Peo in Interest of AR

24CA0337 Peo in Interest of AR 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0337
Las Animas County District Court No. 22JV30009
Honorable Dawn Marie Mann, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.R., a Child,

and Concerning B.A.B.,

Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Pamela Nelson, County Attorney, Josi McCauley, Special County Attorney,
Superior, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

James West, Office of Respondent Parents’ Counsel, Longmont, Colorado, for
Appellant
¶1 In this dependency and neglect action, B.A.B. (father) appeals

the judgment allocating parental responsibilities of A.R. (the child)

to the maternal grandparents. Although no motion for an allocation

of parental responsibilities (APR) was filed, an APR was requested

during closing arguments and then granted by the juvenile court at

a contested permanency planning hearing. Because father wasn’t

afforded notice or a fair opportunity to be heard on the issues

attendant to granting APR to a nonparent, we reverse the juvenile

court’s order allocating parental responsibilities for the child and

remand the case for further proceedings.

I. Background

¶2 The Las Animas County Department of Human Services (the

Department) filed a petition in dependency and neglect alleging the

newborn child tested positive for substances and was exhibiting

withdrawal symptoms. The juvenile court granted temporary

custody to the Department for placement with the maternal

grandparents, where the child remained throughout the

proceedings.

¶3 The juvenile court adjudicated the child dependent and

neglected and adopted a treatment plan for father. At a review

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hearing held nineteen months after the petition was filed, the court

set an “all day perm[anency] plan[ning] hearing” to take place two

months later and ordered the parties to file witness and exhibit lists

seven days before the hearing. Neither the notice of permanency

planning hearing nor the witness and exhibit list indicated that the

Department would be requesting an APR judgment enter as part of

the permanency planning hearing. Indeed, no party had filed a

motion for APR or a proposed APR order.

¶4 At the hearing, only one of the caseworkers disclosed by the

Department testified. The caseworker opined that the child could

not be returned home that day or within the next six months and

“the official goal” for the child “should be changed to permanent

placement with a relative through APR.” The caseworker

additionally stated that she believed that changing the permanency

goal “would allow [the child] to . . . achieve permanency today.”

¶5 At the conclusion of the permanency planning hearing, after

evidence had closed, the Department not only asked the court to

“order that the goal be changed to permanent placement with a

relative through APR,” but also asked the court “to grant permanent

custody of [the child] to her maternal grandparents, . . . and that if

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there are to be visits, that they would be supervised.” The juvenile

court made permanency planning findings and ordered the

“perm[anency] plan change to placement with a relative by

allocation of parental responsibility, that allocation of parental

responsibility be granted to the maternal grandparents . . . with

supervised visitation for the parents at the discretion of [the

maternal grandparents].”

II. Preservation

¶6 Father concedes that he failed to object to the procedure when

“the juvenile court entered an immediate APR order” and urges us

to consider the issue to avoid a miscarriage of justice. See People in

Interest of E.S., 2021 COA 79, ¶ 14.

¶7 If an error by the juvenile court is considered fundamental or

involves a miscarriage of justice, we may consider an unpreserved

issue for the first time on appeal. In re R.G.B., 98 P.3d 958, 959

(Colo. App. 2004). The miscarriage of justice exception has a high

bar and narrow scope and applies only to limited situations in

which an error by the trial court, not otherwise properly preserved

for appeal, results in a deprivation of a parent’s meaningful

opportunity to participate in the proceeding. See People in Interest

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of M.B., 2020 COA 13, ¶¶ 23-24; see also People in Interest of A.E.,

914 P.2d 534, 539 (Colo. App. 1996).

¶8 The Department and guardian ad litem (GAL) rely on People in

Interest of R.J.B., 2021 COA 4, ¶ 33, to argue that there was no

miscarriage of justice in this case because “father had notice of the

hearing, advice of counsel, and the opportunity to be heard and

defend.” See id. at ¶ 27 (Fundamentally fair procedures “must

include a parent receiving notice of the hearing, advice of counsel,

and the opportunity to be heard and defend.”) (citations omitted).

¶9 However, as detailed below, we agree with father that he didn’t

have notice of the Department’s intent to seek an APR order that

would enter at the end of the permanency planning hearing and

therefore “was deprived of a meaningful opportunity to participate”

in the proceeding. See A.E., 914 P.2d at 539. We therefore exercise

our discretion to address father’s due process argument to avoid a

miscarriage of justice. See People in Interest of T.W., 2022 COA

88M, ¶ 24.

¶ 10 Because we consider the merits of father’s claim to avoid a

miscarriage of justice, we don’t address his argument made in the

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alternative that the issue wasn’t preserved due to ineffective

assistance of counsel.

III. Permanency Planning Hearings and Allocation of Parental
Responsibilities

¶ 11 The Children’s Code requires juvenile courts to conduct

permanency planning hearings to determine, among other things, if

a child can be returned home. § 19-3-702(3), C.R.S. 2024. If a

child can’t be returned home, “the court shall enter one or more . . .

permanency goals” identified by statute. § 19-3-702(4)(a). When,

as here, a child is under six years old at the time of the filing of the

petition, permanency planning findings made by the court “shall

not delay or interfere with reunification of a child or youth with a

parent” and “reasonable efforts shall continue to be made to return

the child or youth home” unless the court has made findings that

reasonable efforts aren’t required. § 19-3-702(5).

¶ 12 Permanency planning hearings can be properly combined with

other hearings. The Children’s Code encourages combining

permanency planning hearings with six-month review hearings

when possible. See § 19-3-702(1)(a). And the Children’s Code

authorizes combining permanency planning hearings with

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termination of parental rights hearings in certain circumstances.

See § 19-3-702(1)(b).

¶ 13 Additionally, as the Department and GAL contend, it’s

permissible for a juvenile court to properly enter an APR order and

close a dependency and neglect action at a permanency planning

hearing, under certain circumstances. See, e.g., People in Interest of

E.C., 259 P.3d 1272, 1275 (Colo. App. 2010) (where the court’s

ability to enter an APR order at a permanency planning hearing was

unchallenged and where mother had filed a motion for APR); People

in Interest of C.M., 116 P.3d 1278, 1282 (Colo. App. 2005)

(remanding for a combined APR and permanency planning hearing

where the department had filed a motion for APR to the

grandparents). Indeed, the Children’s Code grants jurisdiction to a

juvenile court to enter an APR upon the filing of an APR petition

and either the adjudication of the child as to all parents or legal

guardians, or the adjudication of the child as to at least one parent

with the consent of all other unadjudicated parents or legal

guardians. § 19-1-104(6)(a) C.R.S. 2024. However, “the juvenile

court does not have the authority to enter an order allocating

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parental responsibilities until after the parents are afforded full due

process.” T.W., ¶ 35.

IV. Due Process

A. Standard of Review and Applicable Law

¶ 14 We review procedural due process claims de novo. People in

Interest of C.J., 2017 COA 157, ¶ 25. To establish a violation of due

process, there must be a constitutionally protected liberty interest

that warrants due process protections. Id.

¶ 15 A parent has a fundamental liberty interest in the care,

custody, and control of his or her child. Troxel v. Granville, 530

U.S. 57, 66 (2000). To protect the parental liberty interest “due

process requires the state to provide fundamentally fair procedures

to a parent in a dependency and neglect proceeding.” C.J., ¶ 27.

“At a minimum, a parent must be given adequate notice of the

proceeding and an opportunity to protect his or her rights.” People

in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007). The

opportunity to be heard “must be provided at a meaningful time

and in a meaningful manner.” R.J.B., ¶ 27 (citation omitted).

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B. Additional Background

¶ 16 The Department sent a “Notice of Permanency Hearing” to the

parties one month before the hearing. The notice used language

from a prior version of the permanency planning statute to state

that “the court must determine the future status or placement of

the children” at a permanency hearing.1

¶ 17 The Department also filed a “Trial Witness and Exhibit List,”

listing as lay witnesses four case aids, two caseworkers, and the

respondents. But the document didn’t include any information

about the expected testimony of these lay witnesses. The

Department also listed two Department employees as possible

expert witnesses. The expert disclosures stated only that each

identified expert witness “will testify regarding her work with the

family during the case, the safety concerns and all other matters.”

None of these disclosures indicated that the upcoming permanency

planning hearing would include a request by the Department that

the court enter an APR order and close the case.

1 The Children’s Code hasn’t included this directive since 2019,

when the legislature changed section 19-3-702 to instead direct the
court to adopt permanency planning goals. See Ch. 237, sec. 1,
§ 19-3-702, 2019 Colo. Sess. Laws 2349-2354.

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¶ 18 Seven days before the permanency planning hearing, the

Department filed a “Report to the Court” authored by the

caseworker. The report contained four recommendations: (1) that

custody of the child be granted to the maternal grandparents; (2)

that father’s family time be supervised by a neutral party; (3) that

mother’s family time be supervised by a family member or neutral

party; and (4) that the juvenile court’s jurisdiction end and the case

close and be certified to a domestic relations case. But at no point

did any party file a motion for APR or proposed APR orders.

¶ 19 At the beginning of the hearing, the Department asserted that

“we do come on this morning for a permanency planning hearing.

The Department has filed their report . . . it does outline the

position of the Department regarding the permanency goal. The

Department is prepared to move forward today with testimony.”

(Emphasis added.) When asked if the Department was asking for

permanent custody with a relative to be added as a concurrent

permanency goal with return home, the Department responded,

“we’re requesting that the goal completely change.” The

Department didn’t offer any indication that it was requesting APR

orders or closure of the case that day. The juvenile court didn’t

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request opening statements, and the parties proceeded to

testimony.

¶ 20 After the close of evidence, the GAL gave the first closing

argument. The GAL argued that the proposed change to the

permanency plan “is in [the child’s] best interest. I think it needs to

happen, and I hope that the court closes the case today.” (Emphasis

added.) The GAL’s closing statement was the first indication that

any party would be requesting case closure effective that day.

¶ 21 In its closing argument, the Department asked “the court to

order that the goal be changed to permanent placement with a

relative through APR, to grant permanent custody of [the child] to

her maternal grandparents, . . . and that if there are to be visits,

that they would be supervised.” The Department then asked the

court “to end jurisdiction, close the case, and certify it to a domestic

relations case.”

¶ 22 In response, father asked the juvenile court to find that he had

successfully addressed safety concerns such that the child could be

returned home.

¶ 23 In its oral remarks, the juvenile court specifically declined to

make fitness findings, and, as relevant here, found by a

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preponderance of the evidence that the child couldn’t be returned

home on that day or within six months, changed the permanency

plan to placement with a relative by APR, granted APR to the

maternal grandparents, and granted supervised family time at the

maternal grandparents’ discretion.

¶ 24 The juvenile court issued an “Order re: Permanency Planning

Hearing” two weeks later. Therein the court ordered:

• “The permanency goal is changed to permanent

placement with a relative through allocation of parental

responsibilities;”

• “Permanent legal and physical custody is granted to [the

maternal grandparents];”

• “Any visits between [the child] and [the respondents] are

at the discretion of [the maternal grandparents] and are

to be supervised;”

• Respondent parent counsel’s motion to withdraw is

granted; and

• “Jurisdiction is ended and the case is hereby closed and

certified to [a] domestic relations case.”

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C. Analysis

¶ 25 Father argues that he wasn’t afforded due process before the

juvenile court granted an APR to the maternal grandparents and

closed the dependency and neglect action. We agree.

¶ 26 To begin, we reject the Department and GAL’s assertion that

notice that the hearing would include a request for APR wasn’t

required. They contend that section 14-10-123(1)(c), C.R.S. 2024,

excuses them from providing notice because that statute doesn’t

require filing a petition or motion for APR when a nonparent has

had physical care of a child for more than one hundred and eighty

days. But section 14-10-123(1)(c), a provision of the Uniform

Dissolution of Marriage Act (UDMA), doesn’t apply to an APR

entered in a dependency and neglect case. A dependency and

neglect proceeding “concerns different matters and fulfills a

different purpose” than domestic relations proceedings conducted

under title 14 and the UDMA. People in Interest of D.C., 851 P.2d

291, 294 (Colo. App. 1993). In fact, when custody determinations

are being made under the Children’s Code “the provisions of the

UDMA . . . are no[t] relevant to the proceedings. . . [and] the custody

dispute is to be conducted pursuant to the provisions of the

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Children’s Code.” Id. at 293. We are not aware of, and no party

cites, any provision in the Children’s Code that is similar to section

14-10-123(1)(c). To the contrary, the Children’s Code authorizes

the juvenile court to enter an APR order “upon the petition of a

party.” § 19-1-104(6)(a) (emphasis added).

¶ 27 Nor do we agree with the Department and GAL’s contention

that the (outdated) language in the written “Notice of Permanency

Hearing” was sufficient to allow the Department to request an APR

judgment after the close of evidence at the permanency planning

hearing without further notice to father. Notice of a hearing to

change a permanency planning goal isn’t the same as notice of a

contested hearing to enter an APR and close a dependency and

neglect case. The notice of a permanency planning hearing

provided no indication that the Department intended to move for an

APR order at the conclusion of the permanency planning hearing.

No party filed a petition, motion, or proposed APR orders. And

father wasn’t given notice that he should present evidence and

argument regarding the terms of an APR order, including arguing

for visitation.

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¶ 28 Nor does the record provide an indication that father had

constructive notice of the Department’s intent. The hearing in

question was set as an “all day perm[anency] plan[ning] hearing.”

The expected contents of the hearing weren’t discussed either at its

setting or at the review hearing between when the permanency

planning hearing was set and when it was held. The Department

filed only a list of names as its witness list, with no information

about their expected testimony. Although the Department’s report

to the court listed APR and case closure as its recommendation,

there’s no indication that the Department intended to ask the

juvenile court to enact those recommendations and close the case

on the day of the permanency planning hearing in addition to

changing the permanency planning goal.

¶ 29 Nor was it apparent that the Department would be seeking

APR orders and case closure during the hearing. In opening

remarks, the Department asserted they were there “for a

permanency planning hearing” and “were requesting that the goal

completely change.” The Department didn’t make clear that it was

requesting the juvenile court grant permanent custody of the child

to the maternal grandparents until the last moments of its closing

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statement. Likewise, the GAL didn’t clearly describe the relief being

requested until the final lines of her closing argument, where she

stated “my position as GAL is that this change in permanency

planning is in [the child’s] best interest. I think it needs to happen

and I hope that the court closes the case today.”

¶ 30 The change in the relief being sought by the Department after

the close of evidence meant that father was deprived of a fair

opportunity to be heard on issues relevant to the entering of an APR

order, including issues of decision-making and family time, which

wouldn’t have been relevant in a hearing limited to changing a

permanency planning goal.

¶ 31 We therefore conclude the juvenile court erred by entering an

APR order at the conclusion of this permanency planning hearing.

¶ 32 We also conclude that reversal is required. Under C.A.R.

35(c), “[t]he appellate court may disregard any error or defect not

affecting the substantial rights of the parties.” See also

C.R.C.P. 61. “An error affects a substantial right only if it can be

said with fair assurance that the error substantially influenced the

outcome of the case or impaired the basic fairness of the trial itself.”

Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (citation omitted).

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¶ 33 We determine that the error substantially influenced the

outcome of the case and impaired the basic fairness of the hearing

for three reasons.

¶ 34 First, the practical impact of changing a permanency planning

goal in a case governed by expedited permanency planning (EPP)

statutes is negligible. In an EPP case, a department is required to

provide reasonable efforts to return a child home during the life of

the dependency action, regardless of the permanency planning goal

adopted by the juvenile court. § 19-3-702(5)(b) (In cases where the

child was under six years old at filing, “[r]egardless of any

permanent home findings made pursuant to this section,

reasonable efforts shall continue to be made to return the child or

youth home . . . . Any findings by the court regarding a permanent

home shall not delay or interfere with reunification of a child or

youth with a parent.”). In stark contrast, closing a dependency

action with an APR order to a nonparent discontinues all services

that would otherwise be offered as part of a department’s

reasonable efforts obligations.

¶ 35 Second, as the juvenile court noted in its order, it need not

make a determination of parental fitness as part of a permanency

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planning hearing. See § 19-3-702. And, indeed, it declined to make

any findings regarding parental fitness as part of its “Order re:

Permanency Planning Hearing,” which closed the case and certified

the matter to a domestic relations court. But while a juvenile court

isn’t required to find that a parent is unfit in order to enter an APR

to a nonparent, the court must consider fitness to determine the

standard of proof by which it may enter orders and whether the

parent is entitled to a presumption that they are acting in the

child’s best interests as required by Troxel. See People in Interest of

J.G., 2021 COA 47, ¶ 44.

¶ 36 At a permanency planning hearing, the applicable burden of

proof for the findings required by statute is a preponderance of the

evidence. People in Interest of R.W., 989 P.2d 240, 243 (Colo. App.

1999). But to grant an APR to a nonparent over a fit parent’s

objection, “the presumption favoring the parent’s decision can be

rebutted only by clear and convincing evidence that granting

parental responsibilities to the nonparent is in the child’s best

interests.” People in Interest of M.W., 2012 COA 162, ¶ 14.

Although an adjudication overcomes the so-called Troxel

presumption, here the child’s sibling had been successfully

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returned to father’s care and dismissed from the dependency and

neglect action, creating a question of whether father had regained

fitness. See People in Interest of N.G.G., 2020 COA 6, ¶¶ 18-19 (a

parent may regain their Troxel presumption following an

adjudication if the court finds that the parent is fit). And a

determination of parental fitness determines the standard of proof

required for decisions made by the domestic relations court after

certification, where “there is a presumption in favor of modifying

[APR] orders at [a parent]’s request.” In re Parental Responsibilities

Concerning B.R.D., 2012 COA 63, ¶ 32. But without an indication

that the juvenile court might be entering APR orders until after the

close of evidence, father didn’t have an opportunity to request or

present evidence related to a fitness finding.

¶ 37 Finally, the procedure employed by the juvenile court

eliminated father’s opportunity to present evidence outside the

scope of a permanency planning hearing but central to the terms of

an APR order. Father didn’t present evidence concerning an

appropriate family time schedule, level of supervision, or his ability

to cooperate with the maternal grandparents serving as the

placement provider. Nor could he have reasonably been expected to

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do so given the lack of notice about the nature of the juvenile

court’s final decision.

¶ 38 Simply put, the likelihood that the terms of the final APR

would have been different is sufficient to demonstrate that the

juvenile court’s procedural due process error substantially

influenced the outcome of the case and impaired the basic fairness

of the hearing. Accordingly, the juvenile court’s procedural error

can’t be disregarded as harmless.

V. Disposition

¶ 39 The judgment allocating parental responsibilities of the child is

reversed, and the action is remanded to the juvenile court for

further proceedings consistent with this order, including a

permanency planning hearing where the court shall consider and

make findings consistent with sections 19-3-702(3), (4), and (5).

Placement is to remain with the maternal grandparents until

further order of the juvenile court. Should any party file a petition

for APR pursuant to section 19-1-104(6)(a), or request other relief

under the Children’s Code, the court may proceed accordingly.

JUDGE BROWN and JUDGE MOULTRIE concur.

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