24CA1024 Peo in Interest of LW 03-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1024 El Paso County District Court No. 22JV30014 Honorable Scott Bradford Epstein, Judge
The People of the State of Colorado,
Appellee,
In the Interest of L.W., a Child,
and Concerning K.H. and B.J.W.,
Appellants.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025
Kenneth Hodges, County Attorney, Melanie Douglas, Contract Attorney, Colorado Springs, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for Appellant K.H.
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant B.J.W. ¶1 K.H. appeals the judgments adjudicating L.W. (the child)
dependent or neglected and terminating parental rights. We reverse
the adjudication judgment, vacate the termination judgment, and
remand the case to the juvenile court for further proceedings
consistent with this opinion.
¶2 B.J.W. (mother) also appeals the judgment terminating her
legal relationship with the child. We affirm.
I. Background
¶3 In May 2021, mother gave birth to the child, who tested
positive for methamphetamine. The El Paso County Department of
Human Services (Department) created a safety plan with mother, in
which she agreed to enter treatment while the child would reside
with a family friend. But mother did not complete treatment, and
the Department could not locate her.
¶4 Based on this information, the Department filed a petition in
dependency or neglect, assumed temporary legal custody of the
child, and placed the child with a foster family. When the
Department filed the initial petition, it did not have any information
about the child’s father and therefore named “unknown father” as a
respondent. The Department eventually located mother in custody,
1 the juvenile court adopted a treatment plan for her, and the court
requested that she submit a paternity affidavit.
¶5 In February 2023, mother filed the affidavit, which listed three
possible fathers, including K.H.; at a subsequent hearing, mother
named a fourth possible father. The Department then submitted
amended petitions listing all four individuals and “unknown father,”
as respondents. In May 2023, K.H. appeared in response to the
summons, the juvenile court appointed counsel for him, and he
agreed to submit to genetic testing. But K.H. did not comply with
testing and never reappeared in court.
¶6 In August 2023, the juvenile court held an adjudicatory trial
for K.H. At the hearing, K.H.’s counsel asserted that the court
could not enter an adjudication judgment against her client without
first establishing that he was the child’s parent under Colorado’s
Uniform Parentage Act (UPA). The court disagreed and adjudicated
the child dependent or neglected with respect to K.H. under
subsections (1)(b) and (1)(d) of section 19-3-102, C.R.S. 2024. The
court then determined that no appropriate treatment plan could be
devised for K.H.
2 ¶7 In January 2024, the Department moved to terminate the
parental rights of mother and K.H. (as well as the three other
possible fathers and unknown father). The juvenile court held an
evidentiary hearing in May 2024. K.H.’s counsel continued to argue
that the court needed to establish that K.H. was a parent before it
could terminate his parental rights. Ultimately, the court granted
the Department’s motion and terminated mother’s parental rights
under section 19-3-604(1)(c), C.R.S. 2024, and K.H.’s parental
rights under section 19-3-604(1)(a).
II. K.H.’s Appeal
¶8 K.H. asserts that the juvenile court erred by entering
adjudication and termination judgments against him without
establishing that he was the child’s parent. For the reasons
explained below, we agree.
A. Standard of Review
¶9 K.H.’s appeal requires us to (1) determine whether the juvenile
court had jurisdiction; (2) consider whether the evidence was
sufficient; and (3) interpret statutes. The following standards of
review apply.
3 ¶ 10 “Whether a child is dependent [or] neglected presents a mixed
question of fact and law because it requires application of
evidentiary facts to the statutory grounds.” People in Interest of
M.M., 2017 COA 144, ¶ 17. In determining whether the evidence is
sufficient to sustain an adjudication, we review the evidence in the
light most favorable to the prevailing party, drawing every
reasonable inference from the evidence in favor of the juvenile
court’s decision. People in Interest of S.G.L., 214 P.3d 580, 583
(Colo. App. 2009). We review the court’s factual findings for clear
error, and we will not disturb them if they are supported by the
record. Id. But we review the court’s legal conclusions de novo,
and we may set aside a court’s order based on errors of law or
findings that do not conform to the statutory criteria. People in
Interest of S.K., 2019 COA 36, ¶ 41; S.G.L., 214 P.3d at 583.
¶ 11 Statutory interpretation is a question of law that we review de
novo. People in Interest of C.L.S., 313 P.3d 662, 665-66 (Colo. App.
2011). In construing a statute, we look at the entire statutory
scheme to give consistent, harmonious, and sensible effect to all its
parts. People in Interest of L.M., 2018 CO 34, ¶ 13. We apply words
and phrases in accordance with their plain and ordinary meanings,
4 People in Interest of K.L.W., 2021 COA 56, ¶ 13, and we do not add
or subtract words from statutes, A.M. v. A.C., 2013 CO 16, ¶ 17. If
the statute’s language is clear and unambiguous, we apply it as
written. People in Interest of J.G., 2016 CO 39, ¶ 13.
¶ 12 Finally, when the facts are undisputed, the scope of the
juvenile court’s jurisdiction presents questions of law that we review
de novo. People in Interest of J.W. v. C.O., 2017 CO 105, ¶ 17.
B. Legal Framework
¶ 13 A juvenile court has exclusive original jurisdiction in both
dependency or neglect proceedings and proceedings to determine
the parentage of a child. § 19-1-104(1)(b), (f), C.R.S. 2024; People in
Interest of N.S., 2017 COA 8, ¶ 20.
¶ 14 Dependency or neglect proceedings are governed by Article 3 of
the Colorado Children’s Code, §§ 19-3-100.5 to -905, C.R.S. 2024,
and they are initiated by the filing of a petition alleging that a child
is dependent or neglected, § 19-3-502(1), C.R.S. 2024. The
petitioner has the burden to prove the allegations in the petition by
a preponderance of the evidence at an adjudicatory hearing.
§ 19-3-505(1), C.R.S. 2024. If the government proves the
5 allegations, the juvenile court will sustain the petition and
adjudicate the child dependent or neglected. § 19-3-505(7).
¶ 15 An adjudication is not made “as to” a parent, People in Interest
of S.B., 742 P.2d 935, 939 (Colo. App. 1987), but the petitioner
must still prove the allegations with respect to each respondent,
People in Interest of U.S., 121 P.3d 326, 328 (Colo. App. 2005).
“[T]he factual status of a child as dependent or neglected [is] a
jurisdictional prerequisite to the entry of permanent orders.” People
in Interest of T.W., 2022 COA 88M, ¶ 52.
¶ 16 Following an adjudication, the juvenile court must hold a
dispositional hearing and determine whether a treatment plan can
be devised. See §§ 19-3-507, 19-3-508(1), C.R.S. 2024. In some
circumstances, such as this case, the court may determine that a
treatment plan cannot be devised “because the child has been
abandoned.” § 19-3-508(1)(e)(I). If the court determines that no
appropriate treatment plan can be devised, the termination hearing
serves as the dispositional hearing. People in Interest of M.S., 2012
COA 211, ¶¶ 2-3 (in a case with no appropriate treatment plan, a
respondent cannot appeal the adjudication until entry of the
termination judgment).
6 ¶ 17 Proceedings to determine parentage of a child are governed by
Article 4 of the Children’s Code, otherwise known as the UPA. See
§§ 19-4-101 to -130, C.R.S. 2024. If a paternity issue arises in a
dependency or neglect proceeding, the juvenile court has the
authority to resolve the paternity question in the dependency or
neglect case. People in Interest of J.G.C., 2013 COA 171, ¶ 10.
However, in doing so, the court must follow the procedures outlined
in the UPA. N.S., ¶ 21.
C. Adjudication
¶ 18 K.H. asserts that the juvenile court erred because it either
(1) did not have subject matter jurisdiction or (2) did not have the
“authority” to enter an adjudication. As to the former, we disagree
because this proceeding fell within the class of cases that the court
may hear, and it therefore had subject matter jurisdiction to enter
an adjudication. See § 19-1-104(1)(d); C.O., ¶¶ 24-25; see also
T.W., ¶ 29. As to the latter, we construe K.H.’s assertion as a
challenge to whether the court had the authority to enter an
adjudication without the Department providing evidence that he
was the child’s parent. For the reasons explained below, we
conclude the court did not have such authority.
7 ¶ 19 The Children’s Code is silent on whether a juvenile court may
enter an adjudication under Article 3 without first determining
parentage under Article 4. However, we need not decide whether a
parentage determination is required in every dependency or neglect
case because we conclude that, under the circumstances here, the
court could not enter an adjudication with respect to K.H.
¶ 20 As relevant to this case, a child is dependent or neglected if
(1) “[t]he child lacks proper parental care through the actions or
omissions of the parent, guardian, or legal custodian,”
§ 19-3-102(1)(b) (emphasis added); or (2) “[a] parent, guardian, or
legal custodian fails or refuses to provide the child with proper or
necessary subsistence, education, medical care, or any other care
necessary for his or her health, guidance, or well-being,”
§ 19-3-102(1)(d) (emphasis added). Because the Department did
not allege that K.H. was the child’s “guardian” or “legal custodian,”
the Department needed to show that K.H. was a “parent” to enter
an adjudication under subsections (1)(b) or (1)(d).
¶ 21 The Children’s Code defines “parent” as, among other things,
“a natural parent of a child, as may be established” under the UPA.
§ 19-1-103(105)(a), C.R.S. 2024. In turn, the UPA defines “natural
8 parent” as “a nonadoptive parent established pursuant to . . . article
4, whether or not biologically related to the child.” § 19-4-102.5(3),
C.R.S. 2024. Consequently, the juvenile court needed to determine
whether K.H. was a “natural parent” under the UPA for him to
qualify as a “parent” for purposes of an adjudication under section
19-3-102(1)(b) or (d).
¶ 22 However, the record clearly shows that, although the juvenile
court could have determined parentage under the UPA before
entering an adjudication, it specifically declined to do so. The court
expressed concern about conducting a paternity proceeding
because doing so would “essentially be flipping a coin to try to see
which one of the named fathers . . . should be adjudicated as legal
father of this child.” The court therefore decided to “go[] forward
with the adjudicatory phase as to [all the alleged fathers] without
resolving paternity.”
¶ 23 Therefore, because the juvenile court did not adjudicate
parentage, K.H. could not meet the definition of “parent” in the
Children’s Code. And because the record does not establish that
K.H. was a “parent,” the court erred by finding that the child was
dependent or neglected with respect to him under subsections (1)(b)
9 and (1)(d), considering that both of those subsections require
conduct by a “parent, guardian, or legal custodian.” In other words,
although the Department alleged that K.H. was the child’s parent, it
never proved that allegation. See Crawford v. M & K Mobile Homes,
Inc., 488 P.2d 232, 236 (Colo. App. 1971) (an allegation is not
proof).
¶ 24 The Department and the guardian ad litem (GAL) do not
provide any authority supporting their position that the juvenile
court had the authority to enter an adjudication under section
19-3-102(1)(b) or (1)(d) without a finding that K.H. was a parent,
guardian, or legal custodian. Instead, they argue that we should
affirm the court’s judgment because (1) it was in the child’s best
interests; (2) any error was harmless; or (3) K.H. invited the error.
For the reasons described below, we disagree with all three
arguments.
¶ 25 First, the Department and GAL argue that the juvenile court
could enter an adjudication without establishing that K.H. was the
child’s parent because doing so served the child’s best interests by
preventing a delay in the proceedings. See § 19-1-102(1)(c), C.R.S.
2024 (one purpose of the Children’s Code is to “proceed with all
10 possible speed to a legal determination”). But the Department and
GAL have not provided any authority holding that the court may
relieve the Department of its duty to prove the allegations in its
petition by a preponderance of the evidence simply to avoid delay.
See People in Interest of A.M.D., 648 P.2d 625, 631 (Colo. 1982)
(“Proceedings in dependency or neglect affect important rights, so
there must be substantial compliance with statutory requirements
for conduct of those proceedings.”).
¶ 26 Second, the Department and GAL contend that any error was
harmless. We may “disregard any error or defect not affecting the
substantial rights of the parties.” C.A.R. 35(c). An error affects a
substantial right if it can be said with fair assurance that it
substantially influenced the case’s outcome or impaired the basic
fairness of the trial itself. People in Interest of R.J., 2019 COA 109,
¶ 22. In this case, if the juvenile court had not erroneously
concluded that it could enter an adjudication under subsection
(1)(b) and (1)(d) against an alleged parent, it would not have
sustained the petition, entered an adjudication judgment against
K.H., and terminated his parental rights. Thus, the error is not
harmless.
11 ¶ 27 Third, the Department argues that K.H. invited the error
because he did not comply with genetic testing. See People v.
Rediger, 2018 CO 32, ¶ 34 (“The doctrine of invited error prevents a
party from complaining on appeal of an error that he or she has
invited or injected into the case . . . .”). We disagree because K.H.
did not induce the erroneous ruling by the juvenile court. In fact,
K.H.’s counsel argued against the court taking such an action. Cf.
People in Interest of M.H-K., 2018 COA 178, ¶ 20 (“[T]he parents did
not [invite the error by] ask[ing] the court to read the petition; they
asked the court not to read the petition.”). Consequently, the
invited error doctrine does not apply.
¶ 28 In sum, we conclude that the juvenile court erred by entering
an adjudication with respect to K.H. because the record did not
establish that he was a “parent,” as required for an adjudication
under section 19-3-102(1)(b) and (1)(d). We therefore reverse the
judgment adjudicating the child dependent or neglected with
respect to K.H.
12 D. Termination
¶ 29 K.H. asserts that the juvenile court’s judgment terminating his
parental rights is void as a matter of law because the court did not
have jurisdiction. We agree.
¶ 30 A juvenile court’s jurisdiction concerns its authority to hear
and determine a matter. C.O., ¶ 21. A judgment rendered without
jurisdiction is void and may be attacked directly or collaterally. Id.
As relevant here, “the child’s status as dependent or neglected
establishes the court’s continued jurisdiction over the child” to
terminate parental rights. Id. at ¶ 31; see also T.W., ¶ 52.
¶ 31 Because we have concluded above that the juvenile court erred
by entering an adjudication judgment against K.H., the court did
not have continuing jurisdiction with respect to K.H. to enter a
judgment terminating his parental rights. See T.W., ¶ 54 (an
adjudication is a “necessary step that grants a juvenile court
continuing jurisdiction” to enter a permanent order). Therefore, the
court’s termination judgment is void, and we must vacate it. See
C.O., ¶ 21.
13 III. Mother’s Appeal
¶ 32 Mother asserts that the juvenile court erred by rejecting less
drastic alternatives to termination because it declined to resolve
paternity under the UPA. Assuming, without deciding, that the
court erred by failing to determine fraternal parentage in this case,
we conclude that any error is harmless as to mother’s assertion
because the record clearly establishes that a less drastic alternative
was not a viable option.
¶ 33 Before terminating parental rights under section
19-3-604(1)(c), the juvenile court must consider and eliminate less
drastic alternatives. People in Interest of M.M., 726 P.2d 108, 1122
(Colo. 1986). In considering less drastic alternatives, a court must
give primary consideration to the child’s physical, mental, and
emotional conditions and needs. § 19-3-604(3). In doing so, the
court may consider, among other things, whether (1) an ongoing
relationship between the parent and child would be beneficial,
People in Interest of A.R., 2012 COA 195M, ¶ 38; and (2) an
allocation of parental responsibilities (APR) provides adequate
permanence and stability for the child, People in Interest of T.E.M.,
124 P.3d 905, 910-11 (Colo. App. 2005).
14 ¶ 34 For a less drastic alternative to be viable, it must do more than
adequately meet a child’s needs; rather, it must be in the child’s
best interests. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 27.
Therefore, if the juvenile court considers a less drastic alternative
but finds instead that termination is in the child’s best interests, it
must reject the less drastic alternative and order termination. Id. at
¶ 32. Under those circumstances, we must affirm the court’s
decision if its findings are supported by the record. People in
Interest of B.H., 2021 CO 39, ¶ 81.
¶ 35 The juvenile court found that there was no less drastic
alternative to termination. In doing so, the court noted that mother
had no contact with the child from shortly after his birth until
August 2023, almost one and a half years later. It found that,
although mother had a few visits with the child when she was
incarcerated, she had simply “dropped off . . . the radar” after her
release. Therefore, the court rejected less drastic alternatives,
considering that the child had no relationship with mother and the
child “desperately need[ed] to continue in a stable place.”
¶ 36 The record supports the juvenile court’s findings. The
caseworker testified that the child was placed in foster care in
15 February 2022, but the Department did not locate mother until
around March 2023 when she was incarcerated. The record shows
that, although mother did some classes and a few visits with the
child while she was incarcerated, once she was released in February
2024, she did not comply with any components of her treatment
plan and did not have any contact with the child. Based on
mother’s lack of participation in the case and the child’s need for
stability, the caseworker opined that there were no less drastic
alternatives to termination.
¶ 37 On appeal, mother asserts that, if the juvenile court had
determined paternity, then there may have been a less drastic
alternative in the form of an APR to the natural father or one of his
relatives. But the record shows that, other than K.H.’s single
appearance in court, none of the alleged fathers appeared or
participated in the case. Therefore, even if the court had
adjudicated parentage, nothing in the record suggests that there
would have been an appropriate relative placement option for the
child. Consequently, we are not persuaded by mother’s highly
speculative assertion.
16 ¶ 38 In any event, even if there was a possible placement option,
the record still shows that a less drastic alternative was not an
option. The evidence established that mother had done very little to
address the Department’s concerns regarding the child’s safety or to
become a fit parent. It also shows that mother had no relationship
with the child and that the child needed permanency as soon as
possible. In other words, the record establishes that an ongoing
relationship with mother would not have been beneficial for the
child, see A.R., ¶ 38, and the child needed the permanency that
only termination and adoption could provide, see T.E.M., 124 P.3d
at 910-11. An available relative placement option would not change
this result.
¶ 39 Therefore, because the record supports the juvenile court’s
determination that termination, not a less drastic alternative, was
in the child’s best interests, we cannot disturb its decision. See
B.H., ¶ 81.
IV. Disposition
¶ 40 The judgment adjudicating the child dependent or neglected
with respect to K.H. is reversed. The judgment terminating K.H.’s
parental rights is vacated. The matter is remanded to the juvenile
17 court to determine whether K.H. is the child’s natural father under
the UPA or to dismiss him from the case.
¶ 41 The judgment terminating mother’s parental rights is affirmed.
JUDGE J. JONES and JUDGE BROWN concur.