People in re M.S , 413 P.3d 287 ( 2017 )

COLORADO COURT OF APPEALS 2017COA60
Court of Appeals No. 16CA1082
Mesa County District Court No. 14JV135
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of M.S., a Child,
and Concerning C.S.,
Respondent-Appellant.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE LICHTENSTEIN
Román and Freyre, JJ., concur
Announced May 4, 2017
J. Patrick Coleman, County Attorney, Katherine Barnes, Assistant County
Attorney, Grand Junction, Colorado, for Petitioner-Appellee
Robert G. Tweedell, Guardian Ad Litem
Leigh Coleman Taylor Law Office, Leigh Coleman Taylor, Grand Junction,
Colorado, for Respondent-Appellant
¶1 In this dependency and neglect proceeding, C.S. (father)
appeals a district court order that denied his petition for judicial
review of a magistrate order allocating parental responsibilities for
his child, M.S.
¶2 Our review of the record, however, requires us to determine
whether the magistrate had subject matter jurisdiction to issue its
order.1 We conclude dependency and neglect proceedings are
subject to the Uniform Child-custody Jurisdiction and Enforcement
Act (UCCJEA), § 14-13-101, et. seq., C.R.S. 2016. And because the
record does not demonstrate that the magistrate followed the
procedures set forth in the UCCJEA to acquire jurisdiction, we
vacate the judgment and remand the case for further proceedings.
I. Background
¶3 In May 2014, the Mesa County Department of Human Services
(Department) assumed temporary custody of eight-year-old M.S.
and initiated a dependency and neglect proceeding because father
had been charged with multiple counts of sexual assault against
the child’s mother (mother). Mother, who lived in Texas, reported
1See People in Interest of J.C.S., 169 P.3d 240, 244 (Colo. App.
2007) (sua sponte inquiry into jurisdiction is appropriate in
dependency and neglect proceedings).
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that father had obtained custody of M.S. and had allowed her to
have limited contact with M.S.
¶4 By stipulation, the court adjudicated M.S. dependent or
neglected and approved a treatment plan for father. Father pleaded
guilty to sexual assault against mother and anticipated receiving a
determinate six-year prison sentence.
¶5 Later, the Department moved for a permanent allocation of
parental responsibilities (APR) for M.S. to mother. Following a
contested hearing, the magistrate determined that it was in M.S.’s
best interests to be placed with mother, but decided to delay ruling
on the APR request until it again reviewed M.S.’s placement. After a
further review hearing, the magistrate issued an order granting
permanent APR to mother.
¶6 Father filed a notice of appeal with this court. A division of the
court dismissed father’s appeal because he had not obtained
district court review. Thereafter, father filed a petition for district
court review of the permanent APR order. The district court denied
father’s request. Father now appeals.
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II. UCCJEA
¶7 After reviewing the parties’ supplemental briefs, we conclude
that the magistrate lacked jurisdiction under the UCCJEA to issue
the permanent APR order.
A. Applicability to Dependency and Neglect Proceedings
¶8 Initially, we address the Department’s argument that the
UCCJEA does not apply to dependency and neglect proceedings
once a child has been adjudicated dependent and neglected.
¶9 First, the Department’s reliance on People in Interest of E.C.,
30 Colo. App. 190, 490 P.2d 706 (1971), is misplaced. In E.C., a
division of this court reiterated that a Colorado court did not need
to respect the custodial decree of another state when conditions
necessitated Colorado’s intervention for the protection of a child
found within its borders. Id. at 193-94, 490 P.2d at 708.
¶ 10 However, E.C. was decided before Colorado adopted the
UCCJEA in 2000 or even before Colorado adopted its predecessor,
the Uniform Child Custody Jurisdiction Act (UCCJA). See People in
Interest of M.C., 94 P.3d 1220, 1222 (Colo. App. 2004) (recognizing
that effective July 1, 2000, the UCCJEA replaced the UCCJA); see
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also L.G. v. People, 890 P.2d 647, 655 (Colo. 1995) (noting that the
UCCJA was adopted in Colorado in 1973).
¶ 11 Second, the UCCJEA governs child-custody proceedings,
which it expressly defines as including dependency proceedings.
§ 14-13-102(4), C.R.S. 2016. Section 14-13-103, C.R.S. 2016,
identifies two types of proceedings — adoptions and proceedings to
authorize emergency medical care for a child — that are not
governed by the UCCJEA. But, the UCCJEA does not include a
similar provision exempting any stage of a dependency and neglect
proceeding from its purview.
¶ 12 Accordingly, a dependency and neglect proceeding is one type
of “child-custody proceeding” subject to the UCCJEA. §§ 14-13-101
to -403, C.R.S. 2016.
B. Jurisdiction
¶ 13 Although this issue was not initially raised by the parties, we
may address it sua sponte because it concerns the court’s subject
matter jurisdiction. See In re Support of E.K., 2013 COA 99, ¶ 7.
And, we may notice a lack of jurisdiction in a magistrate’s order
that the district court has declined to review. See In re Marriage of
Ferris, 75 P.3d 1170, 1171 (Colo. App. 2003).
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¶ 14 Whether a district court has subject matter jurisdiction over a
UCCJEA proceeding presents a question of law that we review de
novo. People in Interest of D.P., 181 P.3d 403, 406 (Colo. App.
2008).
¶ 15 Under the UCCJEA, the court that makes an initial custody
determination generally retains exclusive, continuing jurisdiction.
§ 14-13-206, C.R.S. 2016; M.C., 94 P.3d at 1223. In essence, the
UCCJEA seeks to eliminate the simultaneous exercise of
jurisdiction over custody disputes by more than one state. M.C., 94
P.3d at 1223. Accordingly, absent temporary emergency
jurisdiction under section 14-13-204, C.R.S. 2016, a Colorado court
may only modify a custody order issued by an out-of-state court
under limited circumstances.
¶ 16 First, the Colorado court must have jurisdiction to make an
initial custody determination under section 14-13-201(1)(a) or (b),
C.R.S. 2016. § 14-13-203(1), C.R.S. 2016; In re Marriage of Brandt,
2012 CO 3, ¶ 33. As pertinent here, this requirement is satisfied
when Colorado is or was the child’s home state — defined as the
state in which the child has lived with a parent for at least 182
consecutive days — when the proceeding begins or the court in the
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child’s home state has declined jurisdiction on the ground that
Colorado is the more appropriate forum. §§ 14-13-102(7)(a),
-201(1)(a)-(b).
¶ 17 Additionally, the court in the issuing state must have lost or
declined to exercise jurisdiction. Brandt, ¶ 33. This can occur
when the court in the issuing state determines that (1) the child
and parents no longer have a significant connection to the issuing
state and substantial evidence regarding the child is not available in
the issuing state, or (2) the Colorado court is a more convenient
forum. §§ 14-13-202, -203(1)(a), C.R.S. 2016. Alternatively, either
the court in the issuing state or a Colorado court may determine
that the issuing state has been divested of jurisdiction because the
child and parents do not presently reside in the issuing state.
§ 14-13-203(1)(b); Brandt, ¶¶ 26, 28.
¶ 18 The determination of whether an issuing state has lost
exclusive, continuing jurisdiction based on nonresidency requires a
broad inquiry into the totality of the circumstances. Brandt,
¶¶ 43-44. Significantly, before a Colorado court may assume
jurisdiction to modify an out-of-state custody order, it must
communicate with the issuing court pursuant to sections
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14-13-110 to -112, C.R.S. 2016, and conduct a hearing if there is a
factual dispute regarding the residency issue. Brandt, ¶ 35.
C. Analysis
¶ 19 Here, a California court had issued a custody order regarding
M.S. prior to the initiation of the dependency and neglect
proceeding. The Department’s exhibit that served as the factual
basis for M.S.’s adjudication as dependent or neglected indicated
that father had “obtained sole legal and physical custody of [M.S.]
through Ventura Superior Court, California, Case Number D338591
on or about 11/29/10.” Likewise, at the APR hearing, father
testified that he had been granted custody of M.S. in California in
2010.
¶ 20 Indeed, in considering the APR request, the magistrate
observed that “there was evidence” of a California custody order
regarding M.S. and that the issue needed to be addressed.
However, the magistrate did not (1) confer with the California court
that issued the 2010 custody order or (2) make a determination as
to whether the California court had lost exclusive, continuing
jurisdiction. Accordingly, the magistrate failed to acquire
jurisdiction under the UCCJEA before it issued the permanent APR
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order — effectively modifying the 2010 custody order from
California.
¶ 21 We recognize that evidence presented at the APR hearing could
support a finding that the California court had lost exclusive,
continuing, jurisdiction because neither of the parents nor M.S.
presently reside there. Father testified that he and M.S. had moved
to Colorado shortly after the 2010 custody order was issued. He
also indicated that mother had moved from California to New
Mexico during that time. And, at the time of the APR hearing,
mother lived in Texas.
¶ 22 Nonetheless, the record does not demonstrate that the
magistrate followed the procedures set forth in the UCCJEA and
Brandt to acquire jurisdiction to modify the California custody
order. Accordingly, the permanent APR order must be vacated.
¶ 23 Because we have concluded that the permanent APR order
must be vacated, we do not address father’s contention that the
district court erred in denying his request for review of the
magistrate’s APR order.
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III. Conclusion
¶ 24 The judgment is vacated, and the matter is remanded to the
district court to direct the magistrate to determine whether it has
jurisdiction to issue an APR order that modifies the California
custody order. In doing so, the magistrate must communicate with
the issuing court in California, and, if necessary, allow the parties
to present evidence regarding residency.
JUDGE ROMÁN and JUDGE FREYRE concur.
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