in the Interest of D.C.C , 2018 COA 98 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 12, 2018
2018COA98
No. 17CA1153, People in the Interest of D.C.C. — Juvenile
Court — Jurisdiction — Dependency and Neglect — Uniform
Parentage Act
A division of the Court of Appeals holds that when a court
declares a child dependent or neglected in a dependency and
neglect case filed under article 3 of the Children’s Code, a court
presiding over a separate parentage proceeding under article 4 of
the Code (The Uniform Parentage Act) loses jurisdiction to
determine that child’s parentage. In such a situation, all matters
pertaining to the child’s status must be addressed in the open
dependency and neglect case. Because the article 4 court in this
case lacked jurisdiction to determine that the respondent was not
the child’s father, the article 3 dependency and neglect court erred
in relying on the article 4 court’s order so finding in dismissing
respondent from the dependency and neglect case.
COLORADO COURT OF APPEALS 2018COA98
Court of Appeals No. 17CA1153
Weld County District Court No. 16JV505
Honorable Elizabeth B. Strobel, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of D.C.C., D.I.C., and D.R-B., Children,
and Concerning A.M.G., a/k/a A.M.G-N.,
Respondent-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE J. JONES
Ashby and Harris, JJ., concur
Announced July 12, 2018
No Appearance for Petitioner-Appellee
Meghan E. Scott, Guardian Ad Litem
Pamela K. Streng, Georgetown, Colorado, for Respondent-Appellant
¶1 In this dependency and neglect proceeding, A.M.G. (father)
appeals the order dismissing him from the petition in dependency
or neglect after a child support court declared he wasn’t the father
of D.R-B. (child). We conclude that the child support court lacked
jurisdiction to make paternity findings when there was an ongoing
dependency and neglect proceeding. So we reverse the order
dismissing father from the petition.
I. Background
¶2 In July 2016, the Weld County Department of Human Services
(Department) filed a petition in dependency or neglect and for a
determination of paternity. It alleged that J.R-B. (mother) and K.R-
B. (stepmother) had a history of methamphetamine abuse and
domestic violence, and had been in and out of jail.
¶3 The petition named A.M.G. as the father of the child, and it
advised him that paternity of the child might be determined in the
action pursuant to the Uniform Parentage Act (UPA), sections 19-4-
101 to -130, C.R.S. 2017. No one disputed that A.M.G. was the
child’s biological father. The court didn’t decide paternity at the
shelter hearing.
1
¶4 Before the filing of the dependency and neglect proceeding,
stepmother had filed a motion for an allocation of parental
responsibilities over the child in a domestic relations court. The
court ordered father to complete genetic testing in that case, but
father didn’t get tested before the Department filed the dependency
and neglect case. The domestic relations court then certified the
issues of legal custody and parental rights and responsibilities to
the dependency and neglect court. See § 19-1-104(4)(a), C.R.S.
2017.
¶5 Father was served with the petition in dependency or neglect
on August 1, 2016. After he failed to appear at his adjudicatory
hearing on August 18, 2016, the district court entered a default
decree adjudicating the child dependent or neglected.
¶6 Father appeared for the first time at a hearing on February 2,
2017, and the court appointed counsel. The court also ordered
father to participate in and cooperate with genetic testing. Mother’s
attorney indicated to the court that genetic testing had already been
scheduled for February 15, 2017, and that the child support
enforcement office had requested the paternity testing. Father
indicated that he hadn’t been served with an order for genetic
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testing and that he was then hearing about it for the first time. The
court told father that he would receive an order requiring him to
show up for the test. The court issued a written order that same
day.
¶7 A review of the register of actions shows that the Weld County
Child Support Services Unit filed a petition for support in another
division of the juvenile court on November 18, 2016, and that father
was served on November 26, 2016. The register of actions also
shows that father failed to appear at a hearing in the child support
case on January 17, 2017, and that on that date the court ordered
father to appear for genetic testing on February 15, 2017. It
appears undisputed that father wasn’t ever tested.
¶8 At a review hearing on April 4, 2017, the dependency and
neglect court informed the parties that, in the child support case,
the magistrate had entered an order finding that father wasn’t a
legal parent of the child and “therefore, has no parental rights
concerning custody and visitation.” The child support court
declared stepmother to be the child’s legal parent. The dependency
and neglect court said, “I don’t know that the Magistrate can do
that with a [dependency and neglect case]. And I think what he was
3
trying to do was establish child support. However, nobody appealed
this.” The dependency and neglect court also said, “[I]’ll leave it to
you folks and all your great minds to sort this out.”
¶9 The dependency and neglect court provided copies of the order
from the child support court. That order said,
[A.M.G.] has been properly served and notified
of the hearing today. Nevertheless, he failed to
appear or otherwise respond to this matter.
[A.M.G.] had an opportunity for genetic testing
and failed to appear. [Stepmother] wished to
be declared the legal parent of the child. She
has legal standing to do so. Based on the
testimony presented and the provisions of 19-
4-105 the Court finds [stepmother] to be the
legal parent of the child. She shall be added to
the birth certificate of the child.
¶ 10 At a review hearing on June 7, 2017, the dependency and
neglect court determined that the child support court’s parentage
order was final because no one had sought review. The dependency
and neglect court also found that stepmother was the child’s
parent, and “that being the case, then [A.M.G.] is dismissed from
this case as the father.”
¶ 11 Father contends that the dependency and neglect court
erroneously relied on the order from the child support court finding
that he wasn’t the child’s legal father. He argues that after the
4
dependency and neglect court adjudicated the child, that court
maintained exclusive, continuing jurisdiction over the child until
the case was closed or the child reached the age of twenty-one. See
§ 19-3-205(1), C.R.S. 2017. We agree with father that, under the
Children’s Code, the dependency and neglect court maintains
continuing, exclusive jurisdiction over decisions related to the
status of a child who has been adjudicated dependent or neglected.
As a result, we conclude that the dependency and neglect court
erred in dismissing father from the petition based on parentage
findings made by the child support court.1
II. Statutory Construction and Standard of Review
¶ 12 We review questions of statutory interpretation de novo.
People in Interest of C.L.S., 313 P.3d 662, 665-66 (Colo. App. 2011).
In construing a statute, we strive to give effect to the legislature’s
intent, and adopt the construction that best carries out the
1 The guardian ad litem argues that father waived any challenge to
the child support court’s jurisdiction by failing to appeal the
magistrate’s order in the child support case. But father challenges
the dependency and neglect court’s order. And, in any event, we’re
satisfied that the conditions for collaterally attacking the subject
matter jurisdiction of another court are present in this case. See
People in Interest of E.E.A. v. J.M., 854 P.2d 1346, 1351 (Colo. App.
1992).
5
statute’s provisions and purposes. We won’t construe it in a
manner that leads to an absurd or unreasonable result. Huber v.
Colo. Mining Ass’n, 264 P.3d 884, 889 (Colo. 2011). As well, “[w]e
construe statutes related to the same subject matter alongside one
another, with the goal of giving consistent, harmonious, and
sensible effect to all of their parts.” Kinder Morgan CO2 Co. v.
Montezuma Cty. Bd. of Comm’rs, 2017 CO 72, ¶ 24.
III. The Dependency and Neglect Court Maintains Continuing,
Exclusive Jurisdiction Over a Child Adjudicated Dependent or
Neglected
A. Overview of the Children’s Code
¶ 13 The General Assembly has declared that the purposes of the
Children’s Code (Code), in general, include (1) securing for each
child subject to the Code “such care and guidance, preferably in his
own home, as will best serve his welfare and the interests of
society”; (2) preserving and strengthening family ties whenever
possible, including improving the home environment; (3) removing
children from the parents’ custody only when their welfare and
safety or the public’s safety would otherwise be endangered; and (4)
securing for any child removed from his parents’ custody “the
necessary care, guidance, and discipline to assist him in becoming
6
a responsible and productive member of society.” § 19-1-102(1),
C.R.S. 2017.
¶ 14 Within the Code, articles 3 and 4 have different purposes.
Article 3 addresses dependency and neglect proceedings. See
§§ 19-3-100.5 to -805, C.R.S. 2017. In its legislative declaration,
article 3 says that “the stability and preservation of the families of
this state and the safety and protection of children are matters of
statewide concern.” § 19-3-100.5(1). To that end, the state must
“make a commitment to make ‘reasonable efforts’ to prevent the
placement of abused and neglected children out of the home and to
reunify the family whenever appropriate.” Id. The Code sets forth a
number of procedures aimed at protecting children from emotional
and physical harm while seeking to repair and maintain family ties.
L.L. v. People, 10 P.3d 1271, 1275 (Colo. 2000).
¶ 15 Article 4 covers parentage proceedings, which are governed by
Colorado’s version of the UPA. See §§ 19-4-101 to -130. Although
there’s no legislative declaration included in the article, “[o]ne basic
purpose of the UPA is the establishment of the parent-child
relationship, and another is the protection of that relationship.”
R.McG. v. J.W., 615 P.2d 666, 669 (Colo. 1980) (citations omitted).
7
¶ 16 Under the Code, the juvenile court has exclusive, original
jurisdiction in both dependency and neglect proceedings and
proceedings to determine parentage. § 19-1-104(1)(b), (f). The
question before us, however, is whether two juvenile courts can
simultaneously exercise jurisdiction over a child who’s been
adjudicated dependent or neglected. For the reasons discussed
below, we conclude that they can’t, and hold, as has another
division of this court in a slightly different context, that when a
child has been adjudicated dependent or neglected, all matters
related to the child’s status must be addressed in the open
dependency and neglect case. See People in Interest of E.M., 2016
COA 38M, ¶ 24, aff’d sub nom. People in Interest of L.M., 2018 CO
34.2
B. Exclusive, Original Jurisdiction
¶ 17 We adhere to the well-established rule that where specific and
general statutes conflict, the specific statute prevails. State, Motor
2This isn’t to say, however, that the dependency and neglect court
can’t rely on genetic testing performed in connection with a
paternity, domestic relations, or other case. It may do so, in its
discretion, if relevant to matters pending in the dependency and
neglect case.
8
Vehicle Div. v. Dayhoff, 199 Colo. 363, 365, 609 P.2d 119, 121
(1980).
¶ 18 Although subsections 19-1-104(1)(b) and (f) give the juvenile
court exclusive jurisdiction in (1) proceedings over any child who is
dependent or neglected and (2) proceedings to determine parentage,
section 19-3-205(1) says that “[e]xcept as otherwise provided in this
article, the jurisdiction of the court over any child adjudicated as
neglected or dependent shall continue until he becomes twenty-one
years of age unless earlier terminated by court order.” (Emphasis
added.) There isn’t any provision in article 3 conferring authority to
another court to hear matters of parentage once a court has
adjudicated a child dependent or neglected.
¶ 19 Further, the continuing, exclusive jurisdiction of the
dependency and neglect court is specifically recognized in the
jurisdictional statutes of the Code. Section 19-1-104(4)(a) says that
“[i]f a petition involving the same child is pending in juvenile court
or if continuing jurisdiction has been previously acquired by the
juvenile court, the district court shall certify the question of legal
custody to the juvenile court[.]” Likewise,
9
[a]ny party to a dependency or neglect action
who becomes aware of any other proceeding in
which the custody of a subject child is at issue
shall file in such other proceeding a notice that
an action is pending in juvenile court together
with a request that such other court certify the
issue of legal custody to the juvenile court
pursuant to Section 19-1-104(4) and (5),
C.R.S.
C.R.J.P. 4.4(a). As our supreme court recently held, “these statutes
and rules amply demonstrate the legislature’s preference for
deciding the fate of parents who are involved in dependency and
neglect proceedings under Article 3.” L.M., ¶ 38 (when a
dependency and neglect proceeding is pending, the state can
terminate parental rights only through the procedures set forth in
article 3 and not under article 5).
¶ 20 Reading these statutes together, we conclude that the juvenile
court presiding over the open dependency or neglect case maintains
continuing, exclusive jurisdiction over the status of an adjudicated
child. See E.M., ¶¶ 20, 24.
C. Due Process
¶ 21 Parents “have a fundamental liberty interest in the care,
custody, and control of their children.” In re D.I.S., 249 P.3d 775,
780 (Colo. 2011); accord Troxel v. Granville, 530 U.S. 57, 65 (2000).
10
When a court decision will effectively eliminate or weaken familial
bonds by terminating parental rights, or denying custody, parents
must first receive fundamentally fair procedures. Santosky v.
Kramer, 455 U.S. 745, 753 (1982); D.I.S., 249 P.3d at 781-82.
¶ 22 In this case, when the child support court determined that
A.M.G. wasn’t the child’s father and “therefore has no parental
rights including custody and visitation,” the court effectively
terminated his parental rights. The court did so without providing
him the due process protections that he was being afforded in the
open dependency and neglect proceeding.
¶ 23 Parents in dependency and neglect proceedings receive several
procedural and substantive protections that aren’t available under
the UPA. In a dependency and neglect proceeding, for example, a
parent has the statutory right to be represented by counsel at every
stage of the proceeding and may apply for court-appointed counsel
if the parent qualifies financially. § 19-3-202(1), C.R.S. 2017. A
parent in a proceeding under article 4 doesn’t have a statutory right
to be represented by counsel or to apply for court-appointed
counsel.
11
¶ 24 In addition, in parentage cases, “the goal of the proceeding is
to determine whether a man is a child’s legal parent.” C.L.S., 313
P.3d at 670. In dependency and neglect proceedings, by contrast,
the goal is to stabilize and preserve families and ensure children’s
safety. See § 19-3-100.5(1). Due process in dependency and
neglect proceedings dictates that parents named in the petition be
provided an opportunity to become rehabilitated through
participation in a treatment plan. See § 19-3-604, C.R.S. 2017;
A.M. v. A.C., 2013 CO 16, ¶ 29. Thus, after a court adjudicates a
child dependent or neglected, the court then holds a dispositional
hearing in which it adopts a treatment plan for the parents if it’s
possible to do so. § 19-3-507, C.R.S. 2017. The purposes of the
treatment plan are to provide services to the family, prevent
unnecessary out-of-home placement of the child, and facilitate
reunification of the child and family. § 19-3-507(1)(b).
¶ 25 Such rehabilitative and reunification efforts aren’t available in
parentage proceedings. In an article 4 proceeding, the only
protections provided an alleged parent are (1) that each man alleged
to be the natural father must be made a party to the paternity
action, or, if not subject to the personal jurisdiction of the court,
12
must be given notice of the action and an opportunity to be heard,
§ 19-4-110, C.R.S. 2017; People in Interest of J.G.C., 2013 COA 171,
¶ 12; and (2) that genetic testing must be ordered on request, § 19-
4-112, C.R.S. 2017.
¶ 26 We conclude that there isn’t any substitute in article 4
proceedings for the protections afforded a parent under article 3.3 A
parent is thus denied fundamentally fair procedures in actions
under article 4 when there’s an open dependency and neglect case.
IV. UPA Compliance
¶ 27 Father also contends that when a paternity issue arises in a
non-paternity proceeding, the UPA must be followed or the court
lacks subject matter jurisdiction. From what we can discern, father
argues that the juvenile court didn’t properly comply with the UPA.
Because we hold that the child support court lacked jurisdiction to
make parentage findings and we remand the case, we needn’t
address this argument.
3As discussed in footnote 2 above, however, a dependency and
neglect court may use genetic testing results obtained in an article
4 case.
13
V. Conclusion
¶ 28 The order dismissing father from the petition in dependency or
neglect is reversed. We remand the case to the trial court to make
findings consistent with this opinion.
JUDGE ASHBY and JUDGE HARRIS concur.
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