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People ex rel. C.G

Court of Appeals of Colorado, Third Division

July 30, 2015

The People of the State of Colorado, Petitioner-Appellee, In the Interest of C.G., and Concerning J.N. Respondent-Appellant.

Jefferson County District Court No. 06JV377 Honorable Ann Gail Meinster, Judge.

Ellen G. Wakeman, County Attorney, Writer Mott, Assistant County Attorney, Rebecca Klymkowsky, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee

Bachus & Schanker, L.L.C., J. Kyle Bachus, Brian Bradford, Denver, Colorado, for Respondent-Appellant J.N.



¶ 1 J.N. (father) appeals the trial court's order denying as moot his C.R.C.P. 60(b) motion to vacate its prior orders entered in the dependency and neglect proceeding regarding his child, C.G.

¶ 2 We consider, as a matter of first impression, whether the orders became moot following the child's death. Under the circumstances of this case, we conclude that father's request for relief under C.R.C.P. 60(b) was not moot. Alternatively, we are persuaded that father has established that his request for relief meets the "capable of repetition yet evading review" and "public interest" mootness exceptions. Accordingly, we reverse the order, and remand the matter to the trial court for a determination on the merits of father's C.R.C.P. 60(b) motion.

I. Background

¶ 3 In March 2006, the Jefferson County Division of Children, Youth and Families (Division) filed a dependency and neglect petition and assumed temporary custody of the then five-year-old child and his younger half-sibling. The petition asserted that the child's father, identified as John Doe, "whereabouts unknown, " had abandoned him. One day after filing the petition, the Division moved to serve John Doe by publication. The court granted the request. Approximately one week later, the Division published notice of the proceeding.

¶ 4 In May 2006, the court placed the child in the temporary custody of Jon Phillips, the father of the child's half-sibling. In November 2006, the court adjudicated the child dependent and neglected by default as to John Doe. The court subsequently granted an allocation of parental responsibilities (APR) for the child to Phillips and terminated its jurisdiction over the proceeding.

¶ 5 The child died a year later. Phillips was convicted of first degree murder and child abuse resulting in death. People v. Phillips, 2012 COA 176, ¶ 1.

¶ 6 Several years later, father, the child's mother, and the personal representative of the child's estate commenced a federal court action against the Division, the Denver County Department of Human Services (Denver Department), and two caseworkers from the Denver Department. The claims were brought under 42 U.S.C. § 1983 (2012) for violation of the child's substantive due process rights. Schwartz v. Booker, 702 F.3d 573, 576 (10th Cir. 2012).

¶ 7 In June 2014, father moved for C.R.C.P. 60(b) relief in the dependency and neglect proceeding. He sought to vacate the trial court's orders, among others, that (1) found John Doe in default; (2) transferred temporary legal custody of the child to Phillips; (3) adjudicated the child dependent and neglected; (4) awarded APR to Phillips; and (5) terminated the court's jurisdiction over the proceeding. Specifically, father asserted that because the Division had failed to exercise due diligence to ascertain his identity before it served him by publication, the default judgment and all later orders were void for lack of due process under C.R.C.P. 60(b)(3). Alternatively, he asserted that the orders should be vacated because the Division had committed fraud on the court.

¶ 8 In the motion and in reply to the Division's response that the matter was moot, father maintained that the relief he requested would have a practical effect on an existing controversy - the federal 42 U.S.C. § 1983 action. He explained that vacating the orders would remove any doubt that the child was in the state's custody up until the time that he was killed and, thus, would establish that the child had an ongoing special relationship with the state. In requesting a hearing on his motion, he expounded that his request for relief affected the only issue currently pending in the federal action - the child's custodial status with the state - and voiding the orders would likely enable him to defeat a pending motion for summary judgment.

¶ 9 Without holding a hearing, the trial court denied father's motion as moot. It concluded that setting aside the judgment would have no practical legal effect on the dependency and neglect proceeding, which related solely to the child's status and protection; that father's argument that the motion could impact his federal action was without merit; and that none of the exceptions to the mootness doctrine applied.

II. Mootness

¶ 10 Father contends that the trial court erred in finding that, in light of C.G.'s death, his request for C.R.C.P. 60(b) relief was moot. We conclude that father's request for relief is not moot because of the collateral consequence in the dependency and neglect orders in father's federal action.

A. Legal Standard

¶ 11 We review de novo the legal question of whether a case is moot. Colo. Mining Ass'n v. Urbina, 2013 COA 155, ¶ 23. ¶ 12 When possible, a court should resolve disputes on their merits. Stell v. Boulder Cnty. Dep't of Soc. Servs., 92 P.3d 910, 914 (Colo. 2004). However, when an issue is moot, a court will ordinarily refrain from addressing it. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1102 (Colo. 1998). An issue is moot when the relief sought, if granted, ...

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