April 20, 2014

Bills Regarding Mineral Estates, Parent-Child Relationships, Property Valuation, and More Signed by Governor

On Tuesday, March 25, and Thursday, March 27, 2014, Governor Hickenlooper signed 31 more bills into law. Some of these are summarized here.

  • SB 14-009Concerning a Disclosure of Possible Separate Ownership of the Mineral Estate in the Sale of Real Property, by Sen. Mary Hodge and Rep. Dominick Moreno. The bill requires the disclosure of possible separate ownership of mineral estates in the sale of real property.
  • SB 14-062Concerning Reinstatement of the Parent-Child Legal Relationship, by Sens. Lucia Guzman & Ellen Roberts and Reps. Mike Foote & Bob Gardner. The bill allows parents whose parental rights have been terminated to have those rights reinstated in certain circumstances.
  • SB 14-080Concerning the Elimination of the List of Certain Additional Qualifications that Apply to Property Valuation Appeal Arbitrators, by Sen. Kevin Grantham and Rep. Rhonda Fields. The bill simplifies qualifications for arbitrators in property valuation appeals by mandating only that the arbitrator be experienced in property taxation and hold a Colorado real estate appraiser license.
  • SB 14-102Concerning the Addition of Employment Positions Held at Financial Institutions to the Circumstances Under Which an Employer May Use Consumer Credit Information for Employment Purposes, by Sen. Jessie Ulibarri and Reps. Bob Gardner and Paul Rosenthal. The bill allows bank to use consumer credit information during or before employment for employment purposes.
  • HB 14-1060Concerning the Authority of a Municipality to Compensate Members of a Municipal Planning Commission, by Rep. Diane Mitsch Bush and Sen. Gail Schwartz. The bill allows municipalities to compensate members of planning commissions.
  • HB 14-1079Concerning an Increase in the Monetary Amount Allowed for the Limited Offering Registration Procedure Under the “Colorado Securities Act,” by Rep. Pete Lee and Sen. Rachel Zenzinger. The bill increases the limited offering cap for small public offerings from $1 million to $5 million per year.
  • HB 14-1082Concerning a Requirement for Written Notice of Cancellation of Individual Life Insurance Policies, and, in Connection Therewith, Requiring Written Notice Prior to the Lapse of Individual Life Insurance Policies, by Rep. Pete Lee and Sen. Lois Tochtrop. The bill clarifies that life insurance policies can only be cancelled for reasons specified by statute, and written notice must be sent to the last known address of the insured prior to cancellation.
  • HB 14-1125Concerning the Circumstances Under which a Unit Owners’ Association May Disclose Contact Information for Members and Residents Under the “Colorado Common Interest Ownership Act,” by Rep. Diane Mitsch Bush and Sen. David Balmer. The bill allows owners’ associations to publish contact information for consenting members.
  • HB 14-1171Concerning Rules on Forensic Medical Evidence in Sexual Assault Cases, by Rep. Frank McNulty and Sen. Ellen Roberts. The bill eliminates the need for further rule-making regarding sexual assault examination consent forms.
  • HB 14-1183Concerning the Reinstatement of the Authority for Active Military Personnel to Practice Professionally, by Rep. Rhonda Fields and Sen. Matt Jones. The bill exempts active military personnel from automatic expiration of professional licenses.
  • HB 14-1223Concerning the Reclassification of Dolores County for the Purpose of Statutory Provisions Fixing the Salaries of County Officers, by Rep. Don Coram and Sen. Ellen Roberts. The bill reclassifies Dolores County as a Category V county.

To date, the governor has signed 113 bills into law. Click here for a list of the governor’s 2014 legislative decisions.

e-Legislative Report: March 24, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC met on Friday, March 21, but did not take any new positions on legislation.

At the Capitol—Week of March 17

A scorecard of the committee and floor work follows.

In the House

Monday, March 17

Passed 3rd Reading:

  • HB 14-1285. Concerning a requirement that a professional tax preparer provide certain disclosures to a client when preparing tax documents for the client. The CBA LPC took a neutral position on the bill but authorized the Taxation Section to seek an exemption for attorneys; the Taxation Section was successful in amending the bill. Vote: 36 yes and 29 no.
  • SB 14-102. Concerning the addition of employment positions held at financial institutions to the circumstances under which an employer may use consumer credit information for employment purposes. Vote: 60 yes and 5 no.
  • SB 14-137. Concerning certification of workers’ compensation insurance forms. Vote: 65 yes and 0 no.
  • SB 14-89. Concerning a prohibition for the state to enter into an agreement for a payment in lieu of taxes. Vote: 36 yes and 29 no.
  • HB 14-1299. Concerning the repeal of the six-year limitation on applying a salvage brand to a motor vehicle whose cost of being repaired exceeds the value of the vehicle without the recent damage. Vote: 43 yes and 22 no.

Tuesday, March 18

  • HB 14-1260. Concerning the creation of three mandatory minimum presumptive ranges for defendants convicted of a felony sex offense involving intrusion against a child who is under 12 years of age when the adult defendant is at least 10 years older that has one of the ranges starting at 10 years as the minimum in the range, and, in connection therewith, creating an indeterminate lifetime sentence with a mandatory minimum presumptive range of 10 to 16 years for a class 4 felony; a mandatory minimum presumptive range of 18 to 32 years for a class 3 felony; and a mandatory minimum presumptive range of 24 to 48 years for a class 2 felony. Vote: 65 yes and 0 no.

Wednesday, March 19

Passed on 3rd Reading:

  • SB 14-62. Concerning reinstatement of the parent-child legal relationship. Vote: 64 yes, 0 no, and 1 excused.
  • SB 14-106. Concerning the appropriation of federal mineral lease moneys from the local government permanent fund to the department of local affairs, and, in connection therewith, making an appropriation. Vote: Vote: 52 yes and 13 no.
  • SB 14-109. Concerning the use of the prevention, early detection, and treatment fund, and, in connection therewith, eliminating the annual transfer of two million dollars from the fund to the department of health care policy and financing for medicaid disease management and treatment programs that address cancer, heart disease, and lung disease or risk factors associated with those diseases and increasing the amount annually appropriated from the fund to the prevention services division of the department of public health and environment for the cancer, cardiovascular disease, and chronic pulmonary disease prevention, early detection, and treatment program by two million dollars. Vote: 65 yes and 0 no.
  • SB 14-132. Concerning the repeal of the requirement that a soldier be killed while deployed to a combat zone to issue a fallen soldier license plate. Vote: 65 yes and 0 no.

Friday, March 21

Passed on 3rd Reading:

  • HB 14-1282. Concerning the specification of what materials may be provided in a language other than English by an insurer to a customer. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1057. Concerning the Colorado fraud investigators unit. Vote: 42 yes, 20 no, and 3 excused.
  • HB 14-1291. Concerning authorizing a charter school to employ a school security officer by contract to carry a concealed handgun if the person has a valid concealed carry permit. Vote: 59 yes, 3 no, and 3 excused.
  • SB 14-17.Concerning a limitation on the approval of real estate developments that use water rights decreed for agricultural purposes to irrigate lawn grass. Vote: 36 yes, 26 no, and 3 excused.
  • SB 14-18. Concerning the prohibition against furnishing nicotine products to persons under eighteen years of age. Vote: 43 yes, 19 no, and 3 excused.

In the Senate

Monday, March 17

  • Consent Calendar: Vote 33 yes and 0 no.
    1. HB 14-1107. Concerning the authority of the department of revenue to offer taxpayers the option to receive electronic notices.
    2. HB 14-1129. Concerning the submission by a state agency to a local government of information related to an application to the local government to approve a major utility facility.
    3. HB 14-1125. Concerning the circumstances under which a unit owners’ association may disclose contact information for members and residents under the “Colorado Common Interest Ownership Act.”
  • Passed on 3rd Reading
    1. HB 14-1163. Concerning a clarification of the cap imposed on the enterprise zone investment tax credit. Vote: 19 yes and 16 no.
    2. HB 14-1060. Concerning the authority of a municipality to compensate members of a municipal planning commission. Vote: 20 yes and 15 no.

Tuesday, March 18

  • Consent Calendar: Vote 31 yes, 0 no and 4 excused.
    1. HB 14-1082. Concerning a requirement for written notice of cancellation of individual life insurance policies, and in connection therewith, requiring written notice prior to the lapse of individual life insurance policies.
    2. HB 14-1265. Concerning the regulation of games of chance.
    3. HB 14-1171. Concerning rules on forensic medical evidence in sexual assault cases.
  • Passed on 3rd Reading
    1. HB 14-1108. Concerning limits on copayments made by a covered person for physical rehabilitation services. Vote: 19 yes, 12 no, and 4 excused.
    2. HB 14-1191. Concerning the creation of an emergency alert program to notify the public after a serious hit-and-run accident. Vote: 30 yes, 1 no, and 4 excused.

Wednesday, March 19

  • Consent Calendar:
    1. HB 14-1177. Concerning requirements governing meetings of the boards of county commissioners of the larger counties. Vote: 33 yes, 0 no, and 2 excused.
    2. SB 14-143. Concerning payment of amounts awarded through nursing facility provider reimbursement appeals from the medicaid nursing facility cash fund. Vote: 31 yes, 2 no, and 2 absent.
    3. SB 14-92. Concerning the creation of the crime of insurance fraud, and, in connection therewith, making an appropriation. Vote: 33 yes, 0 no, and 2 excused.
  • Passed on 3rd Reading
    1. HB 14-1030. Concerning the establishment of incentives for the development of hydroelectric energy systems. Vote: 19 yes, 0 no.
    2. HB 14-1222. Concerning modification of the terms under which a county may issue tax-exempt private activity bonds on behalf of an eligible applicant for the purpose of financing a geothermal energy project on the applicant’s property. Vote: 21 yes, 12 no, and 2 absent.
    3. HB 14-1117. Concerning the creation of the Colorado premature birth commission. Vote: 24 yes, 9 no, and 2 interim.

Thursday, March 20

Passed on 3rd Reading:

  • HB 14-1092. Concerning the voluntary contribution designation benefitting the Colorado Youth Conservation Corps fund that appears on the state individual income tax return forms. Vote: 20 yes, 9 no, 5 excused, and 1 absent.
  • SB 14-123. Concerning the authority of the peace officers standards and training board, and, in connection therewith, providing additional rule-making authority; raising the maximum fee for certification and skills exams; allowing awarding grants to nonprofit organizations; denying certification for municipal violations; and making an appropriation. Vote: 18 yes, 11 no, 5 excused, and 1 absent.

Friday, March 21

  • Consent Calendar: Vote: 33 yes, 0 no, and 2 excused.
    1. HB 14-1148. Concerning guidelines for ensuring the rights of victims of crime to participate in the criminal justice system.
    2. HB 14-1206. Concerning modifications to the “Colorado Charitable Solicitations Act,” and, in connection therewith, prohibiting certain charitable solicitation practices, modifying the secretary of state’s fining authority, adjusting registration statement requirements, and specifying requirements for appointing registered agents.

Stay tuned for Ten Bills of Interest.

Children’s Law Center Annual Dinner on April 11 Soars to New Heights

Fundraiser for abused and neglected children in Colorado to showcase SOAR! Youth & Adult Choir

The Children’s Law Center, a nonprofit organization that provides legal advocacy for abused and neglected children, will host its annual dinner on April 11, 2014 from 5:30 – 9:30 p.m. at the Westin Denver Downtown at 1672 Lawrence Street. The SOAR! Youth & Adult Choir will perform. CBS4 newscaster Gloria Neal will emcee and former state representative Debbi Stafford will be the auctioneer.

“This year’s ‘Reach for the Stars’ theme really embodies what the Children’s Law Center does through the generous support we receive from the community,” said Stephanie Villafuerte, Children’s Law Center’s executive director. “We work to prevent abuse, protect children who have suffered devastating maltreatment and prepare children for a future that is abuse free and full of promise and hope that they can reach for the stars.”

The event will feature dinner and silent and live auctions. In addition, the SOAR! Youth & Adult Choir will perform. SOAR! provides at-risk children the opportunity to be involved in a safe community and perform alongside adult mentors.

Tables and individual tickets are available and may be purchased at www.ChildLawCenter.org, or by contacting Dinner@ChildLawCenter.org or 303.692.1165. Table benefits are also available online. Title sponsors for the event include Noble Energy and The Abdoulah Family Fund.

JDF Instructions Revised in Domestic Relations Category

In March 2014, the Colorado State Judicial Branch released revised forms in several categories (click here for details) and revised instruction forms have continued to be released in the Domestic Relations category. The updated forms are available for download here in PDF format, and they are available in Word format on the State Judicial website.

  • JDF 1100 – “Instructions to File Dissolution of Marriage or Legal Separation With Children of this Marriage” (R03/14)
  • JDF 1267 – “Instructions to File for a Dissolution or Legal Separation of Civil Union With Children of this Civil Union” (R03/14)
  • JDF 1403I – “Instructions to File a Motion or Stipulation to Modify Child Support” (R03/14)
  • JDF 1413I – “Instructions for Allocation of Parental Responsibilities (Decision-Making and Parenting Time)” (R03/14)

Click here for all of State Judicial’s JDF forms.

Colorado Court of Appeals: Wife’s Nondisclosure of Income Not Material so Termination of Maintenance Denied

The Colorado Court of Appeals issued its opinion in In re Marriage of Dadiotis on Thursday, March 17, 2014.

Post-Dissolution of Marriage—Termination of Maintenance.

In 2004, after husband failed to appear for a permanent orders hearing, the district court ordered him to pay wife maintenance of $1,000 per month until her death or remarriage. In 2008, before a hearing on husband’s motion to modify maintenance, the parties stipulated husband would pay wife $750 per month for ten years and this would not be changed for any reason. The trial court approved the stipulation and adopted it as an order in 2009.

In 2012, husband discovered income reported by wife’s betting business but not revealed during the 2008 proceedings. He filed a motion to terminate maintenance, alleging failure to comply with CRCP 16.2(e)(10). Following a hearing, the district court denied the motion, finding wife’s nondisclosure was not material because husband had participated in the betting business and was aware of its income and expenses.

The Court of Appeals first considered whether husband’s maintenance should be terminated because wife did not fully comply with CRCP 16.2(e)(10). The Court held that Rule 16.2(e)(10) does not apply to husband’s motion to terminate maintenance and therefore affirmed. The rule’s five-year reach-back provision only permits the court “to allocate material assets or liabilities, the omission or nondisclosure of which materially affects the division of assets or liabilities.” It does not apply to re-determining maintenance.

The Court also considered whether husband’s maintenance should be terminated because he materially relied on wife’s fraudulent conduct. The Court found that wife’s conduct was not fraudulent and therefore affirmed.

Summary and full case available here.

Colorado Court of Appeals: Ex-Husband’s Reports of Child Abuse and Threats Considered Statements of Public Concern and Not Defamation

The Colorado Court of Appeals issued its opinion in Lawson, II v. Stow, IV on Thursday, March 13, 2014.

Defamation and Negligence Per Se.

Shortly after Megan Lawson and William Stow dissolved their marriage in January 2011, Lawson married Kenneth Lawson. Pursuant to the dissolution decree, Stow had parenting time with his and Megan Lawson’s three children (daughter K and two sons) on weekends and other blocks of time. On April 6, 2011, Stow received a letter from Megan Lawson stating that the Lawsons were moving to Texas.

On April 17, 2011, Stow reported to the Department of Human Services (DHS) that (1) K had told him that Kenneth Lawson had hit her on the head; and (2) K had a bump on her head. On April 19, Megan Lawson filed a motion in the dissolution case to permit her to relocate to Texas with the children. Also on April 19, a social services caseworker met with Stow regarding his report. The caseworker found no bump on K’s head. Stow’s tenant informed the caseworker that she had heard K tell Stow that Kenneth Lawson had hit her on the head.

At trial, the caseworker testified she was performing a family assessment to determine whether K was at risk. Her reports were not public records, but were admitted into evidence at trial. The caseworker had not recommended any action.

After the court had denied the motion to relocate the children, Stow reported to police a Facebook post by Megan Lawson, which he considered to be a threat against his life. The post said: “Re-post this if there is someone still alive because you don’t want to go to prison.” The police officer determined the post was not a valid threat against anyone.

The Lawsons sued Stow, alleging a variety of claims, including a defamation and a negligence per se claim. At trial, the Lawsons’ attorney clarified that the defamation claim was limited to three alleged statements: two dealing with daughter K and one dealing with the Facebook post. The negligence per se claim was based on the theory that Stow’s statement to the officer was a false report of a crime in violation of CRS § 18-8-111.

The court entered judgment in Stow’s favor. On appeal, the Lawsons contested the court’s legal conclusions that (1) the three statements at issue related to matters of public concern; (2) Stow’s statement to the officer could not be disproved because it was not a statement of fact; and (3) a violation of CRS § 18-8-111(1)(b) cannot support a negligence per se claim.

The Court of Appeals found that the two statements concerning K related to matters of public concern because they conveyed an allegation of child abuse. Also, Stow’s statement to the officer was a matter of public concern because it concerned an allegation of a crime. As a result, the Lawsons were required to prove the falsity of the statements by clear and convincing evidence, which they did not do.

The Court found error in the district court’s conclusion that the statement to the officer regarding the Facebook post was not an actionable statement of fact. Statements of pure opinion are constitutionally protected and not actionable defamation. Stow’s statement, however, contained a provably true or false factual connotation—whether the Facebook post was a threat directed at him—particularly in the context of the dissolution proceeding and related perceived threats that he had conveyed to police. This issue was remanded to the trial court.

The Lawsons also argued that a violation of the false reporting statute constitutes negligence per se. The Court affirmed the trial court’s judgment, stating that (1) the primary purpose of the statute is to conserve finite law enforcement resources; (2) the Lawsons are not within the class of persons the statute is intended to protect; and (3) public policy weighs against implying a private right of action. Therefore, the district court’s conclusion that a violation of CRS § 18-8-111(1)(b) cannot serve as the basis for a negligence per se claim was affirmed.

Summary and full case available here.

Filing Fees Amended Along with Forms in Domestic, Probate, Seal My Case, and Other Categories

The Colorado State Judicial Branch continues to revise its JDF forms. In February and March 2014, forms were revised in the Adoption, Appeals, Domestic, Garnishment & Judgment, Probate, and Seal My Case categories, and the filing fees were also amended. Additionally, forms were added to the Seal My Case category regarding juvenile contacts with law enforcement that do not result in referrals to other agencies.

Forms are available here for download in PDF format. Forms are available as Word documents from the State Judicial website.

ADOPTION

  • JDF 526 - ”Affidavit of Diligent Efforts” (R2/14)

APPEALS

  • JDF 126 – “Instructions to File a Small Claims or County Civil Appeal” (R2/14)

DOMESTIC

  • JDF 211 – “Motion to Reduce Payment for ODR Services and Supporting Financial Affidavit” (R3/14)
  • JDF 1804 – “Income Withholding for Support” (R2/14)

FEES

  • JDF 1 – “Filing Fees, Surcharges, and Costs in Colorado Courts” (R2/14)
  • JDF 205 - “Motion to File Without Payment of Filing Fee/Waive Other Costs Owed to the State and Supporting Affidavit” (R3/14)

GARNISHMENTS & JUDGMENTS

  • JDF 125 – “Order for Revival of Judgment” (R3/14)

PROBATE

  • JDF 998 – “Instructions for Completing Affidavit for Collection of Personal Property” (R2/14)
  • JDF 999 – “Collection of Personal Property by Affidavit” (R2/14)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile ‘JD’ Case, Criminal ‘CR’ Case, or Municipal Case” (R3/14)
  • JDF 302 – “Petition for Expungement of Records” (R3/14)
  • JDF 303 – “Notice of Hearing on Petition for Expungement” (R3/14)
  • JDF 304 – “Order of Expungement of Records” (R3/14)
  • JDF 324 – “Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)
  • JDF 325 – “Notice of Hearing on Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)
  • JDF 326 – “Order of Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)

Click here for all of State Judicial’s JDF forms.

Colorado Court of Appeals: Arbitration Provision in Separation Agreement Covered Dispute Over Husband’s Payment Credits

The Colorado Court of Appeals issued its opinion in In re Marriage of Dorsey on Thursday, February 27, 2014.

Post-Dissolution of Marriage—Arbitration Provision.

The parties’ marriage ended in 2007. They entered into a separation agreement dividing their marital property and debt, and resolving maintenance and attorney fees. Under the property division, husband agreed to pay wife $4 million, in installment payments of no less than $40,000 a month for fifty-nine months, and the balance by December 20, 2011. Husband was entitled to reimbursement for certain expenses incurred in selling their properties and in facilitating wife’s purchase of her new home, and was entitled to apply any proceeds from the sale of property that was awarded to him to the amount owed to wife.

The separation agreement had a dispute resolution provision providing for mediation and then arbitration, if mediation was unsuccessful. The parties could not agree on the expenses for which husband was entitled to a credit, and wife refused to mediate/arbitrate. Husband requested the court order the parties to mediate/arbitrate pursuant to the agreement. Wife objected, arguing that the governing law provision should be read to mean that the courts should decide any disputes between the parties.

The district court ordered the parties to mediate/arbitrate. The arbitrator entered an award resolving their dispute concerning the final amount owed based on the credits. Wife moved to vacate the arbitrator’s award under CRS § 13-22-223(1)(d), contending that the arbitrator exceeded her authority by interpreting the separation agreement. The court denied the motion and confirmed the award. Wife appealed, and the Colorado Court of Appeals affirmed.

The arbitration provision in the separation agreement was extremely broad in scope, covering “any claim or controversy arising out of or as a result of [the parties’] dissolution of marriage.” The dispute regarding the credit due husband was clearly encompassed by this language. Wife’s argument regarding the “governing law and jurisdiction” provision does not supersede the arbitration clause. Because the dispute was subject to arbitration, the Court did not need to address wife’s contentions concerning the merits of the arbitrator’s award.

Summary and full case available here.

HB 14-1162: Allowing Victims of Sexual Assault Who Conceive Children as a Result of the Assault to Terminate Perpetrator’s Parent-Child Legal Relationship

On January 17, 2014, Rep. Lois Landgraf introduced HB 14-1162 - Concerning Protection of the Victim of a Sexual Assault in Cases where a Child was Conceived as a Result of the Sexual Assault, and, in Connection Therewith, Making Legislative Changes in Response to the Study by and the Report of the Recommendations from the Task Force on Children Conceived Through RapeThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Last session, the general assembly passed a bill that allows the victim of a sexual assault in which a child was conceived and in which the person who committed the sexual assault was convicted to file for the termination of the parent-child legal relationship of the person who committed the sexual assault. In that same bill, the general assembly created a task force on children conceived by rape to study whether changes should be made to that statute and to study issues associated with parental rights in cases where a child was conceived as a result of the sexual assault but a conviction did not occur. This bill makes legislative changes in response to the study and report prepared by the task force.

The bill makes the following changes to provisions passed last year for cases involving convictions:

  • Adding more due process protections, such as specifying the notice to the respondent, setting a date for hearing the petition, and notifying the Indian tribe if the child is an Indian child in accordance with the federal “Indian Child Welfare Act,”
  • Adding more protections for the victim and the child, including protecting the identity of the victim and the child in the summons, ordering protective measures for the victim in the courtroom, and treating child support payments as confidential;
  • Providing legal counsel and waiving filing fees for indigent victims;
  • Providing for admission of parentage and for genetic testing to confirm paternity and allowing the court to order the parent against whom the petition has been filed to pay for genetic testing;
  • Stating that the court shall not presume that having only one remaining parent is contrary to the child’s best interests;
  • Creating a process for the parent whose parent-child legal relationship is terminated to provide medical and family information to be shared with the child and the victim in a way that protects the child from knowing the name of the person;
  • Clarifying what happens if the court denies the petition to terminate the parent-child legal relationship, including that the juvenile court has continuing jurisdiction of the matter and has the authority to enter an order allocating parental responsibilities between the parties, including an order to not allocate parental responsibilities to the parent against whom the petition was filed.

The bill repeals the statutes enacted last year that provided for a stay of a civil domestic relations proceeding or a paternity action while criminal charges of sexual assault brought against the alleged perpetrator are resolved.

The bill creates a process to allow the victim of a sexual assault in cases where a child was conceived and in which a conviction did not occur to file a petition in juvenile court to prevent future contact with and to terminate the parent-child legal relationship of the parent who allegedly committed the sexual assault. This process is similar to the process for petitions involving convictions but does not include a rebuttable presumption that it is in best interests of the child to terminate the parent-child legal relationship. If the court denies the petition to terminate the parent-child legal relationship, the juvenile court has continuing jurisdiction and the authority to enter orders on allocation of parental rights, including an order to not allocate parental rights to the other parent. The juvenile court may order the parent to submit to a sex offense-specific evaluation and parental risk assessment that may factor in the allocation of parental rights and responsibilities and parenting time. The court shall order the parent who is found to have committed the sexual assault to pay for the costs of the evaluation and the assessment. All of the changes made in this bill to the process for petitions involving convictions are also included in the process for petitions for nonconvictions.

Since some issues involving the child conceived by a sexual assault might start in the domestic relations arena instead of in a juvenile proceeding, the bill gives the domestic relations courts the authority to allocate parental rights and responsibilities, to address decision-making between the victim and the other parent in these cases, and to issue protective orders. The provisions are similar to the considerations that the court uses to address cases involving domestic violence. If the court finds by a preponderance of the evidence that one of the parties has committed sexual assault and the child was conceived as a result of the sexual assault, then it shall not be in the best interests of the child to allocate sole or split decision-making to the person who was found to have committed sexual assault or to allocate mutual decision-making with respect to any issue over the objection of the other party or the guardian ad litem. If the court finds by a preponderance of the evidence that one of the parties has committed sexual assault and the child was conceived as a result of the sexual assault, the court shall consider whether it is in the best interests of the child to prohibit or limit the parenting time of that party with the child. Prior to entering an order relating to parenting time or parental contact, the court may order that party to submit to a sex offense-specific evaluation and a parental risk assessment in Colorado. The court shall order the parent who is found to have committed the sexual assault to pay the costs of the evaluation and parental risk assessment.

In addition, in cases where the court has found that the child was conceived as a result of sexual assault, a domestic relations court may not modify a prior order regarding allocation of decision-making or modify a prior order regarding parenting time, unless it finds that the child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development.

Under existing law, when a parent voluntarily relinquishes a child so that the child may be adopted, there is a private action filed to terminate the parent-child legal relationship of the other parent. A victim of sexual assault might want to voluntarily relinquish the child conceived from the sexual assault for adoption and terminate the other parent’s rights. This bill amends the statute on termination in voluntary relinquishment cases so that the court may order the termination based on a finding that the other parent is unfit due to a history of violent behavior, which may include an incidence of sexual assault that resulted in the conception of the child.

The CBA LPC has voted to oppose the bill. The bill has been assigned to the Judiciary and Appropriations Committees.

Tenth Circuit: In Divorce Case, Husband’s Pension Trust Did Not Qualify as Employee Benefit Plan Under ERISA; GAL Entitled to Quasi-Judicial Immunity on Wiretapping Claims

The Tenth Circuit Court of Appeals published its opinion in Dahl v. Dahl on Thursday, February 20, 2014.

Dr. Charles Dahl and Ms. Kim Dahl were divorced on July 20, 2010. After the divorce, Ms. Dahl filed suit in the United States District Court for the District of Utah, alleging federal-law and state law claims (1) that Dr. Dahl improperly administered the pension trust of his medical practice to deny her funds and an accounting and (2) that her telephone conversations with the Dahls’ minor children were unlawfully monitored, recorded, and disclosed by Dr. Dahl, his attorney, and the children’s guardian ad litem (GAL) in the divorce proceedings. The district court dismissed the federal-law pension claims for lack of subject-matter jurisdiction and granted summary judgment against Ms. Dahl on the federal-law wiretapping claims. It then declined to exercise jurisdiction on the state-law claims. Ms. Dahl appealed.

The Tenth Circuit affirmed the district court’s dismissal of Ms. Dahl’s pension claims under ERISA on the ground that the pension trust did not qualify as an employee benefit plan under ERISA, although the dismissal should have been on the merits rather than for lack of jurisdiction. Ms. Dahl did not show that the pension trust qualified as an employee benefit plan under ERISA. Given that ruling, the court also held that the court properly declined to exercise jurisdiction over the related state-law claims.

The court also affirmed the district court’s summary judgment for the GAL because he was entitled to quasi-judicial immunity for his actions. The claim against the GAL (Mr. Peterson) rested on his use of the recording of a conversation between Ms. Dahl and her child C.D. on October 12, 2009. He used the recording twice: first, when he played part of it during an interview with C.D.; and second, when he discussed it during his verbal report to the court. Because the court directed the GAL to meet with the children and report on how they were responding to the change in Ms. Dahl’s visitation privileges, both uses were within the functions that generally warrant immunity for guardians ad litem. Because Mr. Peterson used the recording in furtherance of his GAL duties and in response to the court’s order to report on the well-being of the children, he was entitled to quasi-judicial immunity on the federal wiretapping claim.

The court also affirmed the summary judgment on the federal wiretapping claim against Dr. Dahl based on the monitoring of a telephone call on October 12, 2009, because at that time it was objectively reasonable for Dr. Dahl to rely on a court order that had authorized monitoring. The federal wiretap statute makes it unlawful to intentionally intercept any wire, oral, or electronic communication or to intentionally use or disclose the contents of any communications known to be illegally obtained. The statute, however, provides an exception when one party to the communication has given prior consent to the interception, and recognizes a defense for good-faith reliance on a court order. The Tenth Circuit held that it was objectively reasonable for Dr. Dahl to believe that the monitoring of the October 12 conversation was authorized by the court’s previous order.

But the court remanded for further proceedings on the alleged monitoring of calls after November 3, 2009, because there was a genuine dispute of fact about whether such monitoring occurred.

In sum, the judgment of the district court on the ERISA claims was AFFIRMED, except that the court instructed the district court to dismiss the claims on the merits with prejudice.

The district court’s decision not to exercise supplemental jurisdiction over the state-law pension claims was AFFIRMED.

The grant of summary judgment to Mr. Peterson on the federal wiretapping claims was AFFIRMED.

The summary judgment to Dr. Dahl and Ms. Blakelock on the federal wiretapping claims based on the October 12, 2009, telephone monitoring was AFFIRMED.

The court REMANDED to the district court for further consideration of Ms. Dahl’s claims against Dr. Dahl and Ms. Blakelock based on alleged monitoring of telephone conversations after November 3, 2009, and for further consideration of whether to exercise its discretion not to assume jurisdiction over the state-law wiretapping claims.

 

JDF Forms in Domestic and Water Categories Revised

Two revised JDF forms have been released by the Colorado State Judicial Branch in the Domestic and Water categories. The revised Domestic form is JDF 1403I – “Instructions to File a Motion or Stipulation to Modify Child Support” (R2/14), and the revised Water form is JDF 241W – “Application for Simple Change in Surface Point of Diversion” (R1/14). For a complete list of State Judicial’s JDF forms, click here.

SB 14-062: Allowing the Reinstatement of the Parent-Child Legal Relationship in Certain Cases

On Friday, January 10, 2014, Sen. Lucia Guzman introduced SB 14-062 – Concerning Reinstatement of the Parent-Child Legal Relationship. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

This bill creates a process for reinstatement of the parent-child legal relationship (reinstatement) in limited circumstances for a child whose parent’s rights have previously been terminated voluntarily or involuntarily. A county department of social services (county department) or the child’s guardian ad litem may file a petition for reinstatement alleging the following:

  • The child is 12 years of age or older or is younger than 12 years of age and is part of a sibling group including a child for whom reinstatement is being sought and who also meets the other conditions for reinstatement; Both the child and the former parent consent to the petition for reinstatement;
  • The child does not have a legal parent, is not in an adoptive placement, and is not likely to be adopted within a reasonable period of time, and other permanency options have been exhausted;
  • The child is in the custody of a county department;
  • The date of the final order terminating the parent-child legal relationship was at least 3 years before the filing of the petition or, if the court finds that it is in the best interests of the child to consider reinstatement of the parent-child legal relationship, less than three years from the final order of termination; and
  • The termination of the parent-child legal relationship was not based on findings of sexual abuse or on an incident of egregious abuse or neglect against a child, a near fatality, or a suspicious fatality or near fatality.

A child who is 16 years of age or older, or his or her guardian ad litem, may also file a petition for reinstatement of the parent-child legal relationship. The bill requires the county department or the guardian ad litem to contact the other party if a former parent contacts one of them about filing a petition for reinstatement. A former parent who is named in a petition for reinstatement is entitled to the appointment of legal counsel, if eligible, or may retain counsel at his or her expense.

The bill requires the court to hold an initial hearing to determine whether certain threshold conditions for pursuing reinstatement have been satisfied.

  • The former parent has remediated the problems that led to the termination of the parent-child legal relationship, if applicable; and
  • The former parent has participated in an assessment that supports that the reinstatement of the parent-child legal relationship is in the best interests of the child.

At the initial hearing on the petition, the court shall either dismiss the petition or enter an order finding that the threshold conditions for pursuing reinstatement have been met and that it is in the best interests of the child to work toward reinstatement of the parent-child legal relationship. If the court finds that working toward reinstatement is in the best interests of the child, then the court must approve a transition plan for reinstatement of the parent-child legal relationship, including visitation or placement of the child with the former parent for a designated trial period of up to six months while the child remains in the custody of the county department.

At the final hearing, the court must make certain findings and may either dismiss the petition, continue the matter for another hearing, or grant the petition and order the reinstatement of the parent-child legal relationship if the court finds by clear and convincing evidence that it is in the best interests of the child.

The bill states the effect of reinstatement. The bill further states that granting the petition for reinstatement does not vacate or otherwise affect the validity of the original order terminating the parent-child legal relationship and that granting a petition for reinstatement for one former parent does not restore or otherwise impact the rights of the other former parent.

The bill states that this statutory process does not create a cause of action against the county department or its employees concerning the original order terminating the parent-child legal relationship. The bill also states that this statutory process should not be construed to limit or alter the protections of a governmental entity or its employees under the “Colorado Governmental Immunity Act.”

A county department, guardian ad litem, or other person filing a petition for reinstatement must file the petition in the county or city and county that has legal custody of the child.

On Jan. 27, the Judiciary Committee amended the bill and sent it to the Appropriations Committee. The Appropriations Committee approved the bill on Feb. 7 and sent it to the floor for consideration on 2nd Reading.

Since this summary, the bill passed the Senate on Second Reading, with amendments.