People ex rel. J.C.S.

• Court: Colorado Court of Appeals
• Writing for the Court: Webb
• Citation: People ex rel. J.C.S., 169 P.3d 240 (Colo. App. 2007)
• Decision Date: 12 July 2007
• Docket Number: 06CA1868
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of J.C.S., a Child, and Concerning C.C., Respondent-Appellant.

169 P.3d 240

The PEOPLE of the State of Colorado, Petitioner-Appellee In the Interest of J.C.S., a Child, and Concerning C.C., Respondent-Appellant.

No. 06CA1868.

Colorado Court of Appeals, Div. III.

July 12, 2007.

Rehearing Denied August 16, 2007.^*

Certiorari Granted October 15, 2007.

James Ripperger, County Attorney, Pueblo, Colorado, for Petitioner-Appellee.

Devon A. McFarland, Guardian Ad Litem.

Janet T. Kinniry, Gardner, Colorado, for Respondent-Appellant.

Opinion by Judge WEBB.

In this dependency and neglect proceeding, C.C. (mother) appeals from the denial of her motion to set aside the adjudicatory order and the subsequent judgment terminating the parent-child legal relationship with her child, J.C.S. She contends only that the statute authorizing service by a single publication — § 19-3-503(8)(b), C.R.S.2006 — is unconstitutional on its face and as applied, because it did not provide her with actual notice of her legal rights before the child was adjudicated.

The trial court rejected these contentions, finding that mother "deliberately concealed herself" from law enforcement and the court. Based on this finding, which encompasses the four months between service by publication and the adjudication that she asks us to consider in assessing lack of actual notice, we conclude that she lacks standing to challenge the statute's constitutionality because her claimed injury was self-inflicted. Therefore, we dismiss the appeal.

I. Facts

On March 29, 2004, the Huerfano County Department of Social Services (department) received a referral indicating mother was using drugs and alcohol, leaving J.C.S. with various people, and failing to take him to speech therapy. Two days later, mother was arrested for auto theft and was taken to the Las Animas County Jail in Trinidad. After several weeks there, she was transferred to the Pueblo County Jail, where she remained until she was released on June 10, 2004.

A caseworker in the department located mother in the Trinidad jail and together they developed a safety plan, which provided that (1) J.C.S. would be placed in foster care if an appropriate kinship home could not be found; (2) upon release from incarceration, mother would obtain stable housing and income and participate in a substance abuse evaluation, follow its recommendations, and remain substance free; and (3) a dependency and neglect proceeding would be filed if mother failed to establish a safe and stable home within ninety days.

Four days after mother was released from jail on June 10, she telephoned the caseworker, indicated her interest in starting drug and alcohol treatment, and asked to see her son. The caseworker advised mother that her signature was needed to authorize medical evaluations of J.C.S. Mother gave the caseworker a temporary phone number, explained that she did not have a place to live, and said that she would contact the caseworker as soon as her situation became more stable.

Because the caseworker was unable to contact mother at the temporary number, the department scheduled a shelter hearing for June 30, 2004. On June 28, 2004, mother called the caseworker and left a message. On the day of the shelter hearing, mother again called the caseworker, who advised her that the department was seeking temporary legal custody at a shelter hearing to take place that day. When mother replied that she could not find transportation to the hearing, the caseworker encouraged her to attend by telephone. The caseworker also set up an appointment with mother for July 7 to sign papers authorizing medical evaluations.

Mother failed to appear at or call in to the hearing. She did not meet the caseworker on July 7.

A petition in dependency and neglect was filed on July 8, 2004. The court authorized serving mother by publication, finding that her "whereabouts are currently unknown." On August 5, a summons was published in a Huerfano County newspaper with a return of service of August 25.

When mother did not appear in court on the return date, the court found her in default. She later testified at the termination hearing that after her release from the Pueblo County Jail, she had secreted herself from authorities for fear of further incarceration on an outstanding probation violation. On November 2, 2004, the court adjudicated J.C.S. dependent or neglected based on mother's default.

During 2005, mother was in and out of the Pueblo County Jail. In April 2005, mother wrote to the caseworker stating that she was in jail but would be released soon and expressing an interest in regaining custody of J.C.S. In response, the department sent her a letter notifying her of an upcoming review of J.C.S.'s foster placement and asking that she complete a questionnaire. Mother did not appear in person or by telephone at that review, but she did return the questionnaire.

On January 10, 2006, the department filed a motion for termination of the parent-child legal relationship, and, on February 27, 2006, the court authorized notice by publication of the termination hearing pursuant to § 19-3-602(2), C.R.S.2006.

Mother was again arrested on March 10, 2006, and remained in the Pueblo County Jail until July 25, 2006. However, on April 20, 2006, the county attorney filed a motion to transport mother from the jail to the May 3 termination hearing, which was her first appearance in these proceedings. Mother was then advised of her legal rights, she requested an attorney, and one was appointed for her. The court rescheduled the hearing for August 1, to allow mother to confer with her counsel.

Her attorney filed a motion to set aside the order of adjudication and dismiss the petition for termination of parental rights on the basis that § 19-3-503(8)(b) was unconstitutional, on its face and as applied. The as applied argument asserted that "the department knew that mother was in the Pueblo area [because] she had been incarcerated in Pueblo, [and] she told the department that she sought shelter upon release." The court deferred ruling on mother's constitutional challenge and combined a hearing on the motion with the termination hearing.

Mother failed to appear on August 1, and the court continued the hearing to August 23. At that time, the court heard testimony from mother and the caseworker, as well as argument from counsel on mother's due process claim. Mother described the adjudicatory hearing as "the watershed in parents, child and family rights," and presented a chronology of events during 2004 in her written motion. However, the chronology does not identify any location where she could have been found and served between her release from Pueblo County Jail in June and the adjudication in November. She did not assert in the motion or at the hearing that the department should have provided her notice after the adjudication, although it knew of her reincarceration in the Pueblo County Jail during 2005.

The court held the statute constitutional on its face and as applied, and made findings from the bench, including:

I find the department exercised due diligence trying to locate her whereabouts by contacting last known address, family members, even going so far as to contact the jail, trying to arrange for calls, asking for follow ups, and her failure to appear for those. [sic]

In a later written order, the court found that after mother's release from incarceration on June 10, 2004, she "deliberately hid from law enforcement and made no contact with the Department of Social Services or with this Court for the next several months due to her fear that she would be rearrested," and that she "deliberately concealed herself from law enforcement, this Court and the Department of Social Services for several months following the filing of this action." The court noted that it had "specifically found and hereby finds that the Department of Social Services exercised due diligence in attempting to locate [mother] prior to the Court's authorization of publication." The court also found that mother had received adequate and appropriate notice of these proceedings through communications with the caseworker.

The department did not raise mother's standing to challenge the single publication statute either below or on appeal, but we requested supplemental briefs on this issue. In her supplemental brief, mother asserted:

Regarding this inquiry, the only relevant time period is between the time the People filed the Petition in Dependency and Neglect [July 8, 2004] and the time the court adjudicated J.C.S. [November 2, 2004]. The adjudication of the child as dependent and neglected is the watershed.

(Emphasis added.) She did not challenge the trial court's finding that she was in hiding during the only time which she asserts is relevant to our standing inquiry.

Neither the department's motion for service by publication nor a transcript of the hearing at which the court authorized such service is part of the record. Mother's supplemental brief states, "In all court documents and reports during the relevant period between June 28, 2004 and the final adjudication on October 26, 2004[sic], the People assert that the whereabouts of C.C. are unknown." On appeal, mother does not raise the absence of a written motion for service by publication from the record. See C.R.C.P. 4(g) (requiring verified motion for service by publication).

II. Law

A. Scope of Review

Standing is a question of law that we review de novo. See, e.g., Deutsch v. Kalcevic, 140 P.3d 340, 341 (Colo.App.2006).

Even where constitutional issues are treated as mixed questions of law and fact, we defer to a trial court's factual findings. Sanger v. Dennis, 148 P.3d 404, 410 (Colo.App.2006). If the record supports a factual finding, we are bound by it under the clear error test. Citizens Progressive Alliance v. Sw. Water Conservation Dist., 97 P.3d 308, 314 (Colo.App.2004). A trial court's findings concerning due diligence before service by publication in a parental...