Standing is a jurisdictional prerequisite that may be raised at any stage of a proceeding. C.W.B., Jr. v. A.S., 410 P.3d 438, 443 (Colo. 2018) (citations omitted). To have standing, a plaintiff must have suffered an injury in fact to a legally protected interest. Id. at 443 (citations omitted). An appellate court considers standing questions de novo. Id. at 442.
The legally protected interest requirement of a standing inquiry recognizes that “parties actually protected by a statute or constitutional provision are generally best situated to vindicate their own rights.” Id. (quoting City of Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000)). Except in certain limited circumstances, “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Id. (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)).
In a D&N case, the Colorado Court of Appeals has held that a biological grandmother who intervened at the trial level lacked standing to appeal the denial of her request for placement of the child. See People in Interest of C.N., 431 P.3d 1219, 1222 (Colo. App. 2018). In that case, the court found that the grandmother’s limited statutory right to intervene did not confer upon her a fundamental interest in the association or custody of the child simply based on their biological relationship. Id. at 1225. The court also determined that the grandmother did not have an existing custodial relationship with the child that might have granted her additional due process rights. Id. at 1224.
Similarly, in C.W.B., the Colorado Supreme Court found that foster parents who had standing to intervene at the trial level did not have standing to appeal the court’s order denying the termination motion. 410 P.3d at 447-48. Although CRS 9-3-507(5)(a) gives foster parents the right to intervene in a D&N case after having a child in their care for three months or more, the Court found this statute did not create a legally protected interest sufficient to confer standing to appeal. Id. at 442. The Court also determined that the foster parents suffered no injury in fact because foster parents have no constitutionally protected liberty interest in their relationship with a child prior to adoption. Id. at 445. The Court noted that the ability of the foster parents to adopt C.W.B. was speculative, and “a speculative injury does not satisfy the injury in fact requirement.” Id.
Like jurisdiction, standing is a threshold issue that should be addressed by appellate courts before appellate courts reach substantive arguments. Thus, GALs/CFY participating in appellate cases should always assess the other party’s standing to bring an appeal and/or raise certain issues, at the outset of appeals cases. If warranted, GALs/CFY may want to consider filing a motion to dismiss the appeal when an opposing party may lack standing to bring the appeal. Although the Colorado Court of Appeals generally reserves ruling on such arguments until after briefing, a pre-trial motion is the best way to alert appellate courts to this threshold issue. In such a motion, counsel should highlight that any failure to address this issue prior to substantive briefing will cause unnecessary appellate delay, which negatively impacts all parties, especially the child/youth.
