May 30, 2016

Colorado Supreme Court: Child May Be Adjudicated Dependent and Neglected Under Injurious Environment Provisions

The Colorado Supreme Court issued its opinion in People in Interest of J.G. on Monday, May 23, 2016.

Dependency or Neglect Proceedings—Due Process—Parental Rights.

After a jury found that the environment of M.L.’s four children was injurious to their welfare, the trial court adjudicated the children dependent or neglected pursuant to CRS § 19-3-102(1)(c). Relying on Troxel v. Granville, 530 U.S. 57 (2000), the Court of Appeals reversed. The Supreme court reversed the judgment of the Court of Appeals. It held that Troxel’s due process requirements do not necessitate that the State prove that both parents lack the availability, ability, or willingness to provide reasonable parental care before a child may be adjudicated dependent or neglected under the injurious environment provision. It further held that neither the plain language of the dependency or neglect statute nor Troxel requires the State to prove parental fault when adjudicating a child dependent or neglected under the injurious environment provision. Hence, the Court concluded that the trial court’s jury instructions were consistent with the plain language of the statute and the trial court did not err when it allowed the jury to find that the children’s environment was injurious to their welfare without first requiring the jury to make findings of parental fault. The case was remanded to the Court of Appeals to address M.L.’s remaining issues on appeal.

Summary provided courtesy of The Colorado Lawyer.

Bills Concerning Depositions for At-Risk Persons, Immunity for Reported Overdoses, and More Signed

On Thursday, May 19, 2016, Governor Hickenlooper signed six bills into law. To date, he has signed 192 bills this legislative session. The bills signed Thursday include a bill to allow depositions of at-risk persons in criminal trials in which the at risk persons may not be available to testify, a bill repealing certain mandatory terms of incarceration, and more. The bills signed Thursday are summarized here.

  • HB 16-1027 – Concerning Depositions in Criminal Cases in Which an At-Risk Person May Not Be Available for Trial, by Rep. Jessie Danielson and Sens. Nancy Todd & Jerry Sonnenberg. The bill expands and streamlines the allowable use of recorded depositions for at-risk elders. Under the bill, upon receipt of a motion the court must schedule a recorded deposition within 14 days without further findings if the victim is an at-risk elder, defined as any person 70 years of age or older; however, the bill allows the defense to challenge the motion for recorded depositions of other at-risk adults.
  • HB 16-1227 – Concerning Exemptions from Child Support Enforcement Requirements as a Condition of Receipt of Child Care Assistance Under the Colorado Child Care Assistance Program, and, in Connection Therewith, Making an Appropriation, by Reps. Daniel Kagan & Brian DelGrosso and Sens. Owen Hill & Larry Crowder. The bill specifies that a teen parent is not required to submit an application for child support establishment as a condition of receiving child care assistance. However, the county can require the parent to submit an application for child support establishment in order to receive child care assistance once they no longer qualify as a teen parent.
  • HB 16-1302 – Concerning the Alignment of the Colorado Statutes with the Federal “Workforce Innovation and Opportunity Act” Through the “Colorado Career Advancement Act,” by Reps. Crisanta Duran & Brian DelGrosso and Sen. Linda Newell. The bill changes the title of the “Colorado Workforce Investment Act” to the “Colorado Career Advancement Act.” It also clarifies the roles of specific entities in workforce development programs and removes statutory requirements made inapplicable by the federal act.
  • HB 16-1390 – Concerning Immunity for Certain Persons who Are Involved with a Reported Overdose Event, by Rep. Dominick Moreno and Sen. Lucia Guzman. The bill provides immunity from arrest for underage persons reporting alcohol or marijuana overdoses and extends immunity from arrest and prosecution to the underage person requiring medical assistance.
  • SB 16-072 – Concerning an Increase in the Maximum Total Amount of Annual Lease Payments Authorized for Lease-Purchase Agreements Entered into Under the “Building Excellent Schools Today Act”, and, in Connection Therewith, Making an Appropriation, by Sen. Andy Kerr and Reps. Alec Garnett & Jim Wilson. Currently under the Building Excellent Schools Today Act (BEST), the state may enter into lease-purchase agreements for public school facility capital construction projects, subject to the limitation that the maximum total annual amount of lease payments payable under these agreements does not exceed $80 million in a fiscal year. This bill establishes incremental caps on these lease payments.
  • SB 16-102 Concerning the Elimination of Mandatory Sentences to Incarceration for Certain Crimes, and, in Connection Therewith, Making and Reducing an Appropriation, by Sen. Andy Kerr and Rep. Dominick Moreno. The bill  removes the mandatory term of incarceration that must accompany convictions of certain types of second degree assault or violations of bail bond conditions.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Colorado Court of Appeals: Statutory Maintenance Guideline Formula Advisory, Not Mandatory

The Colorado Court of Appeals issued its opinion in In re Marriage of Vittetoe on Thursday, May 5, 2016.

Dissolution of MarriageMarital PropertySeparate Property—Gift—MaintenanceGuideline.

In this dissolution of marriage proceeding, the primary issues at the permanent orders hearing concerned the division of the marital estate and wife’s maintenance request.

On appeal, wife contended that the district court misclassified a home as marital property and thus erred in including it as part of the marital estate. Specifically, wife argued that the home was her separate property by virtue of a resulting trust, or, alternatively, that the home was a separate gift and the court should have divided only the marital increase in value. Wife’s mother (mother) lived in the home throughout the parties’ marriage, and her 1977 will stipulated that her real property be held in trust and “used in the manner that is most beneficial to my children.” In 2005, mother recorded a quitclaim deed that listed herself and wife as joint tenants. When mother died, the home passed to wife. Wife argued to the district court that in executing the quitclaim deed, mother intended for wife to hold the home in trust for the siblings but did not intend for wife to obtain any beneficial interest in the home. There was sufficient evidence in the record to support the district court’s conclusion that no resulting trust formed and that mother intended for wife to take a beneficial interest in the home. However, the district court’s findings on whether the home was a gift are insufficient. The case was remanded for reconsideration, directing the district court to make specific findings, by clear and convincing evidence, on whether the home was a gift to the marriage or wife’s separate property, and further findings consistent therewith, if necessary.

Husband’s sole contention on cross-appeal was that the district court erred when it awarded wife maintenance in an amount that exceeded the statutory “cap” under C.R.S. § 14-10-114(3)(b)(I). Husband asserted that the plain language of the statute prohibited the court from entering a maintenance award that exceeded 40% of the parties’ combined monthly adjusted gross income. By describing the guideline formula as advisory and not presumptive, and by requiring the district court to consider other financial factors before awarding maintenance, the General Assembly indicated that it did not intend to “cap” the amount of maintenance available to a spouse. Therefore, under the new maintenance statute, the district court must consider the guideline formula and make findings concerning the relevant factors cited in the statute. After it has done so, the court, in its discretion, may award maintenance that exceeds the guideline formula amount if appropriate under the circumstances.

The judgement was affirmed in part and vacated in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1377: Creating a Task Force on Collection and Security of Digital Images of Child Abuse

On March 16, 2016, Rep. Dianne Primavera and Sen. Kent Lambert introduced HB 16-1377Concerning the Creation of a Task Force on the Collection and Security of Digital Images of Evidence of Child Abuse or Neglect. The bill was assigned to the House Public Health Care & Human Services Committee, where it passed unamended. The bill passed through Second and Third Reading unamended and was introduced in the Senate in the Health & Human Services Committee. It was amended in committee and referred to the Senate Committee of the Whole for Second Reading.

This bill creates a task force to study and make recommendations on the current policies and procedures surrounding the collection and security of digital image evidence of child abuse or neglect.

The task force has three primary purposes:

  1. Study current laws, rules, and practices followed in Colorado – and best practices in other states – regarding the collection and security by county employees of digital evidence of suspected child abuse;
  2. Consider whether the statutes and practices concerning the collection and use of digital evidence of suspected child abuse are consistent with the existing and emerging technologies; and
  3. Recommend the best practices to be used in the collection and security of digital evidence of suspected child abuse.

In carrying out purposes (1) and (2), the task force shall investigate:

  1. The laws, practices, and standards governing how a county employee takes, maintains, and disseminates digital images of the child to document child abuse, considering the importance of balancing the need to collect evidence with the need to protect the privacy and constitutional rights of the parents and child;
  2. The safeguards used by county employees to ensure the best interest of the child when documenting digital evidence of suspected child abuse;
  3. The role of law enforcement agencies in conducting a child abuse assessment or investigation, as well as how law enforcement agencies, county departments, and medical professionals collaborate during assessments or investigations; and
  4. The laws, practices, and standards governing the taking of digital images of children’s bodies, as well as the audio or videotaping of a child interview.

In carrying out purpose (3), the task force shall submit to a number of specified state agencies, departments, and institutions an initial report by December 1, 2017. A final report shall be submitted by December 1, 2018.

The membership of the task force shall consist of the following members:

  1. Executive director of the Department of Human Services, or his or her designee;
  2. Child protection ombudsman;
  3. Attorney representative of the office of the child’s representative;
  4. Attorney representative of the respondent parents’ counsel;
  5. The Governor shall appoint the following members, all of whom should have experience in dealing with child abuse cases: licensed pediatrician, law enforcement officer/investigator from a rural area, law enforcement officer/investigator from an urban area, representative who oversees the child welfare training academy, director/administrator of a county department of social or human services, sexual assault nurse examiner, and a license child psychiatrist or psychologist;
  6. The Speaker of the House of Representatives shall appoint the following members: forensic interviewer of an accredited child advocacy center with experience interviewing abused children, representative of a statewide professional social work organization with experience counseling abused children, certified foster parent, representative of a law and policy child advocacy group or agency, and a caseworker that conducts assessments of child abuse cases; and
  7. The President of the Senate shall appoint the following members: county attorney with experience in dependency or neglect cases, a school representative (such as a principal, administrator, or school nurse), representative of a nationally recognized organization that works to prevent and treat child abuse, court-appointed special advocate for abused children, and a caseworker that conducts assessments of child abuse cases.

Appointments to the task force must occur on or before September 1, 2016. The first meeting of the task force shall occur on or before October 1, 2016.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Bills Limiting Foreclosure Finder’s Fee, Clarifying Documentary Recording Fees, and More Signed by Governor

On Friday, April 15, 2016, Governor Hickenlooper signed 15 bills into law. To date, he has signed 117 bills this legislative session. Some of the bills signed Friday include a bill reducing finder’s fees for public trustee foreclosures, a bill treating sexual trafficking of a child as child abuse for dependency and neglect cases, a bill clarifying how to calculate filing fees for recording grants or conveyances of real property, and more. The bills signed Friday are summarized here.

  • HB 16-1011 – Concerning the Removal of Restrictions on the Authority of a Board of a Metropolitan District to Provide Activities in Support of Business Development Within the District, by Rep. Ed Vigil and Sens. Leroy Garcia & Kevin Grantham. The bill removes the specified minimum valuation of commercial property for which a board of a metropolitan district can provide activities in support of business recruitment, management, and development.
  • HB 16-1066 – Concerning an Habitual Domestic Violence Offender, by Rep. Kit Roupe and Sen. Linda Newell. Currently, a judge must make a finding of fact regarding whether a defendant is a habitual domestic violence offender. The bill specifies that the trier of fact (judge or jury) may determine habitual status.
  • HB 16-1073 – Concerning the Qualifications of Licensed Electricians, by Reps. Crisanta Duran & Brian DelGrosso and Sens. Lucia Guzman & Mark Scheffel. The bill creates new renewal requirements for people seeking to renew licenses as master electricians, journeyman electricians, or residential wiremen. Renewal applicants will be required to complete 24 hours of continuing education rather than passing a competency evaluation.
  • HB 16-1090 – Concerning the Conditions Under Which a Person May Assist Another for Compensation in Obtaining the Proceeds of a Foreclosure Sale After All Liens Have Been Satisfied, by Rep. Beth McCann and Sen. Cheri Jahn. The bill limits the premium, or finder’s fee, that a person may charge for offering assistance in recovering the balance of the purchase price of a foreclosed property after all liens and claims against the property have been satisfied.
  • HB 16-1098 – Concerning Updates to Provisions Relating to School Discipline Reporting, by Rep. Polly Lawrence and Sen. Linda Newell. The bill modifies school discipline reporting requirements, requiring that agencies of the Judicial Department make information regarding expunged juvenile delinquency proceedings available to the Division of Criminal Justice, specifies that the attorney general’s requirement to report names of students given criminal citations or diversion is exempt from statutes prohibiting dissemination of confidential information, and allows aggregation of data about incidents involving law enforcement on school property.
  • HB 16-1103 – Concerning Clarifying License Pathways for the Mental Health Professional Workforce, by Reps. Tracy Kraft-Tharp & Lois Landgraf and Sens. Beth Martinez Humenik & Nancy Todd. The bill specifies that candidates seeking licensure as mental health professionals may, but are not required to, register with the database of registered psychotherapists after completing their degree.
  • HB 16-1106 – Concerning the Authority of a County to Designate Public Roads as a Section of a Pioneer Trail, by Rep. Jim Wilson and Sens. Kevin Grantham & Leroy Garcia. The bill allows a board of county commissioners to designate by resolution any public roads in the county as a pioneer trail, with certain conditions.
  • HB 16-1145 – Concerning the Determination of the Documentary Fee Imposed for Recording a Grant or Conveyance of Residential Real Property, by Rep. Steve Lebsock and Sen. Jack Tate. The bill clarifies that the filing fee for a residential real property conveyance is calculated based on the total sales price, as listed on the conveyance document, and if there is no sales price listed or the amount is less than $500, the documentary fee is calculated based on the total sales price listed on the declaration form.
  • HB 16-1149 – Concerning a Requirement that the Executive Board of a Common Interest Community Created in Colorado Before July 1, 1992, Comply with the Budget Reporting Provision of the “Colorado Common Interest Ownership Act”, by Rep. Jovan Melton and Sen. Linda Newell. Currently, common interest communities established before July 1, 1992 are exempt from certain reporting requirements. The bill removes the exemption.
  • HB 16-1170 – Concerning the Continuation of the Division of Racing Events in the Department of Revenue, and, in Connection Therewith, Implementing Recommendation 1 of the 2015 Sunset Report of the Department of Regulatory Agencies, by Reps. Ed Vigil & Don Coram and Sens. Jerry Sonnenberg & Leroy Garcia. The bill extends the sunset of the Division of Racing Events and the Colorado Racing Commission until September 1, 2023.
  • HB 16-1189 – Concerning the Regulation of Bingo-Raffle Licenses, by Rep. Cole Wist and Sen. Ellen Roberts. The bill makes changes to the Secretary of State’s regulation of bingo-raffle licenses. Specifically, the bill allows people whose license was denied to appeal to an ALJ within 60 days, clarifies when consolation prizes must be reported, and removes a restriction on the number of games a person can be a game manager for.
  • HB 16-1224 – Concerning Child Abuse Involving Human Trafficking of Minors, by Rep. Paul Lundeen and Sen. Laura Woods. The bill adds human trafficking of a minor for sexual servitude or commercial sexual exploitation to the definition of child abuse for purposes of dependency and neglect. The bill also requires county departments of human services to immediately offer services to children who are victims of human trafficking when appropriate and to file petitions in juvenile court on the child’s behalf.
  • HB 16-1236 – Concerning Continuation of the Infection Control Advisory Committee, by Rep. Dianne Primavera and Sen. Larry Crowder. The bill extends the sunset of the Infection Control Advisory Committee until July 1, 2021.
  • SB 16-013 – Concerning Statutory Changes Related to the Office of the Child Protection Ombudsman, by Sen. Linda Newell & Rep. Jonathan Singer. The bill makes several statutory changes regarding the Office of the Child Protection Ombudsman, including clarifying its board’s advisory nature, clarifying certain duties and the relationship between the office and the Judicial Department, and removing an audit requirement.
  • SB 16-125 – Concerning the Governance of Credit Unions, and, in Connection Therewith, Authorizing the Appointment of an Audit Committee in Lieu of a Supervisory Committee and Allowing the Reasonable Compensation of a Director for His or Her Service to the Credit Union, by Sen. Chris Holbert and Rep. Tracy Kraft-Tharp. The bill allows the board of directors of a credit union to appoint an audit committee in lieu of a supervisory committee.

For all of Governor Hickenlooper’s 2016 legislative decisions, click here.

Bills to Make References to Attorney General Gender Neutral, Authorize Pink Vests for Hunters, and More Signed

On Tuesday, April 12, 2016, the governor signed six bills into law, and on Thursday, April 14, 2016, the governor signed 18 bills into law. To date, the governor has signed 102 bills into law this legislative session. Some of the bills signed Tuesday and Thursday include a bill to make statutory references to the attorney general gender neutral, a bill to allow hunters to wear fluorescent pink vests, a bill allowing employees of an alcohol wholesaler to purchase alcohol at wholesale prices, a bill increasing judicial discretion in sentencing for violent crimes, and more. The bills signed Tuesday and Thursday are summarized here.

Tuesday, April 12, 2016

  • SB 16-068 – Concerning Wearing Fluorescent Pink Garments to Hunt Big Game, by Sen. Kerry Donovan and Reps. Daneya Esgar & Yeulin Willett. Currently, hunters of big game are required to wear fluorescent orange clothing. The bill allows hunters to wear fluorescent pink as well.
  • HB 16-1030 – Concerning the Use of Off-Highway Vehicles, by Reps. J. Paul Brown & Lois Court and Sen. Kerry Donovan. Currently, anyone age 10 or over can operate an off-highway vehicle with supervision of a licensed driver. The bill allows local governments to require off-highway vehicle operators to have a driver’s license or carry liability insurance.
  • HB 16-1163 – Concerning Appropriations from the Noxious Weed Management Fund, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill specifies that unexpended monies in the noxious weed management fund are subject to reappropriation.
  • HB 16-1182 – Concerning the Continuation of the Commodity Metals Theft Task Force, by Reps. Lois Court & Crisanta Duran and Sens. John Cooke & Rollie Heath. The bill extends the sunset of the Commodity Metals Theft Task Force until September 1, 2025.
  • HB 16-1184 – Concerning the Administration of Money that Is Required Under Existing Law to be Transferred from the High Cost Support Mechanism to the Broadband Fund, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill requires that the High Cost Support Mechanism funds be transferred to the Broadband Fund on July 1 of each year, rather than on allocation.
  • HB 16-1269 – Concerning the Ability of the Department of Revenue to Allow Additional Application Methods for Identification Cards, by Rep. Jovan Melton and Sen. John Cooke. The bill allows holders of Colorado driver’s licenses that are current or less than one year out-of-date to apply by mail for an identification card.

Thursday, April 14, 2016

  • HB 16-1094 – Concerning Making References to the Attorney General in the Colorado Revised Statutes Gender Neutral, by Rep. Timothy Dore and Sen. Ellen Roberts. The bill revises the Colorado Revised Statutes to make references to the attorney general gender-neutral.
  • HB 16-1157 – Concerning the Establishment of a Future Sunset Review of the Functions Delegated to the Director of the Division of Professions and Occupations Under the “Michael Skolnik Medical Transparency Act of 2010” to Implement the Recommendations of the Department of Regulatory Agencies as Contained in its 2015 Sunset Report Pertaining to the Division of Professions and Occupations, by Reps. Alec Garnett & Tracy Kraft-Tharp and Sen. Jack Tate. The bill adds a September 1, 2021, sunset date for the Michael Skolnik Medical Transparency Act of 2010.
  • HB 16-1168 – Concerning the Continuation of the Rural Alcohol and Substance Abuse Prevention and Treatment Program, by Reps. Joann Ginal & Jessie Danielson and Sen. Ray Scott. The bill extends the sunset of the Rural Alcohol and Substance Abuse Prevention and Treatment Program until September 1, 2025.
  • HB 16-1169 – Concerning the Appointment of Representatives of the Southern Ute and Ute Mountain Ute Tribes as Voting Members of the Statewide Transportation Advisory Committee, by Rep. Don Coram and Sen. Ellen Roberts. The bill alters the membership of the Statewide Transportation Advisory Committee to include as full voting members one representative from the Southern Ute Tribe and one representative from the Ute Mountain Ute Tribe.
  • HB 16-1176 – Concerning the Authority of a Licensed Wholesaler to Establish an Employee Purchase Program Under Which its Employees May Purchase Directly from the Wholesaler Alcohol Beverage Products Sold by that Wholesaler, by Rep. Steve Lebsock and Sen. Jack Tate. The bill allows licensed vinous and spiritous wholesalers to establish an employee purchase program.
  • HB 16-1188 – Concerning Requirements for the Provision of Additional Public Information by a Separate Legal Entity Established by Contract by a Combination of Political Subdivisions of the State, by Rep. Paul Rosenthal and Sen. Beth Martinez Humenik. The bill requires a separate legal entity formed by a combination of local governments and political subdivisions to file a copy of the intergovernmental agreement with the Division of Local Government in the Department of Local Affairs.
  • HB 16-1190 – Concerning the Use of Deadly Force in a Detention Facility, by Rep. Timothy Dore and Sen. John Cooke. The bill clarifies that deadly force is not allowed against intruders in a dwelling that is a detention facility.
  • HB 16-1192 – Concerning a Nonsubstantive Recodification of the Sunset Review Procedures, by Rep. Daniel Kagan and Sen. Pat Steadman. The bill reorganizes sunset review provisions in statutes by removing repealed provisions and renumbering the remaining provisions for clarity.
  • HB 16-1193 – Concerning Granting Electronic Access to Court Information to Attorneys Under Contract with the Office of the Respondent Parents’ Counsel, by Rep. Millie Hamner and Sen. Kent Lambert. The bill grants attorneys working with the Office of Respondent Parents’ Counsel electronic access to the name index and register of actions databases in the Judicial Department.
  • HB 16-1229 – Concerning Modification of the Means of Repayment for Certain Ongoing Financial Obligations Incurred by the State in Order to Fund Capital Construction Projects for State-Supported Institutions of Higher Education, by Rep. Bob Rankin and Sen. Pat Steadman. Currently, a portion of the Federal Mineral Lease revenue is transferred into a reserve fund and a revenues fund to support capital construction projects at institutes of higher education. The bill specifies that for this fiscal year, all money in the reserve fund should be transferred into the revenues fund and the reserve fund should be eliminated.
  • HB 16-1247 – Concerning a Supplemental Appropriation to the Department of Public Health and Environment, by Rep. Millie Hamner and Sen. Kent Lambert. The bill allows a supplemental appropriation to the Department of Public Health and Environment.
  • HB 16-1272 – Concerning Procedures to be Followed in Connection with the Disconnection by Ordinance of Land from a Municipality, by Rep. Tracy Kraft-Tharp and Sen. Jack Tate. The bill modifies the procedures for the owner of a tract of land adjacent to a municipality to have the tract of land disconnected from the municipality.
  • HB 16-1297 – Concerning the Immediate Reestablishment of the Voluntary Contributions Excluded from the 2015 Colorado Income Tax Return Form for Not Receiving the Requisite Minimum Dollar Amount of Contributions by the Statutory Deadline, and, in Connection Therewith, Expanding the Number of Voluntary Contributions that May Appear on the Income Tax Return Form and Lowering the Minimum Amount of Donations that Must be Received by Every Fund Appearing on the Form, by Rep. Lois Court and Sen. Beth Martinez Humenik. The bill expands the number of voluntary contribution income tax check-offs on a state income tax form from 15 to 20 and lowers the minimum contribution amount that a program must receive to stay on the form from $75,000 to $50,000, and reestablishes check-offs that were removed last year because they did not meet the minimum contribution amount.
  • HB 16-1416 – Concerning the Transfer of Money from the General Fund to Cash Funds that are Used for the State’s Infrastructure, by Rep. Millie Hamner and Sen. Kent Lambert. The bill replaces transfers specified as percentages with actual dollar amounts.
  • SB 16-051 – Concerning Increasing Judicial Discretion Regarding the Imposition of Consecutive Sentences for Violent Crimes, by Sens. Mike Johnston & Kevin Lundberg and Rep. Jovan Melton. The bill removes the requirement that people who commit two or more separate, specified crimes of violence arising out of the same incident be sentenced consecutively.
  • SB 16-099 – Concerning Implementing Recommendations of the State Auditor’s Office by Establishing the Authority of the Correctional Education Program to Sell Inmate-Produced Products to Specified Persons, by Sen. Cheri Jahn and Rep. Dianne Primavera. The bill authorizes the correctional education program to sell goods produced by inmates to other inmates, invited guests, employees of the department, governmental agencies, or nonprofit organizations, provided certain conditions are met.
  • SB 16-110 – Concerning Protecting the Privacy of Child Victims when Releasing Criminal Justice Records, by Sen. Laura Woods and Rep. Paul Lundeen. The bill requires the custodian of criminal justice records to make a notation of “child victim” whenever the name is disclosed during official proceedings, except when information is shared between certain state and local government agencies.
  • SB 16-122 – Concerning Additional Oversight of the Activities of the Department of Transportation, by Sen. Randy Baumgardner and Reps. Dan Nordberg & J. Paul Brown. The bill requires the Colorado Department of Transportation to undergo an audit, release funds budgeted for certain projects within one year or sooner, post on its website information related to public bid contracts, and more.

For all of Governor Hickenlooper’s 2016 legislative decisions, click here.

HB 16-1165: Changing Colorado Child Support Guidelines Pursuant to Commission’s Findings

On January 28, 2016, Reps. KC Becker & Lois Landgraf and Sen. Larry Crowder introduced HB 16-1165 – Concerning Statutory Changes Based on the Recommendations in the Report of the 2013-2015 Colorado Child Support Commission. The bill was introduced in the House Public Health Care & Human Services Committee, where it was amended and referred to the House Committee of the Whole for Second Reading. The bill passed Second Reading with amendments in the House and passed Third Reading unamended. In the Senate, it was introduced in the Health & Human Services Committee, where it passed through unamended. The bill passed Second and Third Reading in the Senate with no amendments and is now on its way to the governor for signature.

This bill makes several changes to the Colorado child support guidelines and related statutes. First, the bill permits the State Child Enforcement Agency to attach an administrative lien on insurance claim payments, awards, or settlements to satisfy and obligor’s past-due child support, past-due spousal maintenance, or a combination of the two. The bill applies to all child support and spousal maintenance obligations, regardless of when the obligation was ordered by the court. The lien may be placed on insurance claim payments made payable to the obligor that are in excess of $1,000, resulting from personal injury, wrongful death, or workers’ compensation claims. The bill exculpates insurance companies and their agents for any good faith conduct made pursuant to the proposed amended section of the Colorado Revised Statutes.

Second, the bill makes a number of changes to the child support guidelines contained in C.R.S. § 14-10-114, including: (1) requiring a deduction from a parent’s gross income prior to calculating child support for the actual amount paid for another child’s court ordered support (regardless of where the other child is living), while applying the gross income calculation of paragraph (b) of the subsection to parents whose other child(ren) is/are living with the parent; (2) amending the definition of “shared physical care” by including as a reason for deviating from the child support guidelines instances where one parent spends substantially more time with the child than is reflected by a calculation of the number of overnights; (3) allowing a court to not require a parent to include a child or children on a health insurance policy where the policy’s premium payment is 5 percent of the parent’s gross income (reducing from 20 percent); and (4) requiring parents to exchange financial information relevant to child support calculations on changes that have occurred since the entry of the child support order.

Third, the bill establishes a five-year prohibition on retroactive modification of child support based on change in physical custody pursuant to C.R.S. § 14-10-122.

Fourth, the bill requires service by a single publication not less than five days prior to any hearing on paternity adjudication for any party (i.e., natural mother, each presumed father, and each man alleged to the natural father) who does not reside in Colorado and whose place of residence is not known, or when the person cannot be found within Colorado after due diligence.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Bills Regarding Name Change After Divorce, Unattended Remote Vehicles, and More Signed

On Thursday, March 31, 2016, Governor Hickenlooper signed 8 bills into law, and he signed three more bills on Friday, April 1. To date, the governor has signed 70 bills into law this legislative session. The signed bills include a bill to simplify the name change process for parties to dissolutions of marriage or legal separation if those parties did not request a name change during the dissolution proceedings, a bill to change the name of “area vocational schools” to “area technical colleges,” a bill allowing the use of remote starter systems in unattended vehicles, and a bill allowing reimbursement of travel expenses of members of the Colorado Human Trafficking Council.

March 31, 2016

  • SB 16-121 – Concerning the Percentage of Tuition Revenue that an Institution of Higher Education is Authorized to Pledge for Contracts for the Advancement of Money, by Sen. Jack Tate and Rep. Alec Garnett. The bill allows the governing board of an institution of higher education to pledge up to 100 percent of tuition revenues to fund capital projects.
  • HB 16-1046 – Concerning the Response to Hazardous Substance Incidents Under Designated Emergency Response Authority Responsibility, by Rep. Tracy Kraft-Tharp and Sen. Randy Baumgardner. The bill requires local governments to report to the Colorado State Patrol who they designate as emergency response personnel for hazardous substance incidents, and narrows the appropriate response.
  • HB 16-1061 – Concerning a Requirement that the Transportation Infrastructure Needs of Federal Military Installations be Given Full Consideration During the Preparation of the Comprehensive Statewide Transportation Plan, by Reps. Terri Carver & Dan Nordberg and Sen. Nancy Todd. The bill requires the Colorado Department of Transportation to coordinate with federal military installations within the state when developing statewide transportation plans.
  • HB 16-1082 – Concerning Area Vocational Schools and, in Connection Therewith, Changing the Name of Area Vocational Schools to Area Technical Colleges and Adding Representation for Area Technical Colleges to Certain Boards, by Reps. Alec Garnett & Yeulin Willett and Sen. Nancy Todd. The bill changes all statutory references to “area vocational schools” to “area technical colleges” and adds a representative of area technical colleges to the Concurrent Enrollment Advisory Board and the Colorado Workforce Development Council.
  • HB 16-1085 – Concerning Simplifying the Process for Returning to a Prior Name After a Decree of Dissolution or Legal Separation Has Been Entered, by Rep. Dan Thurlow and Sen. Jack Tate. The bill makes it easier for a person to restore a previous name after a divorce or separation of he or she did not request the name change during the dissolution or separation proceedings.
  • HB 16-1122 – Concerning the Use of Remote Starter Systems on Unattended Vehicles, by Rep. Justin Everett and Sens. Owen Hill & Vicki Marble. The bill exempts vehicles with remote starter systems from the law prohibiting unattended idling as long as the vehicle owner takes precautions against theft.
  • HB 16-1144 – Concerning Transparency in Postsecondary Courses Offered to High School Students, by Reps. Jon Becker & Brittany Pettersen and Sen. Kevin Grantham. Currently, local education providers are required to notify parents and students annually when qualified students are eligible for concurrent enrollment in high school and college. The bill requires local education providers to notify parents and students if the students’ college classes do not qualify for concurrent enrollment.
  • HB 16-1151 – Concerning the Expansion of Penalty Mitigation Under the Alcohol Beverage Laws for Vendors Meeting the Definition of a “Responsible Vendor” as Provided by Law, by Rep. Dan Pabon and Sen. Chris Holbert. The bill requires state and local licensing authorities to consider licensees’ responsible alcohol vendor training as a mitigating factor for certain violations of state liquor laws.

April 1, 2016

  • HB 16-1033 – Concerning the Colorado Human Trafficking Council, by Reps. Beth McCann & Dan Nordberg and Sens. John Kefalas & Linda Newell. The bill allows members of the Colorado Human Trafficking Council to be reimbursed for their travel expenses.
  • HB 16-1038 – Concerning Optional Affiliation with the Fire and Police Pension Association by a County Sheriff Department that Does Not Participate in Social Security, by Reps. Jovan Melton & Joseph Salazar and Sen. Matt Jones. The bill allows counties to elect coverage in the Fire and Police Pension Association even when they decline to participate in Social Security.
  • HB 16-1083 – Concerning the Role and Mission of Western State Colorado University, by Reps. J. Paul Brown & Millie Hamner and Sens. Kerry Donovan & Kevin Grantham. The bill changes the admission standard of Western State Colorado University from “moderately selective” to “selective.”

For all of Governor Hickenlooper’s 2016 legislative decisions, click here.

Colorado Court of Appeals: Trial Court Not Required to Order Accounting at Request of Interested Person

The Colorado Court of Appeals issued its opinion in Sidman v. Sidman on Thursday, March 24, 2016.

Legal Guardian—Motion for Accounting—Discretion.

In 2002 Michael and Renee Sidman were appointed as legal guardians for their nephew, who was born in 1999. The parents paid child support and filed a motion for an accounting. The trial court denied the motion, and the parents appealed.

The guardians filed a motion to dismiss the appeal, arguing that (1) the order denying the motion for an accounting was not a final, appealable order because a motion to modify child support was pending and the order did not resolve all pending matters, and (2) the court should have followed the law of the case and not reached the merits of the motion, based on its two previous orders denying similar requests for accountings. Even if the order was not final at the time the appeal was filed, the jurisdictional defect was cured when the motion to modify child support was resolved in November 2014. Furthermore, the trial court was not compelled by the law of the case to refrain from considering the parents’ motion; the decision was a matter in the court’s discretion.

The parents contended on appeal that the trial court abused its discretion in denying their motion for accounting. The Court of Appeals determined that CRS § 15-14-207(2)(e) did not require the court to order the guardians to provide an accounting. Instead, the parents’ motion triggered the court’s duty to exercise its discretion as to whether to order an accounting and the extent of any such accounting. The court properly exercised its discretion.

The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Bills for Exemptions from Liquor Licensing, Rule of 7 for Children’s Code, and More Signed by Governor

On Friday, March 18, 2016, Governor Hickenlooper signed 14 bills into law. To date, he has signed 37 bills this legislative session. The bills signed Friday include a bill conforming Children’s Code statutes to the “Rule of 7,” exemptions from liquor license requirements for institutes of higher education and home brewers, dates of performance audits for certain governmental entities, and more. The bills signed Friday are summarized here.

  • HB 16-1013 – Concerning Authorizing School Districts to Purchase Crime Insurance Coverage in Lieu of Surety Bonds, by Rep. Alec Garnett and Sen. Vicki Marble. The bill allows school districts to purchase crime insurance instead of surety bonds. Currently surety bonds are required for certain district employees who handle funds in excess of $50.
  • HB 16-1028 – Concerning Modifications to the Statewide Death and Disability Plan Administered by the Fire and Police Pension Association, by Rep. Kevin Van Winkle and Sen. John Cooke. The bill changes computations of fund transfers between the statewide death and disability plan and the Fire and Police Pension Association.
  • HB 16-1042 – Concerning an Exemption from Liquor Licensing Laws for a Brewing Program Offered by a State Institution of Higher Education, by Rep. Jeni James Arndt and Sen. Jerry Sonnenberg. The bill creates an exemption from state liquor licensing laws for state institutions of higher education engaging in manufacturing and tasting of beer for teaching or research purposes. The beer cannot be sold or offered for sale and may only be tasted by students, researchers, expert tasters, and qualified employees who are at least 21 years old.
  • HB 16-1043 – Concerning the Joint Technology Committee’s Authority to Approve the Request for a Waiver of Certain Deadlines after Moneys for a Project have been Appropriated, by Rep. J. Paul Brown and Sen. Randy Baumgardner. Currently, state agencies and institutes of higher education that receive funding for projects are required to encumber some of the funds within a certain time period or, if they cannot, they are required to request a waiver. The bill exempts information technology capital projects overseen by the Joint Technology Committee from the waiver requirements.
  • HB 16-1057 – Concerning Statutorily Established Time Periods that are Multiples of Seven Days, by Rep. Kim Ransom and Sen. Michael Merrifield. The bill modifies time periods in the Children’s Code to conform to the “Rule of 7.”
  • HB 16-1081 – Concerning Removing Obsolete Reporting Provisions in Title 25.5 of the Colorado Revised Statutes, by Reps. Kim Ransom & Daneya Esgar and Sens. Kevin Lundberg and Linda Newell. The bill repeals reporting requirements for the Department of Health Care Policy and Financing for certain topics.
  • HB 16-1084 – Concerning a Modification from the Exemption from the “Colorado Liquor Code” for Home Brewers to Permit an Adult Other Than the Head of the Family to Engage in Home Brewing Activities for Personal Use Without Obtaining a Liquor License, by Rep. Steve Lebsock and Sen. Chris Holbert. Currently, the head of a family can brew beer or wine for family use without obtaining a liquor license. The bill expands the allowance to any adult in the household for personal use.
  • HB 16-1086 – Concerning a Modification of the Dates on Which the Required Performance Audits of Certain Governmental Entities are Due, by Reps. Su Ryden & Dan Nordberg and Sen. Chris Holbert. The bill extends the deadline by which the Department of Personnel and Administration and State Personnel Board must complete an audit from December 1, 2016, to December 1, 2019. The bill also eliminates the requirement that the department and board must be audited every four years.
  • HB 16-1284 – Concerning Divestment by the Public Employees’ Retirement Association from Companies that have Economic Prohibitions Against the State of Israel, by Reps. Dan Nordberg & Dominick Moreno and Sens. Owen Hill & Leroy Garcia. The bill requires PERA to take steps to identify all companies that have economic prohibitions against Israel by January 1, 2017, and to update the list biannually thereafter. PERA is required to notify each company of its restricted status and remove companies that cease to have prohibitions within 180 days.
  • SB 16-022 – Concerning Removing Certain Limitations on the Pilot Program to Mitigate Cliff-Effect for Low Income Families who are Working and Receiving Child Care Assistance, by Sen. Beth Martinez Humenik and Rep. Brittany Petterson. The bill removes the existing 10-county cap on counties that can participate in the Colorado Child Care Assistance Cliff Effect Pilot Program, and also removes the two-year participation requirement if the Department of Human Services determines that participation for a shorter period will provide relevant information.
  • SB 16-029 – Concerning Changes to Colorado Insurance Laws Necessary to Maintain Accreditation with the National Association of Insurance Commissioners (NAIC) And, In Connection Therewith, Adopting a New Own Risk and Solvency Assessment Law (ORSA) in a Form Substantially Similar to the NAIC Model and Enhancing Colorado’s Insurance Holding Company System Law by Adding a Required NAIC Model Provision Specifying the Insurance Commissioner’s Power to Issue Subpoenas and Examine Witnesses, by Sens. Mark Scheffel & Rollie Heath and Reps. Crisanta Duran & Polly Lawrence.
  • SB 16-031 – Concerning Authority of the Director of the Office of Legislative Legal Services to Sign Vouchers for Expenditures of the Office, by Sen. Pat Steadman and Rep. Timothy Dore. Currently, the chair of the Committee on Legal Services is required to sign any voucher for OLLS expenditure. The bill allows the director of OLLS to sign vouchers that do not exceed $5,000.
  • SB 16-050 – Concerning a Hold Harmless Provision for Retailers Liable for Any Money Payable as a Result of an Incorrect Location Code Assigned by the Department of Revenue, by Sens. Tim Neville & Cheri Jahn and Reps. Lori Saine & Su Ryden. The bill releases retailers from liability for failure to collect sales tax because of a misassigned Department of Revenue location code.
  • SB 16-066 – Concerning Creation of the Contingency Reserve Fund for School Districts, by Sen. Pat Steadman and Rep. Millie Hamner. The bill recreates the State Contingency Reserve Fund in statute without substantive changes. The fund was mistakenly repealed on July 1, 2015.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

e-Legislative Report: Week of March 14, 2016

Welcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers 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 from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings—please RSVP if you are interested.

LPC Meeting held Friday, February 26, 2016

There was no meeting of the LPC on March 4. We will be considering a number of bills this coming week, but here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1165 – Colorado Child Support Commission Statutory Changes
The LPC voted to seek an amendment to this bill, which was subsequently added in the House before the bill was passed on to the Senate. The amendments offered clarify the calculations of parenting time in certain circumstances

HB 16-1275 – Taxation Of Corporate Income Sheltered In Tax Haven
The LPC voted to oppose this bill because of vague language that could result in unnecessary litigation and an additional burden on the judiciary.

HB 16-1270 – Security Interest Owner’s Interest In Business Entity
This is the first of a package of four business law clean-up bills from the Business Law Section. It aims to protect the security interest of owners and secure the “pick a partner” provision in Colorado law for all types of business entities.

SB 16-131 – Overseeing Fiduciaries’ Management Of Assets
This bill, written by members of the Trust & Estate and Elder Law sections, clarifies provisions in the Colorado Probate Code regarding a person’s right to counsel and the removal of a fiduciary.

SB 16-133 – Transfer Of Property Rights At Death
This bill clarifies the process and rights associated with property transfers after death by clarifying existing law and providing that the Colorado Probate Code prevails over the Uniform Power of Appointment Act where the Colorado Probate Code is better suited for the state’s probate process.

Bills that the LPC is monitoring, watching or working on can be found here.

New Bills of Interest

HB 16-1339 – Agricultural Property Foreclosure
Current law establishes the initial date of sale of foreclosed property based on who is selling the property and whether the property is agricultural or nonagricultural. Property is nonagricultural unless all of the property is considered agricultural. The bill extends the provisions relating to agricultural property to property in which any part is agricultural.

SB 16-148 – Require Civics Test Before Graduating from High School
Under existing law, each high school student must satisfactorily complete a civics course as a condition of high school graduation. In connection with this requirement, the bill requires each student who is enrolled in ninth grade during or after the 2016-17 school year to correctly answer, before graduating from high school, at least 60 questions from the civics portion of the naturalization test (test) used by the United States citizenship and immigration services. The school district, charter school, or school operated by a board of cooperative services (local education provider) that enrolls the student may allow the student to take the test on multiple occasions while enrolled in ninth through twelfth grade and, if necessary, to repeat the test until the student correctly answers at least 60 questions. Once the student correctly answers 60 questions, the local education provider will note the accomplishment on the student’s transcript. A student who has a disability is excused from this requirement, except to the extent it may be required in the student’s individualized education program. The superintendent or principal of a local education provider may waive the requirement for a student who meets all of the other graduation requirements and demonstrates the existence of extraordinary circumstances that justify the waiver. Each local education provider has complete flexibility in determining the manner of delivering the test and may incorporate the test into its existing curriculum. A local education provider shall not use the results of the test in measuring educator effectiveness.

SB 16-150 – Marriages By Individuals In Civil Unions
The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who entered or who will enter into a civil union after the passage of the bill. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same two parties. The executive director of the Department of Public Health and Environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between two individuals who are the same sex. The bill states that a civil union license and a civil union certificate do not constitute evidence of the parties’ intent to create a common law marriage. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in the state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act.” Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act.” If a civil union is merged into a marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2016, to include a person who, while married, marries, enters into a civil union, or cohabits in the state with another person not his or her spouse and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in the state with another person not his or her civil union partner. mmittees of the Bar Association.

Colorado Court of Appeals: Relinquishment-based Termination Not Allowed when Parent is Party to Dependency and Neglect Action

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, March 10, 2016.

Children’s Code—Dependency and Neglect—Relinquishment and Adoption— Jurisdiction.

In a question of first impression, the Court of Appeals decided that a county department of social services may not move to involuntarily terminate parental rights in a relinquishment case under article 5 of the Children’s Code when the children are the subject of a pending dependency and neglect case under article 3.

The Alamosa County Department of Human Services (department) filed a petition alleging that three children were dependent or neglected because their mother was addicted to pain pills and their father was incarcerated. The court granted temporary custody of the children to the department and placed them with relatives.

Subsequently, both parents admitted the petition’s allegations and the court adjudicated the children dependent and neglected. The court adopted a treatment plan for mother and found that no appropriate treatment plan could be devised for father.

A year after the initiation of the case, the guardian at litem (GAL) moved to terminate the parental rights of both parents under article 3. Mother relinquished her parental rights at the hearing. The department then filed three separate relinquishment cases (one for each child) under article 5. The article 3 case remained open and pending. The court terminated father’s parental rights under the relinquishment statute. At the same time, the court also issued an order establishing a new permanency planning goal and setting a review hearing in the dependency and neglect case. Father appealed the three judgments terminating his parental rights.

Father argued that the Children’s Code does not permit the department to file its termination motion in an article 5 proceeding rather than proceeding in the article 3 case. The Court agreed, holding that the dependency and neglect court maintains continuing, exclusive jurisdiction over the status of a child who is alleged to be dependent and neglected until the child reaches majority or its jurisdiction is otherwise terminated.

The Court based its holding on three grounds. First, the separate and distinct purposes of article 3 and article 5 are not well served if they are intertwined. Second, the statutes make clear that the dependency and neglect court maintains continuing, exclusive jurisdiction over any child who has been adjudicated dependent and neglected. Third, under article 3, parental rights may be terminated only through the Parent-Child Legal Relationship Termination Act of 1987, not under article 5.

The judgments were dismissed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.