December 16, 2017

Colorado Supreme Court: Juvenile Court Did Not Err in Failing to Make Written Finding of Dependency & Neglect

The Colorado Supreme Court issued its opinion in People in Interest of J.W. on Monday, December 11, 2017.

Children’s Code—Dependency or Neglect Proceedings—Jurisdiction.

The supreme court reviewed whether a juvenile court validly terminated a mother’s parent-child legal relationship without first entering a formal written order adjudicating her children as dependent or neglected. The juvenile court accepted mother’s admission that her children were neglected or dependent, but did not enter a formal order adjudicating the children’s status as to mother before it terminated mother’s parental rights approximately a year later. The court of appeals held that the juvenile court lacked jurisdiction to terminate mother’s parental rights because it had not entered an order adjudicating the children’s status as dependent or neglected.

The supreme court held that the juvenile court’s acceptance of mother’s admission established the children’s status as dependent or neglected, thus fulfilling the purpose of the adjudicative process and permitting state intervention into the familial relationship. The juvenile court’s failure to enter an adjudicative order confirming the children’s status did not divest the juvenile court of jurisdiction to terminate mother’s parental rights in this case, nor did it impair the fundamental fairness of the proceedings or deprive the mother of due process under the circumstances of this case. Accordingly, the court reversed the court of appeals’ judgment and remanded the case to the court of appeals to consider mother’s other contentions on appeal.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Fault-Based Grounds for Dependency and Neglect Must Be Proved as to Each Parent

The Colorado Court of Appeals issued its opinion in People in Interest of M.M. and P.M. III on Thursday, November 16, 2017.

Dependency and Neglect—No Fault—Summary Judgment.

The Fremont County Department of Human Services (Department) filed a dependency and neglect petition concerning M.M. and P.M. III. Mother admitted that the children were dependent and neglected. Although father did not dispute that the children were in an injurious environment and were without proper parental care through no fault of a parent, he denied the allegations in the petition against him and requested an adjudicatory trial before a jury. The Department moved to adjudicate the children dependent and neglected by summary judgment. The trial court granted summary judgment and adjudicated the children dependent and neglected.

On appeal, father asserted that the trial court erred in granting summary judgment. He contended that the facts concerning him were disputed, the remaining undisputed facts concerned only mother, and the children could not be adjudicated dependent and neglected simply because the Department established that mother was a danger to the children. There are four statutory grounds for adjudication, two of which require a showing of fault as to each parent. The undisputed facts established that, with respect to the “no-fault” grounds, C.R.S. § 19-3-102(1)(c) and (e), the children were dependent and neglected and the trial court properly granted summary judgment on those statutory grounds. With respect to C.R.S. § 19-3-102(1)(a) and (b), however, the material facts concerning father’s conduct were disputed and thus the trial court erred in granting summary judgment on those grounds.

The judgment was affirmed in part and reversed in part. The case was remanded for the trial court to amend the order of adjudication to reflect that the children were adjudicated dependent and neglected only under C.R.S. § 19-3-102(1)(c) and (e).

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Expert Witness Need Not Recite Exact Statutory Language for ICWA Finding

The Colorado Court of Appeals issued its opinion in People in Interest of D.B. on Thursday, November 2, 2017.

Dependency and Neglect—Indian Child Welfare Act—Termination—Expert Witness—Hearsay.

This dependency and neglect proceeding was governed by the Indian Child Welfare Act (ICWA). Mother’s parental rights were terminated after the trial court determined that continued custody of the child by one of the parents would likely result in serious emotional or physical damage to the child due to the parents’ extensive substance abuse, extensive domestic violence, lack of housing, and lack of income to meet the child’s needs.

On appeal, mother contended that the trial court erred in terminating her parental rights without testimony from a qualified expert witness that her continued custody of the child would likely result in serious emotional or physical damage to the child, as required by the ICWA. The ICWA provides that a court may only terminate parental rights if it determines that there is proof beyond a reasonable doubt that the child is likely to suffer serious emotional or physical damage if the child remains in the parent’s care. Such determination must be supported by evidence that includes testimony from qualified expert witnesses. The statute does not mandate, however, that an expert witness specifically opine that the child is likely to suffer emotional or physical damage in the parent’s custody. Rather, the expert testimony must constitute some of the evidence that supports the court’s finding of the likelihood of serious emotional or physical damage to the child. Here, although the expert witness’s testimony did not track the ICWA language, the record as a whole contains sufficient evidence, including testimony from a qualified expert witness, to support the trial court’s determination that the child would likely suffer serious emotional or physical damage if placed in mother’s care.

Mother also contended that the trial court erred in relying on inadmissible hearsay statements in the termination report to conclude that she had failed to maintain sobriety and that the child would thus likely suffer serious emotional or physical damage if he remained in her custody. The trial court, however, had access to other admissible evidence to support its determination that mother had failed to maintain sobriety. Further, this was not the sole basis to terminate mother’s parental rights.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Must Make Inquiry Into Whether Indian Child Welfare Act Applies in Dependency and Neglect Proceeding

The Colorado Court of Appeals issued its opinion in People in Interest of C.A. on Thursday, October 19, 2017.

Dependency and Neglect—Termination of Parental Rights—Indian Child Welfare Act Inquiry Provisions.

The Montrose Department of Health and Human Services (Department) initiated a dependency and neglect petition on behalf of C.A. At the initial hearing, the trial court asked the parties generally if the child was a Native American and if the child had any Native American heritage. Father said he did not, and mother offered no response. Father and mother were not represented by counsel at this time. The Department ultimately moved to terminate mother’s and father’s parental rights. The Department’s motion did not state the efforts the Department made to determine if C.A. is an Indian child and the trial court did not inquire on the record whether the child is an Indian child. Following a contested hearing, the trial court terminated parental rights and determined that the child was not subject to the Indian Child Welfare Act (ICWA).

On appeal, mother contended that the trial court did not comply with the ICWA’s inquiry provisions. The Colorado Court of Appeals concluded that when a trial court inquires at an initial temporary custody hearing at the commencement of a dependency and neglect proceeding whether there is a reason to know that a child is an Indian child, it must make another inquiry when termination is sought, at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Because the record did not show that the trial court made the proper inquiry at the termination proceeding, the case was remanded for the limited purpose of making the ICWA inquiry. The trial court was further directed to make appropriate findings and proceed accordingly with any actions necessary to comply with ICWA. In addition, court of appeals gave the parties detailed directions to take further actions, based on the trial court’s determination, within a specified timeframe.

Summary provided courtesy of Colorado Lawyer.

JDF Instruction Forms, Motion to Seal Criminal Records, and More Amended in September

The Colorado State Judicial Branch revised 19 JDF forms in September 2017. Most of the revised forms are instructions, but there were a few additional forms amended as well. PDFs of the revised forms are available here, and Word versions of the non-instruction forms are available on the State Judicial forms page.

DOMESTIC RELATIONS

  • JDF 1099 – “Instructions to File for a Dissolution of Marriage or Legal Separation if There Are No Children of This Marriage or the Children are Emancipated” (revised 9/17)
  • JDF 1100 – “Instructions to File Dissolution of Marriage or Legal Separation with Children of This Marriage” (revised 9/17)
  • JDF 1266 – “Instructions to File for a Dissolution or Legal Separation of Civil Union if There Are No Children of the Civil Union or the Children are Emancipated” (revised 9/17)
  • JDF 1267 – “Instructions to File for a Dissolution or Legal Separation of Civil Union with Children of This Civil Union” (revised 9/17)
  • JDF 1268 – “Instructions to File for a Declaration of Invalidity of Civil Union (Annulment)” (revised 9/17)
  • JDF 1399 – “Instructions to File a Motion or Stipulation to Modify or Terminate Maintenace (Spousal/Partner Support)” (revised 9/17)
  • JDF 1400 – “Instructions to File a Motion or Stipulation to Relocate Minor Children” (revised 9/17)
  • JDF 1403I – “Instructions to File a Motion or Stipulation to Modify Child Support” (revised 9/17)
  • JDF 1406I – “Instructions to File a Motion/Stipulation to Modify/Restrict Parenting Time” (revised 9/17)
  • JDF 1411 – “Instructions to File a Motion or Stipulation to Modify Custody or Decision-Making Responsibility” (revised 9/17)
  • JDF 1413 – “Petition for Allocation of Parental Responsibilities” (revised 9/17)
  • JDF 1413I – “Instructions for Allocation of Parental Responsibilities” (revised 9/17)
  • JDF 1524 – “Instructions to File a Motion to Modify or Set Aside Parentage” (revised 9/17)
  • JDF 1600 – “Instructions to File for a Declaration of Invalidity of Marriage (Annulment)” (revised 9/17)
  • JDF 1800 – “Instructions/Options to Enforce Orders” (revised 9/17)

CRIMINAL

  • JDF 476 – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Juvenile Adjudication or Disposition” (revised 9/17)
  • JDF 477 – “Motion to Seal Criminal Justice Records Pursuant to § 24-72-702.5, C.R.S.” (revised 9/17)
  • JDF 478 – “Order to Seal Criminal Justice Records Pursuant to § 24-72-702.5, C.R.S.” (revised 9/17)
  • JDF 611 – “Instructions to File a Petition to Seal Criminal Conviction Records Involving Controlled Substances and Petty Offenses and Municipal Violations” (revised 9/17)

For all of State Judicial’s JDF forms, click here.

Celebrate the 35th Anniversary of the Rocky Mountain Children’s Law Center on October 20

On Friday, October 20, 2017, the Rocky Mountain Children’s Law Center will host a celebratory gala in honor of its 35th anniversary. The Legacy Gala will feature a presentation by former Denver Broncos running back Reggie Rivers. There will also be an awards ceremony, a live auction, and a silent auction, in addition to dinner and cocktails. Sponsorship opportunities are available for the Legacy Gala, and the Rocky Mountain Children’s Law Center is accepting donations for the silent auction as well. To register for the event or to learn more about sponsorship, click here.

Colorado Court of Appeals: Payment Obligation Under Marital Agreement Terminates at Death of Either Party

The Colorado Court of Appeals issued its opinion in In re Estate of Williams on Thursday, September 7, 2017.

Dissolution of Marriage—Premarital Agreement—Separation Agreement—Maintenance—Estate.

Husband and wife executed a premarital agreement providing that husband would pay wife “during her lifetime” and wife would be entitled to receive from husband “during her lifetime” monthly payments on the filing of a petition for dissolution. In exchange for the monthly payments, wife waived maintenance. Husband and wife’s marriage ended in 1996, and husband consistently made monthly payments to wife under their separation agreement until his death. When husband’s estate refused to continue making the payments, wife filed the underlying action. The district court ruled that the premarital and separation agreements obligated the estate to continue making the monthly payments to wife until her death or remarriage. The court also awarded wife attorney fees and costs under the prevailing party provisions of the agreements.

On appeal, the estate contended that the district court erred in ruling that husband’s obligation under the premarital and separation agreements to make monthly payments to wife survived his death as an obligation of his estate. The premarital and separation agreements reflect agreement regarding the duration of the monthly payments relative to the life or marital status of the wife, but say nothing about what would happen on husband’s death. The separation agreement also released the parties and their estates from claims and demands. Therefore, husband’s personal obligation to pay ended when he died, absent a clear indication to the contrary, which neither the premarital nor separation agreement provided.

The estate also contended that the district court erroneously awarded wife attorney fees and costs and that it should have been awarded its own attorney fees under the prevailing party provisions of the agreements. The Colorado Court of Appeals agreed.

The order and judgments were reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: UCCJEA Required Trial Court to Conduct Further Inquiries Before Assuming Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of C.L.T. on Thursday, September 7, 2017.

Termination of Parental Rights—Dependency and Neglect—Jurisdiction—Uniform Child Custody Jurisdiction and Enforcement Act—Emergency Jurisdiction.

C.L.T., a child, was adjudicated dependent and neglected. Thereafter, the Denver Department of Health and Human Services moved to terminate the parental rights of mother and father, alleging that they had not complied with their treatment plans and that both of them were unfit parents. The trial court found that although reasonable efforts had been made to rehabilitate mother, her treatment plan had not been successful, she was not fit to parent the child, and she was not likely to become fit within a reasonable period of time. The court made similar findings regarding father. Then it terminated the parental rights of both mother and father.

On appeal, mother contended that the trial court lacked jurisdiction to terminate her parental rights because it failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). She argued that because a child welfare case remained open in Texas when the Colorado case was filed, the Colorado court could exercise only emergency jurisdiction unless and until it acquired ongoing jurisdiction under the UCCJEA. The information in the record, which was limited but contained at least some indication that the court may not have had the requisite jurisdiction, was insufficient to establish whether the trial court had jurisdiction to enter any order beyond the temporary emergency order.

The judgment was vacated, and the case was remanded for the trial court to undertake further inquiries about proceedings concerning the child in other states, confer with courts in other states as appropriate, and make express findings about its UCCJEA jurisdiction.

Summary provided courtesy of Colorado Lawyer.

Lawyers Run for Kids on October 1, 2017

Run for a good cause! The 2017 Hot Chocolate 5K/15K will take place on October 1, 2017. You can support the Rocky Mountain Children’s Law Center while you run — the Children’s Law Center arranged with Hot Chocolate to invite you, your business, and its clients to run in a fun and chocolate-filled race against other businesses in the Denver metro area. Join Lawyers Run for Kids with employees or clients to race against other businesses for bragging rights, all while making a difference in a child’s life.

The Children’s Law Center Lawyers Run for Kids lets you:

  • Create teams with your colleagues and build office camaraderie (we encourage professionals in all work
    sectors and industries to participate!)
  • Invite your clients to join you for a fun, relationship-building event
  • Race against other businesses for fabulous prizes – there’s more than one way to win!
  • Run with your friends and make a tax-deductible donation through your sponsorship to help the kids we serve!

Perks for you:

  • Every runner will receive a Lawyers Run for Kids tech t-shirt, with all teams business logos on back of shirt
  • Hot Chocolate Swag including a soft, tech-fabric pullover, goodie bag, chocolate medal and finish line hot chocolate fondue and dippers
  • Children’s Law Center prizes for fastest (and slowest) male, female and coed teams as well as an elite prize for the firm with the most teams
  • Prominent recognition via: Law week Colorado post-race color ad, Children’s Law Center social media platforms, website, & quarterly newsletter
  • Special rates for government employees, non-profit employees, and CLC Junior Board members!

Registration information is available here. Register individuals and teams by September 13 in order to have your logo printed on the Lawyers Run for Kids shirt. Click here to register, and use coupon code MTQJYBFMQP to have your registration completed by the Children’s Law Center.

JDF Forms in All Categories Amended by State Judicial

The Colorado State Judicial Branch has been amending its JDF forms in August. To date, there are 246 forms with an August revision date, including forms in every major category.

The JDF forms are being revised to include the following language:

□ By checking this box, I am acknowledging I am filling in the blanks and not changing anything else on the form.
□ By checking this box, I am acknowledging that I have made a change to the original content of this form.
(Checking this box requires you to remove JDF number and copyright at the bottom of the form.)

For a complete list of the Colorado State Judicial Branch’s JDF forms, including those with August 2017 revision dates, click here.

Discovering Discovery: Building Your Case, Deposition Tips, Expert Witnesses, and More

“Reduced to its essence, discovery is the process of identifying, collecting, producing and/or receiving relevant, nonprivileged materials in connection with pending or reasonably foreseeable litigation. With the advent of notice pleading, civil discovery provides access to the relevant information that litigants and their counsel require to make informed decisions about the merits of their case and the potential for settlement.” -Magistrate Judge Craig B. Shaffer

Discovery is a crucial component of every litigation case. In the last 10 years, civil litigation has changed significantly. The proliferation of electronic data and new rules on both the state and federal level create increasingly difficult challenges for preserving, managing, and producing electronically stored information. Conducting discovery outside Colorado has become mainstream as civil litigation has become more national—even global.

This Friday, CBA-CLE will debut the newest title in our litigation library, Discovery in Colorado, at a full-day program, “Discovering Discovery.” Discovery in Colorado is a practical guide to discovery that brings to life the application of the Colorado and Federal Rules of Civil Procedure governing the discovery process. Discovery in Colorado was written by a variety of different practitioners, overseen by Magistrate Judge Nina Y. Wang and Natalie Hanlon Leh, Esq. Attorneys and judges with backgrounds in private, in-house, and government practice authored individual chapters.

Learn different approaches to discovery and hear distinct perspectives from some of the most experienced trial attorneys and judges in Colorado. Each class attendee receives Discovery in Colorado, 1st Edition, as course materials. Explore the ever-changing state of discovery through this valuable course and companion book. Register using the links below, or call (303) 860-0608.

 

CLELogo

CLE Program: Discovering Discovery

This CLE presentation will occur on Friday, July 28, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 8:30 a.m. to 4:45 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — Video OnDemandMP3 Audio

Colorado Court of Appeals: Laches is Available as Defense to Long-Overdue Maintenance Award

The Colorado Court of Appeals issued its opinion in In re Marriage of Kann on Thursday, July 13, 2017.

Post-Dissolution of Marriage—Laches as a Defense to Collection of Spousal Maintenance Arrearages and Interest—Implied Waiver and Estoppel.

A decree of dissolution of marriage between husband and wife was entered in 1989. Husband agreed to pay wife lifetime maintenance of no less than $1,200 per month. In the event of breach, the prevailing party would be entitled to recover costs, expenses, and reasonable attorney fees. For the next 26 years, husband never paid maintenance and wife never asked him to do so.

In 2015, wife retained counsel and sought entry of judgment for $520,636.32—$289,200 in unpaid maintenance and $231,436.32 in interest. She also requested a maintenance modification if the court did not award her the full judgment. Husband raised the affirmative defenses of waiver, estoppel, and laches. He also requested that the court terminate his maintenance obligation if it awarded wife the full judgment. The trial court (1) concluded that husband was required to pay maintenance under the decree; (2) held that Colorado law does not recognize the laches defense; (3) found that husband had failed to meet his burden of proof on the waiver and estoppel defenses; and (4) enforced the full judgment against him. The court also decreased the maintenance going forward to $800 per month and awarded wife attorney fees as the prevailing party under the separation agreement.

On appeal, husband argued that he should have been able to raise laches as a defense. While a novel issue in Colorado, courts have addressed the issue as to child support and child support combined with maintenance. Based on these cases, the court of appeals concluded that laches is available as an affirmative defense when a party seeks maintenance arrearages as well as the interest on those arrearages. The court remanded for the trial court to reconsider the full scope of the laches defense on the existing record.

Husband also challenged the rejection of his implied waiver and estoppel defenses. The record supports the trial court’s rejection of husband’s waiver argument. As to estoppel, husband asserted that he proved all four elements. The trial court rejected this defense, finding that (1) husband understood his obligation to pay maintenance; (2) wife never told him that he did not have to pay; and (3) husband did not detrimentally rely on wife’s assertion that she would not collect maintenance. The court found no basis on which to disturb the trial court’s rejection of the estoppel defense.

Husband further argued that it was error to modify rather than terminate his maintenance obligation. The court could not resolve this issue because the propriety of the trial court’s order will depend whether it awards the wife none, part, or all of her request for maintenance arrearages plus interest.

The portions of the trial court’s order rejecting husband’s laches defense, awarding attorney fees to wife as the prevailing party, and modifying husband’s maintenance obligation were reversed. The case was remanded for the court to consider whether laches bars wife’s entitlement to maintenance interest or arrearages and, based on this determination, to then reconsider the maintenance and attorney fee awards as well as wife’s claim for appellate attorney fees. In all other respects the order was affirmed.

Summary provided courtesy of The Colorado Lawyer.