People in Interest of S.A.G., 2020 COA 45 (March 19, 2020)

The Court of Appeals vacates a juvenile court order terminating parental rights due to lack of subject matter jurisdiction.

The family moved from Arkansas, where the child lived since birth, to Colorado approximately three weeks prior to the department taking custody and initiating a D&N proceeding. The juvenile court’s initial placement order indicated that the juvenile court was exercising temporary emergency jurisdiction pursuant to the UCCJEA. The parents indicated continuing contacts with Arkansas supports, requested relative placement in Arkansas, and moved back to Arkansas. During a Permanency Planning Hearing, the juvenile court asked the parents about out-of-state custody proceedings. The parents indicated that there were not any proceedings. The department indicated that the parents were involved with a human services department in Arkansas. The juvenile court ultimately terminated the parent-child legal relationship. The juvenile court did not make any findings regarding its jurisdiction pursuant to the UCCJEA.

Respondent father contested the juvenile court’s jurisdiction to terminate his parental rights pursuant to the UCCJEA. Respondent father did not challenge the juvenile court’s exercise of temporary emergency jurisdiction to enter the initial out-of-home placement order or challenge the juvenile court’s jurisdiction to enter interim orders. In challenging the juvenile court’s jurisdiction to enter termination orders, respondent father asserted that because the child’s home state was Arkansas and the juvenile court failed to communicate with the Arkansas court, the juvenile court violated the UCCJEA and incorrectly exercised jurisdiction.

The Court of Appeals begins by explaining that the juvenile court lacked jurisdiction to terminate parental rights under temporary emergency jurisdiction. The Court of Appeals next determines that Arkansas is the child’s home state and that the juvenile court therefore could not have “last resort” jurisdiction under the UCCJEA. Turning to “significant connection” and “more appropriate forum” jurisdiction, the Court of Appeals notes that both require a home state to decline jurisdiction. Courts cannot find that a home state has declined to exercise jurisdiction when no affirmative action has been taken to communicate with a court in the home state.

The Court of Appeals acknowledges 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. However, Colorado Revised Statute 14-13-201 requires a home state to decline jurisdiction before a non-home state can exercise jurisdiction. Because the juvenile court did not confer, the home state of Arkansas was unaware of the Colorado child-custody proceedings and had no opportunity to exercise or decline to exercise jurisdiction.

Regardless of whether a proceeding has commenced in a home state, non-home state courts are required to communicate with home state courts when child-custody proceedings commence in non-home states. Therefore, the juvenile court inappropriately exercised jurisdiction.

The Court of Appeals specifically notes that it is not persuaded by the GAL and the department’s argument that without a pending or commenced proceeding in the home state, a non-home state court would not know where to inquire. In rejecting this argument, the Court of Appeals notes that the department bears the burden of establishing jurisdiction, and in this case, the Department had been communicating with a social services agency in the home state that could have assisted the department in identifying the court with which to confer.

The Court of Appeals therefore vacates the termination judgment and remands the case for further proceedings.

Note: A Petition for Certiorari is currently pending before the Supreme Court.

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