2019.08.14 Case Law Summary
Buckle your seatbelts, everyone, because this opinion is a doozy.
People in Interest of A.B-A., 2019COA125 (August 8, 2019)
Mother, father and the child are citizens of Iran and the parents divorced in Iran in 2009. Mother eventually moved to Colorado in 2016, where she had a mental health crisis and was placed in a mental health facility on an involuntary hold. The department filed a petition and entered an adjudication as to mother and a default adjudication as to father (who was in Iran during the whole proceeding). The department moved to serve father by publication, and the summons was published in an Adams County-area newspaper.
The department moved to terminate parental rights in December 2017 and in April, the day before the scheduled termination hearing, father contacted the caseworker from Iran. In May 2018, the juvenile court terminated both parents’ parental rights.
On appeal, the court of appeals first concluded that the juvenile court lacked subject matter jurisdiction to terminate parental rights pursuant to the UCCJEA because the Iranian child custody order was already in effect from the 2009 divorce. The court emphasized that, although the Colorado court can exercise temporary emergency jurisdiction under the UCCJEA, that this temporary emergency jurisdiction is limited in both scope and time.
The court then spent a lot of time overruling the county’s arguments that the Iranian order did not conform to the UCCJEA’s jurisdiction standards (it did) and that child custody law of Iran violates fundamental principles of human rights (it doesn’t). The court then vacated the termination order for lack of jurisdiction.
The court also held that Father is entitled to Notice and an Opportunity to be heard on remand because the juvenile court erred when it allowed service by publication. Specifically, the court held that the civil rules of procedure require a motion for service by publication include the following:
• The facts authorizing service by publication;
• The efforts, if any, that have been made to obtain personal service; and
• The address, or last known address, of the person to be served or a statement that the address and last known address are unknown.
The motion must also establish that the party seeking service by publication exercised due diligence to obtain personal service or that efforts to do so would have been to no avail.
Further, the court stated that even when the person to be served cannot be located, service by publication may still not be constitutionally sufficient if other means of service are more likely to afford actual notice. [This is REALLY important – if the department knows something, anything, about our clients, they need to make a real attempt to find them to serve them before defaulting to service by publication.]
The two big takeaways from this case? The UCCJEA is always in effect where there is an out of state child custody order, even if that order was issued in a foreign country. Second, notice by publication should not be the automatic where our clients can’t be found – the department needs to do MORE than that to satisfy due process.
A big Congratulations to ORPC Appellate Attorneys Patrick Henson and Pamela Streng on the really great opinion in this case!