P. F. M. v. District Court In and For Adams County

• Decision Date: 01 April 1974
• Docket Number: No. 26316,26316
• Citation: 184 Colo. 393,520 P.2d 742
• Parties: P.F.M., Petitioner, v. DISTRICT COURT IN AND FOR the COUNTY OF ADAMS and the Honorable James J. Delaney, one of the judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 742

520 P.2d 742

184 Colo. 393

P.F.M., Petitioner, v. DISTRICT COURT IN AND FOR the COUNTY OF ADAMS and the Honorable James J. Delaney, one of the judges thereof, Respondents.

No. 26316.

Supreme Court of Colorado, En Banc.

April 1, 1974.

Sheila H. Meer, Brighton, for petitioner.

Ronald M. Andersen, Denver, Guardian Ad Litem for E.O. and T.O.

S. Morris Lubow, Brighton, Michael F. Swanson, Commerce City, for Adams County.

KELLEY, Justice.

This is an original proceeding brought pursuant to C.A.R. 21. Petitioner alleges that respondent Court is proceeding without or in excess of its jurisdiction in that her children have been removed from her custody and she has not been afforded notice and a detention hearing as required by 1971 Perm.Supp., C.R.S.1963, 22--2--3(2). We issued a rule to show cause which we now make absolute.

On August 29, 1973, officers of the Northglenn Police Department took physical custody of petitioner's two children E. O., age four and one-half, and T.O., age two and one-half. The petition in dependency and neglect which was subsequently filed in respondent Court alleged that the children were found alone at 4:00 a.m. on August 29, 1973; that the home condition was unsanitary, and that the whereabouts of the children's parents was unknown. That same day physical custody of the children was transferred to the Adams County Department of Social Services, and the children were placed in foster care. On August 30, 1973, respondent Court entered an Ex parte order placing custody of E.O. and T.O. in the Adams County Department of Social Services. On August 31, 1973, the above mentioned petition in dependency and neglect was filed. At no time in the proceedings below was petitioner advised that she had a right to a hearing on the issue of the temporary removal of her children from her custody, and such a hearing was never held.

On November 26, 1973, petitioner filed a motion to vacate the Ex parte order of August 30, 1973, on the grounds that she had not been advised of and granted the hearing required by 1971 Perm.Supp., C.R.S.1963, 22--2--3(2). The motion was denied, and petitioner sought relief here.

Article 2 of the Children's Code, 1967 Perm.Supp., C.R.S.1963, 22--2--1 et seq., sets out the conditions under which the state may take a child into temporary custody pending an adjudication on the merits of a particular case. Article 2 also sets out procedural guidelines to be followed when a child is removed from the home on a temporary basis. These procedural safeguards were established to curb possible abuse inherent in informal adminstrative practices in an area involving both the parents' and the child's rights. See General Comments to Article 2, Proposed Colorado Children's Code, Colorado Legislative Council Research Publication No. 111 (1966).

1971 Perm.Supp., C.R.S.1963, 22--2--3(2) provides:

'When a child is placed in a detention facility or in a shelter facility designated by the court, the law enforcement official taking the child into custody shall promptly so notify the court. He shall also notify a parent or legal guardian, or, if a parent or legal guardian cannot be located within the county, the person with whom the child has been residing, and inform him of the right to a prompt hearing to determine whether the child is to be detained further. The court shall hold such detention hearing within forty-eight hours, excluding Saturdays, Sundays, and court holidays, unless waived in writing by the child's attorney, parent, guardian, or an adult person with whom the child has been residing.' (Emphasis added.)

Respondents' argument that a detention hearing is not required where a petition in dependency and neglect has been filed is based upon the distinction between 'detention,' as defined in 1967 Perm.Supp., C.R.S.1963, 22--1--3(12), and 'shelter,' as defined in 1967 Perm.Supp., C.R.S. 1963, 22--1--3(13). Respondents argue that since 'detention' is defined to be temporary care in physically Restricting facilities, and 'shelter' is defined as temporary care in physically Unrestricting facilities, the 'detention hearing' called for in the statute need only be held when a child is placed in detention. Thus, respondents contend that since the children were placed in a Shelter facility, as distinguished from a Detention facility, the requirement that a 'detention hearing' be held within 48 hours is not applicable.

Respondents would thus limit the application of the mandatory 48-hour hearing requirement of section 22--2--3(2) to quasicriminal delinquency or...