People in Interest of SB

BABCOCK, Judge,

dissenting.

I respectfully dissent from Parts II and IV(B) of the majority opinion.

A.

My reading of the applicable provisions of the Children’s Code leads me to conclude that summary judgment is not applicable to a proceeding in dependency or neglect. A pervasive premise throughout the Children’s Code is a recognition that an eviden-tiary hearing is mandated in such a proceeding. Among the provisions in which I find this principle implicit are § 19-1-103(20), C.R.S. (1986 Repl.Vol. 8B) (definition of neglect or dependency); § 19-1-104(l)(b), C.R.S. (1986 Repl.Vol. 8B) (jurisdiction); § 19-l-106(l)(b), C.R.S. (1986 RepLVol. 8B) (right to counsel); § 19-1-106(4), C.R.S. (1986 Repl.Vol. 8B) (right to jury trial); § 19-1-107, C.R.S. (1986 Repl. Vol. 8B) (procedure governing conduct of hearings); § 19-3-101, C.R.S. (1986 Repl. Vol. 8B) (petition initiation, preliminary investigation, and informal adjustment); *942 § 19-3-102, C.R.S. (1986 Repl.Vol. 8B) (petition form and contents, which must include a warning that termination of the parent-child relationship is a possible remedy); § 19-3-103, C.R.S. (1986 Repl.Vol. 8B) (issuance and content of summons, which include a warning that termination of the parent-child relationship is a possible remedy); § 19-3-105, C.R.S. (1986 Repl.Vol. 8B) (appointment of a guardian ad litem); § 19-3-106, C.R.S. (1986 Repl.Vol. 8B) (adjudicatory hearing, findings, and adjudication), and §§ 19-11-101, et seq., C.R.S. (1986 RepLVol. 8B) (concerning termination of the parent-child legal relationship).

This requirement is most clearly revealed in § 19-3-106(1), C.R.S. (1986 Repl.Vol. 8B), which provides in pertinent part:

“At the adjudicatory hearing, which shall be conducted as provided in section 19-1-107, the court shall consider whether the allegations of the petition are supported ... by a preponderance of the evidence in cases concerning neglected or dependent children....”

This mandatory language, considered in the light of the statutory scheme, clearly establishes a parent’s absolute right to an evi-dentiary hearing. See Matter of Christina T., 590 P.2d 189 (Okla.1979) (under a similar statutory scheme, summary judgment is not applicable in a juvenile proceeding).

State involvement in a parent-child relationship affects parents’ fundamental liberty interests. See People in Interest of A.M.D., 648 P.2d 625 (Colo.1982); see also Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982). Consequently, to hold, as does the majority, that a parent may be deprived of the right to an evidentiary hearing at the critical adjudicatory stage of a dependency or neglect proceeding raises substantial constitutional questions concerning denial of due process and equal protection of law. See Matter of Christina T., supra; see also People in Interest of J.B., 702 P.2d 753 (Colo.App.1985).

The purpose of summary judgment is to avoid a useless trial when no substantial controversy exists as to material facts or issues and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56. In contrast, the very nature of a dependency or neglect proceeding renders inapplicable the concept of summary judgment. See Matter of Christina T., supra; see also In re Henson, 77 Misc.2d 694 , 354 N.Y.S.2d 774 (1974).

A proceeding in dependency or neglect cannot be resolved on pleadings alone. Responsive pleadings are not required, and denial of the allegations of the petition is unnecessary except with regard to certain jurisdictional matters. C.R.J.P. 8(a). A petitioner’s motion for summary judgment adjudicating a child to be dependent or neglected is not a “defense or objection” under C.R.J.P. 8(b), and the burden of proving that the child is dependent or neglected is on the petitioner who seeks intervention into the family unit. Furthermore, the prevailing concern at all stages of a dependency or neglect proceeding is the child’s best interests and welfare. See In re People in Interest of M.M., 184 Colo. 298 , 520 P.2d 128 (1974). Hence, resolution of this issue by summary judgment is inappropriate.

Even if I were to concede the propriety of summary judgment in a dependency or neglect proceeding, the summary judgment entered here was tantamount to a declaration that the child was dependent or neglected solely because of respondent’s arrest and incarceration, contrary to the rule of Diemfeld v. People, 137 Colo. 238 , 323 P.2d 628 (1958). See also People in Interest of M.C.C, 641 P.2d 306 (Colo.App.1982), in which it was stated:

“Clearly it is not the law that before a child can be placed by a parent in temporary custody of a relative permission must be first obtained from the court. Nor is it the law that custody orders must issue, and that the court must appoint the person selected by the parent officially as the guardian.... It is well settled in this jurisdiction that evidence of the child’s physical care, surroundings and well-being is competent and material evidence to the issues in a dependency action. If, through arrangements made by the parent, the child is being [or can be] properly cared for by those who have *943 a genuine interest in its welfare, the fact that the [parent] has obtained such help and has sought out and procured proper care for the child is evidence that the parent is not neglecting the child.” (emphasis in original)

Here, although not required to do so, father denied the allegations in the petition and asserted by affidavit that he was willing to make arrangements with his relatives for the child’s care. Prior to the filing of the motion for summary judgment, a favorable home study was completed concerning the child’s paternal uncle and his wife, with whom the child had an established relationship, and who were willing to receive and care for the child indefinitely. This evidence was admitted at the temporary placemeht hearing held before entry of the summary judgment. The paternal grandparents and maternal grandmother appeared at the temporary placement hearing and also expressed willingness to care for the child.

Thus, questions remained whether arrangements could be made by respondent for the child’s proper care and welfare. Furthermore, material issues of fact existed as to whether the child’s best interests and welfare would be served by the entry of a decree adjudicating her to be dependent or neglected. Accordingly, it was error for the trial court to enter summary judgment adjudicating the child to be dependent and neglected. See People in Interest of K.A.J., 635 P.2d 921 (Colo.App.1981).

B.

It is undisputed that the trial court has primary jurisdiction over this case, see § 19-l-104(l)(c), C.R.S. (1986 RepLVol. 8B); § 14-13-104(l)(a), C.R.S., and that South Carolina has acquired ancillary “home state” jurisdiction pursuant to S.C. Code Ann. § 20-7-788 (Law.Coop.1976). Thus, the issue is whether the trial court abused its discretion when it declined in favor of South Carolina to exercise further jurisdiction over this dependency proceeding. See McCarron v. District Court, 671 P.2d 953 (Colo.1983). Under the unique circumstances here, I would hold that the trial court abused its discretion.

In determining this issue, the provisions of the Colorado Children’s Code and the UCCJA must be construed in pari materia and in light of their express purposes. See § 19-1-102, C.R.S. (1986 Repl.Vol. 8B); § 14-13-102, C.R.S.; E.P. v. District Court, 696 P.2d 254 (Colo.1985); McCarron v. District Court, supra.

The purposes of the Children’s Code, as stated in § 19-1-102(1), C.R.S. (1986 Repl. Vol. 8B), are:

“(a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society;

“(b) To preserve and strengthen family ties whenever possible, including improvement of home environment;

“(c) To remove a child from the custody of his parents only when his welfare and safety or the protection of the public would otherwise be endangered and, in either instance, for the courts to proceed with all possible speed to a legal determination that will serve the best interests of the child; and

“(d) To secure for any child removed from the custody of his parents the necessary care, guidance, and discipline to assist him in becoming a responsible and productive member of society.”

The prevailing concern is the child’s best interests and welfare. In re People in Interest of M.M., supra. However, determinations of what will best serve the interests and welfare of the child must be made in light of the countervailing rights and interests of both the parent and the child, see People in Interest of E.A., 638 P.2d 278 (Colo.1982), and the pervasive public policy of the Children’s Code to preserve and strengthen family ties. See People in Interest of C.A.K., 652 P.2d 603 (Colo.1982); In re People in Interest of M.M., supra.

To further these goals, when a dependency decree does not terminate the parent-child relationship, the trial court must approve an appropriate treatment plan. Section 19-3-111(1), C.R.S. (1986 RepLVol. 8B). *944 The treatment plan represents an affirmative attempt by the state to preserve the parent-child relationship whenever possible. People in Interest of C.A.K., supra. Further, as stated in People in Interest of M.C.C., supra:

“The fact that a particular parent is incarcerated at the time of an adjudication of dependency or neglect may often render more difficult the crafting of a meaningful and workable plan. However, such single circumstance does not per se prohibit the creation and implementation of a treatment program appropriate for the goal the General Assembly had indicated it should achieve — the building or rebuilding of a healthy parent-child relationship.”

In contrast, the pertinent objectives of the UCCJA are to avoid child custody conflicts with courts of other states and to promote interstate judicial cooperation. Under the UCCJA, to insure that the determination of custody is made by the court having the closest connection with the child and his family and having more readily available significant evidence concerning the child. Section 14-13-102(1), C.R.S. (1986 Repl.Vol. 8B); Bakke v. District Court, 719 P.2d 313 (Colo.1986); E.P. v. District Court, supra.

The persuasive analysis of the interrelationship between the UCCJA and a dependency proceeding in Matter of Welfare of Mullins, 298 N.W.2d 56 (Minn.1980), leads me to conclude that the trial court here abused its discretion. In Mullins, the child was adjudicated dependent in California following the conviction and incarceration of the father for murdering the mother. The California court determined that the child’s best interests would be served by placement in the home of his maternal aunt and uncle in Minnesota, with courtesy supervision arranged between the California and the Minnesota welfare departments.

Following the father’s parole, and on recommendation of the California welfare department, the California court ordered the child’s removal from Minnesota and placed him with a paternal great aunt in California. The Minnesota foster parents then filed a petition in Minnesota for a finding of dependency or neglect, asserting that Minnesota, to the exclusion of California, was the child’s “home state” or that the child had such “significant connections” with Minnesota as to afford Minnesota primary jurisdiction.

Affirming the trial court’s dismissal of the petition, the Minnesota Supreme Court reasoned:

“We agree with the district court that the analytical distinction between custody decrees arising from divorce and those resulting from dependency supports the retention of primary jurisdiction by the state of California and precludes any assertion of primary jurisdiction by the state of Minnesota. Although dependency custody decrees are indeed included within the ambit of the UCCJA, the Act itself is largely intended to address the problems resulting from interjurisdictional divorce proceedings. ... Unlike a dependency order, a typical divorce decree setting forth terms of child custody does not contemplate supervision by the issuing court. Thus, when the parties to the decree move out of state their nexus with that court attenuates. Should the need for modification or enforcement of the decree arise, once the child resides in the new locality for six months, the UCCJA permits a transfer of jurisdictions. The issuance of a divorce decree governing custody in one state followed by the move of the custodial parent to another state results in the new place of residence becoming the child’s ‘home state’ for the purposes of the act. In contrast, a dependency adjudication involves a continuing relationship between the child and the court. The relationship does not attenuate over time but continues as the court periodically assesses possible reestablishment of the family unit. Both Minnesota and California recognize that one of the purposes of a dependency decree ‘is to create a temporary remedy with the ultimate goal of returning the child to the natural parents.’ ... Thus, the placement by the court of the child in another state has little bearing on the vitality of *945 the child’s connection with that court. The relationship continues despite geography. The UCCJA’s ‘home state’ theory of jurisdiction therefore bears little relevance in this context.”

Home state jurisdiction is ordinarily preferred if modification of custody is in issue. See Bakke v. District Court, supra. However, the UCCJA does not contemplate blind obedience to home state jurisdiction; rather, the UCCJA allows a more flexible approach in unique cases such as this. See 9 Uniform Laws Annot. 114, Uniform Child Custody Jurisdiction Act (1979) (Commissioners’ Prefatory Note); Neger v. Neger, 93 N.J. 15 , 459 A.2d 628 (1983).

Although the child’s residency in South Carolina has probably generated information relevant to ultimate disposition, the information is available to the Colorado court through the mechanisms of the UCCJA. Under that Act, Colorado may adduce the testimony of witnesses, the parties, and the child in South Carolina, order the appearance of parties outside the state, or request a court of record in another state to hold an evidentiary hearing on its behalf. Sections 14-13-119 and 14-13-120, C.R.S.; see Matter of Welfare of Mullins, supra.

Here, the father and the paternal grandparents, who have appeared in the trial court, reside in Colorado. Thus, this dependency proceeding involves a continuing relationship between the child and the court, and also among the child, the father, the paternal grandparents, and the maternal grandfather. See § 19-1-116, C.R.S. (1986 RepLVol. 8B). The trial court has adopted a treatment plan and has determined that the child’s best interests will be served by her continuing, albeit restricted, relationship with her father, and paternal grandparents. Finally, the cost of supervision of this case would be substantially the same in either jurisdiction.

I agree that the ongoing welfare of the child is at stake and cannot be placed on hold during this appeal. Indeed, the trial court has effectively monitored the child’s welfare during the pendency of this appeal. However, the discharge of its duty and responsibility to supervise continually the child and her family, including implementation of the treatment plan, does not include the entry of an order that totally abdicates this jurisdiction. Such an order constitutes an abuse of discretion.

This abuse of discretion is exacerbated by the maternal grandfather’s South Carolina petition seeking legal custody of the child, which could be awarded by the Colorado trial court under § 19-3-111, C.R.S. (1986 Repl.Vol. 8B), termination of the parent-child legal relationship, and a decree of adoption. South Carolina statutes governing termination of parental rights differ significantly from our Children’s Code in that they show little sensitivity to preserving family ties. See S.C.Code Ann. §§ 20-7-1560 to 20-7-1582 (Law.Coop.1976). For example, unlike Colorado law, which gives parents a right to counsel, see § 19-1-106(l)(b), C.R.S. (1986 Repl.Vol. 8B), appointment of counsel is discretionary with the South Carolina court. See S.C.Code Ann. § 20-7-1570 (Law.Coop.1976).

The grandfather’s petition for a decree of termination and adoption in South Carolina, where a parent is not afforded the panoply of due process protections given parents in Colorado, smacks of forum shopping which, in my view, will result in interstate judicial conflict detrimental to the child’s best interests. Such forum shopping contravenes the objectives of the Children’s Code and the UCCJA, see Matter of Welfare of Mullins, supra; Neger v. Neger, supra; see also Kulko v. Superior Court, 436 U.S. 84 , 98 S.Ct. 1690 , 56 L.Ed.2d 132 (1978), and leads this child into the interstices of the federal system.

Finally, I cannot condone the trial court’s abuse of discretion in entering an order abdicating total jurisdiction over a dependency action during appeal. Absent our stay, the trial court’s order could have led to a South Carolina decree terminating the parent-child relationship and awarding adoption to the maternal grandfather. In that event, any right of review in Colorado would have been hollow and meaningless at best and would have encouraged further *946 interstate conflict detrimental to the child’s best interests.

I would reverse the summary judgment and set aside the trial court’s order declining to exercise further jurisdiction over this dependency and neglect proceeding as an abuse of discretion.