2019 COA 125
Colo. Ct. App.2019Background
- Parents (M.B. and S.T-K.) and child are Iranian citizens; parents divorced in Iran in 2009 and an Iranian dissolution decree awarded custody to mother.
- Child moved to U.S. (California 2015; Colorado 2016); after mother’s involuntary psychiatric hospitalization in 2016, Colorado ADHS took the child into protective custody and filed a dependency/neglect petition.
- Father remained in Iran throughout the Colorado proceedings; the Department sought and obtained service by publication in Adams County and a default adjudication as to father.
- The juvenile court terminated both parents’ parental rights in May 2018. The Department had filed an English translation of the Iranian dissolution decree showing mother’s custody.
- On appeal, parents challenged subject-matter jurisdiction under the UCCJEA and due-process sufficiency of service on father.
Issues
| Issue | Department's Argument | Parents' Argument | Held |
|---|---|---|---|
| Whether Colorado juvenile court had jurisdiction to terminate parental rights given an existing Iranian custody order | Colorado could ignore/modifiy the Iranian order because it allegedly did not conform to UCCJEA or because Iranian custody law violated fundamental human-rights principles | The Iranian custody order is an existing foreign order that confers continuing exclusive jurisdiction under the UCCJEA; Colorado was limited to temporary emergency jurisdiction and could not terminate parental rights | Court: Juvenile court lacked subject-matter jurisdiction to terminate parental rights; it could only exercise temporary emergency jurisdiction and therefore could not enter permanent termination orders |
| Whether the Iranian custody decree substantially complied with UCCJEA jurisdictional standards | Department: decree insufficient (e.g., lacked best-interest findings) | Parents: decree shows home-state jurisdiction, parental participation, notice; conforms to UCCJEA standards | Court: Iranian decree substantially conformed to UCCJEA jurisdictional standards and must be recognized |
| Whether the UCCJEA human-rights "escape clause" authorizes disregarding Iranian custody law | Department: Iranian law discriminates by gender and may violate fundamental human rights, so Colorado need not enforce the order | Parents: Department failed to invoke or prove the escape-clause facts; record lacks supporting evidence | Court: Escape clause applies only in rare, egregious cases; Department failed to invoke or support it, so it does not apply |
| Whether service by publication on father (in Iran) satisfied due process | Department: publication was appropriate because father’s residence was unknown and personal service was impracticable | Father: Department did not exercise due diligence or use available means likely to give actual notice; publication alone was inadequate | Court: Service by publication was constitutionally inadequate; father must be served per statutory summons requirements on remand |
Key Cases Cited
- People in Interest of M.C., 94 P.3d 1220 (Colo. App. 2004) (temporary emergency jurisdiction under UCCJEA is limited and cannot support permanent custody dispositions)
- People in Interest of D.P., 181 P.3d 403 (Colo. App. 2008) (Colorado judge must personally confer with issuing court under UCCJEA)
- Synan v. Haya, 15 P.3d 1117 (Colo. App. 2000) (service by publication constitutional standards; substituted service must reasonably afford actual notice)
- People in Interest of M.M., 726 P.2d 1108 (Colo. 1986) (due-process notice and opportunity to be heard required in dependency and neglect and termination proceedings)
- People in Interest of J.C.S., 169 P.3d 240 (Colo. App. 2007) (actual notice does not substitute for formal service requirements in dependency/neglect proceedings)
- Amin v. Bakhaty, 798 So.2d 75 (La. 2001) (discussing jurisdiction and best-interests considerations under UCCJA; distinguished by court here)
- Coulibaly v. Stevance, 85 N.E.3d 911 (Ind. Ct. App. 2017) (courts’ interpretation of UCCJEA/Hague human-rights exception)
- Toland v. Futagi, 40 A.3d 1051 (Md. 2012) (interpretation of human-rights escape clause)
- In re Yaman, 105 A.3d 600 (N.H. 2014) (analysis of foreign custody law under human-rights exception)