People ex rel. J.W.
| Citation | 411 P.3d 191 |
| Decision Date | 25 August 2016 |
| Docket Number | Court of Appeals No. 15CA1698 |
| Parties | The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF J.W. and N.W., Children, and Concerning C.O., Respondent–Appellant. |
| Court | Colorado Court of Appeals |
Robert Loeffler, County Attorney, Sue S. Thibault, Assistant County Attorney, Georgetown, Colorado, for Petitioner–Appellee
Wendy M. Hickey, Guardian Ad Litem
C.O., Pro Se
Opinion by JUDGE ROMÁN
¶ 1 C.O. (mother) appeals from the judgment terminating the parent-child legal relationships between her and J.W. and N.W. (children) and from the order adjudicating the children dependent or neglected with respect to her. Because the court issued the adjudication order after the court entered judgment terminating mother's parental rights, and not before, we conclude that the court did not acquire jurisdiction to terminate the parent-child relationship. In addition, because the adjudication order was entered after mother filed her notice of appeal, we also conclude that the court lacked jurisdiction to enter that order as well. Accordingly, we vacate both the judgment and the order and remand for further proceedings.
¶ 2 In May 2014, the Clear Creek County Department of Human Services (the department) sought temporary protective custody of J.W., then five years old, and N.W., then ten months old, citing serious (and ultimately fatal) injuries suffered by an unrelated child residing in the home and ongoing concerns about mother's ability to protect the children. The department noted that the family had been the subject of several previous referrals concerning drug use, domestic violence, and possible physical abuse of the children, including an allegation that J.O., the children's maternal uncle, had choked J.W. When confronted with the latter allegation, mother was protective of her brother, denying that he would ever do anything to hurt the child.
¶ 3 Soon after being granted temporary custody of the children, the department filed a petition in dependency or neglect, alleging that the children were dependent or neglected for the reason set forth in section 19–3–102(1)(a), C.R.S. 2015, which provides that a child is dependent or neglected if "[a] parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to ... prevent it from recurring." As factual support for this allegation, the department cited, among other things, mother's lack of protectiveness when faced with the allegation that her brother had choked J.W. Mother denied the allegations.
¶ 4 Shortly before the adjudicatory hearing, the department filed an amended petition in dependency or neglect. This time the department did not allege that mother had abandoned the children, subjected them to mistreatment or abuse, or allowed another to mistreat or abuse them without taking lawful means to prevent it from recurring. It alleged instead that the children were dependent or neglected for the reasons set forth in section 19–3–102(1)(b), which provides that a child is dependent or neglected if "[t]he child lacks proper parental care through the actions or omissions of the parent," and in section 19–3–102(1)(c), which provides that a child is dependent or neglected if "[t]he child's environment is injurious to his or her welfare."1
¶ 5 Mother's adjudicatory trial took place on July 10 and 11, 2014. Following the trial, the jury was asked to decide (1) whether the children were dependent or neglected because their environment was injurious to their welfare; and (2) whether the children were dependent or neglected because they lacked proper parental care through the actions or omissions of their parent, guardian, or legal custodian.
¶ 6 The trial did not result in an adjudication.
¶ 7 Instead, the jury answered "no" to the question asking whether the children lacked proper parental care through the actions or omissions of their parent, guardian, or legal custodian. It further stated that it was "unable to return an answer" to the question asking whether the children's environment was injurious to their welfare.
¶ 8 On July 14, 2014, a hearing was held to discuss scheduling a new adjudication trial for mother. Rather than delay the proceedings by requesting a retrial, mother chose to admit that the children's environment was injurious to their welfare. The trial court accepted her admission. The parties agree that mother was not offered a deferred adjudication under section 19–3–505(5)(a), C.R.S. 2015, and that the court did not enter a formal order adjudicating the children dependent or neglected at the hearing. See § 19–3–505(7)(a) (). Instead, the court proceeded to adopt the treatment plan that was already in place as her treatment plan going forward.2
¶ 9 A few months later, the court terminated mother's parental rights, finding that although mother loved the children and had made efforts to comply with her treatment plan, she could not meet the children's needs.
¶ 10 On October 30, 2015, more than a month after mother's parental rights were terminated, the court entered a written order adjudicating the children dependent or neglected with respect to her.
¶ 11 As an initial matter, we address the department's contention that the appeal is untimely with respect to issues arising during the adjudicatory stage of the proceeding. It argues the appeal of such issues is untimely because, although the court did not sign a written order adjudicating the children dependent or neglected with respect to mother until October 30, 2015, mother acknowledged in her petition on appeal that the adjudication and disposition order was "made" on July 14, 2014. We disagree that the appeal is untimely.
¶ 12 To begin, mother is appealing an order purporting to terminate her legal relationship with her children; therefore, this is a final appealable order under section 19–1–109(2)(b), C.R.S. 2015. Simply put, mother contends that the department did not prove all of the essential elements under section 19–3–604(1)(c), C.R.S. 2015.
¶ 13 As for the adjudicatory order, it is well established that "an order or judgment must be reduced to writing and dated and signed before it is a final, appealable order." People in Interest of O.J.S. , 844 P.2d 1230, 1233 (Colo. App. 1992) (citing C.R.C.P. 58 ), aff'd sub nom. D.A.S. v. People , 863 P.2d 291 (Colo. 1993). Thus, if the court sustains the petition in dependency or neglect and adopts a treatment plan for a parent, but does not reduce the adjudicatory and dispositional orders to writing, those orders are not final and appealable until the entry of a judgment of termination or other final and appealable order. See People in Interest of T.E.M. , 124 P.3d 905, 907–08 (Colo. App. 2005) ().
¶ 14 Here, the court entered a written order purporting to adjudicate the children dependent or neglected with respect to mother and adopt a treatment plan for her, but it did not do so until October 30, 2015, more than a month after entering the judgment terminating her parental rights. Because the termination order was entered before an adjudicatory order was entered, it was the termination order that allowed mother to appeal issues arising during the adjudicatory stage of the proceeding.
¶ 15 We next consider whether the trial court had jurisdiction to terminate mother's parental rights before it entered an order adjudicating the children dependent or neglected with respect to her. We conclude that it did not.
¶ 16 Although mother did not initially raise this issue, in a dependency or neglect proceeding the court's subject matter jurisdiction is based on the fact of the child being dependent or neglected, and a challenge to a court's subject matter jurisdiction may be raised at any time. See § 19–1–104(1)(b), C.R.S. 2015; People in Interest of N.D.V. , 224 P.3d 410, 414 (Colo. App. 2009).
¶ 17 In supplemental briefing requested by this court,3 mother argues that the children were not adjudicated dependent or neglected until after the court entered the written order of adjudication in October 2015, and, therefore, the court did not have jurisdiction to terminate her parental rights. We agree that when the court terminated mother's parental rights, it did not have jurisdiction to do so.
¶ 18 For a parent involved in a dependency or neglect proceeding, the entry of an adjudicatory order is a critically important turning point. The purpose of the adjudicative process is to "determine whether the factual allegations in the dependency or neglect petition are supported by a preponderance of the evidence" such that the child's status "warrants intrusive protective or corrective state intervention into the familial relationship." People in Interest of J.G. v. M.L. , 2016 CO 39, ¶ 18, 370 P.3d 1151 (citations omitted). Thus, if a parent admits the allegations in the petition in dependency or neglect—or if the state, in a contested case, proves the allegations—then the court may enter an adjudicatory order, which vests the court with "extensive and flexible dispositional remedies." People in Interest of A.M.D. , 648 P.2d 625, 639–40 (Colo. 1982).
¶ 19 Alternatively, if the parent denies the allegations and the state fails to prove them, the court must order the petition...
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