People ex rel. K.G.

876 P.2d 1, 17 Brief Times Rptr. 1318, 1993 Colo. App. LEXIS 214, 1993 WL 282792
CourtColorado Court of Appeals
DecidedJuly 29, 1993
DocketNo. 92CA1381
StatusPublished
Cited by5 cases

This text of 876 P.2d 1 (People ex rel. K.G.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. K.G., 876 P.2d 1, 17 Brief Times Rptr. 1318, 1993 Colo. App. LEXIS 214, 1993 WL 282792 (Colo. Ct. App. 1993).

Opinion

Opinion by

Chief Judge STERNBERG.

Respondent, L.G. (father), appeals both a judgment entered on a jury verdict determining that K.G., his daughter, was neglected and dependent and a subsequent order requiring him to undergo evaluation and treatment and modifying his parenting time rights (formerly known as visitation rights, see Colo.Sess.Laws 1993, ch. 165, § 14-10-129). We affirm in part and reverse' in part.

M.G. (mother) and father were divorced in Oklahoma in February of 1990. The divorce decree awarded permanent custody of their then three-year-old daughter, K.G., to mother with visitation rights in father. Mother and child moved to Colorado in March of 1990, where they have resided since. Father remained in Oklahoma.

In February 1991, the child visited father in Oklahoma. After her return, the child alleged to her pediatrician that father had sexually molested her. The pediatrician reported the allegation to the El Paso County Department of Social Services (Department), which initiated an investigation.

On April 16, 1991, the Department filed a petition in dependency and neglect in Colorado. The Colorado court entered preliminary orders prohibiting the child from leaving the state but permitting contact between father and the child in Colorado. A Guardian Ad Litem (GAL) was appointed to represent the child in the action. The court denied father’s motion to dismiss based on lack of jurisdiction in Colorado.

On April 11,1991, just prior to the Department’s filing in Colorado, mother appeared in Oklahoma district court seeking to modify the original custody determination and terminate father’s visitation rights. That court determined that it had continuing jurisdiction over the custody determination and denied mother’s subsequent motion to decline jurisdiction in favor of Colorado.

The Oklahoma court ordered that father would continue to have the right to visit K.G. but that all visits would be supervised until a full hearing could be held. The parties entered into a stipulation as to acceptable persons to supervise the visits. The court also ordered that both parties and the child were to be evaluated by clinical psychologists, with the results to be reported to the Oklahoma court, the Colorado court, and the parties’ attorneys.

On November 27, 1991, the Oklahoma court entered an order in which it found that mother had failed to meet her burden of proof regarding the allegation of abuse. Consequently, it refused to modify the custody decree or alter father’s visitation rights.

[4]*4Trial was held in Colorado on the Department’s petition in April of 1992. The jury answered in the affirmative a question on the verdict form which read: “Is K.G. lacking proper parental care as a result of Respondent L.G'.’s acts or failures to act?”

In the following month, the Colorado court entered an order finding that the petition had been sustained by the jury and awarded custody of the child to mother, to be supervised by the Department, pending development of a treatment plan pursuant to § 19-3-508(1), C.R.S. (1986 Repl.Vol. 8B). In August of 1992, it modified the order to approve the treatment plan. The plan included psychological evaluations and treatment for the child and father and ordered that father’s parenting time rights be modified to allow only supervised visits during the pendency of the plan.

Father contends that the Colorado court erred when it determined that it had jurisdiction to modify the Oklahoma custody determination. He also contends that the verdict, as an adjudication of the status of the child, is not effective as to him, cannot require him to undergo treatment as it did not identify any specific acts or omissions attributable to him which caused the child to be lacking in parental care, and that, in any event, the court lacked jurisdiction to enter judgment on the verdict as the alleged acts or omissions did not occur in Colorado.

We agree with father’s first contention but disagree with the second.

I.

A.

Resolution of the issue of jurisdiction requires us to examine the interplay of the Uniform Child Custody Jurisdiction Acts of Colorado and Oklahoma and the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1988).

Colorado, acting as parens patriae, has the authority to provide for the protection of children within its borders whose health and welfare may be threatened. See Colorado Children’s Code, § 19-1-102, et seq., C.R.S. (1986 Repl.Vol. 8B).

Under the Children’s Code, the courts of this state have jurisdiction to determine a temporary matter of custody based on a dependency and neglect petition regardless of issues of domicile or provisions of foreign custody decrees. Section 19-3-403, C.R.S. (1992 Cum.Supp.). That jurisdiction, however, exists only while the immediate needs and welfare of the child are in peril. E.P. v. District Court, 696 P.2d 254 (Colo.1985).

Once a child has been adjudicated neglected or dependent, the court is authorized, as part of the disposition decree, to place legal custody of the child in one or both parents, a guardian, a relative, the county department of social services, or a child placement agency. Section 19-3-508(1), C.R.S. (1986 Repl.Vol. 8B).

However, if, as here, the final disposition’s custody provisions will modify an existing custody determination from another jurisdiction, the disposition is subject to the provisions of the Uniform Child Custody Jurisdiction Act, § 14-13-101, C.R.S. (1987 Repl.Vol. 6B) (UCCJA). See Barden v. Blau, 712 P.2d 481 (Colo.1986) (modification of visitation rights is a custody determination within the UCCJA).

By the express language of the UCCJA, the term “custody proceeding” includes child neglect and dependency proceedings. Section 14-13-103(3), C.R.S. (1987 Repl.Vol. 6B). Interpreting this language, the supreme court has held that the UCCJA governs a custody determination made during a child neglect and dependency proceeding, even though the petition is brought by the state and is not a private action brought by a parent or other party seeking custody. E.P. v. District Court, supra.

Under the UCCJA, before a Colorado court may modify an existing custody determination, it must follow a two-part analysis.

The first step is to determine whether the court has jurisdiction initially to make a custody determination. In re Custody of Dunn, 701 P.2d 158 (Colo.App.1985).

Jurisdiction is proper under the UCCJA only if certain prerequisites are met. Those [5]*5pertinent here allow jurisdiction either if this state is the home state of the child in that the child resided here for the six months previous to the determination or if the child and the parents, or the child and at least one contestant, have a significant connection with the state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. See §§ 14-13-104(l)(a) and (b), C.R.S. (1987 Repl.Vol. 6B).

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Bluebook (online)
876 P.2d 1, 17 Brief Times Rptr. 1318, 1993 Colo. App. LEXIS 214, 1993 WL 282792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-kg-coloctapp-1993.