COLORADO COURT OF APPEALS                                       2017COA60


Court of Appeals No. 16CA1082
Mesa County District Court No. 14JV135
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of M.S., a Child,

and Concerning C.S.,

Respondent-Appellant.


                        JUDGMENT VACATED AND CASE
                         REMANDED WITH DIRECTIONS

                                   Division V
                       Opinion by JUDGE LICHTENSTEIN
                        Román and Freyre, JJ., concur

                             Announced May 4, 2017


J. Patrick Coleman, County Attorney, Katherine Barnes, Assistant County
Attorney, Grand Junction, Colorado, for Petitioner-Appellee

Robert G. Tweedell, Guardian Ad Litem

Leigh Coleman Taylor Law Office, Leigh Coleman Taylor, Grand Junction,
Colorado, for Respondent-Appellant
¶1    In this dependency and neglect proceeding, C.S. (father)

 appeals a district court order that denied his petition for judicial

 review of a magistrate order allocating parental responsibilities for

 his child, M.S.

¶2    Our review of the record, however, requires us to determine

 whether the magistrate had subject matter jurisdiction to issue its

 order.1 We conclude dependency and neglect proceedings are

 subject to the Uniform Child-custody Jurisdiction and Enforcement

 Act (UCCJEA), § 14-13-101, et. seq., C.R.S. 2016. And because the

 record does not demonstrate that the magistrate followed the

 procedures set forth in the UCCJEA to acquire jurisdiction, we

 vacate the judgment and remand the case for further proceedings.

                             I. Background

¶3    In May 2014, the Mesa County Department of Human Services

 (Department) assumed temporary custody of eight-year-old M.S.

 and initiated a dependency and neglect proceeding because father

 had been charged with multiple counts of sexual assault against

 the child’s mother (mother). Mother, who lived in Texas, reported

 1See People in Interest of J.C.S., 169 P.3d 240, 244 (Colo. App.
 2007) (sua sponte inquiry into jurisdiction is appropriate in
 dependency and neglect proceedings).

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 that father had obtained custody of M.S. and had allowed her to

 have limited contact with M.S.

¶4    By stipulation, the court adjudicated M.S. dependent or

 neglected and approved a treatment plan for father. Father pleaded

 guilty to sexual assault against mother and anticipated receiving a

 determinate six-year prison sentence.

¶5    Later, the Department moved for a permanent allocation of

 parental responsibilities (APR) for M.S. to mother. Following a

 contested hearing, the magistrate determined that it was in M.S.’s

 best interests to be placed with mother, but decided to delay ruling

 on the APR request until it again reviewed M.S.’s placement. After a

 further review hearing, the magistrate issued an order granting

 permanent APR to mother.

¶6    Father filed a notice of appeal with this court. A division of the

 court dismissed father’s appeal because he had not obtained

 district court review. Thereafter, father filed a petition for district

 court review of the permanent APR order. The district court denied

 father’s request. Father now appeals.




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                               II. UCCJEA

¶7     After reviewing the parties’ supplemental briefs, we conclude

  that the magistrate lacked jurisdiction under the UCCJEA to issue

  the permanent APR order.

        A. Applicability to Dependency and Neglect Proceedings

¶8     Initially, we address the Department’s argument that the

  UCCJEA does not apply to dependency and neglect proceedings

  once a child has been adjudicated dependent and neglected.

¶9     First, the Department’s reliance on People in Interest of E.C.,

  30 Colo. App. 190, 490 P.2d 706 (1971), is misplaced. In E.C., a

  division of this court reiterated that a Colorado court did not need

  to respect the custodial decree of another state when conditions

  necessitated Colorado’s intervention for the protection of a child

  found within its borders. Id. at 193-94, 490 P.2d at 708.

¶ 10   However, E.C. was decided before Colorado adopted the

  UCCJEA in 2000 or even before Colorado adopted its predecessor,

  the Uniform Child Custody Jurisdiction Act (UCCJA). See People in

  Interest of M.C., 94 P.3d 1220, 1222 (Colo. App. 2004) (recognizing

  that effective July 1, 2000, the UCCJEA replaced the UCCJA); see




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  also L.G. v. People, 890 P.2d 647, 655 (Colo. 1995) (noting that the

  UCCJA was adopted in Colorado in 1973).

¶ 11   Second, the UCCJEA governs child-custody proceedings,

  which it expressly defines as including dependency proceedings.

  § 14-13-102(4), C.R.S. 2016. Section 14-13-103, C.R.S. 2016,

  identifies two types of proceedings — adoptions and proceedings to

  authorize emergency medical care for a child — that are not

  governed by the UCCJEA. But, the UCCJEA does not include a

  similar provision exempting any stage of a dependency and neglect

  proceeding from its purview.

¶ 12   Accordingly, a dependency and neglect proceeding is one type

  of “child-custody proceeding” subject to the UCCJEA. §§ 14-13-101

  to -403, C.R.S. 2016.

                             B. Jurisdiction

¶ 13   Although this issue was not initially raised by the parties, we

  may address it sua sponte because it concerns the court’s subject

  matter jurisdiction. See In re Support of E.K., 2013 COA 99, ¶ 7.

  And, we may notice a lack of jurisdiction in a magistrate’s order

  that the district court has declined to review. See In re Marriage of

  Ferris, 75 P.3d 1170, 1171 (Colo. App. 2003).


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¶ 14   Whether a district court has subject matter jurisdiction over a

  UCCJEA proceeding presents a question of law that we review de

  novo. People in Interest of D.P., 181 P.3d 403, 406 (Colo. App.

  2008).

¶ 15   Under the UCCJEA, the court that makes an initial custody

  determination generally retains exclusive, continuing jurisdiction.

  § 14-13-206, C.R.S. 2016; M.C., 94 P.3d at 1223. In essence, the

  UCCJEA seeks to eliminate the simultaneous exercise of

  jurisdiction over custody disputes by more than one state. M.C., 94

  P.3d at 1223. Accordingly, absent temporary emergency

  jurisdiction under section 14-13-204, C.R.S. 2016, a Colorado court

  may only modify a custody order issued by an out-of-state court

  under limited circumstances.

¶ 16   First, the Colorado court must have jurisdiction to make an

  initial custody determination under section 14-13-201(1)(a) or (b),

  C.R.S. 2016. § 14-13-203(1), C.R.S. 2016; In re Marriage of Brandt,

  2012 CO 3, ¶ 33. As pertinent here, this requirement is satisfied

  when Colorado is or was the child’s home state — defined as the

  state in which the child has lived with a parent for at least 182

  consecutive days — when the proceeding begins or the court in the


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  child’s home state has declined jurisdiction on the ground that

  Colorado is the more appropriate forum. §§ 14-13-102(7)(a),

  -201(1)(a)-(b).

¶ 17   Additionally, the court in the issuing state must have lost or

  declined to exercise jurisdiction. Brandt, ¶ 33. This can occur

  when the court in the issuing state determines that (1) the child

  and parents no longer have a significant connection to the issuing

  state and substantial evidence regarding the child is not available in

  the issuing state, or (2) the Colorado court is a more convenient

  forum. §§ 14-13-202, -203(1)(a), C.R.S. 2016. Alternatively, either

  the court in the issuing state or a Colorado court may determine

  that the issuing state has been divested of jurisdiction because the

  child and parents do not presently reside in the issuing state.

  § 14-13-203(1)(b); Brandt, ¶¶ 26, 28.

¶ 18   The determination of whether an issuing state has lost

  exclusive, continuing jurisdiction based on nonresidency requires a

  broad inquiry into the totality of the circumstances. Brandt,

  ¶¶ 43-44. Significantly, before a Colorado court may assume

  jurisdiction to modify an out-of-state custody order, it must

  communicate with the issuing court pursuant to sections


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  14-13-110 to -112, C.R.S. 2016, and conduct a hearing if there is a

  factual dispute regarding the residency issue. Brandt, ¶ 35.

                               C. Analysis

¶ 19   Here, a California court had issued a custody order regarding

  M.S. prior to the initiation of the dependency and neglect

  proceeding. The Department’s exhibit that served as the factual

  basis for M.S.’s adjudication as dependent or neglected indicated

  that father had “obtained sole legal and physical custody of [M.S.]

  through Ventura Superior Court, California, Case Number D338591

  on or about 11/29/10.” Likewise, at the APR hearing, father

  testified that he had been granted custody of M.S. in California in

  2010.

¶ 20   Indeed, in considering the APR request, the magistrate

  observed that “there was evidence” of a California custody order

  regarding M.S. and that the issue needed to be addressed.

  However, the magistrate did not (1) confer with the California court

  that issued the 2010 custody order or (2) make a determination as

  to whether the California court had lost exclusive, continuing

  jurisdiction. Accordingly, the magistrate failed to acquire

  jurisdiction under the UCCJEA before it issued the permanent APR


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  order — effectively modifying the 2010 custody order from

  California.

¶ 21   We recognize that evidence presented at the APR hearing could

  support a finding that the California court had lost exclusive,

  continuing, jurisdiction because neither of the parents nor M.S.

  presently reside there. Father testified that he and M.S. had moved

  to Colorado shortly after the 2010 custody order was issued. He

  also indicated that mother had moved from California to New

  Mexico during that time. And, at the time of the APR hearing,

  mother lived in Texas.

¶ 22   Nonetheless, the record does not demonstrate that the

  magistrate followed the procedures set forth in the UCCJEA and

  Brandt to acquire jurisdiction to modify the California custody

  order. Accordingly, the permanent APR order must be vacated.

¶ 23   Because we have concluded that the permanent APR order

  must be vacated, we do not address father’s contention that the

  district court erred in denying his request for review of the

  magistrate’s APR order.




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                             III. Conclusion

¶ 24   The judgment is vacated, and the matter is remanded to the

  district court to direct the magistrate to determine whether it has

  jurisdiction to issue an APR order that modifies the California

  custody order. In doing so, the magistrate must communicate with

  the issuing court in California, and, if necessary, allow the parties

  to present evidence regarding residency.

       JUDGE ROMÁN and JUDGE FREYRE concur.




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