People in Interest of SB ( 1987 )

METZGER, Judge.

N.B. (father), appeals the summary judgment adjudicating his daughter S.B. dependent and neglected and its subsequent order declining to exercise further jurisdiction. We affirm.

At approximately 2:50 a.m. on November 16, 1984, S.B., then age three, was placed in the custody of the Boulder County Department of Social Services on a police hold after her mother, who had been previously divorced from the father and who had custody of S.B., was found beaten to death in the family home. The father, who was present at the scene, was arrested and charged with first degree murder.

After a placement hearing, legal custody of S.B. was continued with the Boulder County Department of Social Services, she was placed with a maternal aunt, and a petition in dependency and neglect was filed on November 28, 1984. The trial court granted the motion of S.B.’s maternal grandfather to be joined as a party, and at a hearing on December 19, 1984, S.B. was placed with her maternal grandfather and his wife in North Myrtle Beach, South Carolina.

Thereafter, the father filed a motion requesting appointment of an expert to assist him in the preparation for the adjudicatory hearing. The motion was denied.

On February 14, 1985, the People filed a motion for summary judgment. Attached affidavits stated that the father was being held without bond on charges of first degree murder. Attached to the father’s response was an affidavit in which he stated that he was “willing to accept responsibility for the care of his daughter and/or to make arrangements to have relatives care for her,” but which made no reference to specifics. The motion was initially denied.

On February 27, 1985, 91 days after filing of the petition in dependency and neglect, S.B., through her guardian ad litem, filed a motion to extend the time for the adjudicatory hearing. The trial court granted the extension of time on February 28, 1985. Subsequently, the father moved to dismiss the petition in dependency and neglect, arguing that, because the adjudicatory hearing was not held within the 90-day period required by § 19-3-106(1.3), C.R.S. (1986 Repl.Vol. 8B), dismissal was required. The trial court found that the extension of time was in S.B.’s best interests and denied the motion.

Thereafter, the trial court reconsidered its denial of the motion for summary judgment, and on March 8, 1985, it entered summary judgment adjudicating S.B. dependent and neglected.

At the conclusion of the dispositional hearing on July 15, 1985, the trial court approved a treatment plan and made it an order of the court. On August 12, 1985, the father filed a notice of appeal in this court.

On January 6, 1986, S.B.’s paternal grandfather filed a petition in the family court of Horry County, South Carolina, requesting that, pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), the South Carolina court assume jurisdiction and grant permanent custody of S.B. to him. Thereafter, the People and S.B.’s guardian ad litem each filed a notice and motion pursuant to the UCCJA with both the Colorado and South Carolina courts requesting that the respective judges determine the appropriate forum for the determination of S.B.’s custody. On June 16, 1986, the Colorado court declined to exercise continuing jurisdiction in order to allow the South Carolina court to assume jurisdiction. A supplemental notice of appeal was then filed appealing this order.

On July 2,1986, the father petitioned the supreme court for a writ of prohibition, seeking to prevent the trial court from declining continuing jurisdiction; this request was denied. The father then sought a stay from the trial court, which also denied his request. On September 5, 1986, a motion for stay was filed in this court, and we granted the motion.

I.

Father first contends that the trial court erred in extending the time for conducting an adjudicatory hearing or, in the alternative, erred in denying his motion to dismiss. He asserts that no adjudicatory hearing was held within 90 days and the trial court did not set forth specific reasons justifying the delay. We reject this contention.

Section 19-3-106(1.3), C.R.S. (1986 Repl. Vol. 8B) provides:

“Adjudicatory hearings concerning neglected or dependent children shall be held at the earliest possible time, but in no instance shall such hearing be held later than ninety days after the filing of the petition, unless the court finds that the best interests of the child will be served by granting a delay. If the court determines that a delay is necessary, it shall set forth the specific reason why such delay is necessary and shall schedule the adjudicatory hearing at the earliest possible time following the delay.”

The trial court held that it was granting the motion to extend time because it was in S.B.’s best interests to do so. It found that nothing in the father's motion to dismiss suggested that it would be in S.B.’s interests to enforce the 90-day rule strictly. The court also found that it required additional time to consider the legal issues concerning the pending summary judgment motion.

Under these circumstances, we conclude that the trial court’s grant of an extension of time for the adjudicatory hearing was based on a common sense interpretation of a highly unusual factual situation. Its findings satisfy the requirement of § 19-3-106(1.3), C.R.S. (1986 Repl.Vol. 8B); consequently, we decline to disturb its ruling.

In any event, dismissal is not the appropriate remedy. In addressing the issue whether failure to meet the 48-hour temporary custody hearing mandated by § 19-2-103, C.R.S. (1986 Repl.Vol. 8B) constituted a jurisdictional defect, our supreme court held that it was “contrary to the purposes of the Children’s Code and possibly to the best interests of the children involved to hold that the hearing requirement is jurisdictional.” P.F.M. v. District Court, 184 Colo. 393, 520 P.2d 742 (1974). We believe that reasoning to be appropriate here.

In reaching this conclusion, we note that the Children’s Code is to be liberally construed to serve the welfare of children and the best interests of society. Section 19-1-102(2), C.R.S. (1986 Repl.Vol. 8B). Courts should seek to promote the spirit of a statute and not simply the letter of the law. Bradley v. People, 8 Colo. 599, 9 P. 783 (1886).

Under the circumstances here, a delay of one day is insufficient to invoke a rigid interpretation of the statutory requirements, particularly when the motion to continue was filed by S.B.’s guardian ad litem who was charged with protecting her best interests. The trial court did not err in refusing to dismiss this case.

II.

The father next contends that the trial court erred when it entered summary judgment in favor of the People. He first argues that the issue whether a child is dependent or neglected is not a subject for summary judgment. We disagree.

The Colorado rules of juvenile procedure apply to dependency and neglect actions. Section 19-1-107, C.R.S. (1986 Repl.Vol. 8B). Such proceedings are civil in nature and, where not governed by the Colorado Rules of Juvenile Procedure or procedures set forth in the Children’s Code, the Colorado Rules of Civil Procedure apply. C.R.J.P. 1; see also People in Interest of D.A.K., 198 Colo. 11, 596 P.2d 747 (1979). Therefore, C.R.C.P. 56, the summary judgment rule, may be applied in a dependency and neglect action. See, e.g., People in Interest of K.A.J., 635 P.2d 921 (Colo.App.1981).

The father further asserts that the fact of his incarceration constitutes a genuine issue of material fact sufficient to defeat an adjudication of dependency or neglect by summary judgment. We agree that incarceration of a parent cannot be the sole basis for an adjudication; however, under the circumstances here, the adjudication was proper.

Prior to the adoption of the Children’s Code, our supreme court held that a parent’s felony conviction is not alone sufficient to work a forfeiture of parental rights. Diernfeld v. People, 137 Colo. 238, 323 P.2d 628 (1958). However, adjudications of dependency or neglect are not made as to the parents but, rather, relate only to the status of the child as of the date of the adjudication. People in Interest of P.D.S., 669 P.2d 627 (Colo.App.1983). An action in dependency or neglect is designed to determine whether the child, for whatever reason, lacks the benefit of parental guidance, concern, protection, or support. People in Interest of E.A., 638 P.2d 278 (Colo.1982).

In granting the motion for summary judgment and adjudicating S.B. dependent and neglected, the trial court made alternative findings. At the time of the entry of summary judgment, the father had been bound over for trial on charges of first degree murder, and was being held without bond. The trial court found that, if the father were convicted of causing the mother’s death, S.B. would be dependent and neglected within the meaning of § 19-1-103(20)(b), C.R.S. (1986 RephVol. 8B), because she “lacks proper parental care through the actions or omissions of the parent_” It also found that if the father were not convicted of causing the mother’s death, S.B. is, nevertheless, dependent and neglected under § 19-1-103(20)(e), C.R.S. (1986 RepLVol. 8B) in that she “is not domiciled with her parent ... through no fault of such parent_”

The record shows that the father made no attempt whatsoever before the adjudication to make any arrangements for his daughter’s care. On the date of adjudication, he was being held without bond. After the adjudication, but before the disposi-tional hearing, the father pled guilty to second degree murder of S.B.’s mother, and received a sentence of twelve years.

Consequently, we conclude that there was no genuine issue of material fact on the date of adjudication, and the trial court properly adjudicated S.B. dependent and neglected by way of summary judgment pursuant to either § 19-l-103(20)(b) or (e), C.R.S. (1986 Repl.Vol. 8B).

III.

The father next contends that the trial court erred in refusing to appoint an expert witness to assist him prior to the adjudicatory hearing. He argues that, because an adjudicatory hearing may lead to the termination of the parent-child legal relationship, the appointment of an expert during the earlier proceeding is required. We disagree.

Section 19-11-107, C.R.S. (1986 Repl.Vol. 8B) provides that an indigent parent is entitled to the appointment of one expert witness whose reasonable fees will be paid for by the State of Colorado. However, this section is contained in Article 11 of the Children’s Code, and refers exclusively to the termination of the parent-child legal relationship. Thus, it is not pertinent here.

Although an indigent parent is entitled to have an attorney appointed in a dependency and neglect hction, § 19-1-106(l)(d), C.R.S. (1986 Repl.Vol. 8B), and is entitled to various other due process rights, see People in Interest ofE.A., supra; Robinson v. People in Interest of Zollinger, 173 Colo. 113, 476 P.2d 262 (1970), neither concern for fundamental fairness nor the Children’s Code requires the appointment of an expert prior to a dependency and neglect adjudicatory hearing. Consequently, the trial court did not err when it denied the father’s motion for appointment of an expert prior to the adjudicatory hearing.

IV.

Father next contends that the trial court erred in refusing to exercise continuing jurisdiction in this matter. This argument has two subparts.

A.

Asserting that the pendency of an appeal divests the trial court of all jurisdiction in a case, father contends that the trial court was without jurisdiction to enter its order declining to exercise continuing jurisdiction over S.B. while his appeal of the adjudication was pending. Therefore, he contends, the trial court erred. We disagree.

It is axiomatic that any action taken by a court when it lacks jurisdiction is a nullity. McLeod v. Provident Mutual Life Insurance Co., 186 Colo. 234, 526 P.2d 1318 (1974). In general, the filing of a notice of appeal divests the trial court of jurisdiction. Scknier v. District Court, 696 P.2d 264 (Colo.1985). However, a trial court is not divested of jurisdiction to issue further orders relative to an order or judgment appealed from if such further orders are specifically authorized by statute or rule. Odd Fellows Building & Investment Co. v. City of Englewood, 667 P.2d 1358 (Colo.1983).

Section 19-3-115(4), C.R.S. (1986 Repl. Vol. 8B) imposes a duty on the trial court to review any order placing legal custody of a child with an individual, institution, or agency within 90 days of the original order and every six months thereafter. Disposition orders in dependency and neglect cases concern custody and placement of a child. See § 19-3-111, C.R.S. (1986 RepLVol. 8B). Disposition orders must be able to be adapted to the changing circumstances of both the child and the other parties to an action, and must be based upon the best interests of the child. Section 19-3-109(4), C.R.S. (1986 Repl.Vol. 8B).

In People in Interest of C.A.K., 628 P.2d 136 (Colo.App.1981), rev’d on other grounds, 652 P.2d 603 (Colo.1982), this court held that, so long as a child remains in the status of a dependent and neglected child pursuant to a valid adjudication, the trial court has several placement options. We went on to say “implicit in each of these options, however, is the continuing jurisdiction of the court to supervise the custodian as well as the child.” That holding thus recognizes and ratifies the duty and responsibility of the trial court to supervise continually both the child and the custodian pursuant to a placement order, and to make appropriate modifications at periodic intervals, if circumstances warrant.

Accordingly, we hold that the trial court in this case did have jurisdiction to enter its order refusing to exercise continuing jurisdiction over the case. Sections 19-3-115(4), 19-3-111, and 19-3-109(4), C.R.S. (1986 Repl.Vol. 8B) require the trial court to maintain continuing supervision over both the child and the custodian. We agree with the trial court’s reasoning that: “In this case, the ongoing welfare of a child is at stake, which cannot be placed on hold during the lengthy process of an appeal. Under the Children’s Code, this court has a statutory duty to conduct periodic reviews and to issue further orders.”

B.

Alternatively, father contends that, even if the trial court did have jurisdiction to enter its order declining to exercise jurisdiction while the case appeal was pending, the trial court abused its discretion under the facts of this case in declining to exercise continuing jurisdiction. Again, we disagree.

This issue is governed principally by the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), § 14-13-101 et seq., C.R.S. Both South Carolina and Colorado have adopted the UCCJA. See S.C. Code Ann. § 20-7-782, et seq., (Law.Coop. 1976 as amended), and § 14-13-101 et seq., C.R.S. Section 14-13-104, C.R.S., which is identical to the South Carolina statute (S.C. Code Ann. § 20-7-788), states the conditions under which a court has jurisdiction to decide matters encompassed by the UCCJA. It provides that the state must have been the child’s “home state” for six months prior to the commencement of the pending proceedings. Alternatively, it authorizes the court to find that it would be in a child’s best interests for a state to assume jurisdiction because the child has significant connections with that state and substantial evidence as to the child’s present and future care is available there.

In this case, Colorado had been S.B.’s home state for six months prior to March 8, 1985, the date of the adjudication of dependency and neglect. Therefore, the Colorado court has jurisdiction over S.B. and her custodian.

However, South Carolina also has jurisdiction in this case. Section 14 — 13— 104(l)(b), C.R.S. and S.C.Code Ann. § 20-7-788(a)(2) define “home state” as the state with which the child has the most significant connection and where there is substantial evidence concerning the child’s present and future care. It is uncontroverted that S.B. has resided in South Carolina since December 19, 1984, and is attending school and receiving therapy there.

The general purposes of the UCCJA include an assurance that, ordinarily, litigation concerning the custody of a child take place in the state in which the child and his family have the closest connection, where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state. Section 14-13-102, C.R.S.

The trial court found that Colorado “may be a home state in statutory terms but, for all practical purposes, South Carolina is really the home state of the child.” It further found that, as of the date of its order, S.B. had lived in South Carolina for a year-and-one-half; during that time she had been regularly attending school, and had been seeing a therapist. It concluded that it was “clear that S.B. should remain in her maternal grandparent’s home, since, from the evidence presented at the review hearing, she is doing exceptionally well in her present environment.”

The trial court also noted that the Boulder County Department of Social Services was officially S.B.’s legal custodian and, in that capacity, supervised the dispositional plan approved by the court. Relative to that duty, the Boúlder Department worked closely with the South Carolina Department of Social Services. The court found that the Boulder Department had no direct contact with S.B., but “was engaged in a cumbersome and costly process of conducting its supervision through the department of another state.”

The record abundantly supports the trial court’s findings and conclusions. Although it could have retained jurisdiction, we believe that the trial court did not abuse its discretion in declining to exercise continuing jurisdiction.

Judgment and orders affirmed.

VAN CISE, J., concurs. BABCOCK, J., dissents.