L.G. v. People, 93SC687

• Decision Date: 21 February 1995
• Docket Number: No. 93SC687,93SC687
• Citation: 890 P.2d 647
• Parties: L.G., Petitioner, v. The PEOPLE of the State of Colorado, Respondent. In the Interest of K.G., a Child, and Concerning M.G.
• Court: Colorado Supreme Court

Page 647

890 P.2d 647

L.G., Petitioner, v. The PEOPLE of the State of Colorado, Respondent In the Interest of K.G., a Child, and Concerning M.G.

No. 93SC687.

Supreme Court of Colorado En Banc.

Feb. 21, 1995.

Rehearing Denied March 20, 1995.

The Law Office of John B. Ciccolella, P.C., Colorado Springs, for petitioner.

Office of County Atty., El Paso County, Beth Whittier, County Atty., Judith L. Hufford, Chief Deputy County Atty., Colorado Springs, for respondent.

The Law Office of Elizabeth Tormoen Hickey, Elizabeth Tormoen Hickey, Colorado Springs, guardian ad litem for K.G.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to consider the court of appeals' opinion in People in the Interest of K.G., 876 P.2d 1 (Colo.App.1993). The court of appeals held that the Colorado juvenile court (the juvenile court), acting on a petition in dependency and neglect filed by the State of Colorado in the interest of K.G. (the child or K.G.), was without jurisdiction, under 28 U.S.C. § 1738A (1988) (the Parental Kidnaping Prevention Act of 1980 ¹ (PKPA)), to modify the visitation rights of L.G. (the father or L.G.), which were provided for as part of a divorce decree in Oklahoma.

We find that the juvenile court, acting in the best interests of the child on a State-initiated petition in dependency and neglect, had subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act, codified in Colorado at section 14-13-101 to -126, 6B C.R.S. (1987 & 1994 Supp.) (UCCJA), and under the dependency and neglect provisions of the Colorado Children's Code, ² §§ 19-3-101 to -703, 8B C.R.S. (1994 Supp.) (the Children's Code), to issue orders designed to protect the safety of K.G., even if those orders limited the father's visitation rights. We also find that the PKPA does not apply to proceedings in dependency and neglect, and does not therefore preempt state law. Accordingly, we reverse.

I.

L.G. and M.G. (the mother or M.G.) were married in Oklahoma City, Oklahoma, in August 1985, and on March 3, 1987, L.G. and M.G. had a daughter, K.G. In February 1990, L.G. and M.G. divorced in Oklahoma, and in March 1990, M.G. and K.G. moved to Monument, Colorado, in El Paso County. Since March of 1990, both M.G. and K.G. have been residents of Colorado.

K.G. visited her father in Oklahoma during February 1991. When she returned to Colorado, K.G. made some complaints to her mother which prompted her mother to contact K.G.'s pediatrician. On March 1, 1991, K.G. was examined by her pediatrician. After the examination, the pediatrician had a conversation with K.G. which led him to suspect that K.G. had been sexually abused. As he was required to do under section 19-3-304, 8B C.R.S. (1994 Supp.), the pediatrician contacted the El Paso County Department of Social Services (the DSS) to report his suspicions.

A. The Oklahoma Proceedings

On February 9, 1990, the Oklahoma County District Court (Oklahoma court) entered a divorce decree, dissolving the marriage of L.G. and M.G. In the decree, the Oklahoma court awarded exclusive care, custody, and control of K.G. to the mother, subject to L.G.'s rights of visitation. The court also granted the mother permission to move to Colorado with K.G., for the purpose of establishing permanent residence there. The divorce decree included a visitation schedule, allowing L.G. visitation with K.G., in Oklahoma, one week per month until K.G. started kindergarten, and thereafter providing for periodic visitation on holidays and during the summer school recess.

On April 11, 1991, the mother filed a motion in the Oklahoma court, seeking to terminate the father's visitation rights during the investigation of the sexual abuse charges. The mother alleged that the father had been sexually abusive to K.G. during K.G.'s visit in February, and that both the Oklahoma City and the Colorado Springs Police Departments were investigating the charges.

Later, on June 14, 1991, the mother filed a motion in the Oklahoma court requesting the Oklahoma court to decline jurisdiction in favor of Colorado. In the motion, the mother requested the court to decline jurisdiction, on the ground that Colorado was the more appropriate forum.

The Oklahoma court held a hearing on June 14, 1991, to consider the mother's motion for termination of the father's visitation rights, and the mother's request that the Oklahoma court transfer the case to Colorado. The court thereafter entered a written order finding that it retained continuing jurisdiction of the matter, and denied the mother's motion to decline jurisdiction in favor of Colorado. The Oklahoma court did not rule on the mother's motion to terminate visitation, but instead set her motion for a later hearing. The Oklahoma court ruled that, pending the later hearing, the father's visitations with K.G. were to be supervised, and K.G. was not to sleep overnight at her father's house. ³ Additionally, the court ordered L.G. and M.G. to undergo full psychological examinations by different clinical psychologists, both separately and with K.G. present. Upon completion of the exams, the court ordered the psychologists to confer and submit a joint recommendation based on their findings to the Oklahoma court, the Colorado juvenile court, and the parties.

On June 21, 1991, the mother filed a "Motion for Court Instruction" with the Oklahoma court. The mother maintained that the Oklahoma order of June 14, 1991, which allowed the father to have supervised visitation, was in direct conflict with a Colorado order of June 20, 1991, which forbade K.G. from leaving Colorado, and forbade visitation by the father except during therapy sessions. The mother requested the Oklahoma court to confer with the juvenile court and to come to some resolution on the jurisdictional issue.

Nearly a week later, on June 27, 1991, the parties' attorneys met with Oklahoma Judge Henderson for a special hearing. The mother's counsel asked Judge Henderson to reconsider his decision not to transfer the case to Colorado, and in the alternative to vacate that part of his order providing for supervised visitation. The Oklahoma court denied those motions, and held the mother's motion for court instruction in abeyance.

On July 10, 1991, the father filed several motions in the Oklahoma court, on the ground that the mother had not complied with the Oklahoma order allowing the father supervised visitation with K.G. Specifically, the father filed an application for a contempt citation against M.G. (upon which the court ordered M.G. to appear on July 31, 1991, and to show cause why she should not be jailed for contempt of court), a motion for temporary custody of K.G., and a motion to change custody of K.G. to the father.

On November 18, 1991, the Oklahoma court held a motions hearing at which both the mother and father presented evidence. The father and mother, as well as K.G.'s paternal grandparents and the parties' counsel were present at the hearing. In an order issued on November 27, 1991, the Oklahoma court found that the mother had failed to establish her burden of proof with respect to her motion to terminate the father's visitation. Accordingly, the court vacated its temporary order of June 14, 1991, which had ordered that the father's visitation be supervised. The court also refused to modify custody in favor of the father, and released the mother from the previously issued contempt order. ⁴

B. The Colorado Proceedings

Meanwhile, the DSS, acting on the results of its investigation of sexual abuse of K.G., filed a motion on April 18, 1991 for Temporary Custody, requesting that the court place K.G. in the DSS's protective supervision for ninety days, and that the court continue physical custody in the mother, pursuant to a stipulation agreement reached between the DSS's case worker, a county attorney, and the mother. The stipulation agreement also provided that the father was to have no contact with K.G. "except in later arranged therapy." On the same day, after a hearing on the motion for Temporary Custody, the juvenile magistrate granted the DSS's motion and issued an order for protective supervision of K.G. for ninety days. The juvenile court also appointed a guardian ad litem for the child. ⁵

On May 1, 1991, the DSS, through the office of the county attorney, filed a petition in dependency and neglect with the juvenile court, in the interest of K.G. ⁶ In the petition, the DSS alleged that K.G. was dependent and neglected, under section 19-3-102, 8B C.R.S. (1994 Supp.), as a result of the father's sexual abuse of K.G. The juvenile court found that the filing of the petition was in the best interests of K.G., directed the clerk of the court to issue summons to all parties involved, and set a hearing on the petition for June 10, 1991.

At the June 10, 1991 hearing, and later in a written motion to dismiss, the father entered a limited appearance through his attorney for the purpose of challenging Colorado's jurisdiction. The father argued that the juvenile court was without personal jurisdiction over him, and that Oklahoma had exclusive jurisdiction on the issue of custody of K.G., under the PKPA.

The juvenile court issued its order on June 17, 1991. The court found that it had jurisdiction over the case, denied the father's motion to dismiss, and continued its previous protective order. The court also ruled that "a copy of this Court's order prohibiting contact between the subject child and the Respondent, [L.G.], shall be served on said Respondent."

The father then filed a motion in the juvenile court for review of the juvenile magistrate's ruling that Colorado had jurisdiction over K.G. While that motion for review was pending, on June 20, 1991, the juvenile court held a temporary custody hearing. At the hearing, Juvenile Magistrate Walter indicated that she had spoken with the Oklahoma judge handling the proceedings there, Judge Henderson. Magistrate Walter said that Judge...