SUMMARY 

July 28, 2022

2022COA88

No. 21CA1331, People in Interest of T.W. — Juvenile Court —

Subject Matter Jurisdiction — Authority to Act — Dependency 

and Neglect — Deferred Adjudication — Allocation of Parental 

Responsibilities

For the first time since the supreme court’s decision in People in 

Interest of J.W. v. C.O., 2017 CO 105, a division of the court of 

appeals is required to decide whether a juvenile court is able to 

enter an order allocating parental responsibilities under a deferred 

adjudication of dependency or neglect. The division concludes that 

a juvenile court has continuing subject matter jurisdiction in a 

dependency or neglect action after the entry of a deferred 

adjudication. However, the division holds that a juvenile court 

lacks the legal authority to enter an order for the allocation of 

parental responsibilities unless the child has been formally 

adjudicated dependent or neglected or the court has accepted an 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
admission from the parents that the child should be adjudicated 

dependent or neglected.
COLORADO COURT OF APPEALS 2022COA88

Court of Appeals No. 21CA1331 

Morgan County District Court No. 20JV26

Honorable Kevin L. Hoyer, Judge

The People of the State of Colorado,

Petitioner,

In the Interest of T.W., a Child,

and Concerning A.M.E.,

Appellant, 

And G.U., 

Appellee.

JUDGMENT VACATED AND CASE

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE SCHUTZ

Dailey and Fox, JJ., concur

Announced July 28, 2022

Josi McCauley, Guardian Ad Litem

The Law Office of Michael Kovaka, Michael Kovaka, Littleton, Colorado, for 

Appellant 

Bergner Law Office, Stephanie Bergner, Leif Ericson, Carbondale, Colorado, for 

Appellee 
1

¶ 1 In this dependency and neglect proceeding, A.M.E. (mother) 

appeals the juvenile court’s judgment allocating parental 

responsibilities for her child, T.W., to G.U. (father). To resolve 

mother’s appeal, we must decide whether a juvenile court may 

permanently allocate parental responsibilities when the parties are 

proceeding under a deferred adjudication. Because we conclude a 

juvenile court lacks the legal authority to enter such an order when 

the child has not been adjudicated dependent or neglected, we 

vacate the judgment.

I. Procedural History

¶ 2 In June 2020, the Morgan County Department of Human 

Services initiated a dependency and neglect proceeding based on 

concerns that the then-ten-year-old child was being mistreated 

while in the care of mother and her husband. The child’s father, 

who lives in California, had not seen the child in approximately 

eight years at the time the case was filed. 

¶ 3 The juvenile court placed the child in the care of his maternal 

cousins. The child’s younger half-siblings remained in the custody 

of mother and husband. In September 2020, the court accepted 

the parties’ stipulation continuing the child’s adjudication and 
2

entered an order deferring the issue of whether the child should be 

adjudicated dependent or neglected for six months under section 

19-3-505(5), C.R.S. 2021. The court also adopted treatment plans 

for each parent. 

¶ 4 In the stipulation, the parties set forth their understanding of 

how the case would proceed. It provided:

For purposes of this Continued Adjudication 

only, and no other purpose, [mother and 

father] knowingly and voluntarily admit the 

child is a dependent or neglected child because 

he was in an injurious environment. 

Respondents also admit the jurisdictional 

allegations of the Petition. This is a no fault 

admissionand continued adjudication as 

to . . . mother . . . . 

Based upon this limited admission, the parties agreed the court had 

continuing jurisdiction to enter temporary placement orders for the 

child. But they also expressly agreed that the child was not being 

adjudicated dependent or neglected with respect to either parent. 

Instead, they agreed that any trial related to whether the child 

should be adjudicated dependent or neglected would be continued 

— or deferred — for six months.

¶ 5 In February 2021, father filed a motion seeking an allocation 

of parental responsibilities (APR) for the child to him. Mother filed a 
3

written objection to father’s APR motion, asserting that father was 

not an appropriate placement because he had minimal physical 

contact and no emotional bond with the child. Mother requested 

the child be placed with her. Soon after, the Department filed a 

motion asking the court to adopt its recommended permanency 

plan, adjudicate the child dependent or neglected, and grant an 

APR to father. 

¶ 6 The court adopted the Department’s proposed permanency 

plan, which set the permanent goal as placement of the child with 

father in California but with temporary placement remaining with 

the child’s cousins while a relationship was established between the 

child and father. The court did not address the Department’s 

request for an adjudicatory order. Instead, without objection from 

the parties, it continued the deferred adjudication for another six 

months. It also set a hearing on father’s request for an APR. 

¶ 7 The juvenile court held an evidentiary hearing on father’s APR 

motion in June 2021. The court then temporarily placed the child 

in father’s custody and authorized video visits with mother. After a 

review hearing a couple of months later, the court entered an APR 

order that kept the child in father’s custody, authorized parenting 
4

time for mother, and awarded decision-making authority between 

the parents. The court then certified the APR order into a separate 

domestic relations case and closed the dependency and neglect 

case. 

II. Allocation of Parental Responsibilities 

¶ 8 Mother contends the juvenile court lacked subject matter 

jurisdiction to grant the APR because it had not adjudicated the 

child dependent or neglected. We conclude the court had 

continuing subject matter jurisdiction over the parties and the case 

but did not have the legal authority to enter a permanent APR order 

for the child. We therefore vacate the juvenile court’s order 

allocating parental responsibilities for the child.

A. The Legal Framework

¶ 9 Dependency and neglect cases spring from foundational 

human bonds. There is no relationship more integral to a society 

than that of the family. And central to that institution is the 

relationship between parents and their children. The Supreme

Court has observed that “the interest of parents in the care, 

custody, and control of their children . . . is perhaps the oldest of 

the fundamental liberty interests recognized by this Court.” Troxel 
5

v. Granville, 530 U.S. 57, 65 (2000). Thus, in the first instance, it is 

parents, and not the State, who have the privilege and 

responsibility of raising their children.

¶ 10 Though parents’ liberty interests in raising their children are 

firmly protected by the Constitution, the parents’ rights are not 

unlimited. With rights come responsibilities. And one of the 

essential responsibilities that accompanies the privilege of 

parenting is the obligation to provide children with a safe and 

nurturing home free of neglect and abuse. If a parent fails to fulfill 

that responsibility, they are deemed “unfit” to autonomously make 

decisions for their children. While the parent remains unfit, the 

State has a vested interest in protecting the subject children, and 

may intervene in the parent-child relationship to protect them. 

People in Interest of N.G., 2012 COA 131, ¶ 30.

¶ 11 These legal principles accommodate the tension between 

parents’ right to freely parent their children and the government’s 

corresponding obligation, as parens patriae,1 to ensure that 

1 Parens patriae literally translates to “parent of his or her country” 

and refers to “the state in its capacity as provider of protection to 

those unable to care for themselves.” Black’s Law Dictionary 1339 

(11th ed. 2019). 
6

children grow and develop in a safe and nurturing environment. So 

how is this delicate, but essential, balance implemented?

¶ 12 In Colorado, the answer to that question starts with article 3 

of the Children’s Code, which provides the legal authorization for 

dependency and neglect cases. People in Interest of J.W. v. C.O., 

2017 CO 105, ¶ 26. To invoke the court’s jurisdiction, the petition 

must allege facts establishing that the child is dependent or 

neglected under section 19-3-502, C.R.S. 2021. C.O., ¶ 26. The 

Children’s Code also grants the juvenile court the authority to enter 

immediate emergency temporary orders to protect the health and 

welfare of the child, including the possibility of removing the child 

from the existing home if continuing the child’s current care and

custody “would present a danger to that child’s life or health in the 

reasonably foreseeable future.” § 19-3-405(2)(a), C.R.S. 2021.

¶ 13 These extraordinary powers are necessary to protect children 

who are at risk of immediate harm because of their environment. 

But they also represent an extraordinary intrusion into the fabric of 

the family, including the parents’ constitutionally grounded right to 

raise their children as they deem appropriate.
7

¶ 14 Recognizing the need to balance these rights, the Children’s 

Code requires the State to promptly provide parents with notice and 

an opportunity to be heard by the juvenile court concerning the 

issues presented in a petition. §§ 19-3-202, 19-3-503, C.R.S. 2021; 

People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 9. 

¶ 15 After being advised of their legal rights, the parents must 

decide whether they wish to contest or admit the allegations of the 

petition. If the parents decide to waive their right to an 

adjudicatory trial and admit the allegations, then a formal 

adjudication of the child as dependent or neglected may be entered. 

§ 19-3-505(1), (7)(a); C.R.J.P. 4.2(b); see also N.G., ¶¶ 19-20. If 

either parent contests the petition, the matter must be set for an 

adjudicatory trial, either to a judge or jury. At trial, the judge or 

jury decides if the State has sustained its burden of proving, by a 

preponderance of the evidence, the allegations in the petition. If the 

fact finder concludes the State has met its burden, then a formal 

order enters adjudicating the child dependent or neglected. If the 

fact finder concludes the State has not met its burden, then the 

court must dismiss the case. 
8

¶ 16 Thus, at the adjudicatory phase a child is generally 

adjudicated dependent or neglected, or the case is closed. But 

given the extraordinary consequences associated with an 

adjudication, coupled with the varied circumstances in which these 

cases arise, the Children’s Code affords a third option. Section 19-

3-505(5) provides as follows:

After making a finding as provided by 

paragraph (a) of subsection (7) of this section 

but before making an adjudication, the court 

may continue the hearing from time to time, 

allowing the child to remain in his own home 

or in the temporary custody of another person 

or agency subject to such conditions of 

conduct and of visitation or supervision by a 

juvenile probation officer as the court may 

prescribe . . . .

Section 19-3-505(7)(a), in turn, provides: 

When the court finds that the allegations of 

the petition are supported by a preponderance 

of the evidence, except when the case is 

continued as provided in the introductory 

portion to subsection (5) of this section, the 

court shall sustain the petition and shall make 

an order of adjudication setting forth whether 

the child is neglected or dependent. 

¶ 17 Based upon these provisions, after finding the allegations in 

the petition are supported by competent evidence but before making 

an adjudication of the child, the court may continue the 
9

adjudicatory hearing. The parties must consent to the continuance, 

and if they do, the initial continuation shall not exceed six months. 

§ 19-3-505(5)(a)-(b). Following the initial six-month period, the 

court may continue the hearing for another six months, after which 

it must dismiss or sustain the petition. § 19-3-505(5)(b).

¶ 18 The decision to continue or “defer” an adjudication has 

benefits for all parties. The State is initially freed of the obligation 

to meet its burden of proof on the adjudicatory question at trial, 

with its corresponding expense, delay, and conflict. The parents 

receive the same benefits, together with the opportunity to 

constructively address the issues that gave rise to the petition 

without the adverse consequences of a formal adjudication on their 

record. And the child benefits from the court’s continued 

involvement in the case, with its corresponding authority to enter 

orders for the temporary placement and protection of the child.

¶ 19 It is this third option — to defer the question of whether the 

child should be adjudicated dependent or neglected — that the 

parties utilized in this case. Based upon the parties’ stipulation, 

the court deferred the adjudication and entered temporary orders 

for the placement of the child with mother’s cousins. The court also 
10

adopted treatment plans designed to allow the parents to address 

the issues giving rise to the filing of the petition. And the court 

developed a visitation plan designed to allow father to establish a 

bonded relationship with the child.

¶ 20 No party contests the juvenile court’s full authority to enter 

these temporary orders. The conflict between the parties instead 

relates to whether the juvenile court had the legal authority, prior to 

an adjudication of the child as dependent or neglected, to enter a 

permanent order allocating parental responsibilities to father. 

¶ 21 To answer the question presented, we must consider the legal 

parameters of a juvenile court’s subject matter jurisdiction and 

jurisdiction over the child, and its corresponding authority to enter 

permanent orders allocating parental responsibilities.

B. Preservation of the Issue

¶ 22 At the hearing on father’s APR motion, mother did not 

expressly contest the court’s jurisdiction to allocate parental 

responsibilities without first adjudicating the child dependent or 

neglected. But mother’s counsel did assert in his opening 

statement and in his closing argument that the APR motion was 

“premature” because three months remained on the deferred 
11

adjudication at the time of the hearing. Moreover, mother did not 

consent, explicitly or implicitly, to the juvenile court allocating 

parental responsibilities. And, as discussed more fully below, the 

question of a court’s jurisdiction or authority to enter an order 

allocating parental responsibilities absent an adjudication is the 

subject of evolving precedent. In light of these circumstances, we 

conclude mother has not waived her right to challenge the court’s 

jurisdiction or authority to enter the order allocating parental 

responsibilities. 

¶ 23 Moreover, the issue of subject matter jurisdiction is an issue 

that the parties cannot waive. See, e.g., People v. Sprinkle, 2021 CO 

60, ¶ 17 (“[S]ubject matter jurisdiction cannot be waived or 

consented to by the parties . . . .”). Thus, to the extent that the APR 

order implicates the juvenile court’s subject matter jurisdiction, it 

was not possible for mother to waive the issue. 

¶ 24 Finally, to the extent that an argument could be made that 

mother did not adequately preserve the issue, we exercise our 

discretion to address it to avoid a miscarriage of justice. See, e.g.,

People in Interest of E.S., 2021 COA 79, ¶ 14 (applying miscarriage 

of justice doctrine in a dependency and neglect case); People in 
12

Interest of M.B., 2020 COA 13, ¶ 21 (discussing the limited scope of 

the miscarriage of justice exception but applying it in a dependency 

and neglect case to address unpreserved error “given the 

constitutional nature of parental rights”).

C. Jurisdictional Provisions and Standard of Review

¶ 25 A juvenile court’s jurisdiction concerns its authority to hear 

and determine a matter. C.O., ¶ 21. A court’s jurisdiction generally 

consists of two parts — subject matter jurisdiction over the issue to 

be decided and personal jurisdiction over the parties. Id. at ¶ 22. A 

judgment rendered without jurisdiction is void and may be attacked 

directly or collaterally. Id. at ¶ 21.

¶ 26 When the facts are undisputed, the scope of a court’s 

jurisdiction presents questions of law that we review de novo. Id. at 

¶ 17; Giduck v. Niblett, 2014 COA 86, ¶ 11.

D. Subject Matter Jurisdiction

¶ 27 Subject matter jurisdiction concerns the court’s authority to 

deal with a class of cases, not its authority to enter a particular 

judgment within a case that falls within that broad class. C.O., 

¶ 24. Because subject matter jurisdiction, in its broadest sense, 

concerns only the class of cases that a court may adjudicate, a 
13

court that has already obtained jurisdiction is not divested of its 

subject matter jurisdiction by a later failure to follow statutory 

requirements. Id.

¶ 28 The constitution and the laws of the state confer subject 

matter jurisdiction. People in Interest of K.W., 2012 COA 151, ¶ 10; 

see also Tulips Invs., LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 20. 

The Children’s Code grants a juvenile court exclusive original 

jurisdiction over proceedings concerning any child who is alleged to 

be dependent or neglected.

¶ 29 Because this proceeding fell within the class of cases that a 

juvenile court may hear under these provisions, the juvenile court 

had and retained broad subject matter jurisdiction during the 

entirety of this case. See C.O., ¶ 25. But we must also consider 

whether the juvenile court had jurisdiction over the child, and thus 

the legal authority, to enter the permanent APR order before the 

child had been adjudicated dependent or neglected with respect to 

either parent. See id. 

E. Personal Jurisdiction

¶ 30 Personal jurisdiction refers to the court’s authority to enter 

orders that bind particular persons. Without personal jurisdiction 
14

over a person, the court lacks the legal authority to enter an order 

that directly impacts that person. Unlike subject matter 

jurisdiction, parties may consent to the court’s exercise of personal 

jurisdiction so far as it affects them personally. See, e.g., Clinic 

Masters, Inc. v. Dist. Ct., 192 Colo. 120, 123, 556 P.2d 473, 475 

(1976). And once personal jurisdiction is acquired over a party, 

whether by consent or through service of process, the court retains 

jurisdiction over that party for the duration of the case.

¶ 31 In recent case law, the Colorado Supreme Court has referred 

to the concept of “jurisdiction over the child” when addressing a 

juvenile court’s authority to enter orders in the absence of an order 

adjudicating a child dependent or neglected. See, e.g., C.O., ¶ 31 

(“[T]he child’s status as dependent or neglected establishes the 

court’s continued jurisdiction over the child and permits state 

intervention into the familial relationship to protect the child and to 

provide rehabilitative services to assist the parent and child in 

establishing a relationship and home environment that will preserve 

the family unit.”); People in Interest of S.A., 2022 CO 27, ¶¶ 29-30 

(noting that “[w]ithout personal jurisdiction over an individual, a 

court is powerless and cannot issue legally binding and enforceable 
15

orders” and holding that the “court’s personal jurisdiction over 

[p]arents and subject matter jurisdiction over [the child]’s 

dependency or neglect case” did not permit the juvenile court to 

enter orders that impacted siblings who had not been adjudicated 

dependent or neglected).

¶ 32 Traditional concepts related to the exercise of personal 

jurisdiction in the dependency or neglect arena have inherent 

limitations. For example, the dependent or neglected child is 

typically a juvenile, and not in a position to consent to jurisdiction

or subject to service of process. Moreover, even if a child could 

consent to personal jurisdiction, orders in a dependency and 

neglect case not only affect the rights of the child; they also 

implicate fundamental constitutional rights of a parent. Thus, it 

would not be possible for the child, or a representative, to consent 

to the exercise of personal jurisdiction and thereby agree to the 

court’s authority to enter final orders that compromise a parent’s 

fundamental right to autonomously parent their child unless that 

child has been adjudicated dependent or neglected. See S.A., ¶ 29 

(“[T]he court never found — by a preponderance of the evidence or 

otherwise — that S.A.’s siblings were dependent or neglected and 
16

that the court’s intervention was warranted. Without such a 

finding . . . the juvenile court . . . acted beyond the jurisdiction 

granted to it by statute.”). 

¶ 33 Perhaps for these reasons, even when discussing the court’s 

jurisdiction over a child, the supreme court has framed its analysis 

in terms of the juvenile court’s legal or statutory authority to enter 

orders that impact a child who has not been adjudicated dependent 

or neglected. C.O., ¶ 25 (“[T]he question is whether the court had 

jurisdiction over the children when it terminated the parent-child 

legal relationship.”); id. at ¶ 31 (“[T]he purpose of an adjudicatory 

hearing is to determine whether the factual allegations in the 

dependency or neglect petition are supported . . . [, and] the child’s 

status as dependent or neglected establishes the court’s continued 

jurisdiction over the child . . . .”); see also S.A., ¶¶ 7, 29 (holding the 

juvenile court “had no authority” or jurisdiction to enter visitation 

orders impacting children who had not been adjudicated dependent 

or neglected). Thus, we turn to an analysis of the breadth and 

limitation of a juvenile court’s authority to enter permanent orders, 

including an order allocating parental responsibilities, in 

dependency and neglect actions.
17

F. The Juvenile Court’s Authority to Act

¶ 34 Colorado’s juvenile courts are created by statute, and thus 

they have no jurisdiction to act except as provided by statute. 

Everett v. Barry, 127 Colo. 34, 39, 252 P.2d 826, 829 (1953). In 

addition to the limits of subject matter jurisdiction, a court’s 

authority to take action within a particular case in which it enjoys 

subject matter jurisdiction may be constrained by statute, rule, or 

case law. Tulips, ¶¶ 17-23 (discussing the distinctions between a 

court’s subject matter jurisdiction and its authority to act and 

noting that “[a] court’s authority to act derives from rule, statute, 

case law, or the inherent authority of courts”).

¶ 35 At the commencement of a dependency and neglect case, the 

juvenile court’s authority to act is limited. The court has the 

authority to enter temporary orders to protect the children. People 

in Interest of M.C.S., 2014 COA 46, ¶ 8. After a child is adjudicated 

dependent or neglected, the juvenile court has much broader 

authority to act, including the ability to enter dispositional remedies 

and permanent orders addressing custody of the child. People in 

Interest of A.M.D., 648 P.2d 625, 639 (Colo. 1982); see also L.A.G. v. 

People in Interest of A.A.G., 912 P.2d 1385, 1392 (Colo. 1996). But 
18

the juvenile court does not have the authority to enter an order 

allocating parental responsibilities until after the parents are 

afforded full due process, which includes the right to test the merits 

of the petition at an adjudicatory trial. S.A., ¶¶ 29-30; N.G., ¶ 66.

¶ 36 N.G. involved a factual situation similar to that presented here. 

At the time the petition was filed, the child was in mother’s custody. 

N.G., ¶¶ 4, 5. Father lived in Arizona and had not seen the child for 

three years. Id. In response to the petition, mother admitted the 

child was dependent or neglected and the court entered an 

adjudication of the child with respect to her. Father, on the other 

hand, agreed to a deferred adjudication. Id. at ¶ 6. Similar to the 

agreement here, the father in N.G. admitted the allegations of the 

petition were supported by a preponderance of the evidence, thus 

confirming the juvenile court’s continued authority to exercise 

jurisdiction over the parties and the child and its corresponding 

authority to enter temporary orders. Id. But, as here, the parties 

also agreed to defer the question of whether the child should be 

adjudicated dependent or neglected as to father. Id.

¶ 37 Disagreements arose between the parties concerning 

placement of the child with father. Father eventually filed a motion 
19

to place the child with him. Id. at ¶ 9. The department then moved 

to revoke father’s deferred adjudication and allocate parental rights 

for the child to a family member, which father contested. Id. at

¶¶ 11, 13. After a hearing, the juvenile court entered an order 

allocating parental responsibilities for the child to the family 

member. The father appealed.

¶ 38 On appeal, a division of this court concluded the juvenile court 

erred by entering the APR order without having entered an order 

adjudicating the child dependent or neglected. Id. at ¶ 2. The 

division reasoned that because adjudication relates to the status of 

the child at the time of the order the adjudication is entered, by 

continuing the deferred adjudication the court was necessarily 

postponing a final decision on whether the child was dependent or 

neglected. Id. at ¶ 25. Thus, the limited admission made within 

the deferred adjudication to confirm the juvenile court’s jurisdiction 

and continuing limited authority did not provide a sufficient 

foundation for a formal adjudication because father had not been 

afforded an opportunity to contest the adjudication. Id. at ¶ 26. 

Because the juvenile court had failed to provide an adjudicatory 

hearing or address father’s motion for custody of the child before 
20

making the permanent APR order, the division vacated that order. 

Id. at ¶ 67. 

¶ 39 The Department acknowledges the import of N.G. but argues it 

is factually distinguishable from this case. Instead of viewing N.G.

as controlling, the Department argues we should rely upon a prior 

opinion from a divided division of this court. See People in Interest 

of N.D.V., 224 P.3d 410 (Colo. App. 2009). In N.D.V., the majority 

concluded the juvenile court had the ability to terminate mother’s 

parental rights, even though mother was on a deferred adjudication 

that had not been revoked, and thus, no formal adjudication had 

entered. Id. at 416. But like the division in N.G., we find N.D.V.

distinguishable. 

¶ 40 In N.D.V., although no formal adjudication had entered, the 

department had filed a motion for termination of parental rights in 

which it expressly alleged, albeit erroneously, that an order of 

adjudication had entered against mother. Id. The mother did not 

contest that allegation. Id. Nonetheless, after an initial trial the 

juvenile court denied the motion to terminate. Id. When the

mother’s failure to address her parental unfitness continued, the 

department filed a second motion to terminate her parental rights. 
21

Id. The department again erroneously alleged that an adjudication 

order had previously entered against mother and once again mother 

did not contest that allegation. Id. After a second termination 

hearing, the juvenile court terminated mother’s parental rights. Id. 

¶ 41 In rejecting mother’s argument that the juvenile court lacked 

the authority to enter the termination order, the court concluded 

that an adjudicatory order was not a jurisdictional prerequisite to 

the entry of the termination order. Id. at 417-18. Thus, the 

majority held that mother had waived any objection to the absence 

of a stand-alone order of adjudication. Id. at 418. Moreover, the 

majority noted that the termination statute expressly required the 

court to make a finding, by clear and convincing evidence, that “the 

child is adjudicated dependent or neglected.” Id. at 416 (quoting 

19-3-604(1)(c), C.R.S. 2021). Therefore, by entering an order for 

termination of parental rights, the majority concluded the juvenile 

court had either expressly or implicitly adjudicated the child as 

dependent or neglected. Id. The dissent, in contrast, concluded 

that a prior and independent order of adjudication was necessary 

before the court could even proceed with the termination hearing. 

Id. at 421 (Lichtenstein, J., dissenting). Because no such order had 
22

entered, the dissent would have vacated the termination order for 

lack of subject matter jurisdiction. Id.

¶ 42 Like the division in N.G., we view N.D.V. as factually and 

legally distinguishable and therefore not persuasive in this case. 

Here, unlike in N.D.V., the Department had never alleged that there 

was a prior adjudication of the child as dependent or neglected. 

Instead, the Department filed a combined motion to revoke mother’s 

deferred adjudication and allocate parental responsibilities in favor 

of father. Thus, mother was never placed on notice that the 

Department was asserting that an adjudication order had 

previously entered. Similarly, mother made no express or implied 

admission that an adjudicatory ordered had previously entered. 

Moreover, the juvenile court made no finding, expressly or by 

implication, that the child had been previously adjudicated 

dependent or neglected.

¶ 43 In this case, mother contested the APR to father. At the 

contested hearing, although she did not expressly dispute the 

court’s jurisdiction to enter an APR, her counsel, in his opening 

statement, argued that
23

we’re asking the Court to deny the motion for 

allocation. We believe it’s premature. We still 

have roughly three months left on a continued 

adjudication and we believe that it is most 

appropriate to allow that time period to elapse 

to allow for rebuilding of the relationship 

between [the child] and his mother. 

Similarly, in his closing argument, her counsel argued that “[w]e are 

operating, as far as [mother] is concerned, under a continued 

adjudication. There are still three months left on that continued 

adjudication.” Father’s counsel acknowledged the same facts and 

legal circumstances in his closing argument. Thus, unlike the 

parent in N.D.V., mother did not expressly or implicitly waive her 

right to contest the juvenile court’s authority to enter an order of 

adjudication. For these reasons, we conclude the reasoning in 

N.D.V. is unpersuasive here.

¶ 44 This conclusion is consistent with the supreme court’s 

decision in C.O., 2017 CO 105. In that case, mother had initially 

contested the petition and invoked her right to an adjudicatory trial. 

Id. at ¶ 6. After an initial trial, the jury was deadlocked, so no 

adjudication entered. Id. Thereafter, rather than proceed with 

another trial, mother entered a verbal admission to the allegations 

of the petition and consented to the entry of an adjudicatory order. 
24

Id. at ¶ 7. Through an apparent misstep, the juvenile court failed to 

enter a formal written order of adjudication after accepting the 

admission. Id. at ¶ 8. Based upon her continued failure to address 

the issues giving rise to the filing of the petition, the department 

moved for termination, and after holding a trial the juvenile court 

entered an order terminating mother’s parental rights. Id. at ¶¶ 9-

10. 

¶ 45 On appeal mother attempted to challenge the juvenile court’s 

termination order based upon the absence of a formal written order 

of adjudication. Id. at ¶ 12. A division of this court sided with 

mother, concluding that in the absence of a formal written order 

adjudicating the children dependent or neglected, the juvenile court 

lacked subject matter jurisdiction to enter an order terminating her 

parental rights. People in Interest of J.W., 2016 COA 125, rev’d sub 

nom. People in Interest of J.W. v. C.O., 2017 CO 105.

¶ 46 The supreme court reversed, concluding the juvenile court was 

not divested of subject matter jurisdiction by virtue of its failure to 

reduce to writing its implicit or express verbal order adjudicating 

the children dependent or neglected based upon mother’s express 

admission. C.O., ¶ 32. Recognizing the juvenile court’s continuing 
25

subject matter jurisdiction, the supreme court then turned to the 

question of whether the juvenile court had “jurisdiction over the 

children when it terminated the parent-child legal relationship.” Id.

at ¶ 25. The supreme court noted “jurisdiction over a child rests 

solely on the factual status of the child as dependent or neglected, 

not the formal entry of an order of adjudication reflecting that 

status.” Id. at ¶ 30. 

¶ 47 In reaching the conclusion that mother’s verbal admission that 

the children were dependent or neglected sufficed, the court 

explained,

[T]he purpose of an adjudicatory hearing is to 

determine whether the factual allegations in 

the dependency or neglect petition are 

supported by a preponderance of the evidence. 

In turn, the child’s status as dependent or 

neglected establishes the court’s continued 

jurisdiction over the child and permits state 

intervention into the familial relationship to 

protect the child and to provide rehabilitative 

services to assist the parent and child in 

establishing a relationship and home 

environment that will preserve the family unit.

Here, Mother entered an admission to the 

Department’s allegation that the children were 

dependent or neglected due to an injurious 

environment. . . . In light of Mother’s 

admission, the Department was relieved of the 

burden to prove the allegation by a 
26

preponderance of the evidence at an 

adjudicatory hearing and the purpose of the 

adjudicative process was met. The court’s 

acceptance of Mother’s admission established 

the status of the children as dependent or 

neglected and, thus, the court’s continued 

jurisdiction over the children.

Id. at ¶¶ 31-32 (citations and footnote omitted).

¶ 48 In reaching these conclusions, the supreme court noted 

mother had not requested or entered into a deferred adjudication. 

Id. at ¶ 8. To the contrary, mother had admitted that the children

were in an injurious environment rather than have a second jury 

decide the issue, and mother did so with the expectation that the 

children would be adjudicated dependent or neglected based upon 

her admission. 

¶ 49 Here, by contrast, the parents admitted that the child was 

dependent or neglected based on an injurious environment “[f]or 

purposes of this [c]ontinued [a]djudication only, and for no other 

purpose.” And the court accepted this admission “for purposes of 

this [c]ontinued [a]djudication,” ruling “no decree of adjudication 

shall be entered at this time.” Thus, mother made no admission, 

express or implied, that the child had been or should be 

adjudicated dependent or neglected. The absence of such 
27

admissions distinguishes this case from N.D.V. and C.O. Because 

no such admission was made and no order of adjudication had 

entered against mother, we conclude the juvenile court lacked the 

legal authority to enter a permanent order allocating parental 

responsibilities. 

G. The Juvenile Court’s Authority to Act Is Properly Before Us

¶ 50 Although the division in N.G. reached the same conclusion we 

do in this case, we recognize it noted the father in that case had 

expressly contested the juvenile court’s authority to enter an APR 

order due to the absence of an adjudicatory order. Because the 

issue was preserved, the division concluded “the lack of [an 

adjudicatory order] ha[d] not been waived, assuming, without 

deciding, that it could be.” N.G., ¶ 47.

¶ 51 We also recognize that mother failed to specifically alert the 

juvenile court that it lacked the authority to enter an APR order in 

the absence of a prior adjudication. But, as previously noted, we 

may, in our discretion, address an unpreserved error in a 

dependency or neglect case to avoid a miscarriage of justice. E.S., 

¶ 14. The exercise of this discretion is especially appropriate in a 

case involving a record that does not clearly establish the essential 
28

evidentiary basis for the rendition of a final judgment on 

substantial constitutional claims. Id. 

¶ 52 Recall that in C.O., the supreme court initially concluded the 

juvenile court retained subject matter jurisdiction notwithstanding 

“a later failure to follow statutory requirements.” C.O., ¶ 24. The 

supreme court then proceeded to analyze “whether the court had 

jurisdiction over the children” when it terminated mother’s parental 

rights. Id. at ¶ 25. And it concluded that mother’s admission to the 

adjudication of the children as dependent or neglected is what gave 

the juvenile court “continued jurisdiction over the children.” Id. at 

¶ 32; see also S.A., ¶ 28 (concluding a “juvenile court has 

continuing jurisdiction only when a child is dependent or 

neglected”). Thus, whether the juvenile court’s “continued 

jurisdiction” is grounded in broad notions of subject matter 

jurisdiction or the narrower concept of a court’s authority to take 

certain actions in a particular class of cases, it is apparent that the 

supreme court views the factual status of a child as dependent or 

neglected as a jurisdictional prerequisite to the entry of permanent 

orders.
29

¶ 53 This conclusion is also supported by the statutory language 

granting juvenile courts the authority to enter an order allocating 

parental responsibilities when another custody case is not pending:

Except as otherwise provided by law, the 

juvenile court has exclusive original 

jurisdiction in [certain proceedings concerning 

children]:

. . . .

When the juvenile court maintains jurisdiction 

in a case involving a child who is dependent or 

neglected and no child custody action or action 

for the allocation of parental responsibilities 

concerning the same child is pending in a 

district court in this state, upon the petition of 

a party to the dependency or neglect case, the 

juvenile court may enter an order allocating 

parental responsibilities and addressing 

parenting time and child support matters. . . . 

§ 19-1-104(1), (6), C.R.S. 2021 (emphasis added). The General 

Assembly’s use of the word “maintain” in this jurisdictional grant is 

instructive. To “maintain” means “to keep in an existing state (as of 

repair, efficiency, or validity)” or “to continue or persevere.” 

Merriam-Webster Dictionary, https://perma.cc/JS26-9MEH. Thus, 

in this context, the term “maintains” implies that the juvenile court 

had existing jurisdiction, and thereafter some event happened that 

allowed its jurisdiction to continue. 
30

¶ 54 Given the analyses of C.O. and S.A., coupled with the statutory 

structure of dependency and neglect cases, we conclude that an 

order of adjudication or the court’s determination that the child’s 

factual status is dependent or neglected2 is a necessary step that 

grants a juvenile court continuing jurisdiction over the child, and 

thus the authority to enter an APR order under section 19-1-104(6). 

Although the court retained broad subject matter jurisdiction over 

the case, absent an adjudication or a determination that the child’s 

factual status is dependent or neglected, we conclude the juvenile 

court lacked continuing jurisdiction over the child — and therefore 

the legal authority — to enter permanent orders allocating parental 

responsibilities. 

¶ 55 Accordingly, we must vacate the judgment.

III. Assessment of Father’s Home

¶ 56 Mother also contends that the juvenile court erred by granting 

an APR to father when no agency had assessed the condition and 

2 Recall that the supreme court used this language in C.O., in which 

the mother had made a verbal admission to support the entry of an 

adjudication order; the trial court accepted that admission but 

never entered a formal written order of adjudication. 
31

safety of his home. Because we have already concluded that the 

judgment must be vacated, we need not address this argument.

IV. Conclusion

¶ 57 The judgment is vacated, and the case is remanded to the 

juvenile court. Before the court may again consider granting a 

permanent APR order for the child, it must first enter an order 

adjudicating the child as dependent or neglected, assuming a 

factual and legal basis for doing so is established. The existing 

parenting time arrangement shall remain in place as a temporary 

order until subsequently modified by the juvenile court.

JUDGE DAILEY and JUDGE FOX concur.