In re E.R.S., Court of Appeals No. 17CA0956

Citation452 P.3d 174
Case DateMarch 21, 2019
CourtCourt of Appeals of Colorado

Maxine LaBarre-Krostue, Grand Lake, Colorado, for Petitioner-Appellee

Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado, for Respondent-Appellant


¶1 This is a stepparent adoption proceeding. J.H., mother, and J.D.S., father, had a child, I.E.H., in 2008. Mother appeals the juvenile court’s judgment terminating her legal relationship with the child. But, before we get to mother’s substantive contentions, we must decide a preliminary question — Can we review an order that terminates parental rights in anticipation of a stepparent adoption when the court has not finalized the adoption? We answer this question "yes," concluding that the order is final and that we can review it on appeal.

¶2 We next turn to mother’s substantive contentions. We first conclude that the juvenile court in this case had jurisdiction to resolve the petition for stepparent adoption even though the child was subject to an existing parenting time order in a paternity proceeding.

¶3 Second, we decline to address a series of issues that mother raises on appeal but that she did not preserve in the juvenile court.

¶4 Third, we deny mother’s assertion that her counsel was ineffective.

¶5 Fourth, we reject mother’s contention that the juvenile court’s findings were insufficient.

¶6 We therefore affirm the juvenile court’s judgment terminating mother’s legal relationship with the child.

I. Background

¶7 Mother was wounded

while serving in the military. She suffers from post-traumatic stress disorder.

¶8 She was the child’s primary caregiver when he was born. When the child was about seventeen months old, father initiated a paternity proceeding. After father proved that he was the child’s father, the juvenile court adopted a parenting plan that gave father three nights of parenting time each week.

¶9 In May 2013, mother agreed that the child should live full-time with father so that she could have the opportunity to rebuild her life. Five months later, mother and father formalized this agreement by filing a written stipulation in the paternity case. It stated that "[m]other shall have parenting time upon agreement of the parties once she is able to regain her stability with housing and employment." But it also contained two provisions that are central to our analysis.

¶10 One provision encouraged mother to maintain her relationship with the child and to spend time with him as (1) her schedule allowed; and (2) as mother and father would agree. The second provision obligated mother to pay $569.38 each month in child support.

¶11 The juvenile court adopted the stipulation. But, by 2014, mother had not paid any child support, so the court activated an income assignment to collect it. There was no further action in the paternity case.

¶12 In August 2016, the child’s stepmother, E.R.S., filed a petition to adopt the child and to terminate mother’s parental rights. The juvenile court opened an adoption case, which was separate from the paternity case. Mother filed an objection to the petition in late November.

¶13 The juvenile court held a hearing in the adoption case over three days from January to April 2017. At the end of the hearing, the court decided that mother had abandoned the child and that she had not demonstrated sufficient cause to excuse her breach of her obligation to pay child support. The court then determined that it was in the child’s best interests to terminate mother’s parental rights and to allow stepmother to adopt him.

¶14 But the court did not issue an adoption decree. It instead continued the case to hold a final hearing at which it would issue the decree. It also said that, if mother appealed the order terminating her rights and allowing stepmother to adopt the child — which we shall refer to simply as the "termination order" — it would wait to hold the final hearing until after the appeal was resolved.

¶15 Mother then filed this appeal in the adoption case. Because it looked like the termination order would not be final until the juvenile court issued the adoption decree, we stayed the appeal to allow stepmother to ask the juvenile court to issue one. But mother objected to the stay. We therefore recertified the appeal, and we ordered mother and stepmother to file simultaneous briefs addressing the question whether the termination order was final.

II. Finality of Termination Order

¶16 We must decide, as an initial matter, whether the termination order is final even though the juvenile court did not issue an adoption decree. We conclude that the order was final and, therefore, it is appealable.

¶17 Section 19-1-109, C.R.S. 2018, governs appeals from proceedings under the Colorado Children’s Code, including stepparent adoptions. Referencing section 13-4-102(1), C.R.S. 2018, section 19-1-109(1) states that a party may appeal "any order, decree, or judgment." Section 13-4-102(1) adds that the court of appeals has initial jurisdiction over appeals from final judgments.

¶18 Applying this framework, a division of this court concluded in People in Interest of S.M.O. , 931 P.2d 572, 573 (Colo. App. 1996), that the statutory scheme for stepparent adoption did not allow for an appeal of the interlocutory determination that a child was available for adoption, even when the determination was accompanied by an order that terminated parental rights. The division reasoned that a stepparent adoption proceeding, like all other adoption proceedings, becomes final when the court enters a final adoption decree. This is so because a parent retains rights and obligations concerning the child until the decree severs them. Id.

¶19 In 1997, however, the legislature, in the wake of S.M.O. , added subsection (2)(b) to section 19-1-109. Ch. 254, sec. 7, § 19-1-109(2)(b), 1997 Colo. Sess. Laws 1433. Subsection (2)(b) states that an order terminating or declining to terminate the legal relationship between a parent and a child is a final and appealable order. Id.

¶20 Our supreme court recently considered the interplay between section 19-1-109(1) and (2) in the context of a dependency and neglect proceeding. See People in Interest of R.S. v. G.S. , 2018 CO 31, ¶¶ 14-29, 416 P.3d 905. The court explained that subsection (1) authorizes the appeal of any final order in a dependency and neglect proceeding. Id. at ¶ 19. It added that subsection (2)(b) does not limit the types of orders that can be appealed, but, rather, it authorizes appeals from certain additional orders beyond those authorized by subsection (1). Id. In other words, subsection (1) codifies a general rule of finality, and subsection (2)(b) provides an exception to that general rule by authorizing the appeal of specified termination orders that would not otherwise be final. Id. at ¶ 20.

¶21 As a result of the change in the law, we conclude that the juvenile court’s order terminating mother’s parental rights in this stepparent adoption proceeding was final for appellate purposes even though the court had not issued the adoption decree.

III. Jurisdiction

¶22 Mother contends that the juvenile court did not have subject matter jurisdiction to terminate her parental rights because the court order in the paternity case allowed her to resume parental responsibilities when she was ready. We disagree. Instead, we conclude, for the following reasons, that the juvenile court had jurisdiction to terminate her parental rights to the child.

¶23 Whether a juvenile court has subject matter jurisdiction is a question of law that we review de novo. See People in Interest of M.S. , 2017 COA 60, ¶ 14, 413 P.3d 287.

¶24 Subject matter jurisdiction concerns a court’s authority to decide a legal question. In re Support of E.K. , 2013 COA 99, ¶ 8, 410 P.3d 480. Adoption proceedings are governed by the Children’s Code. The Children’s Code expressly states that, when a district court has issued an order awarding custody or an order allocating parental responsibilities in a dissolution of marriage action or in another proceeding, and the district court assumes continuing jurisdiction over the case, then a juvenile court has jurisdiction in a case involving the same child if she comes within the jurisdiction of the juvenile court. § 19-1-104(5), C.R.S. 2018.

¶25 A juvenile court has exclusive original jurisdiction in cases involving adoptions and cases involving the termination of parental rights. § 19-1-104(1)(d), (g) ; see also In re Adoption of K.L.L. , 160 P.3d 383, 385 (Colo. App. 2007). In other words, a juvenile court has jurisdiction over an adoption case even though a district court may have a parenting time issue before it in a pending dissolution of marriage case. See D.P.H. v. J.L.B. , 260 P.3d 320, 327 (Colo. 2011).

¶26 In this case, the juvenile court — as opposed to the district court — had continuing jurisdiction over the child via the paternity proceeding. Nonetheless, the juvenile court’s ongoing jurisdiction over the child through the parenting time order in the paternity case did not affect its original jurisdiction under section 19-1-104(1)(g) to hear the adoption case.

¶27 Mother relies on In re D.I.S. , 249 P.3d 775, 781-82 (Colo. 2011), for the proposition that the juvenile court lacked jurisdiction to consider the stepparent adoption. She adds that, under D.I.S. , the juvenile court should have enforced the stipulated parenting time agreement.

¶28 True, our supreme court concluded in D.I.S. that a fit parent’s decision to seek termination of a guardianship and to regain the care, custody, and control of his or her child is presumed to be in the child’s best interests. Id. at 779. It reasoned that a parent’s decision to place a child under the care of a third party, for the purposes of furthering the child’s best interests, did not result in the...

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6 cases
  • People ex rel. E.Q.
    • United States
    • Colorado Court of Appeals of Colorado
    • July 30, 2020
    ...juvenile court has subject matter jurisdiction is a question of law that we review de novo. In re Petition of E.R.S. , 2019 COA 40, ¶ 23, 452 P.3d 174. ¶ 10 Subject matter jurisdiction concerns a court's authority to decide a particular matter. Id. at ¶ 24 ; see also In re Support of E.K. ,......
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  • In re M.M.V.
    • United States
    • Colorado Court of Appeals of Colorado
    • June 11, 2020
    ...both the decree and termination judgment are issued in the same case, they are separate orders. See In re E.R.S. , 2019 COA 40, ¶ 21, 452 P.3d 174 (concluding that the juvenile court's order terminating mother's parental rights in a stepparent adoption proceeding was final for appellate pur......
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