile court should have
conducted a full analysis of its non-emergency jurisdiction, including the requisite
factfinding. The results of that analysis will dictate whether the juvenile court
must contact an Arkansas court on remand.
I. Facts and Procedural History
¶5 On November 15, 2017, a woman spotted a toddler, S.A.G., crossing the
street alone and then entering a gas station parking lot. Denver police found the
child inside the gas station, dirty but unharmed.
4
¶6 They searched the area and, at the motel across the street, they were flagged
down by S.A.G.’s parents. His mother said that she had fallen asleep with S.A.G.
in her arms around 9:30 p.m. in their motel room. His father reported that he had
left the room to buy a drink from a vending machine and S.A.G. was missing when
he returned.
¶7 The police thought that mother and father were behaving hysterically and
suspected that father was high. The officers asked to search the motel room.
Father refused to let the police inspect the entire room—he claims they were being
rude—so the police sent S.A.G. to the hospital instead of returning him.
¶8 The next day, Denver Human Services (“DHS”) placed S.A.G. with a foster
family. At a family crisis center, mother tested positive for methamphetamine and
the police arrested father on an out-of-state warrant.
¶9 Two days after the gas station incident, DHS filed a petition pursuant to
section 19-3-502, C.R.S. (2020), alleging that S.A.G. was dependent or neglected.
The parents conceded that S.A.G.’s environment was injurious to his welfare, so
the juvenile court adjudicated him dependent and neglected. See § 19-3-505(7)(a),
C.R.S. (2020). The court ordered parents to comply with treatment plans per
section 19-3-508(1)(e)(I), C.R.S. (2020).
¶10 DHS filed a motion to terminate mother’s and father’s parental rights in
September 2018, citing insufficient compliance with the plans. See § 19-3-602,
5
C.R.S. (2020). After a six-day trial that stretched from November 2018 to April
2019, the juvenile court terminated the parents’ relationship with S.A.G. because
they hadn’t reasonably complied with their plans, they were unfit parents, and
they wouldn’t become fit within a reasonable time. See § 19-3-604(1)(c), C.R.S.
(2020).
¶11 According to parents, one obstacle to compliance with their Colorado
treatment plans was geographic—they live in Arkansas and were in Colorado only
temporarily. The record offers conflicting explanations for why they were in
Colorado but suggests that they had been here for only a few weeks before the
police found S.A.G. at the gas station. S.A.G. was born in Illinois but otherwise
lived his entire life in Arkansas until his parents brought him to Colorado.
¶12 The juvenile court knew from the outset that S.A.G. and his parents were
from another state. At the first hearing, mother’s attorney told the court that
mother “does not reside here. . . . [H]er residence is in Arkansas.” At another
early hearing, mother reiterated, “I currently permanently reside in Arkansas.
And this is affecting my home life there, being here, spending money in hotels,
having to work day-to-day just to make stuff meet . . . .” Similarly, father’s counsel
told the court that “parents have been clear . . . since this case opened that they
were in Colorado temporarily[,] that Arkansas was their home where all of their
6
supports are, and they wanted to get back there as soon as possible because they
didn’t think they could get stable here.”
¶13 Despite this jurisdictional issue, the juvenile court did not explicitly discuss
the UCCJEA until May 2018, six months into this proceeding. When father’s
attorney then told the court that “Arkansas was [S.A.G.’s] home state” and asked
“if there’s any way to transfer jurisdiction,” the court agreed that “we’re not the
home state” but decided that “[w]e wouldn’t be able to transfer jurisdiction since
there was no case open in Arkansas.” The court concluded that it had jurisdiction
because “[i]t’s only if we end with anything other than a termination that we
wouldn’t have jurisdiction, is my understanding.”
¶14 The UCCJEA issue emerged for a second and final time when DHS
announced it would seek to terminate mother’s and father’s parental rights. DHS
advised the court that, to comply with the UCCJEA, the court needed to ask
parents whether S.A.G. had been the subject of any prior custody proceedings.
Parents informed the court that this was the first. The court entered an oral
termination order on April 19, 2019, concluding that “the child is within the
jurisdiction of Denver Juvenile Court due to the fact that the incident that brought
this to the attention of the department occurred in Denver.” It issued a written
order several weeks later.
7
¶15 On appeal, father argued that the juvenile court lacked subject matter
jurisdiction under the UCCJEA when it terminated his parental rights. People in
Int. of S.A.G., 2020 COA 45, ¶ 12, __ P.3d __.
¶16 A division of the court of appeals agreed, reasoning that, to terminate
parental rights pursuant to temporary emergency jurisdiction, “(1) the order
[must] state[] that it will become final and (2) Colorado [must] become[] the child’s
home state.” Id. at ¶ 25. Because neither condition had been met, “the juvenile
court lacked jurisdiction to terminate parental rights under temporary emergency
jurisdiction.” Id. at ¶¶ 25–26, 28.
¶17 Looking for other jurisdictional hooks, the division turned to non-
emergency UCCJEA jurisdiction, which can be achieved four different ways:
“home-state” jurisdiction, “significant-connection” jurisdiction, “more-
appropriate-forum” jurisdiction, and “last-resort” jurisdiction. Id. at ¶¶ 20, 26.
The division concluded that, when the case began, Arkansas, not Colorado, was
S.A.G.’s home state, so the juvenile court didn’t have home-state or last-resort
jurisdiction. Id. at ¶ 28. The division also rejected significant-connection and
more-appropriate-forum jurisdiction because those “require that a home state
court decline jurisdiction before another state’s court can invoke it” but “no
affirmative act ha[d] been taken to communicate with a court” in Arkansas. Id. at
¶¶ 29–30.
8
¶18 Having ruled out every possible source of jurisdiction, the division vacated
the termination judgment and ordered the juvenile court to try to obtain
significant-connection or more-appropriate-forum jurisdiction by contacting an
Arkansas court. Id. at ¶ 37.
¶19 We granted the People and the guardian ad litem’s (“GAL”) joint petition
for certiorari to review the division’s judgment that the juvenile court lacked
subject matter jurisdiction under the UCCJEA when it issued the termination
order.1
II. Analysis
¶20 After identifying the standard of review, we examine the purpose and
structure of the UCCJEA. Then, we consider whether the juvenile court had either
temporary emergency or non-emergency jurisdiction under the UCCJEA when it
terminated mother’s and father’s parental rights. Finally, we also offer some
guidance on when and how juvenile courts must contact out-of-state courts when
seeking to acquire non-emergency jurisdiction.
1 We granted certiorari to review the following issue:
Whether the court of appeals erred in its analysis of the Uniform
Child-custody Jurisdiction and Enforcement Act (“UCCJEA”) in
concluding that the trial court did not have subject matter jurisdiction
pursuant to the UCCJEA to enter its judgment and order terminating
Father’s and Mother’s parental rights to the child, S.A.G.
9
A. Standard of Review
¶21 “Whether a trial court has jurisdiction over a child custody proceeding
presents a question of law, which we review de novo.” Brandt v. Brandt, 2012 CO
3, ¶ 18, 268 P.3d 406, 410. But “[a]ny factual dispute upon which the existence of
jurisdiction may turn is for the trial court to resolve, and an appellate court may
not disturb the factual findings of the trial court unless they are clearly erroneous.”
CAMAS Colo., Inc. v. Bd. of Cnty. Comm’rs, 36 P.3d 135, 138 (Colo. App. 2001).
B. The UCCJEA
¶22 “A court has subject-matter jurisdiction if ‘the case is one of the type of cases
that the court has been empowered to entertain by the sovereign from which the
court derives its authority.’” Horton v. Suthers, 43 P.3d 611, 615 (Colo. 2002)
(quoting Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo.
1986)). In Colorado, “[t]rial courts . . . are courts of general [subject matter]
jurisdiction” and their “‘unrestricted and sweeping jurisdictional powers’ are only
limited by . . . ‘statute or constitutional provision.’” Currier v. Sutherland, 218 P.3d
709, 712 (Colo. 2009) (quoting Matter of A.W., 637 P.2d 366, 373 (Colo. 1981)).
¶23 The UCCJEA is one such limiting statute: It “prescribes the circumstances
under which jurisdiction that otherwise is conferred by constitution or statute can
be exercised in a given case.” In re Teagan K.-O., 242 A.3d 59, 79 (Conn. 2020).
Colorado enacted the UCCJEA, in part, “to avoid jurisdictional competition over
10
child custody matters in an increasingly mobile society.” People in Int. of A.B-A.,
2019 COA 125, ¶ 10, 451 P.3d 1278, 1282. To accomplish this, “the UCCJEA sets
out a detailed and comprehensive framework that a court must use to determine
whether it may exercise jurisdiction in a child custody matter, or whether it may
(or, in some cases, must) defer to a court of another state.” People in Int. of C.L.T.,
2017 COA 119, ¶ 16, 405 P.3d 510, 513. Every state has adopted the UCCJEA
except Massachusetts. In re J.W., 267 Cal. Rptr. 3d 554, 558 (Cal. Ct. App. 2020).
¶24 The UCCJEA offers Colorado courts two ways to employ their power to first
issue a “child-custody determination,” which the statute defines very broadly as
any “judgment, decree, or other order of a court providing for the legal custody or
physical custody of a child or allocating parental responsibilities . . . or providing
for visitation [or] parenting time,” including “a permanent, temporary, initial, [or]
modification order.” § 14-13-102(3), C.R.S. (2020).
¶25 The first is temporary emergency jurisdiction, which is available whenever a
child is in Colorado and is either “abandoned” or jurisdiction is “necessary in an
emergency to protect the child because the child . . . is subjected to or threatened
with mistreatment or abuse.” § 14-13-204(1), C.R.S. (2020).
11
¶26 Second, when those conditions aren’t met, a court can assert non-emergency
jurisdiction “only if” it successfully navigates one of the four paths to jurisdiction
from section 14-13-201(1), C.R.S. (2020):2
• Home-state jurisdiction: A court has home-state jurisdiction if
Colorado was “the home state of the child [at] the
commencement of the proceeding.” § 14-13-201(1)(a). “‘Home
state’ means the state in which a child lived with a parent or a
person acting as a parent for at least [182] consecutive days
immediately before the commencement of a child-custody
proceeding,” and includes any “period of temporary absence.”
§ 14-13-102(7)(a). Home-state jurisdiction also exists “if the
child lived in [Colorado] for a consecutive [182-day] period . . .
at any time during the [182 days] before the filing of the custody
proceeding” and the child is absent from Colorado but a parent
(or person acting as parent) still lives here. In re Parental Resps.
2 Section 14-13-201(1) doesn’t reference “non-emergency” jurisdiction; rather, it
discusses jurisdiction to “make an initial child-custody determination,” which
means “the first child-custody determination concerning a particular child,”
§ 14-13-102(8). But section 14-13-201(1)’s four paths to jurisdiction are also
applicable in a case like this where the first child-custody determination was
entered pursuant to temporary emergency jurisdiction but that jurisdiction has
lapsed. If “[a] court of this state . . . has made a child-custody determination and
does not have [the] exclusive, continuing jurisdiction” that results from having
made that determination pursuant to section 14-13-201(1), the court “may modify
that determination only if it has jurisdiction to make an initial determination under
section 14-13-201.” § 14-13-202(2), C.R.S. (2020); see also In re Aiden L., 224 Cal. Rptr.
3d 400, 408 (Cal. Ct. App. 2017) (“If a California court has exercised temporary
emergency jurisdiction . . . , that court may not . . . make a final child custody
determination until it properly asserts jurisdiction under the nonemergency
jurisdiction provisions of the UCCJEA.”). Therefore, we refer to the jurisdiction
granted by section 14-13-201(1) as “non-emergency jurisdiction,” rather than
“initial-custody-determination jurisdiction.”
12
Concerning L.S., 257 P.3d 201, 208 (Colo. 2011); see also
§ 14-13-201(1)(a).
• Significant-connection jurisdiction: A court has significant-connection
jurisdiction if “[t]he child and the child’s parents, or the child and at
least one parent or a person acting as a parent, have a significant
connection with [Colorado] other than mere physical presence”;
“[s]ubstantial evidence is available in [Colorado] concerning the
child’s” welfare; and either no court of another state has home-state
jurisdiction or a court of the home state “has declined to exercise
jurisdiction on the ground that [Colorado] is the more appropriate
forum.” § 14-13-201(1)(b).
• More-appropriate-forum jurisdiction: A court can assert more-
appropriate-forum jurisdiction if all courts having home-state
jurisdiction or significant-connection jurisdiction “have declined to
exercise jurisdiction on the ground that [Colorado] is the more
appropriate forum.” § 14-13-201(1)(c).
• Last-resort jurisdiction: A court has last-resort jurisdiction when “[n]o
court of any other state would have [home-state, significant-
connection, or more-appropriate-forum] jurisdiction.”
§ 14-13-201(1)(d).
C. Temporary Emergency Jurisdiction
¶27 The People and the GAL argue that the juvenile court had temporary
emergency jurisdiction when it terminated mother’s and father’s parental rights.
They rely on section 14-13-204(2)’s statement that an order issued during
temporary emergency jurisdiction can ripen into a “final determination” if the
child hasn’t been the subject of a previous child-custody determination and no
other child-custody proceedings exist.
13
¶28 Father endorses the division’s holding that the juvenile court didn’t have
temporary emergency jurisdiction because the termination order didn’t satisfy
section 14-13-204(2)’s two requirements for becoming a “final determination”;
namely, the order didn’t say it would become a final determination and Colorado
never became S.A.G.’s home state. Mother also argues that there was no
temporary emergency jurisdiction, but she focuses on the fact that the court
accepted her and father’s assurances that this was the first proceeding instead of
checking with an Arkansas court.
¶29 We agree with parents that the juvenile court did not have temporary
emergency jurisdiction, but for a different reason. We conclude that the court
lacked temporary emergency jurisdiction because, at the time of the termination
order, S.A.G. was not abandoned and there was no emergency.
¶30 “A court of this state has temporary emergency jurisdiction [only] if the
child is present in [Colorado] and the child has been abandoned or it is necessary
in an emergency to protect the child because the child . . . is subjected to or
threatened with mistreatment or abuse.” § 14-13-204(1). Therefore, temporary
emergency jurisdiction “continues ‘only for as long as the emergency exists’” or
the child remains abandoned. Beauregard v. White, 972 A.2d 619, 626 (R.I. 2009)
(quoting Nadeau v. Nadeau, 716 A.2d 717, 725 (R.I. 1998)); see also A.B-A., ¶¶ 12–13,
451 P.3d at 1283 (“[A] Colorado court may exercise temporary emergency
14
jurisdiction to protect a child who is present in Colorado from mistreatment,
abuse, or abandonment. . . . But this temporary emergency jurisdiction under the
UCCJEA is limited in scope and in time.” (citations omitted)); In re C.T., 121 Cal.
Rptr. 2d 897, 908 (Cal. Ct. App. 2002) (“[When] the emergency ended, . . . the
California court was correct in terminating jurisdiction.”); In re J.C., 832 S.E.2d 91,
100 n.28 (W. Va. 2019) (“Under the facts of the instant case, the circuit court’s
temporary emergency jurisdiction ended when [the Department of Health and
Human Resources] filed the abuse and neglect petition.”).
¶31 “‘Abandoned’ means left without provision for reasonable and necessary
care or supervision.” § 14-13-102(1). Although S.A.G. arguably was abandoned
when he wandered across the street in November 2017, nothing in the record
suggests he lacked reasonable and necessary care when the court issued its
termination order in April 2019. By then, S.A.G. had been living for over a year
with a foster family that, according to DHS and the GAL, was meeting his needs.
¶32 Nor, at the time of termination, was jurisdiction “necessary in an emergency
to protect [S.A.G.] because the child . . . [was] subjected to or threatened with
mistreatment or abuse.” § 14-13-204(1). The UCCJEA doesn’t define
“emergency,” so we look to “the common usage” as we’ve done when other
statutes “failed to explicitly define” the same word: “1: an unforeseen combination
of circumstances or the resulting state that calls for immediate action 2: a pressing
15
need: EXIGENCY.” Fogg v. Macaluso, 892 P.2d 271, 274 (Colo. 1995) (quoting
Emergency, Webster’s Seventh New Collegiate Dictionary (1963)). Although an
emergency may have existed when the police found S.A.G. at the gas station, the
record contains no evidence of unforeseen circumstances calling for immediate
action when the court issued its termination order fifteen months later. See C.T.,
121 Cal. Rptr. 2d at 908 (“[T]he custody order . . . removed the risk C. would be
sexually abused . . . . At that time, the emergency ended . . . .”).
¶33 Indeed, some courts have held that “a Colorado court exercising temporary
emergency jurisdiction may not enter a permanent custody disposition” like
termination of parental rights. A.B-A., ¶ 13, 451 P.3d at 1283; accord People in Int.
of M.C., 94 P.3d 1220, 1225 (Colo. App. 2004) (“Assumption of emergency
jurisdiction does not confer upon the state exercising emergency jurisdiction the
authority to make a permanent custody disposition.” (quoting C.T., 121 Cal. Rptr.
2d at 904)); see also In re NC, 294 P.3d 866, 876 (Wyo. 2013) (“Emergency jurisdiction
under the UCCJEA . . . does not include the authority to make permanent custody
determinations.” (citation omitted)); In re Gino C., 169 Cal. Rptr. 3d 193, 197 (Cal.
Ct. App. 2014) (“[T]emporary emergency jurisdiction does not confer authority to
make a permanent child custody determination.”). But we need not, and therefore
do not, go that far to resolve this case.
16
¶34 Given the limited scope of section 14-13-204(1)—abandonment and
emergencies—we disagree with the division’s statement that the juvenile court
could have terminated parents’ rights pursuant to temporary emergency
jurisdiction if only (1) the order had a proviso saying it would become a final
determination if Colorado became S.A.G.’s home state and (2) Colorado became
his home state. See S.A.G., ¶ 25. Section 14-13-204(2) says that, if no custody
proceedings are pending in other states, “a child-custody determination made
under [temporary emergency jurisdiction] becomes a final determination, if it so
provides and [Colorado] becomes the home state of the child.” But section
14-13-204(2) does not expand section 14-13-204(1)’s exhaustive list of
circumstances that create temporary emergency jurisdiction.
¶35 Thus, section 14-13-204(2)’s reference to final determinations does not
permit courts to terminate parental rights pursuant to temporary emergency
jurisdiction in the absence of a continuing abandonment or emergency. Since the
juvenile court did not have temporary emergency jurisdiction under section
14-13-204(1) when it terminated mother’s and father’s parental rights, we must
now examine whether it had non-emergency jurisdiction through section
14-13-201(1).
17
D. Non-Emergency Jurisdiction
¶36 The juvenile court did not conduct a non-emergency UCCJEA jurisdictional
analysis beyond concluding that “we’re not the home state” and asking parents
about out-of-state proceedings. Although the People and the GAL focus their
arguments on temporary emergency jurisdiction, we understand them to argue
that Arkansas ceased to have home-state jurisdiction over S.A.G. and, if the
juvenile court needed non-emergency jurisdiction, then the termination order was
proper if the record reveals that the court impliedly asserted it. The parents agree
with the division that, because Arkansas was S.A.G.’s home state, the juvenile
court couldn’t have had non-emergency jurisdiction because it never contacted an
Arkansas court.
¶37 We agree with the parents on a more limited basis. We agree that the
juvenile court did not properly assert any form of non-emergency jurisdiction
before terminating their parental rights, but we think that the division mistakenly
focused on whether Arkansas had home-state jurisdiction when the Colorado case
began. See S.A.G., ¶ 28. In the circumstances of this case, the proper inquiry is
whether Arkansas still had home-state jurisdiction when the juvenile court issued
the termination order. Whether Arkansas had home-state jurisdiction then
depends on whether S.A.G.’s time in DHS custody was a temporary absence from
18
Arkansas, a mixed question of law and fact that the juvenile court must answer in
the first instance.
¶38 Recall our four paths to non-emergency jurisdiction; the first is home-state
jurisdiction, and a home state is where “a child lived with a parent or a person
acting as a parent for at least one hundred eighty-two consecutive days
immediately before the commencement of a child-custody proceeding,” inclusive
of any “period of temporary absence.” § 14-13-102(7)(a).
¶39 As the juvenile court recognized, Colorado wasn’t S.A.G.’s home state
because he had lived here for less than three weeks before DHS started this
proceeding. See § 14-13-201(1)(a). Thus, the division correctly held that the
juvenile court didn’t have home-state jurisdiction.3 See S.A.G., ¶ 28.
¶40 But the division erred when it concluded that “Arkansas meets the
definition of home state” and that, therefore, last-resort jurisdiction was
3 DHS’s termination motion did not start a new “proceeding” for purposes of
assessing home-state status. Some courts have held that “[a] termination of
parental rights proceeding is not simply a continuation of a dependent-neglect
proceeding” but is instead “new and separate.” In re M.J.B., 140 S.W.3d 643, 651
(Tenn. Ct. App. 2004). But, in Colorado, a motion to terminate parental rights after
a child has been adjudicated dependent and neglected is a request for a remedy,
not the start of a second proceeding. See § 19-3-502(3)(a) (requiring all dependency
and neglect petitions to state that “[t]ermination of the parent-child legal
relationship is a possible remedy available if this petition alleging that a child is
dependent or neglected is sustained”).
19
impossible and the juvenile court couldn’t have significant-connection or more-
appropriate-forum jurisdiction because it didn’t ask an Arkansas court to decline
jurisdiction. Id. at ¶¶ 29–30.
¶41 While the record suggests that Arkansas was the home state in November
2017, the juvenile court’s ability to enter a termination order pursuant to
significant-connection, more-appropriate-forum, and last-resort jurisdiction turns
on whether Arkansas still has home-state jurisdiction. A Colorado court can assert
significant-connection jurisdiction if “[a] court of another state does not have
jurisdiction under a provision of law adopted by that state” granting home-state
jurisdiction. § 14-13-201(b) (emphasis added). More-appropriate-forum
jurisdiction is available when “[a]ll courts having [home-state or significant-
connection jurisdiction] under a provision of law adopted by that state . . . have
declined to exercise jurisdiction.” § 14-13-201(c) (emphasis added). And last-
resort jurisdiction requires that “[n]o court of any other state would have
jurisdiction under the criteria specified in a provision of law adopted by that state
[granting home-state, significant-connection, or more-appropriate-forum
jurisdiction].” § 14-13-201(d) (emphasis added).
¶42 So, regardless of whether Arkansas had home-state jurisdiction as S.A.G.’s
home state under Arkansas law when this case began, the UCCJEA asks whether
Arkansas presently has home-state jurisdiction. The division’s focus on whether
20
Arkansas had home-state jurisdiction when this case began is contrary to the plain
text of the UCCJEA. The division’s approach would also lead to the absurd result
of requiring Colorado courts to ask out-of-state courts to decline jurisdiction that
has already expired.
¶43 Based on the record, we cannot determine whether Arkansas had home-
state jurisdiction when the juvenile court issued the April 2019 termination order.
S.A.G. was living in Colorado, not Arkansas, for the six months before the order.
If, hypothetically, an Arkansas agency had filed a child-welfare case in Arkansas
in April 2019, the Arkansas court would have found home-state jurisdiction then
only if S.A.G.’s time in Colorado had been a “period of temporary absence.” See
Ark. Code Ann. § 9-19-102(7) (West 2021) (“‘Home state’ means the state in which
a child lived with a parent or a person acting as a parent for at least six (6)
consecutive months immediately before the commencement of a child-custody
proceeding. . . . A period of temporary absence of any of the mentioned persons
is part of the period.”); see also Ark. Code Ann. § 9-19-201(a)(1) (West 2021) (“[A]
court of [Arkansas] has [home-state] jurisdiction . . . if . . . this state is the home
state of the child on the date of the commencement of the proceeding . . . .”). Under
Arkansas law, whether an absence is temporary for purposes of maintaining
Arkansas’s home-state jurisdiction turns on parental “intent.” Adams v. Adams,
432 S.W.3d 49, 58 (Ark. Ct. App. 2014).
21
¶44 When Colorado isn’t the home state and an out-of-state court might have
home-state jurisdiction, we have held that a trial court cannot “properly analyze
whether Colorado had [non-emergency] jurisdiction based on any of the three
alternative grounds” (significant-connection, more-appropriate-forum, and last-
resort jurisdiction) unless it first “determine[s] whether another state would have
home state jurisdiction.” Madrone v. Madrone, 2012 CO 70, ¶ 13, 290 P.3d 478, 481.
So, after the juvenile court determined that Colorado wasn’t the home state, its
next step should have been to determine whether “[an]other state qualified as
[S.A.G.’s] home state,” which would have turned on whether S.A.G.’s time in
Colorado was a temporary absence from Arkansas. Id.¶45 When a court commits the error of failing to analyze whether another state
had home-state jurisdiction, the remedy is to “vacate the trial court’s order . . . and
remand [the] case for the trial court to conduct a full analysis under Colorado’s
UCCJEA, section 14-13-201.” Id. at ¶ 18, 290 P.3d at 482. Since Colorado wasn’t
the home state but the record leaves open the possibility that Arkansas has home-
state jurisdiction, the juvenile court must, on remand, conduct a full analysis of its
non-emergency jurisdiction.
E. Contacting Out-of-State Courts
¶46 We could stop our analysis here, but we are mindful that this case involves
custody of a child who is now six years old and that this case has been litigated for
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more than three years. Thus, we offer some additional guidance to the juvenile
court on how to swiftly comply with the perplexing mandates of section
14-13-201(1).
¶47 When the juvenile court conducts its jurisdictional analysis on remand, it
will need to look for significant-connection, more-appropriate-forum, or last-
resort jurisdiction. If the juvenile court finds that Arkansas no longer has home-
state jurisdiction because S.A.G.’s absence from Arkansas has not been temporary,
then it can assert significant-connection jurisdiction if it also finds that S.A.G. and
“[his] parents, or [S.A.G.] and at least one parent or a person acting as a parent,
have a significant connection with this state other than mere physical presence”
and “[s]ubstantial evidence is available in this state concerning the child’s care,
protection, training, and personal relationships.” § 14-13-201(1)(b). In the absence
of significant-connection jurisdiction, the juvenile court can assert last-resort
jurisdiction if it finds that Arkansas has no jurisdiction. See § 14-13-201(1)(d).
¶48 Any other path to non-emergency jurisdiction will require the juvenile court
to contact an Arkansas court and ask it to “decline[] to exercise jurisdiction.”
§ 14-13-201(1)(b)–(c). That is to say, if the juvenile court finds that Arkansas has
home-state jurisdiction, then last-resort jurisdiction becomes impossible and both
significant-connection jurisdiction and more-appropriate-forum jurisdiction
would require an Arkansas court to decline jurisdiction. See § 14-13-201(1).
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¶49 If the juvenile court’s jurisdiction depends on an Arkansas court declining
jurisdiction, the Arkansas court can decline for a limited set of reasons: “that
[Colorado] is the more appropriate forum under a provision of law adopted by
[Arkansas] that is in substantial conformity with section 14-13-207 or 14-13-208.”
§ 14-13-201(1)(b)–(c). Those two sections allow a court to decline jurisdiction if it
would be an inconvenient forum, § 14-13-207, C.R.S. (2020) (listing eight factors
that the court must consider), or if the “person seeking to invoke the jurisdiction
. . . has engaged in unjustifiable conduct,” a possibility that is not at issue here,
§ 14-13-208(1), C.R.S. (2020).
¶50 The word “decline” combined with an exclusive list of reasons for declining
“suggest[s] that the home state must have . . . an opportunity to weigh in,” S.A.G.,
¶ 32, and that the mere “absence of litigation” in the other state is insufficient, id.
at ¶ 31 (quoting Manley v. Hoag, 917 P.2d 1011, 1014 (Okla. Civ. App. 1996)).
Section 14-13-201’s second comment amplifies that suggestion: “[A] significant
connection State may assume jurisdiction . . . when the home State decides that the
significant connection State would be a more appropriate forum.” (Emphasis
added.) The same comment also provides that Colorado courts can exercise more-
appropriate-forum jurisdiction only when other courts “determine” that Colorado
is the better forum. Id. We have previously concluded that “no state ha[d]
declined jurisdiction” when no one had “invited” the other state’s court to exercise
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jurisdiction. Madrone, ¶ 16, 290 P.3d at 481 & n.4 (“This vehicle for jurisdiction is
only available if a jurisdiction in another state determines that Colorado is a more
appropriate forum.” (emphasis added)).
¶51 Thus, we agree with those courts that have held that a court cannot decline
jurisdiction unless it has been “asked.” In re Parental Resps. Concerning B.C.B.,
2015 COA 42, ¶ 12, 411 P.3d 926, 930 (“Idaho was not asked, and therefore did not
decline, to exercise its home state jurisdiction . . . .”); see also In re J.C., 832 S.E.2d at
99 (holding that significant-connection jurisdiction was impossible because “the
record in this case does not disclose that a ‘court’ in Virginia was contacted and
declined to exercise jurisdiction”); G.S. v. R.L., 259 So. 3d 677, 681 (Ala. Civ. App.
2018) (rejecting significant-connection and more-appropriate-forum jurisdiction
because “[t]he record in these cases does not contain any order from any Tennessee
court declining to exercise its home-state jurisdiction”); In re Aiden L., 224 Cal.
Rptr. 3d 400, 408 (Cal. Ct. App. 2017) (“[I]f the court is aware that another state . . .
qualifies as the child’s home state, the California court must contact the home state
court to give it an opportunity to decide whether to exercise its home state
jurisdiction.”).
¶52 We disagree with the People and the GAL that this result conflicts with
sections 14-13-110(1), C.R.S. (2020), and 14-13-204(4). Although section
14-13-110(1) states that “[a] court of this state may communicate with a court in
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another state,” that permissive language doesn’t negate section 14-13-201(1)’s
more specific rule that out-of-state courts must sometimes “decline[] to exercise
jurisdiction” before a Colorado court can acquire non-emergency jurisdiction.
And section 14-13-204(4)’s requirement that Colorado courts exercising temporary
emergency jurisdiction contact out-of-state courts that have already issued a child-
custody determination pursuant to non-emergency jurisdiction does not preclude
court-to-court communication under other circumstances.
¶53 We now address how to ask out-of-state courts to decline jurisdiction.
Although the UCCJEA is clear that an out-of-state “court” must be the one to
decline jurisdiction—and not, say, an agency—it does not specify who should do
the asking. See § 14-13-201(1). But the UCCJEA does list three ways to raise “[t]he
issue of inconvenient forum,” which is the only reason that an out-of-state court
can decline jurisdiction in the absence of a proper case: “upon motion of a party,
the court’s own motion, or request of another court.” § 14-13-207(1). When there
is not a case in the other state, the first possibility is unavailable and the second is
improbable, so it falls on the Colorado juvenile court to contact the other court. See
Gino C., 169 Cal. Rptr. 3d at 197 (“Since the court opted to remain passive and did
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not contact Mexico, Mexico has not been given an opportunity to decide whether
to exercise its home state jurisdiction.”).4
¶54 The UCCJEA fails to identify which specific out-of-state court the juvenile
court should contact in situations like this. See § 14-13-201(1). Section 14-13-209(1),
C.R.S. (2020), does, however, require parties to child-custody proceedings to
provide the court, in their first pleadings, with “the places where the child has
lived during the last five years, and the names and present addresses of the
persons with whom the child has lived during that period,” as well as “the names
and addresses of any person not a party to the proceeding who . . . claims rights
of parental responsibilities or legal custody or physical custody.” A court may
also “examine the parties under oath as to . . . matters pertinent to the court’s
jurisdiction and the disposition of the case.” § 14-13-209(3). This information will
help a juvenile court identify an appropriate court.
4 A division of the court of appeals held that a trial court erred when it used its
clerk as an intermediary to contact a Rhode Island court to discuss jurisdiction.
People in Int. of D.P., 181 P.3d 403, 407 (Colo. App. 2008). We agree that a clerk is
not a “court.” See § 14-13-102(6) (“‘Court’ means an entity authorized under the
law of a state to establish, enforce, or modify a child-custody determination.”). But
we do not read the UCCJEA as forbidding courts from using clerks or other staff
as go-betweens to facilitate court-to-court communications. See § 14-13-110(1) (“A
court of this state may communicate with a court in another state concerning a
proceeding arising under this article.”).
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¶55 Further complicating matters, the UCCJEA doesn’t specify how courts must
decline jurisdiction. Given that silence, we decline to require a court order.
Demanding one would create the possibility of jurisdictional limbo if the other
court “refuses for whatever reason to commit one way or . . . to even discuss the
issue.” In re M.M., 192 Cal. Rptr. 3d 849, 860 (Cal. Ct. App. 2015). Rather, after a
Colorado court contacts an out-of-state court, that court can “decline[] jurisdiction
in any manner that conveys its intent not to exercise jurisdiction over a child in
connection with a child custody proceeding, including inaction or . . . by refusing
to even discuss the issue of jurisdiction.” Id. at 861.
¶56 But section 14-13-110 does require at least one of the two courts to make a
record of the communication, successful or not, which could be as simple as “a
memorandum . . . made by a court after the communication.” § 14-13-110 cmt.
The Colorado court must also give the parties an “opportunity to present facts and
legal arguments before a decision on jurisdiction is made” or “allow the parties to
participate in the communication.” § 14-13-110(2).
¶57 Some out-of-state courts, lacking a local case, might feel that they can’t
weigh in or have no choice but to decline jurisdiction. If the out-of-state court
demurs because it has no open case, our juvenile court could direct it (anywhere
but Massachusetts) to the other state’s version of section 14-13-112, C.R.S. (2020).
See, e.g., Ark. Code Ann. § 9-19-112 (West 2021). Subsection (1) empowers courts
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to “request the appropriate court of another state to” take various actions,
including “[h]old[ing] an evidentiary hearing,” “[o]rder[ing] a person to produce
or give evidence,” and “[o]rder[ing] that an evaluation be made with respect to
the custody or allocation of parental responsibilities with respect to a child.”
§ 14-13-112(1). Subsection (2) authorizes a court, “[u]pon request of a court of
another state,” to “hold a hearing or enter an order described in subsection (1) of
this section.” § 14-13-112(2).
¶58 In sum, we affirm the division’s holding that the juvenile court lacked
temporary emergency jurisdiction at the time of termination, albeit on other
grounds, and we reverse the holding that the juvenile court must contact an
Arkansas court. The juvenile court lacked temporary emergency jurisdiction
when it terminated mother’s and father’s parental rights because S.A.G. was not
then abandoned and because jurisdiction to terminate parental rights was not then
necessary in an emergency to protect S.A.G. from mistreatment or abuse. The
juvenile court erred by failing to analyze its non-emergency jurisdiction because
Colorado was not the home state and by failing to make factual findings about
Arkansas’s status. Those errors must be corrected, but the juvenile court must
contact an Arkansas court only under the circumstances discussed in Part II.E. If
the juvenile court does acquire non-emergency jurisdiction after a full section
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14-13-201(1) analysis, it may reinstate the termination judgment based on the
existing record.
III. Conclusion
¶59 For the foregoing reasons, we affirm in part and reverse in part the
judgment of the court of appeals and remand the case to the juvenile court for
further proceedings consistent with this opinion.
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