A Colorado court must have jurisdiction before terminating parental rights. But a court can grant an adoption without UCCJEA jurisdiction. How do you reconcile these two conflicting rules when an adoption also involves the termination of parental rights? The Colorado Court of Appeals addressed that very issue in a new case.
What is UCCJEA Jurisdiction?
In order for a court to enter parenting orders, it must have jurisdiction to do so under the Uniform Child Custody Jurisdiction & Enforcement Act, or UCCJEA, codified at C.R.S. 14-13-101, et seq. Typically, that means that Colorado is the child’s home state, which means the child has lived here for 182 days within the past year.
However, complications arise when a different state has already entered a child custody order – in such cases, as long as the child or either parent still lives in the state, that original state keeps exclusive continuing jurisdiction over child custody issues unless it chooses to give up its jurisdiction. So even if the child moves to Colorado, if one parent remains in the original state, Colorado cannot issue parenting orders unless the other state agrees to defer jurisdiction to Colorado.
The purpose of this rule is to avoid the potential for conflicting parenting orders by ensuring that only one state can have jurisdiction at a time. For a complete discussion of child custody jurisdiction and the UCCJEA, see our parenting jurisdiction article in the Colorado Family Law Guide.
Child Custody Proceedings Require UCCJEA Jurisdiction
This jurisdictional requirement applies to a “child custody proceeding”, which is defined as:
“a proceeding in which legal custody or physical custody with respect to a child or the allocation of parental responsibilities with respect to a child or visitation, parenting time, or grandparent or great-grandparent visitation with respect to a child is an issue. The term includes a proceeding for divorce, dissolution of marriage, legal separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence and domestic abuse, in which the issue may appear.”
C.R.S. 14-13-102(4). (Emphasis added). Note the bold words – a court must have jurisdiction before it can terminate a parent’s rights.
But adoptions are specifically excluded from the requirements of the UCCJEA per C.R.S. 14-13-103: “This article does not govern an adoption proceeding.” So what about an adoption – does the UCCJEA jurisdiction requirement apply when court would also be terminating parental rights?
Court – Adoption Which Includes Termination of Parental Rights Requires UCCJEA Jurisdiction
The issue facing the court in M.M.V.1In re: Petition of M.M.V., 2020 COA 94. was whether UCCJEA jurisdiction was required for an adoption proceeding which also included the termination of parental rights.
M.M.V. has a convoluted procedural history, but in short, during the parents’ divorce in Arizona, the court also restricted the father’s parenting and gave the mother permission to move to Colorado with the parties’ daughter. The mother subsequently remarried, and later the stepfather filed a petition to adopt the child, necessarily needing a termination of parental rights over the father’s parenting. The father opposed the motion, arguing that because Arizona had issued the initial child custody order, and he still lived in Arizona, Colorado could not terminate parental rights because Arizona had continuing exclusive continuing UCCJEA jurisdiction over child custody.
Retention of Jurisdiction Deprives Colorado of UCCJEA Jurisdiction
Complicating matters is the fact that after the father’s objection, the mother asked the Arizona court to defer UCCJEA jurisdiction to Colorado, which the Arizona court did. But then, before Colorado ruled on the adoption, the Arizona Court partially reconsidered its order, and and decided to retain partial parenting jurisdiction over the issue of grandparent visitation. Inexplicably, this was done by agreement of the parties.
Thereafter, the Colorado family law court held its hearing, and the father continued to object, citing Arizona’s reconsideration of its original order as grounds. The Colorado trial court rejected the challenge, and without conferring with the Arizona court as required by the UCCJEA, determined that once Arizona had ceded UCCJEA jurisdiction to Colorado, the Arizona court lacked jurisdiction to reconsider its order. M.M.V.2In re: Petition of M.M.V., 2020 COA 94, ¶ 39.
The court of Appeals held this was error, as purporting to transfer UCCJEA jurisdiction to Colorado was inconsistent with retaining jurisdiction over grandparent visitation. This jurisdictional ambiguity required the trial court in Colorado to confer with the Arizona court for clarification.
UCCJEA Jurisdiction Required to Terminate Parental Rights
The M.M.V. court recognized that the issue of whether a Colorado court can terminate parental rights as part of an adoption proceeding without UCCJEA jurisdiction as an issue of first impression in Colorado. And the court discussed the fact that various states have reached contradictory conclusions on this question.
Ultimately, however, Colorado sided with states requiring UCCJEA jurisdiction before terminating parental rights, reasoning that a stepparent adoption proceeding was both an adoption and a termination proceeding.
“Still, there are two distinct components that arise during a stepparent adoption case. In addition to issuing a final decree of adoption, the juvenile court must also issue an order terminating the noncustodial parent’s rights… Although both the decree and termination judgment are issued in the same case, they are separate orders.”M.M.V.3In re: Petition of M.M.V., 2020 COA 94, ¶ 13.
Discussing the apparent contradiction between the UCCJEA provision excluding adoption from its jurisdiction requirements, but including termination of parental rights proceedings, the Court concluded:
“A plain and harmonious reading of these two provisions shows that while the UCCJEA does not govern a proceeding that solely involves the adoption of a child, it does apply to the portion of a stepparent adoption case that concerns the termination of parental rights. Thus, for example, the UCCJEA would have no applicability to a stepparent adoption case if the noncustodial parent were deceased or had previously had his or her parental rights terminated in a separate case. In contrast, when, as here, the stepparent adoption case also requires the court to consider the termination of parental rights, the UCCJEA governs that portion of the case.”M.M.V.4In re: Petition of M.M.V., 2020 COA 94, ¶ 22.
The court reasoned it made no sense to require UCCJEA jurisdiction to terminate parental rights in a stand-alone proceeding, but not for a court terminating parental rights as part of an adoption proceeding. Calling termination “the ultimate custody determination”, the M.M.V. court cited the rationale from a Louisiana decision that excluding adoption would make it too easy to circumvent a state’s continuing exclusive jurisdiction under the UCCJEA:
“It reasoned that if a party could simply move to another state and apply to adopt a child, which requires terminating the parental rights that are at issue in the other state, it would undercut the validity of any custody judgment issued by a court of competent jurisdiction.”M.M.V.5In re: Petition of M.M.V., 2020 COA 94, ¶ 25.
Congratulations to Colorado Springs’ family law appellate guru Dan West for prevailing on the appeal. The outcome is not only common-sense, but family law attorneys will welcome having guidance that UCCJEA jurisdiction is required to terminate parental rights as part of an adoption proceeding.