Peo in Interest of SL

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.,

2017 COA 60, ¶ 13.

¶ 3 We review de novo whether the juvenile court had subject

matter jurisdiction under the UCCJEA, which applies in

dependency and neglect proceedings. Id. at ¶¶ 11-12, 14.

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.

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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

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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