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                                                         ADVANCE SHEET HEADNOTE
                                                                    January 14, 2019

                                        2019 CO 4

No. 17SC250, People in Interest of D.Z.B.—Standing on Appeal.

       The supreme court reviews whether the court of appeals erred in concluding that

the Arapahoe County Department of Human Services (the Department) lacked standing

to challenge a district court’s temporary custody order placing D.Z.B., a juvenile, in one

of its residential facilities pending his delinquency adjudication.

       The supreme court concludes that the court of appeals erroneously merged the

analysis used to determine whether a plaintiff has standing to sue with the analysis used

to determine whether a non-party has standing to appeal to assess whether the

Department, a non-party to the district court proceedings, had standing to appeal. As a

result, the division required the Department to demonstrate that it (1) suffered an injury

in fact to a legally protected interest and (2) was substantially aggrieved by the district

court’s order. Because the Department was a non-party to the lower court proceedings,

the court of appeals should have assessed only whether the Department was substantially

aggrieved by the district court’s order. Accordingly, the supreme court reverses and

remands to the court of appeals to apply the correct standard and to consider any

outstanding issues.
                   The Supreme Court of the State of Colorado
                   2 East 14th Avenue • Denver, Colorado 80203

                                     2019 CO 4

                        Supreme Court Case No. 17SC250
                      Certiorari to the Colorado Court of Appeals
                       Court of Appeals Case No. 14CA2167

                                     Petitioner:

                 Arapahoe County Department of Human Services,

                                          v.

                        The People of the State of Colorado

                                  In the Interest of

                                    Respondent:

                                  D.Z.B., Juvenile.

                                Judgment Reversed
                                      en banc
                                  January 14, 2019


Attorneys for Petitioner:
Ronald Carl, Arapahoe County Attorney
Michael Valentine, Deputy County Attorney
Danielle Newman, Assistant County Attorney
      Aurora, Colorado

Attorneys for Respondent:
Megan Ring, Public Defender
Ryann S. Hardman, Deputy Public Defender
      Denver, Colorado
Attorneys for Amicus Curiae Colorado Counties, Inc.:
Hall & Evans, LLC
Thomas J. Lyons
Paul R. Janda
      Denver, Colorado

Attorneys for Amicus Curiae the Colorado Department of Human Services:
Philip J. Weiser, Attorney General
Tanya E. Wheeler, First Assistant Attorney General
Sarah Richelson, Assistant Attorney General
       Denver, Colorado




JUSTICE HART delivered the Opinion of the Court.
¶1    In 2014, the Arapahoe County Department of Human Services (the Department)

was ordered by the district court to take custody of D.Z.B. and house him in a particular

facility pending his delinquency adjudication. Believing that the court order imposed a

duty on it that was in violation of statutory requirements, the Department appealed that

order. The court of appeals dismissed the appeal, concluding that the Department, as a

non-party to the delinquency proceedings, lacked standing to appeal the order. In

reaching that conclusion, the division conflated the test to evaluate whether a plaintiff

has standing to bring a lawsuit with the test to determine whether a non-party has

standing to appeal a decision of a lower court. Accordingly, we reverse and remand for

the division to apply the correct standing analysis and to consider any other remaining

arguments.

                           I. Facts and Procedural History

¶2    D.Z.B., a habitual juvenile offender, was on probation when he was charged with

additional delinquent acts. The prosecution sought to revoke or modify his probation.

D.Z.B.’s counsel requested that the petitioner, the Department, investigate treatment and

confinement options for D.Z.B. At the pretrial hearing, the guardian ad litem and D.Z.B.’s

counsel requested that D.Z.B. be placed in one of the Department’s residential facilities,

Jefferson Hills, both prior to adjudication and as a sentence if he were adjudicated

delinquent.

¶3    The Department objected to D.Z.B. being placed in Jefferson Hills in lieu of bond

before the adjudication. The Department contended that under section 19-2-114(1)(a),

C.R.S. (2018), and state regulations governing out-of-home placements for at-risk

                                            3
children, the district court could not place D.Z.B. in one of the Department’s residential

child-care facilities without its consent until after a delinquency adjudication. See Dep’t

of Human Servs. Reg. 500, 12 Colo. Code Regs. 2509-4: 7.304.3 (2018) (establishing criteria

for out-of-home placement, including a finding of imminent risk, which can be

established by a delinquency adjudication). The district court disagreed and issued a

temporary custody order requiring that the Department place D.Z.B. in Jefferson Hills

pending his delinquency adjudication.

¶4     The Department appealed the temporary custody order. In its decision, the court

of appeals began by noting that D.Z.B.’s counsel had raised several threshold concerns

about the appeal, including the lack of a sufficient record, the absence of a final

appealable order, and the Department’s alleged lack of standing. People in Interest of

D.Z.B., 2017 COA 17, ¶ 16, __ P.3d __. Because it concluded that the Department did not

have standing to challenge the order, the court of appeals declined to address the other

issues raised by D.Z.B.’s counsel. Id. at ¶ 17.

¶5     In analyzing the Department’s standing, the division first inquired whether the

Department had suffered an injury in fact to a legally protected interest or had been

conferred standing under the Colorado Children’s Code. Id. at ¶¶ 33–44. To these

questions, the division answered no. Id. at ¶¶ 36, 44. The division then considered

whether the Department had been substantially aggrieved by the district court’s order

and found that, because the order did not place an “onerous or unique burden” on the

Department, there was no substantial grievance. Id. at ¶ 52. The Department now asks

us to reverse the court of appeals’ decision, arguing that the division departed from our

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longstanding precedent requiring a non-party to show only that it was substantially

aggrieved by a lower court’s order to have standing to appeal.

¶6       We granted certiorari. 1

                                        II. Analysis

¶7       Standing to bring a lawsuit in the first instance is distinct from standing to appeal

a lower court’s decision. To establish standing to sue, plaintiffs must demonstrate that

(1) they suffered an injury in fact and (2) the injury was to a legally protected interest.

Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 8, 338 P.3d 1002, 1006;

Barber v. Ritter, 196 P.3d 238, 245 (Colo. 2008). Any losing person or entity may appeal a

lower court’s decision if she was a party to the action in that court. Colo. Permanente Med.

Grp., P.C. v. Evans, 926 P.2d 1218, 1223 (Colo. 1996) (citing Miller v. Clark, 356 P.2d 965,

966 (Colo. 1960)). There is no independent requirement that a party to a proceeding

establish standing to appeal.

¶8       In contrast, an individual or entity who was not a party to a lower court

proceeding must demonstrate standing to appeal that decision. Unlike standing to sue,

standing to appeal does not require that a non-party demonstrate an injury to a legally

protected interest independent of the decision being appealed. “The most obvious




1   We granted certiorari to review the following issue:
         Whether the court of appeals erred in concluding that petitioner does not
         have standing to appeal a juvenile court’s decision concerning
         pre-adjudication placement in a delinquency case.

                                               5
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.” 15A

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure: Jurisdiction § 3902, at 63 (2d ed. 1992). Thus, a non-party may appeal a lower

court’s decision if the party has been injured by the disposition of the case. Evans, 926

P.2d at 1223; see Bush v. Winker, 907 P.2d 79, 81 (Colo. 1995) (concluding that a non-party

has standing to appeal a trial court’s final judgment if it was substantially aggrieved by

the order). Of course, not every adverse impact a court order or judgment has on a

non-party constitutes an injury sufficient to support standing to appeal. To establish

standing to appeal, a non-party must show that a trial court’s order imposes a

“substantial grievance” on that non-party. A substantial grievance exists when the lower

court’s decision denies a non-party some claim of right or imposes upon it a substantial

burden or obligation. City & Cty. of Broomfield v. Farmers Reservoir & Irrigation Co., 235

P.3d 296, 302 (Colo. 2010).

¶9     In determining whether the Department had standing to appeal the

pre-adjudication placement of D.Z.B. at Jefferson Hills, the court of appeals appears to

have merged these two standing analyses. In the resulting hybrid analysis, the court first

asked whether the Department had demonstrated that “it suffered an injury in fact . . . to

a legally protected interest.” D.Z.B., ¶ 21. The division then stated that non-parties, like

the Department, must also allege that they were “substantially aggrieved by the

disposition of the case in the trial court” to establish standing. Id. at ¶ 26. The only

question relevant to the Department’s standing to appeal the lower court’s decision,

                                             6
however, is the latter question—namely, whether the Department was “substantially

aggrieved” by the temporary custody order. See Evans, 926 P.2d at 1223 (“[T]o maintain

an appeal an individual or entity must ‘either be a party to the action or . . . must be a

person substantially aggrieved by the disposition of the case in the lower court.’”)

(internal citations omitted); see also People in Interest of C.A.G., 903 P.2d 1229, 1233 (Colo.

App. 1995) (holding that a non-party who was substantially aggrieved by the disposition

of the case in the trial court has standing to appeal).

¶10    The People rely heavily on our opinion in C.W.B., Jr. v. A.S., 2018 CO 8, 410 P.3d

438, for the proposition that a non-party seeking to appeal a trial court determination

must show both that it suffered an injury in fact to a legally protected interest and that it

was substantially aggrieved by a trial court decision. However, C.W.B. raised a very

different question from that presented here. In C.W.B., we were asked to consider

whether foster parents who had been given a statutory right to intervene as a party in a

trial court dependency and neglect proceeding thereby obtained automatic standing to

appeal a juvenile court’s ruling denying the termination of parental rights. Id. at ¶ 20,

410 P.3d at 443. The foster parents in C.W.B. were not non-parties to the termination

proceedings; they had been granted a statutory right to intervene. The question we

confronted was whether the right to intervene in the termination proceedings gave them

a legally protected interest that they were entitled to pursue on appeal. We explained

that the statutorily granted right to participate in a termination hearing as intervenors

did not entitle foster parents to appeal a decision not to terminate where neither the State

nor the guardian ad litem chose to do so. Id. at ¶ 28, 410 P.3d at 445.

                                              7
¶11    Our focus in C.W.B., while contextually unique, was consistent with the

appropriate inquiry to determine standing when a non-party seeks to appeal a trial court

decision. The foster parents in C.W.B. had been given a statutory right to participate as a

party in the termination proceedings, and they did participate in those proceedings. Id.

at ¶ 1, 410 P.3d at 440. But they did not have a legal interest in a particular outcome to

those proceedings. For that reason, they were not “aggrieved” by the decision of the trial

court. The statutory right to intervene at issue in C.W.B. distinguishes that case from the

traditional dispute over non-party standing to appeal. The inquiry, however, is much the

same: Did the decision of the trial court “substantially aggrieve” the non-party in the

sense that it denied that non-party a claim of right or imposed upon it a substantial

burden or obligation? See Evans, 926 P.2d at 1223; C.A.G., 903 P.2d at 1233.

¶12    We have not previously elaborated on what a non-party must demonstrate to

show a “substantial burden.” The inquiry will necessarily be fact-specific. The court of

appeals concluded that the burden imposed on the Department by the district court’s

order did not rise to the level of a “substantial grievance” because it did not impose a

“unique or onerous” burden on the Department. D.Z.B., ¶ 52. But we have never held

that a burden must be “unique or onerous” to confer standing on a non-party to appeal

a district court’s decision. And where a final court order requires a non-party agency to

act in a manner that the agency believes is prohibited by law, that order imposes a

substantial burden on the agency. In that instance, the agency must choose between

conflicting commands of two co-equal branches of government. An agency in that bind

has standing to appeal the trial court’s order.

                                             8
¶13   We therefore reverse the division’s decision and remand this case for application

of the correct standing analysis and consideration of the remaining threshold issues

raised by D.Z.B.’s counsel.

                                  III. Conclusion

¶14   In concluding that the Department lacked standing to appeal the district court’s

order, the court of appeals erroneously merged the two-prong legal injury test to

determine whether a party has standing to sue with the substantially aggrieved test used

to determine whether a non-party has standing to appeal. Accordingly, we reverse and

remand to the court of appeals to apply the correct standard and to consider any

remaining issues.




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