June 24, 2017

CJD 16-02 Regarding Office of Respondent Parents’ Counsel Amended by Colorado Supreme Court

On Tuesday, June 13, 2017, the Colorado State Judicial Branch announced amendments to CJD 16-02, “Court Appointments Through the Office of Respondent Parents’ Counsel.” The changes include minor additions and changes to various sections, as well as:

  • Giving ORPC the authority to select attorneys for specific cases upon notice to the court;
  • Prohibiting the same attorney from representing multiple parents in the same case;
  • Clarifying the appellate appointment policy;
  • Removing billing policies from the CJD that were contained in the ORPC billing policies;
  • Allowing Judges and Magistrates to appoint RPC prior to the filing of a petition for good cause; and
  • Clarifying appointment protocols.

The changes to CJD 16-02 were adopted June 13, 2017, and are effective July 1, 2017. For the full text of CJD 16-02, click here. For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Colorado Court of Appeals: Foster Parents Allowed to Intervene to Appeal Non-termination of Mother’s Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of C.W.B. on Thursday, May 18, 2017.

Dependency and NeglectTreatment Plan—Guardian ad Litem—Termination of Parental Rights.

A petition in dependency and neglect was filed for C.W.B., Jr., and the child was placed with foster parents (intervenors). Father’s parental rights were terminated. After a hearing, the court denied the motion to terminate mother’s parental rights over the guardian ad litem’s objection.

On appeal, the intervenors first contended that the trial court abused its discretion by failing to give primary consideration to the physical, mental, and emotional conditions and needs of the child when denying the motion to terminate mother’s parental rights. Colorado law requires that the child’s needs and the parent’s ability to meet the child’s needs be considered together. Here, although there were concerns about mother’s ability to parent the child, the trial court concluded that mother’s treatment plan was appropriate, and she had substantially complied with it. Additionally, the court found that the evidence showed that mother would provide nurturing and protection adequate to meet the child’s physical, emotional, and mental health needs. The court properly assessed the child’s needs and the parent’s ability to meet the child’s needs and applied the correct legal standard in denying the motion to terminate mother’s parental rights.

Intervenors also contended that the court erred in refusing to require the Montezuma County Department of Social Services to comply with the expedited procedures under C.R.S. § 19-3-703. The trial court’s findings were adequate to show that there was good cause to delay permanency in this case.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Unavailability of Transcript of Child’s In Camera Interview Violated Parents’ Due Process Rights

The Colorado Court of Appeals issued its opinion in People in Interest of H.K.W. on Thursday, May 18, 2017.

Dependency and Neglect—In Camera Interview of Child—Record of In Camera Interview.

The Weld County Department of Human Services (the Department) filed a dependency or neglect petition regarding 6-year-old H.K.W. The child was initially removed from the home and placed with father, and three days later with special respondents. In a prior dependency and neglect case, the child had also been placed with special respondents.

The trial court adjudicated the child dependent or neglected. Father and mother complied with the court ordered treatment plans. Father, mother, and special respondents later moved for an allocation of parental responsibilities. The child’s guardian ad litem (GAL) moved for an in camera interview with the child. None of the parties objected. The court agreed to interview the child and told the parties it would have a record made that would be sealed unless the matter was appealed. There were no objections.

The interview with the child was recorded but not transcribed, and none of the parties requested a transcript. At a subsequent hearing, the court allocated parental responsibilities to special respondents and set forth a parenting time schedule for mother and father. In making its findings, the court relied extensively on the child’s statements during the in camera interview. Father and mother appealed, and father requested a transcript of the interview. The trial court denied father’s request.

On appeal, father and mother argued that the trial court erred by relying on the in camera interview with the child, which was not admitted into evidence, as the basis for its allocation of parental responsibilities decision. They asserted their due process rights were violated because without access to the interview transcript, they were unable to contest the court’s findings or the information on which it relied.

Although the Children’s Code does not specifically allow a court to conduct an in camera interview with a child, C.R.S. § 19-1-106(5) provides that a child “may be heard separately when deemed necessary” by the court. The Uniform Dissolution of Marriage Act (UDMA) provides that the “court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities.” Read together, the court of appeals concluded that a trial court is permitted to conduct an in camera interview with a child to determine a child’s best interests and how to allocate parental responsibilities within a dependency and neglect proceeding.

The Children’s Code does not address whether a record of an in camera interview with a child must be made. The UDMA requires the trial court to make a record of the interview, which must be part of the case record. The court concluded that, unless waived by the parties, a record of the interview must be made. Further, the record must be made available, upon request, in situations when a parent needs (1) to determine whether the court’s findings, insofar as they relied on facts from the interview, are supported by the record, or (2) an opportunity to contest information supplied by the child during the interview and relied on by the court.

In this case, the parents requested access to a transcript only after they filed a notice of appeal. By not requesting access earlier, they waived their right to access the transcript to rebut information presented during the interview, but they did not waive their right to access the transcript for the purpose of contesting the bases for the court’s findings related to the interview. Thus, the trial court erred in not ordering the transcript to be made and made part of the record on appeal.

The trial court was ordered to have the in camera interview transcribed and transmitted, as a suppressed document, to the court as a supplement to the record on appeal. Following supplemental briefing, the court will issue an opinion addressing the merits of the appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Department of Human Services Must Make “Continuing Inquiries” About ICWA Status

The Colorado Court of Appeals issued its opinion in People in Interest of A.D. on Thursday, May 4, 2017.

Termination of Parental RightsIndian Child Welfare Act of 1978Continuing Inquiries.

In 2013, the Chaffee County Department of Social Services (Department) initiated a dependency and neglect proceeding involving Tr.D. Respondents denied the child was a member or eligible for membership in an Indian tribe, and the Department represented it had determined the child was not an Indian child. The petition was later withdrawn and the case closed.

In 2015, the Department initiated another dependency and neglect proceeding concerning Tr.D. and 6-month-old A.D. after mother and father were arrested on drug charges. The children were placed in foster care and adjudicated dependent and neglected. Treatment plans were developed for both parents, but neither could overcome their addictions. The Department ultimately filed a petition to terminate parental rights and stated that the children were not Indian children. No evidence concerning the Indian Child Welfare Act (ICWA) was elicited at the termination hearing. The trial court terminated parental rights and found the provisions of the ICWA did not apply.

On appeal, mother argued that the record failed to support the court’s ICWA finding because no questions were asked about possible Indian heritage during the proceedings and therefore the Department didn’t meet its “continuing inquiry” duty under the ICWA. The Department argued that the ICWA issue was resolved in the prior case and the trial court satisfied the ICWA requirements in this case because it took judicial notice of its ICWA finding in the previous case. The Department reasoned that because A.D. is a full sibling of Tr.D., the court’s previous finding as to Tr.D. must also apply to her. The ICWA required the Department to conduct new inquiries to determine whether the children were Indian children. Because there was no evidence in the record of such inquiries, further proceedings were required.

Because the ICWA inquiry may result in the court determining that the children are not Indian children, the court of appeals addressed the other issues raised on appeal. Mother argued that the grounds for terminating her parental rights were not established by clear and convincing evidence. Based on the record before it, the court disagreed. Father argued that the record did not support the finding that reasonable efforts were made to avoid the removal of the children from their home and to promote reunification of the family. Specifically, father argued that a dispute over venue delayed his ability to participate in a drug program, averring that reasonable efforts required not just providing services, but providing services “at the right time.” The court determined that father waived his right to raise this issue when he expressly agreed to hold the motion to change venue in abeyance and therefore failed to seek a ruling from the court.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Bills Regarding Notice of Medicaid Appeals, Special Respondents in Dependency and Neglect, and More Signed

On Thursday, April 6, 2o17, Governor Hickenlooper signed 15 bills into law. To date, the governor has signed 137 bills into law this legislative session. Some of the bills signed Thursday include a bill amending the definition of “special respondent” in the Colorado Children’s Code, a bill prohibiting a court from requiring a medical marijuana patient to abstain from marijuana use as a condition of bond, a bill codifying the presumption that a conveyance of land also includes the property interest in an adjacent vacated right-of-way, and a bill granting qualified immunity to persons performing land stewardship activities on public lands. These bills and the others signed Thursday are summarized here.

  • HB 17-1126: “Concerning the Review of Legal Sufficiency of Medicaid Appeals,” by Reps. Jessie Danielson & Dafna Michaelson Jenet and Sen. Larry Crowder. The bill requires an administrative law judge hearing Medicaid appeals to review the legal sufficiency of the notice of action from which the recipient is appealing at the commencement of the appeal hearing if the notice of action concerns the termination or reduction of an existing benefit, and to take appropriate action if the notice is insufficient.
  • HB 17-1173:“Concerning Medical Communications Regarding Disagreements in Health Care Decisions,” by Rep. Chris Hansen and Sen. Tim Neville. The bill requires a contract between a health insurance carrier and a health provider to include a provision that prohibits a carrier from taking an adverse action against the provider due to a provider’s disagreement with a carrier’s decision on the provision of health care services.
  • HB 17-1183: “Concerning the Repeal of the Condition Required to be Satisfied for a Provision of Law Governing the Disclosure of Communications with Mental Health Professionals to Take Effect,” by Rep. Mike Foote and Sen. Bob Gardner. The bill repeals the contingency provision contained in HB 16-1063 regarding the HIPAA privacy rule.
  • HB 17-1197: “Concerning the Exclusion of Marijuana from the Definition of ‘Farm Products’ with Regard to Regulation of Farm Products under the ‘Farm Products Act’,” by Rep. Joann Ginal and Sen. Don Coram. The bill excludes marijuana from the definition of ‘farm products’ requiring licensure under the Farm Products Act.
  • HB 17-1198“Concerning the Authority for a Special District to Increase the Number of Board Members from Five to Seven,” by Rep. Matt Gray and Sen. Bob Gardner. The bill allows a special district to increase the number of board members by adoption of a resolution by the board and the approval of the resolution by the board of county commissioners or the governing body of the municipality that approved the service plan of the special district.
  • SB 17-046: “Concerning the Modernization of Procedures Pertaining to Warrants and Checks not yet Presented to the State Treasurer for Payment,” by Sen. Jack Tate and Rep. Jeni Arndt. The bill modernizes current practices relating to warrants and checks not timely presented to the state treasurer for payment.
  • SB 17-065: “Concerning a Requirement that Health Care Providers Disclose the Charges they Impose for Common Health Care Services when Payment is made Directly Rather than by a Third Party,” by Sen. Kevin Lundberg and Rep. Susan Lontine. The bill creates the ‘Transparency in Health Care Prices Act’, which requires health care professionals and health care facilities to make available to the public the health care prices they assess directly for common health care services they provide.
  • SB 17-097“Concerning the Presumption that a Conveyance of an Interest in Land Also Conveys an Interest in Adjoining Property Consisting of a Vacated Right-of-Way,” by Sen. Beth Martinez Humenik and Rep. James Coleman. The bill broadens the application of the presumption of conveyance of an adjoining vacated right-of-way to include not only warranty deeds but also all forms of deeds, leases, and mortgages and other liens.
  • SB 17-100: “Concerning Qualified Immunity for Persons Performing Land Stewardship Activities on Public Lands,” by Sen. Jerry Sonnenberg and Reps. Jeni Arndt & Lois Landgraf. The bill strengthens existing legal protections under the federal ‘Volunteer Protection Act of 1997’ and Colorado’s ‘Volunteer Service Act’ for individual volunteers and nonprofit entities who build or maintain recreational trails and related facilities pursuant to grants received under Colorado’s ‘Recreational Trails System Act of 1971’.
  • SB 17-142: “Concerning the Requirement to Include Notification to a Patient Regarding the Patient’s Breast Tissue Classification with the Required Mammography Report,” by Sen. Angela Williams and Rep. Jessie Danielson. The bill requires that each mammography report provided to a patient include information that identifies the patient’s breast tissue classification based on the breast imaging reporting and data system established by the American College of Radiology.
  • SB 17-144: “Concerning the Recommended Continuation of the Education Data Advisory Committee by the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies,” by Sens. Owen Hill & Rachel Zenzinger and Rep. Brittany Pettersen. The bill implements the recommendation of the Department of Regulatory Agencies to continue the education data advisory committee.
  • SB 17-146“Concerning Access to the Electronic Prescription Drug Monitoring Program,” by Sen. Cheri Jahn and Rep. Joann Ginal. The bill modifies provisions relating to licensed health professionals’ access to the electronic prescription drug monitoring program.
  • SB 17-177: “Concerning Amending the Definition of ‘Special Respondent’ in the Children’s Code to Allow a Person to be Voluntarily Joined in a Dependency or Neglect Proceeding,” by Sen. John Cooke and Rep. Paul Rosenthal. The bill amends the Children’s Code definition of “special respondent” to allow a party to be voluntarily joined in a dependency or neglect proceeding.
  • SB 17-178“Concerning Prohibiting a Court from Requiring a Medical-Marijuana Patient to Abstain from the Use of Marijuana as a Condition of Bond,” by Sen. Vicki Marble and Rep. Jovan Melton. The bill prohibits a court from imposing as a bond condition a ban on marijuana use if the person possesses a valid medical marijuana registry identification card.
  • SB 17-230“Concerning Payment of Expenses of the Legislative Department,” by Sens. Lucia Guzman & Chris Holbert and Reps. Patrick Neville & KC Becker. The bill makes appropriations for matters related to the legislative department for the 2017-18 state fiscal year.

For a list of the governor’s 2017 legislative actions, click here.

Colorado Court of Appeals: Dependency and Neglect Court Should Have Followed ICWA’s Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of L.L. on Thursday, March 30, 2017.

Dependency and NeglectIndian Child Welfare ActNoticeBurden of Proof.

In this dependency and neglect case concerning L.L., his mother, A.T., told the juvenile court at a shelter hearing that she had possible Apache Native American ancestry. Later, A.T. filed written information that included tribal card numbers and roll numbers. The Denver Department of Human Services (Department) did not send notice of the proceedings to any of the Apache Tribes. A.T. again stated that she had Indian heritage at a pretrial hearing, but the juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. is a member or is eligible for tribal membership. The court also did not treat L.L. as an Indian child pending verification from the tribe. Following a jury verdict, the court adjudicated L.L. dependent and neglected.

On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, the court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.

A.T. also contended that the juvenile court violated ICWA by not requiring the jury to base its findings on a heightened clear and convincing evidentiary standard. There is no language in ICWA or associated rules or guidelines that indicates a heightened burden of proof for the adjudicatory hearing in a dependency and neglect proceeding. Thus, the state is only required to prove the allegations in the petition by a preponderance of the evidence in all adjudications, whether involving Indian or non-Indian children. The juvenile court did not err when it instructed the jury regarding the Department’s burden of proof.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Application Period Open for Office of Respondent Parents’ Counsel Contracts

The 2017 Application Form for The Office of Respondent Parents’ Counsel is now open. To be awarded a new contract for the term of July 1, 2017, please submit this online, electronic form no later than 5:00 pm on Friday, March 31, 2017All applicants, including associate attorneys, are required to submit a substantive application as part of the evaluation process of the ORPC. To learn more about the application process and requirements, please refer to the Contract Renewal and Application Webinar.  Password for webinar:  ORPCApp$17  Link:  https://vimeo.com/205612668

Getting Started
To access the online ORPC Application Form, click the following link:  https://fs7.formsite.com/ORPCColorado/form33/index.html

For your review and reference only, a complete, printable version of the application is available here: https://fs7.formsite.com/ORPCColorado/form33/print

You must submit the online application, no paper application will be accepted.

You must have a Colorado Attorney Registration Number to apply.

Log In and Save Your Progress
Before beginning this form, you will be prompted to create a user login and password. These can be used to save and retrieve your work. Save your progress at any time by clicking “Save Partial Work” on the bottom of each page. Each time you advance to the next page, your work is automatically saved. To resume partially-completed work, click the link above to log in again. After logging in, click “Open Saved Form” to resume working. Be sure to advance to the last page of the form and click “Submit” before the deadline identified above.

Required Attachments to Prepare in Advance
You will be required to upload at least one electronic document to the online form (link above).  The required documents are listed below.  ORPC recommends that you begin collecting and preparing your document(s) with plenty of time before the March 31st deadline, and save each document on your computer, in PDF format.  You’ll be required to upload your document(s) when prompted on the online form—you may not e-mail or mail documents separately.  You can save your form and return to it later if you’re waiting on a required document.

  • One redacted legal writing sample – preferably a substantive D&N motion.  If you are interested in appeals please provide an appellate brief as your writing sample.
  • Your resume, indicating your legal and other relevant experience.

References
You will be prompted to submit the names and email addresses of two professional references and the names and contact information for all associates and staff.

Please notify your references that ORPC may be contacting them.

ORPC Budget
The ORPC has a pending budget request to pay all attorneys hourly regardless of their jurisdiction.  If this budget request is approved, attorneys in the following judicial districts will be paid hourly starting July 1, 2017:  2nd, 4th, 8th, 10th, 17th, 18th, 19th, and 20th.

Questions?
Please contact Sara Settle at 303-731-8773 or ssettle@coloradoorpc.org with any questions about the instructions here or how to use the online form.

HB 17-1111: Giving Juvenile Court Jurisdiction to Enter Protection Orders

On January 20, 2017, Rep. Susan Beckman introduced HB 17-1111, “Concerning Allowing Juvenile Courts to Enter Civil Protection Orders in Dependency and Neglect Cases.”

The bill clarifies that the juvenile court (court) has jurisdiction to enter civil protection orders in dependency and neglect actions in the same manner as district and county courts. The court must follow the same procedures for the issuance of the civil protection orders and use standardized forms. Civil protection orders must be entered into the central registry for protection orders and are enforced in the same manner as civil protection orders issued by other courts.

If the civil protection order is made permanent, it remains in effect after the termination of the dependency and neglect action. The clerk of the court shall file a certified copy of a permanent civil protection order in an existing district court case, if applicable, or with the county court in the county where the protected party resides.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 23, 2017, at 1:30 p.m.

HB 17-1110: Allowing Juvenile Courts to Enter Orders Regarding Parenting Time, Child Support, and Parental Responsibilities

On January 20, 2017, Rep. Susan Beckman introduced HB 17-1110, “Concerning Juvenile Court Jurisdiction Regarding Matters Related to Parental Responsibilities in a Juvenile Delinquency Case.”

The bill allows the juvenile court to take jurisdiction involving a juvenile in a juvenile delinquency case and subsequently enter orders involving parental responsibilities, parenting time, and child support when:

  • The juvenile court has maintained jurisdiction in a case involving an adjudicated juvenile, a juvenile with a deferred adjudication, or a juvenile on a management plan;
  • An action related to parental responsibilities or custody involving the same juvenile is not pending in a district court; and
  • All parties are in agreement or have been given proper notice.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 23, 2017, at 1:30 p.m.

Colorado Court of Appeals: Victim Intimidation Statute Applies only to Criminal Cases, not Civil Actions

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, January 26, 2017.

RetaliationWitnessCivilOther Bad ActsJury DeliberationsLimiting Instruction.

The Colorado Department of Human Services (DHS) took custody of Johnson’s two children based on information from Ranals. Later, Johnson and his girlfriend drove to a DHS office, but the office was closed. Before leaving, Johnson fired shots into a vehicle in the parking lot that appeared similar to the vehicle driven by the DHS employees who had removed the children. Johnson then drove to Ranals’s home and fired several shots into her house.

At trial, Johnson moved for a mistrial and later a new trial, based on Ranals’s testimony. Both motions were denied. A jury convicted Johnson of several counts, including retaliation against a witness or victim. The prosecution’s theory in support of the witness retaliation charge was that Johnson shot into Ranals’s home because she had reported him to DHS and he believed she might be a witness in the dependency and neglect proceedings against him.

On appeal, Johnson contended that the C.R.S. § 18-8-706 offense of retaliation against a witness applies only to retaliation against a witness because of the witness’s relationship to a criminal proceeding. The Colorado Court of Appeals examined the statute and its legislative history and concluded that C.R.S. § 18-8-706 applies only to retaliation against witnesses or victims because of their relationship to criminal, and not civil, proceedings. Because the prosecution only presented evidence regarding Ranals’s perceived involvement in a dependency and neglect proceeding, Johnson’s conduct could not have constituted witness retaliation under this statute.

Johnson also contended that the trial court erroneously denied his motion for a mistrial and erroneously denied his post-verdict motion for a new trial. At trial, Ranals made a statement referencing Johnson’s acts of domestic violence, despite the trial court’s prior ruling that evidence of Johnson’s other bad acts was inadmissible. The court properly exercised its discretion by directing the jury to disregard Ranals’s statement to ensure that Johnson would not be unfairly prejudiced. Further, Ranals’s statement was part of her trial testimony; the jury was not exposed to information or influences outside of the trial process. Thus, it was not extraneous information as contemplated by CRE 606(b).

The witness retaliation conviction was vacated and the judgment of conviction on the remaining convictions was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Time Frame for Appeal of Paternity Determination Arises from C.A.R. 4

The Colorado Court of Appeals issued its opinion in People in Interest of N.S. on Thursday, January 12, 2017.

Dependency and Neglect— Juvenile Court Jurisdiction—Paternity Adjudication.

The El Paso County Department of Human Services (the Department) filed a dependency and neglect petition on behalf of N.S. The mother’s boyfriend was listed as respondent-father, and the child was placed with him. At a pretrial conference, the juvenile court found that the boyfriend had not been adjudicated the child’s legal father and therefore ordered genetic paternity testing. The juvenile court adjudicated N.S. dependent and neglected. The Department subsequently amended the petition to list A.C. as respondent-father. A.C. was confirmed to be the biological father through genetic paternity testing. Following a paternity hearing, the juvenile court adjudicated A.C. as the child’s legal father.

Boyfriend appealed and the Colorado Court of Appeals issued an order to show cause why his appeal should not be dismissed pursuant to the time frames of C.A.R. 3.4(b)(1). Boyfriend responded that his appeal was governed by C.A.R. 4(a). The court ordered the parties to brief (1) whether the notice of appeal was due within 21 days of the date of the final, appealable order under C.A.R. 3.4; and (2) whether the juvenile court had jurisdiction to issue the judgment of paternity in a dependency and neglect proceeding.

The court first concluded that the plain language of C.A.R. 3.4 shows that the rule does not apply to paternity actions. C.A.R. 4 does not list specific orders that are appealable, and in the absence of any limiting language, its 49-day time frame applied.

The court then stated that the juvenile court has exclusive original jurisdiction in dependency and neglect proceedings to determine parentage. But when a paternity issue arises in these proceedings, the juvenile court must follow the Uniform Parentage Act (UPA) procedures. Here, both presumptive fathers were parties to the proceeding, had actual notice that a legal finding of paternity was necessary, and did not object to the juvenile court deciding the matter. Accordingly, the juvenile court had subject matter jurisdiction under the UPA.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Any Relevance of Polygraph Examination Overly Prejudicial and Confusing to Jury

The Colorado Court of Appeals issued its opinion in People in Interest of G.E.S. on Thursday, December 15, 2016.

Dependency and Neglect—Sexual Abuse—Evidence—Psychosexual Evaluation—Polygraph Examination—Child Hearsay.

Father’s 12-year-old stepdaughter, J.O-E., made allegations of father’s inappropriate sexual behavior toward her to her therapist. She made additional allegations in a recorded forensic interview. Shortly thereafter, J.O-E. recanted her story. In the meantime, the family voluntarily cooperated with the Department of Human Services (Department) and followed the Department’s recommended safety plan, which required father to leave the family home and have no contact with his infant child G.E.S. or any of his three stepchildren. Father took a psychosexual evaluation, but because he refused to take a polygraph examination, the Department filed a dependency and neglect petition as to G.E.S. Father denied the allegations and requested a jury trial. At a pre-trial hearing, the court determined that J.O-E. was unavailable to testify, and at trial, admitted her hearsay statements without her testifying. The court also ruled that the probative value of evidence regarding the evaluation and polygraph refusal outweighed its prejudicial effect and allowed this evidence. After the jury returned its verdict, the court entered judgment adjudicating G.E.S. dependent and neglected.

On appeal, father contended that the district court erred in admitting evidence that he underwent a psychosexual evaluation and refused to undergo a polygraph examination. Under the Children’s Code, father had no duty to cooperate by completing a psychosexual evaluation and polygraph. Further, evidence of polygraph test results is per se inadmissible at an adjudicatory trial because they are not reliable. Here, the prejudicial impact of both the polygraph evidence and evidence of father’s partial cooperation with the Department’s request that he complete its evaluative processes required reversal.

Father also contended that the court erred in admitting J.O-E.’s hearsay statements. Under CRS § 13-25-129(1), an out-of-court statement made by a child describing an unlawful sexual offense, which would otherwise be inadmissible, is admissible if the court determines that (1) the time, content, and circumstances of the statements provide sufficient safeguards of reliability; and (2) the child either testifies at trial or is unavailable as a witness and there is corroborative evidence of the act that is the subject of the statements. Here, father did not challenge the court’s findings that the statements were reliable and that corroborative evidence supported J.O-E.’s statements. The Court of Appeals agreed with the district court that the Sixth Amendments’ Confrontation Clause does not extend to dependency and neglect cases, and the record supported the finding that J.O.-E. was not available to testify, because testifying would gravely harm her mental and emotional health. Thus, the court did not abuse its discretion in admitting J.O-E.’s hearsay statements.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.