COLORADO COURT OF APPEALS                                            2017COA68


Court of Appeals No. 16CA0860
Montezuma County District Court No. 14JV16
Honorable Douglas S. Walker, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of C.W.B., Jr., a Child,

and Concerning M.A.S.,

Respondent-Appellee,

and

J.S. and A.S.,

Intervenors-Appellants.


                             JUDGMENT AFFIRMED

                                   Division II
                           Opinion by JUDGE DAILEY
                              Furman, J., concurs
                               Harris, J., dissents

                            Announced May 18, 2017


John Baxter, County Attorney, Ian MacLaren, Special County Attorney, Cortez,
Colorado, for Petitioner-Appellee

Robert G. Tweedell, Guardian Ad Litem

Mark Reider, Cortez, Colorado, for Respondent-Appellee

The Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez, Colorado, for
Intervenors-Appellants
Linda Weinerman, Executive Director, Dorothy M. Macias, Denver, Colorado,
for Amicus Curiae Colorado Office of the Child’s Representative
¶1    In this dependency and neglect proceeding, foster father J.S.

 and foster mother A.S. (Intervenors) appeal from the order denying

 the motion to terminate the parent-child legal relationship between

 M.A.S. (mother) and C.W.B., Jr. (child). We affirm.

                          I.    Background

¶2    In June 2014, mother brought the child, then ten weeks old,

 to the emergency room for investigation of a fever. The child had

 undergone open heart surgery approximately six weeks earlier and

 had been scheduled to have a follow-up appointment that day, but

 C.W.B., Sr. (father) had cancelled the appointment. The

 Montezuma County Department of Social Services (Department)

 was notified of possible child abuse when an examination revealed

 that the child had a broken femur and a skull fracture.

¶3    A petition in dependency and neglect was filed, and the child

 was placed in the home of the Intervenors. Father and mother

 admitted that the child’s environment was injurious to his welfare,

 and treatment plans were adopted for both of them.

¶4    Shortly thereafter, however, father pleaded guilty to domestic

 violence and child abuse charges, and received an eight-year prison

 sentence. The Department then moved to terminate his parental


                                  1
 rights, and the court granted the motion. Although father’s

 parental rights were terminated, mother continued to work on her

 treatment plan.

¶5    In April 2015, the Intervenors retained counsel and moved to

 intervene in the dependency and neglect proceeding. The court

 granted the motion, and thereafter the Intervenors participated fully

 in the proceeding.

¶6    In December 2015, the Department proposed that the child be

 moved to a new foster home, closer to mother’s residence, to

 facilitate visits and foster the goal of reunifying the child with

 mother. In its report to the court, the Department observed that

 the Intervenors appeared to be in conflict with the goal of returning

 the child to his home, as they were “too attached” to the child and

 “want[ed] adoption to happen for them.”

¶7    Later that month, however, the child’s guardian ad litem (GAL)

 moved to terminate mother’s parental rights on the basis that she

 had not reasonably complied with her treatment plan and was an

 unfit parent.

¶8    In May 2016, after a two-day hearing, the trial court denied

 the motion to terminate mother’s parental rights, finding, among


                                     2
  other things, that the GAL had failed to prove that mother was

  unfit. The Intervenors now appeal from this judgment. The GAL

  did not appeal this decision, and the Department filed an opposition

  brief, asking this court to uphold the denial of the termination

  motion.

                             II.   Standing

¶9     Before we can address the merits of the Intervenors’

  contentions, we must determine whether they have standing to

  raise them. We conclude that they do.

¶ 10   Standing is a jurisdictional prerequisite that may be raised at

  any stage of the proceedings, including on appeal. HealthONE v.

  Rodriguez, 50 P.3d 879, 891 n.5 (Colo. 2002). If the parties do not

  raise the issue, the court may raise it sua sponte. Romer v. Bd. of

  Cty. Comm’rs, 956 P.2d 566, 586 (Colo. 1998).

¶ 11   We asked the Intervenors and the other parties to this case to

  submit supplemental briefs addressing whether the Intervenors

  have standing to prosecute this appeal. The Intervenors primarily

  argue that section 19-3-507(5)(a), C.R.S. 2016, which gives them an

  unconditional right to intervene in the termination proceedings,




                                    3
  also gives them a right to appeal any determination concerning the

  best interests of the child. We agree.

¶ 12   Whether the plaintiff has standing is a question of law that we

  review de novo. Romer, 956 P.2d at 586; Weisfield v. City of Arvada,

  2015 COA 43, ¶ 7.

¶ 13   A party has standing if he or she (1) suffered an injury in fact

  (2) to a legally protected interest. Ainscough v. Owens, 90 P.3d 851,

  855 (Colo. 2004); Wimberly v. Ettenberg, 194 Colo. 163, 168, 570

  P.2d 535, 539 (1977).

¶ 14   Here, the Intervenors have suffered an injury in fact,

  inasmuch as they were arguably positioned to adopt the child in the

  event the mother’s parental rights had been terminated.

¶ 15   The question, then, is whether the Intervenors’ injury was to a

  “legally protected interest” which would give them standing to

  appeal an adverse decision of the trial court. A “legally protected

  interest” is one recognized under the constitution, the common law,

  a statute, a rule, or a regulation. Ainscough, 90 P.3d at 856.

¶ 16   The Intervenors have no constitutionally protected liberty

  interest in their relationship with the child. See Smith v. Org. of

  Foster Families for Equal. & Reform, 431 U.S. 816, 846 (1977); M.S.


                                     4
  v. People, 2013 CO 35, ¶¶ 16-21. But section 19-3-507(5)(a)

  provides that “foster parents who have the child in their care for

  more than three months who have information or knowledge

  concerning the care and protection of the child may intervene as a

  matter of right following [a dependency and neglect] adjudication

  with or without counsel.”

¶ 17   In A.M. v. A.C., 2013 CO 16, the supreme court held that

  section 19-3-507(5)(a) gives foster parents the right to intervene and

  “participate fully” as parties “in the termination hearing without

  limitation.” Id. at ¶ 20. The court interpreted the statute as giving

  the foster parents the right to “make opening statements,

  cross-examine witnesses, introduce evidence, make evidentiary

  objections, and give closing argument,” id. at ¶ 39, in order to

  “advocate for the child’s best interests,” id. at ¶ 19. As we read the

  supreme court’s opinion, the statute gives qualifying foster parents

  a right to represent the best interests of the child, and therefore a

  stake in the outcome of the controversy.

¶ 18   Because

           “[a]n intervenor, whether by right or by permission,

             normally has the right to appeal an adverse final


                                     5
            judgment by a trial court,” Stringfellow v. Concerned

            Neighbors in Action, 480 U.S. 370, 375-76 (1987);

           the supreme court has determined that section 19-3-

            507(5)(a) gives qualifying foster parents a stake in the

            outcome of a termination proceeding and affords them

            the “full panoply of rights that the existing parties enjoy,”

            A.M. at ¶ 17; and

           the typical parties to a termination proceeding (i.e., the

            parents, the Department, and the child’s GAL) all have

            the right to appeal from a trial court’s termination order,

  we conclude that the Intervenors have standing to appeal a decision

  in a termination proceeding.

¶ 19   Accordingly, we turn to the merits of the arguments on appeal.

                                 III.   Merits

                         A.     Needs of the Child

¶ 20   The Intervenors first contend that the trial court abused its

  discretion by failing to give primary consideration to the physical,

  mental, and emotional conditions and needs of the child when

  denying the motion to terminate mother’s parental rights. They

  argue that the court disregarded “copious expert testimony”


                                        6
  regarding the emotional impact to a child if he is removed from his

  primary caregivers. We conclude that the court applied the correct

  legal standard in denying the motion.

¶ 21   Under section 19-3-604(1)(c), C.R.S. 2016, the parent-child

  legal relationship may be terminated upon finding by clear and

  convincing evidence that (1) the child has been adjudicated

  dependent or neglected; (2) an appropriate treatment plan has not

  been reasonably complied with by the parent or has not been

  successful; (3) the parent is unfit; and (4) the conduct or condition

  of the parent is unlikely to change within a reasonable time.

¶ 22   In deciding whether to terminate parental rights, a trial court

  bases its decision on the best interests of the child. People in

  Interest of D.P., 160 P.3d 351, 356 (Colo. App. 2007). In making

  that determination, the court must give primary consideration to

  the physical, mental, and emotional conditions and needs of the

  children. § 19-3-604(3). “This is not to say, however, that the

  child’s welfare is the only consideration. Nor does it imply that the

  child’s welfare and the parents’ interest in maintaining the parental

  relationship are in irreconcilable conflict.” People in Interest of E.A.,

  638 P.2d 278, 285 (Colo. 1981).


                                      7
¶ 23   Rather, a determination of parental unfitness is intertwined

  with a determination of the child’s best interests. K.D. v. People,

  139 P.3d 695, 700 (Colo. 2006). An unfit parent is one whose

  conduct or condition renders him or her unable or unwilling to give

  the child reasonable parental care to include, at a minimum,

  nurturing and safe parenting sufficiently adequate to meet the

  child’s physical, emotional, and mental health needs and

  conditions. § 19-3-604(2).

¶ 24   A parent may not be determined to be unfit simply because he

  or she has made a mistake or is temporarily unable to meet the

  child’s needs. See, e.g., K.D., 139 P.3d at 700 (parental

  incarceration may be considered in determining whether a parent is

  unfit, but incarceration alone is an insufficient basis on which to

  terminate parental rights). Nor is a parent unfit because another

  person can provide a “better” home for the child. See E.A., 638 P.2d

  at 285 (“A child’s care and guidance preferably should be

  administered by his natural parents and the parental relationship

  should not be terminated simply because the child’s condition

  thereby might be improved.”).




                                    8
¶ 25   “Termination is an unfortunate but necessary remedy when all

  reasonable means of establishing a satisfactory parent-child

  relationship have been tried and found wanting.” People in Interest

  of A.M.D., 648 P.2d 625, 640 (Colo. 1982).

¶ 26   Here, in a lengthy, detailed, and thoughtful order, the trial

  court found that there were reasons to be concerned about

  returning the child to mother, and reasons to prefer placing him

  permanently with his foster parents. The court noted that a

  parent-child interactional assessment, updated in March 2016,

  characterized the bond between mother and the child as “secure

  but fragile,” and the assessor stated that the child would be at great

  risk of becoming emotionally disturbed if returned to mother’s care.

¶ 27   The court also noted that additional concerns had been raised

  at the hearing on the motion to terminate mother’s parental rights,

  such as that mother’s uncle had recently been arrested in the

  parking lot of her apartment building with methamphetamine in his

  possession; the child sometimes “struggled” with visitation with

  mother; mother had reportedly been “around” a person known to

  the Department to be a sex offender; mother had made no effort to

  get her GED, and she was unemployed; and mother had recently


                                    9
  given birth to a new baby and concern had been expressed as to her

  ability to deal with the child while caring for the new baby. No such

  concerns arose with respect to the Intervenors, who were reported

  to be caring and extremely capable parents in whose home the child

  was doing well.

¶ 28   On the other hand, the court noted that there was substantial

  evidence that mother had complied with much of her treatment

  plan. She attended most of her mental health and substance abuse

  treatment and provided urine tests most of the time. She attended

  a domestic violence treatment group. The Department reported in

  November 2015 that she had completed her treatment plan. The

  expert she retained to perform a parenting capacity evaluation

  suggested that maintaining the parent-child relationship would be a

  worthwhile investment.

¶ 29   The trial court concluded that mother’s treatment plan was

  appropriate, and, although she had not done everything that the

  plan required, she had substantially complied with it. Additionally,

  the court found that the evidence showed that mother could and

  would provide nurturing and protection adequate to meet the




                                   10
  child’s physical, emotional, and mental health needs. Thus, the

  court stated that it could not find her unfit.

¶ 30   Summing up its reasons for denying the motion to terminate

  mother’s parental rights, the trial court acknowledged that it was

  required to give primary consideration to the child’s needs, but

  found that this was “not the only test that must be met.” The court

  explained as follows:

             It may very well be true that a life with the
             foster family would be better for [the child]
             than life with his mother. However, this
             motion is not a custody battle between the two
             homes. The issue here is whether [mother’s]
             parental rights should be terminated, not
             which of the two homes would be better or if
             [mother] is a perfect parent. The fact is that
             the statutory basis to terminate mother’s
             parental rights was not met in this case.

¶ 31   We are satisfied that the court applied the correct legal

  standard in denying the motion to terminate mother’s parental

  rights. To the extent that the Intervenors contend that the

  requirement that the court give “primary consideration” to the

  child’s needs means that all other factors are secondary to the

  child’s needs, including questions of parental fitness, we disagree.

  Colorado law requires that the child’s needs and the parent’s ability



                                    11
  to meet the child’s needs be considered together. K.D., 139 P.3d at

  700 (the determination of parental unfitness is intertwined with a

  determination of the child’s best interests).

                      B.   Conflict With Prior Orders

¶ 32   The Intervenors next contend that the trial court abused its

  discretion in making a “final finding” that was contrary to other

  orders issued during the pendency of the case. Specifically, they

  argue that in denying the motion to terminate mother’s parental

  rights, the court disregarded evidence regarding continued stress on

  the child, including the potential long-term implications of removal

  of the child from his primary caretakers in favor of recognizing

  mother’s “partial compliance” with her treatment plan. This, they

  maintain, was contrary to an October 19, 2015, ruling in which the

  court reduced mother’s parenting time due to concerns about stress

  to the child.

¶ 33   To the extent that the Intervenors contend that the court’s

  denial of the motion to terminate mother’s parental rights — after

  previously granting a motion to limit her visitation — was an abuse

  of the court’s discretion because the child’s needs should be the

  court’s paramount concern, and all other factors should have been


                                    12
  treated as secondary, we have addressed their argument above and

  rejected it.

¶ 34   To the extent that the Intervenors intend to make a different

  argument, they have failed to describe specifically the trial court’s

  abuse of discretion, and they have set forth no authorities in

  support of their contention that there was an abuse of discretion.

  Accordingly, the contention is not properly before us, and we will

  not attempt to address it. See People in Interest of D.B-J., 89 P.3d

  530, 531 (Colo. App. 2004) (where appellant broadly asserts error,

  but does not identify supporting facts, make specific arguments, or

  set forth specific authorities to support his contention, the

  contention is not properly before the appellate court, and the

  appellate court will not address it).

             C.   Expedited Permanency Planning Procedures

¶ 35   Finally, the Intervenors contend that the trial court erred in

  refusing to require the Department to comply with the expedited

  procedures required under section 19-3-703, C.R.S. 2016. We

  perceive no error.

¶ 36   When a proceeding concerns a child under the age of six, the

  child must be placed in a permanent home no later than twelve


                                     13
  months after the original out-of-home placement, unless the trial

  court finds that a permanent home is not in the child’s best

  interests at that time. § 19-3-703; People in Interest of B.C., 122

  P.3d 1067, 1072 (Colo. App. 2005).

¶ 37   In determining whether a placement delay is in the best

  interests of the child, the court must be shown clear and convincing

  evidence that reasonable efforts were made to find the child an

  appropriate permanent home and such a home is not currently

  available or the child’s mental or physical needs or conditions deem

  it improbable that the child would have a successful permanent

  placement. § 19-3-703.

¶ 38   Here, the trial court found that “the fact that the mother had

  additional time to complete her treatment plan, while frustrating

  the goal of expeditious planning and permanency, furthered the

  goal of reunification of the child with the mother.” Although the

  court did not say so, reunification of the child with mother will

  provide the child with a permanent home. See id. (“For the

  purposes of this section, a permanent home shall include . . . the

  child’s reunification with the child’s parents.”). Moreover,

  reunification serves the purposes of the Children’s Code, as set


                                    14
  forth in section 19-1-102(1)(a), C.R.S. 2016: “To secure for each

  child subject to these provisions such care and guidance, preferably

  in his own home, as will best serve his welfare and the interests of

  society.”

¶ 39   We conclude that the trial court’s findings are adequate to

  show that there was good cause to delay permanency in this case.

                          IV.   Conclusion

¶ 40   The order denying the motion to terminate the parent-child

  legal relationship between mother and the child is affirmed.

       JUDGE FURMAN concurs.

       JUDGE HARRIS dissents.




                                   15
       JUDGE HARRIS, dissenting.

¶ 41   In a thorough and well-reasoned opinion, my colleagues affirm

  the juvenile court’s thoughtful order denying the motion to

  terminate mother’s parental rights. My disagreement is not with my

  colleagues’ treatment of the merits of this case; it is with their

  decision to reach the merits in the first place.

¶ 42   The foster parents (Intervenors) are the only parties appealing

  the juvenile court’s order. The child’s guardian ad litem (GAL) filed

  the motion to terminate mother’s parental rights, over the objection

  of the Montezuma County Department of Social Services

  (Department), but has not appealed the denial of the motion. The

  threshold question is whether the Intervenors have standing to

  prosecute this appeal on their own. Because I conclude that they

  do not, I respectfully dissent.

                         I.    Procedural History

¶ 43   A few additional facts are in order, as they highlight some of

  the procedural peculiarities that caution against allowing the

  Intervenors to proceed on appeal.




                                     16
¶ 44       Shortly after the child was adjudicated dependent and

  neglected in July 2014, he was placed with the Intervenors who, by

  all accounts, have provided him with a loving and stable home.

¶ 45       Mother had a rocky start with her treatment plan, and by

  September or October, the juvenile court had changed the

  permanency plan from reunification to adoption by a third party.

  But in early 2015, mother changed course and began to engage in

  treatment. The Intervenors intervened in the case a few months

  later.

¶ 46       Mother continued to make progress with her treatment plan

  and, in June 2015, she moved to change the permanency goal back

  to reunification. The court set a hearing on mother’s motion, but

  mother vacated the hearing after the Department, impressed with

  mother’s progress in treatment and the strengthening bond between

  her and the child, voluntarily agreed to change the goal. In

  response, the GAL filed a motion to block the Department’s

  visitation plan and to reschedule the permanency hearing.

¶ 47       At the rescheduled hearing in October 2015, the court ordered

  increased visitation for mother (without overnight visits), but did

  not formally change the permanency plan. The following month,


                                      17
  however, the Department reported that mother had successfully

  completed her treatment plan and that the permanency goal had

  changed from adoption back to reunification within six months, by

  March 2016.

¶ 48   In its December 11, 2015, report to the court, the Department

  stressed that the child “needs more time with his biological

  mother,” and requested that the child move to a new placement

  closer to the mother’s home. The Department observed that the

  Intervenors had become an obstacle to reunification.

¶ 49   The GAL promptly filed a motion to terminate mother’s

  parental rights. Notwithstanding the GAL’s motion, in mid-January

  2016, the juvenile court modified the permanency goal back to

  reunification and ordered overnight visits between the mother and

  child.

¶ 50   Following a two-day termination hearing, at which the

  Intervenors, represented by counsel, fully participated, the court

  denied the GAL’s motion, concluding that mother had substantially

  complied with her treatment plan and that the GAL had failed to

  prove that mother was unfit.




                                   18
                    II.   The Requirement of Standing

                     A.   General Standing Principles

¶ 51   Colorado’s standing requirement, like that employed in the

  federal courts, embraces both constitutional and prudential

  concerns. City of Greenwood Village v. Petitioners for Proposed City

  of Centennial, 3 P.3d 427, 436 (Colo. 2000). To give effect to both

  concerns, our standing rules require that a plaintiff demonstrate

  the he or she (1) suffered an injury in fact and that (2) the injury

  was to a legally protected interest. Id.; see also Wimberly v.

  Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977).

¶ 52   The first prong, the injury-in-fact requirement, has its roots in

  article VI, section 1 of the Colorado Constitution, which limits a

  court’s jurisdiction to resolution of “actual controversies.”

  Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 9.

  The existence of an injury in fact ensures that an actual controversy

  is presented so that the matter is proper for judicial resolution. Id.

  Although both tangible and intangible injuries can satisfy the

  injury-in-fact requirement, an injury that is overly indirect and

  incidental to the conduct at issue will not convey standing.

  Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004).


                                     19
¶ 53   The second prong, the legally-protected-interest requirement,

  promotes judicial efficiency. See Hickenlooper, ¶ 10. This

  prudential consideration recognizes that “parties actually protected

  by a statute or constitutional provision are generally best situated

  to vindicate their own rights.” City of Greenwood Village, 3 P.3d at

  437. Thus, the inquiry under this prong is whether the plaintiff has

  a claim for relief under the constitution, the common law, a statute,

  a rule, or a regulation. Marks v. Gessler, 2013 COA 115, ¶ 84.

¶ 54   In sum, the standing rules ensure that a specific controversy

  is presented to the court by a plaintiff with a “personal stake in the

  outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204

  (1962), while preventing intermeddlers from “trying to protect others

  who do not want the protection,” and who may not believe that the

  litigation will further their interests, Erwin Chemerinsky, Federal

  Jurisdiction 57-59 (4th ed. 2003).

                   B.    Intervenor Standing to Appeal

¶ 55   The Intervenors entered the proceedings pursuant to section

  19-3-507(5)(a), C.R.S. 2016. Under this statute, foster parents who

  have had the child in their care for more than three months and

  who have information or knowledge concerning the care and


                                    20
  protection of the child may intervene as a matter of right in the

  termination proceedings. See A.M. v. A.C., 2013 CO 16, ¶ 1.

¶ 56   Ordinarily, intervenors cannot entirely bypass the usual

  standing rules, as intervention as of right under C.R.C.P. 24 itself

  requires a direct, substantial, and legally protectable interest in the

  question at issue in the lawsuit. Cf. Wis. Educ. Ass’n Council v.

  Walker, 705 F.3d 640, 658 (7th Cir. 2013) (interpreting Fed. R. Civ.

  P. 24(a)).1 But when a statute confers an unconditional right to

  intervene — as section 19-3-507(5)(a) does for foster parents who

  have had the child in their care for the requisite period of time —

  intervenors need not prove a direct interest in the litigation,

  because the legislature has already declared their interest sufficient

  by granting the statutory right to intervene. See Ruiz v. Estelle, 161

  F.3d 814, 828 (5th Cir. 1998).

¶ 57   Thus, the Intervenors could intervene as parties in the trial

  court, regardless of whether, in the absence of section 19-3-507,

  1 While Colorado’s standing jurisprudence does not duplicate all the
  features of federal standing doctrine, similar considerations
  underlie both Colorado and federal standing law, and we frequently
  consult federal cases for persuasive authority. City of Greenwood
  Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 436
  n.7 (Colo. 2000).


                                    21
  they could establish the direct stake in the outcome necessary to

  obtain standing.

¶ 58   But the mere act of intervening in the trial court does not

  confer automatic standing to appeal: “[S]tatus as a party does not

  equate with status as an appellant.” Diamond v. Charles, 476 U.S.

  54, 63 (1986). The constitutional prong of our standing test

  demands that an “actual controversy” persist throughout all stages

  of litigation. See Hollingsworth v. Perry, 570 U.S. __, __, 133 S. Ct.

  2652, 2661 (2013). “That means that standing ‘must be met by

  persons seeking appellate review, just as it must be met by persons

  appearing in courts of first instance.’” Id. (quoting Arizonans for

  Official English v. Arizona, 520 U.S. 43, 64 (1997)); see also In re

  Marriage of Shapard, 129 P.3d 1007, 1009 (Colo. App. 2004)

  (“Standing is a jurisdictional prerequisite to any appeal.”). Thus, in

  the absence of another party with standing, an intervenor’s right to

  continue a suit — as opposed to his or her right to enter the

  litigation in the first instance — is contingent upon a showing that

  the intervenor independently fulfills the standing requirements.

  Diamond, 476 U.S. at 68.




                                     22
¶ 59   To proceed with the appeal, then, the Intervenors must

  ultimately demonstrate an injury in fact to a legally protected

  interest. And because standing to appeal is at issue, the

  Intervenors must demonstrate some injury from the judgment

  below. See Sierra Club v. Babbitt, 995 F.2d 571, 575 (5th Cir.

  1993); see also 15A Charles Alan Wright, Arthur R. Miller & Edward

  H. Cooper, Federal Practice and Procedure: Jurisdiction § 3902, at 63

  (2d ed. 1992) (hereinafter Wright & Miller) (“The most obvious

  difference between standing to appeal and standing to bring suit is

  that the focus shifts to injury caused by the judgment rather than

  injury caused by the underlying facts.”). 2

¶ 60   In other words, a prospective appellant has a right to appeal a

  judgment only if he or she is “aggrieved” by it. City & Cty. of

  Broomfield v. Farmers Reservoir & Irrigation Co., 235 P.3d 296, 302

  (Colo. 2010). “Aggrieved” refers to a substantial grievance such as

  the denial of some claim of right, or the imposition of some burden

  or obligation. Id. (quoting Miller v. Reeder, 157 Colo. 134, 136, 401

  2 Thus, contrary to the Intervenors’ assertion, the potential denial of
  standing to appeal cannot constitute the requisite injury in fact
  sufficient to confer standing to appeal. The injury must arise from
  the trial court’s judgment or order.


                                    23
  P.2d 604, 605 (1965)). “Appeals are not allowed . . . to present

  purely abstract legal questions however important or interesting,

  but to correct errors injuriously affecting the rights of some party to

  the litigation.” Id. (quoting Miller, 157 Colo. at 136, 401 P.2d at

  605).3

¶ 61   The Intervenors’ standing to appeal therefore turns on whether

  the juvenile court’s order preserving the mother’s legal relationship

  with her child injuriously affected their rights. That inquiry, in

  turn, depends on the nature of the rights conferred under section




  3 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375
  (1987), the case relied on by the majority for the proposition that an
  intervenor “normally has the right to appeal an adverse final
  judgment,” is not inconsistent with the general rule that standing
  must be established at each stage of the litigation. The Court’s
  pronouncement in Stringfellow, a case involving whether an order
  denying intervention as of right but granting permissive
  intervention is immediately appealable, means simply that an
  intervenor normally has the right to appeal a final judgment
  adverse to it. Indeed, the Court supported its statement with a
  citation to Moore’s Federal Practice, which confirms that “[a]n
  intervenor may appeal from ‘all interlocutory and final orders that
  affect him . . . .’” Id. at 376 (quoting 3B James William Moore &
  John E. Kennedy, Moore’s Federal Practice ¶ 24-15, pp. 24-169 to
  24-170 (2d ed. 1985)) (emphasis added). This is just another way of
  saying that an intervenor may appeal if he or she is “aggrieved” by
  the judgment.


                                    24
  19-3-507(5)(a) — the source of the rights that the Intervenors say

  they have been denied.

  III.   The Intervenors Do Not Have Standing to Appeal Under Section
                                 19-3-507(5)(a)

¶ 62     Section 19-3-507(5)(a) says “[p]arents, grandparents, relatives,

  or [qualifying] foster parents” have the right to intervene, which,

  according to our supreme court, means they can “participate fully”

  as parties “in the termination hearing without limitation,” A.M., ¶

  20. Specifically, the statute gives intervenors the right to “make

  opening statements, cross-examine witnesses, introduce evidence,

  make evidentiary objections, and give closing argument.” Id. at ¶

  39.

   A.     The Intervenors Have Not Suffered an Injury to the Procedural
                Rights Granted to Them by Section 19-3-507(5)(a)

¶ 63     If the statute confers only these procedural rights, the

  Intervenors suffered no injury in the trial court because they were

  not precluded from exercising these rights. Cf. Marks, ¶ 87 (the

  plaintiff had standing to appeal dismissal of her administrative

  complaint and denial of a hearing where federal and state statutes

  conferred right to file a complaint and to participate in a hearing).

  And, under those circumstances, the Intervenors do not have an


                                     25
  interest in the outcome of the case — i.e., the placement of the child

  — but merely an interest in participation in the process by which

  the court arrives at the outcome.

¶ 64   A statute could certainly grant an intervenor the right to

  participate in a proceeding without granting an automatic right to

  judicial review of a final decision. In Georgia Power Co. v. Campaign

  for a Prosperous Georgia, 336 S.E.2d 790 (Ga. 1985), for example,

  the Georgia Supreme Court determined that a statute allowing a

  consumer group to intervene in proceedings on a utility’s

  application for a rate increase did not necessarily confer standing to

  seek review of the administrative decision. Id. at 794. The court of

  appeals had concluded that the public policy of providing

  consumers adequate representation in proceedings affecting utility

  rates would be frustrated unless the court construed the statute as

  also granting parties to the proceeding an automatic right to

  judicial review. Id. at 793. But the supreme court disagreed,

  reasoning that giving intervenors party status, and allowing them to

  present evidence and cross-examine witnesses, effectuated, “in a

  manner unrelated to judicial review,” the public policy of granting

  adequate representation to consumers in these types of


                                      26
  proceedings. Id. at 794. Thus, the court concluded, to establish a

  right to appeal, the consumer group had to show that it was

  actually aggrieved by the administrative decision. Id.

¶ 65   In my view, section 19-3-507(5)(a) similarly confers on

  Intervenors a right to participate in the proceedings, but not an

  automatic right to challenge the outcome. By granting intervenors

  party status, and the accompanying rights of “unlimited”

  participation at the termination hearing, the statute effectuates, in

  a manner unrelated to judicial review, a policy of encouraging

  participation in a dependency and neglect proceeding of all persons

  who might have relevant information, thereby promoting the

  accuracy of juvenile court decisions. As the Colorado Supreme

  Court has explained, the persons identified by the statute,

  including foster parents, are often “uniquely positioned to provide a

  juvenile court with the most up-to-date status of the child and the

  child’s well-being.” A.M., ¶ 35; see also People in Interest of

  M.D.C.M., 34 Colo. App. 91, 94, 522 P.2d 1234, 1236 (1974)

  (permitting foster parents to intervene after dispositional hearing

  because “their relationship with or particular knowledge concerning




                                     27
  the child[] can materially aid the court in its determination of what

  in fact is in the child’s best interest”).

¶ 66   The Intervenors fully participated in the proceedings. So, if

  full participation in the proceedings is the extent of the rights

  conferred by section 19-3-507(5)(a), the Intervenors are not

  “aggrieved” by the trial court judgment, because it did not deny

  them any claim of right or impose a burden or obligation. City &

  Cty. of Broomfield, 235 P.3d at 302; see also State Bd. for Cmty.

  Colls. & Occupational Educ. v. Olson, 687 P.2d 429, 435 (Colo. 1984)

  (standing requires the existence of a legal right or interest that has

  been violated).

  B.    Section 19-3-507(5)(a) Does Not Grant the Intervenors A Right to
                     Assert the Child’s Interests on Appeal

¶ 67   To have standing to appeal the termination order, the statute

  must give the Intervenors more than a mere right to participate in

  the proceedings; it must give them a direct and substantial interest

  in the child’s placement with a particular person. See

  Hollingsworth, 570 U.S. at __, 133 S. Ct. at 2662 (To have standing,

  the party must “possess a ‘direct stake in the outcome’ of the case.”

  (quoting Arizonans for Official English, 520 U.S. at 64)).



                                       28
¶ 68   As the Intervenors acknowledge, though, the statute does not

  give them any legally protected right to a continued relationship

  with the child. M.S. v. People, 2013 CO 35, ¶¶ 14-15 (state

  dependency and neglect statutes do not give pre-adoptive foster

  parents a constitutionally protected liberty interest in their

  relationship with the foster child).4 Thus, any injury5 from the


  4 I recognize that foster parents may acquire, under other statutes,
  a legally protected interest in their relationship with a child placed
  in their care. See M.S. v. People, 2013 CO 35, ¶ 14 n.8 (noting that,
  with respect to a child who was available for adoption because the
  parental rights of both parents had been terminated, “[i]f the foster
  parents had initiated an adoption proceeding, then their claim of a
  liberty interest arguably could have been analyzed under the
  statutory framework for adoptions”). Still, I reject the Intervenors’
  argument that they acquired such an interest under sections
  19-3-702 and -703, C.R.S. 2016, which require expedited
  permanency planning for children under the age of six. According
  to the Intervenors, they gained a constitutionally protected liberty
  interest in continued contact with the child when the one-year
  permanency goal in section 19-3-703 was not achieved. I disagree.
  The statute does not create a liberty interest because it does not
  mandate a particular substantive outcome. M.S., ¶ 13. Indeed, it
  does not even require permanency within one year, if the court
  determines that a delay in placement is in the best interests of the
  child, as the court did here.

  5 The majority says that the Intervenors suffered an injury in fact
  because they were “arguably positioned to adopt the child” in the
  event mother’s parental rights had been terminated. Supra ¶ 14.
  In other words, according to the majority, the juvenile court’s order
  injured the Intervenors by separating them from their foster child


                                    29
juvenile court’s order denying the motion to terminate would not be

to the Intervenors’ own rights, as required to establish standing.

See Hollingsworth, 570 U.S. at __, 133 S. Ct. at 2662 (“To have

standing, a litigant must seek relief for an injury that affects him in

a ‘personal and individual way.’” (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992))); see also In the Interest of

Jackson E., 875 N.W.2d 863, 866-67 (Neb. 2016) (intervenor foster

parents had a right to participate in the termination proceedings,

but they lacked a right or interest in the subject matter of the

controversy and therefore lacked standing to appeal order changing



(whom they had not taken any steps to adopt). I need not weigh in
on whether separation from a foster child amounts to a legally
cognizable injury (I have no doubt that it amounts to an “injury” as
that word is commonly understood) because, even if it does, I
conclude that any injury is not to a legally protected interest. Still,
I am skeptical that, under these circumstances, the Intervenors can
satisfy the injury-in-fact prong of the standing test. An injury in
fact must be “direct and palpable,” not speculative and remote,
Olson v. City of Golden, 53 P.3d 747, 752 (Colo. App. 2002), or
incidental to the judgment, see Wimberly v. Ettenberg, 194 Colo.
163, 168, 570 P.2d 535, 539 (1977). The juvenile court’s task was
to determine whether mother had substantially complied with her
treatment plan and whether she was unfit. Intervenors’ separation
from the child is one consequence of the court’s denial of the
motion to terminate mother’s parental rights, but the injury is
incidental to the order. Likewise, any loss of the Intervenors’ right
to adopt the child is incidental and indirect as well as speculative.


                                   30
  the foster child’s placement); In the Interest of G.C., 735 A.2d 1226,

  1230 (Pa. 1999) (Given the “uniquely limited and subordinate,

  state-created, agency-maintained, foster parent/child relationship

  established through the [l]egislative scheme,” the foster parents

  lacked standing to challenge the court’s order placing the child with

  the grandfather.).

¶ 69   Still, the Intervenors say that even if the order did not affect

  their own rights, it affected the child’s rights. And, they say, section

  19-3-507(5)(a) gives them a right to advocate for the best interests

  of the child in their care. Therefore, according to the Intervenors,

  they have standing to challenge the juvenile court’s determination

  that termination of parental rights is not in the child’s best

  interests.

¶ 70   This is the argument that the majority finds persuasive. It

  points to a single sentence in A.M. — “The General Assembly,

  having granted foster parents the ability to advocate for the child’s

  best interests as intervenors, did not, in the same breath, confine

  that ability to a hearing in which there is no practical likelihood

  that foster parents would be able to participate,” ¶ 19 — and

  concludes that the Intervenors have standing to litigate “best


                                    31
  interests” on behalf of the child. Supra ¶ 17. In other words, it

  effectively determines that the Intervenors have third-party

  standing to assert the child’s interests on appeal.

¶ 71   I do not think that single sentence was intended to bear the

  weight that the majority places on it. And, it otherwise seems

  unlikely that section 19-3-507(5)(a) was intended to confer on

  intervenor-foster parents standing to assert the child’s rights.

¶ 72   For one thing, “[i]n the ordinary course, a litigant must assert

  his or her own legal rights and interests, and cannot rest a claim to

  relief on the legal rights or interests of third parties.” Hollingsworth,

  570 U.S. at __, 133 S. Ct. at 2663 (quoting Powers v. Ohio, 499 U.S.

  400, 410 (1991)); see also People in Interest of J.A.S., 160 P.3d 257,

  261 (Colo. App. 2007) (concluding that mother lacked standing to

  challenge court’s findings that father was unfit); People in Interest of

  E.S., 49 P.3d 1221, 1222 (Colo. App. 2002) (holding that mother did

  not have standing to raise issues concerning stepfather’s party

  status and that stepfather did not have standing to raise issues

  concerning the adjudication of the child as dependent or neglected

  as to the mother).




                                     32
¶ 73   This limiting principle takes on even greater import where, like

  here, one party seeks to advance the interests of a nonappealing

  co-party. See, e.g., Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 742

  (6th Cir. 1997) (administrative law judge refused to permit claimant

  to withdraw his request for benefits from employer, and employee

  declined to appeal the ruling; employer lacked standing to appeal

  on behalf of employee); see also Shapard, 129 P.3d at 1009 (“A

  party does not have standing to appeal the portions of a judgment

  involving only the interests of a nonappealing party.”). In these

  circumstances, courts are wary of an appellant purportedly

  asserting the interests of a party who has determined that an

  appeal is not in its best interests. See Wright & Miller § 3902, at

  68-70. Both the Department and the GAL — who are statutorily

  obligated to look out for the safety and best interests of the child —

  have declined to pursue an appeal of the court’s order, leaving only

  the Intervenors to insist that an appeal is in the best interests of the

  child.

¶ 74   Because of these concerns, a person asserting third-party

  standing must first demonstrate an injury to himself or herself, see

  People v. Rosburg, 805 P.2d 432, 435 (Colo. 1991), and, as I have


                                    33
  explained, the Intervenors have not identified any injury to their

  own legally protected interests.

¶ 75   Moreover, third-party standing usually applies to cases

  involving the deprivation of constitutional rights, see State Bd. for

  Cmty. Colls., 687 P.2d at 440, and then only upon a showing that

  the third party will have difficulty asserting his or her own rights,

  see, e.g., City of Greenwood Village, 3 P.3d at 439 (third-party

  standing rule assumes that, absent a barrier to participation, a

  person with a direct interest at stake will assert his or her own

  rights). The Intervenors contend that they are identically situated

  to the GAL and the Department, with the same stake in protecting

  the interests of the child. Setting aside the inaccuracy of the

  contention — the GAL and the Department have statutory authority

  and duties not conferred on foster parents, see, e.g., § 19-3-203,

  C.R.S. 2016; see also Chief Justice Directive 04-06, Court

  Appointments Through the Office of the Child’s Representative,

  § V(B) (revised Jan. 2016) (outlining “unique statutory

  responsibilities of a GAL”) — the contention itself undercuts the

  Intervenors’ position: if the GAL and the Department are already

  representing the best interests of the child, it is unclear why the


                                     34
  Intervenors would also be specially charged with advocating for his

  interests, such that they could challenge the trial court’s decision

  regarding termination of parental rights.

¶ 76   Sections 19-1-111(1) and 19-3-203, C.R.S. 2016, provide for

  the appointment of a GAL for every dependent and neglected child.

  The GAL, who must be an attorney, is the “official representative of

  the child.” People in Interest of G.S., 820 P.2d 1178, 1181 (Colo.

  App. 1991); see also § 13-91-103(4), C.R.S. 2016 (defining GAL). In

  that capacity, he or she is expressly authorized to conduct

  investigations, participate in evidentiary hearings, make

  recommendations to the court concerning the child’s welfare, and

  “appeal matters to the court of appeals or the supreme court.”

  § 19-3-203(3). Like the Department, the GAL may file a motion to

  terminate parental rights. A.M., ¶ 14 (citing § 19-3-604(1)(c), C.R.S.

  2012). Unlike the foster parents, the GAL’s “client” is the “best

  interests of the child.” L.A.N. v. L.M.B., 2013 CO 6, ¶ 26 (quoting

  § 19-3-203(3)). Thus, the GAL owes fiduciary duties of loyalty and

  confidentiality to the child’s best interests. Id.

¶ 77   The Intervenors say that the GAL has “removed himself from

  the case” by failing to file an appeal of the juvenile court’s order


                                     35
  denying termination, leaving no other party to advocate for the

  child’s best interests. As a division of this court has recognized,

  however, “it is the guardian ad litem, and not any private

  intervenor, who continues to represent the child’s interest”

  throughout the litigation. G.S., 820 P.2d at 1181. A mere

  disagreement with the GAL’s determination that foregoing an appeal

  is in the best interests of the child (a determination shared by the

  Department) does not amount to a showing that the child’s

  interests are not represented.

¶ 78   Finally, third-party standing also requires that the person

  seeking standing have a “substantial relationship” with the third

  party. See City of Greenwood Village, 3 P.3d at 439. On the one

  hand, the Intervenors have cared for the child since July 2014 and

  have formed a strong bond with him, the importance of which I do

  not mean to diminish. But at the same time, the Intervenors’ rights

  with respect to the child, unlike those of the natural parents, derive

  primarily from a contract with the Department whereby they agree

  to provide temporary care for the child and adhere to the

  Department’s rules and, in exchange, the Department agrees to

  compensate them for their time and efforts. See Smith v. Org. of


                                    36
  Foster Families for Equal. & Reform, 431 U.S. 816, 845 (1977)

  (Unlike the natural family, which has “its origins entirely apart from

  the power of the State,” the foster parent-child relationship “has its

  source in state law and contractual arrangements.”); Dep’t of

  Human Servs. Regs. 7.708.3-.4, 12 Code Colo. Regs. 2509-8

  (specifying Department rules for care of foster children, including

  that foster parent must obtain written authorization from physician

  to dispense nonprescription medication to foster child, foster parent

  must provide an evening meal within fourteen hours of the morning

  meal, foster parent may not spank the foster child, foster parent

  must hold fire drills, and foster parent may not require foster child

  to participate in foster parent’s religious activities); see also In re

  Interest of Enyce J., 870 N.W.2d 413, 420 (Neb. 2015) (explaining

  that foster parents do not stand in loco parentis to foster child, as

  the department of human service’s rules limit foster parents’ role to

  “something that is decidedly less than that of a lawful parent”).

¶ 79   While the foster parents play an important role in helping the

  Department satisfy its duty to safeguard the interests of vulnerable

  children within the state — in part, by participating fully in the

  termination proceedings in juvenile court — I do not believe that


                                      37
  foster parents have the substantial relationship with the foster child

  that would give them standing to challenge a court’s order granting

  or denying a motion to terminate parental rights. Indeed, as the

  Department noted in this case, sometimes the interests of foster

  parents can conflict with the interests of the child in their care —

  not based on any bad intent but, to the contrary, because foster

  parents may become so attached to the foster child that it becomes

  impossible to separate their own interests from the child’s best

  interests. See Smith, 431 U.S. at 821 (court appointed separate

  counsel for foster children to “forestall any possibility of conflict

  between their interests and the interests asserted by the foster

  parents” regarding lawfulness of procedures governing removal of

  foster children from foster homes). In my view, the potential

  conflict makes foster parents decidedly poor candidates to assert

  the interests of their foster children on appeal, particularly where

  no other party is advocating for termination of parental rights.

¶ 80   In light of these considerations, I am dubious that, by its

  single sentence in A.M., the supreme court intended to announce a

  new rule granting third-party standing to foster parents under these

  circumstances. The issue upon which the court granted certiorari


                                     38
  review in A.M. was “[w]hether the court of appeals erred when it

  determined that the intervenor’s cross-examination of witnesses

  concerning the ‘care and protection’ of the child during a

  termination of parental rights hearing exceeded the meaning of

  ‘intervention,’ pursuant to section 19-3-507(5)(a), C.R.S. (2009),

  and violated the parents’ right to due process.” A.M., ¶ 7 n.3. In

  answering that particular question, the court held that, as

  intervenors, the foster parents were “properly permitted to make

  opening statements, cross-examine witnesses, introduce evidence,

  make evidentiary objections, and give closing arguments.” Id. at

  ¶ 39. I do not read into that holding an additional, and entirely

  separate, ruling that foster parents have standing to prosecute an

  appeal, on their own, of the court’s ultimate decision with respect to

  termination.

¶ 81   I am also hesitant to divine a new rule from an opinion that

  does not address the issue because the implications of such a rule

  are so far reaching. If foster parents have third-party standing to

  appeal from the denial of a motion to terminate parental rights, why

  wouldn’t they have a right to file the motion to terminate parental

  rights in the first place? The fact that the supreme court has never


                                    39
  recognized the right of foster parents to file such a motion —

  indeed, in A.M., the court suggested that only the Department and

  the GAL had the authority to file the motion, see id. at ¶ 14 (The

  parent’s failure to comply with the treatment plan may “provide

  grounds for the State or the guardian ad litem to file a motion to

  terminate parental rights.”) — is further evidence, in my view, that

  foster parents do not have standing to object to the court’s

  resolution of the motion. The right to file the motion and the right

  to challenge the order would seem to go hand in hand. See, e.g., In

  re Parental Responsibilities Concerning M.W., 2012 COA 162

  (mother’s former boyfriend could appeal the denial of his petition for

  allocation of parental rights under section 14-10-123(1), C.R.S.

  2012, where boyfriend had express statutory right to file petition

  seeking parenting time).

¶ 82   While section 19-3-507(5)(a) gives foster parents the right to

  intervene and to participate fully in the termination hearing, I

  conclude that it does not give the Intervenors third-party standing

  to assert the rights of their foster child on appeal. And because I

  have determined that the Intervenors cannot demonstrate an injury

  in fact to their own legally protected interests, I conclude that they


                                    40
lack standing to appeal the juvenile court’s order. Accordingly, I

would dismiss the appeal.




                                 41
