People v. N.G.

• Decision Date: 02 August 2012
• Docket Number: No. 12CA0417.,12CA0417.
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, In the Interest of N.G., a Child, and Concerning J.P.W., Respondent–Appellant.
• Court: Colorado Court of Appeals

303 P.3d 1207

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

In the Interest of N.G., a Child,

and

Concerning J.P.W., Respondent–Appellant.

No. 12CA0417.

Colorado Court of Appeals,

Div. IV.

Aug. 2, 2012.

William Louis, County Attorney, Laura C. Rhyne, Deputy County Attorney, Colorado Springs, Colorado, for Petitioner–Appellee.

Nancy J. Walker–Johnson, Guardian Ad Litem.

Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent–Appellant.

Opinion by Judge WEBB.

¶ 1 In this dependency and neglect proceeding, J.P.W. (father) appeals from the magistrate's order allocating permanent custody and parental responsibilities for N.G. (the child) to the child's maternal uncle, C.G. (uncle), and from the district court's order denying his petition for review of the magistrate's order. Father contends the magistrate erred by making this allocation before entering an adjudication of the child as to him or deciding his motion for custody of the child; the district court erred in finding that the magistrate could proceed without first revoking father's deferred adjudication; and the award of permanent custody to a nonparent under these circumstances violated his constitutional right to the care, custody, and control of his child.

¶ 2 We reach two conclusions, as a matter of law, on previously undecided issues in Colorado. First, a parent subject to a deferred adjudication, which has neither been revoked nor expired, is not barred by an earlier no-fault admission to the petition in dependency and neglect from requesting an evidentiary hearing and presenting evidence of events that have occurred during the deferral period, before entry of the adjudicatory order. Second, at the hearing, such a parent will usually enjoy the constitutional presumption that a fit parent makes decisions which are in his or her child's best interests.

¶ 3 Here, on the particular facts presented, we further conclude that both the magistrate and the district court erred in adjudicating the child as to father, based on the adjudication as to the child's mother and without considering his new evidence that the child would not be dependent or neglected if placed in his care; both also erred in failing to acknowledge father's presumption as to the decisions of a fit parent; and on remand, after hearing new evidence, the magistrate shall make findings whether the child is currently dependent or neglected as to father, in light of this presumption. Therefore, we vacate the orders and remand for further proceedings.

I. Background

¶ 4 In June 2010, the El Paso County Department of Human Services (DHS) removed N.G., then five years old, from the care of L.V. (mother) because of concerns about her drug use. The child was placed in uncle's care.

¶ 5 Father, a resident of Arizona, learned of the child's removal from mother. He had not seen the child in three years, but was voluntarily paying child support. When contacted by DHS, father expressed an interest in becoming part of the child's life. At his request, the court ordered testing, which confirmed paternity.

¶ 6 On August 23, 2010, father, through counsel, admitted paragraph 4(d) of the Amended Petition in Dependency and Neglect, which alleged that father did not reside in the home of mother and the child, and that the incidents which had led to the removal of the child from the home “place[d] the welfare of the child at risk,” but were “beyond his immediate control.” ¹ Based on this admission,the magistrate sustained the allegations of the Amended Petition as to father under paragraph 3(e) (the child was dependent and neglected as defined in section 19–3–102, C.R.S.2011, because the child was “homeless, without proper care, or not domiciled with a parent, guardian, or legal custodian through no fault of such child's parent, guardian, or legal custodian”). The record does not include a transcript of this proceeding.

¶ 7 After DHS submitted the paternity test results to the court, a treatment plan was prepared for father and adopted by the court. The plan required father to cooperate with DHS and the child's guardian ad litem (the GAL); undergo a mental health assessment; participate in visitation if visits were approved; and continue providing financial support for the child.

¶ 8 Two months later, father visited the child in Colorado. The caseworker reported that although the child was shy at first, the visit went well. Father also completed his mental health evaluation. The evaluator recommended that father participate in a “parenting program for fathers” and receive “life skills parenting” in-home services, if the child was placed in his care. No mental health problems were identified and no mental health treatment was recommended. At father's request, a study of his home was done by Arizona authorities under the Interstate Compact on the Placement of Children (ICPC). A favorable report was submitted to the court in January 2011.²

¶ 9 On January 21, 2011, two days after the ICPC report was submitted to the court, father moved for placement and custody of the child. He asserted that he was not at fault for the circumstances underlying the dependency action; placement of the child with him would conform to the goal of reunifying families; and he had a fundamental constitutional right to raise his son.

¶ 10 In February, a mediation was held to consider placing the child with father. After unsuccessfully attempting to reach him by telephone, the mediation proceeded. The participants decided that father should come to Colorado for “at least a couple visits,” after which DHS would “look at” sending the child to Arizona for a week. However, the caseworker had difficulty reaching father to discuss these decisions. He attempted only one visit with the child, which was abandoned following an automobile accident.

¶ 11 In late May, DHS concluded that the child should be placed in the permanent custody of uncle. DHS moved to allocate parental responsibilities to him on June 1. DHS also requested that the magistrate enter an order adjudicating the child dependent and neglected as to mother, nunc pro tunc August 23, 2010, the date on which mother and DHS had entered into the agreement to defer the adjudication. The magistrate entered the requested order, which did not address father.

¶ 12 A hearing on the motion to allocate parental responsibilities to uncle “and review of father's deferred adjudication” was noticed for July 13. At the hearing, DHS and father disagreed whether his request for placement and custody of the child was before the court. The magistrate did not resolve the question. The caseworker, uncle, and father testified.

¶ 13 At the conclusion of the hearing, the magistrate asked the parties to submit briefs. In his brief, father again asserted that he was constitutionally entitled to a presumptionthat he had a first and prior right to the custody and care of the child, and no evidence had proven otherwise. He further asserted, as relevant here, that he had fully complied with all that had been asked of him; the child had not been adjudicated as to him; and no ground existed to revoke his deferred adjudication.

¶ 14 The parties and the magistrate agreed that a ruling should be made before August 23, 2011, the date father's deferred adjudication was to expire, and DHS moved to revoke father's deferred adjudication. However, on August 22, the magistrate announced that a further continuation was necessary to review the parties' briefs.

¶ 15 Two weeks later, the magistrate issued a written order finding that the court had personal and subject matter jurisdiction to enter an order allocating parental responsibilities to uncle “because the child was adjudicated dependent or neglected based on mother's admission and/or previous adjudicatory order(s) of the court regarding the parent(s).” Citing father's failures during the case to visit the child more than once, to call the child more than five or six times, and to send presents or cards to the child, the magistrate also found that the best interests of the child would be better served by placement with uncle. The magistrate granted the motion to allocate parental responsibilities to uncle and denied father's motion for placement and custody of the child.

¶ 16 However, the magistrate did not rule on the motion of DHS to revoke the deferred adjudication of the child as to father or father's motion for custody of the child. The magistrate also declined to rule on whether father's fundamental rights as a presumptive fit parent, recognized in Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), required that he be accorded a first and prior right to the custody of the child.

¶ 17 Father moved the district court for review of the magistrate's ruling. He argued, as relevant here, that the magistrate lacked jurisdiction to deny him custody of his son because the child had not been adjudicated as to him, and that the ruling violated his fundamental right to the care, custody, and control of the child. The court concluded that because the magistrate had adjudicated the child as to mother, the magistrate had not erred in allocating parental rights to uncle without first revoking father's deferred adjudication and separately adjudicating the child as to him. Alternatively, the court said that “[t]o the extent error might be determined for the failure to enter a specific revocation,” and having reviewed the entire record, it found that the deferred adjudication as to father should be and was revoked. Relying on People in Interest of N.D.V., 224 P.3d 410 (Colo.App.2009), and father's admission to paragraph 4(d) of the amended petition, the court then entered an adjudication as to father nunc pro tunc August 23, 2010, when the original deferred adjudication had been entered. It referenced evidence presented to the magistrate and findings “that father had significantly failed to comply with his treatment plan.”

II. Law

...