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.
County District Court No. 14JV16 Honorable Douglas S. Walker,
Baxter, County Attorney, Ian MacLaren, Special County
Attorney, Cortez, Colorado, for Petitioner-Appellee
G. Tweedell, Guardian Ad Litem Mark Reider, Cortez, Colorado,
Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez,
Colorado, for Intervenors-Appellants
Weinerman, Executive Director, Dorothy M. Macias, Denver,
Colorado, for Amicus Curiae Colorado Office of the
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).
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.
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
15 The question, then, is whether the Intervenors' injury
was to a
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
• "[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
• 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,
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