People ex rel. N.D.V.

• Decision Date: 17 December 2009
• Docket Number: No. 09CA0522.,09CA0522.
• Citation: 224 P.3d 410
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of N.D.V., a Child, and Concerning Y.R., Respondent-Appellant.
• Court: Colorado Court of Appeals

224 P.3d 410

The PEOPLE of the State of Colorado, Petitioner-Appellee In the Interest of N.D.V., a Child, and Concerning Y.R., Respondent-Appellant.

No. 09CA0522.

Colorado Court of Appeals, Div. IV.

December 17, 2009.

Hal Warren, County Attorney, Julie Thomerson, Assistant County Attorney, Denver, Colorado, for Petitioner-Appellee.

Leta Brandes, Guardian Ad Litem.

Carl F. Blair, Jr., Littleton, Colorado, for Respondent-Appellant.

Opinion by Judge CARPARELLI.

Y.R. (mother) appeals from the judgment terminating the parent-child relationship between her and her son, N.D.V. We affirm.

Mother presents issues related to

• the failure to adjudicate the child's status as neglected or dependent;

• the reasonableness of efforts made to rehabilitate her;

• the findings that she is unfit and unlikely to change within a reasonable time; and

• the availability of less drastic alternatives.

I. Procedural History

On June 14, 2007, mother appeared with counsel at the adjudicatory hearing, and, according to the register of actions, was advised of her rights. She admitted the child was neglected or dependent and waived proof of a factual basis that the child was homeless, without proper care, or not domiciled with mother through no fault of mother. The court accepted mother's admission, and, at mother's request, deferred entry of the order of adjudication and continued the hearing as permitted under section 19-3-505(5), C.R.S. 2009. On the same date, as permitted in such circumstances and without objection from mother or the guardian ad litem (GAL), the court adopted a treatment plan for mother.

In August, September, and November 2007, and in January, March, April, and May 2008, the court entered various orders regarding custody and placement of the child and regarding mother's treatment plan. Mother and the GAL participated in each of those proceedings without objection.

The department filed a motion to terminate mother's parental rights on June 6, 2008. Although the court had not yet entered an adjudicatory order, the petition stated that the child had been adjudicated neglected or dependent on June 14, 2007. Nothing in the record indicates that mother or the GAL denied or objected to this erroneous assertion. Deferral of the adjudication expired on June 14, 2008. On September 3, 2008, the court denied, without prejudice, the department's motion to terminate, finding that the department had not sustained its burden by clear and convincing evidence.

The department filed a second motion to terminate mother's parental rights on November 6, 2008. The court conducted a four-day termination hearing beginning on February 19, 2009, during which mother did not deny the allegation that the child's status had been adjudicated in June 2007, seek to withdraw her admission, object to the proceedings, or demand that the court either dismiss or sustain the petition in neglect or dependency before conducting further proceedings.

As a result of the hearing, the court terminated mother's parental rights, finding, among other things, that the child had been adjudicated dependent or neglected as to mother on June 14, 2007.

II. Jurisdiction

Based on these facts, which mother does not dispute, she first contends that

• Section 19-3-604(1)(a)-(c), C.R.S. 2009, establish subject matter jurisdictional requirements and the court's failure to satisfy those requirements deprived the court of jurisdiction to enter a termination order;

• under section 19-3-505(5), upon expiration of the statutorily permitted period to defer entry of an adjudicatory order, the court was without authority to engage in any action other than to dismiss or sustain the department's petition in neglect or dependency; and

• because the court did not enter an adjudicatory order, section 19-3-505(5) serves as a jurisdictional bar to further proceedings under the petition.

We conclude that, under section 19-1-104(1)(b), C.R.S.2009, a juvenile court's subject matter jurisdiction in neglect or dependency cases is based on the fact of the child being neglected or dependent. Here, mother admitted that fact, and the court's acceptance of her admission established the essential factual predicate for the court's exercise of its jurisdiction. Although the court did not enter an order sustaining the petition, its failure to do so did not divest the court of jurisdiction. Because the court's failure to enter an adjudicatory order did not deprive it of jurisdiction and mother failed to raise these contentions in the trial court, any procedural error has been waived.

A. Subject Matter Jurisdiction Not Waivable

Although a party is generally precluded from raising an issue on appeal when there was no objection at trial, "a challenge to a court's subject matter jurisdiction is not waivable, and may be raised for the first time on appeal." Herr v. People, 198 P.3d 108, 111 (Colo.2008); see also Kirbens v. Martinez, 742 P.2d 330, 334 n. 8 (Colo.1987). "Subject matter jurisdiction `concerns the court's authority to deal with the class of cases in which it renders judgment.'" People in Interest of Clinton, 762 P.2d 1381, 1386 (Colo.1988) (quoting In re Marriage of Stroud, 631 P.2d 168, 170 (Colo.1981)).

Once a court obtains subject matter jurisdiction, "a later failure to follow statutory requirements does not divest the court of subject matter jurisdiction. Such a failure to follow the statute would amount to an erroneous decision not affecting jurisdiction." Interest of Clinton, 762 P.2d at 1387.

B. Statutory Interpretation

Our primary task in construing a statute is to give effect to the intent of the General Assembly. Williams v. Kunau, 147 P.3d 33, 38 (Colo.2006). When reviewing any provision of a statute, we consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts, give words and phrases their plain and ordinary meaning, and resort to principles of construction only when a statute is ambiguous. Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119, 130 (Colo.2005); Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192-93 (Colo.2004). We may not adopt a construction that renders any word superfluous. Although not dispositive, we may also consider the title of a statute in ascertaining its meaning. People v. Madden, 111 P.3d 452, 457 (Colo.2005).

Statutory language that establishes the scope of a court's jurisdiction necessarily delimits that jurisdiction. See Levin v. Anouna, 990 P.2d 1136, 1138 (Colo.App. 1999). Accordingly, the supreme court has held that "the basis for the exercise of judicial authority is normally found in jurisdictional statutes, not in the language of procedural rules." Interest of Clinton, 762 P.2d at 1388 (quoting White v. District Court, 695 P.2d 1133, 1135 (Colo.1984)). In addition, language in a statute requiring that a particular procedure be followed "does not amount to a subject matter jurisdictional requirement unless it is clear that the General Assembly so intended it." Eagle Peak Farms, Ltd. v. Lost Creek Ground Water Mgmt. Dist., 7 P.3d 1006, 1010 (Colo.App.1999). An error in procedure does not implicate the court's jurisdiction unless it results in a court's attempt to exercise power over a class of cases or over persons not within its constitutional or statutorily prescribed authority. Levin, 990 P.2d at 1138.

C. Status of the Child as Neglected or Dependent Confers Jurisdiction

With regard to proceedings in neglect or dependency, the General Assembly has declared that, to carry out the purposes of the Children's Code, its provisions must be liberally construed to serve the welfare of children and the best interests of society. § 19-1-102(2), C.R.S.2009.

As pertinent here, the juvenile divisions of district courts outside the City and County of Denver and the Denver Juvenile Court have exclusive original jurisdiction in proceedings concerning any child who is neglected or dependent. §§ 19-1-103(70), 19-1-104(1)(b). The General Assembly explicitly granted this authority in section 19-1-104(1)(b), which states as follows:

Jurisdiction. (1) Except as otherwise provided by law, the juvenile court shall have exclusive original jurisdiction in proceedings:

...

(b) Concerning any child who is neglected or dependent, as set forth in section 19-3-102.

This provision explicitly premises subject matter jurisdiction on whether the child "is neglected or dependent," which presents an issue of fact. Section 19-1-104 also grants the juvenile court jurisdiction to determine the legal custody of any child who comes within its jurisdiction under this section, to terminate the legal parent-child relationship, to conduct proceedings concerning any adult who allegedly neglects a child who comes within its jurisdiction under this section, and to issue temporary orders providing for the child's custody, protection, support, and medical, psychological, and dental treatment. § 19-1-104(1)(c)-(d), (2), (3)(a), C.R.S. 2009.

The General Assembly again explicitly addressed jurisdiction in section 19-3-505(1), C.R.S.2009, stating that the age and residence of the child are jurisdictional matters. Thus, in accordance with section 19-3-502(2), C.R.S.2009, the petition invoking the court's exercise of its jurisdiction over dependency and neglect matters must state the name, age, and residence of the child and the names and residences of the child's parents. These allegations are essential to invoke the court's jurisdiction because they allege essential jurisdictional requirements: that the person who is the subject of the neglect or dependency proceedings is younger than eighteen years old as required by the Children's Code and that the person is within the geographic jurisdiction of the court.

In addition to these requirements, the petition must also plainly allege facts that "bring the child within the court's jurisdiction." § 19-3-502(2). This phrase necessarily refers...