People in re M.R.M

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
January 25, 2018

2018COA10

No. 17CA0255, People In Interest of M.R.M. — Juvenile
Court — Dependency and Neglect — Appeals — Final Appealable
Order

In this dependency and neglect proceeding, mother appeals

from the order dismissing the dependency and neglect proceeding

concerning her children. A division of the court of appeals

concludes that the order from which mother seeks to appeal is not a

final and appealable order. Instead, the final appealable order that

mother seeks relief from is an order allocating parental

responsibilities, which was entered approximately two weeks prior

to the order dismissing the dependency and neglect

proceeding. The division concludes that because mother’s notice of

appeal was not filed within twenty-one days after the entry of the

order that was final and appealable, her appeal is untimely. For
that reason, the division dismisses the appeal for lack of

jurisdiction.
COLORADO COURT OF APPEALS 2018COA10

Court of Appeals No. 17CA0255
Garfield County District Court No. 16JV21
Honorable Denise K. Lynch, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of M.R.M., M.M.M., and M.M.M., Children,

and Concerning M.M.A.,

Respondent-Appellant.

APPEAL DISMISSED

Division II
Opinion by JUDGE WELLING
Dailey and Hawthorne, JJ., concur

Announced January 25, 2018

Tari L. Williams, County Attorney, Heather K. Beattie, Assistant County
Attorney, Glenwood Springs, Colorado, for Petitioner-Appellee

Cassie L. Coleman and Luisa V. Berne, Guardians Ad Litem

Debra W. Dodd, Berthoud, Colorado, for Respondent-Appellant
¶1 In this dependency and neglect proceeding, M.M.A. (mother)

appeals from the order dismissing the dependency and neglect

proceeding concerning M.R.M., M.M.M., and M.A.M. (the children).

We conclude that the order from which mother seeks to appeal is

not a final and appealable order, and that because her notice of

appeal was not filed within twenty-one days after the entry of the

order that was final and appealable, her appeal is untimely.

Therefore, we dismiss the appeal.

I. Background

¶2 In March 2016, the Garfield County Department of Human

Services (the Department) sought and received temporary custody

of eleven-year-old M.R.M., six-year-old M.M.M., and three-year-old

M.A.M. based on concerns that the children had been exposed to

drugs, violence in the home, and an injurious environment.

¶3 Shortly after the children were removed from mother’s home,

the Department filed a petition in dependency and neglect, naming

mother and M.M. (father of M.R.M. and M.M.M., and stepfather to

M.A.M.; hereafter father M.M.) as respondents. The Department

acknowledged that father M.M. was not M.A.M.’s biological father

and that J.H., a resident of Florida, was suspected to be her father.

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A caseworker contacted J.H. in Florida and learned that he had

some mental health issues. The caseworker then discussed the

situation with J.H.’s mother, who was his primary caretaker.

¶4 Although the court entered an order requiring genetic testing

of J.H., and the Department said that it was “in the process of

conducting a genetic test to determine paternity,” no genetic test

results appear in the record, and J.H. was never determined to be

M.A.M.’s father or named as a party to the case.

¶5 The court initially placed the children with their maternal

grandmother. However, father M.M. moved from Florida to

Colorado and sought custody of all three children soon after the

case began. He said that he shared custody of the older two

children with mother under a domestic relations order, and he

asserted that he should have custody of M.A.M. because he was her

psychological parent. The court placed the children with him,

under the protective supervision of the Department, at the end of

March.

¶6 In May, father M.M. entered into a stipulated agreement for

continued adjudication under section 19-3-505(5), C.R.S. 2017, and

the court adjudicated the children dependent and neglected with

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respect to mother after a trial. A division of this court affirmed the

adjudication with respect to mother in People in Interest of M.R.M.,

(Colo. App. No. 16CA1845, Nov. 16, 2017) (not published pursuant

to C.A.R. 35(e)).

¶7 The court adopted treatment plans for both mother and father

M.M. But a few weeks after the court approved mother’s plan,

father M.M. moved to modify the existing order under which he

shared custody of the children with mother and to dismiss the

dependency and neglect case. In support of his request for custody

of M.A.M., as well as the older two children, he submitted a letter

asserting that he was M.A.M.’s father because he was the only

father she had ever known, and that he was willing to take full

responsibility for her.

¶8 In November, the juvenile court entered an order allocating

parental responsibilities for all three children between father M.M.

and mother (the APR order). The court made no findings as to

whether J.H. or father M.M. was M.A.M.’s legal father. Instead, the

court concluded that it had jurisdiction to allocate parental

responsibilities regarding M.A.M. to father M.M. under section 14-

10-123(1)(d), C.R.S. 2017, which provides that a proceeding

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concerning the allocation of parental responsibilities may be

commenced by a person other than a parent who has been

allocated parental responsibilities through a juvenile court order.

¶9 Approximately two weeks after the court entered the APR

order, the court entered an order terminating its jurisdiction and

closing the case. Mother now appeals from that order.

II. Finality, Appealability, Timeliness, and Jurisdiction

¶ 10 “Unless a notice of appeal is timely filed, the court of appeals

lacks jurisdiction to hear the appeal.” People in Interest of A.J., 143

P.3d 1143, 1146 (Colo. App. 2006). Because an appellate court

must satisfy itself that it has jurisdiction to hear an appeal, it may

raise jurisdictional defects nostra sponte. People v. S.X.G., 2012 CO

5, ¶ 9. We asked the parties to file supplemental briefs addressing

whether mother’s appeal was timely. After reviewing their briefs, we

conclude that the appealable order was the APR order; mother’s

notice of appeal was not timely with respect to that order; and,

therefore, we lack jurisdiction to consider her appeal.

¶ 11 Ordinarily, a final order or judgment, for purposes of appeal, is

one that ends the action, leaving nothing further to be done to

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determine the parties’ rights. People in Interest of O.C., 2012 COA

161, ¶ 8, aff’d, 2013 CO 56.

¶ 12 In a dependency and neglect proceeding, a post-dispositional

order that neither terminates parental rights nor declines to

terminate them generally does not end the proceeding and is not

deemed a final, appealable order. See, e.g., E.O. v. People, 854 P.2d

797, 801 (Colo. 1993) (order approving permanency plan that did

not effectuate any change in permanent custody or guardianship or

terminate parental rights held not final and appealable; order

expressly contemplated further court proceedings).

¶ 13 However, section 19-1-104(6), C.R.S. 2017, authorizes a

juvenile court to enter an order allocating parental responsibilities

for a child who is the subject of a dependency and neglect

proceeding if requested to do so by a party to the case, and if no

child custody action concerning the same child is pending in a

district court. Section 19-1-104(6) further provides that following

the entry of such an order, the court shall file a certified copy of the

order in the county where the child will permanently reside, and

thereafter, such order “shall be treated in the district court as any

other decree issued in a proceeding concerning the allocation of

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parental responsibilities.” Thus, by entering an APR order as

authorized by section 19-1-104(6) and ordering that a copy of the

order be filed in the district court of the county where the child is to

reside, the juvenile court ends the dependency and neglect

proceeding and transfers jurisdiction over the child to the district

court. Such an APR order is final and appealable. See People in

Interest of E.C., 259 P.3d 1272, 1276 (Colo. App. 2010) (entry of

permanency planning order allocating parental responsibilities to

aunt, followed by transfer of jurisdiction to the district court, ended

the dependency and neglect proceedings; thus, the permanency

planning order was a final and appealable order); see also C.A.R.

3.4(a) (expressly recognizing an order allocating parental

responsibilities pursuant to section 19-1-104(6) as an appealable

order).

¶ 14 Once a final and appealable judgment, decree, or order has

been entered in a dependency and neglect proceeding, a party who

wishes to appeal must file a notice of appeal within twenty-one

days. C.A.R. 3.4(b)(1).

¶ 15 Here, the juvenile court entered an APR order, and ordered

that the APR order be certified into an existing custody proceeding

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in the district court as to the older two children, and certified into a

new domestic relations case as to the youngest child. Under E.C.,

the APR order was appealable. However, mother did not appeal

from that order.

¶ 16 After the court entered the APR order, the Department moved

to terminate the jurisdiction of the juvenile court and close the

dependency and neglect case. The Department reported that the

APR order had been certified into the existing domestic relations

case as to the older two children, and into a new domestic relations

case as to the youngest child, as the court had directed. The

Department argued that there were no further child welfare issues

in the dependency and neglect proceeding that required

intervention by the court, and that it was in the children’s best

interests that the court terminate its jurisdiction and close the case.

The court agreed and entered an order that purportedly terminated

its jurisdiction and closed the dependency and neglect case. That is

the order from which mother appeals.

¶ 17 Because mother’s notice of appeal was filed more than twenty-

one days after the entry of the APR order, we conclude that her

appeal was untimely, and that accordingly, we lack jurisdiction to

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hear the appeal. However, mother contends that the juvenile court

lacked jurisdiction to enter the APR order, or, if it did have

jurisdiction, the APR order was not final and appealable. She

maintains that the order that ended the case was the order that

terminated the court’s jurisdiction and closed the case; that her

notice of appeal was timely with respect to that order; and that,

accordingly, this court has jurisdiction to hear her appeal. We find

her arguments unpersuasive.

A. Juvenile Court Jurisdiction, Finality,
and Appealability of the APR Order

1. Jurisdiction Under Section 19-1-104(6)

¶ 18 Mother contends that the APR order cannot be deemed a final,

appealable order because the juvenile court did not have

jurisdiction to make the findings needed to grant APR to a non-

parent, and, indeed, did not have jurisdiction to enter an APR order

at all for M.A.M. She argues that because the court had not

adjudicated M.A.M. dependent and neglected, with respect to her

father, J.H., and the adjudication of the two older children with

respect to father M.M. was still in “deferred” status, the APR order

was invalid.

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¶ 19 However, the question before us is not whether the court had

jurisdiction to enter the order, but, rather, whether the order was

final and appealable. Even an order entered without jurisdiction

may be a final, appealable order if it ends the action, leaving

nothing further to be done to determine the rights of the parties.

See, e.g., People in Interest of S.T., 2015 COA 147 (appeal from APR

order entered after trial court found that the allegations of the

dependency and neglect petition were not proven as to one parent;

order vacated for lack of subject matter jurisdiction).

¶ 20 Under E.C. and C.A.R. 3.4(a), an APR order entered under

section 19-1-104(6) is final and appealable. And because mother

did not file a timely appeal from that order, we must dismiss the

appeal.

2. Jurisdiction Under Section 19-4-130(1), C.R.S. 2017

¶ 21 Citing S.T., mother also contends that “without commencing a

paternity action, the juvenile court did not have independent

jurisdiction under the Uniform Parentage Act to enter an order

allocating parental responsibilities.” Here, too, we note that the

issue before us is not whether the court had jurisdiction to enter an

APR order, but whether the APR order was final and appealable,

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and whether mother filed a timely appeal from that order. Having

concluded that the APR order was final and appealable, and that

mother’s appeal was not timely, our inquiry is at an end because we

lack appellate jurisdiction. And this is so even when, as here, the

issue being raised on appeal is a challenge to the subject matter

jurisdiction of the trial court. Cf. Garcia v. Kubosh, 377 S.W.3d 89,

107 n.41 (Tex. App. 2012) (“And when a party attempts to challenge

a judgment or order but fails to timely file a notice of appeal, we

generally dismiss the appeal for lack of appellate jurisdiction

regardless of whether the appeal involves a challenge to the trial

court’s subject-matter jurisdiction.”).

3. Paternity and Finality

¶ 22 Mother argues that the APR order was not a final, appealable

order because it did not fully resolve the rights and liabilities of the

parties as to paternity, support, and parental responsibilities with

respect to M.A.M. We perceive no error.

a. Law

¶ 23 Under the Uniform Parentage Act (UPA), sections 19-4-101

to -130, C.R.S. 2017, a man is presumed to be the natural father of

a child if, as relevant here, “genetic tests or other tests of inherited

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characteristics have been administered . . . and the results show

that the alleged father is not excluded as the probable father and

that the probability of his parentage is ninety-seven percent or

higher.” § 19-4-105(1)(f), C.R.S. 2017. A presumption of paternity

may arise under other circumstances as well, as provided by

section 19-4-105(1)(a)-(e). For example, a presumption of paternity

arises if, while the child is under the age of majority, a man receives

the child into his home and openly holds out the child as his

natural child. § 19-4-105(1)(d).

¶ 24 If two or more presumptions of paternity arise which conflict

with each other, and none has been rebutted by clear and

convincing evidence, “the presumption which on the facts is

founded on the weightier considerations of policy and logic

controls.” § 19-4-105(2)(a); People in Interest of J.G.C., 2013 COA

171, ¶ 22.

¶ 25 Section 19-4-107, C.R.S. 2017, addresses who may bring an

action under the UPA, for what purpose, and when. As relevant

here, a child’s natural mother may bring an action to determine the

existence of the father and child relationship even if the child has

no presumed father. See § 19-4-107(3).

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¶ 26 If a paternity issue arises in a dependency and neglect

proceeding, a paternity action may be joined with the dependency

and neglect proceeding to resolve the issue. J.G.C., ¶ 10. In that

situation, the juvenile court must follow the procedures outlined in

the UPA, as its failure to do so will deprive the court of subject

matter jurisdiction to decide paternity. Id. at ¶ 11. As relevant

here, the UPA provides that each man presumed to be the father of

a child and each man alleged to be the natural father must be made

a party to the paternity proceeding, or, if not subject to the personal

jurisdiction of the court, must be given notice of the action and an

opportunity to be heard. § 19-4-110, C.R.S. 2017; J.G.C., ¶ 12.

b. Efforts to Determine M.A.M.’s Paternity

¶ 27 As an initial matter, we note that M.A.M. had no presumed

father. Although mother alleged that J.H. was M.A.M.’s biological

father, and there are indications in the record that J.H. had actual

notice of the dependency and neglect proceeding through

communications with the caseworker, he did not appear in the

case; he did not seek a relationship with the child; and his

biological relationship to the child was never established. Thus, at

all times relevant to this proceeding, J.H. was simply an “alleged

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father” of the child, not a presumed father under the UPA. Nor was

father M.M. a presumed father. Although he asserted that he was

M.A.M.’s psychological father, he never claimed to have held her out

as his own or that he was otherwise entitled to the status of

“presumptive father.” Thus, there was no need for a paternity

proceeding to determine which of two presumptive fathers should

be recognized as the child’s legal father.

¶ 28 Of course, a paternity proceeding may be initiated for

purposes other than making a choice between two (or more)

presumptive fathers. In this case, the Garfield County Department

of Human Services Child Support Services Unit had opened a case

in 2015 to determine the paternity of all three children. The court

determined that Father was the oldest child’s father, but not

M.A.M.’s father. In that case, too, J.H. did not cooperate in taking a

genetic test to determine whether he was the child’s father despite

the fact he was “made aware” of the proceeding. Eventually the

court dismissed the 2015 paternity case with respect to M.A.M.

¶ 29 In October 2016, in a renewed attempt to resolve the problem

of M.A.M.’s paternity, the Department filed a petition to determine

whether J.H. was her father. But the Department quickly withdrew

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the petition after concluding that the court did not have personal

jurisdiction over J.H.

¶ 30 A few days after the Department withdrew the petition to

determine M.A.M.’s paternity, the juvenile court entered the APR

order. Thus, the question of M.A.M.’s paternity was never resolved.

c. Finality of the APR Order

¶ 31 Mother argues that the APR order was not final because it did

not fully resolve the rights and liabilities of the parties. But, insofar

as she contends that the order did not fully resolve her own rights

and liabilities, she does not explain what was left to be decided in

an order that addressed her rights to visitation, parenting time, and

other matters relevant to the allocation of parental responsibilities

between her and father M.M. Nor did she attempt to initiate a

paternity proceeding herself, as she might have done under section

19-4-107, if she believed that resolving the issue of M.A.M.’s

paternity was necessary to protect her rights.

¶ 32 Insofar as mother contends that the order did not resolve the

rights and liabilities of other parties, including but not limited to

J.H., we conclude that she lacks standing to raise the issue. See,

e.g., People in Interest of J.A.S., 160 P.3d 257, 261 (Colo. App. 2007)

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(one parent does not have standing to raise issues that concern only

the other parent’s rights).

4. Possibility of Revision

¶ 33 Mother argues that the APR order was not final because it was

subject to revision. However, once the juvenile court entered the

APR order and directed that it should be certified to the district

court, jurisdiction to modify the order under sections 14-10-129

and 14-10-131, C.R.S. 2017, was transferred to the district court,

leaving nothing further for the juvenile court to do. See § 19-1-

104(6). In addition, we note that under sections 14-10-129 and 14-

10-131, all orders concerning parenting time and decision-making

responsibility may be modified if a sufficient showing is made that

circumstances warrant a change. Nevertheless, APR orders are

considered final and appealable, as recognized in C.A.R. 3.4(a).

5. Unresolved Issues in the Dependency and Neglect Proceeding

¶ 34 Mother contends that the APR order was not final because

when it was entered, the paternity summons for J.H. was still

outstanding, father M.M.’s deferred adjudication had not been

addressed, and the court had not dismissed the case. We are not

persuaded.

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¶ 35 As discussed above, we conclude that under section

19-1-104(6), the entry of the APR order ended the dependency and

neglect proceeding and transferred jurisdiction over the allocation of

parental responsibilities to the district court. Therefore, there was

no longer any need to address father M.M.’s deferred adjudication.

Nor was there any need to enter an additional order to dismiss the

case where the APR order served as the case-ending order.

¶ 36 As for the paternity summons, the record does not reveal

whether it was still outstanding when the court entered the APR

order, as mother asserts. But, even if it was, mother cites no

authority for the proposition that the existence of an outstanding

summons is sufficient to prevent the court from closing the case in

which the summons was issued, and we are aware of no such

authority.

B. Indian Child Welfare Act

¶ 37 Mother raises an issue as to whether the provisions of the

Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963

(2012), and applicable Bureau of Indian Affairs regulations and

guidelines for implementing ICWA were complied with by the

Department and the juvenile court after she asserted that she had

16
Indian heritage. She contends that the Department failed to comply

with ICWA when it failed to investigate or send notices to tribes

after she and the children’s maternal grandmother stated that

mother had a tribal affiliation and the children’s great-grandmother

had been enrolled in an Indian tribe. The parties disagree as to

whether we can address this issue notwithstanding our

determination that the appeal is untimely. We conclude that we

cannot. The untimeliness of the appeal deprives us of jurisdiction

as to all of the issues raised in the appeal, including the ICWA

issues.

¶ 38 However, we note that under 25 U.S.C. § 1914 (2012), a

parent “may petition any court of competent jurisdiction” to

invalidate an action for foster care placement or termination of

parental rights upon a showing that such action violated any of

several sections of ICWA, including section 1912, concerning notice

to tribes. And, in People in Interest of K.G., 2017 COA 153, ¶¶ 12-

18, a division of this court recently concluded that in some

circumstances a proceeding to allocate parental responsibilities is a

child custody proceeding covered by ICWA. Thus, mother may be

able to raise the issue of ICWA compliance in the juvenile court.

17
But the availability of such a collateral attack on the APR order in

the juvenile court does not vest us with jurisdiction to address the

ICWA issue in the first instance as part of this appeal.

III. Conclusion

¶ 39 The appeal is dismissed with prejudice for lack of an

appealable order.

JUDGE DAILEY and JUDGE HAWTHORNE concur.

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