In re People

Justice COATS,

dissenting:

Today, the majority directs the courts of Colorado to ignore the command of a sister state to return an unadopted baby, born on its soil and placed for adoption according to its laws; and instead to decide for themselves whether the child would be better off in the custody of Colorado residents than in the custody of the child’s natural parents in the state of its birth. Following a dizzying discussion of jurisdictional statutes, ultimately failing to resolve their individual applicability, the majority concludes that jurisdiction to determine the fate of the child in this ease hinges on the choice of the Missouri attorney for the prospective adoptive parents, acting *614as an “intermediary” in the adoption process, rather than the courts of her state.

Whatever my reservations about an adoption scheme that permits a natural parent’s unilateral withdrawal of consent to adoption months after placement of the child, such laws involve policy choices belonging to another branch of government and, in this case, to another jurisdiction altogether. In any event, I am much more concerned about the jurisdictional free-for-all that will surely result from the majority’s approach and the harm done to children who will be forced to suffer under conflicting custody orders and perpetual jurisdictional disputes. Because I cannot endorse the liberties I believe the majority has taken with the jurisdictional choices of both the Colorado General Assembly and the United States Congress, I respectfully dissent.

Almost a decade ago, following a divided intermediate appellate court ruling, see In re Custody of C.C.R.S., 872 P.2d 1337, 1345-55 (Colo.App.1993) (Taubman, J., dissenting), a bare majority of this court held that the custody provisions of Colorado’s dissolution of marriage act also apply to adoptions unrelated to divorce, permitting the courts of this state to allocate the custody and care of children to prospective adoptive parents, without the consent of the otherwise fit, natural parents or the relinquishment of then-parental rights. See In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995); see also id. at 259 (Lohr, J., joined by Kirshbaum and Scott, JJ., dissenting); ⅛. at 262 (Scott, J., joined by Kirshbaum, J., dissenting). Whatever the merits of that decision, the general assembly’s failure to countermand it in the intervening nine years has left it unchallenged as the controlling law of this jurisdiction.

In its opinion today, a majority of the court seeks to extend that judicial power to interstate placements. It does so by again postulating a distinction between the right of prospective adoptive parents to adopt a child and a separate and independent right for them to be granted legal custody of the child. Because even the majority concedes that its obligations under the Full Faith and Credit Clause require its deference to Missouri’s order denying the adoption, it purports only to permit the Colorado District Court to award the care and custody of the child to Colorado non-parents, without actually permitting adoption of the child or termination of the parental rights of the Missouri parents. As tenuous as the C.C.R.S. rationale may have been in the intrastate context, this court at least had the power to construe Colorado’s divorce and adoption statutes in pari materia and discover a controlling legislative intent to locate custody in a third party, despite retention by the natural parents of their parental rights. As the majority’s strenuous attempt to extend it makes clear, this distinction between custody and adoptability is simply untenable as a device for acquiring jurisdiction in the context of interstate adoptions.

The applicability of the Full Faith and Credit Clause to the interstate enforcement of child custody orders has long presented vexing problems. See In re Baby Girl Clau-sen, 442 Mich. 648, 502 N.W.2d 649, 661 (1993). In 1968, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Child Custody Jurisdiction Act (UCCJA), which was subsequently adopted in some form by all 50 states and the District of Columbia. See L.G. v. People, 890 P.2d 647, 655 (Colo.1995). A dozen years later, in 1980, Congress responded to the disparate interpretations of the uniform act and continuing disputes over the enforceability of other states’ custody decisions by adopting the Parental Kidnapping Prevention Act (PKPA).1 The federal PKPA imposed a duty on all states to enforce the custody determinations of other states that are consistent with the PKPA itself. 28 USC § 1738A(a)(2004). In part, however, because the PKPA incorporated state UCCJA law, including its overlapping jurisdictional provisions and its highly ambiguous definition of “custody proceedings,” deference to sister state custody orders remained inconsistent. Compare In re Clausen with E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871 (1982).

*615Almost 30 years after promulgating the UCCJA, the National Conference therefore revisited the law of child custody jurisdiction, and in an attempt to “eliminate the inconsistent state interpretations and harmonize the UCCJA with the PKPA,” replaced the UC-CJA with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Uniform Child Custody Jurisdiction Prefatory Note, part 1, article 13, title 14, Colorado Revised Statutes (2004). Since its promulgation in 1997, the UCCJEA has been adopted in more than 30 states, including Colorado. See Ch. 320, sec. 1, § 14-13-101— 403, 2000 Colo. Sess. Laws 1519.

Key among the expressed purposes of the UCCJEA were its clarification of the standards for exercising original jurisdiction over a child custody determination; its enunciation of a standard of continuing jurisdiction; and its clarification of modification jurisdiction. See Uniform Child Custody Jurisdiction Prefatory Note. The accompanying notes to the new, rewritten act also made clear that “the ‘best interest’ language of the jurisdictional sections of the UCCJA was not intended to be an invitation to address the merits of the custody dispute in the jurisdictional determination or otherwise provide that ‘best interest’ considerations should override jurisdictional determinations or provide an additional jurisdictional basis.” Prefatory Note 5. In order “to clearly distinguish between the jurisdictional standards and the substantive standards relating to custody and visitation of children,” the UCCJEA therefore completely eliminated the term “best interests” from its provisions. Id.

While the majority’s “best-interest” jurisdictional analysis was at least colorable under the UCCJA, under the UCCJEA it has therefore been completely foreclosed. Unlike the UCCJA, the UCCJEA makes an express distinction between initial and continuing jurisdiction; gives priority of initial jurisdiction to the “home state;” and provides for exclusive, continuing jurisdiction (until the occurrence of specified events) in any state making a child-custody determination. Id. Because the jurisdictional provisions of the UCCJEA were crafted specifically to preclude simultaneous claims of jurisdiction by more than one state, it is clear under its provisions that a single jurisdiction has priority of jurisdiction. See § 14-13-201.

Although the UCCJEA also provides for the state with priority of jurisdiction to decline to exercise it, in effect creating jurisdiction in another state, it does so only under specific, statutorily defined circumstances. Apart from the misconduct of a party, which may require the state with jurisdiction to decline it, see § 14-13-208, jurisdiction may be declined only for the reason that the court with jurisdiction determines that it would be an inconvenient forum under the circumstances of the case and that another state would be a more appropriate forum. See § 14-13-207. Significantly, under the scheme of the UCCJEA, jurisdiction may be declined only by the state with priority of jurisdiction and, apart from misconduct by a party, it may do so only by consciously and expressly determining that another state is the more appropriate forum. Id. As distinguished from E.E.B.’s construction of the UCCJA and PKPA, revived here by the majority, the UCCJEA simply does not allow for a determination by a state seeking jurisdiction that another state with priority of jurisdiction has declined to exercise it by omitting to take some action, whether or not that action would have been required by its own law.

The majority, however, largely ignores the UCCJEA, relying on Missouri’s failure to adopt it and Colorado’s failure to adopt the Uniform Adoption Act (UAA) to suggest that the UCCJEA is either invalid or inapplicable to this situation. The UCCJEA is not an interstate compact, with applicability only to transactions involving co-signing states, but a jurisdictional statute, expressly defining the limits of this state’s jurisdiction over child-custody determinations. See generally Bernadette W. Hartfield, The Role of the Interstate Compact on the Placement of Children in Interstate Adoption, 68 Neb. L.Rev. 292, 295 (1999)(distinguishing interstate compacts from uniform laws). The fact that Missouri continues to abide by a statute that has been expressly repealed by the Colorado legislature has no bearing on the jurisdiction of the Colorado courts. See § 14~13-301(“A court *616of this state shall recognize and enforce a child-custody determination of a court of another state if the other court exercised jurisdiction in substantial conformity with this article or the determination was made under factual circumstances meeting the jurisdictional standards of this article.”); Hector G. v. Josefina P., 771 N.Y.S.2d 316, 324 (N.Y.2003)(“Unlike its predecessor statute, the UCCJEA was made applicable not only to other states but also to all foreign countries, even if the other jurisdictions have not themselves adopted it.”); see also In re Marriage of Zierenberg, 11 Cal.App.4th 1436, 16 Cal.Rptr.2d 238 (1992).

Similarly, the UCCJEA clearly expresses no intent that states adopting it will also adopt the UAA, nor is it in any way incomplete or lacking in continuity except in conjunction with the UAA. As its comments indicate, the UCCJEA does not govern adoption proceedings because it contemplates that the jurisdictional provisions governing such proceedings will generally be found elsewhere; “[hjowever there are likely to be a number of instances where it will be necessary to apply this Act in an adoption proceeding.” See § 14-13-103 (Official Comment). Along with all but one jurisdiction in the country, neither Colorado nor Missouri has adopted the UAA. See Unif. Adoption Act of 1994 Jurisdictions Wherein Act Has Been Adopted, 9 U.L.A. 11 (2003)(citing the state of Vermont as the only state that has adopted the Act).

Even if the UCCJA governed this dispute, however, for a host of reasons it would not permit the courts of this jurisdiction to determine the custody of the Missouri child in this case. In the first place, the record indicates that as a matter of fact the child had not resided in Colorado with the prospective adoptive parents for a period of six months, and in fact was not even six months old, when the Missouri circuit court denied the adoption and ordered the return of the child.2 Without the authorization of Missouri’s order of temporary custody, the child was no longer in the custody of persons acting as parents, and that status could therefore not support a claim that this was the child’s “home state.” See § 14-13-103, 5 C.R.S. (1999)(Repealed July 2000, Ch. 320, sec. 1, § 14-13-101 — 403, 2000 Colo. Sess. Laws 1519)(defining “home state” as the state where the child lived with his parents, parent or person acting as parent, for at least six months). Moreover, I would reject E.E.B. ⅛ declination-of-jurisdiction rationale, at least as understood by the majority to characterize any legislative determination of custody, without separately allowing a judicial assessment of the “best-interests” of the child, as declining to exercise jurisdiction over the question of custody altogether.3 The shortcomings in that construction have been adequately exposed else where, see In re Clausen, 442 Mich. at 675, n. 31, 502 N.W.2d 649, and most recently by the National Conference itself in expressly drafting the UC-CJEA to more emphatically protect against any similar interpretation.

Although its purpose in doing so in this jurisdictional debate is not entirely clear to me, the majority also asserts that both the UAA and Missouri domestic law support Colorado’s holding in C.C.R.S. that custody determinations based on a “best-interest” analysis by the courts are required after failed *617adoptions.4 While the UAA, unlike either Colorado or Missouri law, limits to a handful of days the period within which a natural mother may unilaterally revoke her initial consent to adoption, it most certainly does not permit the courts to reassign custody away from a natural mother who had custody of her child before the placement, as long as the court finds a valid revocation of consent.5 Similarly, Missouri would clearly not permit guardianship of a child to be granted to a third party, outside of a proceeding contemplating the relinquishment of parental rights.

Even a cursory review of Missouri law is enough to dispel the suggestion that it permits, much less requires, a “best-interest” hearing before returning custody to the mother under these circumstances. The statute and case law relied upon by the majority for its assumption that Missouri requires such “best-interest” custody determination following failed adoptions are expressly limited to the case of an illegal transfer of custody, which necessarily brings into question the continued fitness of the natural parent. See In re Baby Girl, 850 S.W.2d 64 (Mo.1993) (construing Mo. Ann. Stat. § 453.110(1) (West 2004): “Illegal placement of children available for adoption”).

In fact, the Missouri statute permitting the court to award custody to someone other than the parent if the court denies an adoption petition says nothing about “best-interest.” See Mo. Ann. Stat. § 453.101 (“In the event that the juvenile court does not grant the adoption, the court may order that a guardian be appointed_”). Significantly, Missouri would permit the court to appoint someone other than the parent as guardian after the adoption is denied only under specified circumstances, including where both parents failed to give required security, both parents are shown to be unfit or adjudged incapacitated, the minor is over fourteen years old and has no qualified parent, or both parents are dead. See Mo. Stat. Ann. § 475.045.6

Far from taking a position akin to Colorado’s choice in C.C.R.S., see maj. op. at 604, Missouri does not apply its divorce law to adoption cases. Even where that state permits third-parties to obtain custody under its dissolution of marriage law, see Mo. Stat. Ann. § 452.375(5)(5) (permitting Missouri courts to award custody to third-parties only in divorce actions), it rejects the application of a best interest analysis to third-party custody petitions and requires a finding on the record that the parent is unfit, Cotton v. Wise, 977 S.W.2d 263, 264 (Mo.1998); see also Jones v. Jones, 10 S.W.3d 528, 537 (Mo.App.Ct.1999)(rejecting earlier Missouri Court of Appeals cases, including In re K.K.M., 647 S.W.2d 886 (Mo.Ct.App.1983), see maj. op. at 604, that applied a best interest analysis beyond parent versus parent custodial disputes).

*618Finally the majority comes to the Interstate Compact on the Placement of Children. The compact provides protocols for the interstate placement of children for adoption or foster care. Because the “sending agency” retains the same jurisdiction over custody matters that it would have had if the child had remained in the sending agency’s state, § 24-60-1802, art. V(a), 7B C.R.S. (2003); and because the compact’s broad definition of “sending agency,” see § 24-60-1802, art. 11(b), includes not only a party state but also its officers, employees, subdivisions, courts, and any person, corporation, association, charitable agency, or other entity that sends, brings, or causes to be sent or brought any child to another party state; the majority attributes to Missouri law the astonishing proposition that a person assisting with the placement as an intermediary is the “sending agency,” within the meaning of the compact, and personally has “jurisdiction” over the child, enabling that person, as distinguished from the courts of her state, to decide whether the child should be returned. Because an affidavit from the Missouri attorney of the prospective adoptive parents was attached to the petition filed in this court, indicating that she acted as the intermediary in this case and that she “sought no such outcome,” maj. op. at 613, the majority therefore considers itself free to disregard the order of the Missouri circuit court commanding return of the child to that state.

It is a mystery why the majority would feel obliged to defer to a sister state’s construction of an interstate compact, which we have ourselves adopted and construed, see, e.g., Dept. of Soc. Services v. Dist. Court, 742 P.2d 339 (Colo.1987), when it is unwilling even to defer to that state’s construction of its own law regarding custody in the wake of a failed adoption. In any event, in fairness to Missouri’s high court, I must disagree with the majority’s reading of Missouri’s construction of the compact. In In re Baby Girl, 860 S.W.2d at 68-69, the Missouri court clearly finds that even an individual mother who attempts an illegal transfer of custody is a “sending agency” within the meaning of the compact, thereby making the compact applicable; but it just as clearly concludes from the terms of the compact that the appropriate court of the sending state — specifically, “the Circuit Court of Dunklin County”— therefore retains jurisdiction over the child. The unremarkable proposition that a sending agency could have no more authority over the child, had it “remained in the sending agency’s state,” than is permitted by the courts of that state, is implicitly accepted, without question, by this and other states applying the compact. See, e.g., Dept. of Soc. Services, 742 P.2d at 341 (“Based upon our interpretation of the Interstate Compact, the Ohio court’s continuing jurisdiction, and HCDHS’s withdrawal of its consent to the placement of (the children)....”);7 Broyles v. Ashworth, 782 S.W.2d 31, 33-34 (Tex.App. 96th Dist.Ct.1989) (“We interpret the statute as meaning that whatever authority the sending agency might have with respect to custody and disposition of the child ... is to be determined according to the law of the sending agency’s state.”).

More fundamentally, however, the ICPC addresses the treatment and disposition of the child “during the period of the placement.” See § 14-13-103(Offieial Comment). It does not purport to deprive the sending state of jurisdiction over the adoption or provide for separate orders of custody following denial of an adoption. Although the UC-CJEA does not govern adoptions themselves, its comments indicate that it may be necessary to apply the Act to adoption proceedings in a number of instances, including those in which a separate custody determination is required after an adoption is denied. See Id. To the extent that the majority’s jurisdictional analysis is premised upon a distinction between Missouri’s adoption order and a subsequent determination of the custody of the child, jurisdiction over that custody determination is governed by the UCCJEA.

The Missouri court did not decline to rule on the custody of the child. The Missouri *619statutes permit the appointment of a guardian for a child following a failed adoption for long-term care of the child, but they also specify the limited circumstances in which the court may appoint someone other than the parent as guardian. The Missouri circuit court found that neither consent nor any lack of fitness of the mother permitted the adoption to proceed. In the absence of any condition recognized by the Missouri statutes permitting the appointment of a guardian other than the parent, it ordered custody returned to her. Even the majority agrees that Missouri, rather than Colorado, was the proper jurisdiction to make such a custody determination, unless it declined to exercise that jurisdiction. The majority simply refuses to recognize the Missouri court’s custody order because it was not based upon the same substantive criteria that would have been applied by the courts of this jurisdiction.

The majority rationale in this case is truly a textbook example of the evil that the UC-CJA was rewritten to abolish. Its uncritical reliance on the mantra of “best-interests” to create an additional basis for jurisdiction fosters the very jurisdictional uncertainty and conflict among child-custody orders that the National Conference sought to eliminate — in the service of the child’s best interests. Ironically, because most states have separate statutes already governing adoptions, custody disputes arising from interstate adoptions were not even among the problems that the UCCJEA felt a need to specifically address. Hopefully, this inauspicious beginning for the UCCJEA in Colorado does not portend another thirty-years war between states seeking to substitute their own notions of a child’s best interests for those of their sister states.

I respectfully dissent.

. Pub.L. No. 96-611, § 2, 94, Pub. Stat. 3566 (1980).

. The child was born in Missouri on April 18, 2003 and was brought to Colorado on April 21, after the Missouri court approved temporary placement with the prospective adoptive parents. On May 15, less than one month later, the court declined to approve termination of parental rights, and on July 25, the birth mother moved to withdraw her consent. On October 15, 2003, six days short of the six-month residence period, the court granted the mother’s motion and ordered physical custody restored to her. On October 31, 2003, two weeks after the Missouri court had ordered that physical custody of the minor child be returned to his mother, the prospective adop-live parents filed for parental responsibilities in Jefferson County.

. To the extent that E.E.B. suggested that a declination of jurisdiction would nevertheless not have occurred if, upon consultation, the other state expressly denied any intent to decline jurisdiction, see E.E.B., 446 A.2d at 880, its holding would not support the broader proposition for which it is cited by the majority. In this case, the Colorado District Court actually did consult with the Missouri court and decided that the Missouri court did not intend to decline jurisdiction.

. I do not agree with the majority's suggestion that section 19-5-104(8) offers support for the holding of C.C.R.S., see maj. op. at 604, and apparently neither did C.C.R.S. The “best-interests” custody determination mandated by section 19-5-104(8) is clearly limited to the situation in which parental rights have already been relinquished but clear and convincing evidence proves that such relinquishment was obtained by fraud or duress. See § 9-5-104(7) & (8). Much like the “best-interests” custody determination required by Missouri law following an illegal placement by a parent, see In re Baby Girl, 850 S.W.2d 64 (Mo.1993), under such special circumstances, the legislature has clearly determined that automatic return of a child to the former parent would be inappropriate.

. The UAA provides for the child’s care and custody after a failed adoption in a manner that carefully balances the natural parent's rights against the child’s best interests. To that end, it describes a series of circumstances in which custody of the child reverts immediately to the parent and those instances in which custody must go to someone other than the parent. See Unif. Adoption Act § 2-408, 9 ULA at 60-61. The UAA permits the court to issue an order providing for the care and custody of the child according to the child’s best interest after consent is revoked or set aside only if the child was not in the mother’s physical custody when placed for adoption or when the consent was given. Unif. Adoption Act § 2^408(0, 9 ULA at 61.

.Nor does the record, such as it is, support the majority’s suggestion that the Missouri court was required but failed to appoint a guardian ad litem in this case. See maj. op. at 604-605. Motions filed with the court by both parties clearly attest in their Certificates of Mailing that copies were mailed to an individual designated as Guardian Ad Litem.

. Although a special concurrence in that case by Justice Mullarkey would have made the majority's distinction between adoption and custody, and would have similarly relied on E.E.B. for the proposition that Colorado could determine the custody of the children rather than returning them to Ohio, in 1987 that position did not win the day. See maj. op. at 608.