of MMV

2020 COA 94

• Court: Colorado Court of Appeals
• Decided: June 11, 2020
• Docket: 19CA0759, Petition
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY June 11, 2020

2020COA94

No. 19CA0759, Petition of MMV — Family Law — Children’s Code — Relinquishment and Adoption — Stepparent Adoption — Uniform Child-custody Jurisdiction and Enforcement Act

A division of the court of appeals considers whether the

Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA)

governs a proceeding for stepparent adoption. Although the

UCCJEA exempts adoption proceedings from its purview, it

expressly provides that it is applicable to proceedings to terminate

parental rights. Reconciling these two provisions, the division

concludes, for the first time, that when, as here, the stepparent

adoption case also requires the court to consider the termination of

parental rights, the UCCJEA governs that portion of the case.

The division further concludes that the magistrate did not

properly acquire subject matter jurisdiction under the UCCJEA to hear the proceeding to terminate father’s parental rights. As a

result, the division vacates the judgment. COLORADO COURT OF APPEALS 2020COA94

Court of Appeals No. 19CA0759 Pueblo County District Court No. 18JA12 Honorable Gregory J. Styduhar, Judge

In re the Petition of M.M.V.,

Appellee,

for the Adoption of D.D.R., a Child,

and Concerning B.P.R.,

Appellant.

JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE PAWAR Furman and Welling, JJ., concur

Announced June 11, 2020

Melinda B. Orendorff, Pueblo, Colorado, for Appellee

Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant ¶1 In this stepparent adoption proceeding, B.P.R. (father) appeals

from the juvenile court judgment terminating his parental rights

and decreeing the adoption of his child, D.D.R., by M.M.V.

(stepfather). We must decide an issue that has not yet been

addressed in Colorado — does the Uniform Child-custody

Jurisdiction and Enforcement Act (UCCJEA), sections 14-13-101 to

-403, C.R.S. 2019, govern the termination of parental rights that is

initiated in a stepparent adoption case? We conclude that the

answer is yes.

¶2 We further conclude that the record does not establish that

the magistrate properly acquired subject matter jurisdiction under

the UCCJEA before terminating father’s parental rights. As a

result, we vacate the judgment and remand the case for further

proceedings.

I. The Juvenile Court Proceeding

¶3 The child was born to K.E.V. (mother) and father in 2007.

About six years later, a court in Arizona issued an order that

dissolved the parents’ marriage and allocated decision-making

authority and parenting time for the child. As part of the same

case, the Arizona court later issued orders (1) placing restrictions

1 on father’s parenting time; (2) awarding visitation to the paternal

grandparents; and (3) authorizing mother to move with the child to

Colorado.

¶4 Meanwhile, mother married stepfather. And, in February

2018, stepfather filed two petitions, one to adopt the child and one

to terminate the child’s legal relationship with father. Father moved

to dismiss the petitions under the UCCJEA and the Parental

Kidnaping Prevention Act (PKPA), 42 U.S.C. § 1738A (2018), arguing

that because the Arizona court that had made the prior child-

custody determinations had not declined jurisdiction, the Colorado

court lacked jurisdiction to grant the relief requested.

¶5 Soon thereafter, mother asked the Arizona court to decline to

exercise its continuing jurisdiction over decision-making authority

and parenting time for the child. Although mother’s motion

informed the Arizona court that a Colorado court had a pending

proceeding to sever father’s rights and allow stepfather to adopt the

child, it does not appear that she filed a copy of the petitions from

this case. After reviewing pleadings from mother and father, the

Arizona court determined that the child no longer had a significant

connection with the state and that substantial evidence regarding

2 the child’s care was no longer available in the state. As a result, it

granted mother’s request and declined its continuing jurisdiction.

And, based on that order, the magistrate in stepfather’s case

determined that the Colorado court had jurisdiction to hear the

petitions for termination and stepparent adoption.

¶6 However, in early September 2018, the Arizona court partially

reconsidered its determination. By the agreement of the parties to

that case — father, mother, and the paternal grandparents — the

Arizona court determined that it would retain jurisdiction over the

grandparents’ visitation rights and severed that issue into a

separate case.

¶7 Not long after, the magistrate held a hearing on stepfather’s

petitions to terminate father’s rights and adopt the child. At the

start of the hearing, father raised the issue of the reconsideration

order and objected to the magistrate exercising jurisdiction because

it meant two states would be determining child-custody issues. The

magistrate determined that the Colorado court had jurisdiction, but

also said that it was a significant issue that the parties needed to

address as part of their proposed orders.

3 ¶8 Following the two-day hearing, the magistrate issued a

thorough order addressing the Colorado court’s jurisdiction to hear

the proceeding under the UCCJEA and the PKPA. The magistrate

reasoned that termination and stepparent adoption were a single

proceeding and the UCCJEA did not apply to adoption proceedings.

The magistrate further observed that even if the UCCJEA was

applicable, the Arizona court’s reconsideration order was entered

without jurisdiction because the magistrate had already begun

exercising the Colorado court’s jurisdiction by that time.

Thereafter, the magistrate terminated father’s parental rights and

granted the decree of adoption.

II. Jurisdiction Over Proceeding

¶9 Father contends that the magistrate lacked subject matter

jurisdiction under the UCCJEA and the PKPA to terminate his

parental rights because the Arizona court had previously entered a

child-custody determination and had, at the time of the termination

proceeding, retained jurisdiction over grandparent visitation. To

resolve this issue, we must first decide a preliminary question that

the magistrate also addressed — whether the UCCJEA governs a

proceeding to terminate parental rights that arises in the context of

4 a stepparent adoption. Contrary to the magistrate’s determination,

we conclude that the UCCJEA is applicable under those

circumstances and that the record does not demonstrate that the

magistrate had properly acquired jurisdiction under the UCCJEA to

consider the termination of parental rights.

A. Standard of Review and Interpretation Principles

¶ 10 We review questions of statutory interpretation de novo.

People in Interest of L.M., 2018 CO 34, ¶ 13. In construing a

statute, we look at the entire statutory scheme “in order to give

consistent, harmonious, and sensible effect to all of its parts, and

we apply words and phrases in accordance with their plain and

ordinary meanings.” Id. (quoting UMB Bank, N.A. v. Landmark

Towers Ass’n, 2017 CO 107, ¶ 22).

¶ 11 And, when construing statutes related to the same subject

matter, we aim to avoid a statutory interpretation that would render

certain words or provisions superfluous or ineffective. Id. We also

avoid a statutory construction that would lead to an absurd result.

Id. Instead, we aim to adopt an interpretation that achieves

consistency across a comprehensive statutory scheme. Id.

B. Statutory Frameworks

5 1. Stepparent Adoption and Termination of Parental Rights

¶ 12 Under the Colorado Children’s Code, a child may be available

for stepparent adoption when the parent has abandoned the child

or failed without cause to provide reasonable support for a period of

one year or more. § 19-5-203(1)(d)(II), C.R.S. 2019; D.P.H. v. J.L.B.,

260 P.3d 320, 324 (Colo. 2011). Alternatively, a parent having only

residual parental responsibilities may consent to the child’s

adoption by the spouse of the parent who has primary custody or

parental responsibilities. § 19-5-203(1)(e).

¶ 13 Still, there are two distinct components that arise during a

stepparent adoption case. In addition to issuing a final decree of

adoption, the juvenile court must also issue an order terminating

the noncustodial parent’s rights. § 19-5-210(6), C.R.S. 2019; see

also D.P.H., 260 P.3d at 323 (recognizing that a stepparent adoption

necessarily includes the termination of the parental rights of the

noncustodial parent). Although both the decree and termination

judgment are issued in the same case, they are separate orders.

See In re E.R.S., 2019 COA 40, ¶ 21 (concluding that the juvenile

court’s order terminating mother’s parental rights in a stepparent

6 adoption proceeding was final for appellate purposes even though

the court had not issued the adoption decree).

¶ 14 In addition to being a distinct component of the stepparent

adoption process, termination of parental rights is particularly

significant because it permanently severs a constitutionally

protected fundamental liberty interest. The Due Process Clause of

the Fourteenth Amendment protects the fundamental right of a

parent to make decisions concerning the care, custody, and control

of his or her child. Troxel v. Granville, 530 U.S. 57, 65-66 (2000);

see also In Interest of Baby A, 2015 CO 72, ¶ 20. It is perhaps the

oldest of the fundamental liberty interests recognized by the

Supreme Court. Troxel, 530 U.S. at 65. And it is an interest far

more precious than any property right. Santosky v. Kramer, 455

U.S. 745, 758-59 (1982).

¶ 15 Termination of parental rights is defined as the permanent

elimination of all parental rights and duties, including residual

rights and responsibilities. § 19-1-103(107), C.R.S. 2019. It is

complete, final, and irrevocable. In Interest of K.D., 471 S.W.3d

147, 167 (Tex. App. 2015). As a result, termination permanently

7 severs the parent’s fundamental liberty interest in parenting his or

her child.

2. The UCCJEA

¶ 16 The UCCJEA was promulgated by the Uniform Law

Commission for the key purpose of creating consistency in

interstate child-custody jurisdiction and enforcement proceedings.

Angel B. v. Vanessa J., 316 P.3d 1257, 1259-60 (Ariz. Ct. App.

2014). It has now been adopted in forty-nine states as well as the

District of Columbia. Linda Elrod, Unif. Law Comm’n Joint

Editorial Bd. of Unif. Family Law, Commentary on Adoption

Jurisdiction Under the UCCJEA 7, 9 (2019), https://perma.cc/6TYE-

4SJZ.

¶ 17 The primary aim of the UCCJEA is to prevent competing and

conflicting custody orders by courts in different jurisdictions that

would put all parties at risk of uncertainty and unilateral removals

of children from or to various jurisdictions. Angel B., 316 P.3d at

1260. Put another way, the UCCJEA is designed to avoid

jurisdictional competition over child-custody matters in an

increasingly mobile society. Brandt v. Brandt, 2012 CO 3, ¶ 19. To

effectuate this purpose, it establishes a comprehensive framework

8 that a Colorado court must follow to determine whether it may

exercise jurisdiction in a child-custody matter or whether it must

defer to a court of another state. People in Interest of A.B-A., 2019

COA 125, ¶ 9. The UCCJEA covers a wide variety of child-custody

matters, defined as child-custody determinations and child-custody

proceedings. See § 14-13-102(3)-(4), C.R.S. 2019.

C. UCCJEA Applicability to Termination and Adoption

¶ 18 The UCCJEA contains two provisions addressing its

applicability. On the one hand, section 14-13-102(4) defines a

child-custody proceeding as “a proceeding in which legal custody or

physical custody with respect to a child or the allocation of parental

responsibilities with respect to a child or visitation, parenting time,

or grandparent or great-grandparent visitation with respect to a

child is an issue.” It expressly provides that a proceeding for

termination of parental rights is one type of child-custody

proceeding. § 14-13-102(4).

¶ 19 On the other hand, section 14-13-103, C.R.S. 2019, exempts

two types of proceedings from the UCCJEA’s purview. As pertinent

here, it provides that “[t]his article [the UCCJEA] does not govern an

adoption proceeding.” § 14-13-103. This section was premised on

9 the assumption that states would adopt the Uniform Adoption Act.

See § 14-13-103 cmt. Colorado has not done so.

¶ 20 Relying on section 14-13-103, our supreme court determined

that the UCCJEA was inapplicable in the context of a failed

interstate adoption proceeding. People in Interest of A.J.C., 88 P.3d

599, 609, 611 (Colo. 2004). Similarly, a division of this court

concluded that the UCCJEA did not apply to a custodial adoption

proceeding. See In re Adoption of K.L.L., 160 P.3d 383, 385 (Colo.

App. 2007).

¶ 21 Yet, neither opinion specifically addresses whether the

UCCJEA governs the termination of parental rights when it is

initiated in an adoption case. Nor do they reconcile the provisions

of sections 14-13-102(4) and 14-13-103. To resolve whether the

UCCJEA applies to a termination proceeding brought in a

stepparent adoption case, we must examine the interplay between

these two provisions.

¶ 22 A plain and harmonious reading of these two provisions shows

that while the UCCJEA does not govern a proceeding that solely

involves the adoption of a child, it does apply to the portion of a

stepparent adoption case that concerns the termination of parental

10 rights. Thus, for example, the UCCJEA would have no applicability

to a stepparent adoption case if the noncustodial parent were

deceased or had previously had his or her parental rights

terminated in a separate case. In contrast, when, as here, the

stepparent adoption case also requires the court to consider the

termination of parental rights, the UCCJEA governs that portion of

the case.

¶ 23 To hold otherwise would create a direct conflict between the

UCCJEA’s provisions. It would subject a termination of parental

rights proceeding to the UCCJEA under section 14-13-102(4) but,

at the same time, exempt it from the UCCJEA under section 14-13-

103 because it arose in an adoption proceeding. And it would not

give effect to section 14-13-102(4)’s inclusion of termination of

parental rights — without exception — as one type of child-custody

proceeding.

¶ 24 The South Carolina Court of Appeals took a similar approach

and concluded that the UCCJEA was applicable to an action that

terminated parental rights and granted a petition for stepparent

adoption. Anthony H. v. Matthew G., 725 S.E.2d 132, 134 (S.C. Ct.

App. 2012). It observed that in order for the adoption action to

11 proceed, the legal parents had to consent to the adoption,

relinquish their parental rights, or have their parental rights

terminated. Id. Accordingly, it reasoned that the court had to first

consider the termination of parental rights and the UCCJEA applied

to an action to do so. Id.

¶ 25 The Louisiana Court of Appeal also concluded that the

UCCJEA applied to the termination of parental rights in the context

of an interfamily adoption. It reasoned that if a party could simply

move to another state and apply to adopt a child, which requires

terminating the parental rights that are at issue in the other state,

it would undercut the validity of any custody judgment issued by a

court of competent jurisdiction. In re D.C.M., 170 So. 3d 165, 171

(La. Ct. App. 2013). It further expounded that termination was the

ultimate custody determination and that the adoption exemption

contained in the UCCJEA did not allow one state to permit an

interfamily adoption while another state had continuing, exclusive

jurisdiction over the custody of the children. Id. at 172-73.

¶ 26 We recognize that two jurisdictions have reached the opposite

result. One district of the California Courts of Appeal determined

that the UCCJEA does not apply to stepparent adoptions. Adoption

12 of K.C., 203 Cal. Rptr. 3d 110, 112 (Ct. App. 2016). And the Utah

Court of Appeals rejected a parent’s argument that the court lacked

jurisdiction under the UCCJEA to terminate his parental rights as

part of an adoption proceeding. In re Adoption of B.H., 447 P.3d

110, 112, 114 (Utah Ct. App. 2019), cert. granted, 455 P.3d 1062

(Utah 2019) (unpublished table decision). Both of these opinions,

however, rely solely on the UCCJEA provision exempting adoptions

without reconciling it with the provision that defines a child-

custody proceeding as including a proceeding to terminate parental

rights.

¶ 27 We agree with the reasoning of those states that have applied

the UCCJEA in this context. Therefore, we conclude that while the

UCCJEA exempts adoptions from its purview, it nonetheless

governs a proceeding to terminate parental rights that is initiated in

a stepparent adoption case.

¶ 28 Having reached this conclusion, we must next determine

whether the magistrate properly acquired jurisdiction under the

UCCJEA to hear the proceeding to terminate father’s parental

D. Establishing Jurisdiction Under the UCCJEA

13 1. The Legal Framework

a. Jurisdiction between States

¶ 29 Under the UCCJEA, the court that makes an initial custody

determination generally retains exclusive, continuing jurisdiction.

§ 14-13-206, C.R.S. 2019; People in Interest of M.S., 2017 COA 60,

¶ 15. Accordingly, absent temporary emergency jurisdiction under

section 14-13-204, C.R.S. 2019, a Colorado court may only modify

a custody order issued by an out-of-state court under limited

circumstances. M.S., ¶ 15.

¶ 30 First, the Colorado court must have jurisdiction to make an

initial custody determination under section 14-13-201(1)(a) or (b),

C.R.S. 2019. § 14-13-203(1), C.R.S. 2019; Brandt, ¶ 33. Second,

the court in the issuing state must have lost or declined to exercise

jurisdiction. Brandt, ¶ 33. This can occur when the court in the

issuing state determines that (1) the child and parents no longer

have a significant connection to the issuing state and substantial

evidence regarding the child is not available in the issuing state, or

(2) the Colorado court is a more convenient forum. §§ 14-13-202,

-203(1)(a), C.R.S. 2019; M.S., ¶ 17. It may also occur when either

the issuing court or a Colorado court determines that the child, the

14 parents, and anyone acting as a parent do not presently reside in

the issuing state. § 14-13-203(1)(b); A.B-A., ¶ 10.

¶ 31 Significantly, before a Colorado court may assume jurisdiction

to modify an out-of-state custody order, it must communicate with

the issuing court pursuant to sections 14-13-110 to -112, C.R.S.

2019. Brandt, ¶ 35.

¶ 32 Likewise, a court of this state may not exercise its jurisdiction

if, at the time of the commencement of the proceeding, a proceeding

concerning the custody of the child has been commenced in a court

of another state unless the proceeding has been terminated or is

stayed by the other state court because a court of this state is a

more convenient forum. § 14-13-206(1). If a Colorado court

determines that a child-custody proceeding has been commenced in

a court in another state, it must communicate with the other state

court. § 14-13-206(2); People in Interest of C.L.T., 2017 COA 119,

¶ 23.

b. Communication between States

¶ 33 The UCCJEA is premised on the assumption that sister state

courts will communicate with one another. Saavedra v. Schmidt, 96

S.W.3d 533, 547-48 (Tex. App. 2002). As our supreme court has

15 explained, communication is “exceedingly beneficial” in this type of

proceeding. Brandt, ¶ 34. Inter-court communication facilitates an

understanding between sister states regarding whether the issuing

state has lost jurisdiction or declined to exercise jurisdiction in

favor of a more convenient forum. Id. It also alerts the new state to

any pending actions in the issuing state and helps to develop a

factual record in the matter of jurisdiction. Id.

¶ 34 The communication can occur in many different ways,

including by telephone conference, online communication, or other

electronic means. § 14-13-110 cmt. And this communication must

be made directly by the court — which is defined as an entity

authorized under the law of a state to establish, enforce, or modify a

child-custody determination. § 14-13-102(6); see also People in

Interest of D.P., 181 P.3d 403, 407 (Colo. App. 2008). This includes

a judge or a magistrate. D.P., 181 P.3d at 407.

¶ 35 Section 14-13-110(4) requires the court to make a record of all

communications between courts concerning proceedings that arise

under the UCCJEA except for those involving schedules, calendars,

court records, and similar matters. D.P., 181 P.3d at 406. A record

is defined as information that is inscribed on a tangible medium or

16 that is stored in an electronic or other medium and is retrievable in

perceivable form. § 14-13-110(5).

¶ 36 The court may allow the parties to participate in the

communication with the other court. § 14-13-110(2). If the parties

are not able to participate in the communication, then the court

must give them the opportunity to present facts and legal

arguments before it makes a decision regarding its jurisdiction. Id.

Arizona’s version of the UCCJEA contains the same provisions. See

Ariz. Rev. Stat. Ann. § 25-1010 (2019).

¶ 37 This process is particularly significant because it informs the

jurisdictional decision. Indeed, a Colorado court must decide

whether it has jurisdiction to modify an existing out-of-state

custody order based on the information provided by the parties and

its discussion with the court in the other state. See C.L.T., ¶ 24.

2. The Record

¶ 38 When stepfather initiated the proceeding to adopt the child

and terminate father’s parental rights, Arizona had a pending child-

custody proceeding. And it had made multiple child-custody

determinations regarding father’s parenting time and visitation for

the paternal grandparents. Father and the paternal grandparents

17 continued to reside in Arizona. Consequently, Arizona had

exclusive, continuing jurisdiction over the child that it had to

decline — consistent with the requirements of the UCCJEA —

before the Colorado magistrate could consider the termination of

father’s parental rights.

¶ 39 Yet, the record contains no indication that the magistrate

communicated with the issuing court in Arizona before assuming

jurisdiction to terminate father’s parental rights. Instead, the

magistrate relied on a written order from the Arizona court

relinquishing its jurisdiction based on pleadings submitted by

mother and father. And the Colorado magistrate, without

conferring with the Arizona court, determined that the Arizona

court lacked jurisdiction to reconsider that order.

¶ 40 We are not persuaded that this was an adequate substitute for

inter-court communication. Indeed, the record in this case

highlights some of the pitfalls of doing so. For example, in its initial

order declining jurisdiction, the Arizona court determined that there

was no longer substantial evidence available in Arizona concerning

the child’s care, protection, training, and personal relationships. In

reaching this determination, the court reasoned that the child had

18 been in Colorado since 2016 and that, if it were to reinstate father’s

parenting time, it would necessitate reunification therapy in

¶ 41 This reasoning appears to be at odds with the nature of the

stepparent adoption proceeding that was then pending before the

Colorado court. The issue before the Colorado court was not

whether father should have parenting time, but rather, whether

father’s parental rights should be terminated so that stepfather

could step into his shoes as the child’s legal parent. And, even if

the magistrate had decided that the grounds for stepparent

adoption were not met, he would have simply denied the petition

without considering any parenting time to father.

¶ 42 The reconsideration issue further highlights some of the same

pitfalls. Recall that the Arizona court also subsequently determined

that it would relinquish its jurisdiction over the custodial issues

between mother and father, while retaining its jurisdiction over

grandparent visitation. This was a seemingly conflicting

determination that could have been avoided by inter-court

communication. Grandparent visitation is expressly identified as

19 both a child-custody determination and a child-custody proceeding

under the UCCJEA. See § 14-13-102(3)-(4).

¶ 43 Additionally, inter-court communication would have allowed

for discussion of whether, and if so, on what basis, the Arizona

court had authority to partially reconsider its earlier declination of

jurisdiction.

¶ 44 For these reasons, the magistrate lacked jurisdiction to

terminate father’s parental rights and we must vacate the

judgment.

III. Remaining Arguments

¶ 45 Because we have already concluded that the judgment must

be vacated so that the magistrate can confer with the Arizona court

regarding jurisdiction, we need not review whether the magistrate

properly concluded that the Arizona court’s order retaining

jurisdiction was not entitled to enforcement under the PKPA. For

the same reason, we do not consider father’s contentions that the

magistrate erred by (1) concluding that he had abandoned the child

and (2) failing to advise him of his right to have the matter heard by

a judge.

IV. Conclusion

20 ¶ 46 The judgment is vacated. The matter is remanded to the

juvenile court for the magistrate to determine whether the Colorado

court has jurisdiction to issue a termination judgment that modifies

the Arizona custody order. In doing so, the magistrate must

communicate with the issuing court in Arizona pursuant to sections

14-13-110 to -112. See Brandt, ¶ 35.

JUDGE FURMAN and JUDGE WELLING concur.