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Colorado Court of Appeals Opinions || July 30, 2015 Colorado Court of Appeals -- July 30, 2015
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Court of Appeals No. 14CA2172 The People of the State of Colorado, Petitioner-Appellee, In the Interest of C.G., and Concerning J.N. Respondent-Appellant.
ORDER REVERSED AND CASE Division III
Opinion by JUDGE DAILEY Announced July 30, 2015 Ellen G. Wakeman, County Attorney, Writer Mott, Assistant County Attorney, Rebecca Klymkowsky, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee Bachus & Schanker, L.L.C., J. Kyle Bachus, Brian Bradford, Denver, Colorado, for Respondent-Appellant J.N.
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¶1       J.N. (father) appeals the trial courtâs order denying as moot his C.R.C.P. 60(b) motion to vacate its prior orders entered in the dependency and neglect proceeding regarding his child, C.G. ¶2       We consider, as a matter of first impression, whether the orders became moot following the childâs death. Under the circumstances of this case, we conclude that fatherâs request for relief under C.R.C.P. 60(b) was not moot. Alternatively, we are persuaded that father has established that his request for relief meets the âcapable of repetition yet evading reviewâ and âpublic interestâ mootness exceptions. Accordingly, we reverse the order, and remand the matter to the trial court for a determination on the merits of fatherâs C.R.C.P. 60(b) motion. I. Background ¶3       In March 2006, the Jefferson County Division of Children, Youth and Families (Division) filed a dependency and neglect petition and assumed temporary custody of the then five-year-old child and his younger half-sibling. The petition asserted that the childâs father, identified as John Doe, âwhereabouts unknown,â had abandoned him. One day after filing the petition, the Division moved to serve John Doe by publication. The court granted the request. Approximately one week later, the Division published notice of the proceeding. ¶4       In May 2006, the court placed the child in the temporary custody of Jon Phillips, the father of the childâs half-sibling. In November 2006, the court adjudicated the child dependent and neglected by default as to John Doe. The court subsequently granted an allocation of parental responsibilities (APR) for the child to Phillips and terminated its jurisdiction over the proceeding.
¶5       The child died a year later. Phillips was convicted of first degree murder and child abuse resulting in death. People v. Phillips,
¶6       Several years later, father, the childâs mother, and the personal representative of the childâs estate commenced a federal court action against the Division, the Denver County Department of Human Services (Denver Department), and two caseworkers from the Denver Department. The claims were brought under 42 U.S.C. § 1983 (2012) for violation of the childâs substantive due process rights. Schwartz v. Booker, ¶7       In June 2014, father moved for C.R.C.P. 60(b) relief in the dependency and neglect proceeding. He sought to vacate the trial courtâs orders, among others, that (1) found John Doe in default; (2) transferred temporary legal custody of the child to Phillips; (3) adjudicated the child dependent and neglected; (4) awarded APR to Phillips; and (5) terminated the courtâs jurisdiction over the proceeding. Specifically, father asserted that because the Division had failed to exercise due diligence to ascertain his identity before it served him by publication, the default judgment and all later orders were void for lack of due process under C.R.C.P. 60(b)(3). Alternatively, he asserted that the orders should be vacated because the Division had committed fraud on the court. ¶8       In the motion and in reply to the Divisionâs response that the matter was moot, father maintained that the relief he requested would have a practical effect on an existing controversy â the federal 42 U.S.C. § 1983 action. He explained that vacating the orders would remove any doubt that the child was in the stateâs custody up until the time that he was killed and, thus, would establish that the child had an ongoing special relationship with the state. In requesting a hearing on his motion, he expounded that his request for relief affected the only issue currently pending in the federal action â the childâs custodial status with the state â and voiding the orders would likely enable him to defeat a pending motion for summary judgment. ¶9       Without holding a hearing, the trial court denied fatherâs motion as moot. It concluded that setting aside the judgment would have no practical legal effect on the dependency and neglect proceeding, which related solely to the childâs status and protection; that fatherâs argument that the motion could impact his federal action was without merit; and that none of the exceptions to the mootness doctrine applied. II. Mootness ¶10       Father contends that the trial court erred in finding that, in light of C.G.âs death, his request for C.R.C.P. 60(b) relief was moot. We conclude that fatherâs request for relief is not moot because of the collateral consequence in the dependency and neglect orders in fatherâs federal action. A. Legal Standard
¶11       We review de novo the legal question of whether a case is moot. Colo. Mining Assân v. Urbina,
¶12       When possible, a court should resolve disputes on their merits. Stell v. Boulder Cnty. Depât of Soc. Servs.,
¶13       Still, an issue is not moot when the judgment may result in significant collateral consequences to a party. See People in Interest of T.B.,
¶14       In Oborne,
¶15       The Colorado Supreme Court has also recognized the principle that ââa criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.ââ Moland v. People,
¶16       Whether collateral consequences preclude an issue from being deemed moot turns on showing the reasonable possibility of such consequences. Williams v. Ragaglia, B. Substantive Due Process ¶17       Our analysis begins with a review of the requirements for establishing the violation of a childâs substantive due process rights under 42 U.S.C. § 1983.
¶18       The Due Process Clause of the Fourteenth Amendment protects a personâs life, liberty, and property against government actions. Daniels v. Williams,
¶19       Generally, state actors are only liable for their own acts, and the Due Process Clause does not require the state to protect persons against criminal conduct of private actors. DeShaney v. Winnebago Cnty. Depât of Soc. Servs.,
¶20       As pertinent here, the special relationship exception provides that state officials may be liable for the criminal acts of private parties when the state has assumed a special relationship with and control over the victim. Id.; Schwartz,
¶21       Children in the custody of the state have a constitutional right to be reasonably safe from harm. Yvonne L. v. New Mexico Depât of Human Servs.,
¶22       For example, when a special relationship exists between the state and a foster child, a state official may be held liable for violating the childâs constitutional rights when the official knew of a danger, failed to exercise his or her professional judgment to protect the child, and the failure can be affirmatively linked to the childâs injuries. Johnson ex rel. Estate of Cano v. Holmes, C. Application ¶23       We conclude that fatherâs request for C.R.C.P. 60(b) relief is not moot because the orders entered in the dependency and neglect proceeding impose a collateral consequence on father. Specifically, they are being urged to deny father relief in the federal action. 1. The Federal Action
¶24       The federal district court has dismissed fatherâs 42 U.S.C. § 1983 claims against the Division, the Denver Department, and the caseworkers in their official capacity. However, the claims against the caseworkers in their individual capacity remain pending. See Schwartz v. Booker, No. 09-CV-00915-WJM-KMT, ¶25       The caseworkers have moved for summary judgment in the federal action, asserting that they cannot be held responsible for the childâs death because he was not in the stateâs custody after May 2006. They rely on the May 2006 order transferring temporary legal custody of the child to Phillips and the January 2007 order awarding APR to Phillips. According to the caseworkers, because these orders show that the child was not in the stateâs custody at or near the time of his death, the requisite special relationship between the child and the state did not exist.
¶26       Their argument explains how the temporary custody order and the APR order, from which father seeks relief, are being used to bar him from pursuing the federal action under 42 U.S.C. § 1983. As well, the orders finding father in default and adjudicating the child dependent and neglected furnished the basis for the trial courtâs authority to enter the APR order. See People in Interest of K.A.,
¶27       A void judgment, however, is a complete nullity and has no legal effect. In re C.L.S.,
¶28       As the Illinois Court of Appeals explained, vacating a void judgment entirely destroys it and the vacatur restores the parties to the status quo ante, as though the trial court judgment had never been entered. People v. Eidel,
¶29       Consistent with these precedents, the federal district court has recognized that a ruling on fatherâs C.R.C.P. 60(b) motion âmay have some impact on [the childâs] legal statusâ in the federal action. Schwartz, ¶30       Given all this, if father is not granted the relief that he seeks, the orders entered in the dependency and neglect proceeding will probably bar father from relief in the federal action. In contrast, if fatherâs motion for C.R.C.P. 60(b) relief is granted, there is a reasonable possibility that he may be able to defeat the summary judgment motion, and then pursue his remaining claims in the federal action. Thus, the dependency and neglect orders, from which father seeks relief, impose a significant collateral consequence in fatherâs federal action.1 ¶31       Therefore, we conclude that his request for C.R.C.P. 60(b) relief is not moot. The childâs death does not alter this conclusion. 2. The Childâs Death.
¶32       Under somewhat similar circumstances, the Iowa Supreme Court concluded that a motion to vacate a judgment terminating a parentâs rights was not moot as a result of the childâs death. In Interest of E.C.G.,
¶33       We recognize that the trial court relied on In re L.W., ¶34       L.W. is distinguishable from fatherâs circumstances. As we have previously discussed, the dependency and neglect orders are actively being argued to bar fatherâs claims stemming from the childâs death under 42 U.S.C. § 1983. Thus, in contrast to L.W., the collateral consequence arising from the orders is not speculative. ¶35       For these reasons, the trial court erred in finding that fatherâs motion for C.R.C.P. 60(b) relief was moot. III. Mootness Exception ¶36       Alternatively, we conclude that even if fatherâs motion was moot, the district court should nonetheless have considered its merits because its substantive issue fell within the exceptions to the mootness doctrine.
¶37       Two exceptions apply to the mootness doctrine. State Bd. of Chiropractic Examârs v. Stjernholm, A. Capable of Repetition Yet Evading Review
¶38       A case may be capable of repetition yet evading review even when the precise factual circumstances from which the controversy arose are unlikely to recur. Cloverleaf Kennel Club, Inc. v. Colo. Racing Commân, ¶39       The issue presented in fatherâs C.R.C.P. 60(b) motion concerns the Divisionâs alleged failure to exercise due diligence to ascertain his identity, locate him, and serve him personally, before it served him by publication under section 19-3-503(8)(b), C.R.S. 2014. Issues concerning the failure to properly identify and serve unnamed parents may well recur yet evade judicial review.
¶40       First, the failure to identify and properly serve an unnamed parent is not unique to this case. See White v. Davis,
¶41       Second, claims that parents were improperly served by publication under section 19-3-503(8)(b) are capable of evading review because parents who are served by publication are less likely to learn of dependency and neglect proceedings concerning their children. See Watts v. Crawford,
¶42       To be sure, situations may arise in which a parent will learn of the dependency or neglect proceedings and challenge service under section 19-3-503(8)(b), as father did here, albeit after his childâs death. But as discussed above concerning the collateral consequences doctrine, we are also not persuaded that father should be denied review of the orders at issue under the mootness doctrine solely because his child died before he was able to do so. See Trinidad Sch. Dist. No. 1, ¶43       Thus, while it may be unlikely that the precise circumstances presented by father will recur, the underlying substantive question is one of a recurring nature that may otherwise evade judicial review. B. Issue of Great Public Importance
¶44       Moreover, the issue of what efforts due diligence requires before a parent may be served by publication under section 19-3Â503(8)(b) affects parental rights of constitutional magnitude. See People In Interest of O.C., ¶45       Because we have concluded that the order is not moot for these reasons, we do not address fatherâs remaining contention that the court erred by failing to adopt a collateral consequences exception to the mootness doctrine. IV. Conclusion ¶46       The order is reversed, and the matter is remanded to the trial court to consider the merits of fatherâs C.R.C.P. 60(b) motion. We express no opinion concerning the ultimate outcome that the trial court may reach on remand. JUDGE WEBB and JUDGE RICHMAN concur.
1 Thus, the dependency and neglect orders, from which father seeks relief, satisfy the collateral consequence test because of their possible impact in fatherâs federal action. In reaching this holding, we do not intend to suggest that allowing father to obtain C.R.C.P. 60(b)(3) relief, if he can demonstrate that he is entitled to such relief, will necessarily guarantee his ability to successfully pursue his federal 42 U.S.C. § 1983 claims. We hold only that fatherâs request for C.R.C.P. 60(b)(3) relief is not moot because there is a reasonable possibility that the challenged dependency and neglect orders will result in a collateral consequence to him in the federal action. See Moland v. People, These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here. Colorado Court of Appeals Opinions || July 30, 2015 Back |
People in the Interest of C.G., and Concerning J.N
410 P.3d 596
Colo. Ct. App.2015Check TreatmentAI-generated responses must be verified and are not legal advice.