In re J.N., Court of Appeals No. 19CA1425

• Docket Number: Court of Appeals No. 19CA1425
• Decision Date: 30 June 2022
• Citation: 518 P.3d 788,2022 COA 69
• Parties: In the MATTER OF the Petition of J.N., Petitioner-Appellant, IN the INTEREST OF C.G., a Child, and Concerning Jefferson County Department of Human Services, Respondent-Appellee.
• Court: Colorado Court of Appeals

518 P.3d 788

2022 COA 69

In the MATTER OF the Petition of J.N., Petitioner-Appellant, IN the INTEREST OF C.G., a Child, and Concerning Jefferson County Department of Human Services, Respondent-Appellee.

Court of Appeals No. 19CA1425

Colorado Court of Appeals, Division III.

Announced June 30, 2022

Bachus & Schanker, L.L.C., J. Kyle Bachus, Denver, Colorado; The Kane Law Officer, L.L.C., Bastion T. Kane, Lakewood, Colorado, for Petitioner-Appellant

Kimberly S. Sorrells, County Attorney, Eric T. Butler, Deputy County Attorney, Rebecca P. Klymkowsky, Assistant County Attorney, Golden, Colorado, for Respondent-Appellee

Opinion by JUDGE HARRIS

¶ 1 Father, J.N., appeals the juvenile court's order denying his C.R.C.P. 60(b) motion to vacate orders entered in the dependency and neglect proceeding regarding his child, C.G. We reverse the order and remand the case to the juvenile court for further proceedings.

I. Procedural History

A. The Dependency and Neglect Proceeding

¶ 2 On March 26, 2006, mother was arrested for child abuse. At the time, she was with her two children—C.G. (the biological child of father) and C.G.’s half-brother (the biological child of Jon Phillips). A magistrate granted temporary protective custody of the children to the Jefferson County Division of Children, Youth and Families (Division).

¶ 3 Two days later, the Division filed a petition for temporary legal custody, naming mother, Phillips, and "John Doe" as respondents. At a shelter hearing held that same day, the juvenile court magistrate granted the motion.

¶ 4 The next day, March 29, 2006—three days into the case—the Division moved for an order authorizing service on father and Phillips by publication. As grounds for the motion, the Division stated only that

the above-named persons have no residence within Colorado and his [sic] place of residence is not known or the above-named persons can not [sic] be found within Colorado after due diligence, the subject children are present in Colorado and the Colorado Children's Code, the Colorado Rules of Juvenile Procedure and the Colorado Rules of Civil Procedure allow jurisdiction to be conferred on the court under these circumstances through the requested service by publication.

The motion did not describe the Division's efforts to obtain personal service; nor did it assert facts to establish that such efforts would have been futile.

¶ 5 Nonetheless, the magistrate granted the motion, finding that "due diligence ha[d] been used to obtain personal service within Colorado or that efforts to obtain personal service within Colorado would have been to no avail." The magistrate did not explain the basis for the ruling.

¶ 6 The summons was published on April 6, 2006, in the High Timber Times, a local newspaper in Conifer, Colorado.

¶ 7 Father did not appear at any subsequent hearings. Phillips, however, appeared at all subsequent hearings, as he was notified of the proceedings by a caseworker.

¶ 8 In May 2006, the magistrate gave Phillips temporary legal custody of both children under the protective supervision of the Division. The permanency plan for C.G. (the child) was then changed to adoption by a nonrelative.

¶ 9 In October 2006, the Division moved for a default judgment adjudicating the child dependent and neglected as to father, still identified as "John Doe." The motion, which noted that father had been served by publication in April, included an affidavit from the ongoing caseworker, Alysse Nemecek. Nemecek averred that father "is not an infant, not in the military, not incompetent, and not an officer or agent of the State of Colorado." See C.R.C.P. 121, § 1-14(1)(c) ("The affidavit [attesting to the defendant's status] must be executed by the attorney for the moving party on the basis of reasonable inquiry."). Nemecek did not provide any basis for her statement or attest to a reasonable inquiry.

¶ 10 On November 1, 2006, the magistrate adjudicated the child dependent or neglected as to father by default. The magistrate declined to adopt a treatment plan for father, citing section 19-3-508(1)(e)(I), C.R.S. 2021, which applies when a child has been abandoned—meaning, despite "reasonable efforts to identify and locate the parent," the identity of the parent remains unknown for three months or more, see § 19-3-604(1)(a)(II), C.R.S. 2021. The magistrate did not describe any efforts by the Division to identify and locate father.

¶ 11 At a hearing on January 11, 2007, the magistrate allocated parental responsibilities for both children to Phillips and relieved the Division of protective supervision. In February, after the written allocation of parental responsibilities order was certified in a domestic case, see § 19-1-104(6), C.R.S. 2021, the juvenile court terminated the dependency and neglect proceeding.

¶ 12 On May 6, 2007, the child died. Phillips was convicted of first degree murder of the child and child abuse resulting in death. See People v. Phillips , 2012 COA 176, ¶ 42, 315 P.3d 136.

B. The C.R.C.P. 60(b) Proceeding

¶ 13 Following the child's death, father, mother, and the personal representative of the child's estate initiated a federal court action against multiple parties, including the Division.

¶ 14 In June 2014, father moved for C.R.C.P. 60(b) relief in the dependency and neglect proceeding, seeking to vacate certain of the court's orders. Father asserted that the orders were void for lack of proper service, see C.R.C.P. 60(b)(3), and had been obtained through fraud on the court, see C.R.C.P. 60(b)(2).

¶ 15 The juvenile court dismissed father's motion as moot because the child had died. On appeal, a division of this court reversed the order and remanded the case for a determination on the merits. See People in Interest of C.G. , 2015 COA 106, ¶ 2, 410 P.3d 596. The division concluded the case was not moot because the orders are being used to bar father from pursuing relief in federal court. Id. at ¶¶ 30–31.

¶ 16 On remand, the juvenile court held a half-day hearing and admitted deposition testimony from the federal action. The evidence established the following:

• A Division intake caseworker opened the dependency and neglect case on March 28, 2006.

• The intake caseworker did not recall "doing any work at all to locate" father. If she had made any efforts, she would have documented them, because that "was a requirement of the job."

• The intake caseworker agreed that her transfer form indicated that she had not conducted a diligent search for father.

• The intake caseworker was the only assigned caseworker on March 29, 2006, when the assistant county attorney filed a verified motion for service by publication. The intake caseworker did not know the basis for the representation in the verified motion that father could not "be found within Colorado after due diligence."

• The Division's intake supervisor signed the verified motion on behalf of the Division. When she signed the verification, she had "no information" on whether a diligent search for father had been conducted.

• The intake supervisor relied on the caseworker to "provide the factual basis" for the verification.

• The assistant county attorney acknowledged that "prior to seeking permission to serve by publication ... the state is required to exercise due diligence in attempting to locate the parent."

• When she signed the verified motion to serve father by publication, the assistant county attorney did not know what efforts the Division had made to locate father. As a general matter, she does not ask the caseworkers about "what [has been] done to locate the parent."

• Nemecek, the ongoing caseworker, became involved in the case on April 6, 2006, the date father was served by publication. She agreed that "somebody on behalf of the county needed to make a diligent search for" father, but she did not undertake a search, nor did she attempt to identify the "actual name of the biological father." She could not think of anyone at the Division, with the possible exception of the intake caseworker, who had "looked for" father. (The intake caseworker did not look for father.)

• No one from the Division spoke to mother until April 6, the date the notice was published.

¶ 17 The juvenile court denied the C.R.C.P. 60(b) motion on the grounds that it was untimely and, in the alternative, that father had not established either a lack of proper service or fraud on the court.

II. Father's C.R.C.P. 60(b) Motion

¶ 18 On appeal, father contends that the juvenile court erred by concluding that (1) the Division properly served him by publication; (2) the Rule 60(b) motion was untimely; and (3) the Division did not commit fraud on the court. Because we agree with father's first two contentions, we do not address the third.

A. Service by Publication

¶ 19 Father argues that because the Division failed to comply with the statutory prerequisites to service by publication, he did not receive proper notice of the proceedings, resulting in a due process violation, and the juvenile court's orders and judgments are therefore void as to him.

¶ 20 The burden to establish that a judgment is void is on the moving party, who must demonstrate the invalidity of the judgment by clear and convincing evidence. Minshall v. Johnston , 2018 COA 44, ¶ 12, 417 P.3d 957. We review de novo whether a judgment is void under C.R.C.P. 60(b)(3) based on improper service of process. See Goodman Assocs., LLC v. WP Mountain Props., LLC , 222 P.3d 310, 314 (Colo. 2010).

1. The Division's Verified Motion for Service by Publication Was Procedurally Deficient

¶ 21 In dependency and neglect proceedings, notice shall be by personal service. § 19-3-503(7), C.R.S. 2021. However, when the person to be served "cannot be found within the state after due diligence," service may be by publication "pursuant to rule 4(g) of the Colorado rules of civil procedure." § 19-3-503(8)(b).

¶ 22 Under C.R.C.P. 4(g), a motion for service by publication must be verified and must include the following information:

• the facts authorizing service

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