in Interest of A.B-A

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
August 8, 2019
2019COA125
No. 18CA1145, People in Interest of A.B-A. — Juvenile Court —
Dependency and Neglect — Uniform Child Custody Jurisdiction
and Enforcement Act — Temporary Emergency Jurisdiction
In this dependency and neglect case, a division of the court of
appeals concludes that the human rights “escape clause” of the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
did not apply to excuse enforcement of a prior child custody order
entered by an Iranian court. As a result, the division concludes
that the juvenile court exceeded its temporary emergency
jurisdiction under the UCCJEA when it terminated parental rights.
COLORADO COURT OF APPEALS 2019COA125
Court of Appeals No. 18CA1145
Adams County District Court No. 16JV301
Honorable Priscilla J. Loew, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of A.B-A., a Child,
and Concerning M.B. and S.T-K.,
Respondents-Appellants.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE PAWAR
Dailey and Casebolt*, JJ., concur
Announced August 8, 2019
Heidi M. Miller, County Attorney, Howard Reinstein, Deputy County Attorney,
Westminster, Colorado, for Petitioner-Appellee
Jeff Ruff, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado,
for Respondent-Appellant M.B.
Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown,
Colorado, for Respondent-Appellant S.T-K.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Mother, S.T-K., and father, M.B., appeal the juvenile court’s
judgment terminating their parent-child relationships with their
son, A.B-A. We consider whether, under the Uniform Child-custody
Jurisdiction and Enforcement Act (UCCJEA), sections 14-13-101
to -403, C.R.S. 2018, the juvenile court lacked subject matter
jurisdiction to terminate parental rights based on an existing child
custody order in Iran. We also consider the Adams County
Department of Human Services’ (Department) contention that the
juvenile court could disregard the prior child custody order either
because the prior order does not conform to UCCJEA jurisdictional
standards or because Iranian child custody law violates
fundamental principles of human rights.
¶2 We conclude that the juvenile court lacked subject matter
jurisdiction to terminate parental rights and could not disregard the
Iranian order. We also conclude that the juvenile court erred in
allowing the Department to serve father by publication. We
therefore vacate the judgment and remand the case for further
proceedings.
1
I. Background
¶3 Mother, father, and the child are citizens of Iran. The parents
divorced in Iran in 2009, when the child was six years old. Custody
of the child remained with mother pursuant to a court order.
¶4 Mother moved to California in 2011. The child remained in
Iran, where his maternal grandmother and father cared for him at
different times between 2011 and 2015. The child joined mother in
California in 2015.
¶5 Mother and the child moved to Colorado in August 2016. The
following month, mother suffered a mental health crisis and entered
a mental health facility on an involuntary hold. Consequently, the
Department took the child into protective custody. The Department
filed a petition in dependency or neglect in October 2016. The
juvenile court entered a deferred adjudication as to mother and
later adjudicated the child dependent and neglected as to mother.
¶6 Father was in Iran at all times during the proceeding. In July
2017, the Department moved to serve him by publication because it
had been unable to contact him. The juvenile court granted the
motion, and the Department published a summons in an Adams
2
County-area newspaper. Shortly thereafter, the juvenile court
entered a default adjudication as to father.
¶7 The Department moved to terminate parental rights in
December 2017. In April 2018, the day before the scheduled
termination hearing, father contacted the family’s caseworker. He
said he had just learned of the case and wanted the child returned
to him. Father continued to telephone the caseworker over the next
month. Even so, in May 2018, the juvenile court terminated both
parents’ parental rights.
II. The Juvenile Court’s Subject Matter Jurisdiction
Under the UCCJEA
¶8 Mother contends that the juvenile court lacked subject matter
jurisdiction to terminate parental rights under the UCCJEA,
sections 14-13-101 to -403, C.R.S. 2018, because an Iranian child
custody order was already in effect. We review the juvenile court’s
subject matter jurisdiction under the UCCJEA de novo and agree
with mother. People in Interest of C.L.T., 2017 COA 119, ¶ 14.
A. Foreign Child Custody Orders in Dependency and
Neglect Proceedings
¶9 Dependency and neglect proceedings must comply with the
UCCJEA. People in Interest of M.S., 2017 COA 60, ¶¶ 11-12. The
3
UCCJEA establishes a comprehensive framework that a Colorado
court must use to determine whether it may exercise jurisdiction in
a child custody matter or whether it must defer to a court of
another state. C.L.T., ¶ 16. Subject to the limitations discussed
below, Colorado courts must treat a foreign country as though it
were a state of the United States for purposes of jurisdiction under
the UCCJEA. § 14-13-104, C.R.S. 2018; In re Parental
Responsibilities Concerning T.L.B., 2012 COA 8, ¶ 19. As this case
concerns a foreign country’s child custody order, we will discuss
provisions of the UCCJEA that refer to another “state” in terms of
their application to a “foreign country.”
¶ 10 The UCCJEA aims to avoid jurisdictional competition over
child custody matters in an increasingly mobile society. See Brandt
v. Brandt, 2012 CO 3, ¶ 19; C.L.T., ¶ 15; M.S., ¶ 15. To that end,
the UCCJEA provides that the foreign court that issued a child
custody order retains exclusive, continuing jurisdiction over the
determination. § 14-13-202, C.R.S. 2018. The foreign court’s
jurisdiction continues until (1) the foreign court determines that it
no longer has exclusive, continuing jurisdiction; (2) the foreign
court declines jurisdiction on the ground that Colorado provides a
4
more convenient forum; or (3) either the foreign court or a Colorado
court determines that the child, the parents, and anyone acting as
a parent do not presently reside in the foreign country.
§ 14-13-203, C.R.S. 2018; C.L.T., ¶ 31. As relevant here, the
foreign court may not be deprived of jurisdiction if a parent
presently resides in the foreign country. Brandt, ¶ 27.
¶ 11 A Colorado court may not modify a foreign child custody order
unless two conditions are met: (1) the Colorado court has
jurisdiction to make an initial custody determination under section
14-13-201, C.R.S. 2018; and (2) the foreign court has lost or ceded
jurisdiction under section 14-13-203.
¶ 12 Notwithstanding a prior, enforceable foreign child custody
order, however, a Colorado court may exercise temporary
emergency jurisdiction to protect a child who is present in Colorado
from mistreatment, abuse, or abandonment. § 14-13-204, C.R.S.
2018; T.L.B., ¶ 21; see also People in Interest of M.C., 94 P.3d 1220,
1225 (Colo. App. 2004).
¶ 13 But this temporary emergency jurisdiction under the UCCJEA
is limited in scope and in time. Importantly, a Colorado court
exercising temporary emergency jurisdiction may not enter a
5
permanent custody disposition. M.C., 94 P.3d at 1225 (while
exercising temporary emergency jurisdiction, a juvenile court may
not adjudicate a child dependent or neglected or terminate parental
rights). When exercising temporary emergency jurisdiction to enter
a temporary emergency order, the Colorado court must specify in its
order a time period that the court considers adequate to allow the
person seeking a child custody determination to obtain an order
from the foreign court. § 14-13-204(3). And the Colorado order
remains in effect only until the foreign court enters an order or the
period expires, whichever occurs earlier. Id.; T.L.B., ¶ 21 (a
temporary emergency order under the UCCJEA lapses as soon as
the court that otherwise has jurisdiction enters an order).
¶ 14 Because the juvenile court’s emergency jurisdiction is limited
in scope and time, it is imperative that the juvenile court promptly
ascertain whether a foreign custody order exists and, if one does,
whether the foreign order limits the juvenile court’s jurisdiction.
See 19 Frank L. McGuane, Jr. & Kathleen A. Hogan, Colorado
Practice Series: Family Law and Practice § 27:9, Westlaw (2d ed.
database updated May 2019) (the emergency nature of proceedings
does not suspend the juvenile court’s obligation to communicate
6
with the court of another jurisdiction regarding a prior custody
action). To facilitate the court’s assessment, each party to a
dependency and neglect proceeding must provide information
regarding where and with whom the child has resided during the
last five years; any other proceeding involving custody, visitation, or
parenting time with the child; any proceeding that might affect the
Colorado dependency and neglect proceeding; and the names and
addresses of nonparties who might have physical custody of the
child or claim rights of parental responsibilities, custody, visitation,
or parenting time. § 14-13-209, C.R.S. 2018. This duty of
disclosure applies to parents, social services agencies, guardians ad
litem, and any other persons who may have acquired party status
as intervenors or otherwise. C.L.T., ¶ 22 n.1. The department, as
the petitioning party in dependency and neglect proceedings, bears
the burden of establishing the juvenile court’s subject matter
jurisdiction under the UCCJEA. See Brandt, ¶ 33.
¶ 15 When the juvenile court discovers a foreign custody order, the
Colorado court must immediately confer with the foreign court “to
resolve the emergency, protect the safety of the parties and the
child, and determine a period for the duration of the temporary
7
order.” § 14-13-204(4); see also § 14-13-110, C.R.S. 2018; People
in Interest of D.P., 181 P.3d 403, 407 (Colo. App. 2008) (Colorado
judge must personally confer with issuing court and may not
delegate that responsibility to a law clerk).
¶ 16 With this framework in mind, we now turn to the facts of this
case.
B. The Juvenile Court Lacked Subject Matter Jurisdiction to
Terminate Parental Rights
¶ 17 In December 2017, the Department filed with the juvenile
court an English translation of the parents’ Iranian dissolution
decree. The decree includes an order granting custody of the child
to mother.
¶ 18 At the termination hearing, mother’s counsel asserted that,
under the UCCJEA, the juvenile court lacked jurisdiction to
terminate parental rights. The juvenile court stated that it was
unsure whether a specific Iranian child custody order existed.
Without resolving this issue, the court found that it had jurisdiction
and terminated both mother’s and father’s parental rights. This
was error. Because there was an Iranian child custody order in
place, the only jurisdiction that the juvenile court could exercise
8
was temporary emergency jurisdiction under section 14-13-204(4).
And temporary emergency jurisdiction does not allow a court to
enter a permanent custody disposition, as the juvenile court did
here. We therefore conclude that the juvenile court lacked subject
matter jurisdiction to terminate mother’s and father’s parental
rights.
¶ 19 The Department argues that the Iranian child custody order
did not limit the juvenile court to exercising only temporary
emergency jurisdiction because (1) the Iranian child custody order
does not conform to the UCCJEA’s jurisdictional standards and (2)
the child custody law of Iran violates fundamental principles of
human rights. We reject both contentions.
1. The Order Conforms to the UCCJEA’s
Jurisdictional Standards
¶ 20 Colorado courts must recognize and enforce a foreign child
custody order if it was made under factual circumstances that
substantially comply with the UCCJEA’s jurisdictional standards.
§ 14-13-104(2). As relevant here, these requirements are met if the
issuing court was in the child’s home state, the parents had notice
of the proceeding, and the parents had an opportunity to be heard.
9
See § 14-13-201(1)(a) (establishing criteria for home state
jurisdiction to make an initial child custody determination);
§ 14-13-205, C.R.S. 2018 (parents must have notice and an
opportunity to be heard).
¶ 21 Where, as here, the material facts underlying a jurisdictional
issue are not in dispute, we review the matter de novo as a question
of law. Springer v. City & Cty. of Denver, 13 P.3d 794, 798 (Colo.
2000).
¶ 22 The child custody order contains sufficient facts to
demonstrate substantial conformity with the UCCJEA’s
fundamental jurisdictional requirements. Because the child
custody order is a provision of the order dissolving the parents’
marriage, we consider the dissolution order as a whole.
¶ 23 The dissolution order includes facts establishing that Iran was
the child’s home state. Specifically, the order states that both
parents resided in Tehran, Iran, and that the issuing court is in
Tehran. As well, the order indicates that both parents participated
in the proceeding by stipulating to the division of property and child
custody. It states that father accepted certain property from
10
mother, agreed to divorce mother, and waived his right to custody of
the child.
¶ 24 The Department asserts that the order is inadequate because
it does not describe the factors the court considered in making its
custody determination. But this is irrelevant to the jurisdictional
question. See § 14-13-201 cmt. 2 (explaining that the UCCJEA
eliminated “best interest” language used by its predecessor, the
Uniform Child Custody Jurisdiction Act (UCCJA), because it
“tended to create confusion between the jurisdictional issue and the
substantive custody determination”); Brandt, ¶ 23 (by removing best
interests analysis, the UCCJEA avoids injecting the merits of a
custody dispute into the determination of jurisdiction).
¶ 25 For these reasons, we conclude that the Iranian custody order
was made under factual circumstances in substantial conformity
with the jurisdictional standards of the UCCJEA.
2. The Human Rights Exception Does Not Apply
¶ 26 Alternatively, the Department contends that the Iranian
custody order is not enforceable in Colorado and therefore did not
limit the juvenile court’s jurisdiction because the child custody law
11
of Iran violates fundamental principles of human rights. See
§ 14-13-104(3). We disagree.
¶ 27 The UCCJEA does not require enforcement of a foreign child
custody order if the child custody law of the foreign country violates
fundamental principles of human rights. § 14-13-104(3).
¶ 28 The UCCJEA does not define the phrase “fundamental
principles of human rights,” and the comment accompanying
section 14-13-104 expressly “takes no position on what laws
relating to child custody would violate fundamental freedoms.”
§ 14-13-104 cmt. “While the provision is a traditional one in
international agreements, it is invoked only in the most egregious
cases.” Id. In applying section 14-13-104, “the court’s scrutiny
should be on the child custody law of the foreign country and not
on other aspects of the other legal system.” Id.
¶ 29 The comment notes that Section 20 of the Hague Convention
on the Civil Aspects of International Child Abduction contains a
similar provision. Id. Courts interpreting the UCCJEA’s “escape
clause” — as the human rights exception is commonly known —
have looked to that provision for guidance. See, e.g., Coulibaly v.
Stevance, 85 N.E.3d 911, 917 (Ind. Ct. App. 2017); Toland v. Futagi,
12
40 A.3d 1051, 1058 (Md. 2012); In re Yaman, 105 A.3d 600, 611
(N.H. 2014). Construing Section 20, the United States Department
of State has explained that a country may invoke the human rights
exception “on the rare occasion that [to do otherwise] would utterly
shock the conscience of the court or offend all notions of due
process.” Hague International Child Abduction Convention; Text
and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986).
The exception “was intended to be restrictively interpreted and
applied, and . . . not to be used, for example, as a vehicle for
litigating custody on the merits or for passing judgment on the
political system of [another] country.” Id.
¶ 30 The interpretation of the escape clause is a question of first
impression in Colorado.
¶ 31 The Department argues that Iran’s child custody law violates
fundamental principles of human rights because it does not require
an evaluation of the child’s best interests or ensure that mothers
are afforded an equal opportunity to parent their children. In
particular, the Department alleges in its answer brief that Iranian
child custody law includes the following features:
13
• Fathers are considered the head of the family and have legal
custody of children even when mothers have physical
custody.
• Fathers exercise direct control over their children’s
movement, including change of residence, choice of
employment, travel abroad, and obtaining a driver’s license
or passport.
• Custody of a child automatically transfers to the father
when the child turns seven years old unless the father is
found legally unfit to care for the child.
• A Muslim mother who converts to a different religion will
lose custody of her child.
¶ 32 The Department did not invoke the human rights exception in
the juvenile court. Consequently, the juvenile court did not address
it. And on appeal, the Department does not identify any record
evidence or include any legal citation to support its characterization
of Iranian child custody law. We are unwilling to say that Iranian
child custody law violates fundamental principles of human rights
based on nothing more than the Department’s unsupported claims.
Because the record does not establish that the escape clause
14
applies, we conclude that the juvenile court was required to
recognize the Iranian child custody order.
¶ 33 In so concluding, we also note that nothing about the Iranian
child custody order in this case suggests a violation of fundamental
principles of human rights. See Coulibaly, 85 N.E.3d at 918-19 (the
UCCJEA does not limit courts to considering foreign child custody
law “only on its face, without regard to whether that law was
applied in a manner violative of fundamental human rights”).
¶ 34 Most of the Department’s escape clause arguments center
around an alleged gender preference given to fathers in Iranian
child custody determinations. (Again, these are arguments made
without citation to Iranian law.) But the Iranian child custody
order in this case does not enforce a gender presumption. Instead,
the Iranian court’s dissolution order granted full custody to mother:
The permanent custody of the common son
named [A.B-A.], 6 years old, is by [mother] and
[father] waived from himself the right of
custody. [Child support] of the son is 1000000
Rls. per month and should be paid by [father]
to [mother].
¶ 35 As to the assertion that Iranian child custody law deprives
non-Muslim mothers of custody rights, the Department does not
15
suggest that mother was in danger of losing custody based on her
religious practice. And under the circumstances of this case, in
which the juvenile court has already purported to terminate
mother’s parental rights on different grounds, we perceive no
potential prejudice to mother.
¶ 36 To support application of the escape clause in this case, the
Department relies heavily on the decision in Amin v. Bakhaty, 798
So. 2d 75 (La. 2001), in which the Louisiana Supreme Court
considered whether to cede jurisdiction to an Egyptian court under
the UCCJEA’s predecessor, the UCCJA. The Department points to
similarities between the child custody law of Egypt and Iran —
again, without citation to legal authority. The analogy to Amin fails
for three reasons.
¶ 37 First, the court in Amin reviewed whether a Louisiana trial
court had discretion to exercise jurisdiction to enter an initial child
custody order — not whether the trial court had jurisdiction to
modify a prior custody order. Id. at 77.
¶ 38 Second, the Amin court determined that it could exercise
jurisdiction because doing so served the best interests of the
subject child. Id. at 79-80 (interpreting residual jurisdiction under
16
La. Stat. Ann. § 13:1702(A)(4)(ii) (2001)). But the UCCJEA no
longer allows courts to exercise jurisdiction on this basis. An
official comment to section 14-13-201 states that the “best interest”
language of the UCCJA was eliminated because it “tended to create
confusion between the jurisdictional issue and the substantive
custody determination.” § 14-13-201 cmt. 2.
¶ 39 Third, the Amin court did not consider, as we must, whether
the foreign country’s child custody law violated fundamental
principles of human rights. Amin is therefore unhelpful in
determining whether the escape clause applies here.
¶ 40 For these reasons, we conclude that the human rights
exception did not permit the juvenile court to disregard the Iranian
child custody order in this case. Because the juvenile court had to
recognize the Iranian child custody order, it could exercise only
temporary emergency jurisdiction under the UCCJEA. The juvenile
court had no authority to enter permanent custody orders. By
entering permanent custody orders that terminated mother’s and
father’s parental rights, the juvenile court exceeded its jurisdiction.
We must therefore vacate that judgment.
C. The Absence of Diplomatic Relations with Iran is Irrelevant
17
¶ 41 The Department argues that the juvenile court’s lack of
jurisdiction to enter permanent custody orders was harmless error
because the United States has no diplomatic relations with Iran.
¶ 42 First, and most importantly, the Department cites no
authority, and we are aware of none, for the proposition that a
court’s actions in excess of its jurisdiction may be deemed
harmless. A court without jurisdiction “is deprived of any authority
to act.” People in Interest of P.K., 2015 COA 121, ¶ 9. The
Department does not explain how we could affirm a judgment that a
court lacked authority to enter.
¶ 43 Second, to the extent that the Department intended to argue
that the absence of diplomatic relations with Iran meant that the
juvenile court’s exercise of jurisdiction in this case was proper, we
disagree. According to the Department, because the United States
has no diplomatic relations with Iran, the juvenile court could not
have conferred with an Iranian court. This argument requires us to
resolve two questions: Does the absence of diplomatic relations (1)
provide an exemption from the UCCJEA as a matter of law; or,
18
alternatively, (2) excuse the court’s failure to comply with the
UCCJEA in this case? We answer both questions “no.”
¶ 44 The first question requires us to interpret the UCCJEA.
Statutory construction involves a question of law that we review de
novo. People in Interest of C.L.S., 313 P.3d 662, 665-66 (Colo. App.
2011). Our goal is to effectuate the intent of the legislature. Id. at
666. We begin by applying the plain language of the statute, giving
words and phrases their ordinary meanings. Id. If the language is
unambiguous, we do not resort to other methods of statutory
construction. Id. “Where the legislature could have chosen to
restrict the application of a statute, but chose not to, we do not read
additional restrictions into the statute.” Springer, 13 P.3d at 804.
¶ 45 Section 14-13-104 expressly provides two exceptions to the
rule that Colorado courts must treat a foreign country as if it were a
state of the United States for purposes of determining jurisdiction
under the UCCJEA. The exceptions do not include an exemption
for a foreign country that has no diplomatic relations with the
United States. We will not read such an exception into the statute.
See Springer, 13 P.3d at 804. Consequently, the absence of
diplomatic relations between Iran and the United States does
19
nothing to alter the juvenile court’s duty to confer with the Iranian
court that issued the custody order.
¶ 46 Nor does the lack of diplomatic relations make it impossible for
the juvenile court to attempt to fulfill this duty in this case. The
record does not support the Department’s assertion that the
juvenile court had no means of contacting the Iranian court.
Instead, the record shows only that the juvenile court did not
recognize its duty to confer and, as a result, made no effort to do so.
The Department’s speculation that such efforts would have failed is
just that: speculation. Such speculation provides no basis to
conclude that the court’s error was harmless.
¶ 47 In the end, because the juvenile court lacked subject matter
jurisdiction to terminate either parent’s parental rights, we vacate
the judgment of termination.
III. Father Is Entitled to Notice and An Opportunity
to Be Heard on Remand
A. The Juvenile Court Erred When It Allowed
Service by Publication
¶ 48 Father contends that the juvenile court erred when it granted
the Department’s motion to serve him by publication in Adams
County knowing that he was in Iran. We agree.
20
¶ 49 We review the constitutional sufficiency of service by
publication de novo. Synan v. Haya, 15 P.3d 1117, 1119 (Colo.
App. 2000).
¶ 50 Due process requires, at a minimum, that a parent receive
adequate notice of a dependency and neglect proceeding and an
opportunity to be heard. People in Interest of M.M., 726 P.2d 1108,
1115 (Colo. 1986); Synan, 15 P.3d at 1119. Notice must be
reasonably calculated to apprise parents of the pendency of an
action and afford them an opportunity to present objections. In re
C.L.S., 252 P.3d 556, 559 (Colo. App. 2011). And, when
termination is sought, “due process requires that a parent be
provided with adequate notice of a termination hearing and an
opportunity to protect [his or] her interests at the hearing itself.”
M.M., 726 P.2d at 1115.
¶ 51 Section 19-3-503(8)(b), C.R.S. 2018, authorizes service by
publication in dependency and neglect actions when a parent has
no residence in Colorado and his or her place of residence is
unknown. C.R.C.P. 4(g) provides that a motion for service by
publication shall include the following information:
• the facts authorizing service by publication;
21
• the efforts, if any, that have been made to obtain personal
service; and
• the address, or last known address, of the person to be
served or a statement that the address and last known
address are unknown.
The motion must establish that the party seeking service by
publication exercised due diligence to obtain personal service or
that efforts to do so would have been to no avail. C.R.C.P. 4(g).
¶ 52 Even when the person to be served cannot be located, service
by publication may still not be constitutionally sufficient if other
means of service are more likely to afford actual notice. See Synan,
15 P.3d at 1120. For example, if the person’s identity and
something of his or her whereabouts are known, service by
publication alone is unlikely to pass constitutional muster. Id.
Instead, when “some evidence indicates the whereabouts of [an]
absent party, any form of substituted service authorized by the trial
court must have a reasonable chance of giving that party actual
notice of the proceeding.” Id. (publication in Denver-area
newspaper did not satisfy due process when evidence indicated the
defendant was in Japan).
22
¶ 53 The Department submitted an affidavit in support of the
motion for publication. The affidavit averred that it “state[d] in
detail all of the efforts made by [the Department] to procure
personal service” on father. But it did not describe any efforts to
locate father or make contact with him. Instead, the affidavit stated
that father was in Iran, the caseworker was unable to contact him
or his family, and the caseworker knew of no source of information
to assist the Department in providing personal service. The
affidavit also stated, in conclusory fashion, that the Department
had exercised due diligence in attempting to locate father.
¶ 54 Further, while mother could presumably have provided the
address at which she and father had previously resided together,
the affidavit stated that father’s last known address was unknown.
And, although plainly incorrect, the affidavit stated that the actual
identity of the child’s biological father was unknown.
¶ 55 The juvenile court granted the Department’s motion to serve
father by publication in an Adams County-area newspaper. But the
evidence before the court did not establish what, if any, efforts the
Department had made to locate father. See C.R.C.P. 4(g). And the
evidence indicated that father was in Iran, but it did not establish
23
whether the Department had attempted to provide personal service
by any means that would likely result in father receiving actual
notice. See Synan, 15 P.3d at 1120.
¶ 56 Thus, we conclude that the juvenile court erred when it
allowed the Department to serve father by publication.
B. The Department’s Later Efforts and Contact
with Father Did Not Cure the Juvenile Court’s Error
¶ 57 The Department purported to serve father by publication in
August 2017, and the juvenile court adjudicated the child
dependent or neglected as to father later that month. In November
2017, the caseworker asked mother’s relatives in Iran for father’s
contact information, but they did not have it. In late December
2017, the caseworker had the child send father a message via
Facebook with her contact information and a request to contact her.
The Department’s diligent search team also contacted father
through Facebook, but the record does not indicate whether the
message was in English or Farsi, the only language that father
speaks. And the record does not establish whether either message
apprised father of the dependency and neglect proceeding or the
reason for the caseworker’s request.
24
¶ 58 In April 2018, two days before the termination hearing was
set, father’s nephew contacted the caseworker. The nephew advised
the caseworker that father had received her Facebook message and
wished to speak with her.
¶ 59 Father and the caseworker spoke the next day via telephone
with a Farsi interpreter. According to the caseworker’s report,
father said that he was very concerned about the child and wanted
to know what was happening with him. The caseworker told father
that the Department had moved to terminate parental rights, that
the child had decided he did not want to return to Iran, and that
the Department was not in favor of returning the child to Iran.
Father responded that he would not relinquish his parental rights
and would do whatever it took to fulfill his parental duties. He told
the caseworker that he wanted the child to return home and
explained that he had allowed the child to move with mother to the
United States for a better life, but it was “not ok[ay] how this case
[had] opened.” He asked how he could get involved in the case.
¶ 60 The caseworker told father she would contact him after the
termination hearing the next day. In her report, the caseworker
recommended that the juvenile court terminate father’s parental
25
rights. At the hearing, however, the Department and the guardian
ad litem moved to continue the hearing to allow time to assess the
child’s wishes.
¶ 61 The juvenile court continued the termination hearing for one
month. At the next hearing, the caseworker testified that father
had telephoned her frequently during the past month. She reported
that father said he was unable to travel to the United States
because he was “not welcome” here. And, as father notes in his
opening brief, an executive order banning most Iranian nationals
from traveling to the United States was in effect when father learned
of the proceedings. See Exec. Order No. 13,780, 82 Fed. Reg.
13,209 (Mar. 9, 2017).
¶ 62 Despite the caseworker’s extensive contact with father before
the termination hearing, the record does not indicate that she asked
him for his mailing address or that the Department otherwise
attempted personal service. Nor does the record show that father
ever received formal notice of the dependency and neglect
proceeding, a copy of the petition in dependency and neglect, a copy
of the motion for termination, or any advisement of his rights. See
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§ 19-3-503 (summons shall set forth parent’s constitutional and
legal rights).
¶ 63 To the extent father had actual notice of the proceeding
through his communication with the caseworker, such notice did
not cure the court’s error. See People in Interest of J.C.S., 169 P.3d
240, 252 (Colo. App. 2007) (Taubman, J., dissenting) (actual notice
is not a substitute for the formal requirements of service of process
in dependency and neglect proceedings). Unlike in other civil cases,
a summons in a dependency and neglect proceeding must advise
respondent parents of their rights, including the right to counsel,
and explain that the termination of the parent-child relationship is
a possible remedy under the proceeding. § 19-3-503(1). The record
does not indicate that the caseworker provided any of this
information to father.
¶ 64 On remand, the juvenile court shall order the Department to
serve father with the petition in dependency and neglect in
accordance with section 19-3-503.
C. Father’s Remaining Contentions
¶ 65 Because we vacate the termination judgment, we need not
address father’s contentions that the juvenile court violated his
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right to due process by (1) failing to appoint counsel to represent
him and (2) terminating his parental rights on the ground of
abandonment without requiring the Department to show what
efforts it had made to locate him. We note, however, that the
juvenile court must ensure that father has a meaningful
opportunity to participate in the proceedings, including
representation by court-appointed counsel if appropriate. See
§§ 19-1-105, 19-3-202(1), C.R.S. 2018.
IV. Conclusion
¶ 66 The judgment terminating mother’s and father’s parental
rights is vacated, and the case is remanded for further proceedings.
On remand, the juvenile court shall provide notice of the
dependency and neglect proceeding to father in accordance with
section 19-3-503.
¶ 67 The juvenile court shall limit the duration and scope of its
temporary emergency jurisdiction consistent with section
14-13-204. The juvenile court shall immediately communicate with
the Iranian court on the record in accordance with sections
14-13-204(4) and 14-13-110.
JUDGE DAILEY and JUDGE CASEBOLT concur.
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