Peo in Interest of SL
Peo in Interest of SL
Peo in Interest of SL
Opinion
21CA0148 Peo in Interest of SL 10-07-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0148
Logan County District Court No. 19JV39
Honorable Carl S. McGuire, III, Judge
The People of the State of Colorado,
Appellee,
In the Interest of S.L., a Child,
and Concerning Z.L. and T.B., a/k/a T.M.,
Appellants.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FOX
Welling and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 7, 2021
Alan Samber, County Attorney, Kimberlee Keleher, Assistant County Attorney,
Sterling, Colorado, for Appellee
Jayme Muehlenkamp, Guardian Ad Litem
The Law Office of Michael Kovaka, Michael Kovaka, Littleton, Colorado, for
Appellant Z.L.
Amanda L. Schmitz, Office of Respondent Parents’ Counsel, Michael P. Boyce,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant T.B.
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¶ 1 T.B. (mother) and Z.L. (father) appeal the judgment
terminating their parent-child legal relationship with S.L. (the
child). We vacate the termination judgment because the record
does not demonstrate compliance with the Uniform Child-custody
Jurisdiction and Enforcement Act (UCCJEA), and we remand for the
court to make additional findings as explained here.
I. Jurisdiction Under the UCCJEA
A. Standard of Review
¶ 2 All parties acknowledge that lack of subject matter jurisdiction
can be raised for the first time on appeal. People in Interest of M.S.,
¶ 3 We review de novo whether the juvenile court had subject
matter jurisdiction under the UCCJEA, which applies in
B. General Law
¶ 4 The UCCJEA seeks 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.” In re M.M.V., 2020 COA 94, ¶ 17. “To
effectuate this purpose, [the UCCJEA] establishes a comprehensive
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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. The UCCJEA covers a
variety of child-custody determinations and child-custody
proceedings. See § 14-13-102(3)-(4), C.R.S. 2020.
C. Temporary Emergency Jurisdiction
¶ 5 Mother argues that the juvenile court did not have temporary
emergency jurisdiction because an emergency no longer existed at
the time of the shelter hearing. Specifically, she asserts that family
members were willing to help her care for the child in Utah. We
discern no basis for reversal.
¶ 6 Section 14-13-204(1), C.R.S. 2020, authorizes a Colorado
court to exercise temporary emergency jurisdiction if (1) the child is
present in the state; and (2) the exercise of jurisdiction is
“necessary in an emergency to protect the child” from
“mistreatment or abuse.” Id.; see also People in Interest of C.L.T.,
2017 COA 119, ¶ 17.
¶ 7 We conclude that the juvenile court had temporary emergency
jurisdiction at the time of the shelter hearing. The child was
present in Colorado. And, based on the concerns presented at the
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shelter hearing and in the petition, the court could have reasonably
concluded that the child was being subjected to mistreatment or
abuse. Namely, the Department alleged concerns about substance
abuse, mental health, and homelessness. The Department
presented evidence that mother and the child were traveling from
Nebraska to Utah and had stopped in Colorado. While in Colorado,
mother and the child had gone to the hospital because mother had
concerns that the child had a broken rib and rash. The child was
wearing clothes that were too small, mother appeared to be under
the influence of drugs, and she indicated that she could not care for
the child. Further, mother and the child had recently been involved
with social services in Nebraska and mother had regained custody
of the child approximately one month before traveling to Colorado.
D. Initial Jurisdiction and Court Communication
¶ 8 Mother and father contend that the juvenile court violated
their due process rights by failing to comply with the procedures in
section 14-13-110, C.R.S. 2020. In particular, they argue that the
Colorado court failed to disclose the record of the communication it
had with the Nebraska court and allow the parents to present facts
and legal arguments before it entered its jurisdictional order.
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Mother therefore asserts that the court lacked continuing
jurisdiction to enter the termination judgment. Because the court
did not follow the procedure in section 14-13-110 and the parents
were not given an opportunity to present facts and legal arguments
to the court after the communication but before it entered the
jurisdictional order, we vacate the termination judgment.
¶ 9 Except as otherwise provided under section 14-13-204, a
Colorado court has jurisdiction to make an initial child-custody
determination if Colorado is the home state of the child on the date
the proceeding begins or if the court of the child’s home state had
declined to exercise jurisdiction. § 14-13-201(1)(a)-(b), C.R.S. 2020.
The court that makes an initial child-custody determination
generally retains exclusive, continuing jurisdiction. § 14-13-202,
C.R.S. 2020; M.S., ¶ 15.
¶ 10 Section 14-13-110(1) outlines how a Colorado court
communicates with a court in another state. The communication
can occur in various ways, including by telephone conference,
online communication, or other electronic means. § 14-13-110
cmt., C.R.S. 2020. But this communication must be made directly
by the court — which is defined as an entity authorized under the
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law of a state to establish, enforce, or modify a child-custody
determination. § 14-13-102(6), C.R.S. 2020; see also People in
Interest of D.P., 181 P.3d 403, 407 (Colo. App. 2008).
¶ 11 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
that is stored in an electronic or other medium and is retrievable in
perceivable form. § 14-13-110(5), C.R.S. 2020. “The parties must
be informed promptly of the communication and granted access to
the record.” § 14-13-110(4) (emphasis added).
¶ 12 The court may allow the parties to participate in the
communication with the other court. § 14-13-110(2). If the parties
are unwilling or unable 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.
¶ 13 “This process is particularly significant because it informs the
jurisdictional decision.” M.M.V., ¶ 37. Indeed, a Colorado court
must decide whether it had initial and continuing jurisdiction
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“based on the information provided by the parties and its
discussion with the court in the other state.” Id.
¶ 14 Due process requires the state to provide fundamentally fair
procedures in dependency and neglect proceedings. People in
Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007). A parent
must be given notice of the proceeding, an opportunity to be heard
and to defend, and the advice of counsel. Id.
¶ 15 Early in the case, mother moved to dismiss, arguing that the
Colorado court lacked subject matter jurisdiction because Colorado
was not the child’s home state under the UCCJEA. The
Department and the guardian ad litem (GAL) filed responses,
indicating that Nebraska may be the child’s home state and
suggesting that the Colorado court reach out to a Nebraska court.
The Department also sent notice to the court and the parties,
stating that it had contacted the Nebraska social services, the
family had been previously involved in a case, and there was no
open custody case. The GAL further argued that Utah may be the
appropriate forum given that mother and the child were traveling to
Utah with the intent to reside there and the parents currently
resided there. The juvenile court denied mother’s motion to
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dismiss, finding that it had communicated with the Nebraska court
by telephone and that Nebraska, the child’s home state, had
declined to exercise jurisdiction over the child.
¶ 16 We conclude that the juvenile court did not comply with the
requirements of section 14-13-110 before it entered the
jurisdictional order. Other than the court’s statements in its
jurisdictional order regarding its communication with the Nebraska
court, there is no record of the communication. We are not
persuaded that a court’s findings in its jurisdictional order are a
record of the communication as contemplated by section 14-13-
110. Cf. D.P., 181 P.3d at 406-07 (a transcript of a hearing
containing information the Colorado court had communicated to
the Rhode Island court was a record for purposes of section 14-13-
110); People In Int. of S.A.G., 2021 CO 38, ¶ 56 (“[S]ection 14-13-
110 does require at least one of the two courts to make a record of
the communication, successful or not, which could be as simple as
‘a memorandum . . . made by a court after the communication.”)
(quoting § 14-13-110 cmt.). If there was a record of the
communication, the parents were not granted access to it. More
importantly, the parents were not promptly informed of the
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communication or given an opportunity to present facts and legal
arguments before the court made it decision regarding its
jurisdiction. S.A.G., ¶ 56 (“The Colorado court must also give the
parties an ‘opportunity to present facts and legal arguments before
a decision on jurisdiction is made’ or ‘allow the parties to
participate in the communication.’”) (quoting § 14-13-110(2)). As a
result, the parents were not able to present facts and legal
arguments, as they do on appeal, that Nebraska or Utah was a
more appropriate jurisdiction under the UCCJEA.
¶ 17 We recognize that two months before the termination hearing,
the Department filed a motion to affirm that the Colorado court had
continuing jurisdiction, the parents did not respond to the motion,
and the juvenile court found that it had continuing jurisdiction.
But, the court entered its order one day after the Department filed
its motion without affording the parents time to respond to the
Department’s motion before the court ruled on it. Thus, the
parents were not given an opportunity to present facts and legal
arguments before the court made a second decision about its
jurisdiction.
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¶ 18 Because the juvenile court did not comply with the
requirements of section 14-13-110, the parents were not afforded
their due process rights. And without compliance with section 14-
13-110 and a complete record of the jurisdictional issues, we are
unable to determine whether the Colorado court had jurisdiction to
terminate mother’s and father’s parental rights.
¶ 19 Accordingly, we vacate the termination judgment and remand
to the juvenile court for further proceedings.
II. Remand Instructions
¶ 20 While it is clear that the juvenile court took jurisdiction
beyond the emergency, it is not clear on what basis the court
accepted jurisdiction.
1
On remand, we direct the court to follow the
procedure in section 14-13-110 in determining whether its
jurisdiction under section 14-13-201, giving the parties an
opportunity to present relevant facts and applicable legal
arguments. If the court finds that it had initial jurisdiction, it shall
specify which type of jurisdiction it is invoking. See S.A.G., ¶ 26
1
Indeed, in its order concerning jurisdiction, after concluding that
Nebraska was the child’s home state and that the Nebraska court
had declined to exercise jurisdiction, the court did not specify the
specific basis that Colorado was asserting jurisdiction.
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(listing and describing the “four paths” to non-emergency
jurisdiction under the UCCJEA).
¶ 21 If the court finds that it had initial jurisdiction, it must then
determine whether it should decline its continuing jurisdiction
under section 14-13-207 in favor of Utah, where the parents
relocated as, pursuant to section 14-13-201(3), the child was not
required to have been present in Utah. The court shall take
additional evidence, including evidence of changed circumstances,
and arguments about jurisdiction from the parties and shall make
appropriate findings thereon.
III. Mother’s and Father’s Other Contentions
¶ 22 Because we vacate the termination judgment, we need not
address
• mother’s contention that the juvenile court did not
consider whether Colorado should have declined its
jurisdiction pursuant to section 14-13-207, C.R.S. 2020;
• her contention that the Department failed to make
reasonable efforts to facilitate in-person visits and
meaningful video visits;
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• father’s contention that the court did not make a second
inquiry with regard to the Indian Child Welfare Act at the
termination stage; and
• mother’s and father’s contention that the court violated
their due process rights and right to travel when it
adopted an amended treatment plan requiring them to
relocate from Utah to Colorado.
III. Conclusion
¶ 23 We vacate the termination judgment. The matter is remanded
to the juvenile court for it to follow the procedure in section 14-13-
110 and determine whether it has jurisdiction under sections 14-
13-201 and 14-13-207. The court shall take further evidence
concerning jurisdiction as we explain above.
¶ 24 If the juvenile court concludes that it has continuing
jurisdiction and it was not appropriate to decline jurisdiction to
Utah, then it may reinstate the termination judgment. Either party
may then appeal the jurisdictional or merits rulings.
¶ 25 Pending further order of the juvenile court, the out-of-home
placement order remains in effect and the child shall stay in his
current placement.
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JUDGE WELLING and JUDGE JOHNSON concur
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