of MMV , 2020 COA 94 ( 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
June 11, 2020
2020COA94
No. 19CA0759, Petition of MMV — Family Law — Children’s
Code — Relinquishment and Adoption — Stepparent Adoption
— Uniform Child-custody Jurisdiction and Enforcement Act
A division of the court of appeals considers whether the
Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA)
governs a proceeding for stepparent adoption. Although the
UCCJEA exempts adoption proceedings from its purview, it
expressly provides that it is applicable to proceedings to terminate
parental rights. Reconciling these two provisions, the division
concludes, for the first time, that when, as here, the stepparent
adoption case also requires the court to consider the termination of
parental rights, the UCCJEA governs that portion of the case.
The division further concludes that the magistrate did not
properly acquire subject matter jurisdiction under the UCCJEA to
hear the proceeding to terminate father’s parental rights. As a
result, the division vacates the judgment.
COLORADO COURT OF APPEALS 2020COA94
Court of Appeals No. 19CA0759
Pueblo County District Court No. 18JA12
Honorable Gregory J. Styduhar, Judge
In re the Petition of M.M.V.,
Appellee,
for the Adoption of D.D.R., a Child,
and Concerning B.P.R.,
Appellant.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE PAWAR
Furman and Welling, JJ., concur
Announced June 11, 2020
Melinda B. Orendorff, Pueblo, Colorado, for Appellee
Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant
¶1 In this stepparent adoption proceeding, B.P.R. (father) appeals
from the juvenile court judgment terminating his parental rights
and decreeing the adoption of his child, D.D.R., by M.M.V.
(stepfather). We must decide an issue that has not yet been
addressed in Colorado — does the Uniform Child-custody
Jurisdiction and Enforcement Act (UCCJEA), sections 14-13-101 to
-403, C.R.S. 2019, govern the termination of parental rights that is
initiated in a stepparent adoption case? We conclude that the
answer is yes.
¶2 We further conclude that the record does not establish that
the magistrate properly acquired subject matter jurisdiction under
the UCCJEA before terminating father’s parental rights. As a
result, we vacate the judgment and remand the case for further
proceedings.
I. The Juvenile Court Proceeding
¶3 The child was born to K.E.V. (mother) and father in 2007.
About six years later, a court in Arizona issued an order that
dissolved the parents’ marriage and allocated decision-making
authority and parenting time for the child. As part of the same
case, the Arizona court later issued orders (1) placing restrictions
1
on father’s parenting time; (2) awarding visitation to the paternal
grandparents; and (3) authorizing mother to move with the child to
Colorado.
¶4 Meanwhile, mother married stepfather. And, in February
2018, stepfather filed two petitions, one to adopt the child and one
to terminate the child’s legal relationship with father. Father moved
to dismiss the petitions under the UCCJEA and the Parental
Kidnaping Prevention Act (PKPA), 42 U.S.C. § 1738A (2018), arguing
that because the Arizona court that had made the prior child-
custody determinations had not declined jurisdiction, the Colorado
court lacked jurisdiction to grant the relief requested.
¶5 Soon thereafter, mother asked the Arizona court to decline to
exercise its continuing jurisdiction over decision-making authority
and parenting time for the child. Although mother’s motion
informed the Arizona court that a Colorado court had a pending
proceeding to sever father’s rights and allow stepfather to adopt the
child, it does not appear that she filed a copy of the petitions from
this case. After reviewing pleadings from mother and father, the
Arizona court determined that the child no longer had a significant
connection with the state and that substantial evidence regarding
2
the child’s care was no longer available in the state. As a result, it
granted mother’s request and declined its continuing jurisdiction.
And, based on that order, the magistrate in stepfather’s case
determined that the Colorado court had jurisdiction to hear the
petitions for termination and stepparent adoption.
¶6 However, in early September 2018, the Arizona court partially
reconsidered its determination. By the agreement of the parties to
that case — father, mother, and the paternal grandparents — the
Arizona court determined that it would retain jurisdiction over the
grandparents’ visitation rights and severed that issue into a
separate case.
¶7 Not long after, the magistrate held a hearing on stepfather’s
petitions to terminate father’s rights and adopt the child. At the
start of the hearing, father raised the issue of the reconsideration
order and objected to the magistrate exercising jurisdiction because
it meant two states would be determining child-custody issues. The
magistrate determined that the Colorado court had jurisdiction, but
also said that it was a significant issue that the parties needed to
address as part of their proposed orders.
3
¶8 Following the two-day hearing, the magistrate issued a
thorough order addressing the Colorado court’s jurisdiction to hear
the proceeding under the UCCJEA and the PKPA. The magistrate
reasoned that termination and stepparent adoption were a single
proceeding and the UCCJEA did not apply to adoption proceedings.
The magistrate further observed that even if the UCCJEA was
applicable, the Arizona court’s reconsideration order was entered
without jurisdiction because the magistrate had already begun
exercising the Colorado court’s jurisdiction by that time.
Thereafter, the magistrate terminated father’s parental rights and
granted the decree of adoption.
II. Jurisdiction Over Proceeding
¶9 Father contends that the magistrate lacked subject matter
jurisdiction under the UCCJEA and the PKPA to terminate his
parental rights because the Arizona court had previously entered a
child-custody determination and had, at the time of the termination
proceeding, retained jurisdiction over grandparent visitation. To
resolve this issue, we must first decide a preliminary question that
the magistrate also addressed — whether the UCCJEA governs a
proceeding to terminate parental rights that arises in the context of
4
a stepparent adoption. Contrary to the magistrate’s determination,
we conclude that the UCCJEA is applicable under those
circumstances and that the record does not demonstrate that the
magistrate had properly acquired jurisdiction under the UCCJEA to
consider the termination of parental rights.
A. Standard of Review and Interpretation Principles
¶ 10 We review questions of statutory interpretation de novo.
People in Interest of L.M., 2018 CO 34, ¶ 13. In construing a
statute, we look at the entire statutory scheme “in order to give
consistent, harmonious, and sensible effect to all of its parts, and
we apply words and phrases in accordance with their plain and
ordinary meanings.” Id. (quoting UMB Bank, N.A. v. Landmark
Towers Ass’n, 2017 CO 107, ¶ 22).
¶ 11 And, when construing statutes related to the same subject
matter, we aim to avoid a statutory interpretation that would render
certain words or provisions superfluous or ineffective. Id. We also
avoid a statutory construction that would lead to an absurd result.
Id. Instead, we aim to adopt an interpretation that achieves
consistency across a comprehensive statutory scheme. Id.
B. Statutory Frameworks
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1. Stepparent Adoption and Termination of Parental Rights
¶ 12 Under the Colorado Children’s Code, a child may be available
for stepparent adoption when the parent has abandoned the child
or failed without cause to provide reasonable support for a period of
one year or more. § 19-5-203(1)(d)(II), C.R.S. 2019; D.P.H. v. J.L.B.,
260 P.3d 320, 324 (Colo. 2011). Alternatively, a parent having only
residual parental responsibilities may consent to the child’s
adoption by the spouse of the parent who has primary custody or
parental responsibilities. § 19-5-203(1)(e).
¶ 13 Still, there are two distinct components that arise during a
stepparent adoption case. In addition to issuing a final decree of
adoption, the juvenile court must also issue an order terminating
the noncustodial parent’s rights. § 19-5-210(6), C.R.S. 2019; see
also D.P.H., 260 P.3d at 323 (recognizing that a stepparent adoption
necessarily includes the termination of the parental rights of the
noncustodial parent). Although both the decree and termination
judgment are issued in the same case, they are separate orders.
See In re E.R.S., 2019 COA 40, ¶ 21 (concluding that the juvenile
court’s order terminating mother’s parental rights in a stepparent
6
adoption proceeding was final for appellate purposes even though
the court had not issued the adoption decree).
¶ 14 In addition to being a distinct component of the stepparent
adoption process, termination of parental rights is particularly
significant because it permanently severs a constitutionally
protected fundamental liberty interest. The Due Process Clause of
the Fourteenth Amendment protects the fundamental right of a
parent to make decisions concerning the care, custody, and control
of his or her child. Troxel v. Granville, 530 U.S. 57, 65-66 (2000);
see also In Interest of Baby A, 2015 CO 72, ¶ 20. It is perhaps the
oldest of the fundamental liberty interests recognized by the
Supreme Court. Troxel, 530 U.S. at 65. And it is an interest far
more precious than any property right. Santosky v. Kramer, 455
U.S. 745, 758-59 (1982).
¶ 15 Termination of parental rights is defined as the permanent
elimination of all parental rights and duties, including residual
rights and responsibilities. § 19-1-103(107), C.R.S. 2019. It is
complete, final, and irrevocable. In Interest of K.D., 471 S.W.3d
147, 167 (Tex. App. 2015). As a result, termination permanently
7
severs the parent’s fundamental liberty interest in parenting his or
her child.
2. The UCCJEA
¶ 16 The UCCJEA was promulgated by the Uniform Law
Commission for the key purpose of creating consistency in
interstate child-custody jurisdiction and enforcement proceedings.
Angel B. v. Vanessa J., 316 P.3d 1257, 1259-60 (Ariz. Ct. App.
2014). It has now been adopted in forty-nine states as well as the
District of Columbia. Linda Elrod, Unif. Law Comm’n Joint
Editorial Bd. of Unif. Family Law, Commentary on Adoption
Jurisdiction Under the UCCJEA 7, 9 (2019), https://perma.cc/6TYE-
4SJZ.
¶ 17 The primary aim of the UCCJEA is to prevent competing and
conflicting custody orders by courts in different jurisdictions that
would put all parties at risk of uncertainty and unilateral removals
of children from or to various jurisdictions. Angel B., 316 P.3d at
1260. Put another way, the UCCJEA is designed to avoid
jurisdictional competition over child-custody matters in an
increasingly mobile society. Brandt v. Brandt, 2012 CO 3, ¶ 19. To
effectuate this purpose, it establishes a comprehensive framework
8
that a Colorado court must follow to determine whether it may
exercise jurisdiction in a child-custody matter or whether it must
defer to a court of another state. People in Interest of A.B-A., 2019
COA 125, ¶ 9. The UCCJEA covers a wide variety of child-custody
matters, defined as child-custody determinations and child-custody
proceedings. See § 14-13-102(3)-(4), C.R.S. 2019.
C. UCCJEA Applicability to Termination and Adoption
¶ 18 The UCCJEA contains two provisions addressing its
applicability. On the one hand, section 14-13-102(4) defines a
child-custody proceeding as “a proceeding in which legal custody or
physical custody with respect to a child or the allocation of parental
responsibilities with respect to a child or visitation, parenting time,
or grandparent or great-grandparent visitation with respect to a
child is an issue.” It expressly provides that a proceeding for
termination of parental rights is one type of child-custody
proceeding. § 14-13-102(4).
¶ 19 On the other hand, section 14-13-103, C.R.S. 2019, exempts
two types of proceedings from the UCCJEA’s purview. As pertinent
here, it provides that “[t]his article [the UCCJEA] does not govern an
adoption proceeding.” § 14-13-103. This section was premised on
9
the assumption that states would adopt the Uniform Adoption Act.
See § 14-13-103 cmt. Colorado has not done so.
¶ 20 Relying on section 14-13-103, our supreme court determined
that the UCCJEA was inapplicable in the context of a failed
interstate adoption proceeding. People in Interest of A.J.C., 88 P.3d
599, 609, 611 (Colo. 2004). Similarly, a division of this court
concluded that the UCCJEA did not apply to a custodial adoption
proceeding. See In re Adoption of K.L.L., 160 P.3d 383, 385 (Colo.
App. 2007).
¶ 21 Yet, neither opinion specifically addresses whether the
UCCJEA governs the termination of parental rights when it is
initiated in an adoption case. Nor do they reconcile the provisions
of sections 14-13-102(4) and 14-13-103. To resolve whether the
UCCJEA applies to a termination proceeding brought in a
stepparent adoption case, we must examine the interplay between
these two provisions.
¶ 22 A plain and harmonious reading of these two provisions shows
that while the UCCJEA does not govern a proceeding that solely
involves the adoption of a child, it does apply to the portion of a
stepparent adoption case that concerns the termination of parental
10
rights. Thus, for example, the UCCJEA would have no applicability
to a stepparent adoption case if the noncustodial parent were
deceased or had previously had his or her parental rights
terminated in a separate case. In contrast, when, as here, the
stepparent adoption case also requires the court to consider the
termination of parental rights, the UCCJEA governs that portion of
the case.
¶ 23 To hold otherwise would create a direct conflict between the
UCCJEA’s provisions. It would subject a termination of parental
rights proceeding to the UCCJEA under section 14-13-102(4) but,
at the same time, exempt it from the UCCJEA under section 14-13-
103 because it arose in an adoption proceeding. And it would not
give effect to section 14-13-102(4)’s inclusion of termination of
parental rights — without exception — as one type of child-custody
proceeding.
¶ 24 The South Carolina Court of Appeals took a similar approach
and concluded that the UCCJEA was applicable to an action that
terminated parental rights and granted a petition for stepparent
adoption. Anthony H. v. Matthew G., 725 S.E.2d 132, 134 (S.C. Ct.
App. 2012). It observed that in order for the adoption action to
11
proceed, the legal parents had to consent to the adoption,
relinquish their parental rights, or have their parental rights
terminated. Id. Accordingly, it reasoned that the court had to first
consider the termination of parental rights and the UCCJEA applied
to an action to do so. Id.
¶ 25 The Louisiana Court of Appeal also concluded that the
UCCJEA applied to the termination of parental rights in the context
of an interfamily adoption. It reasoned that if a party could simply
move to another state and apply to adopt a child, which requires
terminating the parental rights that are at issue in the other state,
it would undercut the validity of any custody judgment issued by a
court of competent jurisdiction. In re D.C.M., 170 So. 3d 165, 171
(La. Ct. App. 2013). It further expounded that termination was the
ultimate custody determination and that the adoption exemption
contained in the UCCJEA did not allow one state to permit an
interfamily adoption while another state had continuing, exclusive
jurisdiction over the custody of the children. Id. at 172-73.
¶ 26 We recognize that two jurisdictions have reached the opposite
result. One district of the California Courts of Appeal determined
that the UCCJEA does not apply to stepparent adoptions. Adoption
12
of K.C., 203 Cal. Rptr. 3d 110, 112 (Ct. App. 2016). And the Utah
Court of Appeals rejected a parent’s argument that the court lacked
jurisdiction under the UCCJEA to terminate his parental rights as
part of an adoption proceeding. In re Adoption of B.H., 447 P.3d
110, 112, 114 (Utah Ct. App. 2019), cert. granted, 455 P.3d 1062
(Utah 2019) (unpublished table decision). Both of these opinions,
however, rely solely on the UCCJEA provision exempting adoptions
without reconciling it with the provision that defines a child-
custody proceeding as including a proceeding to terminate parental
rights.
¶ 27 We agree with the reasoning of those states that have applied
the UCCJEA in this context. Therefore, we conclude that while the
UCCJEA exempts adoptions from its purview, it nonetheless
governs a proceeding to terminate parental rights that is initiated in
a stepparent adoption case.
¶ 28 Having reached this conclusion, we must next determine
whether the magistrate properly acquired jurisdiction under the
UCCJEA to hear the proceeding to terminate father’s parental
rights.
D. Establishing Jurisdiction Under the UCCJEA
13
1. The Legal Framework
a. Jurisdiction between States
¶ 29 Under the UCCJEA, the court that makes an initial custody
determination generally retains exclusive, continuing jurisdiction.
§ 14-13-206, C.R.S. 2019; People in Interest of M.S., 2017 COA 60,
¶ 15. Accordingly, absent temporary emergency jurisdiction under
section 14-13-204, C.R.S. 2019, a Colorado court may only modify
a custody order issued by an out-of-state court under limited
circumstances. M.S., ¶ 15.
¶ 30 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. 2019. § 14-13-203(1), C.R.S. 2019; Brandt, ¶ 33. Second,
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. 2019; M.S., ¶ 17. It may also occur when either
the issuing court or a Colorado court determines that the child, the
14
parents, and anyone acting as a parent do not presently reside in
the issuing state. § 14-13-203(1)(b); A.B-A., ¶ 10.
¶ 31 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 14-13-110 to -112, C.R.S.
2019. Brandt, ¶ 35.
¶ 32 Likewise, a court of this state may not exercise its jurisdiction
if, at the time of the commencement of the proceeding, a proceeding
concerning the custody of the child has been commenced in a court
of another state unless the proceeding has been terminated or is
stayed by the other state court because a court of this state is a
more convenient forum. § 14-13-206(1). If a Colorado court
determines that a child-custody proceeding has been commenced in
a court in another state, it must communicate with the other state
court. § 14-13-206(2); People in Interest of C.L.T., 2017 COA 119,
¶ 23.
b. Communication between States
¶ 33 The UCCJEA is premised on the assumption that sister state
courts will communicate with one another. Saavedra v. Schmidt, 96
S.W.3d 533, 547-48 (Tex. App. 2002). As our supreme court has
15
explained, communication is “exceedingly beneficial” in this type of
proceeding. Brandt, ¶ 34. Inter-court communication facilitates an
understanding between sister states regarding whether the issuing
state has lost jurisdiction or declined to exercise jurisdiction in
favor of a more convenient forum. Id. It also alerts the new state to
any pending actions in the issuing state and helps to develop a
factual record in the matter of jurisdiction. Id.
¶ 34 The communication can occur in many different ways,
including by telephone conference, online communication, or other
electronic means. § 14-13-110 cmt. And this communication must
be made directly by the court — which is defined as an entity
authorized under the law of a state to establish, enforce, or modify a
child-custody determination. § 14-13-102(6); see also People in
Interest of D.P., 181 P.3d 403, 407 (Colo. App. 2008). This includes
a judge or a magistrate. D.P., 181 P.3d at 407.
¶ 35 Section 14-13-110(4) requires the court to make a record of all
communications between courts concerning proceedings that arise
under the UCCJEA except for those involving schedules, calendars,
court records, and similar matters. D.P., 181 P.3d at 406. A record
is defined as information that is inscribed on a tangible medium or
16
that is stored in an electronic or other medium and is retrievable in
perceivable form. § 14-13-110(5).
¶ 36 The court may allow the parties to participate in the
communication with the other court. § 14-13-110(2). If the parties
are not able to participate in the communication, then the court
must give them the opportunity to present facts and legal
arguments before it makes a decision regarding its jurisdiction. Id.
Arizona’s version of the UCCJEA contains the same provisions. See
Ariz. Rev. Stat. Ann. § 25-1010 (2019).
¶ 37 This process is particularly significant because it informs the
jurisdictional decision. Indeed, a Colorado court must decide
whether it has jurisdiction to modify an existing out-of-state
custody order based on the information provided by the parties and
its discussion with the court in the other state. See C.L.T., ¶ 24.
2. The Record
¶ 38 When stepfather initiated the proceeding to adopt the child
and terminate father’s parental rights, Arizona had a pending child-
custody proceeding. And it had made multiple child-custody
determinations regarding father’s parenting time and visitation for
the paternal grandparents. Father and the paternal grandparents
17
continued to reside in Arizona. Consequently, Arizona had
exclusive, continuing jurisdiction over the child that it had to
decline — consistent with the requirements of the UCCJEA —
before the Colorado magistrate could consider the termination of
father’s parental rights.
¶ 39 Yet, the record contains no indication that the magistrate
communicated with the issuing court in Arizona before assuming
jurisdiction to terminate father’s parental rights. Instead, the
magistrate relied on a written order from the Arizona court
relinquishing its jurisdiction based on pleadings submitted by
mother and father. And the Colorado magistrate, without
conferring with the Arizona court, determined that the Arizona
court lacked jurisdiction to reconsider that order.
¶ 40 We are not persuaded that this was an adequate substitute for
inter-court communication. Indeed, the record in this case
highlights some of the pitfalls of doing so. For example, in its initial
order declining jurisdiction, the Arizona court determined that there
was no longer substantial evidence available in Arizona concerning
the child’s care, protection, training, and personal relationships. In
reaching this determination, the court reasoned that the child had
18
been in Colorado since 2016 and that, if it were to reinstate father’s
parenting time, it would necessitate reunification therapy in
Colorado.
¶ 41 This reasoning appears to be at odds with the nature of the
stepparent adoption proceeding that was then pending before the
Colorado court. The issue before the Colorado court was not
whether father should have parenting time, but rather, whether
father’s parental rights should be terminated so that stepfather
could step into his shoes as the child’s legal parent. And, even if
the magistrate had decided that the grounds for stepparent
adoption were not met, he would have simply denied the petition
without considering any parenting time to father.
¶ 42 The reconsideration issue further highlights some of the same
pitfalls. Recall that the Arizona court also subsequently determined
that it would relinquish its jurisdiction over the custodial issues
between mother and father, while retaining its jurisdiction over
grandparent visitation. This was a seemingly conflicting
determination that could have been avoided by inter-court
communication. Grandparent visitation is expressly identified as
19
both a child-custody determination and a child-custody proceeding
under the UCCJEA. See § 14-13-102(3)-(4).
¶ 43 Additionally, inter-court communication would have allowed
for discussion of whether, and if so, on what basis, the Arizona
court had authority to partially reconsider its earlier declination of
jurisdiction.
¶ 44 For these reasons, the magistrate lacked jurisdiction to
terminate father’s parental rights and we must vacate the
judgment.
III. Remaining Arguments
¶ 45 Because we have already concluded that the judgment must
be vacated so that the magistrate can confer with the Arizona court
regarding jurisdiction, we need not review whether the magistrate
properly concluded that the Arizona court’s order retaining
jurisdiction was not entitled to enforcement under the PKPA. For
the same reason, we do not consider father’s contentions that the
magistrate erred by (1) concluding that he had abandoned the child
and (2) failing to advise him of his right to have the matter heard by
a judge.
IV. Conclusion
20
¶ 46 The judgment is vacated. The matter is remanded to the
juvenile court for the magistrate to determine whether the Colorado
court has jurisdiction to issue a termination judgment that modifies
the Arizona custody order. In doing so, the magistrate must
communicate with the issuing court in Arizona pursuant to sections
14-13-110 to -112. See Brandt, ¶ 35.
JUDGE FURMAN and JUDGE WELLING concur.
21