If subsection 9058(c) (the "Notice Provision") is still in effect, it controls over Colorado's ten-day-notice requirement. See Fuentes-Espinoza v. People, 2017 CO 98, ¶ 26, 408 P.3d 445, 449 ("[U]nder the conflict preemption doctrine, 'state laws are preempted when they conflict with federal law.'" (quoting Arizona v. United States, 567 U.S. 387, 399 (2012))).

If subsection 9058(c) (the "Notice Provision") is still in effect, it controls over Colorado's ten-day-notice requirement. SeeFuentes-Espinoza v. People, 2017 CO 98, ¶ 26, 408 P.3d 445, 449 ("[U]nder the conflict preemption doctrine, ‘state laws are preempted when they conflict with federal law.’ " (quoting Arizona v. United States, 567 U.S. 387, 399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) ))

Moreover, we have the discretion under certain circumstances to consider federal preemption questions for the first time on appeal. See People in Interest of E.Q., 2020 COA 118, ¶ 27, 472 P.3d 1115 (citing Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19, 408 P.3d 445). Accordingly, we review husband’s contention of error.

We also review de novo whether a federal statute preempts a state statute. Fuentes-Espinoza v. People, 2017 CO 98, ¶ 20, 408 P.3d 445; see also Kohn v. Burlington N. & Santa Fe R.R., 77 P.3d 809, 811 (Colo. App. 2003) ("Federal preemption is a question of law subject to de novo review by this court.").

First, Congress's purpose in enacting the federal legislation is controlling. Fuentes-Espinoza v. People , 2017 CO 98, ¶ 22, 408 P.3d 445. Second, we must presume that Congress did not intend to preempt the historic police powers of the state unless that was the clear and manifest purpose of the federal legislation.

See Rule 12-321(B)(2)(c) (providing that an appellate court, in its discretion, may consider issues of fundamental error for the first time on appeal); State v. Samora, 2013-NMSC-038, ¶ 5, 307 P.3d 328 (reviewing unpreserved constitutional claim for fundamental error); see also Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997) ("Any claim of federal preemption of a state statute is a federal constitutional claim because the basis of such preemption is the supremacy clause[.]"); Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19, 408 P.3d 445 (exercising discretion to review an unpreserved preemption claim where "doing so would best serve the goals of efficiency and judicial economy"). B. Preemption Principles

Nonetheless, it may be appropriate to consider questions of pre-emption of federal law for the first time on appeal. See Fuentes-Espinoza v. People , 2017 CO 98, ¶¶ 1, 19, 408 P.3d 445 (choosing to address a pre-emption question that the division of the court of appeals had determined was unpreserved); see also Town of Carbondale v. GSS Props., LLC , 169 P.3d 675, 682-83 (Colo. 2007) (recognizing that a pre-emption defense may be waivable when it involves the law to be applied by the court, but that pre-emption involving federal law may raise a separate set of issues, including, for example, the application of the Federal Supremacy Clause). For these reasons, we will review father's argument.

People v. Torres , 224 P.3d 268, 273 (Colo. App. 2009) (collecting cases). ¶ 57 To the extent that his challenge is facial, however, lack of preservation is not a fatal flaw. See, e.g. , Fuentes-Espinoza v. People , 2017 CO 98, ¶ 19, 408 P.3d 445 ("We have long made clear that we will exercise our discretion to review unpreserved constitutional claims when we believe that doing so would best serve the goals of efficiency and judicial economy."). And because a facial challenge deals only with the statutory language, the challenge does not depend on factual development in the record.

The Supreme Court has recognized three forms of federal preemption: (1) field preemption — meaning that Congress’s intent to displace state law altogether can be inferred by its creation of a pervasive framework of regulation; (2) express preemption — meaning that Congress has enacted a statute expressly preempting state law; and (3) conflict preemption — meaning that complying with both federal and state law is physically impossible so that "the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ " Arizona , 567 U.S. at 399, 132 S.Ct. 2492 (quoting Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ); see Fuentes-Espinoza v. People , 2017 CO 98, ¶¶ 23-26, 408 P.3d 445. But the Court has also told us that "courts should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’ "

Regardless, we need not comb through the record to determine if preemption was raised, because we can exercise our discretion to review a preemption claim, especially where—like here—no further record development is required. See Fuentes-Espinoza v. People , 2017 CO 98, ¶ 19, 408 P.3d 445. ¶ 47 Federal preemption is a question of law subject to de novo review.