Summary of Opinion — Court of Appeals No. 18CA0313 (11-15-2018)

Factual and Procedural Background

In June 2015 the Jefferson County Division of Children, Youth, and Families filed a dependency and neglect petition concerning the mother's mental health. The newborn child, C.N., was placed in foster care. The mother's parental rights were terminated about one year later; a division of the court of appeals affirmed that judgment and issued mandate on February 28, 2017. In February 2017 (about a year and a half after the child's birth and eight months after termination of parental rights) the grandmother, A.N., moved to intervene and moved for placement of the child with her. After a contested hearing the juvenile court found it was in the child's best interest to remain permanently with the foster parents, terminated grandmother's visitation, and refused to accept grandmother's petition for kinship adoption filed that same day into the dependency and neglect case. The foster parents subsequently adopted the child in January 2018. Grandmother appealed the juvenile court's order placing the child permanently with the foster parents.

Legal Issues Presented

1. Whether the grandmother has a constitutionally protected liberty interest in the society or custody of the child such that she was entitled to due process protections (including notice of the termination hearing).
2. Whether the grandmother, as an intervenor, was a real party in interest and had standing to raise issues pertaining to the mother and the child.
3. Whether the juvenile court had subject matter jurisdiction and proper venue.
4. Whether the juvenile court erred in refusing to accept the grandmother's petition for adoption into the dependency and neglect case.
5. Whether the juvenile court erred in terminating the grandmother's visitation rights.
6. Whether the juvenile court improperly failed to read statutes in pari materia or engaged in judicial legislation by emphasizing the child's attachment to foster parents.

Arguments of the Parties

Grandmother's Arguments

• The mother did not receive reasonable accommodations for her mental health (for example, appointment of a guardian ad litem) and needed assistance notifying relatives of the termination proceeding.
• The child had a fundamental right of association with the grandmother, entitling grandmother to due process protections (including notice of the termination hearing).
• As an intervenor, grandmother was a real party in interest and thus had standing to raise issues concerning the mother and the child.
• The juvenile court erred in refusing to accept grandmother's petition for kinship adoption into the existing dependency and neglect case.
• The juvenile court erred by terminating grandmother's visitation rights.
• The juvenile court misread statutes that should be construed in pari materia, overemphasized attachment to foster parents, and thereby engaged in judicial legislation beyond legislative intent to preserve blood relationships.

The opinion does not contain a detailed account of the opposing parties' (Petitioner-Appellee or intervenors') discrete appellate argumentation beyond their defense of the juvenile court's orders as reflected in the court's analysis and rulings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Summers v. Perkins, 81 P.3d 1141, 1142 (Colo. App. 2003)	Defines "real party in interest" as the party with substantive-law right to invoke court aid to vindicate the legal interest.	Used to analyze whether grandmother was the real party in interest and thus had standing to raise issues concerning mother and child; court concluded grandmother lacked such standing.
People in Interest of J.M.B., 60 P.3d 790, 792 (Colo. App. 2002)	Demonstrates that one parent, intervenor, or other nonparty may lack standing to assert rights of another party.	Applied to show intervenors/parents lack standing to assert rights of other parties; supported conclusion that grandmother lacked standing to raise mother's or child's rights.
People in Interest of E.S., 49 P.3d 1221, 1223 (Colo. App. 2002)	Mother lacked standing to raise issues regarding another party (stepfather) — standing limitations.	Used with other cases to support the proposition that intervenors cannot assert rights of other parties; applied against grandmother's standing arguments.
People in Interest of J.A.S., 160 P.3d 257, 261 (Colo. App. 2007)	One parent does not have standing to raise issues regarding termination of the other parent's rights.	Reinforced the standing principle applied to grandmother's attempt to assert rights of mother or child.
People in Interest of A.M.D., 648 P.2d 625, 632 (Colo. 1982)	Due Process Clauses protect against arbitrary governmental restrictions on liberty interests; establishes due process framework.	Invoked to explain the constitutional baseline for assessing whether a protected liberty interest exists.
Mathews v. Eldridge, 424 U.S. 319, 332 (1976)	Federal due process principles regarding deprivation of life, liberty, or property without due process.	Cited as foundational authority for the court's due process analysis.
M.S. v. People in Interest of A.C., 2013 CO 35, ¶ 9	Quotes Fourteenth Amendment due process guarantee regarding deprivation of life, liberty, or property.	Used as part of the court's explanation of the due process standard.
Troxel v. Granville, 530 U.S. 57, 66 (2000)	Parental liberty interest: parents responsible for care, custody, and management of their children; source of familial liberty interest.	Applied to distinguish parental constitutional protections from those of nonparents (extended family) when assessing grandmother's claim.
People in Interest of (923 P.2d 383) [case name not provided in excerpt]	Holds an extended family member (maternal aunt) without an existing custodial relationship did not have a constitutionally protected liberty interest requiring notice of termination hearing.	Used as a directly analogous precedent: because the aunt lacked a custodial relationship and thus no protected interest, the court concluded the same for grandmother here.
People in Interest of C.P. v. F.P., 34 Colo. App. 54, 524 P.2d 316 (1974)	Relative entitled to intervene at dispositional stage if application made prior to hearing; court need not consider or give notice to relatives who did not make timely application.	Distinguished: court explained C.P. did not establish a due process liberty right based solely on relationship; grandmother had been aware of removal long before she sought to intervene.
Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995)	Rejects proposition that a grandparent, by genetic link alone, enjoys a fundamental liberty interest in adoption of grandchildren.	Cited to show consensus in other jurisdictions that grandparents generally do not possess a constitutionally protected liberty interest in the society of grandchildren.
Graham v. Children's Servs. Div., Dep't of Human Res., 591 P.2d 375, 379 (Or. Ct. App. 1979)	Concludes grandparents have no constitutionally recognized liberty interest requiring a hearing in contested adoption.	Used as authority supporting the conclusion that grandparents do not have a constitutional liberty interest in their grandchildren's society.
In re Adoption of Taylor, 678 S.W.2d 69 (Tenn. Ct. App. 1984)	Surveyed other states and concluded grandparents have no constitutionally protected interest in society of grandchildren.	Cited as additional out-of-state authority supporting the court's conclusion.
People in Interest of J.W.W., 936 P.2d 599, 600 (Colo. App. 1997)	Statutory exclusion of certain persons as grandparents where parental rights have been terminated.	Applied to the statutory interpretation that grandparents' status (and attendant visitation rights) can be extinguished when a parent's rights are terminated.
People in Interest of M.M., 726 P.2d 1108, 1124 (Colo. 1986)	Termination order eliminates the right to visitation between parent and child.	Applied to conclude termination of the mother's parental rights extinguished any visitation rights grandmother might have had by virtue of being a grandparent.
People in Interest of N.S., 821 P.2d 931, 932-33 (Colo. App. 1991)	Grandparents' statutory visitation rights did not survive termination of natural parents' legal rights.	Applied to support the juvenile court's decision terminating grandmother's visitation.
People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004)	Issues not properly before the court when the appellant fails to identify specific supporting facts, arguments, or authorities.	Applied to reject grandmother's pari materia/judicial-legislation claim for lack of specificity.
Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010)	If statutory language is clear, interpret statute according to its plain and ordinary meaning.	Applied in interpreting section 19-1-309's "shall" language to require a separate docket for adoption proceedings.

Court's Reasoning and Analysis

The court's analysis proceeded in structured steps:

1. Standing/real party in interest — Applying C.R.C.P. 17(1) and Summers v. Perkins, the court concluded the grandmother was not the real party in interest for purposes of raising claims on behalf of the mother or the child. The court relied on Colorado authorities establishing that parents or intervenors generally lack standing to assert rights of other parties, and emphasized that the Children's Code assigns the guardian ad litem (GAL) statutory responsibility (section 19-3-203) to advocate for the child's best interests and to participate at all stages, including appeal; absent indication the GAL was unable or unwilling, courts will not confer standing to intervenors to assert the child's rights.
2. Subject matter jurisdiction and venue — The court found the juvenile court had subject matter jurisdiction and proper venue because the mother had been residing in Jefferson County (even if briefly) at the time and a child in legal custody of a department is deemed to reside where the legal parent or guardian resides.
3. Existence of a constitutional liberty interest — The court explained the Due Process Clauses protect liberty interests and that a protected familial liberty interest originates from the parent-child relationship. It applied precedents distinguishing parental rights from the rights of extended family members and relied on an analogous division opinion where an aunt without an existing custodial relationship had no constitutionally protected liberty interest requiring notice of termination. The court also surveyed other jurisdictions and authorities concluding grandparents do not, by genetic link or familial status alone, possess a fundamental constitutional liberty interest in the custody or society of grandchildren. The court thus held that where a grandparent only has statutory, limited visitation rights and a biological relationship but no existing custodial relationship — particularly when the grandparent was aware the child had been removed and parental rights were later terminated — no constitutionally protected liberty interest exists requiring notice.
4. Notice of termination hearing — Because grandmother lacked a protected liberty interest, the court concluded federal or state constitutional due process did not require she receive notice of the termination hearing. The court considered 42 U.S.C. § 671(a)(29) (the federal State Plan requirement) and explained that while it requires due diligence to notify relatives about a child's removal and options for participation, it does not by its terms require notice of court hearings concerning termination.
5. Petition for adoption — The court addressed grandmother's contention that the juvenile court erred by refusing to accept her adoption petition into the dependency and neglect case. Relying on section 19-1-309's language that "a separate docket shall be maintained ... for adoption proceedings" and conventional rules of statutory interpretation (including treating "shall" as mandatory), the court concluded the legislature intended adoption proceedings to be maintained separately; grandmother cited no authority requiring a judge to accept an adoption filing into the dependency case and showed no prejudice from being required to file a separate proceeding.
6. Termination of grandparent visitation — The court noted the Children's Code definition of grandparent and the statutory exclusion for a parent of a child's legal mother or father whose parental rights have been terminated. It applied precedent that a termination order eliminates the right to visitation and concluded any visitation rights the grandmother had by virtue of being a grandparent were extinguished by the mother's termination.
7. In pari materia and judicial legislation — The court explained the canon of in pari materia and found grandmother failed to identify with specificity the statutes she argued should be read together or how the juvenile court misapplied the law. Because grandmother did not make specific arguments or cite authorities, the claim was not properly before the court.

Holding and Implications

Judgment affirmed.

Direct effects on the parties:

• The juvenile court's order placing the child permanently with the foster parents and terminating the grandmother's visitation is affirmed.
• The grandmother was held not to have a constitutionally protected liberty interest in the society or custody of the child under the circumstances presented (limited statutory visitation rights only, biological relationship without an existing custodial relationship, and awareness of the child's removal and subsequent termination of the parent's rights), and therefore was not entitled to notice of the termination hearing based on due process grounds.
• The juvenile court did not err in refusing to accept grandmother's petition for adoption into the dependency and neglect case; adoption proceedings are to be maintained on a separate docket under section 19-1-309.

Broader implications and precedent:

The decision applies established Colorado and out-of-state authority in concluding grandparents generally do not possess a constitutionally protected liberty interest in custody or society of grandchildren absent an existing custodial relationship; the opinion does not announce a novel legal rule beyond applying and synthesizing those authorities to the facts here.