The Expanded Jurisdiction of the Probate Court Under in Re J.c.t
| Jurisdiction | Colorado,United States |
| Citation | Vol. 37 No. 11 Pg. 83 |
| Pages | 83 |
| Publication year | 2008 |
2008, November, Pg. 83. The Expanded Jurisdiction of the Probate Court Under In re J.C.T
November 2008
Vol. 37, No. 11 [Page 83]
Trust and Estate Law
Trust and Estate articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Article Editors
David W. Kirch, of David W. Kirch, P.C., Aurora (303) 671-7726, dkirch@qwest.net; Constance D. Smith, of Rothgerber Johnson & Lyons LLP (303) 623-9000, csmith@rothgerber.com
About the Author
Paula Constantakis Young is a probate and elder law attorney whose private practice includes guardian ad litem and attorney court appointments. She served as the guardian ad litem in In re J.C.T. (303) 756-9419, pconstanyoung@aol.com. The author thanks attorney Thomas J. Young, Jr. for his assistance with this article and his support related to the underlying case.
In re J.C.T. confirms the broad jurisdiction of the probate court and the role of the guardian ad litem, while also explaining the best interests of the child standard. This article discusses the J.C.T. opinion, as well as other appellate decisions on the probate court's jurisdiction versus that of juvenile court, and the best interests of the child standard.
The case of In re J.C.T.(fn1) is the first in which the Colorado Supreme Court sanctioned the authority of a probate court in a guardianship to consider the potential for adoption in its determination of what is in the best interests of the child. The Court held that, in evaluating the child's best interests, the probate court did not exceed its subject matter jurisdiction by directing J.C.T.'s guardian ad litem (GAL) to find a permanent guardian for the child or by considering the potential for an eventual adoption in judging the suitability of a potential guardian. The Court also distinguished when the appropriate forum is the probate court instead of the juvenile court. In re J.C.T. also clarifies and expands the role of the GAL in guardianships for minors and adults.
Practitioners should be aware of this important ruling as confirmation of the probate court's exercise of its longstanding statutory mandate to protect the best interests of its ward. This is especially important because some probate courts now are hearing cases that initially were in juvenile court or that share common issues with juvenile court, such as abuse or neglect.
The Supreme Court's ruling overruled the Colorado Court of Appeals' decision that a "de facto adoption" had occurred during the guardianship hearing in the probate court. A brief discussion of what constitutes a de facto adoption and how this legal doctrine is inapplicable to the J.C.T. case appears below.
In re J.C.T.: Facts and Background
At 10 months of age, J.C.T., an enrolled member of the Three Affiliated Tribes, was placed by his 16-year-old biological mother with Guardian 1, whom the biological mother had met the week before. The biological father had abandoned J.C.T.'s mother when he learned she was pregnant. Guardian 1 obtained guardianship in the Denver Probate Court (probate court) with the mother's consent.
Six months later, a GAL was appointed when the biological mother petitioned the probate court to return J.C.T. to her. The GAL requested that the Denver Department of Human Services (DDHS) become involved due to the serious neglect and abuse of J.C.T. by the biological mother. However, DDHS declined to become involved on the ground that a forum, namely the probate court, already existed for the biological mother and Guardian 1 to obtain court orders.
The probate court denied the mother's petition. She then abandoned J.C.T. and he remained with Guardian 1 for three more years.
Thereafter, because of concerns for J.C.T.'s welfare, the probate court appointed Guardian 2, the mother of Guardian 1, as J.C.T.'s temporary successor guardian. After placement with Guardian 2 for two years, the court became concerned about Guardian 2's ability to meet J.C.T.'s needs and the very contentious relationship between Guardians 1 and 2.
At a hearing to resolve disputes about visitation, the probate court cautioned the parties that it had serious concerns about Guardian 1 or Guardian 2 being a fit and proper permanent guardian for J.C.T. The court directed the GAL to look for another permanent guardian, in the event that neither Guardian 1 nor 2 was appointed as J.C.T.'s permanent guardian. The GAL then began working with adoption agencies to find a family who could serve as permanent guardian for J.C.T. and who might eventually adopt the child, in the event that the probate court did not appoint either Guardian 1 or 2.
Pending the permanent orders hearing on the competing petitions of Guardians 1 and 2, J.C.T. was placed for six months with Guardian 3, a foster mother who was supposed to be neutral but who soon aligned herself with Guardian 1 and violated the probate court's orders. After the permanent guardianship hearing and pending the court's decision on permanent guardianship, the probate court appointed itself guardian of J.C.T., with the GAL serving as "guardian designee," because the probate court determined that J.C.T. should not remain with Guardian 3. The probate court's and the GAL's temporary guardianship of J.C.T. lasted for only a brief period. Ultimately, Guardian 2 withdrew her petition; Guardian 1's petition was denied after a hearing and she appealed.
The Court of Appeals' Decision
The Colorado Court of Appeals reversed and ruled that the probate court had divested itself of jurisdiction when it improperly appointed itself as J.C.T.'s guardian and the GAL as guardian designee. The appellate court also found that a de facto adoption had occurred, because the probate court had considered the possibility of J.C.T. eventually being adopted. The court further ruled that the proper forum was juvenile court and ordered that the probate court "certify the action forthwith to juvenile court for such orders as the juvenile court deems appropriate."(fn2)
The Supreme Court Decision
The GAL and the Three Affiliated Tribes petitioned and were granted certiorari to the Colorado Supreme Court. That Court found that the probate court's directive to the GAL to find a permanent guardian for J.C.T. did not constitute a de facto adoption proceeding, an area within the exclusive jurisdiction of the juvenile court. The Court also found that, at all times, the probate court and the GAL were properly considering the best interests of J.C.T.
In addition, the Supreme Court ruled that the appointment of the probate court as temporary guardian and the GAL as temporary guardian designee for J.C.T., when no other guardianship placement was available, was not improper and did not divest the probate court of jurisdiction. The Court reversed the court of appeals' decision and remanded the case with instructions to reinstate the probate court's order.
Probate Court Jurisdiction
A key issue in In re J.C.T. was the jurisdiction of the probate court to consider the potential for an adoption when appointing a guardian for a child. The...
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