April 20, 2014

Colorado Court of Appeals: People in the Interest of T.M. and J.M., Children, and Concerning S.M.

The Colorado Court of Appeals issued its opinion in People in the Interest of T.M. and J.M., Children, and Concerning S.M. on June 10, 2010.

Termination of Parent–Child Relationship—Summary Judgment—CRS § 19-3-604(1)(b)(III).

Father, S.M., appealed the termination of his parent–child relationship. The Court of Appeals affirmed in part the trial court’s summary judgment, reversed it in part, and remanded the case.

In April 2009, a dependency and neglect petition was filed. T.M was 3 years old and J.M was 8. The children were adjudicated dependent and neglected as to their mother, in June 2009, and she confessed to the termination of her parental rights in January 2010. The court adjudicated T.M. and J.M dependent and neglected as to father in August 2009.

The Boulder County Department of Housing and Human Services (Department) moved for summary judgment to terminate father’s parental rights under CRS § 19-3-604(1)(b)(III). In support, the Department asserted that it was undisputed that father was serving two consecutive twelve-year sentences in the Department of Corrections (DOC), and an additional concurrent sentence of six years related to a habitual offender count, with 771 days credit for time served. The Department averred that the sentences were far in excess of the statutory criteria, and it attached certified copies of the sentencing order and the mittimus.

The court granted summary judgment. Based on clear and convincing evidence, the court found that no appropriate treatment plan could be devised; that father was subject to long-term confinement of such duration that he would not be eligible for parole for at least thirty-six months after the children’s adjudication date; that termination was in the children’s best interests; and that there were no less drastic alternatives.

On appeal, father first argued it was error to grant summary judgment, because a genuine issue of material fact existed regarding his parole eligibility date and the length of his actual confinement. The Court agreed in part.

In his response to the summary judgment motion, father disputed the description of his present sentence and indicated he intended to appeal the six-year sentence he received for being a habitual offender, which he claimed would bring him under the minimum thirty-six month period of incarceration until parole eligibility. Father’s response was not verified, he provided no opposing affidavits or other support, and the court had nothing before it to suggest that the department had incorrectly represented his sentence. Thus, the Court concluded the Department met its burden as to T.M. and termination was appropriate.

The Court reached a different conclusion as to J.M. (who was older than 6 years). The Department presented no specific evidence that father would not become eligible for parole for at least six years after the date of the adjudication. Also, the trial court made no specific findings. It was clear father would be confined for over thirty-six months; however, the Court could not conclude his confinement would exceed six years. The summary judgment as to J.M. was reversed and remanded for further proceedings.

Father also argued that the trial court erred in applying to both children the thirty-six month incarceration period that only applies to T.M. The Court agreed. Therefore it was error for the court to apply to both children the expedited procedures that are only to be applied to children under the age of six.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Colorado Court of Appeals: In re the Petition of J.M.A. and Concerning E.B.R.A. and J.L.S., Jr. and Concerning G.C. and A.C.

The Colorado Court of Appeals issued its opinion in In re the Petition of J.M.A. and Concerning E.B.R.A. and J.L.S., Jr. and Concerning G.C. and A.C. on June 10, 2010.

Termination of Parental Rights—CRS § 19-5-105(4) Limitations Period—Due Process.

Father, a possible father of E.B.R.A., appealed from the order denying his C.R.C.P. 60(b) motion for relief from a March 25, 2009 order terminating his parental rights after the child’s birth mother relinquished custody of the child pursuant to CRS § 19-5-103.5. There was no evidentiary hearing and no factual findings were made; therefore, the Court relies on father’s allegations in his verified motion and statements made in the response filed by Bethany Christian Services of Colorado (Bethany). Father alleged that after mother became pregnant, he attended prenatal appointments and ultrasounds with her.

Mother ceased all contact with him months before the child’s birth. Without father’s knowledge, prior to the birth, she retained the services of Bethany to assist her in placing the child for adoption. She represented to Bethany that she did not know the identity of the father. Bethany stated that notice of the relinquishment and termination proceeding was given to the unknown father by publication in a newspaper in El Paso County. No one replied and the court terminated father’s parental rights and granted Bethany legal custody and guardianship of the child and authority to place him for adoption. He was placed in March 2009.

Father learned the child had been born and tried to contact mother, but she refused to speak to him. He filed a paternity action in El Paso County District Court on October 2, 2009, and served mother on October 13, 2009. On October 15, Bethany contacted father’s counsel to advise him that his parental rights had been terminated in a proceeding in Clear Creek County and that an adoption proceeding was set for October 19 in Arapahoe County District Court. Father stated that was his first notice of either proceeding.

On October 16, 2009, father filed a Rule 60(b) motion seeking relief from the Clear Creek County judgment. He argued his right to due process had been violated. Bethany did not dispute that mother had perpetrated a fraud. On November 2, the court denied father’s motion, citing CRS § 19-5-105(4), and noted that the termination order had entered on March 25, 2009 and that father’s motion for relief was filed on October 16, 2009, more than ninety days after the order had entered. Father appealed.

The Court construed father’s argument as one that contended that applying the ninety-day limitations period unconstitutionally deprived him of due process under the circumstances of this case. The Court agreed.

To ensure proper notice is given when one parent relinquishes or proposes to relinquish or consent to the adoption of a child, the court is required to “cause inquiry to be made” to identify the other parent so that notice of the proceeding may be given to the other parent. Notice by publication is proper only if the other parent has not been identified or if his location has not been determined after diligent efforts. Under the facts of this case, where mother knew how to contact father and where publication notice was attempted one-and-a-half months before the child was born, it was error for the district court to conclude it did not have discretion to determine whether father was denied due process.

The Court also rejected the argument that father, being a putative father, was not entitled to notice. In Colorado, the requirement is that “all possible parents” be given notice and an opportunity to participate in a termination proceeding. The judgment was reversed and the case was remanded for a hearing on father’s motion for relief from the order terminating his parental rights. If the court determines father’s right to due process was not violated, the order may stand; however, if the court determines that his right was violated, it must determine whether father is entitled to relief from the termination order.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Colorado Court of Appeals: Quizno’s Franchising II, LLC v. Zig Zag Restaurant Group, LLC

The Colorado Court of Appeals issued its opinion in Quizno’s Franchising II, LLC v. Zig Zag Restaurant Group, LLC on June 10, 2010.

Order to Show Cause—Appeal—Dismissal—Notice—Sanctions.

This case came before the Court of Appeals on its order to show cause why (1) appellant, Quizno’s Franchising II LLC (Quiznos), did not file a motion to dismiss within a reasonable time, and (2) this court should not impose sanctions. Sanctions were not imposed, the order to show cause was discharged, and the appeal was dismissed.

This case involved consolidated appeals by Quiznos. The matter was fully briefed; the case was at issue as of February 8, 2010; and on March 12, 2010, oral argument was set for May 12, 2010. The parties reached an agreement and signed a Settlement, Release, and Termination Agreement on March 22, 2010. On May 5, 2010, Quiznos filed a motion to dismiss and to vacate the oral argument. Because Quiznos offered no explanation for its long delay in filing its motion to dismiss, the Court issued an order to show cause. Quiznos filed a response apologizing and explaining that although the settlement agreement was signed on March 22, 2010, the settlement resolution was not completed until a number of other actions, including a payment, were complete. Quiznos further explained that counsel for Quiznos contacted the Court and verbally informed it of the settlement on April 7, 2010. Oral notification of the settlement of a pending appeal is insufficient. A party must provide the court with notice of the settlement of a pending appeal immediately and in writing. In the circumstances presented here, however, the Court declined to impose such sanctions. Accordingly, the order to show cause was discharged and the appeal was dismissed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Colorado Court of Appeals: People v. Emert

The Colorado Court of Appeals issued its opinion in People v. Emert on June 10, 2010.

Possession of a Weapon by a Previous Offender—People v. Curtis Advisement.

The prosecution charged defendant with: (1) possession of more than one gram of a schedule II controlled substance under CRS § 18-18-405(1) and (2)(a)(I)(A); (2) special offender-deadly weapon under CRS § 18-18-407(1)(f); (3) menacing with a deadly weapon under CRS § 18-3-206(1)(a) and (b); (4) second-degree aggravated motor vehicle theft under CRS § 18-4-409(4)(b); (5) possession of a weapon by a previous offender (POWPO) under CRS § 18-12-108(1); (6) violation of bail bond conditions under CRS § 18-8-212(1); and (7) five counts of being a habitual criminal under CRS § 18-1.3-801. Count four was dismissed at a preliminary hearing and counts five and six were severed. Defendant was granted a new trial on his POWPO conviction and an incorrect advisement under People v. Curtis, 681 P.2d 504 (Colo. 1984). The People appealed. The Court of Appeals remanded for further proceedings.

During the trial on the first three counts, the trial court gave defendant a standard Curtis advisement. Defendant initially decided not to testify. During defendant’s case-in-chief, his wife testified. The next day, the prosecution sought to introduce rebuttal evidence that defendant had communicated with his wife from jail by telephone during trial and that they had discussed her expected testimony, contrary to the court’s sequestration order. When the trial court determined it would allow the evidence, defendant decided to testify. The court repeated the Curtis advisement. During his testimony, defendant admitted he was the owner of the vehicle in which the weapon was found and that he had been convicted of the felony named in the POWPO charge.

The jury found defendant not guilty of menacing, but was unable to reach a verdict on counts one and two. The court declared a mistrial on those counts and scheduled a retrial.

Several weeks later, the trial began on the severed POWPO charge. Over defendant’s objection, the prosecution presented his testimony from the first trial. Defendant chose not to testify and the jury returned a guilty verdict on the POWPO charge. Defendant moved for a new trial, asserting that he had received an improper Curtis advisement in the first trial. The trial court found the advisement was defective and therefore defendant’s previous testimony was involuntary and inadmissible in future proceedings. The prosecution appealed.

On appeal, the People argued that the Curtis advisement was proper and there is no requirement for a trial court to advise a defendant about all collateral consequences of a decision to testify, including those that may arise in subsequent trials on separate counts. The Court agreed that the trial court’s advisement was correct insofar as the first trial was concerned, but where a severed POWPO charge is pending and untried, a trial court’s advisement that a prior felony can be used only for impeachment is misleading, because a prior felony is a vital component of the prosecution’s POWPO case. Thus, the Court held that when a severed POWPO charge is pending, a trial court misleads a defendant when it gives that part of a Curtis advisement dealing with a testifying defendant’s prior felony convictions, unless it also provides a further explanation about the use of the felony in the pending POWPO trial.

The Court remanded for defendant to demonstrate that he reasonably and detrimentally relied on the trial court’s misleading advisement in deciding to testify. If he so demonstrates, a new trial should be held on the POWPO charge; if not, his conviction should be reinstated.

In contrast, the Court concluded that defendant’s admission that he owned the vehicle in which the weapon was found is admissible in future proceedings. The misleading Curtis advisement concerning the use of a prior felony conviction could not have induced any detrimental reliance concerning this admission.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Colorado Court of Appeals: Colorado Consumer Health Initiative v. Colorado Board of Health

The Colorado Court of Appeals issued its opinion in Colorado Consumer Health Initiative v. Colorado Board of Health on June 10, 2010.

Patient Copy Rule—Colorado Board of Health—Health Insurance Portability and Accountability Act (HIPAA)—Summary Judgment—Undisputed Facts.

In this declaratory judgment action challenging the Colorado Board of Health’s “patient copy rule,” plaintiff, the Colorado Consumer Health Initiative (CCHI), appealed the summary judgment entered for defendant, the Colorado Board of Health (CBH), as well as the denial of its cross motion for summary judgment. The trial court’s order denying CCHI’s summary judgment motion was affirmed, its order entering summary judgment for CBH was reversed, and the case was remanded for further proceedings.

CBH is a state regulatory board that has the authority to adopt and amend rules regarding public health. CBH’s rule, generally known as the “patient copy rule,” establishes the fees that health-care facilities can charge for providing copies of a patient’s medical records. CCHI filed a complaint for declaratory relief challenging CBH’s rules amending the patient copy rule in 2001 and 2008. On cross motions for summary judgment, the court granted CBH’s motion and denied CCHI’s motion.

CCHI contended that because the patient copy rule does not comply with the federal Health Insurance Portability and Accountability Act (HIPAA), the trial court erred in entering summary judgment for CBH and against CCHI. When HIPAA took effect in 2003, the portion of the 2001 rule that applies to HIPAA-covered individuals, which the Board readopted in the 2008 rulemaking, was required to come into compliance with HIPAA. To comply with HIPAA, the portion of the patient copy rule that applies to HIPAA-covered individuals must be cost-based and must not include costs beyond supplies for and the labor of copying. Here, neither CCHI nor CBH provided the trial court with undisputed facts demonstrating that it was legally entitled to summary judgment regarding the patient copy rule’s compliance with HIPAA; therefore, neither party was entitled to summary judgment on this issue.

CCHI also contended that the trial court erred in entering summary judgment for CBH and against CCHI on the issue of the patient copy rule’s compliance with Colorado law. Colorado law provides that health-care facilities must furnish copies of medical records to the patient “upon the payment of the reasonable costs.” Here, neither CCHI nor CBH provided the trial court with undisputed facts demonstrating that it was legally entitled to summary judgment regarding the patient copy rule’s compliance with Colorado law; therefore, neither party was entitled to summary judgment on this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Colorado Court of Appeals: Travelers Property Casualty Company of America v. Farmers Insurance Exchange

The Colorado Court of Appeals issued its opinion in Travelers Property Casualty Company of America v. Farmers Insurance Exchange on June 10, 2010.

Summary Judgment—Additional Insured Coverage for Liability that Arises out of a Commercial Tenant’s Use of Leased Premises.

This case involved a provision in a commercial liability insurance policy that provides for “additional insured” coverage for liability “arising out of” a commercial tenant’s use of leased premises. The Court of Appeals concluded there was no coverage provided to the landlord or its property manager and therefore affirmed the trial court’s order granting summary judgment to defendant (Farmers) and against plaintiff (Travelers).

Cherry Knolls 99, LLC (Cherry Knolls) owned a shopping center. It entered into a commercial lease agreement to lease suite 290 to a lessee. The lease was signed by Cherry Knolls’s property manager, ACF Property Management (ACF). The original lessee later assigned its interest to another entity (tenant), which operated a restaurant there.

Tenant obtained a commercial liability insurance policy from Farmers that covered the leased premises, and named “Cherry Knolls c/o ACF Property Management, Inc.” as an additional insured. Cherry Knolls and ACF also obtained their own commercial liability insurance policy issued by Travelers.

A customer of tenant went to eat at the restaurant and parked her car in the shopping center’s parking lot. After eating, while walking in the parking lot to her car, customer slipped on ice, fell, and was injured. She sued Cherry Knolls and ACF.

Travelers accepted defense and tendered a request for defense and indemnity to Farmers. After Farmers declined to defend or indemnify, Travelers settled with customer. Travelers then brought this action for contribution against Farmers. Both parties moved for summary judgment. The trial court ruled there was no coverage for customer’s injuries under Farmers’ policy and granted Farmers’ motion. Travelers appealed and the Court affirmed.

Farmers’ policy listed Cherry Knolls and ACF as additional insureds, but Farmers’ policy insured only the leased premises (suite 290), not the common areas such as the parking lot. The Court determined that there was no duty to defend or indemnify, because the customer’s injury did not arise “out of the ownership, maintenance or use” of the restaurant. The customer needed to show that the use of the restaurant was integrally related to her activities and the injury at the time of the accident. The Court held that customer’s patronage of the restaurant was not integrally related to her injury at the time she slipped and fell in the parking lot. She could have had the identical injury without visiting the restaurant.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Colorado Court of Appeals: People v. Blackwell

The Colorado Court of Appeals issued its opinion in People v. Blackwell on June 10, 2010.

Evidence—Due Process—Witness—Fifth Amendment—Sixth Amendment—Hearsay.

Defendant Blackwell appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder after deliberation, vehicular eluding with injury, and two habitual offender counts. The judgment was affirmed.

After firing a gun at rival gang members, defendant and his accomplice, C.W., fled the scene. A high-speed car chase ensued, and the police apprehended defendant and C.W. after they crashed into a police car.

Defendant contended that he was deprived of the right to a fair trial because the trial court erroneously excluded important defense evidence. Specifically, defendant argued that he was deprived of due process because the government improperly interfered with a defense witness’s choice to testify. Defendant subpoenaed J.N., C.W.’s former cellmate, to testify concerning statements C.W. allegedly had related to him. However, J.N. was appointed counsel to represent him after the prosecution determined that J.N.’s account of the facts contained numerous inaccuracies. J.N.’s counsel advised him to invoke his Fifth Amendment right to remain silent to avoid committing perjury. Here, the prosecution did not threaten J.N.; there was record support of J.N.’s inconsistencies with the evidence; and the prosecutor properly requested that the court appoint independent counsel for J.N. Therefore, the prosecutor did not coerce J.N. into refusing to testify, and the Court of Appeals was not required to balance J.N.’s Fifth Amendment right not to testify against defendant’s Sixth Amendment right to present a defense. Accordingly, defendant was not deprived of his ability to present a defense.

Defendant also contended that the trial court erred in excluding an audio recording of J.N.’s police interview. However, there was ample evidence that the audio recording lacked reliability and trustworthiness. Further, J.N. could not be cross-examined regarding the audio recording because he had invoked his Fifth Amendment right not to testify. Therefore, the court did not abuse its discretion in excluding the recording.

Defendant further argued that the trial court erred in excluding evidence that an unidentified witness approached a security guard and reported that a black Ford Taurus with tinted windows and its headlights off sped off from the same parking lot as defendant’s car after the shooting. Because the witness was unavailable, defendant sought to elicit testimony about the unidentified car through the security guard. The trial court properly court excluded the evidence because no hearsay exception applied and it raised C.R.E. 403 concerns.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Colorado Court of Appeals: People v. Roy

The Colorado Court of Appeals issued its opinion in People v. Roy on June 10, 2010.

Presentence Confinement Credit—Crim.P. 35(a)—Consecutive Sentences.

Defendant Roy appealed the district court’s order denying his third post-conviction motion for additional presentence confinement credit. The order was affirmed.

In 1999, Roy was charged with multiple drug offenses in two cases, Nos. 99CR321 and 99CR867. Roy violated his probation by committing another drug-related offense on December 27, 2002, for which he was charged in a third case, No. 02CR1373. At the time of sentencing in the third case, the court awarded him credit for time served in all cases. The court also granted Roy’s request for presentence confinement credit for time served in community corrections. Thereafter, Roy filed motions for additional presentence confinement credit in all three cases, which were denied.

Roy contended that the district court erred by denying his motion for an additional 267 days of presentence confinement credit. Roy’s failure to timely appeal the 2005 order prevented the Court of Appeals from reviewing that order. As to the 2008 order, however, Roy’s post-conviction claims for presentence confinement credit were cognizable under Crim.P. 35(a). Because Roy received consecutive sentences for all three cases, and he already was awarded presentence confinement credit for the period in question in No. 02CR1373, he received full credit against the total term of imprisonment. Roy was not entitled to duplicative credit; therefore, the district court did not err in denying his request for additional presentence confinement credit.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.