People v. O.C.

• Decision Date: 27 September 2012
• Docket Number: No. 12CA0649.,12CA0649.
• Citation: 312 P.3d 226
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, In the Interest of O.C., a Child, and Concerning C.M. and C.M., Intervenors–Appellants.
• Court: Colorado Court of Appeals

312 P.3d 226

The PEOPLE of the State of Colorado, Petitioner–Appellee, In the Interest of O.C., a Child, and Concerning C.M. and C.M., Intervenors–Appellants.

No. 12CA0649.

Colorado Court of Appeals, Division VII.

Sept. 27, 2012.

Ellen G. Wakeman, County Attorney, Jennifer A. Mullenbach, Assistant County Attorney, Golden, Colorado, for Petitioner–Appellee.

Catherine A. Madsen, Guardian Ad Litem.

The Bourassa Law Group, LLC, Hillary R. Ross, Denver, Colorado; Terry Ross, Denver, Colorado, for Intervenors–Appellants.

Opinion by Judge TERRY.

¶ 1 In this dependency and neglect proceeding concerning O.C. (the child), Ch.M., the child's maternal grandfather (grandfather), and Ca.M., the child's maternal step-grandmother (grandmother), appeal from the order denying their motion to intervene. They contend that as grandparents, they have the right to intervene under section 19–3–507(5)(a), C.R.S.2012, and that the district court erred in denying them that right. We agree, and therefore reverse and remand.

I. Background

¶ 2 O.C. was removed from the care of Je.C. (mother) and Ju.C. (father) in May 2010, approximately seven weeks after her birth, because of concerns that mother, who had been diagnosed with bipolar disorder, was not adequately caring for O.C. An older child, two-year-old B.C., had been removed from mother's care five months earlier because of concerns about possible physical abuse.

¶ 3 The Jefferson County Division of Children, Youth, and Families (the County) initially allowed O.C. to remain in the care of a family friend while mother worked on her treatment plan. O.C. was moved to a foster home after concerns were raised about the friend's use of marijuana while caring for her.

¶ 4 Grandfather and grandmother first sought to become involved in the proceeding in October 2010, when they moved to intervene under C.R.C.P. 24(a) and (b) and requested that both children be placed with them. The County opposed the motion, arguing that the grandparents did not meet the criteria to intervene as a matter of right under section 19–3–507(5)(a), and the trial court denied the motion.

¶ 5 In July 2011, the County moved to place O.C. with grandfather, but withdrew the motion soon thereafter, alleging that grandfather had been “unable to make a commitment to caring for [O.C.].” Grandfather responded with a request to be made a special respondent, asserting that he wanted to be a party to the case and to have both children placed with him. The court construed grandfather's motion as a motion to intervene, found that grandfather did not satisfy the requirements of section 19–3–507(5)(a) and therefore was not entitled to intervene as a matter of right, and denied the motion.

¶ 6 In January 2012, the County moved to terminate both parents' parental rights with respect to O.C. The grandparents again sought to intervene. The court denied their motion, and they now appeal that denial.

II. Jurisdiction

¶ 7 Both the County and the Guardian Ad Litem (GAL) contend that the order denying the grandparents' motion to intervene is not a final order and, thus, is not properly before this court on appeal. We disagree.

¶ 8 Generally, for the purpose of appeal, a final order or judgment “is one that ends the particular action, leaving nothing further to be done to determine the rights of the involved parties completely.” People in Interest of H.R., 883 P.2d 619, 620 (Colo.App.1994). In a dependency and neglect proceeding, post-dispositional orders that do not terminate a parent's custodial rights are generally held not to be final and appealable. Id. (citing E.O. v. People, 854 P.2d 797, 801 (Colo.1993) (post-dispositional order approving amended treatment plan); People in Interest of P.L.B., 743 P.2d 980, 982 (Colo.App.1987) (order modifying out-of-home placement); and People in Interest of K.L., 681 P.2d 535, 536 (Colo.App.1984) (order continuing out-of-home placement)).

¶ 9 The order denying the grandparents' motion to intervene did not end the dependency and neglect action, nor did it terminate either parent's custodial rights. However, our inquiry into the finality of the order does not end here, because the Colorado Supreme Court has held that “[t] he denial of a motion to intervene as a matter of right is a final and appealable order.” Feigin v. Alexa Group, Ltd., 19 P.3d 23, 26 (Colo.2001).

¶ 10 In Feigin, nonparties sought to intervene in a civil case under C.R.C.P. 24(a), which provides that upon timely application anyone may intervene

(1) [w]hen a statute confers an unconditional right to intervene;

or

(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless [his] interest is adequately represented by existing parties.

The County and the GAL argue that the holding of Feigin does not apply in this case because C.R.C.P. 24 does not apply in a dependency and neglect proceeding, or, alternatively, because the grandparents do not meet the “substantive requirements for intervention” under C.R.C.P. 24(a). We reject both arguments.

¶ 11 At oral argument, the County cited People in Interest of M.D.C.M., 34 Colo.App. 91, 522 P.2d 1234 (1974), for the proposition that C.R.C.P. 24(a) does not authorize intervention in a dependency and neglect proceeding. However, the M.D.C.M. division held that foster parents who had custody of a child for “a substantial number of months” were entitled to become parties at the dispositional stage of the proceeding, and thus, were properly permitted to intervene under C.R.C.P. 24. 34 Colo.App. at 95, 522 P.2d at 1237. In reaching this conclusion, the M.D.C.M. division noted that the Children's Code “expressly contemplates the active participation of ‘interested parties' at the dispositional hearing.” Id. at 94, 522 P.2d at 1236. The division concluded that

the Code, read as a whole, anticipates that those having custodial experience with the child have sufficient interest, knowledge, and concern relative to the child to bring them within the classification of ‘interested parties' and thus they are entitled, upon application, to intervene as a matter of right in the dispositional hearing.

Id. at 94–95, 522 P.2d at 1237.

¶ 12 In People in Interest of C.P., 34 Colo.App. 54, 58–59, 524 P.2d 316, 319–20 (1974), another division of this court held that a grandmother was an “interested party” who was entitled to intervene as a matter of right at the dispositional stage in a dependency and neglect proceeding. The C.P. division cited provisions of the Children's Code authorizing the trial court to give custody of a dependent and neglected child to a relative as a basis for its conclusion.

¶ 13 As M.C.D.M. and C.P. show, Colorado courts have long recognized the right of “interested parties” to intervene in a dependency and neglect proceeding under C.R.C.P. 24(a).

¶ 14 The GAL argues, nevertheless, that the denial of the grandparents' motion to intervene is not a final order because they do not meet the “substantive requirements” for intervention under either C.R.C.P. 24(a)(1) or (2). That argument begs the very question posed in this appeal: whether the grandparents have the right to intervene. We conclude that under Feigin, an order denying intervention to a party seeking to intervene as a matter of right must be treated as a final, appealable order. Otherwise, persons who may have substantial rights to intervene would be prejudicially denied the right to be heard at critical stages of the litigation, when potentially irrevocable decisions affecting their rights may be made, and could only be heard on appeal after the litigation was completely ended. Such prejudice would be especially acute in a dependency and neglect case involving a young child, such as O.C. is here.

¶ 15 Section 19–3–507(5)(a) provides that grandparents may intervene at any time after adjudication, and thus would necessarily allow intervention before parental rights are terminated. We conclude that, as in Feigin, we must consider the trial court's denial of the grandparents' motion to intervene as of right to be a final, appealable order.

¶ 16 Having concluded that the order denying the motion to intervene is final and appealable, we need not address the GAL's further argument regarding C.R.C.P. 24(a)(2).

III. The Right of Grandparents to Intervene

¶ 17 Grandfather and grandmother contend the trial court erred in denying their motion to intervene as a matter of right under section 19–3–507(5)(a). We agree.

A. Principles of Statutory Construction

¶ 18 Statutory construction is a question of law, subject to de novo review. People v. Perez, 238 P.3d 665, 669 (Colo.2010).

¶ 19 In interpreting a statute, we strive to give effect to the legislative intent. C.S. v. People, 83 P.3d 627, 634 (Colo.2004). To do so, we look first to the language of the statute and give words their plain and ordinary meaning. Id. at 635.

¶ 20 A statute is ambiguous only if it is fairly susceptible of more than one interpretation. Miller v. Indus. Claim Appeals Office, 985 P.2d 94, 96 (Colo.App.1999). “ ‘The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’ ” People v. Nance, 221 P.3d 428, 430 (Colo.App.2009) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)).

¶ 21 A statute susceptible of more than one interpretation must be construed in light of its legislative intent and purpose. People in Interest of M.W., 796 P.2d 66, 68 (Colo.App.1990). To determine legislative intent, we may consider the textual context, the statute's legislative history, the state of the law prior to the legislative enactment, the problem addressed by the legislation, and the relationship...