Opinion
Court of Appeals No. 21CA1055
10-13-2022
The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF E.B., a Child, and Concerning Y.B. and R.B., Sr., Intervenors-Appellants.
Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney, Golden, Colorado, for Appellee Jeffrey Koy, Lauren Dingboom, Jordan Oates, Guardians Ad Litem Kurt A. Metsger, Samantha Metsger, Denver, Colorado, for Intervenors-Appellants
Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney, Golden, Colorado, for Appellee
Jeffrey Koy, Lauren Dingboom, Jordan Oates, Guardians Ad Litem
Kurt A. Metsger, Samantha Metsger, Denver, Colorado, for Intervenors-Appellants
Opinion by JUDGE LIPINSKY
¶ 1 Under our state's Children's Code, a relative of a child may seek guardianship and legal custody of the child following termination of the parent-child legal relationship. § 19-3-605(1), C.R.S. 2022. Thus, a child whose ties to a parent are severed through a dependency and neglect proceeding may nonetheless be raised by a family member, such as a grandparent. But before granting guardianship and custody of a child to a relative, a juvenile court must first find that such placement would be in the best interests of the child. Id.
¶ 2 In this case, a juvenile court denied paternal grandparents' request for guardianship and custody of their grandchild after terminating mother's and father's parental rights. Grandparents appealed. But can grandparents immediately appeal the denial of a custody request?
¶ 3 An order "terminating or refusing to terminate" a parent's "legal relationship" with a child is a final and appealable order. § 19-1-109(2)(b), C.R.S. 2022. So is an order "decreeing a child to be neglected or dependent." § 19-1-109(2)(c). But no Colorado statute or rule of juvenile or civil procedure expressly states whether an order denying a relative's request for guardianship and custody of a child is final and appealable.
¶ 4 Today we decide that such an order is not final and appealable because it does not resolve all issues before the court and end the dependency and neglect proceeding. Thus, we dismiss grandparents' appeal.
I. Background
¶ 5 Y.B. and R.B., Sr. (grandparents) appeal from a juvenile court's order denying their request for permanent custody of their grandchild E.B. (the child) under section 19-3-605.
¶ 6 The Jefferson County Division of Children, Youth and Families initiated a dependency and neglect proceeding shortly after the child's birth in January 2020. The juvenile court entered an order granting temporary custody of the child to the Division. Pursuant to this order, the Division placed the child in grandparents' care.
¶ 7 However, two months later, the Division moved the child to foster care because grandparents were struggling to care for him. The child remained in the foster parents' care throughout the remainder of the proceedings in this case. ¶ 8 In February 2021, the juvenile court terminated mother's and father's parental rights. The juvenile court then determined that grandparents had made a timely request for guardianship and custody of the child under section 19-3-605. Following a contested hearing, the juvenile court denied grandparents' request for guardianship and custody.
¶ 9 Grandparents appealed. The child's guardian ad litem (GAL) moved to dismiss the appeal for lack of a final order. A motions division of this court denied the request and allowed the appeal to proceed.
¶ 10 While grandparents' appeal was pending, a different division of this court reversed the termination judgment against father and remanded the case for further proceedings. See People in Interest of E.B. , 2022 COA 8, ¶ 20, 507 P.3d 1092, 1096. Our supreme court granted certiorari review of that decision. People in Interest of E.B. , (Colo. No. 22SC213, July 25, 2022), 2022 WL 3021565 (unpublished order).
II. Finality
¶ 11 We address the GAL's request that we reconsider the motions division's order determining that the appeal should proceed. We agree with the GAL that the appeal must be dismissed for lack of a final, appealable order. See Allison v. Engel , 2017 COA 43, ¶ 22, 395 P.3d 1217, 1222 (explaining that a merits division of this court is not bound by a motions division's determination of jurisdiction).
A. Standard of Review
¶ 12 We review questions of statutory construction and rule interpretation de novo. People in Interest of R.S. v. G.S. , 2018 CO 31, ¶ 15, 416 P.3d 905, 909 ; see People in Interest of B.H. , 2022 COA 9, ¶ 7, 507 P.3d 1089, 1090. "In construing a statute, we look at the entire statutory scheme ‘in order to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings.’ " People in Interest of L.M. , 2018 CO 34, ¶ 13, 416 P.3d 875, 879 (quoting UMB Bank, N.A. v. Landmark Towers Ass'n , 2017 CO 107, ¶ 22, 408 P.3d 836, 840 ). We apply the same principles of interpretation to our rules. See In Interest of M.K.D.A.L. , 2014 COA 148, ¶ 5, 410 P.3d 559, 560 ; B.H. , ¶ 7, 507 P.3d at 1090-91.
B. Appeals in Dependency and Neglect Proceedings
¶ 13 C.A.R. 3.4(a) authorizes "[a]ppeals from judgments, decrees, or orders in dependency or neglect proceedings, as permitted by section 19-1-109(2)(b) and (c), C.R.S., including ... final orders of permanent legal custody entered pursuant to section[s] 19-3-702 and 19-3-605, C.R.S."
¶ 14 Even so, "[a] final judgment is a jurisdictional prerequisite to review on appeal." Brody v. Bock , 897 P.2d 769, 777 (Colo. 1995) ; see People in Interest of H.R. , 883 P.2d 619, 620 (Colo. App. 1994). The finality requirements of section 19-1-109 govern appeals from actions brought under the Children's Code, including dependency and neglect proceedings. R.S. , ¶ 16, 416 P.3d at 910.
¶ 15 Section 19-1-109 sets forth different circumstances under which a party may appeal from an order entered in a dependency and neglect proceeding. Subsection (1) authorizes appeals from orders entered in a dependency and neglect proceeding "as provided in the introductory portion to section 13-4-102(1), C.R.S." § 19-1-109(1). Section 13-4-102(1), C.R.S. 2022, in turn, provides that the court of appeals has initial jurisdiction over final judgments of district courts, including juvenile courts. People in Interest of M.R.M. , 2021 COA 22, ¶ 14, 484 P.3d 807, 811.
¶ 16 Further, subsections (2)(b) and (2)(c) of section 19-1-109 authorize appeals from additional orders that would not fall within the purview of subsection (1) and, therefore, would not be final under section 13-4-102(1). See R.S. , ¶ 19, 416 P.3d at 910. These subsections designate orders "terminating or refusing to terminate the legal relationship between a parent or parents and one or more of the children of such parent or parents on a petition, or between a child and one or both parents of the child," § 19-1-109(2)(b), and "decreeing a child to be neglected or dependent," § 19-1-109(2)(c), as final and appealable. In essence, these subsections allow appeals from orders that would not otherwise be considered final and appealable. R.S. , ¶ 20, 416 P.3d at 910.
¶ 17 However, apart from these exceptions, which are inapplicable here, an order in a dependency and neglect proceeding must be final for appeal. See id. at ¶ 29, 416 P.3d at 912.
¶ 18 A final judgment is one that ends the particular action, leaving nothing further to be done to completely determine the rights of the involved parties. Id. at ¶ 37, 416 P.3d at 914 ; see also People in Interest of E.C. , 259 P.3d 1272, 1276 (Colo. App. 2010). To determine "whether an order is final for purposes of appeal, we generally ask ‘whether the action of the court constitutes a final determination of the rights of the parties in the action.’ " R.S. , ¶ 37, 416 P.3d at 914 (quoting Cyr v. Dist. Ct. , 685 P.2d 769, 770 (Colo. 1984) ). Stated differently, an order is final when the juvenile court has resolved all issues that were presented in the dependency and neglect proceeding. Cf. In re Marriage of Salby , 126 P.3d 291, 295 (Colo. App. 2005) (holding that a permanent order regarding parenting issues was not final until the court resolved all the issues presented in the dissolution of marriage proceeding).
C. Requests for Permanent Custody
¶ 19 Section 19-3-605(1) provides that, following the entry of an order terminating the parent-child legal relationship, the juvenile court "shall consider, but shall not be bound by, a request that guardianship and legal custody of the child be placed with a relative of the child." A relative must file such a request with the court within twenty days of the date on which the termination motion is filed. Id.
D. Orders Denying Guardianship and Legal Custody Are Not Final
¶ 20 Applying this framework, we conclude that the juvenile court's order denying grandparents' request for permanent custody of the child under section 19-3-605 is not a final and appealable order. This is because the juvenile court's denial of grandparents' request for permanent custody of the child did not resolve all issues before the court or end the proceeding.
¶ 21 We recognize that father's appeal remains subject to certiorari review. As a result, we cannot predict whether there will be further proceedings concerning the Division's request for an order terminating his parental rights. However, this circumstance is of no consequence to our determination that the order denying grandparents' request for custody is not final and appealable.
¶ 22 Notwithstanding the uncertain status of the order terminating father's parental rights, the juvenile court is responsible for taking further action to address other issues concerning the child. Indeed, the juvenile court will maintain ongoing jurisdiction over the child until the child becomes eighteen and one-half years of age or, before that date, the court issues an order terminating its jurisdiction. See § 19-3-205(1), C.R.S. 2022.
¶ 23 So long as the court exercises jurisdiction over the case, it is obligated to hold a permanency planning hearing at least once every six months. See § 19-3-702(1)(a), C.R.S. 2022. Additionally, the court must conduct a periodic review at least once every six months and determine, among other things, the continuing necessity for and the appropriateness of the child's placement. See § 19-3-702.5(1), C.R.S. 2022. As a result, the court will need to take further action concerning the child until the case ends, either because the court terminates its jurisdiction after effectuating the child's adoption or another permanent arrangement or the child reaches the age of eighteen and one-half.
¶ 24 In reaching this conclusion, we are mindful that C.A.R. 3.4(a) specifically authorizes an appeal from final orders granting permanent legal custody pursuant to section 19-3-605. But it does not extend the same authorization to orders denying a request for permanent legal custody. This distinction comports with the principle that an order is a final judgment only if it resolves all issues before the court.
¶ 25 An order granting guardianship and custody of a child following the termination of parental rights will generally resolve all issues before the court. In other words, the entry of such an order is the final step in determining the rights of the parties and will end the underlying dependency and neglect proceeding. See M.R.M. , ¶ 19, 484 P.3d at 811 (concluding that an order allocating parental responsibilities between the parents in a dependency and neglect proceeding was final and appealable because it determined the rights of the parties and ended the proceeding); see also E.C. , 259 P.3d at 1276 (determining that a permanency planning order that granted an allocation of parental responsibilities for a child to a relative was final and appealable).
¶ 26 In contrast, a denial of a relative's request for guardianship and custody under section 19-3-605 does not resolve all issues. Instead, as previously noted, under those circumstances, the juvenile court must continue to review the child's placement and conduct a further review of the permanency plan for the child until the case is closed.
¶ 27 In addition, we acknowledge that, at least in some circumstances, it may be preferable to allow a relative to obtain appellate review of an order denying a request for permanent custody of a child before the juvenile court closes its case through the child's adoption or another permanent arrangement. The twenty-day time limit set forth in section 19-3-605 indicates that the General Assembly sought to ensure that interested relatives request custody before the termination hearing. The General Assembly has also declared that one of the purposes of the Children's Code is for the courts to proceed with all possible speed to a legal determination that will serve the child's best interests. § 19-1-102(1)(c), C.R.S. 2022.
¶ 28 Nonetheless, section 19-1-109 does not specifically designate such an order as final and appealable. We may not rewrite a provision under the Children's Code, even if doing so might better serve a child's interests. See People in Interest of K.L.W. , 2021 COA 56, ¶ 38, 492 P.3d 392, 399. Nor do we have the authority to expand or modify the appellate jurisdiction that is granted to us by statute. See People in Interest of L.R.B. , 2019 COA 85, ¶ 15, 487 P.3d 1058, 1062. Rather, it is the General Assembly's prerogative to determine whether it is appropriate to modify section 19-1-109 to allow grandparents and other relatives to immediately appeal from orders denying their requests for guardianship and custody of a child. See K.L.W. , ¶ 38, 492 P.3d at 399.
¶ 29 For these reasons, we conclude that the juvenile court's order denying grandparents' request for guardianship and legal custody is not final for purposes of appeal. As a result, we dismiss the appeal without addressing grandparents' arguments.
III. Conclusion
¶ 30 The appeal is dismissed.
JUDGE J. JONES and JUDGE GOMEZ concur.