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People ex rel. C.N.

Court of Appeals of Colorado, First Division

November 15, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of C.N., a Child, and Concerning A.N., Respondent-Appellant, and Concerning A.F. & S.F., Intervenors-Appellees.

          Jefferson County District Court No. 15JV572 Honorable Ann Gail Meinster, Judge

          Ellen G. Wakeman, County Attorney, Sarah Oviatt, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee

          Law Office of Kurt A. Metsger, Samantha Metsger, Kurt Metsger, Denver, Colorado, for C.N.

          The Harris Law Firm P.C., Katherine O. Ellis, Denver, Colorado, for Respondent-Appellant

          Grob & Eirich LLC, Timothy J. Eirich, Lakewood, Colorado, for Intervenors-Appellees

          OPINION

          FOX, JUDGE

         ¶ 1 In this dependency and neglect proceeding, A.N. (grandmother) appeals the juvenile court's order placing C.N. (child) permanently with her foster parents. We affirm.

         I. Background

         ¶ 2 In June 2015, the Jefferson County Division of Children, Youth, and Families filed a petition in dependency and neglect due to concerns about mother's mental health. The newborn child was placed in foster care, and mother's parental rights were terminated a year later. A division of this court affirmed the judgment and a mandate was issued on February 28, 2017. People in Interest of C.N., (Colo.App. No. 16CA1206, Jan. 19, 2017) (not published pursuant to C.A.R. 35(e)).

         ¶ 3 In February 2017 - a year and a half after the child was born and eight months after mother's parental rights were terminated - grandmother filed a motion to intervene in the case. Shortly thereafter she filed a motion for the child to be placed with her. The juvenile court held a contested hearing on the motion and found that it was in the child's best interest to permanently remain with the foster parents. The court also terminated grandmother's visitation with the child. On the day of the contested hearing, the grandmother filed a petition for kinship adoption of the child, but the court refused to accept its filing in the dependency and neglect case.

         ¶ 4 The foster parents adopted the child in January 2018.

         II. Real Party in Interest and Standing

         ¶ 5 Grandmother contends on appeal that mother did not receive reasonable accommodations to address her mental health issues, such as the appointment of a guardian ad litem (GAL), and that mother needed assistance in notifying relatives of the termination proceeding. She also argues that the child had a fundamental right of association with grandmother. Grandmother asserts that, as an intervenor in the case, she is a real party in interest regarding these issues.

         ¶ 6 C.R.C.P. 17(1) requires that every action be prosecuted by the real party in interest. The real party in interest "is that party who, by virtue of substantive law, has the right to invoke the aid of the court in order to vindicate the legal interest in question." Summers v. Perkins, 81 P.3d 1141, 1142 (Colo.App. 2003).

         ¶ 7 We construe grandmother's argument to be that she has standing to raise issues concerning mother and the child. Standing is a jurisdictional prerequisite that may be raised at any stage of the proceeding. Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 7. "Because 'standing involves a consideration of whether a plaintiff has asserted a legal basis on which a claim for relief can be predicated,' the question of standing must be determined prior to a decision on the merits[.]" Id. (quoting Bd. of Cty. Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1052 (Colo. 1992)).

         ¶ 8 To have standing, a plaintiff must have (1) suffered an injury in fact (2) to a legally protected interest. C.W.B. v. A.S., 2018 CO 8, ¶ 18. The legally protected interest requirement recognizes that "parties actually protected by a statute or constitutional provision are generally best situated to vindicate their own rights." City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000).

         ¶ 9 Whether a party has standing to proceed is a question of law we review de novo. Hickenlooper, ¶ 7.

         ¶ 10 Grandmother does not cite to substantive law granting her standing to assert the rights of mother and the child. Indeed, our courts have consistently held that in dependency and neglect appeals, parents and intervenors lack standing to assert the rights of other parties. See People in Interest of J.M.B., 60 P.3d 790, 792 (Colo.App. 2002) (father lacked standing to challenge the appropriateness of mother's treatment plan); People in Interest of E.S., 49 P.3d 1221, 1223 (Colo.App. 2002) (mother lacked standing to raise issues regarding the stepfather's party status); see also People in Interest of J.A.S., 160 P.3d 257, 261 (Colo.App. 2007) (one parent does not have standing to raise issues regarding the propriety of termination of the other parent's rights).

         ¶ 11 Grandmother also lacks standing to assert the child's rights. The Children's Code statutorily obligates the child's GAL to advocate for the child's best interests and expressly authorizes the GAL to participate at all steps of the legal proceeding, including on appeal. § 19-3-203, C.R.S. 2018; C.W.B., ¶ 24. Absent indication that the GAL is unable or unwilling to advocate for the child's best interests, courts will not confer standing to assert the rights of the child to intervening parties. C.W.B., ¶ 36.

         ¶ 12 Accordingly, we conclude that grandmother lacks standing to raise the issues on appeal ...


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