in Interest of S.A.G , 2020 COA 45 ( 2020 )

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
March 19, 2020
2020COA45
No. 19CA0991, People in Interest of S.A.G. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship; Family Law — Uniform Child-custody
Jurisdiction and Enforcement Act — Temporary Emergency
Jurisdiction — Initial Child-custody Jurisdiction
In this dependency and neglect proceeding, a division of the
court of appeals considers whether the Uniform Child-custody
Jurisdiction and Enforcement Act (UCCJEA), §§ 14-13-101 to -403,
C.R.S. 2019, requires a juvenile court to communicate with a court
in the child’s home state, even though no child-custody proceeding
was ever commenced or is pending there. The division concludes
that a court must do so if Colorado is not the child’s home state
under the UCCJEA when a child-custody proceeding is commenced.
COLORADO COURT OF APPEALS 2020C0A45
Court of Appeals No. 19CA0991
City and County of Denver Juvenile Court No. 17JV1735
Honorable Laurie A. Clark, Judge
The People of the State of Colorado,
Appellee,
In the Interest of S.A.G., a Child,
and Concerning B.A.G. and A.W.D.,
Appellants.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE DAILEY
Bernard, C.J., and Navarro, J., concur
Announced March 19, 2020
Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City
Attorney, Denver, Colorado, for Appellee
Gina G. Bischofs, Guardian Ad Litem
Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant B.A.G.
Susan C. Baker, Office of Respondent Parents’ Counsel, El Prado, New Mexico,
for Appellant A.W.D.
¶1 In this dependency and neglect proceeding, A.W.D. (mother)
and B.A.G. (father) appeal the juvenile court’s judgment terminating
their legal relationships with S.A.G. (the child). We must resolve an
undecided question in Colorado: whether the Uniform
Child-Custody Jurisdiction and Enforcement Act (UCCJEA),
§§ 14-13-101 to -403, C.R.S. 2019, requires a juvenile court to
communicate with a court in the child’s home state, even though no
child-custody proceeding was ever commenced or is pending in the
child’s home state. We conclude that a Colorado court must do so
if Colorado is not the child’s home state under the UCCJEA when a
child-custody proceeding is commenced. Because the juvenile
court did not do so, we vacate the termination judgment and
remand the case for further proceedings.
I. Background
¶2 The child was born in 2014. He lived with the parents in
Arkansas until the family came to Colorado in late 2017. About
three weeks after the family came to Colorado, the Denver
Department of Human Services (Department) obtained custody of
the child and initiated a dependency and neglect case.
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¶3 At the shelter hearing three days later, mother admitted that
the child’s environment was injurious to his welfare, and the court
adjudicated him dependent and neglected as to her. But mother’s
counsel told the court that mother resided in Arkansas and that
she “wasn’t planning on moving” to Colorado. The court asked if
another court had jurisdiction over the child; counsel said no. The
court’s placement order noted that an emergency justified
temporary removal, but it did not say that the court was exercising
temporary emergency jurisdiction under UCCJEA.
¶4 After the shelter hearing, the case proceeded along the usual
course. At mother’s dispositional hearing in December, she
reiterated that she resided in Arkansas and desired to return there
as soon as possible. The court responded that it could not send the
child back to Arkansas until a placement had been approved under
the Interstate Compact on the Placement of Children (ICPC).
¶5 At a hearing in January, the juvenile court adjudicated the
child dependent and neglected based on father’s admission that the
child had been subjected to an injurious environment. During this
hearing, father said that he was now in regular communication with
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the county and state human services offices in Arkansas to
determine what services he could obtain there.
¶6 The juvenile court adopted treatment plans for mother and
father. The adjudicatory and dispositional orders for mother and
father did not (1) address UCCJEA jurisdiction; (2) say that either
order would become final unless an order was obtained from
Arkansas; or (3) contain any finding of an ongoing emergency.
Likewise, the court did not address jurisdiction in any of its
permanency planning or periodic review orders.
¶7 At a review hearing in May 2018, father’s counsel said, “[T]he
parents have been clear since . . . this case opened that they were
in Colorado temporarily; that Arkansas was their home where all of
their supports are, and they wanted to get back there as soon as
possible . . . . [S]o they are still looking to return to Arkansas.”
Counsel also asked the court to transfer jurisdiction to Arkansas.
The court said that it could not because “there was no case open in
Arkansas.” But the court acknowledged the limits to its temporary
emergency jurisdiction:
We don’t have authority at this point to do an
allocation of parental responsibilities because
we're not the home state . . . . We would only
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have emergency jurisdiction and so couldn’t
enter any permanent orders. . . . [B]ut if it
turned out to be a termination, then we would
have jurisdiction. It’s only if we end with
anything other than a termination that we
wouldn’t have jurisdiction, is my
understanding.
The Department’s attorney concurred in this assessment and
offered that it “would have to look into” the jurisdictional issue.
¶8 Mother and father returned to Arkansas the next month, but
without the child. They had remained in Colorado for about seven
months after the court entered the initial emergency out-of-home
placement order.
¶9 At the next permanency planning hearing in August 2018, the
Department’s attorney asked the court to inquire with the parents
about any out-of-state child-custody proceedings that could affect
jurisdiction. The court did so. Mother said that she was not aware
of any pending neglect or custody cases involving the child. She
explained that the child had lived in Arkansas continuously until
the family came to Colorado three weeks before the case began.
Father agreed. After discussing the status of a placement with
paternal grandmother in Arkansas, the court said it lacked
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jurisdiction to place the child with her unless Arkansas was willing
to accept the child under the ICPC.
¶ 10 The Department moved to terminate parental rights in
September 2018. The termination proceedings stretched over seven
months. The parents appeared by phone for all proceedings after
moving back to Arkansas in June 2018. During the hearing, the
Department’s attorney said that the parents were involved with a
human services department in Arkansas and that they had been
assigned a caseworker there.
¶ 11 At the conclusion of the hearing, the juvenile court found that
it had jurisdiction because “the incident that brought this to the
attention of the [D]epartment occurred in Denver, Colorado.” Again,
the court did not mention the UCCJEA. It then made the requisite
statutory findings by clear and convincing evidence and terminated
mother’s and father’s parental rights.
II. Jurisdiction under the UCCJEA
¶ 12 Father contests the juvenile court’s jurisdiction to terminate
his parental rights under the UCCJEA. We agree that the record
does not show that the court properly acquired jurisdiction.
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A. Preservation and Standard of Review
¶ 13 All parties acknowledge that lack of subject matter jurisdiction
can be raised for the first time on appeal. People in Interest of
C.L.T., 2017 COA 119, ¶ 13.
¶ 14 We review subject matter jurisdiction under the UCCJEA and
the juvenile court’s interpretation of that statute de novo. Id. at
¶ 14; see also Airth v. Zurich Am. Ins. Co., 2018 COA 9, ¶ 25. But
the juvenile court resolves factual disputes about jurisdiction, and
appellate courts may not disturb those findings unless they are
clearly erroneous. CAMAS Colo., Inc. v. Bd. of Cty. Comm’rs, 36 P.3d
135, 138 (Colo. App. 2001). The petitioning party — in this case,
the Department — bears the burden of establishing UCCJEA
jurisdiction. People in Interest of A.B-A., 2019 COA 125, ¶ 14.
B. Law
¶ 15 One purpose of the UCCJEA is to “promote cooperation with
the courts of other States to the end that a custody decree is
rendered in the State which can best decide the case in the interest
of the child.” § 14-13-101 cmt. 2, C.R.S. 2019. To answer the
question of which state could “best decide” this case, we must
compare section 14-13-204, C.R.S. 2019, which confers temporary
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emergency jurisdiction, with section 14-13-201, C.R.S. 2019, which
provides the exclusive jurisdictional basis for making an initial,
non-emergency child-custody determination by a court in this state.
See § 14-13-102(3), C.R.S. 2019 (defining “child-custody
determination” to include a “permanent, temporary, initial, and
modification order” for “the legal custody or physical custody of a
child”).
¶ 16 These two sections of the UCCJEA provide separate and
distinct jurisdictional bases. See § 14-13-201 cmt. 2 (noting that
under the predecessor to the UCCJEA, emergency jurisdiction had
been included under subsection 201, but that it had been moved to
a separate section “to make it clear that the power to protect a child
in crisis does not include the power to enter a permanent order for
that child except as provided by that section”).
1. Temporary Emergency Jurisdiction
¶ 17 The UCCJEA provision governing temporary emergency
jurisdiction under section 14-13-204 contains four subsections, two
of which are relevant here.
¶ 18 Subsection (1) authorizes a Colorado court to exercise
temporary emergency jurisdiction under two conditions: (1) the
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child must be present in the state; and (2) the exercise of
jurisdiction must be “necessary in an emergency to protect the
child” from “mistreatment or abuse.” § 14-13-204(1) (emphasis
added). However, “this temporary emergency jurisdiction under the
UCCJEA is limited in scope and in time.” A.B-A., ¶ 13. A court
exercising temporary emergency jurisdiction must promptly
investigate whether the court has ongoing, non-emergency
jurisdiction, and may not enter a permanent custody disposition
based on emergency jurisdiction. Id.; C.L.T., ¶ 19; see also
§ 14-13-204 cmt. (“[A] custody determination made under [these]
provisions . . . is a temporary order. The purpose of the order is to
protect the child until the State that has jurisdiction under
Section[] 14-13-201 . . . enters an order.”); § 19-3-608(1), C.R.S.
2019 (an order terminating parental rights permanently divests the
parent of custody).
¶ 19 Subsection (2) explains the effect of an order entered by a
Colorado court exercising temporary emergency jurisdiction when
no other court has established UCCJEA jurisdiction:
If there is no previous child-custody
determination that is entitled to be enforced
under this article and a child-custody
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proceeding has not been commenced in a court
of a state having jurisdiction under [the
UCCJEA], a child-custody determination made
under this section remains in effect until an
order is obtained from a court of a state having
jurisdiction under [the UCCJEA]. If a
child-custody proceeding has not been or is
not commenced in a court of a state having
jurisdiction under [the UCCJEA], a
child-custody determination made under this
section becomes a final determination, if it so
provides and this state becomes the home state
of the child.
§ 14-13-204(2) (emphasis added).
2. Home State Jurisdiction and Alternatives
¶ 20 Section 14-13-201 contains four independent grounds for
jurisdiction. Subsection (1)(a) addresses when Colorado is the
home state of a child. The subsections that follow explain how a
Colorado court can exercise jurisdiction when it is not the home
state. They include “significant connection” jurisdiction, “more
appropriate forum” jurisdiction, and last resort jurisdiction (no
court in any other state would have jurisdiction).
§ 14-13-201(1)(b)(I), (c), (d); see C.L.T., ¶¶ 26-29. Both the
significant connection and more appropriate forum alternatives to
home state jurisdiction provide that, among other requirements, the
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home state decline to exercise its jurisdiction. § 14-13-201(1)(b)(I),
(c), (d).
C. Application
¶ 21 Father neither challenges the juvenile court’s exercise of
temporary emergency jurisdiction nor addresses when that
jurisdiction ended. As to the initial out-of-home placement order,
we do not see any basis in the record for disputing the juvenile
court’s jurisdiction. The child was present in Colorado, and the
record supports the statement in the order that an emergency
justified immediate action. Because father challenges only the
termination judgment, we decline to address the juvenile court’s
jurisdiction to enter any of the interim orders.
¶ 22 Instead, father argues that the juvenile court lacked
jurisdiction to terminate his parental rights. He asserts that
temporary emergency jurisdiction did not provide the court with
jurisdiction to enter a permanent order terminating parental rights.
He further asserts that the court needed to establish a basis for
ongoing jurisdiction under section 14-13-201 and had to
communicate with a court in Arkansas. As well, he continues, the
juvenile court could only exercise “significant connection” or “more
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appropriate forum” jurisdiction if Arkansas declined to exercise its
jurisdiction.
¶ 23 The Department and the guardian ad litem (GAL) respond that
delving into section 14-13-201 and remanding for jurisdictional
findings are unnecessary because Colorado became the child’s
home state under section 14-13-204(2). They say, “Such a finding
can be inferred from the court’s oral termination ruling . . . .”
Alternatively, they assert that, even if remand is necessary, the
juvenile court need not contact a court in Arkansas. And while they
concede that communication between courts “may constitute a best
practice,” the Department and GAL argue that the UCCJEA does
not require it.
¶ 24 We agree with father.
¶ 25 As applicable here, a child-custody determination entered
pursuant to temporary emergency jurisdiction may become a final
determination if (1) the order states that it will become final and (2)
Colorado becomes the child’s home state. § 14-13-204(2). Yet,
none of these orders included the required proviso. And, as the
court in In re Gino C., 169 Cal. Rptr. 3d 193, 197-98 (Cal. Ct. App.
2014), explained:
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The court’s efforts to comply with the UCCJEA
fell short because the court misinterpreted [the
emergency jurisdiction section] as allowing the
court’s temporary emergency jurisdiction to
automatically convert to permanent
jurisdiction if the parents did not initiate child
custody proceedings in Mexico. Instead, the
statute precludes a child custody
determination by a court exercising temporary
emergency jurisdiction from becoming final
until this state becomes the child’s home
state.
¶ 26 Because the juvenile court lacked jurisdiction to terminate
parental rights under temporary emergency jurisdiction, we must
turn to section 14-13-201 to find an alternative basis for
jurisdiction. Applying that section here raises two concerns: first,
the juvenile court failed to make any meaningful jurisdictional
findings for its termination judgment; and, second, the court failed
to communicate with any court in Arkansas. These concerns
require separate analysis.
¶ 27 We have recognized a lower court’s implied findings in cases
involving jurisdictional disputes. E.g., Marquest Med. Prods., Inc. v.
Daniel, McKee & Co., 791 P.2d 14, 15 (Colo. App. 1990) (upholding
the trial court’s implicit jurisdictional finding when it denied a
defendant’s motion to dismiss); see generally Foster v. Phillips, 6
12
P.3d 791, 796 (Colo. App. 1999) (noting that “while it is the better
practice to make express findings, they may be implicit in a court's
ruling”); Catron v. Catron, 40 Colo. App. 476, 479, 577 P.2d 322,
324 (1978) (holding that a statutorily required factual finding “was
implicit in the trial court’s rulings”).
¶ 28 But given the child’s brief presence in Colorado before the
juvenile court entered the out-of-home placement order, the record
contains no basis on which we could infer that the court found
Colorado to be the child’s home state. See § 14-13-102(7)(a)
(defining “Home state”);1 § 14-13-201(1)(a) (explaining home state
jurisdiction). And because Arkansas meets the definition of home
1 “Home state” is defined as
the state in which 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. In
the case of a child less than six months of age, the
term means the state in which the child lived from
birth with any of the persons mentioned. A period of
temporary absence of any of the mentioned persons
is part of the period.
§ 14-13-102(7)(a), C.R.S. 2019.
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state, last resort jurisdiction would not work either. See
§ 14-13-201(1)(d) (giving home state jurisdiction priority).
¶ 29 Turning to “significant connection” and “more appropriate
forum” jurisdiction, both of those options require that a home state
court decline jurisdiction before another state’s court can invoke it.
§ 14-13-201(1)(b)(I), (c). Even assuming the record established that
“substantial evidence” was available in Colorado about the child’s
care, the record does not show any “significant connection” of father
and the child to Colorado other than their mere physical presence.
§ 14-13-201(1)(b)(I).
¶ 30 So, what does “decline[] to exercise jurisdiction” mean? See id.
Everyone before us agrees that the record does not show any
communications between the juvenile court and any court in
Arkansas. Properly framed, the question is this: May a court find
that a home state “has declined to exercise jurisdiction” when no
affirmative act has been taken to communicate with a court in the
home state? For the following reasons, we answer this question
“no.”
¶ 31 Courts in other states have held that declining jurisdiction
under the UCCJEA means something more “than the absence of
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litigation on the specific issue raised by a motion to modify filed in
another state.” Manley v. Hoag, 917 P.2d 1011, 1014 (Okla. Civ.
App. 1996). This interpretation finds support in the official
comments to the UCCJEA, which Colorado has incorporated into
the statute. The comments say that a court may only exercise
significant-connection jurisdiction “when the home State decides
that the significant connection State would be a more appropriate
forum . . . .” § 14-13-201 cmt. 2 (emphasis added). For jurisdiction
based on a “more appropriate forum,” the comments say that
jurisdiction may be exercised when the home state and any
significant-connection jurisdiction “determine that [another] State is
a more appropriate forum.” Id. (emphasis added). But if the home
state has “determined it is a more appropriate place to hear the
case,” the more appropriate forum analysis ends. Id.
¶ 32 These words — “decide” and “determine” — suggest that the
home state must have had an opportunity to weigh in and been
made aware of a possible reason to do so. See Webster’s Third New
International Dictionary 585 (2002) (defining “decide” as “to arrive
at a choice, judgment, or decision”); id. at 616 (defining “determine”
as “to settle or decide by choice of alternatives or possibilities”). The
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Department and GAL correctly point out that the UCCJEA does not
expressly require a non-home state court to communicate with a
home state court in the absence of an existing determination or
pending proceeding. Still, section 14-13-201 requires the home
state to decline jurisdiction before the non-home state can exercise
it. Simply put, without knowledge of the Colorado proceeding, an
Arkansas court could not have determined or decided whether “to
exercise jurisdiction.”
¶ 33 In In re Gino C., the court explained, “[s]ince the [California]
court opted to remain passive and did not contact Mexico, Mexico
has not been given an opportunity to decide whether to exercise its
home state jurisdiction. Therefore, the court erred in assuming
permanent jurisdiction over the matter.” 169 Cal. Rptr. 3d at 197-
98; see Wood v. Redwine, 33 P.3d 53, 56 (Okla. Civ. App. 2001) (“In
the present case, no other state with jurisdiction has declined to
exercise jurisdiction, and the failure of the parties to seek the
jurisdiction of another state’s courts is not dispositive.”); Ruffier v.
Ruffier, 190 S.W.3d 884, 890 (Tex. Ct. App. 2006) (until home state
affirmatively declines jurisdiction, another state cannot assert
significant connection jurisdiction).
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¶ 34 Despite all of this, the Department and GAL insist that unless
a proceeding had been commenced or was pending in Arkansas, the
juvenile court would not know where to inquire. We are not
persuaded. Under the UCCJEA, the Department had the burden to
establish jurisdiction. A.B-A., ¶ 14. And, here, the Department had
been communicating with a counterpart agency in Arkansas
concerning the home study into paternal grandmother. The
Department could have sought assistance from that agency in
determining the proper court to contact.
¶ 35 For these reasons, we conclude that the juvenile court lacked
jurisdiction to terminate parental rights under the UCCJEA’s
temporary emergency jurisdiction provision. Furthermore, because
the record does not establish (and the juvenile court did not make
findings regarding) a basis for continuing UCCJEA jurisdiction, the
termination judgment as to both parents must be vacated.
¶ 36 Because we have determined that the termination judgment
must be vacated, we do not address the parents’ remaining
arguments.
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III. Conclusion
¶ 37 The judgment is vacated. The matter is remanded to the
juvenile court for it to determine whether it has continuing
jurisdiction under section 14-13-201. Before doing so, the court
must communicate with an Arkansas court and the Arkansas court
must decline to exercise jurisdiction.
¶ 38 In its discretion, the court may take further evidence
concerning jurisdiction. If the court concludes that it has
continuing jurisdiction, then it may reinstate the termination
judgment, based on the existing record, after affording the parties
an opportunity to present evidence. Either party may appeal.
¶ 39 Pending further order of the juvenile court, the out-of-home
placement order remains in effect and the child shall stay in his
current placement.
CHIEF JUDGE BERNARD and JUDGE NAVARRO concur.
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