People ex rel. C.G., Court of Appeals No. 14CA2172

CourtCourt of Appeals of Colorado
Citation410 P.3d 596
Docket NumberCourt of Appeals No. 14CA2172
Parties The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF C.G., and Concerning J.N. Respondent–Appellant.
Decision Date30 July 2015

410 P.3d 596

The PEOPLE of the State of Colorado, Petitioner–Appellee,

IN the INTEREST OF C.G., and Concerning J.N. Respondent–Appellant.

Court of Appeals No. 14CA2172

Colorado Court of Appeals, Div. III.

Announced July 30, 2015
Certiorari Dismissed as Improvidently Granted April 14, 2017


Ellen G. Wakeman, County Attorney, Writer Mott, Assistant County Attorney, Rebecca Klymkowsky, Assistant County Attorney, Golden, Colorado, for Petitioner–Appellee

Bachus & Schanker, L.L.C., J. Kyle Bachus, Brian Bradford, Denver, Colorado, for Respondent–Appellant J.N.

Opinion by JUDGE DAILEY

410 P.3d 598

¶ 1 J.N. (father) appeals the trial court's order denying as moot his C.R.C.P. 60(b) motion to vacate its prior orders entered in the dependency and neglect proceeding regarding his child, C.G.

¶ 2 We consider, as a matter of first impression, whether the orders became moot following the child's death. Under the circumstances of this case, we conclude that father's request for relief under C.R.C.P. 60(b) was not moot. Alternatively, we are persuaded that father has established that his request for relief meets the "capable of repetition yet evading review" and "public interest" mootness exceptions. Accordingly, we reverse the order, and remand the matter to the trial court for a determination on the merits of father's C.R.C.P. 60(b) motion.

I. Background

¶ 3 In March 2006, the Jefferson County Division of Children, Youth and Families (Division) filed a dependency and neglect petition and assumed temporary custody of the then five-year-old child and his younger half-sibling. The petition asserted that the child's father, identified as John Doe, "whereabouts unknown," had abandoned him. One day after filing the petition, the Division moved to serve John Doe by publication. The court granted the request. Approximately one week later, the Division published notice of the proceeding.

¶ 4 In May 2006, the court placed the child in the temporary custody of Jon Phillips, the father of the child's half-sibling. In November 2006, the court adjudicated the child dependent and neglected by default as to John Doe. The court subsequently granted an allocation of parental responsibilities (APR) for the child to Phillips and terminated its jurisdiction over the proceeding.

¶ 5 The child died a year later. Phillips was convicted of first degree murder and child abuse resulting in death. People v. Phillips, 2012 COA 176, ¶ 1, 315 P.3d 136.

¶ 6 Several years later, father, the child's mother, and the personal representative of the child's estate commenced a federal court action against the Division, the Denver County Department of Human Services (Denver Department), and two caseworkers from the Denver Department. The claims were brought under 42 U.S.C. § 1983 (2012) for violation of the child's substantive due process rights. Schwartz v. Booker, 702 F.3d 573, 576 (10th Cir.2012).

¶ 7 In June 2014, father moved for C.R.C.P. 60(b) relief in the dependency and neglect proceeding. He sought to vacate the trial court's orders, among others, that (1) found John Doe in default; (2) transferred temporary legal custody of the child to Phillips; (3) adjudicated the child dependent and neglected; (4) awarded APR to Phillips; and (5) terminated the court's jurisdiction over the proceeding. Specifically, father asserted that because the Division had failed to exercise due diligence to ascertain his identity before it served him by publication, the default judgment and all later orders were void for lack of due process under C.R.C.P. 60(b)(3). Alternatively, he asserted that the orders should be vacated because the Division had committed fraud on the court.

¶ 8 In the motion and in reply to the Division's response that the matter was moot, father maintained that the relief he requested would have a practical effect on an existing controversy – the federal 42 U.S.C. § 1983 action. He explained that vacating the orders would remove any doubt that the child was in the state's custody up until the time that he was killed and, thus, would establish that the child had an ongoing special relationship with the state. In requesting a hearing on his motion, he expounded that his request for relief affected the only issue currently pending in the federal action—the child's custodial status with the state—and voiding the orders would likely enable him to defeat a pending motion for summary judgment.

¶ 9 Without holding a hearing, the trial court denied father's motion as moot. It

410 P.3d 599

concluded that setting aside the judgment would have no practical legal effect on the dependency and neglect proceeding, which related solely to the child's status and protection; that father's argument that the motion could impact his federal action was without merit; and that none of the exceptions to the mootness doctrine applied.

II. Mootness

¶ 10 Father contends that the trial court erred in finding that, in light of C.G.'s death, his request for C.R.C.P. 60(b) relief was moot. We conclude that father's request for relief is not moot because of the collateral consequence in the dependency and neglect orders in father's federal action.

A. Legal Standard

¶ 11 We review de novo the legal question of whether a case is moot. Colo. Mining Ass'n v. Urbina, 2013 COA 155, ¶ 23, 318 P.3d 562.

¶ 12 When possible, a court should resolve disputes on their merits. Stell v. Boulder Cnty. Dep't of Soc. Servs ., 92 P.3d 910, 914 (Colo.2004). However, when an issue is moot, a court will ordinarily refrain from addressing it. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1102 (Colo.1998). An issue is moot when the relief sought, if granted, would have no practical effect on an existing controversy. People in Interest of L.O.L., 197 P.3d 291, 293 (Colo.App.2008).

¶ 13 Still, an issue is not moot when the judgment may result in significant collateral consequences to a party. See People in Interest of T.B., 183 Colo. 310, 311, 516 P.2d 642, 643 (1973) (dismissing an appeal as moot because statutory protections eliminated the collateral legal consequences that preserved the issue for appeal); see also Oborne v. Bd. of Cnty. Comm'rs, 764 P.2d 397, 402 (Colo.App.1988). Thus, in deciding whether an issue is moot, the court must consider both the direct and collateral consequences that can result from the judgment. People v. Fritz, 2014 COA 108, ¶ 21, 356 P.3d 927 ; Putman v. Kennedy, 279 Conn. 162, 900 A.2d 1256, 1261 (2006).

¶ 14 In Oborne, 764 P.2d at 402, a division of this court held that an appeal was not moot when the judgment might have significant collateral consequences, including impacting the parties' future rights and obligations. Likewise, a contempt finding is not moot, in part, because it can lead to adverse consequences for the contemnor. White v. Adamek, 907 P.2d 735, 737 (Colo.App.1995).

¶ 15 The Colorado Supreme Court has also recognized the principle that " ‘a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.’ " Moland v. People, 757 P.2d 137, 139 (Colo.1988) (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ).

¶ 16 Whether collateral consequences preclude an issue from being deemed moot turns on showing the reasonable possibility of such consequences. Williams v. Ragaglia, 261 Conn. 219, 802 A.2d 778, 783 (2002) ; see also Hamilton ex rel. Lethem v. Lethem, 193 P.3d 839, 849 (Haw.2008) (concluding that an appeal fell within the collateral consequences exception to the mootness doctrine when there was a " ‘reasonable possibility’ " that the order would cause harm to a party's reputation); In re A.K., 360 N.C. 449, 628 S.E.2d 753, 759 (2006) (holding that appeal from a juvenile neglect adjudication was not moot as it could reasonably result in collateral legal consequences). In other words, the standard requires a demonstration of more than an abstract, purely speculative injury, but does not require proof that it is more probable than not that the prejudicial consequences will occur. Williams, 802 A.2d at 783.

B. Substantive Due Process

¶ 17 Our analysis begins with a review of the requirements for establishing the violation of a child's substantive due process rights under 42 U.S.C. § 1983.

¶ 18 The Due Process Clause of the Fourteenth Amendment protects a person's life, liberty, and property against government actions. Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ;

410 P.3d 600

Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1173 (10th Cir.2013). Section 1983 provides a mechanism to bring a private cause of action for the deprivation by state action of any rights, privileges, or immunities encompassed within the Fourteenth Amendment. Schwartz, 702 F.3d at 579.

¶ 19 Generally, state actors are only liable for their own acts, and the Due Process Clause does not require the state to protect persons against criminal conduct of private actors. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195, 109...

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