in Interest of S.A.G

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
March 19, 2020

2020COA45

No. 19CA0991, People in Interest of S.A.G. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship; Family Law — Uniform Child-custody
Jurisdiction and Enforcement Act — Temporary Emergency
Jurisdiction — Initial Child-custody Jurisdiction

In this dependency and neglect proceeding, a division of the

court of appeals considers whether the Uniform Child-custody

Jurisdiction and Enforcement Act (UCCJEA), §§ 14-13-101 to -403,

C.R.S. 2019, requires a juvenile court to communicate with a court

in the child’s home state, even though no child-custody proceeding

was ever commenced or is pending there. The division concludes

that a court must do so if Colorado is not the child’s home state

under the UCCJEA when a child-custody proceeding is commenced.
COLORADO COURT OF APPEALS 2020C0A45

Court of Appeals No. 19CA0991
City and County of Denver Juvenile Court No. 17JV1735
Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.A.G., a Child,

and Concerning B.A.G. and A.W.D.,

Appellants.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE DAILEY
Bernard, C.J., and Navarro, J., concur

Announced March 19, 2020

Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City
Attorney, Denver, Colorado, for Appellee

Gina G. Bischofs, Guardian Ad Litem

Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant B.A.G.

Susan C. Baker, Office of Respondent Parents’ Counsel, El Prado, New Mexico,
for Appellant A.W.D.
¶1 In this dependency and neglect proceeding, A.W.D. (mother)

and B.A.G. (father) appeal the juvenile court’s judgment terminating

their legal relationships with S.A.G. (the child). We must resolve an

undecided question in Colorado: whether the Uniform

Child-Custody Jurisdiction and Enforcement Act (UCCJEA),

§§ 14-13-101 to -403, C.R.S. 2019, requires a juvenile court to

communicate with a court in the child’s home state, even though no

child-custody proceeding was ever commenced or is pending in the

child’s home state. We conclude that a Colorado court must do so

if Colorado is not the child’s home state under the UCCJEA when a

child-custody proceeding is commenced. Because the juvenile

court did not do so, we vacate the termination judgment and

remand the case for further proceedings.

I. Background

¶2 The child was born in 2014. He lived with the parents in

Arkansas until the family came to Colorado in late 2017. About

three weeks after the family came to Colorado, the Denver

Department of Human Services (Department) obtained custody of

the child and initiated a dependency and neglect case.

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¶3 At the shelter hearing three days later, mother admitted that

the child’s environment was injurious to his welfare, and the court

adjudicated him dependent and neglected as to her. But mother’s

counsel told the court that mother resided in Arkansas and that

she “wasn’t planning on moving” to Colorado. The court asked if

another court had jurisdiction over the child; counsel said no. The

court’s placement order noted that an emergency justified

temporary removal, but it did not say that the court was exercising

temporary emergency jurisdiction under UCCJEA.

¶4 After the shelter hearing, the case proceeded along the usual

course. At mother’s dispositional hearing in December, she

reiterated that she resided in Arkansas and desired to return there

as soon as possible. The court responded that it could not send the

child back to Arkansas until a placement had been approved under

the Interstate Compact on the Placement of Children (ICPC).

¶5 At a hearing in January, the juvenile court adjudicated the

child dependent and neglected based on father’s admission that the

child had been subjected to an injurious environment. During this

hearing, father said that he was now in regular communication with

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 the county and state human services offices in Arkansas to

determine what services he could obtain there.

¶6 The juvenile court adopted treatment plans for mother and

father. The adjudicatory and dispositional orders for mother and

father did not (1) address UCCJEA jurisdiction; (2) say that either

order would become final unless an order was obtained from

Arkansas; or (3) contain any finding of an ongoing emergency.

Likewise, the court did not address jurisdiction in any of its

permanency planning or periodic review orders.

¶7 At a review hearing in May 2018, father’s counsel said, “[T]he

parents have been clear since . . . this case opened that they were

in Colorado temporarily; that Arkansas was their home where all of

their supports are, and they wanted to get back there as soon as

possible . . . . [S]o they are still looking to return to Arkansas.”

Counsel also asked the court to transfer jurisdiction to Arkansas.

The court said that it could not because “there was no case open in

Arkansas.” But the court acknowledged the limits to its temporary

emergency jurisdiction:

We don’t have authority at this point to do an
allocation of parental responsibilities because
we're not the home state . . . . We would only

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 have emergency jurisdiction and so couldn’t
enter any permanent orders. . . . [B]ut if it
turned out to be a termination, then we would
have jurisdiction. It’s only if we end with
anything other than a termination that we
wouldn’t have jurisdiction, is my
understanding.

The Department’s attorney concurred in this assessment and

offered that it “would have to look into” the jurisdictional issue.

¶8 Mother and father returned to Arkansas the next month, but

without the child. They had remained in Colorado for about seven

months after the court entered the initial emergency out-of-home

placement order.

¶9 At the next permanency planning hearing in August 2018, the

Department’s attorney asked the court to inquire with the parents

about any out-of-state child-custody proceedings that could affect

jurisdiction. The court did so. Mother said that she was not aware

of any pending neglect or custody cases involving the child. She

explained that the child had lived in Arkansas continuously until

the family came to Colorado three weeks before the case began.

Father agreed. After discussing the status of a placement with

paternal grandmother in Arkansas, the court said it lacked

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 jurisdiction to place the child with her unless Arkansas was willing

to accept the child under the ICPC.

¶ 10 The Department moved to terminate parental rights in

September 2018. The termination proceedings stretched over seven

months. The parents appeared by phone for all proceedings after

moving back to Arkansas in June 2018. During the hearing, the

Department’s attorney said that the parents were involved with a

human services department in Arkansas and that they had been

assigned a caseworker there.

¶ 11 At the conclusion of the hearing, the juvenile court found that

it had jurisdiction because “the incident that brought this to the

attention of the [D]epartment occurred in Denver, Colorado.” Again,

the court did not mention the UCCJEA. It then made the requisite

statutory findings by clear and convincing evidence and terminated

mother’s and father’s parental rights.

II. Jurisdiction under the UCCJEA

¶ 12 Father contests the juvenile court’s jurisdiction to terminate

his parental rights under the UCCJEA. We agree that the record

does not show that the court properly acquired jurisdiction.

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 A. Preservation and Standard of Review

¶ 13 All parties acknowledge that lack of subject matter jurisdiction

can be raised for the first time on appeal. People in Interest of

C.L.T., 2017 COA 119, ¶ 13.

¶ 14 We review subject matter jurisdiction under the UCCJEA and

the juvenile court’s interpretation of that statute de novo. Id. at

¶ 14; see also Airth v. Zurich Am. Ins. Co., 2018 COA 9, ¶ 25. But

the juvenile court resolves factual disputes about jurisdiction, and

appellate courts may not disturb those findings unless they are

clearly erroneous. CAMAS Colo., Inc. v. Bd. of Cty. Comm’rs, 36 P.3d

135, 138 (Colo. App. 2001). The petitioning party — in this case,

the Department — bears the burden of establishing UCCJEA

jurisdiction. People in Interest of A.B-A., 2019 COA 125, ¶ 14.

B. Law

¶ 15 One purpose of the UCCJEA is to “promote cooperation with

the courts of other States to the end that a custody decree is

rendered in the State which can best decide the case in the interest

of the child.” § 14-13-101 cmt. 2, C.R.S. 2019. To answer the

question of which state could “best decide” this case, we must

compare section 14-13-204, C.R.S. 2019, which confers temporary

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 emergency jurisdiction, with section 14-13-201, C.R.S. 2019, which

provides the exclusive jurisdictional basis for making an initial,

non-emergency child-custody determination by a court in this state.

See § 14-13-102(3), C.R.S. 2019 (defining “child-custody

determination” to include a “permanent, temporary, initial, and

modification order” for “the legal custody or physical custody of a

child”).

¶ 16 These two sections of the UCCJEA provide separate and

distinct jurisdictional bases. See § 14-13-201 cmt. 2 (noting that

under the predecessor to the UCCJEA, emergency jurisdiction had

been included under subsection 201, but that it had been moved to

a separate section “to make it clear that the power to protect a child

in crisis does not include the power to enter a permanent order for

that child except as provided by that section”).

1. Temporary Emergency Jurisdiction

¶ 17 The UCCJEA provision governing temporary emergency

jurisdiction under section 14-13-204 contains four subsections, two

of which are relevant here.

¶ 18 Subsection (1) authorizes a Colorado court to exercise

temporary emergency jurisdiction under two conditions: (1) the

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 child must be present in the state; and (2) the exercise of

jurisdiction must be “necessary in an emergency to protect the

child” from “mistreatment or abuse.” § 14-13-204(1) (emphasis

added). However, “this temporary emergency jurisdiction under the

UCCJEA is limited in scope and in time.” A.B-A., ¶ 13. A court

exercising temporary emergency jurisdiction must promptly

investigate whether the court has ongoing, non-emergency

jurisdiction, and may not enter a permanent custody disposition

based on emergency jurisdiction. Id.; C.L.T., ¶ 19; see also

§ 14-13-204 cmt. (“[A] custody determination made under [these]

provisions . . . is a temporary order. The purpose of the order is to

protect the child until the State that has jurisdiction under

Section[] 14-13-201 . . . enters an order.”); § 19-3-608(1), C.R.S.

2019 (an order terminating parental rights permanently divests the

parent of custody).

¶ 19 Subsection (2) explains the effect of an order entered by a

Colorado court exercising temporary emergency jurisdiction when

no other court has established UCCJEA jurisdiction:

If there is no previous child-custody
determination that is entitled to be enforced
under this article and a child-custody

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 proceeding has not been commenced in a court
of a state having jurisdiction under [the
UCCJEA], a child-custody determination made
under this section remains in effect until an
order is obtained from a court of a state having
jurisdiction under [the UCCJEA]. If a
child-custody proceeding has not been or is
not commenced in a court of a state having
jurisdiction under [the UCCJEA], a
child-custody determination made under this
section becomes a final determination, if it so
provides and this state becomes the home state
of the child.

§ 14-13-204(2) (emphasis added).

2. Home State Jurisdiction and Alternatives

¶ 20 Section 14-13-201 contains four independent grounds for

jurisdiction. Subsection (1)(a) addresses when Colorado is the

home state of a child. The subsections that follow explain how a

Colorado court can exercise jurisdiction when it is not the home

state. They include “significant connection” jurisdiction, “more

appropriate forum” jurisdiction, and last resort jurisdiction (no

court in any other state would have jurisdiction).

§ 14-13-201(1)(b)(I), (c), (d); see C.L.T., ¶¶ 26-29. Both the

significant connection and more appropriate forum alternatives to

home state jurisdiction provide that, among other requirements, the

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 home state decline to exercise its jurisdiction. § 14-13-201(1)(b)(I),

(c), (d).

C. Application

¶ 21 Father neither challenges the juvenile court’s exercise of

temporary emergency jurisdiction nor addresses when that

jurisdiction ended. As to the initial out-of-home placement order,

we do not see any basis in the record for disputing the juvenile

court’s jurisdiction. The child was present in Colorado, and the

record supports the statement in the order that an emergency

justified immediate action. Because father challenges only the

termination judgment, we decline to address the juvenile court’s

jurisdiction to enter any of the interim orders.

¶ 22 Instead, father argues that the juvenile court lacked

jurisdiction to terminate his parental rights. He asserts that

temporary emergency jurisdiction did not provide the court with

jurisdiction to enter a permanent order terminating parental rights.

He further asserts that the court needed to establish a basis for

ongoing jurisdiction under section 14-13-201 and had to

communicate with a court in Arkansas. As well, he continues, the

juvenile court could only exercise “significant connection” or “more

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 appropriate forum” jurisdiction if Arkansas declined to exercise its

jurisdiction.

¶ 23 The Department and the guardian ad litem (GAL) respond that

delving into section 14-13-201 and remanding for jurisdictional

findings are unnecessary because Colorado became the child’s

home state under section 14-13-204(2). They say, “Such a finding

can be inferred from the court’s oral termination ruling . . . .”

Alternatively, they assert that, even if remand is necessary, the

juvenile court need not contact a court in Arkansas. And while they

concede that communication between courts “may constitute a best

practice,” the Department and GAL argue that the UCCJEA does

not require it.

¶ 24 We agree with father.

¶ 25 As applicable here, a child-custody determination entered

pursuant to temporary emergency jurisdiction may become a final

determination if (1) the order states that it will become final and (2)

Colorado becomes the child’s home state. § 14-13-204(2). Yet,

none of these orders included the required proviso. And, as the

court in In re Gino C., 169 Cal. Rptr. 3d 193, 197-98 (Cal. Ct. App.

2014), explained:

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 The court’s efforts to comply with the UCCJEA
fell short because the court misinterpreted [the
emergency jurisdiction section] as allowing the
court’s temporary emergency jurisdiction to
automatically convert to permanent
jurisdiction if the parents did not initiate child
custody proceedings in Mexico. Instead, the
statute precludes a child custody
determination by a court exercising temporary
emergency jurisdiction from becoming final
until this state becomes the child’s home
state.

¶ 26 Because the juvenile court lacked jurisdiction to terminate

parental rights under temporary emergency jurisdiction, we must

turn to section 14-13-201 to find an alternative basis for

jurisdiction. Applying that section here raises two concerns: first,

the juvenile court failed to make any meaningful jurisdictional

findings for its termination judgment; and, second, the court failed

to communicate with any court in Arkansas. These concerns

require separate analysis.

¶ 27 We have recognized a lower court’s implied findings in cases

involving jurisdictional disputes. E.g., Marquest Med. Prods., Inc. v.

Daniel, McKee & Co., 791 P.2d 14, 15 (Colo. App. 1990) (upholding

the trial court’s implicit jurisdictional finding when it denied a

defendant’s motion to dismiss); see generally Foster v. Phillips, 6

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 P.3d 791, 796 (Colo. App. 1999) (noting that “while it is the better

practice to make express findings, they may be implicit in a court's

ruling”); Catron v. Catron, 40 Colo. App. 476, 479, 577 P.2d 322,

324 (1978) (holding that a statutorily required factual finding “was

implicit in the trial court’s rulings”).

¶ 28 But given the child’s brief presence in Colorado before the

juvenile court entered the out-of-home placement order, the record

contains no basis on which we could infer that the court found

Colorado to be the child’s home state. See § 14-13-102(7)(a)

(defining “Home state”);1 § 14-13-201(1)(a) (explaining home state

jurisdiction). And because Arkansas meets the definition of home

1 “Home state” is defined as

the state in which a child lived with a parent or a
person acting as a parent for at least one hundred
eighty-two consecutive days immediately before the
commencement of a child-custody proceeding. In
the case of a child less than six months of age, the
term means the state in which the child lived from
birth with any of the persons mentioned. A period of
temporary absence of any of the mentioned persons
is part of the period.

§ 14-13-102(7)(a), C.R.S. 2019.

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 state, last resort jurisdiction would not work either. See

§ 14-13-201(1)(d) (giving home state jurisdiction priority).

¶ 29 Turning to “significant connection” and “more appropriate

forum” jurisdiction, both of those options require that a home state

court decline jurisdiction before another state’s court can invoke it.

§ 14-13-201(1)(b)(I), (c). Even assuming the record established that

“substantial evidence” was available in Colorado about the child’s

care, the record does not show any “significant connection” of father

and the child to Colorado other than their mere physical presence.

§ 14-13-201(1)(b)(I).

¶ 30 So, what does “decline[] to exercise jurisdiction” mean? See id.

Everyone before us agrees that the record does not show any

communications between the juvenile court and any court in

Arkansas. Properly framed, the question is this: May a court find

that a home state “has declined to exercise jurisdiction” when no

affirmative act has been taken to communicate with a court in the

home state? For the following reasons, we answer this question

“no.”

¶ 31 Courts in other states have held that declining jurisdiction

under the UCCJEA means something more “than the absence of

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 litigation on the specific issue raised by a motion to modify filed in

another state.” Manley v. Hoag, 917 P.2d 1011, 1014 (Okla. Civ.

App. 1996). This interpretation finds support in the official

comments to the UCCJEA, which Colorado has incorporated into

the statute. The comments say that a court may only exercise

significant-connection jurisdiction “when the home State decides

that the significant connection State would be a more appropriate

forum . . . .” § 14-13-201 cmt. 2 (emphasis added). For jurisdiction

based on a “more appropriate forum,” the comments say that

jurisdiction may be exercised when the home state and any

significant-connection jurisdiction “determine that [another] State is

a more appropriate forum.” Id. (emphasis added). But if the home

state has “determined it is a more appropriate place to hear the

case,” the more appropriate forum analysis ends. Id.

¶ 32 These words — “decide” and “determine” — suggest that the

home state must have had an opportunity to weigh in and been

made aware of a possible reason to do so. See Webster’s Third New

International Dictionary 585 (2002) (defining “decide” as “to arrive

at a choice, judgment, or decision”); id. at 616 (defining “determine”

as “to settle or decide by choice of alternatives or possibilities”). The

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 Department and GAL correctly point out that the UCCJEA does not

expressly require a non-home state court to communicate with a

home state court in the absence of an existing determination or

pending proceeding. Still, section 14-13-201 requires the home

state to decline jurisdiction before the non-home state can exercise

it. Simply put, without knowledge of the Colorado proceeding, an

Arkansas court could not have determined or decided whether “to

exercise jurisdiction.”

¶ 33 In In re Gino C., the court explained, “[s]ince the [California]

court opted to remain passive and did not contact Mexico, Mexico

has not been given an opportunity to decide whether to exercise its

home state jurisdiction. Therefore, the court erred in assuming

permanent jurisdiction over the matter.” 169 Cal. Rptr. 3d at 197-

98; see Wood v. Redwine, 33 P.3d 53, 56 (Okla. Civ. App. 2001) (“In

the present case, no other state with jurisdiction has declined to

exercise jurisdiction, and the failure of the parties to seek the

jurisdiction of another state’s courts is not dispositive.”); Ruffier v.

Ruffier, 190 S.W.3d 884, 890 (Tex. Ct. App. 2006) (until home state

affirmatively declines jurisdiction, another state cannot assert

significant connection jurisdiction).

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¶ 34 Despite all of this, the Department and GAL insist that unless

a proceeding had been commenced or was pending in Arkansas, the

juvenile court would not know where to inquire. We are not

persuaded. Under the UCCJEA, the Department had the burden to

establish jurisdiction. A.B-A., ¶ 14. And, here, the Department had

been communicating with a counterpart agency in Arkansas

concerning the home study into paternal grandmother. The

Department could have sought assistance from that agency in

determining the proper court to contact.

¶ 35 For these reasons, we conclude that the juvenile court lacked

jurisdiction to terminate parental rights under the UCCJEA’s

temporary emergency jurisdiction provision. Furthermore, because

the record does not establish (and the juvenile court did not make

findings regarding) a basis for continuing UCCJEA jurisdiction, the

termination judgment as to both parents must be vacated.

¶ 36 Because we have determined that the termination judgment

must be vacated, we do not address the parents’ remaining

arguments.

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 III. Conclusion

¶ 37 The judgment is vacated. The matter is remanded to the

juvenile court for it to determine whether it has continuing

jurisdiction under section 14-13-201. Before doing so, the court

must communicate with an Arkansas court and the Arkansas court

must decline to exercise jurisdiction.

¶ 38 In its discretion, the court may take further evidence

concerning jurisdiction. If the court concludes that it has

continuing jurisdiction, then it may reinstate the termination

judgment, based on the existing record, after affording the parties

an opportunity to present evidence. Either party may appeal.

¶ 39 Pending further order of the juvenile court, the out-of-home

placement order remains in effect and the child shall stay in his

current placement.

CHIEF JUDGE BERNARD and JUDGE NAVARRO concur.

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