     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 25, 2018

                                2018COA10

    No. 17CA0255, People In Interest of M.R.M. — Juvenile
Court — Dependency and Neglect — Appeals — Final Appealable
Order

     In this dependency and neglect proceeding, mother appeals

from the order dismissing the dependency and neglect proceeding

concerning her children. A division of the court of appeals

concludes that the order from which mother seeks to appeal is not a

final and appealable order. Instead, the final appealable order that

mother seeks relief from is an order allocating parental

responsibilities, which was entered approximately two weeks prior

to the order dismissing the dependency and neglect

proceeding. The division concludes that because mother’s notice of

appeal was not filed within twenty-one days after the entry of the

order that was final and appealable, her appeal is untimely. For
that reason, the division dismisses the appeal for lack of

jurisdiction.
COLORADO COURT OF APPEALS                                         2018COA10


Court of Appeals No. 17CA0255
Garfield County District Court No. 16JV21
Honorable Denise K. Lynch, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of M.R.M., M.M.M., and M.M.M., Children,

and Concerning M.M.A.,

Respondent-Appellant.


                             APPEAL DISMISSED

                                   Division II
                         Opinion by JUDGE WELLING
                       Dailey and Hawthorne, JJ., concur

                         Announced January 25, 2018


Tari L. Williams, County Attorney, Heather K. Beattie, Assistant County
Attorney, Glenwood Springs, Colorado, for Petitioner-Appellee

Cassie L. Coleman and Luisa V. Berne, Guardians Ad Litem

Debra W. Dodd, Berthoud, Colorado, for Respondent-Appellant
¶1    In this dependency and neglect proceeding, M.M.A. (mother)

 appeals from the order dismissing the dependency and neglect

 proceeding concerning M.R.M., M.M.M., and M.A.M. (the children).

 We conclude that the order from which mother seeks to appeal is

 not a final and appealable order, and that because her notice of

 appeal was not filed within twenty-one days after the entry of the

 order that was final and appealable, her appeal is untimely.

 Therefore, we dismiss the appeal.

                            I. Background

¶2    In March 2016, the Garfield County Department of Human

 Services (the Department) sought and received temporary custody

 of eleven-year-old M.R.M., six-year-old M.M.M., and three-year-old

 M.A.M. based on concerns that the children had been exposed to

 drugs, violence in the home, and an injurious environment.

¶3    Shortly after the children were removed from mother’s home,

 the Department filed a petition in dependency and neglect, naming

 mother and M.M. (father of M.R.M. and M.M.M., and stepfather to

 M.A.M.; hereafter father M.M.) as respondents. The Department

 acknowledged that father M.M. was not M.A.M.’s biological father

 and that J.H., a resident of Florida, was suspected to be her father.


                                     1
 A caseworker contacted J.H. in Florida and learned that he had

 some mental health issues. The caseworker then discussed the

 situation with J.H.’s mother, who was his primary caretaker.

¶4    Although the court entered an order requiring genetic testing

 of J.H., and the Department said that it was “in the process of

 conducting a genetic test to determine paternity,” no genetic test

 results appear in the record, and J.H. was never determined to be

 M.A.M.’s father or named as a party to the case.

¶5    The court initially placed the children with their maternal

 grandmother. However, father M.M. moved from Florida to

 Colorado and sought custody of all three children soon after the

 case began. He said that he shared custody of the older two

 children with mother under a domestic relations order, and he

 asserted that he should have custody of M.A.M. because he was her

 psychological parent. The court placed the children with him,

 under the protective supervision of the Department, at the end of

 March.

¶6    In May, father M.M. entered into a stipulated agreement for

 continued adjudication under section 19-3-505(5), C.R.S. 2017, and

 the court adjudicated the children dependent and neglected with


                                   2
 respect to mother after a trial. A division of this court affirmed the

 adjudication with respect to mother in People in Interest of M.R.M.,

 (Colo. App. No. 16CA1845, Nov. 16, 2017) (not published pursuant

 to C.A.R. 35(e)).

¶7    The court adopted treatment plans for both mother and father

 M.M. But a few weeks after the court approved mother’s plan,

 father M.M. moved to modify the existing order under which he

 shared custody of the children with mother and to dismiss the

 dependency and neglect case. In support of his request for custody

 of M.A.M., as well as the older two children, he submitted a letter

 asserting that he was M.A.M.’s father because he was the only

 father she had ever known, and that he was willing to take full

 responsibility for her.

¶8    In November, the juvenile court entered an order allocating

 parental responsibilities for all three children between father M.M.

 and mother (the APR order). The court made no findings as to

 whether J.H. or father M.M. was M.A.M.’s legal father. Instead, the

 court concluded that it had jurisdiction to allocate parental

 responsibilities regarding M.A.M. to father M.M. under section 14-

 10-123(1)(d), C.R.S. 2017, which provides that a proceeding


                                    3
  concerning the allocation of parental responsibilities may be

  commenced by a person other than a parent who has been

  allocated parental responsibilities through a juvenile court order.

¶9     Approximately two weeks after the court entered the APR

  order, the court entered an order terminating its jurisdiction and

  closing the case. Mother now appeals from that order.

         II. Finality, Appealability, Timeliness, and Jurisdiction

¶ 10   “Unless a notice of appeal is timely filed, the court of appeals

  lacks jurisdiction to hear the appeal.” People in Interest of A.J., 143

  P.3d 1143, 1146 (Colo. App. 2006). Because an appellate court

  must satisfy itself that it has jurisdiction to hear an appeal, it may

  raise jurisdictional defects nostra sponte. People v. S.X.G., 2012 CO

  5, ¶ 9. We asked the parties to file supplemental briefs addressing

  whether mother’s appeal was timely. After reviewing their briefs, we

  conclude that the appealable order was the APR order; mother’s

  notice of appeal was not timely with respect to that order; and,

  therefore, we lack jurisdiction to consider her appeal.

¶ 11   Ordinarily, a final order or judgment, for purposes of appeal, is

  one that ends the action, leaving nothing further to be done to




                                     4
  determine the parties’ rights. People in Interest of O.C., 2012 COA

  161, ¶ 8, aff’d, 2013 CO 56.

¶ 12   In a dependency and neglect proceeding, a post-dispositional

  order that neither terminates parental rights nor declines to

  terminate them generally does not end the proceeding and is not

  deemed a final, appealable order. See, e.g., E.O. v. People, 854 P.2d

  797, 801 (Colo. 1993) (order approving permanency plan that did

  not effectuate any change in permanent custody or guardianship or

  terminate parental rights held not final and appealable; order

  expressly contemplated further court proceedings).

¶ 13   However, section 19-1-104(6), C.R.S. 2017, authorizes a

  juvenile court to enter an order allocating parental responsibilities

  for a child who is the subject of a dependency and neglect

  proceeding if requested to do so by a party to the case, and if no

  child custody action concerning the same child is pending in a

  district court. Section 19-1-104(6) further provides that following

  the entry of such an order, the court shall file a certified copy of the

  order in the county where the child will permanently reside, and

  thereafter, such order “shall be treated in the district court as any

  other decree issued in a proceeding concerning the allocation of


                                     5
  parental responsibilities.” Thus, by entering an APR order as

  authorized by section 19-1-104(6) and ordering that a copy of the

  order be filed in the district court of the county where the child is to

  reside, the juvenile court ends the dependency and neglect

  proceeding and transfers jurisdiction over the child to the district

  court. Such an APR order is final and appealable. See People in

  Interest of E.C., 259 P.3d 1272, 1276 (Colo. App. 2010) (entry of

  permanency planning order allocating parental responsibilities to

  aunt, followed by transfer of jurisdiction to the district court, ended

  the dependency and neglect proceedings; thus, the permanency

  planning order was a final and appealable order); see also C.A.R.

  3.4(a) (expressly recognizing an order allocating parental

  responsibilities pursuant to section 19-1-104(6) as an appealable

  order).

¶ 14   Once a final and appealable judgment, decree, or order has

  been entered in a dependency and neglect proceeding, a party who

  wishes to appeal must file a notice of appeal within twenty-one

  days. C.A.R. 3.4(b)(1).

¶ 15   Here, the juvenile court entered an APR order, and ordered

  that the APR order be certified into an existing custody proceeding


                                     6
  in the district court as to the older two children, and certified into a

  new domestic relations case as to the youngest child. Under E.C.,

  the APR order was appealable. However, mother did not appeal

  from that order.

¶ 16   After the court entered the APR order, the Department moved

  to terminate the jurisdiction of the juvenile court and close the

  dependency and neglect case. The Department reported that the

  APR order had been certified into the existing domestic relations

  case as to the older two children, and into a new domestic relations

  case as to the youngest child, as the court had directed. The

  Department argued that there were no further child welfare issues

  in the dependency and neglect proceeding that required

  intervention by the court, and that it was in the children’s best

  interests that the court terminate its jurisdiction and close the case.

  The court agreed and entered an order that purportedly terminated

  its jurisdiction and closed the dependency and neglect case. That is

  the order from which mother appeals.

¶ 17   Because mother’s notice of appeal was filed more than twenty-

  one days after the entry of the APR order, we conclude that her

  appeal was untimely, and that accordingly, we lack jurisdiction to


                                     7
  hear the appeal. However, mother contends that the juvenile court

  lacked jurisdiction to enter the APR order, or, if it did have

  jurisdiction, the APR order was not final and appealable. She

  maintains that the order that ended the case was the order that

  terminated the court’s jurisdiction and closed the case; that her

  notice of appeal was timely with respect to that order; and that,

  accordingly, this court has jurisdiction to hear her appeal. We find

  her arguments unpersuasive.

                  A. Juvenile Court Jurisdiction, Finality,
                    and Appealability of the APR Order

                 1. Jurisdiction Under Section 19-1-104(6)

¶ 18   Mother contends that the APR order cannot be deemed a final,

  appealable order because the juvenile court did not have

  jurisdiction to make the findings needed to grant APR to a non-

  parent, and, indeed, did not have jurisdiction to enter an APR order

  at all for M.A.M. She argues that because the court had not

  adjudicated M.A.M. dependent and neglected, with respect to her

  father, J.H., and the adjudication of the two older children with

  respect to father M.M. was still in “deferred” status, the APR order

  was invalid.



                                     8
¶ 19   However, the question before us is not whether the court had

  jurisdiction to enter the order, but, rather, whether the order was

  final and appealable. Even an order entered without jurisdiction

  may be a final, appealable order if it ends the action, leaving

  nothing further to be done to determine the rights of the parties.

  See, e.g., People in Interest of S.T., 2015 COA 147 (appeal from APR

  order entered after trial court found that the allegations of the

  dependency and neglect petition were not proven as to one parent;

  order vacated for lack of subject matter jurisdiction).

¶ 20   Under E.C. and C.A.R. 3.4(a), an APR order entered under

  section 19-1-104(6) is final and appealable. And because mother

  did not file a timely appeal from that order, we must dismiss the

  appeal.

        2. Jurisdiction Under Section 19-4-130(1), C.R.S. 2017

¶ 21   Citing S.T., mother also contends that “without commencing a

  paternity action, the juvenile court did not have independent

  jurisdiction under the Uniform Parentage Act to enter an order

  allocating parental responsibilities.” Here, too, we note that the

  issue before us is not whether the court had jurisdiction to enter an

  APR order, but whether the APR order was final and appealable,


                                     9
  and whether mother filed a timely appeal from that order. Having

  concluded that the APR order was final and appealable, and that

  mother’s appeal was not timely, our inquiry is at an end because we

  lack appellate jurisdiction. And this is so even when, as here, the

  issue being raised on appeal is a challenge to the subject matter

  jurisdiction of the trial court. Cf. Garcia v. Kubosh, 377 S.W.3d 89,

  107 n.41 (Tex. App. 2012) (“And when a party attempts to challenge

  a judgment or order but fails to timely file a notice of appeal, we

  generally dismiss the appeal for lack of appellate jurisdiction

  regardless of whether the appeal involves a challenge to the trial

  court’s subject-matter jurisdiction.”).

                         3. Paternity and Finality

¶ 22   Mother argues that the APR order was not a final, appealable

  order because it did not fully resolve the rights and liabilities of the

  parties as to paternity, support, and parental responsibilities with

  respect to M.A.M. We perceive no error.

                                   a. Law

¶ 23   Under the Uniform Parentage Act (UPA), sections 19-4-101

  to -130, C.R.S. 2017, a man is presumed to be the natural father of

  a child if, as relevant here, “genetic tests or other tests of inherited


                                     10
  characteristics have been administered . . . and the results show

  that the alleged father is not excluded as the probable father and

  that the probability of his parentage is ninety-seven percent or

  higher.” § 19-4-105(1)(f), C.R.S. 2017. A presumption of paternity

  may arise under other circumstances as well, as provided by

  section 19-4-105(1)(a)-(e). For example, a presumption of paternity

  arises if, while the child is under the age of majority, a man receives

  the child into his home and openly holds out the child as his

  natural child. § 19-4-105(1)(d).

¶ 24   If two or more presumptions of paternity arise which conflict

  with each other, and none has been rebutted by clear and

  convincing evidence, “the presumption which on the facts is

  founded on the weightier considerations of policy and logic

  controls.” § 19-4-105(2)(a); People in Interest of J.G.C., 2013 COA

  171, ¶ 22.

¶ 25   Section 19-4-107, C.R.S. 2017, addresses who may bring an

  action under the UPA, for what purpose, and when. As relevant

  here, a child’s natural mother may bring an action to determine the

  existence of the father and child relationship even if the child has

  no presumed father. See § 19-4-107(3).


                                     11
¶ 26   If a paternity issue arises in a dependency and neglect

  proceeding, a paternity action may be joined with the dependency

  and neglect proceeding to resolve the issue. J.G.C., ¶ 10. In that

  situation, the juvenile court must follow the procedures outlined in

  the UPA, as its failure to do so will deprive the court of subject

  matter jurisdiction to decide paternity. Id. at ¶ 11. As relevant

  here, the UPA provides that each man presumed to be the father of

  a child and each man alleged to be the natural father must be made

  a party to the paternity proceeding, or, if not subject to the personal

  jurisdiction of the court, must be given notice of the action and an

  opportunity to be heard. § 19-4-110, C.R.S. 2017; J.G.C., ¶ 12.

               b. Efforts to Determine M.A.M.’s Paternity

¶ 27   As an initial matter, we note that M.A.M. had no presumed

  father. Although mother alleged that J.H. was M.A.M.’s biological

  father, and there are indications in the record that J.H. had actual

  notice of the dependency and neglect proceeding through

  communications with the caseworker, he did not appear in the

  case; he did not seek a relationship with the child; and his

  biological relationship to the child was never established. Thus, at

  all times relevant to this proceeding, J.H. was simply an “alleged


                                    12
  father” of the child, not a presumed father under the UPA. Nor was

  father M.M. a presumed father. Although he asserted that he was

  M.A.M.’s psychological father, he never claimed to have held her out

  as his own or that he was otherwise entitled to the status of

  “presumptive father.” Thus, there was no need for a paternity

  proceeding to determine which of two presumptive fathers should

  be recognized as the child’s legal father.

¶ 28    Of course, a paternity proceeding may be initiated for

  purposes other than making a choice between two (or more)

  presumptive fathers. In this case, the Garfield County Department

  of Human Services Child Support Services Unit had opened a case

  in 2015 to determine the paternity of all three children. The court

  determined that Father was the oldest child’s father, but not

  M.A.M.’s father. In that case, too, J.H. did not cooperate in taking a

  genetic test to determine whether he was the child’s father despite

  the fact he was “made aware” of the proceeding. Eventually the

  court dismissed the 2015 paternity case with respect to M.A.M.

¶ 29   In October 2016, in a renewed attempt to resolve the problem

  of M.A.M.’s paternity, the Department filed a petition to determine

  whether J.H. was her father. But the Department quickly withdrew


                                    13
  the petition after concluding that the court did not have personal

  jurisdiction over J.H.

¶ 30   A few days after the Department withdrew the petition to

  determine M.A.M.’s paternity, the juvenile court entered the APR

  order. Thus, the question of M.A.M.’s paternity was never resolved.

                       c. Finality of the APR Order

¶ 31   Mother argues that the APR order was not final because it did

  not fully resolve the rights and liabilities of the parties. But, insofar

  as she contends that the order did not fully resolve her own rights

  and liabilities, she does not explain what was left to be decided in

  an order that addressed her rights to visitation, parenting time, and

  other matters relevant to the allocation of parental responsibilities

  between her and father M.M. Nor did she attempt to initiate a

  paternity proceeding herself, as she might have done under section

  19-4-107, if she believed that resolving the issue of M.A.M.’s

  paternity was necessary to protect her rights.

¶ 32   Insofar as mother contends that the order did not resolve the

  rights and liabilities of other parties, including but not limited to

  J.H., we conclude that she lacks standing to raise the issue. See,

  e.g., People in Interest of J.A.S., 160 P.3d 257, 261 (Colo. App. 2007)


                                     14
  (one parent does not have standing to raise issues that concern only

  the other parent’s rights).

                          4. Possibility of Revision

¶ 33      Mother argues that the APR order was not final because it was

  subject to revision. However, once the juvenile court entered the

  APR order and directed that it should be certified to the district

  court, jurisdiction to modify the order under sections 14-10-129

  and 14-10-131, C.R.S. 2017, was transferred to the district court,

  leaving nothing further for the juvenile court to do. See § 19-1-

  104(6). In addition, we note that under sections 14-10-129 and 14-

  10-131, all orders concerning parenting time and decision-making

  responsibility may be modified if a sufficient showing is made that

  circumstances warrant a change. Nevertheless, APR orders are

  considered final and appealable, as recognized in C.A.R. 3.4(a).

       5. Unresolved Issues in the Dependency and Neglect Proceeding

¶ 34      Mother contends that the APR order was not final because

  when it was entered, the paternity summons for J.H. was still

  outstanding, father M.M.’s deferred adjudication had not been

  addressed, and the court had not dismissed the case. We are not

  persuaded.


                                     15
¶ 35   As discussed above, we conclude that under section

  19-1-104(6), the entry of the APR order ended the dependency and

  neglect proceeding and transferred jurisdiction over the allocation of

  parental responsibilities to the district court. Therefore, there was

  no longer any need to address father M.M.’s deferred adjudication.

  Nor was there any need to enter an additional order to dismiss the

  case where the APR order served as the case-ending order.

¶ 36   As for the paternity summons, the record does not reveal

  whether it was still outstanding when the court entered the APR

  order, as mother asserts. But, even if it was, mother cites no

  authority for the proposition that the existence of an outstanding

  summons is sufficient to prevent the court from closing the case in

  which the summons was issued, and we are aware of no such

  authority.

                      B. Indian Child Welfare Act

¶ 37   Mother raises an issue as to whether the provisions of the

  Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963

  (2012), and applicable Bureau of Indian Affairs regulations and

  guidelines for implementing ICWA were complied with by the

  Department and the juvenile court after she asserted that she had


                                    16
  Indian heritage. She contends that the Department failed to comply

  with ICWA when it failed to investigate or send notices to tribes

  after she and the children’s maternal grandmother stated that

  mother had a tribal affiliation and the children’s great-grandmother

  had been enrolled in an Indian tribe. The parties disagree as to

  whether we can address this issue notwithstanding our

  determination that the appeal is untimely. We conclude that we

  cannot. The untimeliness of the appeal deprives us of jurisdiction

  as to all of the issues raised in the appeal, including the ICWA

  issues.

¶ 38   However, we note that under 25 U.S.C. § 1914 (2012), a

  parent “may petition any court of competent jurisdiction” to

  invalidate an action for foster care placement or termination of

  parental rights upon a showing that such action violated any of

  several sections of ICWA, including section 1912, concerning notice

  to tribes. And, in People in Interest of K.G., 2017 COA 153, ¶¶ 12-

  18, a division of this court recently concluded that in some

  circumstances a proceeding to allocate parental responsibilities is a

  child custody proceeding covered by ICWA. Thus, mother may be

  able to raise the issue of ICWA compliance in the juvenile court.


                                   17
  But the availability of such a collateral attack on the APR order in

  the juvenile court does not vest us with jurisdiction to address the

  ICWA issue in the first instance as part of this appeal.

                             III. Conclusion

¶ 39   The appeal is dismissed with prejudice for lack of an

  appealable order.

       JUDGE DAILEY and JUDGE HAWTHORNE concur.




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