24CA0337 Peo in Interest of AR 10-31-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0337 Las Animas County District Court No. 22JV30009 Honorable Dawn Marie Mann, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.R., a Child,
and Concerning B.A.B.,
Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 31, 2024
Pamela Nelson, County Attorney, Josi McCauley, Special County Attorney, Superior, Colorado, for Appellee
Debra W. Dodd, Guardian Ad Litem
James West, Office of Respondent Parents’ Counsel, Longmont, Colorado, for Appellant ¶1 In this dependency and neglect action, B.A.B. (father) appeals
the judgment allocating parental responsibilities of A.R. (the child)
to the maternal grandparents. Although no motion for an allocation
of parental responsibilities (APR) was filed, an APR was requested
during closing arguments and then granted by the juvenile court at
a contested permanency planning hearing. Because father wasn’t
afforded notice or a fair opportunity to be heard on the issues
attendant to granting APR to a nonparent, we reverse the juvenile
court’s order allocating parental responsibilities for the child and
remand the case for further proceedings.
I. Background
¶2 The Las Animas County Department of Human Services (the
Department) filed a petition in dependency and neglect alleging the
newborn child tested positive for substances and was exhibiting
withdrawal symptoms. The juvenile court granted temporary
custody to the Department for placement with the maternal
grandparents, where the child remained throughout the
proceedings.
¶3 The juvenile court adjudicated the child dependent and
neglected and adopted a treatment plan for father. At a review
1 hearing held nineteen months after the petition was filed, the court
set an “all day perm[anency] plan[ning] hearing” to take place two
months later and ordered the parties to file witness and exhibit lists
seven days before the hearing. Neither the notice of permanency
planning hearing nor the witness and exhibit list indicated that the
Department would be requesting an APR judgment enter as part of
the permanency planning hearing. Indeed, no party had filed a
motion for APR or a proposed APR order.
¶4 At the hearing, only one of the caseworkers disclosed by the
Department testified. The caseworker opined that the child could
not be returned home that day or within the next six months and
“the official goal” for the child “should be changed to permanent
placement with a relative through APR.” The caseworker
additionally stated that she believed that changing the permanency
goal “would allow [the child] to . . . achieve permanency today.”
¶5 At the conclusion of the permanency planning hearing, after
evidence had closed, the Department not only asked the court to
“order that the goal be changed to permanent placement with a
relative through APR,” but also asked the court “to grant permanent
custody of [the child] to her maternal grandparents, . . . and that if
2 there are to be visits, that they would be supervised.” The juvenile
court made permanency planning findings and ordered the
“perm[anency] plan change to placement with a relative by
allocation of parental responsibility, that allocation of parental
responsibility be granted to the maternal grandparents . . . with
supervised visitation for the parents at the discretion of [the
maternal grandparents].”
II. Preservation
¶6 Father concedes that he failed to object to the procedure when
“the juvenile court entered an immediate APR order” and urges us
to consider the issue to avoid a miscarriage of justice. See People in
Interest of E.S., 2021 COA 79, ¶ 14.
¶7 If an error by the juvenile court is considered fundamental or
involves a miscarriage of justice, we may consider an unpreserved
issue for the first time on appeal. In re R.G.B., 98 P.3d 958, 959
(Colo. App. 2004). The miscarriage of justice exception has a high
bar and narrow scope and applies only to limited situations in
which an error by the trial court, not otherwise properly preserved
for appeal, results in a deprivation of a parent’s meaningful
opportunity to participate in the proceeding. See People in Interest
3 of M.B., 2020 COA 13, ¶¶ 23-24; see also People in Interest of A.E.,
914 P.2d 534, 539 (Colo. App. 1996).
¶8 The Department and guardian ad litem (GAL) rely on People in
Interest of R.J.B., 2021 COA 4, ¶ 33, to argue that there was no
miscarriage of justice in this case because “father had notice of the
hearing, advice of counsel, and the opportunity to be heard and
defend.” See id. at ¶ 27 (Fundamentally fair procedures “must
include a parent receiving notice of the hearing, advice of counsel,
and the opportunity to be heard and defend.”) (citations omitted).
¶9 However, as detailed below, we agree with father that he didn’t
have notice of the Department’s intent to seek an APR order that
would enter at the end of the permanency planning hearing and
therefore “was deprived of a meaningful opportunity to participate”
in the proceeding. See A.E., 914 P.2d at 539. We therefore exercise
our discretion to address father’s due process argument to avoid a
miscarriage of justice. See People in Interest of T.W., 2022 COA
88M, ¶ 24.
¶ 10 Because we consider the merits of father’s claim to avoid a
miscarriage of justice, we don’t address his argument made in the
4 alternative that the issue wasn’t preserved due to ineffective
assistance of counsel.
III. Permanency Planning Hearings and Allocation of Parental Responsibilities
¶ 11 The Children’s Code requires juvenile courts to conduct
permanency planning hearings to determine, among other things, if
a child can be returned home. § 19-3-702(3), C.R.S. 2024. If a
child can’t be returned home, “the court shall enter one or more . . .
permanency goals” identified by statute. § 19-3-702(4)(a). When,
as here, a child is under six years old at the time of the filing of the
petition, permanency planning findings made by the court “shall
not delay or interfere with reunification of a child or youth with a
parent” and “reasonable efforts shall continue to be made to return
the child or youth home” unless the court has made findings that
reasonable efforts aren’t required. § 19-3-702(5).
¶ 12 Permanency planning hearings can be properly combined with
other hearings. The Children’s Code encourages combining
permanency planning hearings with six-month review hearings
when possible. See § 19-3-702(1)(a). And the Children’s Code
authorizes combining permanency planning hearings with
5 termination of parental rights hearings in certain circumstances.
See § 19-3-702(1)(b).
¶ 13 Additionally, as the Department and GAL contend, it’s
permissible for a juvenile court to properly enter an APR order and
close a dependency and neglect action at a permanency planning
hearing, under certain circumstances. See, e.g., People in Interest of
E.C., 259 P.3d 1272, 1275 (Colo. App. 2010) (where the court’s
ability to enter an APR order at a permanency planning hearing was
unchallenged and where mother had filed a motion for APR); People
in Interest of C.M., 116 P.3d 1278, 1282 (Colo. App. 2005)
(remanding for a combined APR and permanency planning hearing
where the department had filed a motion for APR to the
grandparents). Indeed, the Children’s Code grants jurisdiction to a
juvenile court to enter an APR upon the filing of an APR petition
and either the adjudication of the child as to all parents or legal
guardians, or the adjudication of the child as to at least one parent
with the consent of all other unadjudicated parents or legal
guardians. § 19-1-104(6)(a) C.R.S. 2024. However, “the juvenile
court does not have the authority to enter an order allocating
6 parental responsibilities until after the parents are afforded full due
process.” T.W., ¶ 35.
IV. Due Process
A. Standard of Review and Applicable Law
¶ 14 We review procedural due process claims de novo. People in
Interest of C.J., 2017 COA 157, ¶ 25. To establish a violation of due
process, there must be a constitutionally protected liberty interest
that warrants due process protections. Id.
¶ 15 A parent has a fundamental liberty interest in the care,
custody, and control of his or her child. Troxel v. Granville, 530
U.S. 57, 66 (2000). To protect the parental liberty interest “due
process requires the state to provide fundamentally fair procedures
to a parent in a dependency and neglect proceeding.” C.J., ¶ 27.
“At a minimum, a parent must be given adequate notice of the
proceeding and an opportunity to protect his or her rights.” People
in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007). The
opportunity to be heard “must be provided at a meaningful time
and in a meaningful manner.” R.J.B., ¶ 27 (citation omitted).
7 B. Additional Background
¶ 16 The Department sent a “Notice of Permanency Hearing” to the
parties one month before the hearing. The notice used language
from a prior version of the permanency planning statute to state
that “the court must determine the future status or placement of
the children” at a permanency hearing.1
¶ 17 The Department also filed a “Trial Witness and Exhibit List,”
listing as lay witnesses four case aids, two caseworkers, and the
respondents. But the document didn’t include any information
about the expected testimony of these lay witnesses. The
Department also listed two Department employees as possible
expert witnesses. The expert disclosures stated only that each
identified expert witness “will testify regarding her work with the
family during the case, the safety concerns and all other matters.”
None of these disclosures indicated that the upcoming permanency
planning hearing would include a request by the Department that
the court enter an APR order and close the case.
1 The Children’s Code hasn’t included this directive since 2019,
when the legislature changed section 19-3-702 to instead direct the court to adopt permanency planning goals. See Ch. 237, sec. 1, § 19-3-702, 2019 Colo. Sess. Laws 2349-2354.
8 ¶ 18 Seven days before the permanency planning hearing, the
Department filed a “Report to the Court” authored by the
caseworker. The report contained four recommendations: (1) that
custody of the child be granted to the maternal grandparents; (2)
that father’s family time be supervised by a neutral party; (3) that
mother’s family time be supervised by a family member or neutral
party; and (4) that the juvenile court’s jurisdiction end and the case
close and be certified to a domestic relations case. But at no point
did any party file a motion for APR or proposed APR orders.
¶ 19 At the beginning of the hearing, the Department asserted that
“we do come on this morning for a permanency planning hearing.
The Department has filed their report . . . it does outline the
position of the Department regarding the permanency goal. The
Department is prepared to move forward today with testimony.”
(Emphasis added.) When asked if the Department was asking for
permanent custody with a relative to be added as a concurrent
permanency goal with return home, the Department responded,
“we’re requesting that the goal completely change.” The
Department didn’t offer any indication that it was requesting APR
orders or closure of the case that day. The juvenile court didn’t
9 request opening statements, and the parties proceeded to
testimony.
¶ 20 After the close of evidence, the GAL gave the first closing
argument. The GAL argued that the proposed change to the
permanency plan “is in [the child’s] best interest. I think it needs to
happen, and I hope that the court closes the case today.” (Emphasis
added.) The GAL’s closing statement was the first indication that
any party would be requesting case closure effective that day.
¶ 21 In its closing argument, the Department asked “the court to
order that the goal be changed to permanent placement with a
relative through APR, to grant permanent custody of [the child] to
her maternal grandparents, . . . and that if there are to be visits,
that they would be supervised.” The Department then asked the
court “to end jurisdiction, close the case, and certify it to a domestic
relations case.”
¶ 22 In response, father asked the juvenile court to find that he had
successfully addressed safety concerns such that the child could be
returned home.
¶ 23 In its oral remarks, the juvenile court specifically declined to
make fitness findings, and, as relevant here, found by a
10 preponderance of the evidence that the child couldn’t be returned
home on that day or within six months, changed the permanency
plan to placement with a relative by APR, granted APR to the
maternal grandparents, and granted supervised family time at the
maternal grandparents’ discretion.
¶ 24 The juvenile court issued an “Order re: Permanency Planning
Hearing” two weeks later. Therein the court ordered:
• “The permanency goal is changed to permanent
placement with a relative through allocation of parental
responsibilities;”
• “Permanent legal and physical custody is granted to [the
maternal grandparents];”
• “Any visits between [the child] and [the respondents] are
at the discretion of [the maternal grandparents] and are
to be supervised;”
• Respondent parent counsel’s motion to withdraw is
granted; and
• “Jurisdiction is ended and the case is hereby closed and
certified to [a] domestic relations case.”
11 C. Analysis
¶ 25 Father argues that he wasn’t afforded due process before the
juvenile court granted an APR to the maternal grandparents and
closed the dependency and neglect action. We agree.
¶ 26 To begin, we reject the Department and GAL’s assertion that
notice that the hearing would include a request for APR wasn’t
required. They contend that section 14-10-123(1)(c), C.R.S. 2024,
excuses them from providing notice because that statute doesn’t
require filing a petition or motion for APR when a nonparent has
had physical care of a child for more than one hundred and eighty
days. But section 14-10-123(1)(c), a provision of the Uniform
Dissolution of Marriage Act (UDMA), doesn’t apply to an APR
entered in a dependency and neglect case. A dependency and
neglect proceeding “concerns different matters and fulfills a
different purpose” than domestic relations proceedings conducted
under title 14 and the UDMA. People in Interest of D.C., 851 P.2d
291, 294 (Colo. App. 1993). In fact, when custody determinations
are being made under the Children’s Code “the provisions of the
UDMA . . . are no[t] relevant to the proceedings. . . [and] the custody
dispute is to be conducted pursuant to the provisions of the
12 Children’s Code.” Id. at 293. We are not aware of, and no party
cites, any provision in the Children’s Code that is similar to section
14-10-123(1)(c). To the contrary, the Children’s Code authorizes
the juvenile court to enter an APR order “upon the petition of a
party.” § 19-1-104(6)(a) (emphasis added).
¶ 27 Nor do we agree with the Department and GAL’s contention
that the (outdated) language in the written “Notice of Permanency
Hearing” was sufficient to allow the Department to request an APR
judgment after the close of evidence at the permanency planning
hearing without further notice to father. Notice of a hearing to
change a permanency planning goal isn’t the same as notice of a
contested hearing to enter an APR and close a dependency and
neglect case. The notice of a permanency planning hearing
provided no indication that the Department intended to move for an
APR order at the conclusion of the permanency planning hearing.
No party filed a petition, motion, or proposed APR orders. And
father wasn’t given notice that he should present evidence and
argument regarding the terms of an APR order, including arguing
for visitation.
13 ¶ 28 Nor does the record provide an indication that father had
constructive notice of the Department’s intent. The hearing in
question was set as an “all day perm[anency] plan[ning] hearing.”
The expected contents of the hearing weren’t discussed either at its
setting or at the review hearing between when the permanency
planning hearing was set and when it was held. The Department
filed only a list of names as its witness list, with no information
about their expected testimony. Although the Department’s report
to the court listed APR and case closure as its recommendation,
there’s no indication that the Department intended to ask the
juvenile court to enact those recommendations and close the case
on the day of the permanency planning hearing in addition to
changing the permanency planning goal.
¶ 29 Nor was it apparent that the Department would be seeking
APR orders and case closure during the hearing. In opening
remarks, the Department asserted they were there “for a
permanency planning hearing” and “were requesting that the goal
completely change.” The Department didn’t make clear that it was
requesting the juvenile court grant permanent custody of the child
to the maternal grandparents until the last moments of its closing
14 statement. Likewise, the GAL didn’t clearly describe the relief being
requested until the final lines of her closing argument, where she
stated “my position as GAL is that this change in permanency
planning is in [the child’s] best interest. I think it needs to happen
and I hope that the court closes the case today.”
¶ 30 The change in the relief being sought by the Department after
the close of evidence meant that father was deprived of a fair
opportunity to be heard on issues relevant to the entering of an APR
order, including issues of decision-making and family time, which
wouldn’t have been relevant in a hearing limited to changing a
permanency planning goal.
¶ 31 We therefore conclude the juvenile court erred by entering an
APR order at the conclusion of this permanency planning hearing.
¶ 32 We also conclude that reversal is required. Under C.A.R.
35(c), “[t]he appellate court may disregard any error or defect not
affecting the substantial rights of the parties.” See also
C.R.C.P. 61. “An error affects a substantial right only if it can be
said with fair assurance that the error substantially influenced the
outcome of the case or impaired the basic fairness of the trial itself.”
Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (citation omitted).
15 ¶ 33 We determine that the error substantially influenced the
outcome of the case and impaired the basic fairness of the hearing
for three reasons.
¶ 34 First, the practical impact of changing a permanency planning
goal in a case governed by expedited permanency planning (EPP)
statutes is negligible. In an EPP case, a department is required to
provide reasonable efforts to return a child home during the life of
the dependency action, regardless of the permanency planning goal
adopted by the juvenile court. § 19-3-702(5)(b) (In cases where the
child was under six years old at filing, “[r]egardless of any
permanent home findings made pursuant to this section,
reasonable efforts shall continue to be made to return the child or
youth home . . . . Any findings by the court regarding a permanent
home shall not delay or interfere with reunification of a child or
youth with a parent.”). In stark contrast, closing a dependency
action with an APR order to a nonparent discontinues all services
that would otherwise be offered as part of a department’s
reasonable efforts obligations.
¶ 35 Second, as the juvenile court noted in its order, it need not
make a determination of parental fitness as part of a permanency
16 planning hearing. See § 19-3-702. And, indeed, it declined to make
any findings regarding parental fitness as part of its “Order re:
Permanency Planning Hearing,” which closed the case and certified
the matter to a domestic relations court. But while a juvenile court
isn’t required to find that a parent is unfit in order to enter an APR
to a nonparent, the court must consider fitness to determine the
standard of proof by which it may enter orders and whether the
parent is entitled to a presumption that they are acting in the
child’s best interests as required by Troxel. See People in Interest of
J.G., 2021 COA 47, ¶ 44.
¶ 36 At a permanency planning hearing, the applicable burden of
proof for the findings required by statute is a preponderance of the
evidence. People in Interest of R.W., 989 P.2d 240, 243 (Colo. App.
1999). But to grant an APR to a nonparent over a fit parent’s
objection, “the presumption favoring the parent’s decision can be
rebutted only by clear and convincing evidence that granting
parental responsibilities to the nonparent is in the child’s best
interests.” People in Interest of M.W., 2012 COA 162, ¶ 14.
Although an adjudication overcomes the so-called Troxel
presumption, here the child’s sibling had been successfully
17 returned to father’s care and dismissed from the dependency and
neglect action, creating a question of whether father had regained
fitness. See People in Interest of N.G.G., 2020 COA 6, ¶¶ 18-19 (a
parent may regain their Troxel presumption following an
adjudication if the court finds that the parent is fit). And a
determination of parental fitness determines the standard of proof
required for decisions made by the domestic relations court after
certification, where “there is a presumption in favor of modifying
[APR] orders at [a parent]’s request.” In re Parental Responsibilities
Concerning B.R.D., 2012 COA 63, ¶ 32. But without an indication
that the juvenile court might be entering APR orders until after the
close of evidence, father didn’t have an opportunity to request or
present evidence related to a fitness finding.
¶ 37 Finally, the procedure employed by the juvenile court
eliminated father’s opportunity to present evidence outside the
scope of a permanency planning hearing but central to the terms of
an APR order. Father didn’t present evidence concerning an
appropriate family time schedule, level of supervision, or his ability
to cooperate with the maternal grandparents serving as the
placement provider. Nor could he have reasonably been expected to
18 do so given the lack of notice about the nature of the juvenile
court’s final decision.
¶ 38 Simply put, the likelihood that the terms of the final APR
would have been different is sufficient to demonstrate that the
juvenile court’s procedural due process error substantially
influenced the outcome of the case and impaired the basic fairness
of the hearing. Accordingly, the juvenile court’s procedural error
can’t be disregarded as harmless.
V. Disposition
¶ 39 The judgment allocating parental responsibilities of the child is
reversed, and the action is remanded to the juvenile court for
further proceedings consistent with this order, including a
permanency planning hearing where the court shall consider and
make findings consistent with sections 19-3-702(3), (4), and (5).
Placement is to remain with the maternal grandparents until
further order of the juvenile court. Should any party file a petition
for APR pursuant to section 19-1-104(6)(a), or request other relief
under the Children’s Code, the court may proceed accordingly.
JUDGE BROWN and JUDGE MOULTRIE concur.