as: 155 P.3d 452)
Court of Appeals,Div. II.
the Matter of J.C.T., a minor child, and C.A.H., Petitioner-Appellant,
AFFILIATED TRIBES, Intervenor-Appellee.
Denied Oct. 26, 2006.
C. Young, Guardian Ad Litem.
Roberts, & Owen, LLP, Richard L. Gabriel, Timothy M. Reynolds,
David A. Tonini, Denver, Colorado, for Petitioner-Appellant.
Indian Law Clinic, Jill E. Tompkins, Boulder, Colorado, for Intervenor-Appellee.
by Judge ROTHENBERG.
appeals the probate court order denying her petition for permanent
guardianship of J.C.T., a minor.
The issue in this case is whether the probate court
exceeded its subject matter jurisdiction during proceedings involving J.C.T.'s guardianship
by conducting what amounted to a de facto adoption proceeding.
Because we conclude the probate court exceeded its jurisdiction by
exercising jurisdiction that is exclusively vested in the juvenile court,
we vacate the probate court's order and remand with directions.
was born on February 25, 1997 to a sixteen-year-old mother,
M.T. In March 1998, the probate court appointed C.A.H. as
the infant's legal guardian.
M.T. consented to the appointment.
months later, M.T. filed a petition requesting that the probate
court dissolve the guardianship and return J.C.T. to her.
The probate court appointed a guardian ad litem (GAL) to
investigate C.A.H.'s fitness and set a hearing on M.T.'s request
to dissolve the guardianship.
Following her investigation, the GAL concluded C.A.H. was fit to
be J.C.T.'s guardian.
M.T. failed to appear at the hearing on her petition
to dissolve the guardianship, and the probate court denied her
Shortly thereafter, the court terminated the GAL's appointment.
married, and the family moved to Georgia.
In 2002, after J.C.T. had lived with C.A.H. for four
years, C.A.H.'s mother and stepfather, who lived in Colorado, initiated
a *454 proceeding in Georgia to obtain custody of J.C.T. and C.A.H.'s
daughter, both of whom were visiting in Colorado.
Denver probate court reappointed the GAL and instructed her to
enter an appearance in Georgia.
The Georgia court entered a directed verdict in favor of
C.A.H. and returned custody of her daughter to her.
However, the Georgia court refused jurisdiction over J.C.T. and deferred
to the Denver probate court.
Thereafter, the probate court issued an order suspending C.A.H.'s guardianship
and appointing C.A.H.'s mother and stepfather as temporary co-guardians of
2003, the Mandan, Hidatsa, and Arikara Nation, also known as
the Three Affiliated Tribes (Tribes), located in New Town, North
Dakota, moved to intervene, asserting they had standing because J.C.T.
is an enrolled member and therefore is an Indian child
for purposes of the Indian Child Welfare Act (ICWA), 92
Stat. 3069, 25 U.S.C. §
et seq.See 25 U.S.C. §
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, the
Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in
the proceeding.”); Miss.
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989); B.H.
v. People in Interest of X.H., 138 P.3d 299 (Colo.2006).
The parties stipulated to the granting of the motion to
intervene, and the magistrate granted the motion.
Tribes also filed a motion to transfer jurisdiction to the
In an October 27, 2003, order, the magistrate found that
once the birth mother's “ability
to provide a safe home for [the child] was questioned
the provisions of the ICWA became applicable.”
However, the magistrate denied the motion to transfer, relying on
25 U.S.C. §
which provides, as relevant here:
any State court proceeding for the foster care placement of,
or termination of parental rights to, an
Indian child not domiciled or residing within the reservation of
the Indian child's tribe, the court, in the absence of
good cause to the contrary, shall transfer such proceeding to
the jurisdiction of the tribe, absent objection by either parent, upon the petition of either
parent or the Indian custodian or the Indian child's tribe:
That such transfer shall be subject to declination by the
tribal court of such tribe.
magistrate found that J.C.T. was an Indian child not domiciled
or residing within the reservation of the Indian child's tribe,
and that there was “good
cause”not to transfer jurisdiction to the tribal court. See People
in Interest of J.L.P., 870 P.2d 1252 (Colo.App.1994)(addressing “good
The Tribes have not appealed that ruling.
2004, the GAL filed a petition to terminate the appointment
of C.A.H.'s mother as temporary guardian (C.A.H.'s stepfather had died
in the interim) and to appoint A.B. as successor guardian.
The probate court suspended C.A.H.'s mother's temporary guardianship and appointed
A.B. as the substitute temporary guardian.
J.C.T. lived with A.B. from August 2004 through March 2005.
2005, the GAL filed a motion to limit C.A.H.'s contact
with J.C.T. and a motion for emergency relief, alleging that
A.B. had violated the probate court's order by discussing J.C.T.'s
permanent placement and relationship with C.A.H. After a hearing, the
probate court entered an order limiting telephone contact among C.A.H.,
A.B., and J.C.T. The court ordered that the GAL bring
J.C.T. to his therapy appointments and that A.B. make him
available to the GAL for a weekend visit with a
family who was interested in serving as successor guardian, and
eventually adopting J.C.T.
March 11, 2005, the probate court held a hearing regarding
C.A.H.'s suspended guardianship and allowed C.A.H. to present evidence regarding
her qualifications to adopt J.C.T. or to be appointed his
At the close of the hearing, the probate court orally
ordered that A.B. be removed as J.C.T.'s temporary substitute guardian,
declared him a ward of the court, and appointed the
GAL as “guardian
In a written order dated April 7, 2005, the probate
court also denied C.A.H.'s petition for appointment as J.C.T.'s guardian,*455 which effectively terminated C.A.H.'s previously suspended guardianship.
appeals from the probate court's order.
Answer briefs were filed by the GAL and the Tribes,
and we refer to these parties as appellees.
Both appellees have urged us to uphold the ruling of
the probate court terminating C.A.H.'s guardianship.
contends the probate court exceeded its subject matter jurisdiction in
denying her petition for guardianship by conducting a de facto
a court has subject matter jurisdiction is a question of
law subject to de novo review.City
of Colorado Springs v. Conners, 993 P.2d 1167, 1171 (Colo.2000).
matter jurisdiction is defined as a court's power to resolve
a dispute in which it renders judgment.Trans
Shuttle, Inc. v. Pub. Utils. Comm'n, 58 P.3d 47 (Colo.2002); Ashton
Props., Ltd. v. Overton, 107 P.3d 1014 (Colo.App.2004).
A court has subject matter jurisdiction if “the
case is one of the type of cases that the
court has been empowered to entertain by the sovereign from
which the court derives its authority.” Horton
v. Suthers, 43 P.3d 611, 615 (Colo.2002) (quoting Paine,
Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo.1986)).
probate court's jurisdiction is limited to those matters conferred by
the Colorado Constitution and by statute.See Colo. Const. art. VI, §
of the Colorado Constitution provides:
the city and county of Denver, exclusive original jurisdiction in
all matters of probate, settlements of estates of deceased persons,
appointment of guardians, conservators and administrators, and settlement of their
accounts, the adjudication of the mentally ill, and such other
jurisdiction as may be provided by law shall be vested
in a probate court....
Denver, the probate court has original and exclusive jurisdiction of
the granting of letters of guardianship and the administration of
guardianship of minors.
However, the probate court has no jurisdiction to terminate parental
Such jurisdiction is within the exclusive jurisdiction of the juvenile
Adoption proceedings are also within the exclusive jurisdiction of the
when parents are unable or unwilling to take proper care
of a child, the county department of social services is
authorized to investigate the child's circumstances, see §
C.R.S.2005, and if necessary, to file a petition in dependency
or neglect concerning the child. See §§
Dependency and neglect proceedings are commenced by the filing of
a petition by the state, §
C.R.S.2005, and the juvenile court also has exclusive jurisdiction over
such proceedings. Section 19-1-104(1)(b), C.R.S.2005.
19-3-102(1), C.R.S.2005, provides, as relevant here, that
is neglected or dependent if:
child's environment is injurious to his or her welfare;
child is homeless, without proper care, or not domiciled with
his or her parent, guardian, or legal custodian through no
fault of such parent, guardian, or legal custodian.
is undisputed that J.C.T. never knew his father, that he
had not interacted with his biological mother for nearly eight
years, and that her address was unknown at the time
of the hearing.
As a result, J.C.T.-who is now nine years-old has spent
the majority of his life under the supervision of the
probate court living with temporary guardians.
After the GAL made several failed attempts to place the
child with adoptive families-including an attempted
placement with the sister of a court-appointed expert-the probate court
directed the GAL to find a permanent *456 home for J.C.T. The GAL testified that her primary focus
probate court's focus on adoption is also evident.
On March 11, 2005, it held a hearing on C.A.H.'s
petition for appointment as J.C.T.'s guardian.
In denying the petition, the probate court stated that the
prospect of adoption was a significant factor in reaching its
the assistance of an adoption agency, the [GAL] has located
a family who would like to adopt J.T.C. In [one
expert's] opinion, [J.C.T.] is capable of bonding successfully with a
has enjoyed his visits with this family and there is
every indication that they can meet his needs.
[J.C.T.] would be the youngest member of the family, with
one older sibling living at home. The family is well
aware of his special needs and willing to attend them.
The mother is part Indian and was, herself, adopted at
probate court further stated that “[a]fter
careful consideration of [J.C.T.'s] needs, the likelihood that [C.A.H.] cannot
meet his needs, and the potential for a successful adoption
elsewhere, the [c]ourt finds that the balance tips heavily against
placement with [C.A.H.] and in favor of placement with the
family recommended by the [GAL].”
effect of the probate court's order and its directions to
the GAL were to facilitate the adoption process by finding
an adoptive family for J.C.T. and placing him there.
We conclude these actions exceeded the administration of J.C.T.'s guardianship
and are properly within the authority and the expertise of
the juvenile court.
the probate court terminated C.A.H.'s guardianship of J.C.T., leaving him
in a legal limbo.
The court took the unusual step of appointing itself as
J.C.T.'s guardian “until
the proposed adoptive family's guardianship petition [could] be heard,”
and appointing the GAL as “guardian
conclude such an appointment was improper because there is a
conflict of interest between the GAL, who is charged with
the responsibility to advocate for and to protect the best
interest of the child, and the child's guardian, who seeks
to retain custody and may also seek to adopt the
probate code also defines a guardian as follows, perhaps in
recognition of this conflict of interest:
individual at least twenty-one years of age, resident or non-resident, who
has qualified as a guardian of a minor or incapacitated
person pursuant to appointment by a parent or by the
The term includes a limited, emergency, and temporary substitute guardian but
not a guardian ad litem.
15-14-102(4), C.R.S.2005 (emphasis added).
therefore conclude neither the probate court nor the GAL is
authorized to serve as J.C.T.'s guardian.
summary, it is undisputed that at the time of the
probate court's order, J.C.T. was not domiciled with a parent,
and we have concluded he did not have an authorized
Because he has no permanent home or authorized legal guardian,
there are grounds to refer the matter to the juvenile
court, which has the authority to assume jurisdiction and after
an adjudicatory hearing, see §
C.R.S.2005, to determine whether he is a neglected or dependent
child within the meaning of §
The juvenile court also has the authority to order the
department of social services to conduct a preliminary investigation “to
determine whether the interests of the child or of the
community require that further action be taken.”
to appellees' contention, the fact that C.A.H. contacted the department
of social services a few years ago regarding J.C.T.'s welfare
and the department declined to initiate proceedings at that time
does not mean J.C.T. is not currently a dependent or
reliance on L.L.
v. People, 10 P.3d 1271 (Colo.2000), is also misplaced.
There, the trial court granted permanent guardianship of the petitioner-mother's
children to foster parents and suspended a majority of the
petitioner's parental rights. The *457 Colorado Supreme Court rejected the mother's argument that her due
process rights were violated and that the trial court's order
was tantamount to a de facto adoption.
The supreme court reasoned that the custody order was not
a total termination of the mother's parental rights.
unlike in L.L., J.C.T.'s parents were not involved in the proceedings, they did
not challenge the probate court's order, and their due process
rights were not at issue.
J.C.T. has never met his father, and his mother, in
effect, has abandoned him.
are we persuaded by appellees' argument that the probate court
had jurisdiction to address concerns regarding the treatment of J.C.T.
That statute provides that a “ward
or a person interested in the welfare of a ward
may petition for any order that is in the best
interest of the ward.”
However, it does not confer jurisdiction upon the probate court
to enter de facto adoption orders.
therefore conclude that the probate court exceeded its jurisdiction by
conducting a de facto adoption hearing, see §§
19-1-104(1)(g), and that the guardianship action should be certified forthwith
to the juvenile court for further orders. See §
district court at any time may request the juvenile court
to make recommendations pertaining to guardianship or legal custody.”);
Orrelle R. Weeks & Pamela A. Gordon, Permanency
Planning in Dependency Cases, 20 Colo. Law. 717, 719 (1991) (“[T]he
guardianship action can be certified to the dependency court, just
like any custody action.”).
are not in a position to remove the current GAL.
However, the juvenile court may wish to consider portions of
the record indicating that, while the GAL is obviously concerned
about the welfare of J.C.T., that concern has grown to
the point where it has colored her judgment and may
have caused her to lose the objectivity necessary to be
an effective GAL on J.C.T.'s behalf.
light of our conclusions, we need not consider C.A.H.'s remaining
order of the probate court is vacated, and the case
is remanded to the probate court with directions to certify
the action forthwith to the juvenile court for such orders
as the juvenile court deems appropriate.
The order of the probate court shall remain in effect
as to J.C.T.'s current living situation until the juvenile court
accepts jurisdiction and enters new orders.
ROY and Judge METZGERFN* concur.
by assignment of the Chief Justice under provisions of Colo.
Const. art. VI, §
v. Three Affiliated Tribes