Esquibel v. Boswell (In re T.L.B.)

• Decision Date: 19 January 2012
• Docket Number: No. 10CA2157.,10CA2157.
• Parties: In re the Parental Responsibilities Concerning T.L.B. and M.A.B., Children, and Concerning Leah Marie Esquibel, Appellant,andNicola Laurence Boswell, Appellee.
• Court: Colorado Court of Appeals

2012 COA 8

272 P.3d 1148

In re the Parental Responsibilities Concerning T.L.B. and M.A.B., Children, and Concerning Leah Marie Esquibel, Appellant,andNicola Laurence Boswell, Appellee.

No. 10CA2157.

Colorado Court of Appeals, Div. I.

Jan. 19, 2012.

Sarah E. Lipka, Alamosa, Colorado, for Appellant.

Karin Johnson Chatfield, LLC, Karin Johnson Chatfield, Denver, Colorado, for Appellee.

Opinion by Judge TAUBMAN.

¶ 1 This case involves an international jurisdictional custody dispute involving Colorado and Canadian courts. It concerns Leah Marie Esquibel (mother), who at all relevant times lived in Colorado, Nicola Laurence Boswell (father), who at all relevant times lived in Vancouver, Canada, and their two young children.

¶ 2 Mother appeals the trial court's order that Canada, rather than Colorado, has jurisdiction to determine parental responsibilities for the children. However, we must first address whether the trial court's order has become moot as a result of an October 2011 Canadian custody order. As discussed below, we conclude the case is not moot.

¶ 3 We then address two related sets of laws—(1) the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 (1980) (Hague Convention), and its implementing statutes, 42 U.S.C. §§ 11601 to 11611 (2006), and (2) the Uniform Child Custody Jurisdiction and Enforcement Act, sections 14–13–101 to –403, C.R.S.2011 (UCCJEA)—which are intended to prevent jurisdictional conflicts in child custody cases. We conclude that the trial court correctly determined that Canada has jurisdiction and therefore affirm its order.

¶ 4 Initially, we note that we may not consider information outside of the trial court record. See In re Marriage of McSoud, 131 P.3d 1208, 1223 (Colo.App.2006) (“Only facts appearing in the record can be reviewed....”). Accordingly, while we have considered the Canadian orders that are a part of the record, we have not considered the information in the addendum to father's answer brief or any facts referenced in either party's briefs that are not included in the record.

I. Background

¶ 5 Beginning in 2001, the parties lived together in Canada for six years and had two children. After mother took the children, without informing father, and came to Colorado in 2007, father obtained a Canadian order granting him custody of the children.

¶ 6 Father then located mother and the children in Colorado, and filed a Hague Convention petition in Adams County District Court requesting that the children be returned to Canada. Concurrently, mother moved in Denver District Court for an allocation of parental responsibilities for the children. Proceedings on mother's motion were stayed, at father's request, until his Hague Convention petition could be heard and resolved in Adams County.

¶ 7 After a hearing on the petition, the Adams County District Court found that although father had made a prima facie case to return the children to him in Canada, returning the children would risk subjecting them to sexual abuse. Thus, return was denied under the exception in article 13(b) of the Hague Convention for situations where returning a child creates a grave risk of exposing the child to physical or psychological harm or otherwise places the child in an intolerable situation.

¶ 8 The Adams County and Denver actions were then consolidated in Denver, and father moved to dismiss, contending that under the UCCJEA, parental responsibilities should be determined in Canada where the children had lived their entire lives and where the first custody proceeding was brought. After an evidentiary hearing, the court agreed with father that Canada had jurisdiction under the UCCJEA, but further ordered that the children would remain with mother in Colorado, pursuant to the temporary emergency jurisdiction procedures in section 14–13–204, C.R.S.2011, until the Canadian court could enter an order, or for a maximum of one year. Mother appealed from this order.

¶ 9 While her appeal was pending, however, the Canadian court conducted a multi-day hearing in September 2011, in which mother and father both participated. The Canadian court heard testimony from the parents, and from expert witnesses, on the issues of custody and guardianship. In October 2011, in a detailed forty-five-page order, the Canadian court rejected mother's allegations that father had abused the children and awarded father sole custody and guardianship of them following a brief period of reintegration therapy. We requested supplemental briefing from the parties concerning whether the October 2011 Canadian order moots mother's appeal, and we begin by addressing that issue.

II. Mootness

¶ 10 Mother contends that the Canadian order does not moot her appeal. We agree.

¶ 11 If a judgment, when rendered on an issue, would not have any effect on an existing controversy, the issue is moot. See In re Marriage of Balanson, 25 P.3d 28, 38 (Colo.2001). When an issue becomes moot because of events occurring while an appeal is pending, the appellate court should decline to render an opinion on the issue. See id.

¶ 12 Here, mother argues that Colorado, rather than Canada, has subject matter jurisdiction to determine parental responsibilities for the children. If she is correct, then the intervening Canadian order would not be determinative of that issue, and thus would not moot the appeal. See Currier v. Sutherland, 218 P.3d 709, 714 (Colo.2009) (“Because a lack of subject matter jurisdiction means that a court has no power to hear a case or enter a judgment, it is an issue that may be raised at any time, even after a verdict has been entered.”).

¶ 13 We view Navani v. Shahani, 496 F.3d 1121 (10th Cir.2007), relied on by father, as materially distinguishable from the present case. In Navani, while an appeal of a Hague Convention order returning a child to England was pending, the English court entered a final custody order as to the child. Id. at 1124. The Tenth Circuit Court of Appeals held that the mother's issue on appeal—whether the father possessed a custodial right to the child as is required under the Hague Convention for the child to be returned to him—was mooted by the intervening order establishing the father's custodial rights, including when the children were removed from him in England. Id. at 1127–28.

¶ 14 Here, in contrast, mother does not appeal from the Hague Convention return order. Rather, she appeals from the trial court's ruling under the UCCJEA that Canada, and not Colorado, has subject matter jurisdiction to determine parental responsibilities for the children. The fact that Canada has already entered a custody order does not moot the issue of which court had subject matter jurisdiction to enter an order in the first place. See Currier, 218 P.3d at 714 (subject matter jurisdiction can be challenged even after a verdict has entered). Thus, although we acknowledge the practical difficulties of review after the Canadian order has entered, because the appeal concerns subject matter jurisdiction, we do not view the issue raised as moot. Cf. In re Marriage of Jeffers, 992 P.2d 686, 690–91 (Colo.App.1999) (remanding for a Hague Convention hearing concerning whether the parties' children should be returned to Greece, despite the fact that a Greek court had already entered a custody order).

¶ 15 We reject mother's argument, however, that Fawcett v. McRoberts, 326 F.3d 491 (4th Cir.2003), abrogated on other grounds by Abbott v. Abbott, ––– U.S. ––––, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), and Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004), are analogous to the present case. As the Tenth Circuit Court recognized in Navani, Fawcett and Whiting involved children who were physically returned to a foreign country during the pendency of an appeal, but for whom no custody orders had yet been entered in the foreign court. See Navani, 496 F.3d at 1132. Thus, these cases are not relevant here, where the children were not only not returned to Canada during the appeal, but the Canadian court also entered a custody order for them. See id.

¶ 16 Because we conclude that the appeal is not moot, we need not address mother's contention that the exceptions to mootness should apply, or father's argument to the contrary.

III. Jurisdiction to Determine Parental Responsibilities

¶ 17 Mother contends that the trial court erred by finding under the UCCJEA that Canada has jurisdiction to determine parental responsibilities for the parties' children. We disagree.

¶ 18 We review de novo the trial court's interpretation of the Hague Convention and its implementing statute, see Jeffers, 992 P.2d at 689, as well as its decision that Canada, not Colorado, has subject matter jurisdiction under the UCCJEA. See People in Interest of D.P., 181 P.3d 403, 406 (Colo.App.2008).

A. UCCJEA

¶ 19 The UCCJEA addresses whether a Colorado court or a court in another state has jurisdiction in parental responsibilities proceedings. Id. For UCCJEA purposes, a court in another country is treated as though it were a court in another state. See § 14–13–104(1), C.R.S.2011; see also Bellew v. Larese, 288 Ga. 495, 706 S.E.2d 78, 80 (2011); Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1, 7 (2008); cf. Jeffers, 992 P.2d at 691 (decided under the Uniform Child Custody Jurisdiction Act (UCCJA), which preceded the UCCJEA).

¶ 20 Under section 14–13–206(1), C.R.S.2011, a Colorado court may not exercise jurisdiction, except on a temporary emergency basis, if proceedings have been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA, unless those proceedings have been terminated or stayed because Colorado is a more convenient forum. See People in Interest of M.C., 94 P.3d 1220, 1223 (Colo.App.2004).

¶ 21 A court where a child is located may exercise temporary emergency jurisdiction under section 14–13–204(1), C.R.S.2011, to protect the child from threatened mistreatment or abuse. An...