of MMV

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 11, 2020

                                2020COA94

No. 19CA0759, Petition of MMV — Family Law — Children’s
Code — Relinquishment and Adoption — Stepparent Adoption
— Uniform Child-custody Jurisdiction and Enforcement Act

     A division of the court of appeals considers whether the

Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA)

governs a proceeding for stepparent adoption. Although the

UCCJEA exempts adoption proceedings from its purview, it

expressly provides that it is applicable to proceedings to terminate

parental rights. Reconciling these two provisions, the division

concludes, for the first time, that 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.

     The division further concludes that the magistrate did not

properly acquire subject matter jurisdiction under the UCCJEA to
hear the proceeding to terminate father’s parental rights. As a

result, the division vacates the judgment.
COLORADO COURT OF APPEALS                                        2020COA94


Court of Appeals No. 19CA0759
Pueblo County District Court No. 18JA12
Honorable Gregory J. Styduhar, Judge


In re the Petition of M.M.V.,

Appellee,

for the Adoption of D.D.R., a Child,

and Concerning B.P.R.,

Appellant.


                       JUDGMENT VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division IV
                          Opinion by JUDGE PAWAR
                        Furman and Welling, JJ., concur

                           Announced June 11, 2020


Melinda B. Orendorff, Pueblo, Colorado, for Appellee

Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant
¶1    In this stepparent adoption proceeding, B.P.R. (father) appeals

 from the juvenile court judgment terminating his parental rights

 and decreeing the adoption of his child, D.D.R., by M.M.V.

 (stepfather). We must decide an issue that has not yet been

 addressed in Colorado — does the Uniform Child-custody

 Jurisdiction and Enforcement Act (UCCJEA), sections 14-13-101 to

 -403, C.R.S. 2019, govern the termination of parental rights that is

 initiated in a stepparent adoption case? We conclude that the

 answer is yes.

¶2    We further conclude that the record does not establish that

 the magistrate properly acquired subject matter jurisdiction under

 the UCCJEA before terminating father’s parental rights. As a

 result, we vacate the judgment and remand the case for further

 proceedings.

                   I. The Juvenile Court Proceeding

¶3    The child was born to K.E.V. (mother) and father in 2007.

 About six years later, a court in Arizona issued an order that

 dissolved the parents’ marriage and allocated decision-making

 authority and parenting time for the child. As part of the same

 case, the Arizona court later issued orders (1) placing restrictions


                                   1
 on father’s parenting time; (2) awarding visitation to the paternal

 grandparents; and (3) authorizing mother to move with the child to

 Colorado.

¶4    Meanwhile, mother married stepfather. And, in February

 2018, stepfather filed two petitions, one to adopt the child and one

 to terminate the child’s legal relationship with father. Father moved

 to dismiss the petitions under the UCCJEA and the Parental

 Kidnaping Prevention Act (PKPA), 42 U.S.C. § 1738A (2018), arguing

 that because the Arizona court that had made the prior child-

 custody determinations had not declined jurisdiction, the Colorado

 court lacked jurisdiction to grant the relief requested.

¶5    Soon thereafter, mother asked the Arizona court to decline to

 exercise its continuing jurisdiction over decision-making authority

 and parenting time for the child. Although mother’s motion

 informed the Arizona court that a Colorado court had a pending

 proceeding to sever father’s rights and allow stepfather to adopt the

 child, it does not appear that she filed a copy of the petitions from

 this case. After reviewing pleadings from mother and father, the

 Arizona court determined that the child no longer had a significant

 connection with the state and that substantial evidence regarding


                                    2
 the child’s care was no longer available in the state. As a result, it

 granted mother’s request and declined its continuing jurisdiction.

 And, based on that order, the magistrate in stepfather’s case

 determined that the Colorado court had jurisdiction to hear the

 petitions for termination and stepparent adoption.

¶6    However, in early September 2018, the Arizona court partially

 reconsidered its determination. By the agreement of the parties to

 that case — father, mother, and the paternal grandparents — the

 Arizona court determined that it would retain jurisdiction over the

 grandparents’ visitation rights and severed that issue into a

 separate case.

¶7    Not long after, the magistrate held a hearing on stepfather’s

 petitions to terminate father’s rights and adopt the child. At the

 start of the hearing, father raised the issue of the reconsideration

 order and objected to the magistrate exercising jurisdiction because

 it meant two states would be determining child-custody issues. The

 magistrate determined that the Colorado court had jurisdiction, but

 also said that it was a significant issue that the parties needed to

 address as part of their proposed orders.




                                    3
¶8    Following the two-day hearing, the magistrate issued a

 thorough order addressing the Colorado court’s jurisdiction to hear

 the proceeding under the UCCJEA and the PKPA. The magistrate

 reasoned that termination and stepparent adoption were a single

 proceeding and the UCCJEA did not apply to adoption proceedings.

 The magistrate further observed that even if the UCCJEA was

 applicable, the Arizona court’s reconsideration order was entered

 without jurisdiction because the magistrate had already begun

 exercising the Colorado court’s jurisdiction by that time.

 Thereafter, the magistrate terminated father’s parental rights and

 granted the decree of adoption.

                   II. Jurisdiction Over Proceeding

¶9    Father contends that the magistrate lacked subject matter

 jurisdiction under the UCCJEA and the PKPA to terminate his

 parental rights because the Arizona court had previously entered a

 child-custody determination and had, at the time of the termination

 proceeding, retained jurisdiction over grandparent visitation. To

 resolve this issue, we must first decide a preliminary question that

 the magistrate also addressed — whether the UCCJEA governs a

 proceeding to terminate parental rights that arises in the context of


                                   4
  a stepparent adoption. Contrary to the magistrate’s determination,

  we conclude that the UCCJEA is applicable under those

  circumstances and that the record does not demonstrate that the

  magistrate had properly acquired jurisdiction under the UCCJEA to

  consider the termination of parental rights.

          A. Standard of Review and Interpretation Principles

¶ 10   We review questions of statutory interpretation de novo.

  People in Interest of L.M., 

, ¶ 13. 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.”

Bank, N.A. v. Landmark

  Towers Ass’n, 

, ¶ 22).

¶ 11   And, when construing statutes related to the same subject

  matter, we aim to avoid a statutory interpretation that would render

  certain words or provisions superfluous or ineffective.

  avoid a statutory construction that would lead to an absurd result.

aim to adopt an interpretation that achieves

  consistency across a comprehensive statutory scheme.

Frameworks


                                    5
       1. Stepparent Adoption and Termination of Parental Rights

¶ 12   Under the Colorado Children’s Code, a child may be available

  for stepparent adoption when the parent has abandoned the child

  or failed without cause to provide reasonable support for a period of

  one year or more. § 19-5-203(1)(d)(II), C.R.S. 2019; D.P.H. v. J.L.B.,

  

, 324 (Colo. 2011). Alternatively, a parent having only

  residual parental responsibilities may consent to the child’s

  adoption by the spouse of the parent who has primary custody or

  parental responsibilities. § 19-5-203(1)(e).

¶ 13   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. § 19-5-210(6), C.R.S. 2019; see

  also 

(recognizing that a stepparent adoption

  necessarily includes the termination of the parental rights of the

  noncustodial parent). Although both the decree and termination

  judgment are issued in the same case, they are separate orders.

  See In re E.R.S., 

, ¶ 21 (concluding that the juvenile

  court’s order terminating mother’s parental rights in a stepparent




                                    6
  adoption proceeding was final for appellate purposes even though

  the court had not issued the adoption decree).

¶ 14   In addition to being a distinct component of the stepparent

  adoption process, termination of parental rights is particularly

  significant because it permanently severs a constitutionally

  protected fundamental liberty interest. The Due Process Clause of

  the Fourteenth Amendment protects the fundamental right of a

  parent to make decisions concerning the care, custody, and control

  of his or her child. Troxel v. Granville, 

, 65-66 (2000);

  see also In Interest of Baby A, 

, ¶ 20. It is perhaps the

  oldest of the fundamental liberty interests recognized by the

  Supreme Court. 

. And it is an interest far

  more precious than any property right. Santosky v. Kramer, 

, 758-59 (1982).

¶ 15   Termination of parental rights is defined as the permanent

  elimination of all parental rights and duties, including residual

  rights and responsibilities. § 19-1-103(107), C.R.S. 2019. It is

  complete, final, and irrevocable. In Interest of K.D., 

, 167 (Tex. App. 2015). As a result, termination permanently




                                    7
  severs the parent’s fundamental liberty interest in parenting his or

  her child.

                             2. The UCCJEA

¶ 16   The UCCJEA was promulgated by the Uniform Law

  Commission for the key purpose of creating consistency in

  interstate child-custody jurisdiction and enforcement proceedings.

  Angel B. v. Vanessa J., 

, 1259-60 (Ariz. Ct. App.

  2014). It has now been adopted in forty-nine states as well as the

  District of Columbia. Linda Elrod, Unif. Law Comm’n Joint

  Editorial Bd. of Unif. Family Law, Commentary on Adoption

  Jurisdiction Under the UCCJEA 7, 9 (2019), https://perma.cc/6TYE-

  4SJZ.

¶ 17   The primary aim of the UCCJEA is to prevent competing and

  conflicting custody orders by courts in different jurisdictions that

  would put all parties at risk of uncertainty and unilateral removals

  of children from or to various jurisdictions. Angel 

. Put another way, the UCCJEA is designed to avoid

  jurisdictional competition over child-custody matters in an

  increasingly mobile society. Brandt v. Brandt, 

, ¶ 19. To

  effectuate this purpose, it establishes a comprehensive framework


                                     8
  that a Colorado court must follow to determine whether it may

  exercise jurisdiction in a child-custody matter or whether it must

  defer to a court of another state. People in Interest of A.B-A., 

, ¶ 9. The UCCJEA covers a wide variety of child-custody

  matters, defined as child-custody determinations and child-custody

  proceedings. See § 14-13-102(3)-(4), C.R.S. 2019.

         C. UCCJEA Applicability to Termination and Adoption

¶ 18   The UCCJEA contains two provisions addressing its

  applicability. On the one hand, section 14-13-102(4) defines a

  child-custody proceeding 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.” It expressly provides that a proceeding for

  termination of parental rights is one type of child-custody

  proceeding. § 14-13-102(4).

¶ 19   On the other hand, section 14-13-103, C.R.S. 2019, exempts

  two types of proceedings from the UCCJEA’s purview. As pertinent

  here, it provides that “[t]his article [the UCCJEA] does not govern an

  adoption proceeding.” § 14-13-103. This section was premised on


                                     9
  the assumption that states would adopt the Uniform Adoption Act.

  See § 14-13-103 cmt. Colorado has not done so.

¶ 20   Relying on section 14-13-103, our supreme court determined

  that the UCCJEA was inapplicable in the context of a failed

  interstate adoption proceeding. People in Interest of A.J.C., 

, 609, 611 (Colo. 2004). Similarly, a division of this court

  concluded that the UCCJEA did not apply to a custodial adoption

  proceeding. See In re Adoption of K.L.L., 

, 385 (Colo.

  App. 2007).

¶ 21   Yet, neither opinion specifically addresses whether the

  UCCJEA governs the termination of parental rights when it is

  initiated in an adoption case. Nor do they reconcile the provisions

  of sections 14-13-102(4) and 14-13-103. To resolve whether the

  UCCJEA applies to a termination proceeding brought in a

  stepparent adoption case, we must examine the interplay between

  these two provisions.

¶ 22   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


                                    10
  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.

¶ 23   To hold otherwise would create a direct conflict between the

  UCCJEA’s provisions. It would subject a termination of parental

  rights proceeding to the UCCJEA under section 14-13-102(4) but,

  at the same time, exempt it from the UCCJEA under section 14-13-

  103 because it arose in an adoption proceeding. And it would not

  give effect to section 14-13-102(4)’s inclusion of termination of

  parental rights — without exception — as one type of child-custody

  proceeding.

¶ 24   The South Carolina Court of Appeals took a similar approach

  and concluded that the UCCJEA was applicable to an action that

  terminated parental rights and granted a petition for stepparent

  adoption. Anthony H. v. Matthew G., 

, 134 (S.C. Ct.

  App. 2012). It observed that in order for the adoption action to


                                    11
  proceed, the legal parents had to consent to the adoption,

  relinquish their parental rights, or have their parental rights

  terminated.

reasoned that the court had to first

  consider the termination of parental rights and the UCCJEA applied

  to an action to do so.

  The Louisiana Court of Appeal also concluded that the

  UCCJEA applied to the termination of parental rights in the context

  of an interfamily adoption. 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. In re D.C.M., 

, 171

  (La. Ct. App. 2013). It further expounded that termination was the

  ultimate custody determination and that the adoption exemption

  contained in the UCCJEA did not allow one state to permit an

  interfamily adoption while another state had continuing, exclusive

  jurisdiction over the custody of the children.

¶ 26   We recognize that two jurisdictions have reached the opposite

  result. One district of the California Courts of Appeal determined

  that the UCCJEA does not apply to stepparent adoptions. Adoption


                                    12
  of K.C., 

, 112 (Ct. App. 2016). And the Utah

  Court of Appeals rejected a parent’s argument that the court lacked

  jurisdiction under the UCCJEA to terminate his parental rights as

  part of an adoption proceeding. In re Adoption of B.H., 

, 112, 114 (Utah Ct. App. 2019), cert. granted, 

  (Utah 2019) (unpublished table decision). Both of these opinions,

  however, rely solely on the UCCJEA provision exempting adoptions

  without reconciling it with the provision that defines a child-

  custody proceeding as including a proceeding to terminate parental

  rights.

¶ 27   We agree with the reasoning of those states that have applied

  the UCCJEA in this context. Therefore, we conclude that while the

  UCCJEA exempts adoptions from its purview, it nonetheless

  governs a proceeding to terminate parental rights that is initiated in

  a stepparent adoption case.

¶ 28   Having reached this conclusion, we must next determine

  whether the magistrate properly acquired jurisdiction under the

  UCCJEA to hear the proceeding to terminate father’s parental

  rights.

            D. Establishing Jurisdiction Under the UCCJEA


                                    13
                        1. The Legal Framework

                     a. Jurisdiction between States

¶ 29   Under the UCCJEA, the court that makes an initial custody

  determination generally retains exclusive, continuing jurisdiction.

  § 14-13-206, C.R.S. 2019; People in Interest of M.S., 

,

  ¶ 15. Accordingly, absent temporary emergency jurisdiction under

  section 14-13-204, C.R.S. 2019, a Colorado court may only modify

  a custody order issued by an out-of-state court under limited

  circumstances. M.S., ¶ 15.

¶ 30   First, the Colorado court must have jurisdiction to make an

  initial custody determination under section 14-13-201(1)(a) or (b),

  C.R.S. 2019. § 14-13-203(1), C.R.S. 2019; Brandt, ¶ 33. Second,

  the court in the issuing state must have lost or declined to exercise

  jurisdiction. Brandt, ¶ 33. This can occur when the court in the

  issuing state determines that (1) the child and parents no longer

  have a significant connection to the issuing state and substantial

  evidence regarding the child is not available in the issuing state, or

  (2) the Colorado court is a more convenient forum. §§ 14-13-202,

  -203(1)(a), C.R.S. 2019; M.S., ¶ 17. It may also occur when either

  the issuing court or a Colorado court determines that the child, the


                                    14
  parents, and anyone acting as a parent do not presently reside in

  the issuing state. § 14-13-203(1)(b); A.B-A., ¶ 10.

¶ 31      Significantly, before a Colorado court may assume jurisdiction

  to modify an out-of-state custody order, it must communicate with

  the issuing court pursuant to sections 14-13-110 to -112, C.R.S.

  2019. Brandt, ¶ 35.

¶ 32      Likewise, a court of this state may not exercise its jurisdiction

  if, at the time of the commencement of the proceeding, a proceeding

  concerning the custody of the child has been commenced in a court

  of another state unless the proceeding has been terminated or is

  stayed by the other state court because a court of this state is a

  more convenient forum. § 14-13-206(1). If a Colorado court

  determines that a child-custody proceeding has been commenced in

  a court in another state, it must communicate with the other state

  court. § 14-13-206(2); People in Interest of C.L.T., 

,

  ¶ 23.

                      b. Communication between States

¶ 33      The UCCJEA is premised on the assumption that sister state

  courts will communicate with one another. Saavedra v. Schmidt, 

, 547-48 (Tex. App. 2002). As our supreme court has


                                       15
  explained, communication is “exceedingly beneficial” in this type of

  proceeding. Brandt, ¶ 34. Inter-court communication facilitates an

  understanding between sister states regarding whether the issuing

  state has lost jurisdiction or declined to exercise jurisdiction in

  favor of a more convenient forum.

alerts the new state to

  any pending actions in the issuing state and helps to develop a

  factual record in the matter of jurisdiction.

  The communication can occur in many different ways,

  including by telephone conference, online communication, or other

  electronic means. § 14-13-110 cmt. And this communication must

  be made directly by the court — which is defined as an entity

  authorized under the law of a state to establish, enforce, or modify a

  child-custody determination. § 14-13-102(6); see also People in

  Interest of D.P., 

, 407 (Colo. App. 2008). This includes

  a judge or a magistrate. 

.

¶ 35   Section 14-13-110(4) requires the court to make a record of all

  communications between courts concerning proceedings that arise

  under the UCCJEA except for those involving schedules, calendars,

  court records, and similar matters. 

. A record

  is defined as information that is inscribed on a tangible medium or


                                     16
  that is stored in an electronic or other medium and is retrievable in

  perceivable form. § 14-13-110(5).

¶ 36   The court may allow the parties to participate in the

  communication with the other court. § 14-13-110(2). If the parties

  are not able to participate in the communication, then the court

  must give them the opportunity to present facts and legal

  arguments before it makes a decision regarding its jurisdiction.

of the UCCJEA contains the same provisions. See

  Ariz. Rev. Stat. Ann. § 25-1010 (2019).

¶ 37   This process is particularly significant because it informs the

  jurisdictional decision. Indeed, a Colorado court must decide

  whether it has jurisdiction to modify an existing out-of-state

  custody order based on the information provided by the parties and

  its discussion with the court in the other state. See C.L.T., ¶ 24.

                             2. The Record

¶ 38   When stepfather initiated the proceeding to adopt the child

  and terminate father’s parental rights, Arizona had a pending child-

  custody proceeding. And it had made multiple child-custody

  determinations regarding father’s parenting time and visitation for

  the paternal grandparents. Father and the paternal grandparents


                                    17
  continued to reside in Arizona. Consequently, Arizona had

  exclusive, continuing jurisdiction over the child that it had to

  decline — consistent with the requirements of the UCCJEA —

  before the Colorado magistrate could consider the termination of

  father’s parental rights.

¶ 39   Yet, the record contains no indication that the magistrate

  communicated with the issuing court in Arizona before assuming

  jurisdiction to terminate father’s parental rights. Instead, the

  magistrate relied on a written order from the Arizona court

  relinquishing its jurisdiction based on pleadings submitted by

  mother and father. And the Colorado magistrate, without

  conferring with the Arizona court, determined that the Arizona

  court lacked jurisdiction to reconsider that order.

¶ 40   We are not persuaded that this was an adequate substitute for

  inter-court communication. Indeed, the record in this case

  highlights some of the pitfalls of doing so. For example, in its initial

  order declining jurisdiction, the Arizona court determined that there

  was no longer substantial evidence available in Arizona concerning

  the child’s care, protection, training, and personal relationships. In

  reaching this determination, the court reasoned that the child had


                                     18
  been in Colorado since 2016 and that, if it were to reinstate father’s

  parenting time, it would necessitate reunification therapy in

  Colorado.

¶ 41   This reasoning appears to be at odds with the nature of the

  stepparent adoption proceeding that was then pending before the

  Colorado court. The issue before the Colorado court was not

  whether father should have parenting time, but rather, whether

  father’s parental rights should be terminated so that stepfather

  could step into his shoes as the child’s legal parent. And, even if

  the magistrate had decided that the grounds for stepparent

  adoption were not met, he would have simply denied the petition

  without considering any parenting time to father.

¶ 42   The reconsideration issue further highlights some of the same

  pitfalls. Recall that the Arizona court also subsequently determined

  that it would relinquish its jurisdiction over the custodial issues

  between mother and father, while retaining its jurisdiction over

  grandparent visitation. This was a seemingly conflicting

  determination that could have been avoided by inter-court

  communication. Grandparent visitation is expressly identified as




                                    19
  both a child-custody determination and a child-custody proceeding

  under the UCCJEA. See § 14-13-102(3)-(4).

¶ 43   Additionally, inter-court communication would have allowed

  for discussion of whether, and if so, on what basis, the Arizona

  court had authority to partially reconsider its earlier declination of

  jurisdiction.

¶ 44   For these reasons, the magistrate lacked jurisdiction to

  terminate father’s parental rights and we must vacate the

  judgment.

                        III. Remaining Arguments

¶ 45   Because we have already concluded that the judgment must

  be vacated so that the magistrate can confer with the Arizona court

  regarding jurisdiction, we need not review whether the magistrate

  properly concluded that the Arizona court’s order retaining

  jurisdiction was not entitled to enforcement under the PKPA. For

  the same reason, we do not consider father’s contentions that the

  magistrate erred by (1) concluding that he had abandoned the child

  and (2) failing to advise him of his right to have the matter heard by

  a judge.

                             IV. Conclusion


                                    20
¶ 46   The judgment is vacated. The matter is remanded to the

  juvenile court for the magistrate to determine whether the Colorado

  court has jurisdiction to issue a termination judgment that modifies

  the Arizona custody order. In doing so, the magistrate must

  communicate with the issuing court in Arizona pursuant to sections

  14-13-110 to -112. See Brandt, ¶ 35.

       JUDGE FURMAN and JUDGE WELLING concur.




                                   21