in the Interest of C.N , 431 P.3d 1219 ( 2018 )

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
November 15, 2018
2018COA165
No. 18CA0313, People in the Interest of C.N. — Juvenile Court
— Dependency and Neglect; Family Law — Grandparents or
Great-Grandparents; Constitutional Law — Fourteenth
Amendment — Due Process
A division of the court of appeals considers whether, under the
circumstances presented here, a grandparent has a constitutionally
protected liberty interest in the society or custody of a child. The
division holds that there is no such constitutionally protected
liberty interest where the grandparent (1) enjoys limited visitation
rights derived from statute; and (2) only has a biological
relationship with the child but no existing custodial relationship
with the child. This is so especially where, as here, grandparent
was aware that the child was removed from her mother’s care and
mother’s parental rights were later terminated.
COLORADO COURT OF APPEALS 2018COA165
Court of Appeals No. 18CA0313
Jefferson County District Court No. 15JV572
Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of C.N., a Child,
and Concerning A.N.,
Respondent-Appellant,
and Concerning A.F. & S.F.,
Intervenors-Appellees.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE FOX
Taubman and Terry, JJ., concur
Announced November 15, 2018
Ellen G. Wakeman, County Attorney, Sarah Oviatt, Assistant County Attorney,
Golden, Colorado, for Petitioner-Appellee
Law Office of Kurt A. Metsger, Samantha Metsger, Kurt Metsger, Denver,
Colorado, for C.N.
The Harris Law Firm P.C., Katherine O. Ellis, Denver, Colorado, for
Respondent-Appellant
Grob & Eirich LLC, Timothy J. Eirich, Lakewood, Colorado, for Intervenors-
Appellees
¶1 In this dependency and neglect proceeding, A.N. (grandmother)
appeals the juvenile court’s order placing C.N. (child) permanently
with her foster parents. We affirm.
I. Background
¶2 In June 2015, the Jefferson County Division of Children,
Youth, and Families filed a petition in dependency and neglect due
to concerns about mother’s mental health. The newborn child was
placed in foster care, and mother’s parental rights were terminated
a year later. A division of this court affirmed the judgment and a
mandate was issued on February 28, 2017. People in Interest of
C.N., (Colo. App. No. 16CA1206, Jan. 19, 2017) (not published
pursuant to C.A.R. 35(e)).
¶3 In February 2017 — a year and a half after the child was born
and eight months after mother’s parental rights were terminated —
grandmother filed a motion to intervene in the case. Shortly
thereafter she filed a motion for the child to be placed with her. The
juvenile court held a contested hearing on the motion and found
that it was in the child’s best interest to permanently remain with
the foster parents. The court also terminated grandmother’s
visitation with the child. On the day of the contested hearing, the
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grandmother filed a petition for kinship adoption of the child, but
the court refused to accept its filing in the dependency and neglect
case.
¶4 The foster parents adopted the child in January 2018.
II. Real Party in Interest and Standing
¶5 Grandmother contends on appeal that mother did not receive
reasonable accommodations to address her mental health issues,
such as the appointment of a guardian ad litem (GAL), and that
mother needed assistance in notifying relatives of the termination
proceeding. She also argues that the child had a fundamental right
of association with grandmother. Grandmother asserts that, as an
intervenor in the case, she is a real party in interest regarding these
issues.
¶6 C.R.C.P. 17(1) requires that every action be prosecuted by the
real party in interest. The real party in interest “is that party who,
by virtue of substantive law, has the right to invoke the aid of the
court in order to vindicate the legal interest in question.” Summers
v. Perkins, 81 P.3d 1141, 1142 (Colo. App. 2003).
¶7 We construe grandmother’s argument to be that she has
standing to raise issues concerning mother and the child. Standing
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is a jurisdictional prerequisite that may be raised at any stage of the
proceeding. Hickenlooper v. Freedom from Religion Found., Inc.,
2014 CO 77, ¶ 7. “Because ‘standing involves a consideration of
whether a plaintiff has asserted a legal basis on which a claim for
relief can be predicated,’ the question of standing must be
determined prior to a decision on the merits[.]” Id. (quoting Bd. of
Cty. Comm’rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1052
(Colo. 1992)).
¶8 To have standing, a plaintiff must have (1) suffered an injury
in fact (2) to a legally protected interest. C.W.B. v. A.S., 2018 CO 8,
¶ 18. The legally protected interest requirement recognizes that
“parties actually protected by a statute or constitutional provision
are generally best situated to vindicate their own rights.” City of
Greenwood Village v. Petitioners for Proposed City of Centennial, 3
P.3d 427, 437 (Colo. 2000).
¶9 Whether a party has standing to proceed is a question of law
we review de novo. Hickenlooper, ¶ 7.
¶ 10 Grandmother does not cite to substantive law granting her
standing to assert the rights of mother and the child. Indeed, our
courts have consistently held that in dependency and neglect
3
appeals, parents and intervenors lack standing to assert the rights
of other parties. See People in Interest of J.M.B., 60 P.3d 790, 792
(Colo. App. 2002) (father lacked standing to challenge the
appropriateness of mother’s treatment plan); People in Interest of
E.S., 49 P.3d 1221, 1223 (Colo. App. 2002) (mother lacked standing
to raise issues regarding the stepfather’s party status); see also
People in Interest of J.A.S., 160 P.3d 257, 261 (Colo. App. 2007) (one
parent does not have standing to raise issues regarding the
propriety of termination of the other parent’s rights).
¶ 11 Grandmother also lacks standing to assert the child’s rights.
The Children’s Code statutorily obligates the child’s GAL to
advocate for the child’s best interests and expressly authorizes the
GAL to participate at all steps of the legal proceeding, including on
appeal. § 19-3-203, C.R.S. 2018; C.W.B., ¶ 24. Absent indication
that the GAL is unable or unwilling to advocate for the child’s best
interests, courts will not confer standing to assert the rights of the
child to intervening parties. C.W.B., ¶ 36.
¶ 12 Accordingly, we conclude that grandmother lacks standing to
raise the issues on appeal pertaining to mother and the child.
III. Subject Matter Jurisdiction
4
¶ 13 Grandmother argues that the juvenile court lacked subject
matter jurisdiction to hear the dependency and neglect case
because the child never resided in nor was present in Jefferson
County. We disagree.
¶ 14 As noted, a party only has standing to challenge an issue,
including subject matter jurisdiction, if he or she suffered an injury
in fact to a legally protected interest. We need not address whether
grandmother has standing to raise subject matter jurisdiction
because the result is the same.
¶ 15 Subject matter jurisdiction concerns a court’s authority to
hear and rule on a certain class of cases and is conferred by the
state constitution and statutes. See People in Interest of K.W., 2012
COA 151, ¶ 10. A challenge to a court’s subject matter jurisdiction
is not waivable and may be raised at any time. Herr v. People, 198
P.3d 108, 111 (Colo. 2008). If a court does not have subject matter
jurisdiction, it is deprived of any authority to act from the outset of
the case. People v. Martinez, 2015 COA 33, ¶ 30.
¶ 16 In section 19-1-104(1)(b), C.R.S. 2018, the General Assembly
explicitly granted the juvenile divisions of district courts outside the
City and County of Denver and the Denver Juvenile Court
5
“exclusive original jurisdiction in proceedings . . . [c]oncerning any
child who is neglected or dependent, as set forth in section
19-3-102[, C.R.S. 2018].” In addition, because of “the state’s strong
interest in providing for the welfare of children within its borders,
the presence of an allegedly dependent or neglected child within the
state is considered to be a sufficient jurisdictional basis to permit a
court to adjudicate the dependency status of the child in that
state.” E.P. v. Dist. Court, 696 P.2d 254, 259 (Colo. 1985).
¶ 17 Venue, on the other hand, refers to “the locality where an
action may be properly brought.” State v. Borquez, 751 P.2d 639,
641 (Colo. 1988). Section 19-3-201(1)(a), C.R.S. 2018, states that,
except in cases reinstating parental rights, “all proceedings brought
under this article shall be commenced in the county in which the
child resides or is present.” See also People in Interest of T.L.D., 809
P.2d 1120, 1122 (Colo. App. 1991).
¶ 18 Because the child was allegedly dependent or neglected, the
juvenile court had subject matter jurisdiction to hear the case. The
question then turns to whether venue was proper. We conclude
that it was. When mother gave birth to the child and the hospital
asked where she lived, she provided an address in Arvada,
6
Colorado, and that address was within Jefferson County. When
mother’s counsel requested that the case be transferred out of
state, counsel conceded that mother “was staying, very briefly, in a
place in Jefferson County when she gave birth, but the baby was
born in Denver . . . .” And, because a child who is placed in the
legal custody of a department is deemed to reside in the county
where the child’s legal parent or guardian resides or is located (and
mother was residing, albeit temporarily, in Jefferson County), venue
was proper.
¶ 19 Accordingly, we conclude that the juvenile court had subject
matter jurisdiction to hear the case and venue was proper.
IV. Liberty Interests in Child
¶ 20 Grandmother contends that her fundamental associational
rights with the child required that she be fully considered for
placement of the child, and that it was error for her not to receive
notice of the termination hearing. We construe this argument to be
that grandmother has a constitutionally protected liberty interest in
a relationship with the child, and that due process required that
she receive notice of the termination hearing. We conclude that,
7
here, grandmother does not have a fundamental interest to
associate with the child requiring notice of the proceeding.
A. Grandmother’s Liberty Interest
¶ 21 The Due Process Clauses to the United States and Colorado
Constitutions protect individuals from arbitrary governmental
restrictions on liberty interests. People in Interest of A.M.D., 648
P.2d 625, 632 (Colo. 1982); see also Mathews v. Eldridge, 424 U.S.
319, 332 (1976). They specifically guarantee that the government
shall not deprive any person of an interest in “life, liberty, or
property without due process of law.” M.S. v. People in Interest of
A.C., 2013 CO 35, ¶ 9 (quoting U.S. Const. amend. XIV, § 1).
¶ 22 To establish a due process violation, an individual must show
that he or she has a protected liberty interest. A protected familial
liberty interest originates from the parent-child relationship, where
parents are responsible for the care, custody, and management of
their children. See Troxel v. Granville, 530 U.S. 57, 66 (2000);
A.M.D., 648 P.2d at 632. Thus, in a proceeding for termination of
the parent-child legal relationship, a biological parent has a due
process right to certain procedural protections based on his or her
interest in continuing the parental relationship. People in Interest of
8
C.E., 923 P.2d 383, 385 (Colo. App. 1996) (citing Lehr v. Robertson,
463 U.S. 248 (1983); Santosky v. Kramer, 455 U.S. 745 (1982);
Quilloin v. Walcott, 434 U.S. 246 (1978); Stanley v. Illinois, 405 U.S.
645 (1972)).
¶ 23 By contrast, the limited rights of grandparents are derived
from statute. Section 19-1-117(1) and (2), C.R.S. 2018, permits a
grandparent or great-grandparent to seek visitation orders when
there is a child-custody case or a case concerning the allocation of
parental responsibilities, as long as it is in the child’s best interests.
See also In re Adoption of C.A., 137 P.3d 318, 322-26 (Colo. 2006).
Section 14-10-123(b) and (c), C.R.S. 2018, allows grandparents to
seek an order granting them an allocation of parental
responsibilities of a child if the child is not in the physical care of
his or her parents or the child has been in the grandparents’
physical custody for six months. See People in Interest of B.B.O.,
2012 CO 40, ¶ 8.
¶ 24 Grandmother identifies no Colorado case law or statute
supporting her claim of a fundamental interest in the society or
custody of the child simply by virtue of their biological relationship.
We have addressed a similar contention in People in Interest of C.E.,
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923 P.2d 383, where a maternal aunt asserted that, as an extended
family member, she had a protected liberty interest in the society
and custody of her nephew commensurate with a natural parent.
As a result, she argued, she was entitled to due process protections,
including receiving notice of a termination hearing. A division of
this court concluded that because the aunt did not have an existing
extended family custodial relationship with the nephew, she did not
have a constitutionally protected liberty interest in her nephew
requiring that she receive notice of the termination hearing. Id. at
385-86. That is also the case here as grandmother did not have an
existing custodial relationship with the child.
¶ 25 Grandmother’s reliance on People in Interest of C.P. v. F.P., 34
Colo. App. 54, 524 P.2d 316 (1974), for the proposition that a
grandparent does not need to be joined in a case before he or she is
accorded due process rights is misplaced. There the court held
that,
since the court may give custody following an
adjudication of dependency and neglect to a
relative, a relative is entitled to intervene at the
dispositional stage upon application made to
the court prior to the dispositional hearing.
The court, however, need not give notice, nor
10
consider the rights of, relatives who have not
made timely application.
Id. at 58, 524 P.2d at 319. The opinion goes on to say that the
grandmother had a right to notice because she was an interested
party. It did not — as grandmother claims here — say that this was
a due process right afforded to grandmother because of her
relationship with the child. This case is also inapplicable because
grandmother, by her own admission, was aware that the child had
been removed from her mother’s care shortly after the child was
born. Grandmother, however, did not file her motion to intervene
until February 2017 — a year and a half after she was aware of the
proceeding, after parental rights had been terminated, and after the
child had been in another placement much of her life.
¶ 26 Moreover, those jurisdictions deciding whether grandparents
have a constitutionally protected liberty interest in the society of
their grandchildren have generally concluded that they do not.
See Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995) (finding no
authority that supports “the proposition that a grandparent, by
virtue of genetic link alone, enjoys a fundamental liberty interest in
the adoption of her grandchildren”); Graham v. Children’s Servs.
11
Div., Dep’t of Human Res., 591 P.2d 375, 379 (Or. Ct. App. 1979)
(concluding that grandparents have no constitutionally recognized
liberty interest requiring the protection of a hearing in a contested
adoption case); In re Adoption of Taylor, 678 S.W.2d 69 (Tenn. Ct.
App. 1984) (surveying law of other states and concluding that
grandparents have no constitutionally protected interest in the
society of their grandchildren).
¶ 27 Accordingly, we conclude that grandmother, here, does not
have a constitutionally protected liberty interest in the society or
custody of the child, where the grandmother (1) enjoys limited
visitation rights derived from statute; and (2) only has a biological
relationship with the child but no existing custodial relationship.
This is so especially where, as here, grandmother was aware that
the child was removed from her mother’s care and mother’s
parental rights were later terminated.
B. Notice of Termination Hearing
¶ 28 Grandmother also contends that, because her fundamental
rights were at stake, it was error for her not to be notified of the
termination hearing, even if the relevant statutes did not contain a
notice provision.
12
¶ 29 Having concluded that grandmother did not have a liberty
interest in the child, we next consider if notice of the termination
hearing to grandmother was required under Colorado case or
statutory law. We conclude that notice was not required.
¶ 30 The State Plan for Foster Care Adoption Assistance, 42 U.S.C.
§ 671(a)(29) (2018), provides, in pertinent part, that,
[w]ithin 30 days after the removal of a child
from the custody of the parent or parents of
the child, the state shall exercise due diligence
to identify and provide notice to the following
relatives: all adult grandparents, all parents of
a sibling of the child, where such parent has
legal custody of such sibling, and other adult
relatives of the child [that] . . .
(A) specifies that the child has been or is being
removed from the custody of the parent or
parents of the child; [and]
(B) explains the options the relative has under
Federal, State, and local law to participate in
the care and placement of the child, including
any options that may be lost by failing to
respond to the notice[.]
While the federal statute requires due diligence to notify relatives of
a child’s removal from his or her parents’ care, it does not require
notice of court hearings concerning the removal.
13
¶ 31 By contrast, the General Assembly has identified who should
receive notice of hearings in dependency and neglect proceedings.
Section 19-3-502(7), C.R.S. 2018, states that, in addition to parties,
“the court shall ensure that notice is provided of all hearings and
reviews held regarding a child to the following persons with whom a
child is placed: Foster parents, pre-adoptive parents, or relatives.”
(Emphasis added.) Section 19-3-605, C.R.S. 2018, which discusses
requests for placements with family members, requires that a
request by a grandparent, aunt, uncle, brother, or sister for the
custody of a child whose legal relationship with his or her parents is
subject to termination must be filed before the termination hearing
begins. The statute, however, expressly states that “[n]othing in
this section shall be construed to require the child placement
agency with physical custody of the child to notify said relatives . . .
of the pending termination of parental rights.” § 19-3-605(1).
¶ 32 Based on the foregoing, we conclude that the General
Assembly did not grant relatives who do not have placement of the
child, including grandparents, a right of notice to hearings in
dependency and neglect cases. Accordingly, there was no error
14
when grandmother did not receive notice of the termination
hearing.
V. Petitions for Adoption
¶ 33 Grandmother contends that the juvenile court erred when it
refused to allow grandmother to file a petition for the adoption of
the child in the dependency and neglect case. We disagree.
¶ 34 Neither the Children’s Code nor the Juvenile Rules of
Procedure specify that a petition for adoption cannot be filed into an
existing case or must be filed into a new case. However,
grandmother cites no authority that requires the filing — or
requires a judge to accept a filing — of a petition for adoption within
a dependency and neglect case.
¶ 35 Moreover, section 19-1-309, C.R.S. 2018, which addresses the
confidentiality of relinquishment and adoption information,
specifically states that “[a] separate docket shall be maintained . . .
for adoption proceedings.” (Emphasis added.) “If the statutory
language is clear, we interpret the statute according to its plain and
ordinary meaning,” Specialty Rests. Corp. v. Nelson, 231 P.3d 393,
397 (Colo. 2010), and the word “shall” is given a “mandatory
connotation,” E.S., 49 P.3d at 1223.
15
¶ 36 Here, the General Assembly’s language shows its intent that
adoption proceedings should be heard separately even if the
proceedings are related, such as a dependency and neglect
proceeding that later results in an adoption. In addition,
grandmother fails to establish how she was harmed by the juvenile
court’s denial as nothing precluded grandmother from timely filing
a petition in a separate court proceeding.
¶ 37 Accordingly, we conclude that the juvenile court did not err in
disallowing the filing of a petition for adoption within the
dependency and neglect proceeding.1
VI. Grandparent Visitation
¶ 38 Grandmother contends that the juvenile court erred in
terminating her visitation rights with the child. We disagree.
¶ 39 The Children’s Code defines a grandparent as “a person who is
the parent of a child’s father or mother, who is related to the child
by blood, in whole or by half, adoption, or marriage.”
§ 19-1-103(56)(a), C.R.S. 2018. Section 19-1-103(56)(b), however,
expressly excludes as a grandparent any parent of a child’s legal
1 Even if the court should have allowed the filing, it was not legally
obligated to grant the requested relief for all the reasons discussed
in this opinion. See C.R.C.P. 5(e).
16
mother or father whose parental rights have been terminated. See
also People in Interest of J.W.W., 936 P.2d 599, 600 (Colo. App.
1997).
¶ 40 The right to visitation between a parent and child is eliminated
by a termination order. People in Interest of M.M., 726 P.2d 1108,
1124 (Colo. 1986). After mother’s parental rights were terminated,
any visitation rights that grandmother may have had by virtue of
being the child’s grandmother were also extinguished. People in
Interest of N.S., 821 P.2d 931, 932-33 (Colo. App. 1991)
(grandparents’ statutory visitation rights did not survive
termination of natural parents’ legal rights).
¶ 41 Accordingly, the juvenile court did not err in terminating
grandmother’s visitation.
VII. In Pari Materia and Judicial Legislation
¶ 42 Grandmother contends that the statutes governing this case
must be read in pari materia and that the juvenile court erred in
emphasizing the child’s attachment to the foster parents to the
exclusion of the legislature’s intent to preserve blood relationships.
She also argues that the juvenile court’s overreliance on attachment
displayed an impermissible exercise of judicial legislation.
17
¶ 43 “In pari materia” means “[o]n the same subject; relating to the
same matter.” Black’s Law Dictionary 862 (10th ed. 2014). It is “a
canon of construction that statutes that are in pari materia may be
construed together, so that inconsistencies in one statute may be
resolved by looking at another statute on the same subject.” Id.
¶ 44 Grandmother fails to identify with specificity the statutes that
the juvenile court failed to read in pari materia, how the juvenile
court misapplied the law, or how the law should have been
interpreted. This contention is therefore not properly before us
because grandmother does not identify supporting facts, make
specific arguments, or set forth specific authorities. People in
Interest of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004).
VIII. Conclusion
¶ 45 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE TERRY concur.
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