2021 CO 39
Colo.2021Background
- Two-year-old B.H. was placed in Colorado foster care in Aug. 2018; parents had prior Indiana dependency proceedings and had moved to Colorado in 2018.
- Father made initial progress on a court-ordered treatment plan but later threatened counsel and caseworkers, was arrested with a gun and drugs, and stopped participating in required services and visits.
- The Arapahoe County court adjudicated B.H. dependent and neglected and later terminated both parents’ rights; mother did not appeal.
- Father appealed arguing (1) Colorado lacked UCCJEA jurisdiction because of prior Indiana custody actions, (2) denial of a third court-appointed attorney violated due process and statutory rights, and (3) the Department failed to make reasonable reunification efforts and did not adequately explore less-drastic placements.
- The Supreme Court held the termination must be vacated and remanded for jurisdictional factfinding under the UCCJEA (possible Indiana order); it rejected father’s due process and statutory-counsel claims and upheld the district court’s finding that no viable less-drastic alternative existed.
Issues
| Issue | Father’s Argument | People/GAL’s Argument | Held |
|---|---|---|---|
| Whether Colorado had authority under the UCCJEA to modify/terminate given prior Indiana proceedings | Indiana issued a prior custody determination returning physical custody to parents; Colorado had to follow UCCJEA modification procedures (request Indiana decline) | No qualifying out-of-state custody order existed; Colorado could exercise significant-connection jurisdiction or child had no home state | Judgment vacated and remanded for jurisdictional factfinding; if Indiana order returned custody, Colorado lacked modification jurisdiction absent UCCJEA procedures |
| Whether the Indiana proceedings qualify as a “child-custody determination” under the UCCJEA | The Indiana reunification/dismissal effectively returned physical custody and thus is a custody determination | The dismissal does not necessarily create a qualifying custody determination | Court declined to decide on the record; found record suggests such an Indiana order may exist and remanded for factfinding; if an Indiana order effectively returned custody, it qualifies |
| Whether denying a third appointed attorney violated due process or statutory right to counsel | Father said proceeding pro se was fundamentally unfair and his discharge of second counsel was involuntary | People/GAL said Lassiter/Mathews balancing did not require a third attorney; father’s threats and noncooperation waived statutory right | No due process violation; risk of erroneous result was low given overwhelming evidence; father voluntarily (impliedly) waived statutory right by obstreperous, dilatory conduct |
| Whether the Department made reasonable efforts and whether less-drastic placement alternatives were adequately explored | Department failed to mail family finding letters and did not explore enough placement alternatives (e.g., grandmother) | Department provided rehabilitative services and explored relatives/foster options; child needed permanency; relatives were unsuitable | District court’s findings affirmed: reasonable efforts for rehabilitation satisfied; no viable less-drastic alternative given child’s needs and relative concerns |
Key Cases Cited
- Brandt v. Brandt, 268 P.3d 406 (Colo. 2012) (UCCJEA domicile/present-residence inquiry and requirement to communicate with issuing state)
- People in Interest of C.L.T., 405 P.3d 510 (Colo. App. 2017) (vacatur and remand for jurisdictional factfinding when record suggests prior out-of-state custody order)
- G.B. v. Arapahoe Cnty. Ct., 890 P.2d 1153 (Colo. 1995) (focus on the effect of orders when determining whether an order is a custody determination)
- Madrone v. Madrone, 290 P.3d 478 (Colo. 2012) (UCCJEA forum and jurisdiction principles)
- Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981) (Mathews balancing for appointment of counsel in parental-rights termination)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for procedural due process)
- Santosky v. Kramer, 455 U.S. 745 (1982) (fundamental fairness required before state severs parental rights)
- C.S. v. People, 83 P.3d 627 (Colo. 2004) (application of Lassiter balancing in Colorado termination proceedings)
- People v. Bergerud, 223 P.3d 686 (Colo. 2010) (standards for waiver of counsel review)
- People v. Arguello, 772 P.2d 87 (Colo. 1989) (obstreperous/dilatory conduct can amount to implied waiver of statutory rights)