People ex rel. E.W.

508 P.3d 256

2022 COA 12

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF E.W., a Child, and Concerning H.W. and R.W., Appellants.

Court of Appeals No. 20CA1724

Colorado Court of Appeals, Division II.

Announced January 13, 2022

Rehearing Granted January 13, 2022

Diana K. May, County Attorney, Melanie Douglas, Special Assistant County Attorney, Colorado Springs, Colorado, for Appellee

Alison K. Bettenberg, Denver, Guardian Ad Litem

James West, Office of Respondent Parents’ Counsel, Longmont, Colorado for Appellant, H.W.

Kristofr P. Morgan, The Morgan Law Office, Colorado Springs, Colorado, for Appellant, R.W.

Opinion by JUDGE WELLING

¶ 1 In this dependency and neglect case, H.W. (mother) and R.W. (father) appeal the judgment terminating their parent-child legal relationship with their child, E.W. During the pendency of the dependency and neglect case (and more than six months before the termination hearing), the parents and the child separately relocated from Colorado to Montana. On appeal, the parents contend that this deprived the juvenile court of jurisdiction to terminate their parental rights, as Colorado was no longer the child's home state under the Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA), § 14-13-101 to - 403, C.R.S. 2021. Applying the principles set forth in People in Interest of S.A.G. , 2021 CO 38, 487 P.3d 677, and People in Interest of B.H. , 2021 CO 39, 488 P.3d 1026, to the UCCJEA and the jurisdictional provisions of the Children's Code, we conclude that the juvenile court had jurisdiction to enter the termination judgment.

¶ 2 Because we also reject mother's and father's other challenges to the juvenile court's termination judgment, we affirm.

I. Background

¶ 3 In September 2018, the El Paso County Department of Human Services (Department) filed a petition in dependency and neglect regarding then-nine-month-old E.W. (the child). The Department alleged that the police had responded to a domestic violence incident between the parents, the home was unsanitary, the child had been taken to the hospital and diagnosed with failure to thrive, the parents had a history of substance abuse and mental health problems, and mother's parental rights to two older children had been previously terminated in Montana.

¶ 4 The juvenile court adjudicated the child dependent and neglected and adopted treatment plans for the parents.

¶ 5 In July 2019, the child was placed with family-like kin providers in Montana through an Interstate Compact on the Placement of Children. In October 2019, the parents moved to Montana.

¶ 6 In February 2020, the Department filed a motion to terminate the parents’ rights.

¶ 7 In July 2020, following a hearing, the juvenile court entered judgment terminating the parents’ rights.

II. Subject Matter Jurisdiction

¶ 8 Mother and father contend that the termination judgment must be reversed because the juvenile court lost jurisdiction under the UCCJEA.¹

¶ 9 We review de novo whether the juvenile court had subject matter jurisdiction under the UCCJEA, which applies in dependency and neglect proceedings. People in Interest of M.S. , 2017 COA 60, ¶¶ 11-12, 14, 413 P.3d 287. Because a challenge to the UCCJEA jurisdiction is a challenge to the court's subject matter jurisdiction, the issue may be raised at any time, including for the first time on appeal. See B.H. , ¶ 27.

¶ 10 "The primary aim of the UCCJEA is to prevent competing and conflicting custody orders by courts in different jurisdictions" and to "avoid jurisdictional competition over child-custody matters in an increasingly mobile society." People in Interest of M.M.V. , 2020 COA 94, ¶ 17, 469 P.3d 556. "To effectuate this purpose, [the UCCJEA] establishes a comprehensive framework 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." Id.

¶ 11 "The UCCJEA covers a wide variety of child-custody matters, defined as child-custody determinations and child-custody proceedings." Id. ; see § 14-13-102(3) - (4), C.R.S. 2021. A court has jurisdiction to make an initial child-custody determination if, as relevant here, the state is the home state of the child on the date of the commencement of the proceeding. § 14-13-201(1)(a), C.R.S. 2021. As pertinent here, the home state is defined as the state in which the child has lived with a parent for a least 182 consecutive days immediately before the commencement of the proceeding. § 14-13-102(7)(a). Commencement is defined as "the filing of the first pleading in a proceeding." § 14-13-102(5).

¶ 12 Under the UCCJEA, the court that makes an initial child-custody determination generally retains exclusive, continuing jurisdiction. § 14-13-202, C.R.S. 2021; M.S. , ¶ 15. The UCCJEA must be read in conjunction with the court's general jurisdiction. See S.A.G. , ¶¶ 22-23. Thus, we turn to the juvenile court's jurisdiction to preside over and enter orders in a dependency and neglect proceeding.

¶ 13 The Children's Code gives a juvenile court exclusive jurisdiction concerning any child who is dependent and neglected. § 19-1-104(1)(b), C.R.S. 2021. And it provides that a court has continuing jurisdiction over a child adjudicated dependent and neglected until the child "becomes eighteen and one-half years of age unless earlier terminated by court order." § 19-3-205(1), C.R.S. 2021 (amended effective July 7, 2021, to reduce age from twenty-one years to eighteen and one-half years); see also People in Interest of E.M. , 2016 COA 38M, ¶ 20, 417 P.3d 843 ("[T]he juvenile court presiding over the dependency and neglect case maintains continuing, exclusive jurisdiction over the adjudicated child, and in most circumstances his or her parents, as long as the case continues."), aff'd sub nom. People in Interest of L.M. , 2018 CO 34, ¶ 20, 416 P.3d 875.

¶ 14 The court that made an initial child-custody determination may, however, lose exclusive, continuing jurisdiction. § 14-13-202(1) ; see Brandt v. Brandt , 2012 CO 3, ¶¶ 25-28, 268 P.3d 406 (discussing how the issuing court may lose exclusive, continuing jurisdiction to another state). As pertinent here, the court in the issuing state or the court of another state may determine that the issuing state has been divested of jurisdiction because the child and no parent presently reside in the issuing state. § 14-13-202(1)(b) ; see Brandt , ¶¶ 26, 28.

¶ 15 The parents don't dispute that Colorado was the child's home state when the dependency and neglect case was initiated and that the Colorado court had jurisdiction to make an initial child-custody determination. This is significant because home state jurisdiction is the preferred basis for establishing initial child-custody jurisdiction. See Madrone v. Madrone , 2012 CO 70, ¶ 11, 290 P.3d 478. Rather, they argue that the Colorado court lost subject matter jurisdiction before the Department sought to terminate their parental rights. More specifically, mother asserts that after the child had been in Montana for six months, Montana became the child's home state under the UCCJEA. Father contends that a termination is a new child-custody proceeding and a modification of a child-custody determination under the UCCJEA. The crux of both parents’ arguments is that the Colorado court had to re-establish its jurisdiction before hearing and ruling on the termination motion, and, having failed to do so, the court lacked jurisdiction to enter the termination judgment.

¶ 16 We acknowledge that the parents and the child didn't reside in Colorado at the time of the termination hearing and that these facts, taken together and looked at in isolation, appear, at first glance, to provide fertile ground for arguing that the Colorado court had lost exclusive, continuing jurisdiction under the UCCJEA. See § 14-13-202(1)(b). However, when we consider section 19-3-205(1), the purpose of the UCCJEA, and other facts in this case, we must conclude that the Colorado court retained jurisdiction to enter the termination judgment.

¶ 17 To be sure, the Colorado court had jurisdiction throughout the dependency and neglect proceeding, including the termination stage, under section 19-3-205(1). Although the Colorado court could have lost or ceded continuing jurisdiction under the UCCJEA despite section 19-3-205(1), it could not do so merely because the statutory factors under section 14-13-202(1)(b) had been met. This is because losing continuing jurisdiction also requires another state to attempt to acquire jurisdiction from the Colorado court. Such a requirement is consistent with the entire statutory scheme and ensures that parents are not incentivized to move out of state to avoid termination of their parental rights and that "another more appropriate forum exist[s] to resolve the dispute." Kar v. Kar , 132 Nev. 636, 378 P.3d 1204, 1204 (2016) ; see Brandt , ¶ 27.

¶ 18 Here, there were no competing or conflicting child-custody proceedings or determinations by courts in different jurisdictions. Although a Montana court had initiated a dependency and neglect proceeding with regard to the parents’ later-born child, it hadn't sought jurisdiction, temporary or otherwise, over E.W. See § 14-13-204(1), C.R.S. 2021 (A court "has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child."). In other words, this is not a case where the Colorado court and the Montana court were trying to simultaneously exercise jurisdiction with regard to the child.

¶ 19 Moreover, our supreme court recently recognized in S.A.G. , ¶ 39 n.3, that the filing of a termination motion doesn't start a new proceeding for purposes of assessing home state jurisdiction under the UCCJEA. Therefore, termination is not a new child-custody proceeding or a modification of a child-custody determination that requires the juvenile court to re-assess its...