DocketNumber： No. 06CA1868
Judges： Roman, Taubman, Webb
Filed Date： 7/12/2007
Status： Precedential
Modified Date： 11/13/2024
dissenting.
In this dependency and neglect proceeding, I believe that it is not proper to dismiss the appeal of C.C. (mother) for lack of standing. Further, I would address the merits of mother's constitutional challenge to the statute authorizing service by a single publica
More specifically, with respect to standing, I conclude that dismissing this appeal because of mother's lack of standing is contrary to Colorado Supreme Court case law holding that traditional standing principles do not apply to defendants in civil cases. Further, the supreme court's recent opinion in Moody v. People, 159 P.3d 611 (Colo.2007), counsels against the court of appeals' addressing the issue of standing sua sponte and either dismissing a case based on lack of standing or remanding to the trial court for further factual determination on that issue. Even if I am mistaken in my assessment that Moody applies to civil cases as well as eriminal cases, I conclude, based on the limited ree-ord, that mother has demonstrated standing under Colorado's liberal approach to standing.
Further, I conclude that the federal cases denying standing based upon the theory of "self-inflicted injury" have no application under Colorado's standing jurisprudence and, in any event, that rule would not preclude standing under the cireumstances presented here.
On the merits, I would conclude that mother's constitutional right to reasonable notice was denied because the Huerfano County Department of Social Services (department) concedes that the single published notice in this case was not reasonably caleu-lated to provide mother with actual notice of the dependency and neglect proceedings and because the trial court's finding that the department exercised "due diligence" in attempting to serve mother personally is not the standard by which to judge whether the department violated mother's constitutional right to adequate notice of these proceedings.
I. Background
The following facts supplement those contained in the majority's opinion and help place the issues here in proper perspective.
A petition in dependency and neglect was filed on July 8, 2004. Four days later, the court granted the department's motion to serve mother by publication because her whereabouts were unknown. On August 5, a summons was published in small type in a Huerfano County newspaper with a return of service of August 25. That court-approved summons included a nine-point statement of a parent's legal rights and privileges in a dependency and neglect proceeding, including (1) the right to an attorney and to have an attorney appointed at state expense if the parent is indigent; (2) the right to have an appointed expert witness at state expense; (3) the right to a jury trial; (4) upon the filing of a petition, the right to receive a summons; (5) the right to cross-examine witnesses; and (6) the right to request a rehearing or a new trial,. Mother never learned of this published summons.
Mother failed to appear in court on the return date stated in the summons, and the court found her in default. She later testified at the termination of parental rights hearing that she had secreted herself from the law for fear of further incarceration because of pending criminal charges. On November 2, 2004, the court adjudicated J.C.S. dependent or neglected based upon mother's default.
In April 2005, mother wrote a letter to the caseworker, stating that she was in jail but would be released soon and expressing an interest in regaining custody of J.C.S. Although the department sent her a letter notifying her of an upcoming review of J.C.S.'s foster placement and asking that she complete a questionnaire, it did not serve her personally.
On January 10, 2006, the department filed a motion for termination of the parent-child legal relationship, and, on February 27, 2006, the court authorized notice by publication of the termination hearing pursuant to § 19-3-602(2), C.R.S.2006.
Mother was advised for the first time of her legal rights in the dependency and neglect proceeding on May 3, 2006, when she was transported to court from the Pueblo County Jail. She requested an attorney, and one was appointed for her at that time.
Holding the statute to be constitutional, the court made extensive findings, including that the department had exercised due dili-genee under $ 19-3-508(8)(b) in attempting to serve mother.
Furthermore, the court found that mother had been sufficiently advised of her rights in the dependency and neglect proceeding:
[AJ]lthough it is not certainly a completely adequate substitute for court advisement . of her rights, the mother as early as April 18, 2004, signed a safety plan where she was in the custody of I believe at that time Las Animas County jail.
The mother acknowledged in writing April 13, 2004, part of her safety plan in paragraph 5, that once Huerfano County department of social services believes [mother can] provide [a] safe and stable home for [the child], he will return to her home. If this does not happen within 90 days, the department will be filing a dependency and neglect petition with the Court.
The caseworker indicated she explained to [mother], in layman's terms what that involved. And certainly in terms of the as applied [constitutional] argument, mother's been aware of these court proceedings for the past 2 years, she's been aware the department has had custody of her child.
Although it acknowledged mother had not seen the published summons, the court found mother had been notified of the shelter hearing by the caseworker the same day it occurred and that mother was aware that the department had been involved in her child's welfare for quite some time. It also found that mother had been living in Pueblo a majority of the time, although she lived briefly in Huerfano and Las Animas Counties.
The court concluded that § 19-38-508(8)(b) was not unconstitutional on its face or as applied to mother. It also entered a judgment terminating mother's parental rights. Mother challenges these rulings on appeal.
IIL. Standing
A. Standing Principles Do Not Apply to Defendants
In my view, it is improper to dismiss mother's appeal for lack of standing because "traditional standing principles do not apply to defendants." Mortgage Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1182 (Colo.2003). As the Colorado Supreme Court has explained:
[Olnce the plaintiff has established standing and the defendants have been haled into court by the plaintiff, the only role for the defendants is to defend against the suit. The defendants' affirmative defense does not constitute an independent cause of action, but it is a defensive elaim only. Therefore, the rules for determining whether a plaintiff has standing are simply inapplicable to the defendants in this case.
People ex rel. Simpson v. Highland Irrigation Co., 893 P.2d 122, 127 (Colo.1995). The supreme court's holding that traditional standing principles do not apply to defendants in civil cases does not turn on whether the defendant raises an affirmative defense. Neither an affirmative defense nor a motion to challenge service by publication constitutes an independent cause of action; both are defensive claims only. Moreover, nothing in Mortgage Investments Corp., supra, or People ex rel. Simpson v. Highland Irrigation, supra, excepts from their holdings challenges to the constitutionality of a statute.
This limitation makes sense because, once a lawsuit is filed against a defendant, the defendant should be free to challenge the proceedings against him or her on any appropriate grounds, and if those grounds are not meritorious, the plaintiff will ordinarily prevail.
Williams v. City & County of Denver, supra, is distinguishable because it involved a constitutional challenge to a defendant's conviction in a criminal case for violation of a Denver Municipal Code provision. In erimi-nal cases, an extensive body of case law has upheld the right of the prosecution to challenge a defendant's standing to file a motion to suppress evidence or to contend a statute is unconstitutional on the basis of vagueness or overbreadth. See Moody v. People, supra; Wayne R. LaFave, 6 Search and, Seizure: A Treatise on the Fourth Amendment § 11.3 (4th ed.2004). However, that line of cases has not been extended to permit standing challenges against defendants in civil cases. See Mortgage Invs. Corp. v. Battle Mountain Corp., supra.
Accordingly, because mother is a respondent in a civil case, her appeal should not be dismissed because of lack of standing.
I would conclude that under Moody, we should not address standing in this appeal, and that in any event, mother has standing to raise her constitutional arguments.
B. Application of Moody v. People
Standing is a threshold jurisdictional issue and, therefore, may be raised at any stage of the proceedings, including on appeal. HealthONE v. Rodriguez, 50 P.3d 879, 891 n. 5 (Colo.2002). However, there is no requirement that standing must be raised sua sponte on appeal in all cireumstances.
Reversing the opinion of a division of the court of appeals on a suppression issue, the supreme court cautioned the court of appeals against addressing standing sua sponte without a fully developed factual record. Moody v. People, supra.
The Moody court acknowledged that the court of appeals may address standing sua sponte, but limited the cireumstances in which such review is appropriate. The court also noted that in a limited number of cases, remand may be appropriate for the trial court to determine the facts necessary to rule on standing. |
Although Moody was a criminal case, the language addressing standing was not so limited in scope, and I conclude it applies equally in the civil context.
Further, even if standing could be raised here, principles of judicial restraint suggest that standing should not be raised sua sponte by the court of appeals in these circumstances.
Here, the trial court held that in light of the fact that mother secreted herself from the court between July and November 2004, the department's diligent efforts to locate her, and mother's actual knowledge of the proceedings, service of process by publication was warranted. I would not determine whether these findings were clearly erroneous because (1) they addressed the statutory requirement of due diligence for service by publication and not mother's standing to challenge the service by publication statute; (2) mother's actual knowledge of the proceedings does not substitute for service of process; and (38) even though mother was aware of the proceedings, she was not advised of her legal rights, including her legal right to counsel. j
First, the trial court made the above findings in examining whether the department was authorized to serve mother by publication. The court did not address the question of standing because the department did not raise it. Thus, it would be unfair to conclude sua sponte that mother lacks standing to challenge the constitutionality of the service by publication statute when she did not have the opportunity to demonstrate to the trial court that she satisfied the requisites for standing-injury in fact to a legally protected
Because the department did not raise standing in the trial court, mother's attorney also did not have an opportunity to develop the record in regard to that issue. See Moody v. People, supra, 159 P.3d at 616 (noting Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972), where the defendant was lulled into position of not developing facts necessary to establish standing because the state failed to raise issue of standing in the trial court); cf. HealthONE v. Rodriguez, supra (addressing standing for the first time, supreme court held plaintiff had standing to challenge statute based on undisputed fact that he would receive his judgment in periodic payments, rather than as lump sum).
Specifically, had standing been raised in the trial court, mother could have conducted discovery and presented testimony as to (1) when she first received notice of her legal rights; (2) whether she would have exercised her right to counsel immediately if she had been personally served earlier in the proceedings; (8) what additional efforts, if any, the department could have made to contact her, both at the outset of the proceeding and later, when the department learned where she was incarcerated; (4) when the department knew or should have known she was incarcerated; and (5) what other steps, such as participation in the treatment plan, she would have taken had she been personally served earlier in the proceedings.
Although there was a hearing on July 12, 2004 to determine whether the department had exercised due diligence in attempting to contact mother, the record on appeal does not include (1) the department's oral or written motion for service by publication and the basis for the trial court's order granting that motion; or (2) the transcript of the July 12 hearing in which the court apparently made oral findings supporting service by publication. Any fault for failing to designate the July 12 hearing transcript record on appeal should not be attributed to mother, because she could not have known that standing would be raised on appeal sua sponte. In any event, although the designation of record encompassed all motions, the record does not contain any written motion for service by publication, in apparent violation of § 19-3-503(8)(b) and C.R.C.P. 4(g). See C.RCP. 4(g) (requiring filing of verified motion for an order requesting service by publication; motion must describe efforts to obtain personal service and must provide last known address of person to be served).
Second, the department argues mother did not suffer any prejudice because she had actual notice of the proceeding due to her telephone conversation with the caseworker on the day of the shelter hearing. However, even if the caseworker had apprised mother of the shelter hearing and her rights in the later filed dependency and neglect proceeding, which the caseworker conceded she did not, actual notice is not a substitute for the formal requirements of service of process. See In Interest of S.R., 34 Kan.App.2d 202, 116 P.3d 43, 46 (2005)(noting, in a proceeding for termination of parental rights, "actual notice does not cure jurisdictional defects in the issuance and service of process"); see also In re Marriage of McDaniel, 54 Or.App. 288, 634 P.2d 822, 823 (1981) (holding fact that father may have had actual knowledge of custody proceedings and was able to appear was insufficient to confer personal jurisdiction without service of process).
In any event, the shelter hearing, authorized by § 19-8-401, et seq., C.R.98.2006, is separate from a dependency and neglect petition, see § 19-3-501, et seq., C.R.8.2006, which may lead to a termination of parental rights. Thus, notice of a shelter hearing is not the equivalent of notice of the filing of a dependency and neglect petition.
Third, mother was not formally advised of her legal rights in the dependency and ne-gleet proceeding, as is required by § 19-3-503(1), C.R.S.2006. Unlike in other civil cases governed by C.R.C.P. 4(g), respondent parents in dependency and neglect proceedings must be advised, "when appropriate," of their constitutional and legal rights, including the right to have an attorney present at the hearing on the petition. Section 19-8-503(1).
Because the trial court's findings did not address these three factors, its findings that
I acknowledge the imperative to resolve this case expeditiously. People in Interest of A.J., 143 P.3d 1143, 1146 (Colo.App.2006). It would further delay this already prolonged litigation if we were to remand this case to develop a factual record with respect to standing, as Moody indicated is appropriate in limited cireumstances. 'However, here, as in Moody, the significant period (three years) since the events on which a determination of standing must be based, indicates that remand would be inappropriate. Accordingly, based on Moody, the undeveloped factual record and the need to determine expeditiously the issue of termination of J.C.S.'s parental rights militate against a sua sponte inquiry into standing.
Nevertheless, in the event that I am mistaken about the application of Moody to civil cases, I would consider whether mother has standing to bring this challenge based on the supplemental briefs and the limited record and would conclude she has standing.
C. Elements of Standing
A claimant has standing to challenge the constitutionality of a statute if he or she suffered (1) an actual injury (2) to a legally protected interest. Although much of the standard is a prudential exercise of judicial restraint, parties in Colorado benefit from a relatively broad definition of standing. Ainscough v. Owens, supra, 90 P.8d at 855. Deprivations of many legally created rights, such as the deprivation of civil liberties, although intangible, are nevertheless injuries in fact. Ainscough v. Owens, supra, 90 P.3d at 856. Legally protected interests encompass all rights arising from constitutions, statutes, and case law. Ainscough v. Owens, supra, 90 P.3d at 856.
Here, mother argues she lost legal custody of her child, and eventually her parental rights, as a result of not being personally served or having actual notice of the published summons in the dependency and neglect proceeding. I agree that mother's lack of notice constituted injury in fact, because the failure to provide adequate notice meant that she was unaware of her legal rights, including her right to counsel, and the termination of parental rights is a real and tangible injury. L.L. v. People, 10 P.3d 1271, 1275-76 (Colo.2000)(quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000), which recognized "the interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized by this Court").
Further, the right to procedural due process is a legally protected interest. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978). Thus, I conclude mother had a legally protected interest in receiving adequate notice of the dependency and neglect proceeding as required by statute and procedural due process.
Because the trial court adjudicated J.C.S. dependent and neglected even though mother was not present at the adjudicatory hearing in October 2004, mother has asserted an actual injury to a legally protected interest and I conclude that she has standing to bring this appeal.
People in Interest of R.J.A., 994 P.2d 470, 473 (Colo.App.1999), relied on by the department, is inapposite. In that case, a divided division of this court determined that the mother lacked standing to make an equal protection challenge to a statute which permitted counties to impose different amounts of time to comply with a treatment plan. There, the mother did not establish that she would have been able to comply with the treatment plan even if she had been accorded a longer period to comply. See People in Interest of R.J.A., supra, 994 P.2d at 473. In contrast, here, mother alleges she was not notified of her rights until shortly before the termination hearing and that such late notice prevented her from adequately protecting her interest in maintaining her parental rights.
D. "Self-Inflicted Injury"
In my view, applying the federal line of "gelf-inflicted injury" cases as a basis for
The "self-inflicted injury" line of cases stems from an interpretation of step two of a three-part federal standing test. That step requires a causal connection between the injury and the conduct complained of. See St. Pierre v. Dyer, 208 F.3d 394, 401-02 (2d Cir.2000). In contrast, in the seminal Colorado standing case, Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977), the supreme court. specifically rejected the three-pronged federal test and determined that, in Colorado, the standing inquiry is limited to whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions. The supreme court held the federal standing requirement of causation "is properly reserved for the trier of fact and is the primary question to be resolved on the merits." Wimberly v. Ettenberg, supra, 194 Colo. at 168, 570 P.2d at 539.
Furthermore, in Colorado, parties to lawsuits continue to benefit from a relatively broad definition of standing based on the two-part test set forth in Wimberly v. Ettenberg, supra. See, e.g., Garhart v. Columbia/HealthONE, L.L.C,, 95 P.3d 571, 579 (Colo.2004). Neither in Romer v. Colorado General Assembly, 810 P.2d 215, 218 (Colo.1991), nor in any other case, has the supreme court retreated from its holding in Wimberly that the federal standing requirement of causation does not apply in Colorado. In Rom-er, the supreme court relied on Wimberly in stating that "(injury in fact may be proven by showing that 'the action complained of has caused or has threatened to cause injury." Romer v. Colo. Gen. Assembly, supra, 810 P.2d at 218 (quoting Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo.1985)). I perceive no basis for concluding that the Colorado Supreme Court has sub silentio reverted to the federal causation requirement of standing which it had specifically rejected in Wimberly.
Consequently, it is inconsistent with Colorado case law on standing to transmute federal case law interpreting the causation prong of standing and construe it as applicable to the injury in fact requirement under Colorado law. Accordingly, causation is properly determined by analyzing an argu- | ment's merits and not during the determination of standing.
In any event, as one federal court noted:
[Standing is not defeated merely because the plaintiff has in some sense contributed to his own injury. Standing is defeated only if it is concluded that the injury is so completely due to the plaintiff's own fault as to break the causal chain. So long as the defendants have engaged in conduct that may have contributed to causing the injury, it would be better to recognize standing.
St. Pierre v. Dyer, supra, 208 F.3d at 401 (citation omitted) (quoting 183 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 8531.5, at 457 (2d ed.1984)).
Here, mother may be partly at fault for hiding from the authorities because of her fear of reincarceration. However, the failure of the department to provide her with actual notice is partly attributable to the department, which never advised mother of her legal rights and did not personally serve her at least by April 2005, when it knew that she was confined in the Pueblo County Jail.
E. Prejudice
The department, nonetheless, contends that People in Interest of N.A.T., 134 P.3d 535 (Colo.App.2006), requires that a claimant show harm or prejudice to obtain relief on an as applied due process challenge. I conclude that even if such a showing is required, see People in Interest of N.A.T., supra, 134 P.3d at 540 (Roman, J., dissenting), that showing has been made here.
Mother contacted the caseworker on June 28 and 30, 2004, and the caseworker advised her of the shelter hearing that was to take place June 30 to determine temporary custody of J.C.S. See § 19-3-401, et seq., C.R.S. 2006 (setting forth shelter hearing procedures to determine temporary custody of children). - Although the caseworker advised mother that the department was about to file
III. Constitutionality As Applied
I further agree with mother that the trial court erred in concluding § 19-3-508(8)(b) was constitutional as applied to her because she was provided with inadequate notice of the dependency and neglect proceeding, which led to the loss of her parental rights.
Review of the trial court's assessment of the constitutionality of a statute is de novo. E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo.2004).
A person challenging the constitutionality of a statute as applied must show that there is a reasonable probability that the statute is unconstitutional. See Sanger v. Dennis, 148 P.3d 404, 410-11 (Colo.App.2006) (contrasting burdens of proof in as applied challenge with burden of proof in facial challenge which requires proof beyond a reasonable doubt).
Procedural due process requires, among other things, "notice reasonably calculated, under all the cireumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). "[Nlotice by publication is adequate only where 'it is not reasonably possible or practicable to give more adequate warning." " Jones v. Flowers, 547 U.S. 220, 236, 126 S.Ct. 1708, 1720, 164 L.Ed.2d 415 (2006)(quoting Mullane, supra, 389 U.S. at 317, 70 S.Ct. at 658). The Supreme Court also has recognized that "'[elhance alone' brings a person's attention to 'an advertisement in small type inserted in the back pages of a newspaper.!" Jones v. Flowers, supra, 547 U.S. at 236, 126 S.Ct. at 1720 (quoting Mullane, supra, 339 U.S. at 315, 70 S.Ct. at 658). Indeed, the department, in its response to the petition on appeal, acknowledged that even though service by publication has been judicially approved, "the Courts have recognized that service by publication is an indirect and probably a futile means of notification."
Section 19-83-5038 provides for the content and service by publication of a summons in a termination proceeding:
(1) After a petition [in dependency and neglect] has been filed, the court shall promptly issue a summons reciting briefly the substance of the petition. The gum-mons shall also contain a statement, when appropriate, that the termination of the parent-child legal relationship is a possible remedy under the proceedings and shall set forth the constitutional and legal rights of the child, his parents, guardian, or legal custodian, or any other respondent or special respondent, including the right to have an attorney present at the hearing on the petition.
(3) The summons shall require the person or persons having the physical custody of the child to appear....
(8) If the respondent required to be summoned under subsection (3) of this section cannot be found within the state, the fact of the child's presence in the state shall confer jurisdiction on the court as to any absent respondent if due notice has been given in the following manner:
(b) When the person to be served has no residence within Colorado and his place of residence is not known or when he cannot be found within the state after due diligence, service may be by publication pursuant to rule 4(h) [now 4(g) ] of the Colorado rules of civil procedure; except that service may be by a single publication and must be completed not less than five days prior to the time set for a hearing concerning a dependent or neglected child.
Cf. C.R.C.P. 4(g) (allowing publication notice in limited cireumstances and requiring publication five times).
In Jones v. Flowers, those steps included sending a letter by regular mail as opposed to certified mail, because regular mail could be retrieved even if the intended recipient were not at home at the time of delivery; posting notice on the front door; and addressing the mail to "occupant." However, the Court noted that "[it is not [the responsibility of the court] to prescribe the form of service that the [government] should adopt." Jones v. Flowers, supra, 547 U.S. at 234, 126 S.Ct. at 1718 (quoting Greene v. Lindsey, 456 U.S. 444, 455 n. 9, 102 S.Ct. 1874, 1880, 72 L.Ed.2d 249 (1982)).
Therefore, under the Jones principles, even if the department complied with the statutory requirements for service by publication, mother still was denied her right to procedural due process if the department did not take steps reasonably calculated to apprise her of the pendency of the dependency and neglect proceeding, her right to object, and her right to obtain appointed counsel if she was indigent.
I recognize that mother argued in her supplemental brief on the standing issue that the only relevant period was the time from the filing of the dependency and neglect petition to the date of the adjudicatory order. However, that statement does not preclude consideration of the cireumstances following the adjudicatory hearing to determine whether her constitutional rights as applied were violated. I also note that mother's constitutional challenge to the publication statute in the trial court did not limit the court's consideration to that specific period.
Here, the trial court authorized the department to provide service of process by publication. It is undisputed that the service of process by publication did not provide mother with actual notice of the dependency and neglect proceeding, that mother did not waive formal notice requirements pursuant to § 19-3-503(2), C.R.S.2006, and that she was in Pueblo when the notice was published in a Huerfano County newspaper.
At the termination hearing, mother testified that after her release from jail on June 10, 2004, she was arrested and served three months in jail during 2004. The caseworker testified that prior to the termination hearing she checked the statewide computer database (ICON), and it appeared that mother was not incarcerated between June 10, 2004, and January 24, 2005. She testified that she did not know mother's whereabouts until April 11, 2005.
Thus, mother was not in contact with the caseworker between June 10, 2004, and April 11, 2005. Nevertheless, there were several reasonable steps the department could have taken during that period to provide mother with constitutionally adequate notice of the proceeding. See Jones v. Flowers, supra. The caseworker could have consulted the ICON database to determine that mother was in custody on January 24, 2005. The caseworker also could have called the probation department or the jail, as she had done to determine the whereabouts of the child's father, and the caseworker could have sent a notice to mother at the Pueblo County Jail, as she previously did when she did not know mother's whereabouts.
Furthermore, the trial court's shelter order permitted the department to use the Federal Parent Locator Service (FPLS) to determine mother's whereabouts. The FPLS provides access to numerous federal
Finally, in April 2005, when mother reestablished contact with the department from the Pueblo County Jail, the department unquestionably could have served mother personally. In addition to sending mother a notice of the foster care review and the questionnaire, the department could have personally served her with the summons and petition for this dependency and neglect proceeding with the concomitant advisement of her legal rights Although such service would have followed the adjudication of J.C.S. as dependent and neglected, it would have been accomplished one full year before the department filed a petition to terminate parental rights. Personal service at that time was reasonable and practicable because the department knew that mother was incarcerated in the Pueblo County Jail. Therefore, if mother had been personally served in April 2005, it is reasonable to assume she would have asked for a lawyer and would have had a significant period of time to attempt to comply with the treatment plan.
Contrary to the department's contention, I would also conclude for two reasons that mother's notice of the safety plan and shelter hearing did not provide her with adequate notice of the subsequently filed dependency and neglect proceeding.
First, as noted, the safety plan is part of a legal proceeding that is separate from a dependency and neglect petition. Although the safety plan mentions a potential for a future dependency and neglect proceeding, its purpose is not to provide notice of a dependency and neglect proceeding. Second, the caseworker admitted that she did not advise mother of her legal rights in a dependency and neglect proceeding during the telephone conversation with her on the day of the shelter hearing. Therefore, mother was not advised of her right to an attorney or any of the rights and privileges stated in the published summons.
In summary, because service by publication here was authorized despite the department's awareness of mother's temporary jail residence during periods of the dependency and neglect proceeding, I would hold the publication notice was insufficient to satisfy mother's right to procedural due process. Even if the service by publication here complied with the statute, I conclude that procedural due process required the department to make reasonable efforts to locate mother and to serve her personally, especially when it undisputedly knew her location in April 2005. Because mother was not personally served and did not receive actual notice of the published summons, she was unaware of her statutory and constitutional rights, as well as her obligations in the proceeding.
The importance of actual notice in a dependency and neglect proceeding cannot be underestimated. It is reasonable to conclude that had mother received actual notice, she would have requested the appointment of counsel to represent her, the very step she took when she received notice of her right to counsel at the first date scheduled for the termination of parental rights hearing. With the advice of counsel, mother would have been able to better understand the importance of participating in her treatment plan, rather than seeking to avoid the reach of the court because of her pending criminal problems.
Therefore, I would conclude that § 19-3-503(8)(b), as applied, denied mother her constitutional due process right to notice of the dependency and neglect proceeding.
Because I would determine that § 19-8-503(8)(b) is unconstitutional as applied in this