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In re People ex rel. C.W.B.

Court of Appeals of Colorado, Second Division

May 18, 2017

The People of the State of Colorado, Petitioner-Appellee, In the Interest of C.W.B., Jr., a Child, and Concerning M.A.S., Respondent-Appellee, and J.S. and A.S., Intervenors-Appellants.

         Montezuma County District Court No. 14JV16 Honorable Douglas S. Walker, Judge

          John Baxter, County Attorney, Ian MacLaren, Special County Attorney, Cortez, Colorado, for Petitioner-Appellee

          Robert G. Tweedell, Guardian Ad Litem Mark Reider, Cortez, Colorado, for Respondent-Appellee

          The Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez, Colorado, for Intervenors-Appellants

          Linda Weinerman, Executive Director, Dorothy M. Macias, Denver, Colorado, for Amicus Curiae Colorado Office of the Child's Representative


          DAILEY JUDGE

         ¶ 1 In this dependency and neglect proceeding, foster father J.S. and foster mother A.S. (Intervenors) appeal from the order denying the motion to terminate the parent-child legal relationship between M.A.S. (mother) and C.W.B., Jr. (child). We affirm.

         I. Background

         ¶ 2 In June 2014, mother brought the child, then ten weeks old, to the emergency room for investigation of a fever. The child had undergone open heart surgery approximately six weeks earlier and had been scheduled to have a follow-up appointment that day, but C.W.B., Sr. (father) had cancelled the appointment. The Montezuma County Department of Social Services (Department) was notified of possible child abuse when an examination revealed that the child had a broken femur and a skull fracture.

         ¶ 3 A petition in dependency and neglect was filed, and the child was placed in the home of the Intervenors. Father and mother admitted that the child's environment was injurious to his welfare, and treatment plans were adopted for both of them.

         ¶ 4 Shortly thereafter, however, father pleaded guilty to domestic violence and child abuse charges, and received an eight-year prison sentence. The Department then moved to terminate his parental rights, and the court granted the motion. Although father's parental rights were terminated, mother continued to work on her treatment plan.

         ¶ 5 In April 2015, the Intervenors retained counsel and moved to intervene in the dependency and neglect proceeding. The court granted the motion, and thereafter the Intervenors participated fully in the proceeding.

         ¶ 6 In December 2015, the Department proposed that the child be moved to a new foster home, closer to mother's residence, to facilitate visits and foster the goal of reunifying the child with mother. In its report to the court, the Department observed that the Intervenors appeared to be in conflict with the goal of returning the child to his home, as they were "too attached" to the child and "want[ed] adoption to happen for them."

         ¶ 7 Later that month, however, the child's guardian ad litem (GAL) moved to terminate mother's parental rights on the basis that she had not reasonably complied with her treatment plan and was an unfit parent.

         ¶ 8 In May 2016, after a two-day hearing, the trial court denied the motion to terminate mother's parental rights, finding, among other things, that the GAL had failed to prove that mother was unfit. The Intervenors now appeal from this judgment. The GAL did not appeal this decision, and the Department filed an opposition brief, asking this court to uphold the denial of the termination motion.

         II. Standing

         ¶ 9 Before we can address the merits of the Intervenors' contentions, we must determine whether they have standing to raise them. We conclude that they do.

         ¶ 10 Standing is a jurisdictional prerequisite that may be raised at any stage of the proceedings, including on appeal. HealthONE v. Rodriguez, 50 P.3d 879, 891 n.5 (Colo. 2002). If the parties do not raise the issue, the court may raise it sua sponte. Romer v. Bd. of Cty. Comm'rs, 956 P.2d 566, 586 (Colo. 1998).

         ¶ 11 We asked the Intervenors and the other parties to this case to submit supplemental briefs addressing whether the Intervenors have standing to prosecute this appeal. The Intervenors primarily argue that section 19-3-507(5)(a), C.R.S. 2016, which gives them an unconditional right to intervene in the termination proceedings, also gives them a right to appeal any determination concerning the best interests of the child. We agree.

         ¶ 12 Whether the plaintiff has standing is a question of law that we review de novo. Romer, 956 P.2d at 586; Weisfield v. City of Arvada, 2015 COA 43, ¶ 7.

         ¶ 13 A party has standing if he or she (1) suffered an injury in fact (2) to a legally protected interest. Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004); Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977).

         ¶ 14 Here, the Intervenors have suffered an injury in fact, inasmuch as they were arguably positioned to adopt the child in the event the mother's parental rights had been terminated.

         ¶ 15 The question, then, is whether the Intervenors' injury was to a

         "legally protected interest" which would give them standing to appeal an adverse decision of the trial court. A "legally protected interest" is one recognized under the constitution, the common law, a statute, a rule, or a regulation. Ainscough, 90 P.3d at 856.

         ¶ 16 The Intervenors have no constitutionally protected liberty interest in their relationship with the child. See Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 846 (1977); M.S. v. People, 2013 CO 35, ¶¶ 16-21. But section 19-3-507(5)(a) provides that "foster parents who have the child in their care for more than three months who have information or knowledge concerning the care and protection of the child may intervene as a matter of right following [a dependency and neglect] adjudication with or without counsel."

         ¶ 17 In A.M. v. A.C., 2013 CO 16, the supreme court held that section 19-3-507(5)(a) gives foster parents the right to intervene and "participate fully" as parties "in the termination hearing without limitation." Id. at ¶ 20. The court interpreted the statute as giving the foster parents the right to "make opening statements, cross-examine witnesses, introduce evidence, make evidentiary objections, and give closing argument, " id. at ¶ 39, in order to "advocate for the child's best interests, " id. at ¶ 19. As we read the supreme court's opinion, the statute gives qualifying foster parents a right to represent the best interests of the child, and therefore a stake in the outcome of the controversy.

         ¶ 18 Because

• "[a]n intervenor, whether by right or by permission, normally has the right to appeal an adverse final judgment by a trial court, " Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375-76 (1987);
• the supreme court has determined that section 19-3-507(5)(a) gives qualifying foster parents a stake in the outcome of a termination proceeding and affords them the "full panoply of rights that the existing parties enjoy, " A.M. at ¶ 17; and
• the typical parties to a termination proceeding (i.e., the parents, the Department, and the child's GAL) all have the right to appeal from a trial court's termination order,

         we conclude that the Intervenors have standing to appeal a decision in a termination proceeding.

         ¶ 19 Accordingly, we turn to the merits of the arguments on appeal.

         III. Merits

         A. ...

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