July 19, 2019

Colorado Court of Appeals: Where Parent Indicates Desire to Relocate with Minor Children, Magistrate Has No Authority to Order Shared Parenting Time in Colorado

The Colorado Court of Appeals issued its opinion in In re Marriage of Morgan on Thursday, August 8, 2018.

Dissolution of Marriage—Relocation—Parenting Time.

In this dissolution of marriage proceeding, mother notified the magistrate well before the permanent orders hearing that she wished to move with the children to California. She sought orders that would name her the children’s primary residential parent and decision-maker. Dr. Albert was appointed as an expert to conduct a parental responsibilities evaluation (PRE). He recommended that the children be allowed to relocate to California with mother and that she should have sole decision-making responsibility. At father’s request, the magistrate appointed Lieberman to perform a supplemental PRE. Lieberman recommended that the children remain in Colorado with father with shared decision-making responsibilities with mother. After a two-day evidentiary hearing, the magistrate ordered the children to remain in Colorado, finding that their best interests would be served if the parents exercised equal parenting time with mutual decision-making responsibilities.

On appeal, mother contended that the magistrate erred by entering a parenting time order requiring her to remain in Colorado. When, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location. Mother’s admission that she would not “abandon” her children and move without them did not relieve the magistrate of his obligation to make the difficult decision to allocate parenting time with mother in California and father in Colorado.

Mother also contended that the magistrate erred in ordering mutual decision-making responsibilities over her objection and in the absence of credible evidence that the parents could work together. However, the magistrate reviewed the evidence and did not abuse his discretion in finding that the parties could make joint decisions and in ordering joint decision making.

The part of the judgment allocating parenting time was reversed and the case was remanded with directions. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Order Dismissing Dependency and Neglect Proceeding Not Final, Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of M.R.M. on Thursday, January 25, 2018.

Dependency and Neglect—Final and Appealable Order—Lack of Jurisdiction.

The Garfield County Department of Human Services (Department) filed a petition in dependency and neglect, naming mother and M.M. (father of two children and stepfather to the third, M.A.M.) as respondents. The children were initially placed with their maternal grandmother, but then M.M. moved from Florida to Colorado and sought custody of all three children. The children were placed with him under the protective supervision of the Department. The court adjudicated the three children dependent and neglected with respect to mother. The court adopted treatment plans for mother and M.M., but shortly thereafter he moved to modify the order under which he shared custody of the children with mother and to dismiss the dependency and neglect case. M.M. shared custody of the two older children with mother under a domestic relations order and asserted he should have custody of M.A.M. as her psychological parent. The juvenile court entered an order allocating parental responsibilities for the children between M.M. and mother (the APR order). The court concluded it had jurisdiction to allocate parental responsibilities as to M.A.M. pursuant to C.R.S. 14-10-123(1)(d), which provides that a proceeding concerning allocation of parental responsibilities may be commenced by someone other than a parent who has been allocated parental responsibilities through a juvenile court order. Approximately two weeks later, the court entered an order terminating its jurisdiction and closing the case, from which order mother appealed.

The Colorado Court of Appeals requested supplemental briefs addressing whether mother’s appeal was timely and determined that the appealable order was the APR order. C.R.S. § 19-1-104(6) provides that entry of an order allocating parental responsibilities for a child who is the subject of a dependency and neglect proceeding requested by a party to the case, once filed in the county where the child will permanently reside, will be treated as any other decree in a proceeding allocating parental responsibilities. This action ends the dependency and neglect proceeding and transfers jurisdiction over the child to the district court. Such an order is final and appealable, and a party who wishes to appeal must file a notice of appeal within 21 days of entry of the order. Here, the juvenile court entered an APR order and ordered that it be certified into an existing custody proceeding in the district court as to M.M.’s children, and certified into a new domestic relations case as to M.A.M. Mother did not appeal from that order but rather appealed from the order purportedly terminating its jurisdiction and closing the dependency and neglect case. Mother’s appeal was untimely, and the court lacked jurisdiction to hear it.

However, mother argued the APR order wasn’t a final, appealable order because the juvenile court didn’t have jurisdiction to make the findings needed to grant APR to a nonparent. She contended that because the court did not adjudicate M.A.M. dependent and neglected with respect to her biological father, and the adjudication of the two older children with respect to father M.M. was still in “deferred” status, the APR order was invalid. The court rejected this argument, reasoning that the question was not whether the court had jurisdiction to enter the order, but whether it was final and appealable. The APR order here was final and appealable

Similarly, because mother failed to timely appeal the APR order, the court rejected mother’s argument that because the court failed to commence a paternity action it did not have independent jurisdiction under the Uniform Parentage Act (UPA) to enter an order allocating parental responsibilities.

Finally, mother argued the APR order was not a final, appealable order because it did not fully resolve the right and liabilities of the parties as to paternity, support, and parental responsibilities with respect to M.A.M. Analyzing the issue under the UPA, the court concluded there was no need for a paternity proceeding as to M.A.M. The court rejected mother’s argument that the APR order did not fully resolve the rights and liabilities of the parties because it didn’t find anything else that needed to be resolved; the order addressed visitation, parenting time, and other matters relevant to the allocation or parental responsibilities between mother and M.M.

Mother also argued that the APR order was not final because it was subject to revision. Once it was entered and certified to the district court, jurisdiction to modify it was transferred to the district court, leaving nothing for the juvenile court to do. The court further noted that all orders concerning parenting time and decision-making responsibility may be modified when circumstances warrant a change.

Mother also raised an issue about noncompliance with the Indian Child Welfare Act. The court declined to address this because it lacked jurisdiction due to the untimeliness of the appeal.

The appeal was dismissed with prejudice for lack of an appealable order.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Father’s Prevailing at Dependency and Neglect Hearing Deprives Juvenile Court of Further Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of S.T. on Thursday, October 8, 2015.

Dependency and Neglect—Subject Matter Jurisdiction.

The Department of Human Services (Department) became involved in this case after receiving a call from someone concerned that mother was abusing prescription pills and not properly supervising her infant, S.T. Following its investigation, the Department obtained an emergency custody order, placed S.T. with his maternal grandparents, and filed a dependency and neglect petition. The biological father was unknown, but the petition named three possible fathers. Mother admitted to the allegations, and the juvenile court adjudicated S.T. dependent and neglected.

Following a paternity test, the juvenile court identified the biological father of S.T. Father denied the allegations in the dependency and neglect petition and requested a contested adjudicatory hearing. The court dismissed the petition after a hearing but did not award custody to father, finding it was in S.T.’s best interests to remain in placement with his grandparents. Father moved for an order allocating parental responsibilities and summary judgment on that motion. He contended that he should have been awarded custody after the juvenile court dismissed the dependency and neglect petition.

The juvenile court denied the summary judgment motion but held a hearing as to allocation. It entered an allocating parental responsibilities (APR) order, granting parental responsibilities for S.T. to the grandparents.

The Court of Appeals considered whether the juvenile court lacked subject matter jurisdiction to enter the APR order and concluded that it did. CRS § 19-3-505(6) provides that when the allegations in a dependency and neglect petition are not proven, the court loses jurisdiction over the matter. Therefore, the court erred in holding a fitness hearing and entering the APR order. The APR order was vacated and the juvenile court was directed to discharge father and S.T. from any existing temporary orders entered before the adjudicatory hearing involving father and S.T.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Appropriately Declined Jurisdiction Under UCCJEA

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities Concerning B.C.B., a Child on Thursday, April 9, 2015.

Jurisdiction Under the Uniform Child-Custody Jurisdiction and Enforcement Act.

Mother and father, who were not married, are the parents of B.C.B., born in Idaho in December 2012. The couple moved to Colorado with B.C.B. in July 2013. In August 2013, mother and B.C.B. traveled to Massachusetts, where mother’s extended family lived. Mother testified at the hearing to determine Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) jurisdiction that she had intended to return to Colorado; however, while in Massachusetts, she decided her relationship with father would not work and therefore did not return.

In September 2013, father petitioned the Colorado district court for an allocation of parental responsibilities. Mother contested jurisdiction and filed a custody action in Massachusetts. The Massachusetts court entered temporary orders granting custody to mother in October 2013.

Following conferral between the Colorado and Massachusetts courts, the Colorado court asserted temporary emergency jurisdiction over B.C.B., ordered mother to return to Colorado with B.C.B., and set a hearing to determine jurisdiction. The Massachusetts court vacated its temporary order and stayed its proceedings pending the Colorado decision on jurisdiction.

The Colorado court determined that (1) Idaho was B.C.B.’s home state under the UCCJEA; (2) neither party wanted Idaho to take jurisdiction; and (3) either Colorado or Massachusetts could exercise jurisdiction, but neither was required to do so. The court then declined its jurisdiction on the basis that Colorado was not the most appropriate forum. Father appealed.

The Court of Appeals applied an abuse of discretion standard in reviewing the trial court’s decision to decline to exercise jurisdiction. The Court held that the child had no home state because neither the parents nor the child lived in Idaho when father filed his petition and the child had not lived in either Colorado or Massachusetts long enough to establish home state jurisdiction. Despite this error by the trial court, it properly proceeded under CRS § 14-13-201(1)(b) to consider whether B.C.B. and his parents had a significant connection with Colorado and whether substantial evidence concerning B.C.B. was located in Colorado. Because the court’s factual findings as to the lack of significant connection with Colorado or of substantial evidence in Colorado were supported by the record, the Court will not disturb them. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Permanency for Child in D&N Proceeding More Important than Reestablishing Familial Ties

The Colorado Court of Appeals issued its opinion in People in Interest of M.D. on Thursday, September 11, 2014.

Dependency and Neglect—Foster Parents—Permanency Hearing—Compelling Reason.

The La Plata County Department of Human Services (Department) filed a petition in dependency and neglect regarding M.D. due to its concerns about the parents’ history of domestic violence and substance abuse. M.D. was placed with foster parents and, based on father’s admission to certain allegations in the petition, including that he tested positive for methamphetamine, the court adjudicated the child dependent and neglected and adopted a treatment plan for father (mother’s rights were not at issue in this case). The district court later entered judgment allocating a majority of parenting time and sole decision making authority for M.D. to the foster parents.

On appeal, father contended that the court erred in concluding that it need only find a compelling reason to allocate parental responsibility to a nonparent under the permanency hearing statute. Because CRS §19-1-115 concerns only temporary custody awards and the court’s order here was a permanent custody order, the findings under §19-1-115(6.5) were not required. Further, there was evidence in the record that the child needed permanency and that a complete transition back to father would be difficult and probably result in harm to the child.

The record also reflects that the Department made reasonable efforts to finalize permanent placement of the child and that procedural safeguards were in place to protect father’s rights. In addition, because father was not deprived of all of his parental rights, and because the trial court retained jurisdiction to modify its existing order, the trial court order relating to father’s custody and visitation rights did not require a finding of unfitness to protect his fundamental liberty interest. The record supports the court’s findings regarding several compelling reasons as to why the child could not be returned home under §19-3-702(4). Therefore, the court did not abuse it’s authority to award permanent custody to the foster parents. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Purpose of Uniform Parentage Act is to Establish and Protect Parent-Child Relationship

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of A.R.L., and Concerning Limberis on Thursday, December 5, 2013.

Biological Versus Presumptive Mother in Same-Sex Relationship—Uniform Parentage Act.

Elizabeth Limberis and Sabrina Havens began living together as a couple in 2000. Several years later, Havens unsuccessfully underwent one round of artificial insemination. Her friend, Marc Bolt, then agreed to inseminate her through sexual intercourse. Neither Havens nor Bolt revealed their sexual encounter to Limberis. Havens conceived and gave birth to A.R.L. in 2008. Limberis was present at the birth, and the child was given her last name. The birth certificate identifies Havens as the mother and does not name the father.

In 2011, the couple separated and Limberis filed a petition for parental responsibilities. Havens contested Limberis’s request for allocation of parental responsibilities and joined Bolt as a party. Bolt responded, describing himself as a sperm donor, and later filed a petition to relinquish his parental rights.

Limberis then petitioned for maternity under the Colorado Uniform Parentage Act (UPA), arguing that she was a presumed parent under the UPA. Havens moved to dismiss for failure to state a claim on which relief could be granted. Havens argued that because A.R.L. had a father and a mother, Limberis could not be a second mother and third parent under the UPA. The trial court agreed and dismissed Limberis’s petition. Following a hearing, the court allocated all parental responsibilities to Havens and granted Bolt’s petition to relinquish his parental rights.

The Court of Appeals found that the trial court erred in denying Limberis’s maternity petition on legal grounds without considering the merits. Limberis alleged facts in her petition that, if true, demonstrated she was an interested party. Therefore, she did not lack capacity under the UPA. The UPA’s purpose is to establish and protect the parent–child relationship. A person may be a presumed parent without being a biological or adoptive parent.

The Court rejected the argument that granting Limberis’s maternity petition would have left A.R.L. with three legal parents. First, Bolt was, at most, an alleged father. Second, no other statutory presumption applied to Bolt. Third, even if Bolt claimed a presumption as the father, that presumption is rebuttable. Fourth, if Bolt had filed a petition for parentage, it would have just been a competing petition, not the possibility of three parents. Finally, Bolt never claimed paternity.

The Court also rejected the argument that there is no authority in Colorado to support substituting a second legal mother for a child’s legal father. At most, the trial court had two competing presumptions to consider.

Finally, the Court addressed the underlying implicit premise of the trial court’s ruling—that a child may not have two legal mothers under the UPA. The Court found nothing in the UPA that would prohibit a child from having two same-sex parents. Accordingly, the order denying Limberis’s maternity petition was reversed. On remand, the trial court must determine whether Limberis is A.R.L.’s presumptive mother under the UPA’s holding out provision.

Summary and full case available here.