People in re M.S

COLORADO COURT OF APPEALS 2017COA60

Court of Appeals No. 16CA1082
Mesa County District Court No. 14JV135
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of M.S., a Child,

and Concerning C.S.,

Respondent-Appellant.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE LICHTENSTEIN
Román and Freyre, JJ., concur

Announced May 4, 2017

J. Patrick Coleman, County Attorney, Katherine Barnes, Assistant County
Attorney, Grand Junction, Colorado, for Petitioner-Appellee

Robert G. Tweedell, Guardian Ad Litem

Leigh Coleman Taylor Law Office, Leigh Coleman Taylor, Grand Junction,
Colorado, for Respondent-Appellant
¶1 In this dependency and neglect proceeding, C.S. (father)

appeals a district court order that denied his petition for judicial

review of a magistrate order allocating parental responsibilities for

his child, M.S.

¶2 Our review of the record, however, requires us to determine

whether the magistrate had subject matter jurisdiction to issue its

order.1 We conclude dependency and neglect proceedings are

subject to the Uniform Child-custody Jurisdiction and Enforcement

Act (UCCJEA), § 14-13-101, et. seq., C.R.S. 2016. And because the

record does not demonstrate that the magistrate followed the

procedures set forth in the UCCJEA to acquire jurisdiction, we

vacate the judgment and remand the case for further proceedings.

I. Background

¶3 In May 2014, the Mesa County Department of Human Services

(Department) assumed temporary custody of eight-year-old M.S.

and initiated a dependency and neglect proceeding because father

had been charged with multiple counts of sexual assault against

the child’s mother (mother). Mother, who lived in Texas, reported

1See People in Interest of J.C.S., 169 P.3d 240, 244 (Colo. App.
2007) (sua sponte inquiry into jurisdiction is appropriate in
dependency and neglect proceedings).

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 that father had obtained custody of M.S. and had allowed her to

have limited contact with M.S.

¶4 By stipulation, the court adjudicated M.S. dependent or

neglected and approved a treatment plan for father. Father pleaded

guilty to sexual assault against mother and anticipated receiving a

determinate six-year prison sentence.

¶5 Later, the Department moved for a permanent allocation of

parental responsibilities (APR) for M.S. to mother. Following a

contested hearing, the magistrate determined that it was in M.S.’s

best interests to be placed with mother, but decided to delay ruling

on the APR request until it again reviewed M.S.’s placement. After a

further review hearing, the magistrate issued an order granting

permanent APR to mother.

¶6 Father filed a notice of appeal with this court. A division of the

court dismissed father’s appeal because he had not obtained

district court review. Thereafter, father filed a petition for district

court review of the permanent APR order. The district court denied

father’s request. Father now appeals.

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 II. UCCJEA

¶7 After reviewing the parties’ supplemental briefs, we conclude

that the magistrate lacked jurisdiction under the UCCJEA to issue

the permanent APR order.

A. Applicability to Dependency and Neglect Proceedings

¶8 Initially, we address the Department’s argument that the

UCCJEA does not apply to dependency and neglect proceedings

once a child has been adjudicated dependent and neglected.

¶9 First, the Department’s reliance on People in Interest of E.C.,

30 Colo. App. 190, 490 P.2d 706 (1971), is misplaced. In E.C., a

division of this court reiterated that a Colorado court did not need

to respect the custodial decree of another state when conditions

necessitated Colorado’s intervention for the protection of a child

found within its borders. Id. at 193-94, 490 P.2d at 708.

¶ 10 However, E.C. was decided before Colorado adopted the

UCCJEA in 2000 or even before Colorado adopted its predecessor,

the Uniform Child Custody Jurisdiction Act (UCCJA). See People in

Interest of M.C., 94 P.3d 1220, 1222 (Colo. App. 2004) (recognizing

that effective July 1, 2000, the UCCJEA replaced the UCCJA); see

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 also L.G. v. People, 890 P.2d 647, 655 (Colo. 1995) (noting that the

UCCJA was adopted in Colorado in 1973).

¶ 11 Second, the UCCJEA governs child-custody proceedings,

which it expressly defines as including dependency proceedings.

§ 14-13-102(4), C.R.S. 2016. Section 14-13-103, C.R.S. 2016,

identifies two types of proceedings — adoptions and proceedings to

authorize emergency medical care for a child — that are not

governed by the UCCJEA. But, the UCCJEA does not include a

similar provision exempting any stage of a dependency and neglect

proceeding from its purview.

¶ 12 Accordingly, a dependency and neglect proceeding is one type

of “child-custody proceeding” subject to the UCCJEA. §§ 14-13-101

to -403, C.R.S. 2016.

B. Jurisdiction

¶ 13 Although this issue was not initially raised by the parties, we

may address it sua sponte because it concerns the court’s subject

matter jurisdiction. See In re Support of E.K., 2013 COA 99, ¶ 7.

And, we may notice a lack of jurisdiction in a magistrate’s order

that the district court has declined to review. See In re Marriage of

Ferris, 75 P.3d 1170, 1171 (Colo. App. 2003).

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¶ 14 Whether a district court has subject matter jurisdiction over a

UCCJEA proceeding presents a question of law that we review de

novo. People in Interest of D.P., 181 P.3d 403, 406 (Colo. App.

2008).

¶ 15 Under the UCCJEA, the court that makes an initial custody

determination generally retains exclusive, continuing jurisdiction.

§ 14-13-206, C.R.S. 2016; M.C., 94 P.3d at 1223. In essence, the

UCCJEA seeks to eliminate the simultaneous exercise of

jurisdiction over custody disputes by more than one state. M.C., 94

P.3d at 1223. Accordingly, absent temporary emergency

jurisdiction under section 14-13-204, C.R.S. 2016, a Colorado court

may only modify a custody order issued by an out-of-state court

under limited circumstances.

¶ 16 First, the Colorado court must have jurisdiction to make an

initial custody determination under section 14-13-201(1)(a) or (b),

C.R.S. 2016. § 14-13-203(1), C.R.S. 2016; In re Marriage of Brandt,

2012 CO 3, ¶ 33. As pertinent here, this requirement is satisfied

when Colorado is or was the child’s home state — defined as the

state in which the child has lived with a parent for at least 182

consecutive days — when the proceeding begins or the court in the

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 child’s home state has declined jurisdiction on the ground that

Colorado is the more appropriate forum. §§ 14-13-102(7)(a),

-201(1)(a)-(b).

¶ 17 Additionally, the court in the issuing state must have lost or

declined to exercise jurisdiction. Brandt, ¶ 33. This can occur

when the court in the issuing state determines that (1) the child

and parents no longer have a significant connection to the issuing

state and substantial evidence regarding the child is not available in

the issuing state, or (2) the Colorado court is a more convenient

forum. §§ 14-13-202, -203(1)(a), C.R.S. 2016. Alternatively, either

the court in the issuing state or a Colorado court may determine

that the issuing state has been divested of jurisdiction because the

child and parents do not presently reside in the issuing state.

§ 14-13-203(1)(b); Brandt, ¶¶ 26, 28.

¶ 18 The determination of whether an issuing state has lost

exclusive, continuing jurisdiction based on nonresidency requires a

broad inquiry into the totality of the circumstances. Brandt,

¶¶ 43-44. Significantly, before a Colorado court may assume

jurisdiction to modify an out-of-state custody order, it must

communicate with the issuing court pursuant to sections

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 14-13-110 to -112, C.R.S. 2016, and conduct a hearing if there is a

factual dispute regarding the residency issue. Brandt, ¶ 35.

C. Analysis

¶ 19 Here, a California court had issued a custody order regarding

M.S. prior to the initiation of the dependency and neglect

proceeding. The Department’s exhibit that served as the factual

basis for M.S.’s adjudication as dependent or neglected indicated

that father had “obtained sole legal and physical custody of [M.S.]

through Ventura Superior Court, California, Case Number D338591

on or about 11/29/10.” Likewise, at the APR hearing, father

testified that he had been granted custody of M.S. in California in

2010.

¶ 20 Indeed, in considering the APR request, the magistrate

observed that “there was evidence” of a California custody order

regarding M.S. and that the issue needed to be addressed.

However, the magistrate did not (1) confer with the California court

that issued the 2010 custody order or (2) make a determination as

to whether the California court had lost exclusive, continuing

jurisdiction. Accordingly, the magistrate failed to acquire

jurisdiction under the UCCJEA before it issued the permanent APR

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 order — effectively modifying the 2010 custody order from

California.

¶ 21 We recognize that evidence presented at the APR hearing could

support a finding that the California court had lost exclusive,

continuing, jurisdiction because neither of the parents nor M.S.

presently reside there. Father testified that he and M.S. had moved

to Colorado shortly after the 2010 custody order was issued. He

also indicated that mother had moved from California to New

Mexico during that time. And, at the time of the APR hearing,

mother lived in Texas.

¶ 22 Nonetheless, the record does not demonstrate that the

magistrate followed the procedures set forth in the UCCJEA and

Brandt to acquire jurisdiction to modify the California custody

order. Accordingly, the permanent APR order must be vacated.

¶ 23 Because we have concluded that the permanent APR order

must be vacated, we do not address father’s contention that the

district court erred in denying his request for review of the

magistrate’s APR order.

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 III. Conclusion

¶ 24 The judgment is vacated, and the matter is remanded to the

district court to direct the magistrate to determine whether it has

jurisdiction to issue an APR order that modifies the California

custody order. In doing so, the magistrate must communicate with

the issuing court in California, and, if necessary, allow the parties

to present evidence regarding residency.

JUDGE ROMÁN and JUDGE FREYRE concur.

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