In this decision, the Colorado Supreme Court considers whether an order returning physical custody of a child to the parents in another state’s dependency proceeding satisfies the definition of child custody jurisdiction pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), holding that further fact finding is necessary. The Court additionally holds that the juvenile court did not violate father’s due process rights or statutory right to counsel when it declined to appoint him a third attorney and that the juvenile court did not abuse its discretion in concluding there were no less drastic alternatives to termination.
In August 2018, B.H. was removed from his parents and placed with a foster family. Ultimately, the department moved to terminate parental rights in September 2019. Approximately two years earlier, B.H. had been the subject of an Indiana dependency and neglect proceeding, living with a foster parent until he was reunited with his parents in April 2017. In regards to counsel, the juvenile court allowed father’s original counsel to withdraw after father threatened to kill her and terminated father’s second court appointed attorney after father refused to cooperate with that attorney and expressed a desire to discharge that attorney. At a closed hearing concerning the second lawyer, the judge indicated that the judge presiding over the termination proceeding would appoint father a new lawyer; however, the presiding court refused to appoint a third attorney in light of father’s actions towards his first two attorneys. After a multi-day hearing, the court terminated father’s parental rights, rejecting allocation of parental responsibilities as a less drastic alternative to termination.
With regard to the UCCJEA, the Court explains that even after acquiring home-state or significant-connection jurisdiction, the only way a Colorado court can assert modification jurisdiction without the agreement of the out-of-state court that issued the prior child-custody determination is for the Colorado court to find that the child and parents do not presently reside in the other state. This determination requires an inquiry into the totality of the circumstances that make up domicile, and mere physical presence is not dispositive. While the out-of-state court does not need to agree with the Colorado court’s determination of present residence, the Colorado court must at least communicate with the court that issued the order. As to whether the Indiana order returning B.H. to his parents constitutes a custody determination under the UCCJEA, the Court rejects the argument of the GAL and county that B.H.’s return home could not qualify as a child custody determination because it coincided with the dismissal of the action, holding that further fact finding regarding the legal mechanism that returned B.H. to his parents’ home is required. The Court holds that if the juvenile court determines that there is an Indiana order, the court will need to comply with § 14-13-203(1). If the court finds that the Indiana court never issued a child custody determination, then it can take any of the four paths (home-state, significant-connection, more-appropriate-forum, and last-resort) to acquiring non-emergency jurisdiction under the UCCJEA.
With regard to counsel, the Court applies the three Matthews v. Eldridge factors to determine how much process was due to father and holds that father did not have a due process right to a third attorney because the risk of error was low. In this case, father did not challenge the sufficiency of the evidence, arguing only that a third attorney could have assisted him in arguing that allocation of parental responsibilities to his mother would have served as a less drastic alternative to termination. The Supreme Court holds that such evidence would not have altered the juvenile court’s determination, as its decision was grounded in its findings regarding B.H.’s permanency needs. Furthermore, the Court holds that father voluntarily waived his statutory right to counsel through his conduct.
In affirming the juvenile court’s determination regarding less drastic alternatives, the Court notes that the record shows the juvenile court found that B.H. needs permanency; father is a threat to the safety of B.H. and potential caregivers; and the department sent family finding letters and explored father’s mother, mother’s parents, mother’s cousin, and the Indiana foster family as placements.Click here to access the case in Westlaw.