Colorado § 19-3-501 - Petition initiation - preliminary investigation - informal adjustment.

§ 19-3-501. Petition initiation - preliminary investigation - informal adjustment.

(1) Whenever it appears to a law enforcement officer or other person that a child is or appears to be within the court's jurisdiction, as provided in this article 3, the law enforcement officer or other person may refer the matter to the court, which shall make a preliminary investigation to determine whether the interests of the child or of the community require that further action be taken. The probation department, county department of human or social services, or any other agency designated by the court shall make the investigation. On the basis of the preliminary investigation, the court may:

(a) Decide that no further action is required, either in the interests of the public or of the child;

(b) Authorize a petition to be filed; or

(c) (I) Make whatever informal adjustment is practicable without a petition if:

(A) The child and his parents, guardian, or other legal custodian were informed of their constitutional and legal rights, including being represented by counsel at every stage of the proceedings;

(B) The facts are admitted and establish prima facie jurisdiction; except that such admission shall not be used in evidence if a petition is filed; and

(C) Written consent is obtained from the parents, guardian, or other legal custodian and also from the child, if of sufficient age and understanding.

(II) Efforts to effect informal adjustment may extend no longer than six months.

(2) (a) Upon receipt of a report filed by a law enforcement agency, or any other person required to report pursuant to section 19-3-304 (2) indicating that a child has suffered abuse as defined in section 19-1-103 (1) and that the best interests of the child require that he be protected from risk of further such abuse, the court shall then authorize and may order the filing of a petition.

(b) Upon receipt of a report, as described in paragraph (a) of this subsection (2), from any person other than those specified in said paragraph (a), the court, after such investigation as may be reasonable under the circumstances, may authorize and may order the filing of a petition.

Source: L. 87: Entire title R&RE, p. 778, § 1, effective October 1. L. 2002: (2)(a) amended, p. 1035, § 78, effective June 1. L. 2018: IP(1) amended, (SB 18-092), ch. 38, p. 422, § 59, effective August 8.

Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-3-101 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.

ANNOTATION

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

The state is the exclusive party to bring neglect and dependency proceedings. A private person, such as a grandparent, can request the county department of social services to bring such a proceeding or refer the matter to the juvenile court, as provided in subsection (2), but she cannot bring a neglect and dependency petition on her own. McCall v. Dist. Court ex rel. County of Montezuma, 651 P.2d 392 (Colo. 1982).

While a grandparent can report suspected child abuse or neglect and, thereby, initiate an investigation, this section does not require that the court undertake its own investigation by granting a hearing at the request of a grandparent, nor does this section require that the court order the county department of social services to conduct an additional investigation if it appears that a preliminary investigation has already been completed and the county department saw no need to pursue the matter. In re L.F., 121 P.3d 267 (Colo. App. 2005).

"Petition" signifies initial pleading of dependency or neglect requesting the court to take jurisdiction rather than discussion of termination of parental rights appearing in a social worker's report. People in Interest of H.A.C. v. D.C.C., 198 Colo. 260, 599 P.2d 881 (1979).

Age is a jurisdictional prerequisite both at the filing of a petition and at the time of adjudication. In a case where the child was just shy of 18 at the time the dependency and neglect petition was filed but turned 18 before the hearing, the juvenile court lost subject matter jurisdiction by the time of the hearing. People in Interest of M.C.S., 2014 COA 46, 327 P.3d 360.

A petition which shows on its face that the child is neither dependent nor delinquent deprives the court of jurisdiction. Carrera v. Kelley, 131 Colo. 421, 283 P.2d 162 (1955).

That the mother of a child is convicted of a felony, and leaves the child in the care of its grandmother who is giving it proper care, does not invoke the jurisdiction of a juvenile court in a dependency proceeding, and speculation as to the future conduct of the mother has no place in such proceedings. Diernfeld v. People, 137 Colo. 238, 323 P.2d 628 (1958).

In a proceeding to declare a child dependent and neglected, initiated under former section by parties having temporary care of the child, there being no evidence that the child was at any time in improper hands or in unwholesome surroundings, and the petition showing on its face that its purpose was to secure a continuation of the situation existing at the time the action was commenced, no grounds for dependency existed. Wellbrink v. Walden, 142 Colo. 102, 349 P.2d 697 (1960).

And should be dismissed on a court's own motion when it is fully advised of the fact, or could take notice thereof, that petitioner and respondent in dependency proceeding under former section, husband and wife, had continued to live together over the years involved. Kearney v. Blue, 134 Colo. 217, 301 P.2d 515 (1956).

The mere act of dismissing the petition does not decree custody of the child, for custody in dependency cases can only be determined after the child has been decreed dependent and neglected. Jones v. Koulos, 142 Colo. 92, 349 P.2d 704 (1960).

This section provides for proceedings in the name of the state for the protection of a child and, in which proceedings, the claims of the warring contestants must give way to the welfare of the child. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).

Petitioner represents the state, not a party to a dispute over custody of a child. Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662 (1947).

A petition in dependency must be filed, not in behalf of any individual, but only in behalf of the state for the purpose of protecting a minor child. Such petition should not be filed by any petitioner, and particularly not by an attorney at law, who is an officer of the court, except singly for the protection of the child. Everett v. Barry, 127 Colo. 34, 252 P.2d 826 (1953); Geisler v. People, 135 Colo. 121, 308 P.2d 1000 (1957).

Petition essential for jurisdiction. Without a petition in writing setting forth all the facts concerning what constitutes the child a dependent and verified by the affidavit of the petitioner, a juvenile court has no jurisdiction over the subject matter. Kearney v. Blue, 134 Colo. 217, 301 P.2d 515 (1956).

A petition in dependency should be filed only upon credible information and belief that the child is so circumstanced that for its own protection and well-being it should be taken from existing custody and become a ward of the state. Everett v. Barry, 127 Colo. 34, 252 P.2d 826 (1953).

Petitioner should not file a petition without knowledge of facts justifying belief of dependency and, when the petition is filed, should see that evidence is presented supporting it. Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662 (1947).

One assuming to sign a petition equally assumes the obligation to present evidence sustaining it, and one should not verify any allegation of such a petition as true of his own knowledge, unless the facts set forth therein are within his personal knowledge. Everett v. Barry, 127 Colo. 34, 252 P.2d 826 (1953).

In addition to the other requirements for jurisdiction, the essential element in all cases is that the petitioner have knowledge of a child in his county who appears to be dependent. Geisler v. People, 135 Colo. 121, 308 P.2d 1000 (1957).

Petition did not cover children born subsequently. A petition verified on a certain date, covering the facts as of that date, cannot cover children born at a later date. Any order entered on such a petition regarding support is void, and consequently, all subsequent orders are likewise void. Kearney v. Blue, 134 Colo. 217, 301 P.2d 515 (1956).

This section does not preclude correction of erroneous statutory reference. People in Interest of M.M., 43 Colo. App. 65, 599 P.2d 968 (1979).

Termination of parental rights is a drastic remedy. People in Interest of Baby Girl D., 44 Colo. App. 192, 610 P.2d 1086 (1980).

The state is the exclusive party to file a petition in dependency and neglect, and a guardian ad litem has no authority to assume the role of the state. People in Interest of R.E., 729 P.2d 1032 (Colo. App. 1986).

The state, in its role as parens patriae, is the sole party that may prosecute dependency and neglect proceedings. Nothing in this code gives a guardian ad litem or a counsel for youth authority to prosecute a dependency and neglect petition. People in Interest of R.M.P., 2025 CO 34, 569 P.3d 1202.

However, the trial court is not required to dismiss a dependency and neglect petition merely because the state chooses for any reason not to pursue the proceedings. McCall v. Dist. Ct., 651 P.2d 392 (Colo. 1982); People in Interest of R.E., 729 P.2d 1032 (Colo. App. 1986), overruled in People in Interest of R.M.P., 2025 CO 34, 569 P.3d 1202, to the extent the R.E. opinion allowed a non-state party to prosecute a dependency and neglect petition when the state has determined that doing so would not be a valid exercise of its parens patriae authority; L.G. v. People, 890 P.2d 647 (Colo. 1995).

Dependency and neglect petition may not be dismissed over the objection of the guardian ad litem. People in Interest of R.E., 729 P.2d 1032 (Colo. App. 1986), overruled in People in Interest of R.M.P., 2025 CO 34, 569 P.3d 1202, to the extent the R.E. opinion allowed a non-state party to prosecute a dependency and neglect petition when the state has determined that doing so would not be a valid exercise of its parens patriae authority.

If there is such an objection by the guardian ad litem, the trial court must conduct a hearing and specifically determine whether the petition is supported by a preponderance of the evidence and the child is in fact dependent and neglected. That determination may be appealed by the guardian ad litem. People in Interest of R.E., 729 P.2d 1032 (Colo. App. 1986), overruled in People in Interest of R.M.P., 2025 CO 34, 569 P.3d 1202, to the extent the R.E. opinion allowed a non-state party to prosecute a dependency and neglect petition when the state has determined that doing so would not be a valid exercise of its parens patriae authority.

Dependency and neglect action differs from adversarial proceeding since the safety of the child, not the custodial interest of the parent, is the paramount concern. L.G. v. People, 890 P.2d 647 (Colo. 1995).

Parental Kidnapping Prevention Act of 1979 does not apply to a dependency and neglect action and therefore does not preempt state law. L.G. v. People, 890 P.2d 647 (Colo. 1995).

Applied in People in Interest of A.M.D., 648 P.2d 625 (Colo. 1982).