Peo in Interest of LAM

23CA1631 Peo in Interest of LAM 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1631

El Paso County District Court No. 21JV517

Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.A.M., a Child,

and Concerning S.M.,

Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE TOW

Gomez and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

Kenneth R. Hodges, County Attorney, Melanie E. Gavisk, Assistant County

Attorney, Colorado Springs, Colorado, for Appellee

Jenna L. Mazzucca, Counsel for Youth, Salida, Colorado, for L.A.M.

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for

Appellant

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¶ 1 In this dependency and neglect proceeding, S.M. (mother)

appeals the juvenile court’s judgment adjudicating L.A.M. (the child)

dependent and neglected and allocating parental responsibilities to

I.S. (father). We affirm the judgment.

I. Background

¶ 2 The El Paso County Department of Human Services filed a

petition in dependency and neglect regarding then eleven-year-old

L.A.M., then nine-year-old J.S., and then seven-year-old A.S.

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The

petition alleged that medical personnel had concerns that mother

was seeking unnecessary medical care and procedures for all three

children. The petition further alleged that father had not had

contact with the child for quite some time.

¶ 3 The Department initially placed all three children in foster

care. After the child and father engaged in reintegration therapy to

rebuild their relationship, the child moved in with father. Father

then moved for an allocation of parental responsibilities (APR)

asking for sole physical custody and sole decision-making

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Father is not the father of the mother’s other two children.

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responsibilities concerning the child and for supervised visits with

mother.

¶ 4 Mother and the Department agreed to a “continued” or

“deferred” adjudication pursuant to section 19-3-505(5), C.R.S.

2023. Under the terms of the agreement, mother admitted she and

the children needed intervention from the Department and she

agreed to cooperate with the caseworker and the children’s

guardian ad litem and to comply with the Department’s treatment

plan. Mother’s main objective in the treatment plan was to

complete a psychological evaluation by an agreed upon provider

and to engage in any recommended treatment. A little over a year

later, the Department moved to revoke mother’s deferred

adjudication.

¶ 5 After an evidentiary hearing, the juvenile court revoked

mother’s deferred adjudication and adjudicated all three children

dependent and neglected. It also granted father’s motion for an

APR and closed the case as it relates to the child. The dependency

and neglect proceeding continued with respect to J.S and A.S. and

they are not the subject of this appeal.

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II. Subject Matter Jurisdiction

¶ 6 Mother first asserts that the juvenile court did not have

subject matter jurisdiction to enter the adjudication. We disagree.

A. Standard of Review

¶ 7 “Where the question of whether a court lacked subject matter

jurisdiction does not involve a factual dispute, the determination of

that court’s subject matter jurisdiction is a question of law that we

review de novo.” People in Interest of J.W. v. C.O., 2017 CO 105,

¶ 17. To the extent that mother’s appeal requires us to interpret

statutes, our review is also de novo. People in Interest of E.Q., 2020

COA 118, ¶ 16.

B. Relevant Law

¶ 8 “Subject matter jurisdiction concerns the court’s authority to

deal with the class of cases in which it renders judgment.” People

in Interest of E.H., 837 P.2d 284, 290 (Colo. App. 1992). The

juvenile court has “exclusive original jurisdiction in proceedings . . .

[c]oncerning any child who is neglected or dependent.”

§ 19-1-104(1)(b), C.R.S. 2023. Thus, in a dependency and neglect

proceeding, the court’s jurisdiction over a child rests on the status

of the child as dependent or neglected. J.W., ¶ 20.

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¶ 9 A child may be found dependent or neglected at an

adjudicatory hearing. People in Interest of S.T., 2015 COA 147,

¶ 17; see § 19-1-104(1)(b), C.R.S. 2023. At such a hearing, the

juvenile court determines whether the allegations in the petition are

supported by a preponderance of the evidence or, alternatively,

accepts the parent’s admission. See J.W., ¶ 32. As relevant here,

the “court’s acceptance of [a parent’s] admission establishe[s] the

status of the children as dependent or neglected, and, thus, the

court’s continued jurisdiction over the children.” Id.

¶ 10 Section 19-3-505(5) provides for a process that courts and

practitioners often refer to as a “deferred adjudication” or

“continued adjudication.” Under section 505(5), the juvenile court

may continue an adjudicatory hearing “from time to time” (1) after it

finds that the allegations of the petition are supported by a

preponderance of the evidence, but (2) “before making an

adjudication.” Subsection (5)(b) allows the court to continue the

adjudicatory hearing “no longer than six months without review by

the court.” But the statute permits the court to “continue the case

for an additional period not to exceed six months . . . .” Id. After

expiration of the twelve-month period, the court shall either dismiss

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the petition or sustain it. See People in Interest of K.M.J., 698 P.2d

1380, 1382 (Colo. App. 1984) (“[T]he court can hold hearings on the

petition for a maximum of two six-month periods after which it can

take no other action than either to dismiss or sustain the petition.”).

C. Analysis

¶ 11 Mother asserts that the juvenile court exceeded its jurisdiction

by conducting a hearing outside the twelve-month time frame

permitted by section 19-3-505(5)(b). We are not persuaded.

¶ 12 “[A] procedural statute or a court rule normally does not

address jurisdictional issues; restrictions upon a court’s

jurisdiction are generally to be found in statutes directly addressing

that subject.” Levin v. Anouna, 990 P.2d 1136, 1138 (Colo. App.

1999).

¶ 13 In People in Interest of A.W., 74 P.3d 497, 498-99 (Colo. App.

2003), a division of this court rejected the contention that a juvenile

court acted without jurisdiction when it conducted a revocation of a

deferred adjudication hearing outside of section 19-3-505(5)(b)’s

twelve-month time limit. Accordingly, the fact that more than

twelve months had passed since the adjudication was deferred did

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not implicate the juvenile court’s jurisdiction. A.W., 74 P.3d

at 498-99.

¶ 14 To the extent it could be argued that the juvenile court’s

decision to conduct hearings beyond the twelve months was “an

erroneous decision not affecting jurisdiction,” id. (quoting People in

Interest of Clinton, 762 P.2d 1381, 1387 (Colo. 1988)), mother failed

to preserve any such error. She never asserted, either in writing or

orally, that due to the passage of time, the juvenile court lacked the

authority conduct the hearing or to enter the adjudication. We do

not consider non-jurisdictional issues not raised in the trial court.

Id.

III. APR to Father

¶ 15 Mother also contends that the juvenile court erred when it

granted father’s APR motion. Mother asserts that an APR to father

was not in the best interests of the child. We discern no error.

A. Standard of Review

¶ 16 An allocation of parental responsibilities is within the juvenile

court’s discretion and will not be disturbed on review if competent

evidence in the record supports the judgment. See People in

Interest of A.M.K., 68 P.3d 563, 565 (Colo. App. 2003). It is for the

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juvenile court, as the trier of fact, to determine the sufficiency,

probative effect, and weight of the evidence, and to assess the

credibility of witnesses. People in Interest of A.J.L., 243 P.3d 244,

249-50 (Colo. 2010); see also In re Parental Responsibilities

Concerning B.R.D., 2012 COA 63, ¶ 15 (when there is record

support for the court’s findings, its resolution of conflicting evidence

is binding on review).

B. Relevant Law

¶ 17 When determining custody or allocating parental

responsibilities in a dependency and neglect proceeding, the court

must consider the legislative purposes of the Children’s Code

under section 19-1-102, C.R.S. 2023. People in Interest of C.M., 116

P.3d 1278, 1281 (Colo. App. 2005). The overriding purpose of the

Children’s Code is to protect a child’s welfare and safety by

providing procedures to serve the child’s best interests. L.G. v.

People, 890 P.2d 647, 654 (Colo. 1995). Thus, the court must

allocate permanent custody and parental responsibilities consistent

with the child’s best interests. People in Interest of L.B., 254 P.3d

1203, 1208 (Colo. App. 2011); see also L.A.G. v. People in Interest of

A.A.G., 912 P.2d 1385, 1391 (Colo. 1996).

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C. Analysis

¶ 18 The juvenile court found that an APR to father was in the

child’s best interests. The court found that father was fit and

protective of the child. It noted that mother refused to complete a

psychological evaluation and that her justification for doing so was

unreasonable.

¶ 19 The court found that significant safety issues existed with

respect to mother’s parenting, noting that when the case opened

“there was a surgery scheduled for [the child] to have her legs

broken and reset and that’s frightening.” It further found that

those safety issues still existed because mother had not completed

a psychological evaluation.

¶ 20 Mother argues that the juvenile court erred because the child

expressed that she opposed the APR and wanted mother to have

more time to work on her treatment plan. But the juvenile court

acknowledged the child’s position that she wanted the case to

remain open because mother and father “don’t work well together,”

and to give mother more time to seek treatment. However, the

court determined that there were no safety issues related to

placement with father and it had an obligation to secure

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permanency for the child as soon as possible. Mother presents no

authority suggesting that the court was required to defer to the

child’s wishes in spite of these other considerations.

¶ 21 Mother also objects to the court’s finding that father is a safe

parent and argues that the child had not seen him for several years

and that they were still rebuilding their relationship. The court

acknowledged these facts but recognized that the child had been

living with father without incident for more than a year and that

father and the child had successfully completed reintegration

therapy. The court further ordered additional family therapy

between father and the child to facilitate better communication.

Mother’s assertions that father presented safety risks essentially

ask us to reweigh the evidence on appeal, which we cannot do. See

A.J.L., 243 P.3d at256 (a reviewing court cannot reweigh the

evidence or substitute its own findings for the juvenile court’s).

¶ 22 Lastly, mother argues that she and the child “maintained a

loving relationship,” that she “continued to provide emotional

support to the child,” and that the child “repeatedly asked the court

not to disrupt her relationship” with mother. Again, the court

acknowledged the importance of mother’s longstanding relationship

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with the child. And its parenting plan allowed for continuing

supervised visits while mother addressed her mental health. See

C.M., 116 P.3d at 1282 (the focus of a permanent legal custody

decision is furtherance of a child’s best interests, not a parent’s

custodial interest).

¶ 23 Given the record support for the juvenile court’s findings, we

conclude that the court’s APR was not manifestly arbitrary,

unreasonable, or unfair. Nor did the court misapply the law. See

M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 32 (defining an

abuse of discretion to include misapplication of the law).

Accordingly, we may not disturb the court’s decision.

IV. Disposition

¶ 24 The judgment is affirmed.

JUDGE GOMEZ and JUDGE KUHN concur.