Peo in Interest of LW

24CA1024 Peo in Interest of LW 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1024
El Paso County District Court No. 22JV30014
Honorable Scott Bradford Epstein, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.W., a Child,

and Concerning K.H. and B.J.W.,

Appellants.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Kenneth Hodges, County Attorney, Melanie Douglas, Contract Attorney,
Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for
Appellant K.H.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant B.J.W.
¶1 K.H. appeals the judgments adjudicating L.W. (the child)

dependent or neglected and terminating parental rights. We reverse

the adjudication judgment, vacate the termination judgment, and

remand the case to the juvenile court for further proceedings

consistent with this opinion.

¶2 B.J.W. (mother) also appeals the judgment terminating her

legal relationship with the child. We affirm.

I. Background

¶3 In May 2021, mother gave birth to the child, who tested

positive for methamphetamine. The El Paso County Department of

Human Services (Department) created a safety plan with mother, in

which she agreed to enter treatment while the child would reside

with a family friend. But mother did not complete treatment, and

the Department could not locate her.

¶4 Based on this information, the Department filed a petition in

dependency or neglect, assumed temporary legal custody of the

child, and placed the child with a foster family. When the

Department filed the initial petition, it did not have any information

about the child’s father and therefore named “unknown father” as a

respondent. The Department eventually located mother in custody,

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the juvenile court adopted a treatment plan for her, and the court

requested that she submit a paternity affidavit.

¶5 In February 2023, mother filed the affidavit, which listed three

possible fathers, including K.H.; at a subsequent hearing, mother

named a fourth possible father. The Department then submitted

amended petitions listing all four individuals and “unknown father,”

as respondents. In May 2023, K.H. appeared in response to the

summons, the juvenile court appointed counsel for him, and he

agreed to submit to genetic testing. But K.H. did not comply with

testing and never reappeared in court.

¶6 In August 2023, the juvenile court held an adjudicatory trial

for K.H. At the hearing, K.H.’s counsel asserted that the court

could not enter an adjudication judgment against her client without

first establishing that he was the child’s parent under Colorado’s

Uniform Parentage Act (UPA). The court disagreed and adjudicated

the child dependent or neglected with respect to K.H. under

subsections (1)(b) and (1)(d) of section 19-3-102, C.R.S. 2024. The

court then determined that no appropriate treatment plan could be

devised for K.H.

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¶7 In January 2024, the Department moved to terminate the

parental rights of mother and K.H. (as well as the three other

possible fathers and unknown father). The juvenile court held an

evidentiary hearing in May 2024. K.H.’s counsel continued to argue

that the court needed to establish that K.H. was a parent before it

could terminate his parental rights. Ultimately, the court granted

the Department’s motion and terminated mother’s parental rights

under section 19-3-604(1)(c), C.R.S. 2024, and K.H.’s parental

rights under section 19-3-604(1)(a).

II. K.H.’s Appeal

¶8 K.H. asserts that the juvenile court erred by entering

adjudication and termination judgments against him without

establishing that he was the child’s parent. For the reasons

explained below, we agree.

A. Standard of Review

¶9 K.H.’s appeal requires us to (1) determine whether the juvenile

court had jurisdiction; (2) consider whether the evidence was

sufficient; and (3) interpret statutes. The following standards of

review apply.

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¶ 10 “Whether a child is dependent [or] neglected presents a mixed

question of fact and law because it requires application of

evidentiary facts to the statutory grounds.” People in Interest of

M.M., 2017 COA 144, ¶ 17. In determining whether the evidence is

sufficient to sustain an adjudication, we review the evidence in the

light most favorable to the prevailing party, drawing every

reasonable inference from the evidence in favor of the juvenile

court’s decision. People in Interest of S.G.L., 214 P.3d 580, 583

(Colo. App. 2009). We review the court’s factual findings for clear

error, and we will not disturb them if they are supported by the

record. Id. But we review the court’s legal conclusions de novo,

and we may set aside a court’s order based on errors of law or

findings that do not conform to the statutory criteria. People in

Interest of S.K., 2019 COA 36, ¶ 41; S.G.L., 214 P.3d at 583.

¶ 11 Statutory interpretation is 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). In construing a statute, we look at the entire statutory

scheme to give consistent, harmonious, and sensible effect to all its

parts. People in Interest of L.M., 2018 CO 34, ¶ 13. We apply words

and phrases in accordance with their plain and ordinary meanings,

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People in Interest of K.L.W., 2021 COA 56, ¶ 13, and we do not add

or subtract words from statutes, A.M. v. A.C., 2013 CO 16, ¶ 17. If

the statute’s language is clear and unambiguous, we apply it as

written. People in Interest of J.G., 2016 CO 39, ¶ 13.

¶ 12 Finally, when the facts are undisputed, the scope of the

juvenile court’s jurisdiction presents questions of law that we review

de novo. People in Interest of J.W. v. C.O., 2017 CO 105, ¶ 17.

B. Legal Framework

¶ 13 A juvenile court has exclusive original jurisdiction in both

dependency or neglect proceedings and proceedings to determine

the parentage of a child. § 19-1-104(1)(b), (f), C.R.S. 2024; People in

Interest of N.S., 2017 COA 8, ¶ 20.

¶ 14 Dependency or neglect proceedings are governed by Article 3 of

the Colorado Children’s Code, §§ 19-3-100.5 to -905, C.R.S. 2024,

and they are initiated by the filing of a petition alleging that a child

is dependent or neglected, § 19-3-502(1), C.R.S. 2024. The

petitioner has the burden to prove the allegations in the petition by

a preponderance of the evidence at an adjudicatory hearing.

§ 19-3-505(1), C.R.S. 2024. If the government proves the

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allegations, the juvenile court will sustain the petition and

adjudicate the child dependent or neglected. § 19-3-505(7).

¶ 15 An adjudication is not made “as to” a parent, People in Interest

of S.B., 742 P.2d 935, 939 (Colo. App. 1987), but the petitioner

must still prove the allegations with respect to each respondent,

People in Interest of U.S., 121 P.3d 326, 328 (Colo. App. 2005).

“[T]he factual status of a child as dependent or neglected [is] a

jurisdictional prerequisite to the entry of permanent orders.” People

in Interest of T.W., 2022 COA 88M, ¶ 52.

¶ 16 Following an adjudication, the juvenile court must hold a

dispositional hearing and determine whether a treatment plan can

be devised. See §§ 19-3-507, 19-3-508(1), C.R.S. 2024. In some

circumstances, such as this case, the court may determine that a

treatment plan cannot be devised “because the child has been

abandoned.” § 19-3-508(1)(e)(I). If the court determines that no

appropriate treatment plan can be devised, the termination hearing

serves as the dispositional hearing. People in Interest of M.S., 2012

COA 211, ¶¶ 2-3 (in a case with no appropriate treatment plan, a

respondent cannot appeal the adjudication until entry of the

termination judgment).

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¶ 17 Proceedings to determine parentage of a child are governed by

Article 4 of the Children’s Code, otherwise known as the UPA. See

§§ 19-4-101 to -130, C.R.S. 2024. If a paternity issue arises in a

dependency or neglect proceeding, the juvenile court has the

authority to resolve the paternity question in the dependency or

neglect case. People in Interest of J.G.C., 2013 COA 171, ¶ 10.

However, in doing so, the court must follow the procedures outlined

in the UPA. N.S., ¶ 21.

C. Adjudication

¶ 18 K.H. asserts that the juvenile court erred because it either

(1) did not have subject matter jurisdiction or (2) did not have the

“authority” to enter an adjudication. As to the former, we disagree

because this proceeding fell within the class of cases that the court

may hear, and it therefore had subject matter jurisdiction to enter

an adjudication. See § 19-1-104(1)(d); C.O., ¶¶ 24-25; see also

T.W., ¶ 29. As to the latter, we construe K.H.’s assertion as a

challenge to whether the court had the authority to enter an

adjudication without the Department providing evidence that he

was the child’s parent. For the reasons explained below, we

conclude the court did not have such authority.

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¶ 19 The Children’s Code is silent on whether a juvenile court may

enter an adjudication under Article 3 without first determining

parentage under Article 4. However, we need not decide whether a

parentage determination is required in every dependency or neglect

case because we conclude that, under the circumstances here, the

court could not enter an adjudication with respect to K.H.

¶ 20 As relevant to this case, a child is dependent or neglected if

(1) “[t]he child lacks proper parental care through the actions or

omissions of the parent, guardian, or legal custodian,”

§ 19-3-102(1)(b) (emphasis added); or (2) “[a] parent, guardian, or

legal custodian fails or refuses to provide the child with proper or

necessary subsistence, education, medical care, or any other care

necessary for his or her health, guidance, or well-being,”

§ 19-3-102(1)(d) (emphasis added). Because the Department did

not allege that K.H. was the child’s “guardian” or “legal custodian,”

the Department needed to show that K.H. was a “parent” to enter

an adjudication under subsections (1)(b) or (1)(d).

¶ 21 The Children’s Code defines “parent” as, among other things,

“a natural parent of a child, as may be established” under the UPA.

§ 19-1-103(105)(a), C.R.S. 2024. In turn, the UPA defines “natural

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parent” as “a nonadoptive parent established pursuant to . . . article

4, whether or not biologically related to the child.” § 19-4-102.5(3),

C.R.S. 2024. Consequently, the juvenile court needed to determine

whether K.H. was a “natural parent” under the UPA for him to

qualify as a “parent” for purposes of an adjudication under section

19-3-102(1)(b) or (d).

¶ 22 However, the record clearly shows that, although the juvenile

court could have determined parentage under the UPA before

entering an adjudication, it specifically declined to do so. The court

expressed concern about conducting a paternity proceeding

because doing so would “essentially be flipping a coin to try to see

which one of the named fathers . . . should be adjudicated as legal

father of this child.” The court therefore decided to “go[] forward

with the adjudicatory phase as to [all the alleged fathers] without

resolving paternity.”

¶ 23 Therefore, because the juvenile court did not adjudicate

parentage, K.H. could not meet the definition of “parent” in the

Children’s Code. And because the record does not establish that

K.H. was a “parent,” the court erred by finding that the child was

dependent or neglected with respect to him under subsections (1)(b)

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and (1)(d), considering that both of those subsections require

conduct by a “parent, guardian, or legal custodian.” In other words,

although the Department alleged that K.H. was the child’s parent, it

never proved that allegation. See Crawford v. M & K Mobile Homes,

Inc., 488 P.2d 232, 236 (Colo. App. 1971) (an allegation is not

proof).

¶ 24 The Department and the guardian ad litem (GAL) do not

provide any authority supporting their position that the juvenile

court had the authority to enter an adjudication under section

19-3-102(1)(b) or (1)(d) without a finding that K.H. was a parent,

guardian, or legal custodian. Instead, they argue that we should

affirm the court’s judgment because (1) it was in the child’s best

interests; (2) any error was harmless; or (3) K.H. invited the error.

For the reasons described below, we disagree with all three

arguments.

¶ 25 First, the Department and GAL argue that the juvenile court

could enter an adjudication without establishing that K.H. was the

child’s parent because doing so served the child’s best interests by

preventing a delay in the proceedings. See § 19-1-102(1)(c), C.R.S.

2024 (one purpose of the Children’s Code is to “proceed with all

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possible speed to a legal determination”). But the Department and

GAL have not provided any authority holding that the court may

relieve the Department of its duty to prove the allegations in its

petition by a preponderance of the evidence simply to avoid delay.

See People in Interest of A.M.D., 648 P.2d 625, 631 (Colo. 1982)

(“Proceedings in dependency or neglect affect important rights, so

there must be substantial compliance with statutory requirements

for conduct of those proceedings.”).

¶ 26 Second, the Department and GAL contend that any error was

harmless. We may “disregard any error or defect not affecting the

substantial rights of the parties.” C.A.R. 35(c). An error affects a

substantial right if it can be said with fair assurance that it

substantially influenced the case’s outcome or impaired the basic

fairness of the trial itself. People in Interest of R.J., 2019 COA 109,

¶ 22. In this case, if the juvenile court had not erroneously

concluded that it could enter an adjudication under subsection

(1)(b) and (1)(d) against an alleged parent, it would not have

sustained the petition, entered an adjudication judgment against

K.H., and terminated his parental rights. Thus, the error is not

harmless.

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¶ 27 Third, the Department argues that K.H. invited the error

because he did not comply with genetic testing. See People v.

Rediger, 2018 CO 32, ¶ 34 (“The doctrine of invited error prevents a

party from complaining on appeal of an error that he or she has

invited or injected into the case . . . .”). We disagree because K.H.

did not induce the erroneous ruling by the juvenile court. In fact,

K.H.’s counsel argued against the court taking such an action. Cf.

People in Interest of M.H-K., 2018 COA 178, ¶ 20 (“[T]he parents did

not [invite the error by] ask[ing] the court to read the petition; they

asked the court not to read the petition.”). Consequently, the

invited error doctrine does not apply.

¶ 28 In sum, we conclude that the juvenile court erred by entering

an adjudication with respect to K.H. because the record did not

establish that he was a “parent,” as required for an adjudication

under section 19-3-102(1)(b) and (1)(d). We therefore reverse the

judgment adjudicating the child dependent or neglected with

respect to K.H.

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D. Termination

¶ 29 K.H. asserts that the juvenile court’s judgment terminating his

parental rights is void as a matter of law because the court did not

have jurisdiction. We agree.

¶ 30 A juvenile court’s jurisdiction concerns its authority to hear

and determine a matter. C.O., ¶ 21. A judgment rendered without

jurisdiction is void and may be attacked directly or collaterally. Id.

As relevant here, “the child’s status as dependent or neglected

establishes the court’s continued jurisdiction over the child” to

terminate parental rights. Id. at ¶ 31; see also T.W., ¶ 52.

¶ 31 Because we have concluded above that the juvenile court erred

by entering an adjudication judgment against K.H., the court did

not have continuing jurisdiction with respect to K.H. to enter a

judgment terminating his parental rights. See T.W., ¶ 54 (an

adjudication is a “necessary step that grants a juvenile court

continuing jurisdiction” to enter a permanent order). Therefore, the

court’s termination judgment is void, and we must vacate it. See

C.O., ¶ 21.

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III. Mother’s Appeal

¶ 32 Mother asserts that the juvenile court erred by rejecting less

drastic alternatives to termination because it declined to resolve

paternity under the UPA. Assuming, without deciding, that the

court erred by failing to determine fraternal parentage in this case,

we conclude that any error is harmless as to mother’s assertion

because the record clearly establishes that a less drastic alternative

was not a viable option.

¶ 33 Before terminating parental rights under section

19-3-604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 108, 1122

(Colo. 1986). In considering less drastic alternatives, a court must

give primary consideration to the child’s physical, mental, and

emotional conditions and needs. § 19-3-604(3). In doing so, the

court may consider, among other things, whether (1) an ongoing

relationship between the parent and child would be beneficial,

People in Interest of A.R., 2012 COA 195M, ¶ 38; and (2) an

allocation of parental responsibilities (APR) provides adequate

permanence and stability for the child, People in Interest of T.E.M.,

124 P.3d 905, 910-11 (Colo. App. 2005).

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¶ 34 For a less drastic alternative to be viable, it must do more than

adequately meet a child’s needs; rather, it must be in the child’s

best interests. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 27.

Therefore, if the juvenile court considers a less drastic alternative

but finds instead that termination is in the child’s best interests, it

must reject the less drastic alternative and order termination. Id. at

¶ 32. Under those circumstances, we must affirm the court’s

decision if its findings are supported by the record. People in

Interest of B.H., 2021 CO 39, ¶ 81.

¶ 35 The juvenile court found that there was no less drastic

alternative to termination. In doing so, the court noted that mother

had no contact with the child from shortly after his birth until

August 2023, almost one and a half years later. It found that,

although mother had a few visits with the child when she was

incarcerated, she had simply “dropped off . . . the radar” after her

release. Therefore, the court rejected less drastic alternatives,

considering that the child had no relationship with mother and the

child “desperately need[ed] to continue in a stable place.”

¶ 36 The record supports the juvenile court’s findings. The

caseworker testified that the child was placed in foster care in

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February 2022, but the Department did not locate mother until

around March 2023 when she was incarcerated. The record shows

that, although mother did some classes and a few visits with the

child while she was incarcerated, once she was released in February

2024, she did not comply with any components of her treatment

plan and did not have any contact with the child. Based on

mother’s lack of participation in the case and the child’s need for

stability, the caseworker opined that there were no less drastic

alternatives to termination.

¶ 37 On appeal, mother asserts that, if the juvenile court had

determined paternity, then there may have been a less drastic

alternative in the form of an APR to the natural father or one of his

relatives. But the record shows that, other than K.H.’s single

appearance in court, none of the alleged fathers appeared or

participated in the case. Therefore, even if the court had

adjudicated parentage, nothing in the record suggests that there

would have been an appropriate relative placement option for the

child. Consequently, we are not persuaded by mother’s highly

speculative assertion.

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¶ 38 In any event, even if there was a possible placement option,

the record still shows that a less drastic alternative was not an

option. The evidence established that mother had done very little to

address the Department’s concerns regarding the child’s safety or to

become a fit parent. It also shows that mother had no relationship

with the child and that the child needed permanency as soon as

possible. In other words, the record establishes that an ongoing

relationship with mother would not have been beneficial for the

child, see A.R., ¶ 38, and the child needed the permanency that

only termination and adoption could provide, see T.E.M., 124 P.3d

at 910-11. An available relative placement option would not change

this result.

¶ 39 Therefore, because the record supports the juvenile court’s

determination that termination, not a less drastic alternative, was

in the child’s best interests, we cannot disturb its decision. See

B.H., ¶ 81.

IV. Disposition

¶ 40 The judgment adjudicating the child dependent or neglected

with respect to K.H. is reversed. The judgment terminating K.H.’s

parental rights is vacated. The matter is remanded to the juvenile

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court to determine whether K.H. is the child’s natural father under

the UPA or to dismiss him from the case.

¶ 41 The judgment terminating mother’s parental rights is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.

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