*1 re the PEOPLE State Colorado, In the Interest of Child
Minor County Department of Human Paso
El
Services, Petitioner Concerning G.H., G.H., R.H., Respondents.
A.P.,
No. 09SA22. Colorado,
Supreme Court Banc.
En 14, 2009.
Sept. *2 agree inappro-
We that C.A.R. 21 relief is priate in this case. The father had two other First, disagreed if remedies. the father order, court’s appeal- the trial he should have through expedited appeals ed applicable process for cases neglect adjudications established in Instead, reason, 3.4. apparent C.A.R. for no until he waited after the months deadline passed seeking for 3.4 relief and then 21. Although filed this under C.A.R. 21 review is for available cases that need, a compelling demonstrate absent such may C.A.R. 21 serve need as substi- remedy an appellate tute for that a Migliaccio, Springs, Davide C. Colorado simply Second, party fails to exercise. CO, Attorney Respondent G.H. pending depen- father can intervene in the dency custody seek County Attorney, El ease and Office of the Paso Louis, discharge County Accordingly, El that forum. we William Paso Attor- Hobbs Thirkell, rule show cause. ney, Deputy County John A. Chief Attorney, CO, Attorneys Springs, Colorado County History Department El II. Facts and Paso Hu- Procedural
man Services. undisputed. Some facts are Mueller, P.C., Mueller, was to mother born A.P. father
Susan L. Susan L. G.H. CO, parents together. while the two Attorneys Respon- lived The Springs, Colorado married, couple they separated was not dent A.P. shortly daughter after their was born. The Walker-Johnson, Monument, CO, Nancy J. father was not named birth on the certificate Guardian ad litem. acknowledge and did not her as his child. During year, her first A.H. was her moth- Chief MULLARKEY Justice delivered the er’s The little care. father had or no contact opinion of the court. part raising with A.H. and took no her. I. Introduction He was identified as A.H.’s father and or- original proceeding pursuant This pay support dered to child as a result of a brought by A.H., C.A.R. was paternity against action filed him after the depen- a minor child who public mother received assistance for the dency pending case El reports of A.H. care Uncontroverted and tes- County Paso District Court. The father timony record indicate the father wrongfully claims that the district court de- sought custody A.H., never visitation or custody nied him of A.H. Depart- after attempts up and DHS’s visitations with set (“DHS”) ment of Human Services failed to went the father The mother unanswered. tes- prove at trial he that was unfit it tified that was she who reinitiated contact he was dismissed between father and sometime after neglect case. he to acknowledge the child’s first birthday.
We issued a rule to show and re- cause DHS, mother, ceived responses from the Approximately years after two A.H.’s guardian respon- birth, ad investigation child’s litem. The DHS initiated an into argue dents that relief is appropriate investigation, A.H.’s care. After an initial under C.A.R. 21 because the had neglect petition filed a DHS remedy that he failed to Alterna- allegations against exercise. in A.H.’s case based on tively, they contend he is not independent entitled the mother and prevail against day the merits. the father. One while the moth- court, home, custody visitation visiting the father’s and A.H. were er the trial of A.H. he also failed to and took DHS arrived had In- he decision the established deadline. father contends respondents stead, missing removed her. months after dead- DHS several *3 claim, ruled petition and the district court dispute appeal, his line to file for an he filed father. against prohibition. the a writ of for that the mother ad- court found The trial Analysis III. DHS’s of in
mitted two the father, in respect to her. petition with explanation The father offers no for contrast, right to a trial as his exercised Instead, failure to the he his order. him. petition’s allegations against four to the arguments. supports his with three petition jury held in his favor on three The first First, that, he did although he asserts noth on the allegations and did not reach verdict order, months the ing for over three after jury returned a verdict fourth. The second procedure by expedited appeal established moved on the last claim. DHS for father timely enough to 3.4 was not address C.A.R. verdict, notwithstanding judgment challenges trial his to the court’s order. Sec that the trial court denied motion but ond, questions he whether the order was neglect peti- dismissed Third, argues appealable. final and he that against the father. tion jurisdiction trial court lacked make (“the 1, In an dated 2008 order October custody any regarding A.H. determination order”), that the mother the trial court found Rejecting arguments, two the father’s first prior custody of A.H. to DHS’s interven- had inap that C.A.R. 21 relief is we determine tion, found in propriate this case. We therefore decline two to the mother based on her respect with jurisdic to address merits of the father’s admissions, jurisdic- retained and therefore argument. tional order over A.H. and the mother. The tion permanency goals to re- adopted concurrent adequate remedy A. The had an pending her com- turn to mother expedited appeal in C.A.R. 3.4’s per- program, treatment and to pletion of a procedure. paternal manently place A.H. with her 21 relief is limited to ex through guardianship per- grandparents traordinary where is no custody. circumstances there manent Maestas, adequate remedy. People v. other See order, the trial dis- In the same court (“Relief (Colo.2009) 713, 99 P.3d 716 1 proceedings father from the missed the appropriate ap 21 is when an under C.A.R. of due to failure lack DHS’s adequate remedy would not be pellate neglect- A.H. was prove that discretion.”); rectify a Pear serious abuse respect to the father’s conduct. ed Court, 512, (Colo. Dist. 924 515 son v. P.2d request it the father’s court also denied 1996). may appropriate It also be where the pa- grant finding him juris without or in excess of trial acts contrary to custody was A.H.’s best rental is no reme diction there other The trial court advised the interests. McCrea, Halaby, Hoffman, v. dy. & Cross any inter- two to assert continued methods (Colo.1992); 902, People P.2d 905 v. 831 First, in trial court est A.H. stated 121, 123, 236, 570 Gallagher, P.2d 194 Colo. custody or request wanted to if the father (1977). 237-38 visitation, party could intervene as a he proceedings pursue relief expedited ap- This court established filing appropriate motions. In addi- specifical- in peal process 3.4 outlined C.A.R. tion, orally hearing in its during both ly to the timeliness address order, the court stated that the written dependency and cases. This was appealable as to the father. was final and to reduce the part of a nationwide effort im- spent care and options time children foster neither The father exercised court; for these vulnerable chil- prove he not seek outcome offered did 584 jurisdictions it enough. Several focused his case because is not
dren. swift However, gives expedite appeals reasoning beyond welfare he no child need to conelusory not, Eibsen Toni statement. He does for ex- cases. Laura Grzetic & J. ample, identify any Neglect Dependency Appeals Un- circumstances that would Gray, (Oct. distinguish 34, 55, his depen- case other 36 Colo. Law. 55-56 der CA.R. dency case in 2007) justify order to fact (discussing the Iowa and circumventing expedited procedure. adopted appeals pro- established Utah both argument Colorado); His is further shortly M. undermined before Karen cesses filing fact that he not failed to Expedite meet Ashby, Implementing 3.4, Cases, deadline of C.A.R. he waited over three Appeals Dependency Neglect 2005). (June yet months file his C.A.R. 21 n. Law. Colo. *4 any not 1997, Assembly extenuating does assert unusual or the General enacted section 19-1-109(3), circumstances. Pursuant to 3.4’s ex- workgroup a C.A.R. which created “to pedited filing requirements, changes ap- necessary ... ensure father’s consider to peal. fully would have concerning relinquish- been briefed within appeals that in cases sixty-one days ment, of the trial adoption, dependency neglect court’s order. and and (h). 3.4(b), (g), peri- C.A.R. and being within months This entire be resolved six after od, month, 7, 254, 19-1-109(3), plus passed another before the filed. Ch. sec. 1997 begin chose briefing peri- to even Colo. Laws 1433. Sess. appeal by in this filing od 21 his C.A.R. regarding Serious discussions Colorado’s petition, with explanation delay. no for the disposing in interest and ne- exigency No was ever asserted or demon- timely glect appeals began in a more fashion despite strated the claim that swiftness was 2004, in after the states Iowa Utah and of the essence. expedited adopted appeals processes in 2002 If were to we conclude that 2004, the C.A.R. 3.4 respectively. Gray, and Eibsen & su- appellate process timely enough was not in 56-57; pra Ashby, supra sympo- at at 48. A presented this case—which on the ap- facts procedure sium was held which Iowa’s pears urgent no more depen- than all and, afterward, other discussed several other or- dency neglect and petitions issue, would ganizations began to discuss the in- —we be concluding expedited appel- effect that the cluding the Court Improvement Colorado procedure timely enough late is Committee, never for a the Colorado Bar Association neglect (“CBA”) case. Given that Section, Juvenile Law the Colorado specifically C.A.R. 3.4 was established as an County Attorneys, Child Welfare the Colora- expedited procedure for dependency and ne- County Association, Attorneys do CBA glect cases and has had a Council, documented effect finally Executive this court. reducing appellate periods,1 we conclude Gray, 2005, & supra Eibsen 56. In is an adequate remedy that it to address trial adopted expedited appeal process in dependency court determinations and ne- impact set forth C.A.R. 3.4 to address the glect cases. appellate delay on families of in dependency cases. 3.4 expedites C.A.R. This conclusion does not mean that procedure appellate for these cases reduc- C.A.R. is in dependency never available ing periods, filing streamlining pleadings, neglect adjudications. If particular a making quickly record more presents case compelling bypass a need to easily Gray, accessible. Eibsen & supra at ordinary appeal process, C.A.R. re 55-58. may However, appropriate'. view be a party acknowledges The father that expedit- present specific demonstrating must facts a appeals process ed provided by compelling Simply C.A.R. 3.4 need. asserting that a him, was available argues to but appeal timely enough normal would not be appeals C.A.R. process adequate 3.4 was not inadequate trigger C.A.R. 21 In review. average mandate, 1. depen- time amount of it takes a been reduced dency neglect filing pass days four a half months. Eibsen & —about appeals, filing supra court of date Gray, from the a court at 55. case, IV. Conclusion had an present it. not utilize remedy but chose available expedited ap We conclude immediacy com- showing of He makes no procedure in C.A.R. 3.4 ade peal established expedited bypass 3.4’s pelling need to protects parent’s a interest in a quately Accordingly, 21 relief appeal process. timely of orders in review present case. inappropriate proceedings. We also conclude specific party presents a facts demon unless appealable. final and B. The order was process strating expedited appeal trial argues case, that the The father also particular C.A.R. 21 inadequate in a necessarily appealable was not Simply stating, court’s order is not available. review However, 19—1— more, 3.4. section under C.A.R. that C.A.R. 3.4 would (2008), specifically states enough C.R.S. timely be does suffice. relationship parent’s legal regarding case, appropri orders had an present the father depen child, adjudications as well as remedy challenge de ate appealable. final and dency neglect, are but he neither chose exercise terminations 19-l-109(2)(b) (c). In to sec addition expedited appeal nor right to an offers his 19-1-109(2), expressly the trial court tion compelling facts to indicate need to *5 appealable. Dur the order was stated that appeal process. Accordingly, that we bypass orally ing hearing, while the court the discharge rule to show cause. the counsel ruling, its the father’s delivered final judge the order was whether asked the dissents, and MARTINEZ Justice Justice time; responded in the judge the trial
at that
join in
BENDER and Justice COATS
the
“Absolutely.”
father’s
affirmative:
dissent.
answer,
acknowledged
then
the
counsel
MARTINEZ, dissenting.
Justice
this
immediately confirmed that
judge
the
More
appealable
classic
order.”
“[a]
was
majority
in
refuses to intervene
this
over,
that
expressly
written order
stated
the
prevent
juvenile
pro-
from
case to
court
appealable.
was final and
judgment
the
ceeding
jurisdiction
jury
after a
de-
without
judge
explicitly
had not
told
Even if the trial
failing to find that A.H.
de-
termination
was
in
the
orally
writing
that
the father both
neglected. The basis
the
pendent and
law as
appealable,
final and
the
order was
intervene,
majority’s
to
that G.H. did
refusal
Assembly
have
by
written
the General
would
remedy
pursue
legal
an
and can
not
the
would have been
applied
still
order
case,
pending
in
the
misses
ask
ready
Accordingly, we conclude
for review.
point. Regardless of
G.H. failed
the
whether
appealable and
order was final and
request custody
pend-
appeal or can
to
aware, or at least
have
the father was
should
case,
juvenile
pro-
court
ing
because
aware,
been
of that fact.
jurisdiction,
ceeding
that ease will
without
futilely,
entering
court
continue
with the
now
Remedy
Alternative
C.
concerning the care and control of
orders
ultimately have
opportunity
his
A.H. that
no effect. Because
Although the father missed
time,
raised
appeal
by failing
jurisdiction
final
to meet
can be
deadline,
eventually
or
note
he is not
the issue is
revisited
re-
filing
we
correctly decided—those orders
remedy
may
petition
still
viewed—and
without a
—he
A.H.,
dependency
and the
and ne-
or
will be vacated
trial court for visitation
view,
my
proceedings
we
glect
he
in the order he
dismissed.
as was instructed
cause
properly
a rule
show
in this
today.
petition
the father
issued
from
Should
A.H.,
make
rule absolute after
court
make a
case and should
custody of
the trial
will
light
jury
explaining
in
determi-
based
the best interests
determination
on
child,
failing
preponderance
find
order at
here.
nation
as it did
issue
dependent
A.H.
again disagrees
the trial
the evidence that
was
If the father
determination,
may
neglected,
de-
A.P.’s no-fault admission
not
he
adjudication in this
case.
appeals process.
proper basis
cision via the established
neglected
allegation,
is not a
finding
Because A.P.’s no-fault admission
as to the fourth
adjudication,
juvenile
proper
subjected
injurious
basis for
was
envi-
jurisdiction
exercise of
Thus,
court’s continued
over
jury failed to
ronment.
find that
'
I
improper. Accordingly,
this matter
re-
neglected.
A.H. was
spectfully dissent.
filing
After the
of a
and ne-
majority
adju-
disregards the
Because the
glect petition,
adjudication,
prior
but
court,
dicatory
juvenile
proceedings
juvenile
jurisdiction
court
enter tem-
liberally
choosing instead
borrow
1—104(l)(b),
porary
orders.
C.R.S.
19—
representations about the facts of this case
(2008). However, jurisdiction does not con-
juvenile
that were not
determined
tinue if
adjudicatory
court in
I be-
proceedings,
proven,
juvenile
are not
court
gin by describing
proceed-
the status of the
’
jurisdiction
both
is without
matter
ing
juvenile
court.
personal
respon-
over the
Department
El
County’s
Paso
of Human
Id.;
19-3-403,
dents and the minor child.
(“DHS”) initiated
Services
(2008).
C.R.S.
on
proceeding
behalf
filing
alleging
several
violations of
Because A.P. made a no-fault admission
(2008).
19-3-102,
provisions of section
C.R.S.
and two
verdicts
to find that
legal allegation
A.P.
admitted
care,
G.H.’s
homeless,
care,
proper
“[t]he child is
17, 2008,
July
ques-
his or her
...
domiciled with
tioned whether A.P.’s admission alone could
parent,”
such
a violation
no-fault of
support its continuing jurisdiction over this
3—102(l)(e).
of section
A.P.
factual
made
19—
T.R.W.,
case,
(Colo.
citing In re
Separate apart at child’s status that is issue and deter- “legal custody” of focus on the jurisdiction. mines whether T.R.W. In court misconstrued P.D.S., T.R.W., Dependency P.2d at 627. the father of two minor children who adjudications do determine primary and control of the children had care is dependent whether a child physical accused 759 P.2d at abuse. Instead, parent. “as to” each Id. 627-28. made no-fault admission 769. mother adjudications determine the child is whether contained in the *7 dependent neglected and at all. Id. Because neglect. dependency and Id. adjudicated admission, dependent and a child is not jury no and a trial was held made neglected parent, “as to” instead finding each and jury returned a verdict at which child, on the of the a no- proven. focus is status none of the had been sup- fault However, juvenile admission alone is not sufficient court entered an Id. finding neglect, of port and adjudicating dependent the children find particularly jury where a has failed to neglected despite jury’s on and verdict neglected. dependent child is and mother’s the basis of the no-fault admission. Therefore, a jury once has failed to find Id. notwithstanding a neglect, appeal, the court of held that On admission, juvenile no no-fault court has application “although of 19—1— strict continuing jurisdiction the matter. See over (1986) 103(20)(e) permit an [C.R.S. ] would 19-l-104(l)(b). adjudication dependency and of provision An is admission the no-fault parent’s the basis of a noncustodial admission underlying goals with the of sec- a child domiciled with her consistent is not own, it is adjudi- provisions an tion 19-3-102 its of her allow such no-fault properly meaning parent the finder fact has deter- understood as cation where of a dependent responsibility welfare mined that the child denies dependent and ne- produce an child while the child is neglected ... would absurd re- addition, physical custody majority regarding legal arguments the tion 2. In G.H. made question ignoring pivotal addresses after A.H. jurisdic- juvenile court without whether the was 588 rights of a
gleeted parent’s in the other care. Accord- control child and the custodial provision intervention, ingly, gener- parents. admission to the our Absent ally gain dispositional authority juvenile over used court will continue to enter orders agrees dependent who the child is concerning and care A.H. knowledge or re- neglected, any jurisdiction but denies to do so. Because sponsibility for because child time, that status lack of can be raised at T.R.W., parent. resides with the other 759 always being orders will be these A.M., 769; P.2d at P.2d at 786 476-77. declared void. no-fault cannot A.P.’s admission sustain reasons, foregoing For the I I am dissent. adjudication. The effect of ad A.H.’s A.P.’s authorized to state Justice Bender and mission concerned A.H.’s status while join Coats Justice dissent. care, jury and a was G.H.’s subse quently failing a verdict to find that returned dependent neglected in G.H.’s A.M., (holding
care. 786 P.2d See dependent neglected
children were not
where the mother made no-fault admission petition’s allega denied T.R.W.,
tions); 771; compare P.2d at U.S., People rel. ex P.3d 326 PEOPLE State Colorado, depen (Colo.App.2005).(recognizingchild was Petitioner. dent and where father admitted to v. petition’s allegations, several of the even VALENZUELA, Robert Gene though child was found not Jr., Respondent. care). neglected in mother’s Because verdicts failed to find A.H. No. 08SC418. care, neglected in contrary G.H.’s A.P.’s Colorado, Supreme Court of admission, juvenile jurisdic court lacks En Banc. tion this case. over view, my appro- our review is Sept. 2009. priate in this case on the basis that jurisdiction, court without a suffi- persuasive cient and reason to intervene re-
gardless of expedited proceedings 3.4 whether appeal. G.H.
This granted often C.A.R. 21 relief *8 wholly juris-
when courts have acted without jurisdiction. See,
diction or in excess of their Court,
e.g., People v. City Juvenile Denver, County (Colo.1996); P.2d
Peña v. District Court
Second Judicial
Dist,
(Colo.1984).
Here, because a determined that alle-
gations were not
proven evidence, preponderance wholly jurisdic- court is
tion to concerning continue enter orders parents. view, my
A.H. and her the most
important grant reason for this court
C.A.R. 21 relief is when acts jurisdiction,
absolutely no especially directing that court is the care