The PEOPLE of the State of Colorado, Petitioner-Appellee IN the INTEREST OF A.B-A., a Child, and Concerning M.B. and S.T-K., Respondents-Appellants.
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Adams
County District Court No. 16JV301, Honorable Priscilla J.
Loew, Judge
Heidi
M. Miller, County Attorney, Howard Reinstein, Deputy County
Attorney, Westminster, Colorado, for Petitioner-Appellee
Jeff
Ruff, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents Counsel,
Denver, Colorado, for Respondent-Appellant M.B.
Pamela
K. Streng, Office of Respondent Parents Counsel, Georgetown,
Colorado, for Respondent-Appellant S.T-K.
OPINION
PAWAR,
JUDGE.
[¶
1] Mother, S.T-K., and father, M.B., appeal the
juvenile courts judgment terminating their parent-child
relationships with their son, A.B-A. We consider whether,
under the Uniform Child-custody Jurisdiction and Enforcement
Act (UCCJEA), sections 14-13-101 to -403, C.R.S. 2018, the
juvenile court lacked subject matter jurisdiction to
terminate parental
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rights based on an existing child custody order in Iran. We
also consider the Adams County Department of Human Services
(Department) contention that the juvenile court could
disregard the prior child custody order either because the
prior order does not conform to UCCJEA jurisdictional
standards or because Iranian child custody law violates
fundamental principles of human rights.
[¶
2] We conclude that the juvenile court lacked
subject matter jurisdiction to terminate parental rights and
could not disregard the Iranian order. We also conclude that
the juvenile court erred in allowing the Department to serve
father by publication. We therefore vacate the judgment and
remand the case for further proceedings.
I.
Background
[¶
3] Mother, father, and the child are citizens of
Iran. The parents divorced in Iran in 2009, when the child
was six years old. Custody of the child remained with mother
pursuant to a court order.
[¶
4] Mother moved to California in 2011. The child
remained in Iran, where his maternal grandmother and father
cared for him at different times between 2011 and 2015. The
child joined mother in California in 2015.
[¶
5] Mother and the child moved to Colorado in August
2016. The following month, mother suffered a mental health
crisis and entered a mental health facility on an involuntary
hold. Consequently, the Department took the child into
protective custody. The Department filed a petition in
dependency or neglect in October 2016. The juvenile court
entered a deferred adjudication as to mother and later
adjudicated the child dependent and neglected as to mother.
[¶
6] Father was in Iran at all times during the
proceeding. In July 2017, the Department moved to serve him
by publication because it had been unable to contact him. The
juvenile court granted the motion, and the Department
published a summons in an Adams County-area newspaper.
Shortly thereafter, the juvenile court entered a default
adjudication as to father.
[¶
7] The Department moved to terminate parental rights
in December 2017. In April 2018, the day before the scheduled
termination hearing, father contacted the familys
caseworker. He said he had just learned of the case and
wanted the child returned to him. Father continued to
telephone the caseworker over the next month. Even so, in May
2018, the juvenile court terminated both parents parental
rights.
II.
The Juvenile Courts Subject Matter Jurisdiction Under the
UCCJEA
[¶
8] Mother contends that the juvenile court lacked
subject matter jurisdiction to terminate parental rights
under the UCCJEA, sections 14-13-101 to -403, C.R.S. 2018,
because an Iranian child custody order was already in effect.
We review the juvenile courts subject matter jurisdiction
under the UCCJEA de novo and agree with mother. People in
Interest of C.L.T., 2017 COA 119, ¶ 14, 405 P.3d 510.
A.
Foreign Child Custody Orders in Dependency and Neglect
Proceedings
[¶
9] Dependency and neglect proceedings must comply
with the UCCJEA. People in Interest of M.S., 2017
COA 60, ¶¶ 11-12, 413 P.3d 287. The UCCJEA establishes a
comprehensive framework that a Colorado court must use to
determine whether it may exercise jurisdiction in a child
custody matter or whether it must defer to a court of another
state. C.L.T., ¶ 16. Subject to the limitations
discussed below, Colorado courts must treat a foreign country
as though it were a state of the United States for purposes
of jurisdiction under the UCCJEA. § 14-13-104, C.R.S. 2018;
In re Parental Responsibilities Concerning T.L.B.,
2012 COA 8, ¶ 19, 272 P.3d 1148. As this case concerns a
foreign countrys child custody order, we will discuss
provisions of the UCCJEA that refer to another
"state" in terms of their application to a
"foreign country."
[¶
10] The UCCJEA aims to avoid jurisdictional
competition over child custody matters in an increasingly
mobile society. See Brandt v. Brandt, 2012
CO 3, ¶ 19, 268 P.3d 406; C.L.T., ¶ 15;
M.S., ¶ 15. To that end, the
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UCCJEA provides that the foreign court that issued a child
custody order retains exclusive, continuing jurisdiction over
the determination. § 14-13-202, C.R.S. 2018. The foreign
courts jurisdiction continues until (1) the foreign court
determines that it no longer has exclusive, continuing
jurisdiction; (2) the foreign court declines jurisdiction on
the ground that Colorado provides a more convenient forum; or
(3) either the foreign court or a Colorado court determines
that the child, the parents, and anyone acting as a parent do
not presently reside in the foreign country. § 14-13-203,
C.R.S. 2018; C.L.T., ¶ 31. As relevant here, the
foreign court may not be deprived of jurisdiction if a parent
presently resides in the foreign country. Brandt, ¶
27.
[¶
11] A Colorado court may not modify a foreign child
custody order unless two conditions are met: (1) the Colorado
court has jurisdiction to make an initial custody
determination under section 14-13-201, C.R.S. 2018; and (2)
the foreign court has lost or ceded jurisdiction under
section 14-13-203.
[¶
12] Notwithstanding a prior, enforceable foreign
child custody order, however, a Colorado court may exercise
temporary emergency jurisdiction to protect a child who is
present in Colorado from mistreatment, abuse, or abandonment.
§ 14-13-204, C.R.S. 2018; T.L.B., ¶ 21; see also
People in Interest of M.C., 94 P.3d 1220, 1225
(Colo.App.Div. 1 2004).
[¶
13] But this temporary emergency jurisdiction under
the UCCJEA is limited in scope and in time. Importantly, a
Colorado court exercising temporary emergency jurisdiction
may not enter a permanent custody disposition. M.C.,
94 P.3d at 1225 (while exercising temporary emergency
jurisdiction, a juvenile court may not adjudicate a child
dependent or neglected or terminate parental rights). When
exercising temporary emergency jurisdiction to enter a
temporary emergency order, the Colorado court must specify in
its order a time period that the court considers adequate to
allow the person seeking a child custody determination to
obtain an order from the foreign court. § 14-13-204(3). And
the Colorado order remains in effect only until the foreign
court enters an order or the period expires, whichever occurs
earlier. Id.; T.L.B., ¶ 21 (a temporary
emergency order under the UCCJEA lapses as soon as the court
that otherwise has jurisdiction enters an order).
[¶
14] Because the juvenile courts emergency
jurisdiction is limited in scope and time, it is imperative
that the juvenile court promptly ascertain whether a foreign
custody order exists and, if one does, whether the foreign
order limits the juvenile courts jurisdiction. See
19 Frank L. McGuane, Jr. & Kathleen A. Hogan, Colorado
Practice Series: Family Law and Practice § 27:9, Westlaw
(2d ed. database updated May 2019) (the emergency nature of
proceedings does not suspend the juvenile courts obligation
to communicate with the court of another jurisdiction
regarding a prior custody action). To facilitate the courts
assessment, each party to a dependency and neglect proceeding
must provide information regarding where and with whom the
child has resided during the last five years; any other
proceeding involving custody, visitation, or parenting time
with the child; any proceeding that might affect the Colorado
dependency and neglect proceeding; and the names and
addresses of nonparties who might have physical custody of
the child or claim rights of parental responsibilities,
custody, visitation, or parenting time. § 14-13-209, C.R.S.
2018. This duty of disclosure applies to parents, social
services agencies, guardians ad litem, and any other persons
who may have acquired party status as intervenors or
otherwise. C.L.T., ¶ 22 n.1. The department, as the
petitioning party in dependency and neglect proceedings,
bears the burden of establishing the juvenile courts subject
matter jurisdiction under the UCCJEA. See Brandt, ¶
33.
[¶
15] When the juvenile court discovers a foreign
custody order, the Colorado court must immediately confer
with the foreign court "to resolve the emergency,
protect the safety of the parties and the child, and
determine a period for the duration of the temporary
order." § 14-13-204(4); see also § 14-13-110,
C.R.S. 2018; People in Interest of D.P., ...