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People ex rel. D.C.C.

Court of Appeals of Colorado, Seventh Division

July 12, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of D.C.C., D.I.C., and D.R-B., Children, and Concerning A.M.G., a/k/a A.M.G-N., Respondent-Appellant.

          Weld County District Court No. 16JV505 Honorable Elizabeth B. Strobel, Judge.

          Meghan E. Scott, Guardian Ad Litem

          Pamela K. Streng, Georgetown, Colorado, for Respondent-Appellant

         No Appearance for Petitioner-Appellee

          OPINION

          J. JONES, JUDGE.

         ¶ 1 In this dependency and neglect proceeding, A.M.G. (father) appeals the order dismissing him from the petition in dependency or neglect after a child support court declared he wasn't the father of D.R-B. (child). We conclude that the child support court lacked jurisdiction to make paternity findings when there was an ongoing dependency and neglect proceeding. So we reverse the order dismissing father from the petition.

         I. Background

         ¶ 2 In July 2016, the Weld County Department of Human Services (Department) filed a petition in dependency or neglect and for a determination of paternity. It alleged that J.R-B. (mother) and K.R-B. (stepmother) had a history of methamphetamine abuse and domestic violence, and had been in and out of jail.

         ¶ 3 The petition named A.M.G. as the father of the child, and it advised him that paternity of the child might be determined in the action pursuant to the Uniform Parentage Act (UPA), sections 19-4-101 to -130, C.R.S. 2017. No one disputed that A.M.G. was the child's biological father. The court didn't decide paternity at the shelter hearing.

         ¶ 4 Before the filing of the dependency and neglect proceeding, stepmother had filed a motion for an allocation of parental responsibilities over the child in a domestic relations court. The court ordered father to complete genetic testing in that case, but father didn't get tested before the Department filed the dependency and neglect case. The domestic relations court then certified the issues of legal custody and parental rights and responsibilities to the dependency and neglect court. See § 19-1-104(4)(a), C.R.S. 2017.

         ¶ 5 Father was served with the petition in dependency or neglect on August 1, 2016. After he failed to appear at his adjudicatory hearing on August 18, 2016, the district court entered a default decree adjudicating the child dependent or neglected.

         ¶ 6 Father appeared for the first time at a hearing on February 2, 2017, and the court appointed counsel. The court also ordered father to participate in and cooperate with genetic testing. Mother's attorney indicated to the court that genetic testing had already been scheduled for February 15, 2017, and that the child support enforcement office had requested the paternity testing. Father indicated that he hadn't been served with an order for genetic testing and that he was then hearing about it for the first time. The court told father that he would receive an order requiring him to show up for the test. The court issued a written order that same day.

         ¶ 7 A review of the register of actions shows that the Weld County Child Support Services Unit filed a petition for support in another division of the juvenile court on November 18, 2016, and that father was served on November 26, 2016. The register of actions also shows that father failed to appear at a hearing in the child support case on January 17, 2017, and that on that date the court ordered father to appear for genetic testing on February 15, 2017. It appears undisputed that father wasn't ever tested.

         ¶ 8 At a review hearing on April 4, 2017, the dependency and neglect court informed the parties that, in the child support case, the magistrate had entered an order finding that father wasn't a legal parent of the child and "therefore, has no parental rights concerning custody and visitation." The child support court declared stepmother to be the child's legal parent. The dependency and neglect court said, "I don't know that the Magistrate can do that with a [dependency and neglect case]. And I think what he was trying to do was establish child support. However, nobody appealed this." The dependency and neglect court also said, "[I]'ll leave it to you folks and all your great minds to sort this out."

         ¶ 9 The dependency and neglect court provided copies of the order from the ...


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