Court Opinions: Colorado Supreme Court Opinions for Nov. 7

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People in the Interest of E.W.

The Colorado Supreme Court en banc unanimously affirmed a judgment concerning jurisdiction in a child custody case.

In September 2018, nine-month-old E.W. was living with her parents in Colorado where she had been since birth. Police responded to an alleged domestic violence incident at the family home. On a follow-up visit, a caseworker observed the parents appeared to be under the influence of drugs or alcohol and E.W. appeared to be malnourished. E.W. was taken to a hospital where she tested positive for methamphetamine and showed other signs of neglect.

The El Paso Department of Human Services filed a petition of dependency and neglect. E.W. was adjudicated dependent and neglected and was placed in a foster home in Colorado. The parents were referred to substance abuse treatment and were also put on a family services plan. Court records indicate both struggled to engage in their treatment plans.

The father requested EPDHS explore a kin-like placement in Montana, where he’s from, and had friends and family who could possibly care for E.W. After an investigation under the Interstate Compact on the Placement of Children, EPDHS found a kin-like placement in Montana. The court approved the ICPC placement and ordered EPDHS to retain custody of E.W., noting it retained jurisdiction over the case.

In September 2019, EPDHS notified the court the father and mother moved to Montana. The court took notice of the move, explaining that it continued to have jurisdiction over the subject matter and parties as well as jurisdiction over the case and its prior orders remain in effect. Due to those orders, EPDHS continued its efforts to help both parents in their treatment plans, which included flying a caseworker to Montana to meet with them and obtaining releases to speak with treatment providers in Montana. The parents continued to struggle with their treatment plans, according to court records.

In July 2020, the court held a hearing and terminated the parent-child legal relationship with both parents. In the order, the court stated it had jurisdiction over the subject matter and parties, it retained jurisdiction over the case and its prior orders remained in effect pending potential appeals.

The mother and father appealed, arguing the Colorado court lost exclusive and continuing jurisdiction over the matter, citing Colorado Revised Statute 14-13-202(1)(b), because E.W. and the parents left Colorado. They also argued the proceeding to terminate the parental rights was a new child custody proceeding and a modification of child-custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act required the court to reestablish jurisdiction. Finally they argued at the time of the termination proceeding, Montana, not Colorado, was E.W.’s home state under UCCJEA.

The appeals court rejected those arguments and concluded Colorado could have only lost continuing jurisdiction under UCCJEA if another state attempted to get jurisdiction over E.W. Since Montana never sought jurisdiction, the Colorado court never lost jurisdiction under UCCJEA. The appeals court also found the termination proceeding wasn’t a new child-custody proceeding, so the juvenile court wasn’t required to reestablish jurisdiction. The appeals court affirmed.

The parents appealed to the high court which also affirmed the judgment. The Supreme Court looked at whether a Colorado court loses jurisdiction over a child custody case when all the parties leave the state. After reading through the UCCJEA, ICPC and Children’s Code, it concluded it doesn’t and the juvenile court had jurisdiction entering the termination order.

Colorado Judicial Department et al. v. Colorado Judicial Department Personnel Board of Review et al.

The Supreme Court en banc affirmed a judgment connected to employee discipline within the judicial department. 

When employees of the Judicial Department get disciplined, the Colorado Judicial System Personnel Rules give them a chance to appeal to the Judicial Department Personnel Board of Review. The employee in this case, probation officer Abbey Dickerson, appealed to the board after her termination by the 18th Judicial District. Dickerson was accused of violating a defendant’s right to privacy and confidentiality of private information. The board appointed an attorney who served as the hearing officer in the case. After an evidentiary hearing, the hearing officer changed the disciplinary action to a 90-day suspension without pay. 

The 18th Judicial District appealed, but the board affirmed the hearing officer’s decision. The 18th Judicial District sought review, filing a C.R.C.P. 106(a)(4) claim in Denver District Court, arguing the board applied the incorrect standard of review and abused its discretion. Dickerson intervened in the action and joined the board in moving to dismiss on multiple grounds including lack of jurisdiction. The district court granted the motion to dismiss due to a lack of subject matter jurisdiction because the board was neither a governmental body nor a lower judicial body within 106(a)(4). The appeals court affirmed.

The high court held the personnel rules precluded district court review of a final order by the board. Due to this holding, the Supreme Court didn’t address whether the board is a governmental body or lower judicial body under 106(a)(4). The high court affirmed the appeals court judgment.

The Colorado Supreme Court did recognize the concerns from the 18th Judicial District regarding a lack of opportunity for judicial review of the board’s final orders. The Supreme Court argued that given the current review process within the personnel rules, there are also concerns with permitting a district court to review final orders from the board. The Supreme Court wrote it believes the 18th Judicial District’s concerns should be addressed, if needed, by a revision to personnel rules, which the high court can amend.

Justice Monica Marquez was joined by Chief Justice Brian Boatright and Justice Melissa Hart in dissent.

“I am concerned that the majority’s decision to preclude review in this context results in treating Judicial Department employees differently than all other state employees—despite express legislative guidance to the contrary,” Marquez wrote. “Because the Personnel Rules, as currently written, do not preclude district courts from reviewing final decisions by the Personnel Board under Rule 106(a)(4), the district court in this case had subject matter jurisdiction to review the Board’s decision.”

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