The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF E.W., a Child, and Concerning H.W. and R.W., Appellants.
Court of Appeals No. 20CA1724
Colorado Court of Appeals, Division II.
January 13, 2022
Rehearing Granted January 13, 2022
508 P.3d 256, 2022 COA 12
Opinion by JUDGE WELLING
Alison K. Bettenberg, Denver, Guardian Ad Litem
James West, Office of Respondent Parents’ Counsel, Longmont, Colorado for Appellant, H.W.
Kristofr P. Morgan, The Morgan Law Office, Colorado Springs, Colorado, for Apрellant, R.W.
Opinion by JUDGE WELLING
¶ 1 In this dependency and neglect case, H.W. (mother) and R.W. (father) appeal the judgment terminating their parent-child legal relationship with their child, E.W. During the pendency of the dependency and neglect case (and more than six months before the termination hearing), the parents and the child separately relocated from Colorado to Montana. On appeal, the parents contend that this deprived the juvenile court of jurisdiction to terminate their parental rights, as Colorado was no longer the child‘s home state under the Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA),
¶ 2 Because we also reject mother‘s and father‘s other challenges to the juvenile court‘s termination judgment, we affirm.
I. Background
¶ 3 In September 2018, the El Paso County Department of Human Services (Department) filed a petition in dependency and neglect regarding then-nine-month-old E.W. (the child). The Department alleged that the police had responded to a domestic violence incident between the parents, the home was unsanitary, the child had been taken to the hospital and diagnosed with failure to thrive, the parents had a history of substance abuse and mental health problems, and mother‘s parental rights to two older children had been previously terminated in Montana.
¶ 4 The juvenile court adjudicated the child dependent and neglected and adopted treatment plans for the parents.
¶ 5 In July 2019, the сhild was placed with family-like kin providers in Montana through an Interstate Compact on the Placement of Children. In October 2019, the parents moved to Montana.
¶ 6 In February 2020, the Department filed a motion to terminate the parents’ rights.
¶ 7 In July 2020, following a hearing, the juvenile court entered judgment terminating the parents’ rights.
II. Subject Matter Jurisdiction
¶ 8 Mother and father contend that the termination judgment must be reversed
¶ 9 We review de novo whether the juvenile court had subject matter jurisdiction under the UCCJEA, which applies in dependency and neglect proceedings. People in Interest of M.S., 2017 COA 60, ¶¶ 11-12, 14, 413 P.3d 287. Because a challenge to the UCCJEA jurisdiction is a challenge to the court‘s subject matter jurisdiction, the issue may be raised at any time, including for the first time on appeal. See B.H., ¶ 27.
¶ 10 “The primary aim of the UCCJEA is 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.” People in Interest of M.M.V., 2020 COA 94, ¶ 17, 469 P.3d 556. “To effectuate this purpose, [the UCCJEA] establishes a comprehensive 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 сourt of another state.” Id.
¶ 11 “The UCCJEA covers a wide variety of child-custody matters, defined as child-custody determinations and child-custody proceedings.” Id.; see
¶ 12 Under the UCCJEA, the court that makes an initial child-custody determination generally retains exclusive, continuing jurisdiction.
¶ 13 The Children‘s Code gives a juvenile court exclusive jurisdiction concerning any child who is dependent and neglected.
¶ 14 The court that made an initial child-custody determination may, however, lose exclusive, continuing jurisdiction.
¶ 15 The parents don‘t dispute that Colorado was the child‘s home state when the dependency and neglect case was initiated and that the Colorado court had jurisdiction to make an initial child-custody determination. This is significant because home state jurisdiction is the preferred basis for establishing initial child-custody jurisdiction. See Madrone v. Madrone, 2012 CO 70, ¶ 11, 290 P.3d 478. Rather, they argue that the Colorado court lost subject matter jurisdiction before the Department sought to terminate their parental rights. More specifically, mother asserts that after the child had been in Montana for six months, Montana became the child‘s home state under the UCCJEA. Father contends that a termination is a new child-custody proceeding and a modification of a child-custody determination under the UCCJEA. The crux of both parents’ arguments is that the Colorado court had to re-establish its jurisdiction before hearing and ruling on the termination motion, and, having failed to do so, the court lacked jurisdiction to enter the termination judgment.
¶ 16 We acknowledge that the parents and the child didn‘t reside in Colorado at the time of the termination hearing and that these facts, tаken together and looked at in isolation, appear, at first glance, to provide fertile ground for arguing that the Colorado court had lost exclusive, continuing jurisdiction under the UCCJEA. See
¶ 17 To be sure, the Colorado court had jurisdiction throughout the dependency and neglect proceeding, including the termination stage, under section
¶ 18 Here, there were no competing or conflicting child-custody proсeedings or determinations by courts in different jurisdictions. Although a Montana court had initiated a dependency and neglect proceeding with regard to the parents’ later-born child, it hadn‘t sought jurisdiction, temporary or otherwise, over E.W. See
¶ 19 Moreover, our supreme court recently recognized in S.A.G., ¶ 39 n.3, that the filing of a termination motion doesn‘t start a new proceeding for purposes of assessing home state jurisdiction under the UCCJEA. Therefore, termination is not a new child-custody proceeding or a modifiсation of a child-custody determination that requires the juvenile court to re-assess its jurisdiction. Id. (“[I]n Colorado, a motion to terminate parental rights after a child has been adjudicated dependent and neglected is a request for a remedy, not the start of a second proceeding.” (citing
¶ 20 Because the Montana court didn‘t seek to exercise jurisdiction under the UCCJEA and termination is not a new child-custody proceeding, the Colorado court maintained its exclusive, continuing jurisdiction under section
¶ 21 Having concluded that the Colorado court maintained jurisdiction to consider the Department‘s termination motion, we reject the parents’ argument that the Colorado
¶ 22 Accordingly, we conclude that the Colorado court had jurisdiction to enter the termination judgment.
III. Inconvenient Forum Factors
¶ 23 Father contends that the juvenile court failed to consider the UCCJEA‘s inconvenient forum factors under section
¶ 24 Section
¶ 25 Six months before the termination hearing, father‘s counsel asked the juvenile court, “Should we be considering a change of venue on this case in Montana? They have an open D&N so it wouldn‘t be asking them to necessarily open a new case themselves but, I mean, we‘re trying to litigate a matter when all parties are thousands of miles away.” The court responded that the parties could discuss the issue. The guardian ad litem objected to a “change of venue” on the basis that the child needed permanency. The court made no findings, and the parents didn‘t ask the court to specifically rule on thе request. Further, neither parent subsequently filed a motion asking the court to consider section
¶ 26 We conclude that father didn‘t adequately preserve this issue for appeal. See Est. of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments never presented to, considered or ruled upon by a trial court may not be raised for the first time on appeal.“). He didn‘t ask the juvenile court to determine whether it was an inconvenient forum under section
¶ 27 Even if we were to conclude that father sufficiently alerted the juvenile court to consider whether Colorado was an inconvenient forum under section
¶ 28 Accordingly, because father raised this issue for the first time on appeal, we decline to consider it.
IV. Due Process, Equal Protection, and Venue
¶ 29 Mother contends that the juvenile court violated her due process and equal protection rights by failing to consider the request to change venue. We aren‘t persuaded.
¶ 30 Mother didn‘t adequately preserve the issue of change of venue for appeal. See Stevenson, 832 P.2d at 721 n.5. Although father raised the issue of changing venue, mother didn‘t. Nor did she file a motion to change venue or pursue a ruling on the issue of venue. Consequently, the juvenile cоurt didn‘t rule on the issue. So we don‘t have any factual findings or legal conclusions with regard to venue to review. See Hagan v. Farmers Ins. Exch., 2015 CO 6, ¶ 15, 342 P.3d 427 (a trial court‘s decision whether to change venue is reviewed for an abuse of discretion).
¶ 31 Moreover, the crux of mother‘s argument appears to be that the dependency and neglect proceeding should‘ve been litigated in a Montana court, not the Cоlorado court. But whether the dependency and neglect proceeding should‘ve been litigated in a Montana court is a question of jurisdiction, not venue. “Jurisdiction is the authority of a court to hear and decide a case presented to it.” Sanctuary House, Inc. v. Krause, 177 P.3d 1256, 1258 (Colo. 2008). “Once it is established that the courts of Colorado have jurisdiction to hear an action, the question of venue determines which pаrticular Colorado court should hear and try the case.” Id.
¶ 32 Because we‘ve already concluded that the Colorado court had jurisdiction to enter the termination judgment, we decline to address this issue further.
V. Less Drastic Alternatives
¶ 33 Father contends that the juvenile court erred by finding that there were no less drastic alternatives to termination. Specifically, he argues that the court could have allоcated parental responsibilities to the child‘s family-like kin placement provider in Montana. We discern no basis for reversal.
¶ 34 The juvenile court must consider and eliminate less drastic alternatives before it terminates the parent-child legal relationship. People in Interest of A.M. v. T.M., 2021 CO 14, ¶¶ 19, 40-41, 480 P.3d 682; People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008). In considering less drastic alternatives, the court bases its decision on the best interest of the child, giving primary consideratiоn to the child‘s physical, mental, and emotional conditions and needs.
¶ 35 Here, the juvenile court considered an allocation of parental responsibilities (APR) but determined that there were no less drastic alternatives to termination that would meet the child‘s needs. In doing so, the court noted that the child‘s placement provider was a family friend who had ties to the family, but determined an APR wasn‘t in the сhild‘s best interest. The court found that the case had been going on for almost two years and the child was young and needed consistency. The court also found that the child didn‘t have a meaningful relationship with the parents. Specifically, the court found that the child recognized the parents “as the people who are on the video screen sometimes but she doesn‘t know them” and there were concerns that “these strangers [could] pop up down the line on an APR.”
¶ 36 The record supports the juvenile court‘s findings. The case had been open for almost two years and the child and the parents didn‘t have a relationship. The caseworker testified that the child “didn‘t appear to recognize who [the parents] were since
¶ 37 The record also shows that the child was young and needed permanency. The caseworker testified that the child needed “a permanent home with stable, sober caregivers who are going to consistently meet her needs.” And when, as here, the child is less than six years old whеn a petition in dependency and neglect is filed, expedited permanency planning provisions apply.
¶ 38 The record further reveals that the Department and the placement provider preferred adoption over an APR. The caseworker testified that the placement provider wasn‘t willing to have an APR; rather, the provider wanted to adopt the child. The caseworker also testified that the parents weren‘t “in a place to safely parent” the child. The caseworker opined that given the protective order between the parents, their lack of engagement in treatment, and their continued substance use, the child couldn‘t safely return to the parents.
¶ 39 Given this evidence, we conclude that the record supports the juvenile court‘s findings about less drastic alternatives. Therefore, we won‘t disturb them on aрpeal.
VI. Conclusion
¶ 40 We affirm the judgment.
CHIEF JUDGE ROMÁN and JUDGE BROWN concur.