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People ex rel. A.B-A.

Court of Appeals of Colorado, Second Division

August 8, 2019

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.


         PAWAR, JUDGE.

         [¶ 1] Mother, S.T-K., and father, M.B., appeal the juvenile court’s 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 family’s 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 Court’s 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 court’s 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 country’s 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 court’s 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 court’s 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 court’s 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 court’s obligation to communicate with the court of another jurisdiction regarding a prior custody action). To facilitate the court’s 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 court’s 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., ...

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