People ex rel. B.H. v. D.H.
| Decision Date | 01 June 2021 |
| Docket Number | Supreme Court Case No. 20SC498 |
| Citation | 488 P.3d 1026 |
| Court | Colorado Supreme Court |
| Parties | The PEOPLE of the State of Colorado, IN the INTEREST OF Minor Child: B.H.; and B.H., Minor Child, Petitioners, v. D.H., Respondent. |
Attorneys for Petitioner the People of the State of Colorado: Arapahoe County Attorney's Office, Kristi Erickson, Assistant County Attorney, Michael Valentine, Assistant County Attorney, Aurora, Colorado
Attorneys for Petitioner B.H.: Bettenberg, Maguire & Associates, LLC, Alison A. Bettenberg, Guardian ad litem, Sheena Knight, Guardian ad litem, Centennial, Colorado
Attorneys for Respondent D.H.: The Saroyan Law Firm, L.L.C., Zaven T. Saroyan, Colorado Springs, Colorado
¶1 Shortly after B.H.'s parents brought him to Colorado, the state placed the two-year-old with a foster family. S.L.C. ("mother") was experiencing homelessness and abusing alcohol, and D.H. ("father") was struggling with mental health issues and continually returned B.H. to mother. Mother visited B.H. the day of the removal order and then never again. Father made early progress with his treatment plan, but then threatened to kill his lawyer, B.H.'s lawyer, and a caseworker after father lost his job and housing. The day after the threats, father was arrested with a gun, ammunition, body armor, and methamphetamine in his car.
¶2 This opinion, issued the same day as People in Interest of S.A.G., 2021 CO 38, 487 P.3d 67, resolves father's appeal from the termination of his parental rights. Both cases interpret the Uniform Child-custody Jurisdiction and Enforcement Act ("UCCJEA"). Having granted certiorari review under C.A.R. 50, in this instance, we review the judgment of the district court.
¶3 Unlike S.A.G. , this case concerns the jurisdictional effect of a potential prior child-custody determination from a different state. We hold that if an out-of-state court issued an order returning physical custody of a child to the parents, that satisfies the UCCJEA's definition of "child-custody determination." So, a Colorado court seeking to modify such an order must follow the UCCJEA's procedures for acquiring modification jurisdiction. Since the record suggests that such an order exists and the district court didn't acquire jurisdiction to modify it, we vacate the termination order and remand the case to the district court for further jurisdictional factfinding.
¶4 This case also involves the separate issue of the constitutional and statutory protections that Colorado owes to indigent parents when it seeks to terminate their parental rights; namely, the right to appointed counsel and the district court's duty to eliminate less drastic alternatives to termination. We conclude that the district court did not violate father's due process rights by declining to appoint him a third attorney. Similarly, we conclude that the district court did not violate father's statutory right to appointed counsel because father had impliedly waived it through his obstreperous and dilatory conduct. Finally, we see no abuse of discretion by the district court when it concluded that there were no less drastic alternatives to termination.
¶5 In July 2018, the Arapahoe County Department of Human Services ("Department") learned that mother was experiencing homelessness and had been driving drunk with her two-year-old son, B.H.
¶6 In August 2018, the Arapahoe County District Court issued a verbal removal order for B.H., citing those issues as well as concerns about father.
¶7 The Department believed that father had mental health issues and had repeatedly given B.H. to mother despite her inability to care for him. The Department placed B.H. with a foster family and filed a petition alleging that he was dependent or neglected. See § 19-3-502, C.R.S. (2020).
¶8 The Department wasn't the first child-welfare agency to take B.H. from his parents. In June 2016, he was the subject of an Indiana dependency and neglect proceeding. B.H. lived with an Indiana foster family for almost a year before he was reunited with his parents in April 2017. The record is silent on the details of this proceeding.
¶9 Record evidence suggests that mother and B.H. moved from Indiana to Colorado in April 2018 and that father followed in May. Father asserts that he came to Colorado only temporarily, pointing to his November 2018 statement that "[his] focus is getting through this process, [to] get [his] child home and leave the state of Colorado and return home to—to [their] home in Indiana." The record also contains a statement from father's mother that he has a home and car in Indiana.
¶10 The People and B.H.'s guardian ad litem ("GAL") doubt the April and May arrival dates, claiming that parents' other Colorado dependency and neglect cases for different children suggest that they reached the state earlier. The People and the GAL also argue that both parents moved here permanently, citing, among other evidence, father's Colorado employment and the Colorado address that he listed on his application for court-appointed counsel.
¶11 In September 2018, father admitted to the district court that B.H. had been without proper care, so the court adjudicated B.H. dependent and neglected. See § 19-3-505(7)(a), C.R.S. (2020). The court adopted a treatment plan that required father to maintain housing and employment, to develop a positive relationship with B.H. through visitation, to undergo a psychological evaluation and complete any recommended treatment, and to cooperate with the Department. See § 19-3-508(1)(e)(I), C.R.S. (2020).
¶12 Father notched some early successes with his plan, but he lost his job and housing around January 2019 and disclosed that he was sneaking into a drug house at night to sleep. He began to behave erratically in front of B.H., causing his son to become dysregulated for hours after their visits. When the parenting coach intervened, father reportedly confronted her aggressively. Father began to express suicidal thoughts and then, in April 2019, he threatened to kill his court-appointed lawyer, the Department caseworker, and the GAL. The day after those threats, the police arrested him and found a gun, ammunition, body armor, and methamphetamine in his car. The court suspended visits due to safety concerns, and the visits never resumed because father didn't attend court-ordered counseling. In September 2019, the Department filed a motion to terminate his parental rights. See § 19-3-602, C.R.S. (2020).
¶13 The court allowed father's first counsel to withdraw after the death threat and appointed a second attorney with whom father refused to cooperate, as father alleged that the lawyer was secretly working for father's mother. Father attempted to fire this lawyer in August 2019, but the lawyer didn't communicate that request to the court. Father didn't have an opportunity to tell the court himself because he had been arrested on drug charges right before his September hearing, and, while in custody, he hadn't been transported to court for his November pre-trial conference for the termination hearing.
¶14 At the beginning of the termination hearing, father passed his lawyer a note reiterating his desire to discharge him. The lawyer showed the note to the court, and the court characterized the situation as a mere "disagree[ment]" that didn't rise to the level of an ethical conflict meriting a new attorney. Nonetheless, the court organized a closed hearing before a different judge so that father could make his case without affecting the termination hearing.
¶15 At the closed hearing, father told the other judge that he didn't "have a problem" with his lawyer but that they had "never clicked" and he wanted a new attorney appointed. The judge found that father had been "unequivocal about his intent to discharge" and allowed it. The judge told father that "we're going to go to number three," that he "believe[d]" that the trial judge would appoint another attorney, that he'd convey that request to her, and that she'd "pick up from there."
¶16 When the termination hearing resumed, the original, presiding court refused to appoint a replacement attorney, ruling that father "does not have a right to have a third court-appointed attorney when it has been his actions that have caused the numerous attorneys to have to withdraw." The court found that threatening the first lawyer was an attempt to "play the system." Marking father's note as an exhibit, the court also found that father had "create[d] [his] own conflict of interest" with the second attorney. Finally, the court found that "this was an attempt to delay the proceedings," so denying father a third counsel was "in the best interest of the minor child ... and potentially other court-appointed attorneys."
¶17 After two days of testimony, the court concluded that father hadn't complied with any aspect of his treatment plan:
¶18 The court found that father was unfit because he wasn't willing and able to meet B.H.'s needs despite the Department's reasonable efforts to help him. The gap between father's capacity and B.H.'s needs was especially large because B.H. has a developmental...
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