People In Interest of T.W., a Child ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 28, 2022
2022COA88No. 21CA1331, People in Interest of T.W. — Juvenile Court —
Subject Matter Jurisdiction — Authority to Act — Dependency
and Neglect — Deferred Adjudication — Allocation of Parental
Responsibilities
For the first time since the supreme court’s decision in People in
Interest of J.W. v. C.O., 2017 CO 105, a division of the court of
appeals is required to decide whether a juvenile court is able to
enter an order allocating parental responsibilities under a deferred
adjudication of dependency or neglect. The division concludes that
a juvenile court has continuing subject matter jurisdiction in a
dependency or neglect action after the entry of a deferred
adjudication. However, the division holds that a juvenile court
lacks the legal authority to enter an order for the allocation of
parental responsibilities unless the child has been formally
adjudicated dependent or neglected or the court has accepted an
admission from the parents that the child should be adjudicated
dependent or neglected.
COLORADO COURT OF APPEALS 2022COA88Court of Appeals No. 21CA1331
Morgan County District Court No. 20JV26
Honorable Kevin L. Hoyer, Judge
The People of the State of Colorado,
Petitioner,
In the Interest of T.W., a Child,
and Concerning A.M.E.,
Appellant,
And G.U.,
Appellee.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE SCHUTZ
Dailey and Fox, JJ., concur
Announced July 28, 2022
Josi McCauley, Guardian Ad Litem
The Law Office of Michael Kovaka, Michael Kovaka, Littleton, Colorado, for
Appellant
Bergner Law Office, Stephanie Bergner, Leif Ericson, Carbondale, Colorado, for
Appellee
¶1 In this dependency and neglect proceeding, A.M.E. (mother)
appeals the juvenile court’s judgment allocating parental
responsibilities for her child, T.W., to G.U. (father). To resolve
mother’s appeal, we must decide whether a juvenile court may
permanently allocate parental responsibilities when the parties are
proceeding under a deferred adjudication. Because we conclude a
juvenile court lacks the legal authority to enter such an order when
the child has not been adjudicated dependent or neglected, we
vacate the judgment.
I. Procedural History
¶2 In June 2020, the Morgan County Department of Human
Services initiated a dependency and neglect proceeding based on
concerns that the then-ten-year-old child was being mistreated
while in the care of mother and her husband. The child’s father,
who lives in California, had not seen the child in approximately
eight years at the time the case was filed.
¶3 The juvenile court placed the child in the care of his maternal
cousins. The child’s younger half-siblings remained in the custody
of mother and husband. In September 2020, the court accepted
the parties’ stipulation continuing the child’s adjudication and
1
entered an order deferring the issue of whether the child should be
adjudicated dependent or neglected for six months under section
19-3-505(5), C.R.S. 2021. The court also adopted treatment plans
for each parent.
¶4 In the stipulation, the parties set forth their understanding of
how the case would proceed. It provided:
For purposes of this Continued Adjudication
only, and no other purpose, [mother and
father] knowingly and voluntarily admit the
child is a dependent or neglected child because
he was in an injurious environment.
Respondents also admit the jurisdictional
allegations of the Petition. This is a no fault
admission and continued adjudication as
to . . . mother . . . .
Based upon this limited admission, the parties agreed the court had
continuing jurisdiction to enter temporary placement orders for the
child. But they also expressly agreed that the child was not being
adjudicated dependent or neglected with respect to either parent.
Instead, they agreed that any trial related to whether the child
should be adjudicated dependent or neglected would be continued
— or deferred — for six months.
¶5 In February 2021, father filed a motion seeking an allocation
of parental responsibilities (APR) for the child to him. Mother filed a
2
written objection to father’s APR motion, asserting that father was
not an appropriate placement because he had minimal physical
contact and no emotional bond with the child. Mother requested
the child be placed with her. Soon after, the Department filed a
motion asking the court to adopt its recommended permanency
plan, adjudicate the child dependent or neglected, and grant an
APR to father.
¶6 The court adopted the Department’s proposed permanency
plan, which set the permanent goal as placement of the child with
father in California but with temporary placement remaining with
the child’s cousins while a relationship was established between the
child and father. The court did not address the Department’s
request for an adjudicatory order. Instead, without objection from
the parties, it continued the deferred adjudication for another six
months. It also set a hearing on father’s request for an APR.
¶7 The juvenile court held an evidentiary hearing on father’s APR
motion in June 2021. The court then temporarily placed the child
in father’s custody and authorized video visits with mother. After a
review hearing a couple of months later, the court entered an APR
order that kept the child in father’s custody, authorized parenting
3
time for mother, and awarded decision-making authority between
the parents. The court then certified the APR order into a separate
domestic relations case and closed the dependency and neglect
case.
II. Allocation of Parental Responsibilities
¶8 Mother contends the juvenile court lacked subject matter
jurisdiction to grant the APR because it had not adjudicated the
child dependent or neglected. We conclude the court had
continuing subject matter jurisdiction over the parties and the case
but did not have the legal authority to enter a permanent APR order
for the child. We therefore vacate the juvenile court’s order
allocating parental responsibilities for the child.
A. The Legal Framework
¶9 Dependency and neglect cases spring from foundational
human bonds. There is no relationship more integral to a society
than that of the family. And central to that institution is the
relationship between parents and their children. The Supreme
Court has observed that “the interest of parents in the care,
custody, and control of their children . . . is perhaps the oldest of
the fundamental liberty interests recognized by this Court.” Troxel
4
v. Granville, 530 U.S. 57, 65 (2000). Thus, in the first instance, it is
parents, and not the State, who have the privilege and
responsibility of raising their children.
¶ 10 Though parents’ liberty interests in raising their children are
firmly protected by the Constitution, the parents’ rights are not
unlimited. With rights come responsibilities. And one of the
essential responsibilities that accompanies the privilege of
parenting is the obligation to provide children with a safe and
nurturing home free of neglect and abuse. If a parent fails to fulfill
that responsibility, they are deemed “unfit” to autonomously make
decisions for their children. While the parent remains unfit, the
State has a vested interest in protecting the subject children, and
may intervene in the parent-child relationship to protect them.
People in Interest of N.G., 2012 COA 131, ¶ 30.
¶ 11 These legal principles accommodate the tension between
parents’ right to freely parent their children and the government’s
corresponding obligation, as parens patriae,1 to ensure that
1 Parens patriae literally translates to “parent of his or her country”
and refers to “the state in its capacity as provider of protection to
those unable to care for themselves.” Black’s Law Dictionary 1339
(11th ed. 2019).
5
children grow and develop in a safe and nurturing environment. So
how is this delicate, but essential, balance implemented?
¶ 12 In Colorado, the answer to that question starts with article 3
of the Children’s Code, which provides the legal authorization for
dependency and neglect cases. People in Interest of J.W. v. C.O.,
2017 CO 105, ¶ 26. To invoke the court’s jurisdiction, the petition
must allege facts establishing that the child is dependent or
neglected under section 19-3-502, C.R.S. 2021. C.O., ¶ 26. The
Children’s Code also grants the juvenile court the authority to enter
immediate emergency temporary orders to protect the health and
welfare of the child, including the possibility of removing the child
from the existing home if continuing the child’s current care and
custody “would present a danger to that child’s life or health in the
reasonably foreseeable future.” § 19-3-405(2)(a), C.R.S. 2021.
¶ 13 These extraordinary powers are necessary to protect children
who are at risk of immediate harm because of their environment.
But they also represent an extraordinary intrusion into the fabric of
the family, including the parents’ constitutionally grounded right to
raise their children as they deem appropriate.
6
¶ 14 Recognizing the need to balance these rights, the Children’s
Code requires the State to promptly provide parents with notice and
an opportunity to be heard by the juvenile court concerning the
issues presented in a petition. §§ 19-3-202, 19-3-503, C.R.S. 2021;
People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 9.
¶ 15 After being advised of their legal rights, the parents must
decide whether they wish to contest or admit the allegations of the
petition. If the parents decide to waive their right to an
adjudicatory trial and admit the allegations, then a formal
adjudication of the child as dependent or neglected may be entered.
§ 19-3-505(1), (7)(a); C.R.J.P. 4.2(b); see also N.G., ¶¶ 19-20. If
either parent contests the petition, the matter must be set for an
adjudicatory trial, either to a judge or jury. At trial, the judge or
jury decides if the State has sustained its burden of proving, by a
preponderance of the evidence, the allegations in the petition. If the
fact finder concludes the State has met its burden, then a formal
order enters adjudicating the child dependent or neglected. If the
fact finder concludes the State has not met its burden, then the
court must dismiss the case.
7
¶ 16 Thus, at the adjudicatory phase a child is generally
adjudicated dependent or neglected, or the case is closed. But
given the extraordinary consequences associated with an
adjudication, coupled with the varied circumstances in which these
cases arise, the Children’s Code affords a third option. Section 19-
3-505(5) provides as follows:
After making a finding as provided by
paragraph (a) of subsection (7) of this section
but before making an adjudication, the court
may continue the hearing from time to time,
allowing the child to remain in his own home
or in the temporary custody of another person
or agency subject to such conditions of
conduct and of visitation or supervision by a
juvenile probation officer as the court may
prescribe . . . .
Section 19-3-505(7)(a), in turn, provides:
When the court finds that the allegations of
the petition are supported by a preponderance
of the evidence, except when the case is
continued as provided in the introductory
portion to subsection (5) of this section, the
court shall sustain the petition and shall make
an order of adjudication setting forth whether
the child is neglected or dependent.
¶ 17 Based upon these provisions, after finding the allegations in
the petition are supported by competent evidence but before making
an adjudication of the child, the court may continue the
8
adjudicatory hearing. The parties must consent to the continuance,
and if they do, the initial continuation shall not exceed six months.
§ 19-3-505(5)(a)-(b). Following the initial six-month period, the
court may continue the hearing for another six months, after which
it must dismiss or sustain the petition. § 19-3-505(5)(b).
¶ 18 The decision to continue or “defer” an adjudication has
benefits for all parties. The State is initially freed of the obligation
to meet its burden of proof on the adjudicatory question at trial,
with its corresponding expense, delay, and conflict. The parents
receive the same benefits, together with the opportunity to
constructively address the issues that gave rise to the petition
without the adverse consequences of a formal adjudication on their
record. And the child benefits from the court’s continued
involvement in the case, with its corresponding authority to enter
orders for the temporary placement and protection of the child.
¶ 19 It is this third option — to defer the question of whether the
child should be adjudicated dependent or neglected — that the
parties utilized in this case. Based upon the parties’ stipulation,
the court deferred the adjudication and entered temporary orders
for the placement of the child with mother’s cousins. The court also
9
adopted treatment plans designed to allow the parents to address
the issues giving rise to the filing of the petition. And the court
developed a visitation plan designed to allow father to establish a
bonded relationship with the child.
¶ 20 No party contests the juvenile court’s full authority to enter
these temporary orders. The conflict between the parties instead
relates to whether the juvenile court had the legal authority, prior to
an adjudication of the child as dependent or neglected, to enter a
permanent order allocating parental responsibilities to father.
¶ 21 To answer the question presented, we must consider the legal
parameters of a juvenile court’s subject matter jurisdiction and
jurisdiction over the child, and its corresponding authority to enter
permanent orders allocating parental responsibilities.
B. Preservation of the Issue
¶ 22 At the hearing on father’s APR motion, mother did not
expressly contest the court’s jurisdiction to allocate parental
responsibilities without first adjudicating the child dependent or
neglected. But mother’s counsel did assert in his opening
statement and in his closing argument that the APR motion was
“premature” because three months remained on the deferred
10
adjudication at the time of the hearing. Moreover, mother did not
consent, explicitly or implicitly, to the juvenile court allocating
parental responsibilities. And, as discussed more fully below, the
question of a court’s jurisdiction or authority to enter an order
allocating parental responsibilities absent an adjudication is the
subject of evolving precedent. In light of these circumstances, we
conclude mother has not waived her right to challenge the court’s
jurisdiction or authority to enter the order allocating parental
responsibilities.
¶ 23 Moreover, the issue of subject matter jurisdiction is an issue
that the parties cannot waive. See, e.g., People v. Sprinkle, 2021 CO
60, ¶ 17 (“[S]ubject matter jurisdiction cannot be waived or
consented to by the parties . . . .”). Thus, to the extent that the APR
order implicates the juvenile court’s subject matter jurisdiction, it
was not possible for mother to waive the issue.
¶ 24 Finally, to the extent that an argument could be made that
mother did not adequately preserve the issue, we exercise our
discretion to address it to avoid a miscarriage of justice. See, e.g.,
People in Interest of E.S., 2021 COA 79, ¶ 14 (applying miscarriage
of justice doctrine in a dependency and neglect case); People in
11
Interest of M.B., 2020 COA 13, ¶ 21 (discussing the limited scope of
the miscarriage of justice exception but applying it in a dependency
and neglect case to address unpreserved error “given the
constitutional nature of parental rights”).
C. Jurisdictional Provisions and Standard of Review
¶ 25 A juvenile court’s jurisdiction concerns its authority to hear
and determine a matter. C.O., ¶ 21. A court’s jurisdiction generally
consists of two parts — subject matter jurisdiction over the issue to
be decided and personal jurisdiction over the parties. Id. at ¶ 22. A
judgment rendered without jurisdiction is void and may be attacked
directly or collaterally. Id. at ¶ 21.
¶ 26 When the facts are undisputed, the scope of a court’s
jurisdiction presents questions of law that we review de novo. Id. at
¶ 17; Giduck v. Niblett, 2014 COA 86, ¶ 11.
D. Subject Matter Jurisdiction
¶ 27 Subject matter jurisdiction concerns the court’s authority to
deal with a class of cases, not its authority to enter a particular
judgment within a case that falls within that broad class. C.O.,
¶ 24. Because subject matter jurisdiction, in its broadest sense,
concerns only the class of cases that a court may adjudicate, a
12
court that has already obtained jurisdiction is not divested of its
subject matter jurisdiction by a later failure to follow statutory
requirements. Id.¶ 28 The constitution and the laws of the state confer subject
matter jurisdiction. People in Interest of K.W., 2012 COA 151, ¶ 10;
see also Tulips Invs., LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 20.
The Children’s Code grants a juvenile court exclusive original
jurisdiction over proceedings concerning any child who is alleged to
be dependent or neglected.
¶ 29 Because this proceeding fell within the class of cases that a
juvenile court may hear under these provisions, the juvenile court
had and retained broad subject matter jurisdiction during the
entirety of this case. See C.O., ¶ 25. But we must also consider
whether the juvenile court had jurisdiction over the child, and thus
the legal authority, to enter the permanent APR order before the
child had been adjudicated dependent or neglected with respect to
either parent. See id.E. Personal Jurisdiction
¶ 30 Personal jurisdiction refers to the court’s authority to enter
orders that bind particular persons. Without personal jurisdiction
13
over a person, the court lacks the legal authority to enter an order
that directly impacts that person. Unlike subject matter
jurisdiction, parties may consent to the court’s exercise of personal
jurisdiction so far as it affects them personally. See, e.g., Clinic
Masters, Inc. v. Dist. Ct., 192 Colo. 120, 123, 556 P.2d 473, 475
(1976). And once personal jurisdiction is acquired over a party,
whether by consent or through service of process, the court retains
jurisdiction over that party for the duration of the case.
¶ 31 In recent case law, the Colorado Supreme Court has referred
to the concept of “jurisdiction over the child” when addressing a
juvenile court’s authority to enter orders in the absence of an order
adjudicating a child dependent or neglected. See, e.g., C.O., ¶ 31
(“[T]he child’s status as dependent or neglected establishes the
court’s continued jurisdiction over the child and permits state
intervention into the familial relationship to protect the child and to
provide rehabilitative services to assist the parent and child in
establishing a relationship and home environment that will preserve
the family unit.”); People in Interest of S.A., 2022 CO 27, ¶¶ 29-30
(noting that “[w]ithout personal jurisdiction over an individual, a
court is powerless and cannot issue legally binding and enforceable
14
orders” and holding that the “court’s personal jurisdiction over
[p]arents and subject matter jurisdiction over [the child]’s
dependency or neglect case” did not permit the juvenile court to
enter orders that impacted siblings who had not been adjudicated
dependent or neglected).
¶ 32 Traditional concepts related to the exercise of personal
jurisdiction in the dependency or neglect arena have inherent
limitations. For example, the dependent or neglected child is
typically a juvenile, and not in a position to consent to jurisdiction
or subject to service of process. Moreover, even if a child could
consent to personal jurisdiction, orders in a dependency and
neglect case not only affect the rights of the child; they also
implicate fundamental constitutional rights of a parent. Thus, it
would not be possible for the child, or a representative, to consent
to the exercise of personal jurisdiction and thereby agree to the
court’s authority to enter final orders that compromise a parent’s
fundamental right to autonomously parent their child unless that
child has been adjudicated dependent or neglected. See S.A., ¶ 29
(“[T]he court never found — by a preponderance of the evidence or
otherwise — that S.A.’s siblings were dependent or neglected and
15
that the court’s intervention was warranted. Without such a
finding . . . the juvenile court . . . acted beyond the jurisdiction
granted to it by statute.”).
¶ 33 Perhaps for these reasons, even when discussing the court’s
jurisdiction over a child, the supreme court has framed its analysis
in terms of the juvenile court’s legal or statutory authority to enter
orders that impact a child who has not been adjudicated dependent
or neglected. C.O., ¶ 25 (“[T]he question is whether the court had
jurisdiction over the children when it terminated the parent-child
legal relationship.”); id. at ¶ 31 (“[T]he purpose of an adjudicatory
hearing is to determine whether the factual allegations in the
dependency or neglect petition are supported . . . [, and] the child’s
status as dependent or neglected establishes the court’s continued
jurisdiction over the child . . . .”); see also S.A., ¶¶ 7, 29 (holding the
juvenile court “had no authority” or jurisdiction to enter visitation
orders impacting children who had not been adjudicated dependent
or neglected). Thus, we turn to an analysis of the breadth and
limitation of a juvenile court’s authority to enter permanent orders,
including an order allocating parental responsibilities, in
dependency and neglect actions.
16
F. The Juvenile Court’s Authority to Act
¶ 34 Colorado’s juvenile courts are created by statute, and thus
they have no jurisdiction to act except as provided by statute.
Everett v. Barry, 127 Colo. 34, 39, 252 P.2d 826, 829 (1953). In
addition to the limits of subject matter jurisdiction, a court’s
authority to take action within a particular case in which it enjoys
subject matter jurisdiction may be constrained by statute, rule, or
case law. Tulips, ¶¶ 17-23 (discussing the distinctions between a
court’s subject matter jurisdiction and its authority to act and
noting that “[a] court’s authority to act derives from rule, statute,
case law, or the inherent authority of courts”).
¶ 35 At the commencement of a dependency and neglect case, the
juvenile court’s authority to act is limited. The court has the
authority to enter temporary orders to protect the children. People
in Interest of M.C.S., 2014 COA 46, ¶ 8. After a child is adjudicated
dependent or neglected, the juvenile court has much broader
authority to act, including the ability to enter dispositional remedies
and permanent orders addressing custody of the child. People in
Interest of A.M.D., 648 P.2d 625, 639 (Colo. 1982); see also L.A.G. v.
People in Interest of A.A.G., 912 P.2d 1385, 1392 (Colo. 1996). But
17
the juvenile court does not have the authority to enter an order
allocating parental responsibilities until after the parents are
afforded full due process, which includes the right to test the merits
of the petition at an adjudicatory trial. S.A., ¶¶ 29-30; N.G., ¶ 66.
¶ 36 N.G. involved a factual situation similar to that presented here.
At the time the petition was filed, the child was in mother’s custody.
N.G., ¶¶ 4, 5. Father lived in Arizona and had not seen the child for
three years. Id. In response to the petition, mother admitted the
child was dependent or neglected and the court entered an
adjudication of the child with respect to her. Father, on the other
hand, agreed to a deferred adjudication. Id. at ¶ 6. Similar to the
agreement here, the father in N.G. admitted the allegations of the
petition were supported by a preponderance of the evidence, thus
confirming the juvenile court’s continued authority to exercise
jurisdiction over the parties and the child and its corresponding
authority to enter temporary orders. Id. But, as here, the parties
also agreed to defer the question of whether the child should be
adjudicated dependent or neglected as to father. Id.
¶ 37 Disagreements arose between the parties concerning
placement of the child with father. Father eventually filed a motion
18
to place the child with him. Id. at ¶ 9. The department then moved
to revoke father’s deferred adjudication and allocate parental rights
for the child to a family member, which father contested. Id. at
¶¶ 11, 13. After a hearing, the juvenile court entered an order
allocating parental responsibilities for the child to the family
member. The father appealed.
¶ 38 On appeal, a division of this court concluded the juvenile court
erred by entering the APR order without having entered an order
adjudicating the child dependent or neglected. Id. at ¶ 2. The
division reasoned that because adjudication relates to the status of
the child at the time of the order the adjudication is entered, by
continuing the deferred adjudication the court was necessarily
postponing a final decision on whether the child was dependent or
neglected. Id. at ¶ 25. Thus, the limited admission made within
the deferred adjudication to confirm the juvenile court’s jurisdiction
and continuing limited authority did not provide a sufficient
foundation for a formal adjudication because father had not been
afforded an opportunity to contest the adjudication. Id. at ¶ 26.
Because the juvenile court had failed to provide an adjudicatory
hearing or address father’s motion for custody of the child before
19
making the permanent APR order, the division vacated that order.
Id. at ¶ 67.
¶ 39 The Department acknowledges the import of N.G. but argues it
is factually distinguishable from this case. Instead of viewing N.G.
as controlling, the Department argues we should rely upon a prior
opinion from a divided division of this court. See People in Interest
of N.D.V., 224 P.3d 410 (Colo. App. 2009). In N.D.V., the majority
concluded the juvenile court had the ability to terminate mother’s
parental rights, even though mother was on a deferred adjudication
that had not been revoked, and thus, no formal adjudication had
entered. Id. at 416. But like the division in N.G., we find N.D.V.
distinguishable.
¶ 40 In N.D.V., although no formal adjudication had entered, the
department had filed a motion for termination of parental rights in
which it expressly alleged, albeit erroneously, that an order of
adjudication had entered against mother. Id. The mother did not
contest that allegation. Id. Nonetheless, after an initial trial the
juvenile court denied the motion to terminate. Id. When the
mother’s failure to address her parental unfitness continued, the
department filed a second motion to terminate her parental rights.
20
Id. The department again erroneously alleged that an adjudication
order had previously entered against mother and once again mother
did not contest that allegation. Id. After a second termination
hearing, the juvenile court terminated mother’s parental rights. Id.
¶ 41 In rejecting mother’s argument that the juvenile court lacked
the authority to enter the termination order, the court concluded
that an adjudicatory order was not a jurisdictional prerequisite to
the entry of the termination order. Id. at 417-18. Thus, the
majority held that mother had waived any objection to the absence
of a stand-alone order of adjudication. Id. at 418. Moreover, the
majority noted that the termination statute expressly required the
court to make a finding, by clear and convincing evidence, that “the
child is adjudicated dependent or neglected.” Id. at 416 (quoting
19-3-604(1)(c), C.R.S. 2021). Therefore, by entering an order for
termination of parental rights, the majority concluded the juvenile
court had either expressly or implicitly adjudicated the child as
dependent or neglected. Id. The dissent, in contrast, concluded
that a prior and independent order of adjudication was necessary
before the court could even proceed with the termination hearing.
Id. at 421 (Lichtenstein, J., dissenting). Because no such order had
21
entered, the dissent would have vacated the termination order for
lack of subject matter jurisdiction. Id.
¶ 42 Like the division in N.G., we view N.D.V. as factually and
legally distinguishable and therefore not persuasive in this case.
Here, unlike in N.D.V., the Department had never alleged that there
was a prior adjudication of the child as dependent or neglected.
Instead, the Department filed a combined motion to revoke mother’s
deferred adjudication and allocate parental responsibilities in favor
of father. Thus, mother was never placed on notice that the
Department was asserting that an adjudication order had
previously entered. Similarly, mother made no express or implied
admission that an adjudicatory ordered had previously entered.
Moreover, the juvenile court made no finding, expressly or by
implication, that the child had been previously adjudicated
dependent or neglected.
¶ 43 In this case, mother contested the APR to father. At the
contested hearing, although she did not expressly dispute the
court’s jurisdiction to enter an APR, her counsel, in his opening
statement, argued that
22
we’re asking the Court to deny the motion for
allocation. We believe it’s premature. We still
have roughly three months left on a continued
adjudication and we believe that it is most
appropriate to allow that time period to elapse
to allow for rebuilding of the relationship
between [the child] and his mother.
Similarly, in his closing argument, her counsel argued that “[w]e are
operating, as far as [mother] is concerned, under a continued
adjudication. There are still three months left on that continued
adjudication.” Father’s counsel acknowledged the same facts and
legal circumstances in his closing argument. Thus, unlike the
parent in N.D.V., mother did not expressly or implicitly waive her
right to contest the juvenile court’s authority to enter an order of
adjudication. For these reasons, we conclude the reasoning in
N.D.V. is unpersuasive here.
¶ 44 This conclusion is consistent with the supreme court’s
decision in C.O., 2017 CO 105. In that case, mother had initially
contested the petition and invoked her right to an adjudicatory trial.
Id. at ¶ 6. After an initial trial, the jury was deadlocked, so no
adjudication entered. Id. Thereafter, rather than proceed with
another trial, mother entered a verbal admission to the allegations
of the petition and consented to the entry of an adjudicatory order.
23
Id. at ¶ 7. Through an apparent misstep, the juvenile court failed to
enter a formal written order of adjudication after accepting the
admission. Id. at ¶ 8. Based upon her continued failure to address
the issues giving rise to the filing of the petition, the department
moved for termination, and after holding a trial the juvenile court
entered an order terminating mother’s parental rights. Id. at ¶¶ 9-
10.
¶ 45 On appeal mother attempted to challenge the juvenile court’s
termination order based upon the absence of a formal written order
of adjudication. Id. at ¶ 12. A division of this court sided with
mother, concluding that in the absence of a formal written order
adjudicating the children dependent or neglected, the juvenile court
lacked subject matter jurisdiction to enter an order terminating her
parental rights. People in Interest of J.W., 2016 COA 125, rev’d sub
nom. People in Interest of J.W. v. C.O., 2017 CO 105.
¶ 46 The supreme court reversed, concluding the juvenile court was
not divested of subject matter jurisdiction by virtue of its failure to
reduce to writing its implicit or express verbal order adjudicating
the children dependent or neglected based upon mother’s express
admission. C.O., ¶ 32. Recognizing the juvenile court’s continuing
24
subject matter jurisdiction, the supreme court then turned to the
question of whether the juvenile court had “jurisdiction over the
children when it terminated the parent-child legal relationship.” Id.
at ¶ 25. The supreme court noted “jurisdiction over a child rests
solely on the factual status of the child as dependent or neglected,
not the formal entry of an order of adjudication reflecting that
status.” Id. at ¶ 30.
¶ 47 In reaching the conclusion that mother’s verbal admission that
the children were dependent or neglected sufficed, the court
explained,
[T]he purpose of an adjudicatory hearing is to
determine whether the factual allegations in
the dependency or neglect petition are
supported by a preponderance of the evidence.
In turn, the child’s status as dependent or
neglected establishes the court’s continued
jurisdiction over the child and permits state
intervention into the familial relationship to
protect the child and to provide rehabilitative
services to assist the parent and child in
establishing a relationship and home
environment that will preserve the family unit.
Here, Mother entered an admission to the
Department’s allegation that the children were
dependent or neglected due to an injurious
environment. . . . In light of Mother’s
admission, the Department was relieved of the
burden to prove the allegation by a
25
preponderance of the evidence at an
adjudicatory hearing and the purpose of the
adjudicative process was met. The court’s
acceptance of Mother’s admission established
the status of the children as dependent or
neglected and, thus, the court’s continued
jurisdiction over the children.
Id. at ¶¶ 31-32 (citations and footnote omitted).
¶ 48 In reaching these conclusions, the supreme court noted
mother had not requested or entered into a deferred adjudication.
Id. at ¶ 8. To the contrary, mother had admitted that the children
were in an injurious environment rather than have a second jury
decide the issue, and mother did so with the expectation that the
children would be adjudicated dependent or neglected based upon
her admission.
¶ 49 Here, by contrast, the parents admitted that the child was
dependent or neglected based on an injurious environment “[f]or
purposes of this [c]ontinued [a]djudication only, and for no other
purpose.” And the court accepted this admission “for purposes of
this [c]ontinued [a]djudication,” ruling “no decree of adjudication
shall be entered at this time.” Thus, mother made no admission,
express or implied, that the child had been or should be
adjudicated dependent or neglected. The absence of such
26
admissions distinguishes this case from N.D.V. and C.O. Because
no such admission was made and no order of adjudication had
entered against mother, we conclude the juvenile court lacked the
legal authority to enter a permanent order allocating parental
responsibilities.
G. The Juvenile Court’s Authority to Act Is Properly Before Us
¶ 50 Although the division in N.G. reached the same conclusion we
do in this case, we recognize it noted the father in that case had
expressly contested the juvenile court’s authority to enter an APR
order due to the absence of an adjudicatory order. Because the
issue was preserved, the division concluded “the lack of [an
adjudicatory order] ha[d] not been waived, assuming, without
deciding, that it could be.” N.G., ¶ 47.
¶ 51 We also recognize that mother failed to specifically alert the
juvenile court that it lacked the authority to enter an APR order in
the absence of a prior adjudication. But, as previously noted, we
may, in our discretion, address an unpreserved error in a
dependency or neglect case to avoid a miscarriage of justice. E.S.,
¶ 14. The exercise of this discretion is especially appropriate in a
case involving a record that does not clearly establish the essential
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evidentiary basis for the rendition of a final judgment on
substantial constitutional claims. Id.
¶ 52 Recall that in C.O., the supreme court initially concluded the
juvenile court retained subject matter jurisdiction notwithstanding
“a later failure to follow statutory requirements.” C.O., ¶ 24. The
supreme court then proceeded to analyze “whether the court had
jurisdiction over the children” when it terminated mother’s parental
rights. Id. at ¶ 25. And it concluded that mother’s admission to the
adjudication of the children as dependent or neglected is what gave
the juvenile court “continued jurisdiction over the children.” Id. at
¶ 32; see also S.A., ¶ 28 (concluding a “juvenile court has
continuing jurisdiction only when a child is dependent or
neglected”). Thus, whether the juvenile court’s “continued
jurisdiction” is grounded in broad notions of subject matter
jurisdiction or the narrower concept of a court’s authority to take
certain actions in a particular class of cases, it is apparent that the
supreme court views the factual status of a child as dependent or
neglected as a jurisdictional prerequisite to the entry of permanent
orders.
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¶ 53 This conclusion is also supported by the statutory language
granting juvenile courts the authority to enter an order allocating
parental responsibilities when another custody case is not pending:
Except as otherwise provided by law, the
juvenile court has exclusive original
jurisdiction in [certain proceedings concerning
children]:
....
When the juvenile court maintains jurisdiction
in a case involving a child who is dependent or
neglected and no child custody action or action
for the allocation of parental responsibilities
concerning the same child is pending in a
district court in this state, upon the petition of
a party to the dependency or neglect case, the
juvenile court may enter an order allocating
parental responsibilities and addressing
parenting time and child support matters. . . .
§ 19-1-104(1), (6), C.R.S. 2021 (emphasis added). The General
Assembly’s use of the word “maintain” in this jurisdictional grant is
instructive. To “maintain” means “to keep in an existing state (as of
repair, efficiency, or validity)” or “to continue or persevere.”
Merriam-Webster Dictionary, https://perma.cc/JS26-9MEH. Thus,
in this context, the term “maintains” implies that the juvenile court
had existing jurisdiction, and thereafter some event happened that
allowed its jurisdiction to continue.
29
¶ 54 Given the analyses of C.O. and S.A., coupled with the statutory
structure of dependency and neglect cases, we conclude that an
order of adjudication or the court’s determination that the child’s
factual status is dependent or neglected2 is a necessary step that
grants a juvenile court continuing jurisdiction over the child, and
thus the authority to enter an APR order under section 19-1-104(6).
Although the court retained broad subject matter jurisdiction over
the case, absent an adjudication or a determination that the child’s
factual status is dependent or neglected, we conclude the juvenile
court lacked continuing jurisdiction over the child — and therefore
the legal authority — to enter permanent orders allocating parental
responsibilities.
¶ 55 Accordingly, we must vacate the judgment.
III. Assessment of Father’s Home
¶ 56 Mother also contends that the juvenile court erred by granting
an APR to father when no agency had assessed the condition and
2 Recall that the supreme court used this language in C.O., in which
the mother had made a verbal admission to support the entry of an
adjudication order; the trial court accepted that admission but
never entered a formal written order of adjudication.
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safety of his home. Because we have already concluded that the
judgment must be vacated, we need not address this argument.
IV. Conclusion
¶ 57 The judgment is vacated, and the case is remanded to the
juvenile court. Before the court may again consider granting a
permanent APR order for the child, it must first enter an order
adjudicating the child as dependent or neglected, assuming a
factual and legal basis for doing so is established. The existing
parenting time arrangement shall remain in place as a temporary
order until subsequently modified by the juvenile court.
JUDGE DAILEY and JUDGE FOX concur.
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