February 12, 2016

e-Legislative Report: 2/3/2016

Editor’s Note: Yesterday, we erroneously published an e-Legislative Report from 2015. The current e-Legislative Report is below. We apologize for the confusion.

e-Legislative Report

Hello loyal e-leg report readers, here is this week’s installment of the world under the Gold Dome; as always, we welcome your feedback, thoughts, comments and questions.  This news report is designed to keep you up to date on the activity of interest to the bar, and to lawyers across practice areas that are happening at the Capitol.

Things move pretty fast this time of year, and we’re off to a busy start – the legislature has released over 300 bills for consideration, committees are meeting and negotiations and amendments are happening hundreds of times a day.  The capitol is humming for sure!

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, January 29, 2016

The following bills were discussed at the LPC last week.  Other bills of interest from that agenda are tracked and updated below.

SB 16-013 Concerning Statutory Changes Related to the Office of the Child Protection

The bill addresses several items in the statutes relating to the office of the child protection ombudsman (office), including:

Clarifying that the child protection ombudsman board’s (board) duties are advisory only;  Shifting the responsibility for accountability in policies and procedures from the board to the office; Clarifying that the ombudsman cannot be subpoenaed by independent parties to testify in personal custody proceedings; and Removing the statutory requirement for an audit of the office by the office of the state auditor but leaving it at the discretion of the legislative audit committee to request such an audit at a future date.

The CBA – through the Legislative Policy Committee is seeking to amend this bill to restore the ability to subpoena the Ombudsman.  This is an important part of the process, and a vital step to access to data that might be otherwise unavailable.

HB 16-1085 Concerning Simplifying the Process for Returning to a Proper Name after Decree of Dissolution

Under current law, a party to a divorce or legal separation may request in the petition that his or her prior name be restored as part of the decree of dissolution or legal separation. This process to restore a prior name does not involve a background check or publication of the name. However, if the party does not change his or her name at the time the decree of dissolution or legal separation is entered, he or she must follow the procedures for a name change under civil law that include a fingerprint-based background check and publication of the name.

Subject to certain conditions, the bill permits a party to a dissolution or legal separation action to request the restoration of his or her prior full name by filing a motion in the court that granted the divorce or legal separation. The ex-parte motion does not require notice to the other party to the divorce or legal separation. The bill includes the requirements for filing the motion and the conditions under which the court must grant the motion.
The bill also clarifies that the provisions of the adult name change statute do not apply to a party to a dissolution or legal separation action who requests restoration of a prior name pursuant to the new statute.

The CBA supports this legislation. We are working with the sponsor with respect to an amendment that would require notice be given to the other party in the dissolution.

Bills that the LPC is monitoring, watching or working on can be found at this link:


@ the Capitol – These are the bills we are focused on:

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death

On and after the effective date of the bill, the department of revenue (department) shall make available a beneficiary designation form (form) that allows the owner or joint owners of a vehicle to arrange to transfer ownership of the vehicle to a named beneficiary upon the death of the owner or upon the death of all joint owners of the vehicle. Upon the death of the owner or of the last surviving joint owner, the beneficiary may present the form to the department and request a new title of ownership of the vehicle in the beneficiary’s name. The request must be accompanied by: Proof of the death of the vehicle’s owner or proof of the death of the last surviving joint owner of the vehicle; and the statutory fee for an application for a certificate of title.

Upon the presentation of a properly executed and notarized form and the accompanying documents and fee, the department, subject to any security interest, shall issue a new certificate of title to the beneficiary.

The transfer of ownership of a vehicle via a form is not considered testamentary and is not subject to the provisions of the “Colorado Probate Code”.
The CBA is working with the sponsor and other attorneys to ensure that the intent of the bill is harmonized with existing laws, and that it will work well once enacted into law.

HB 16-1077 Recreate Statutory Revisions Committee

The statutory revision committee created in 1977 and repealed in 1985, was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. The bill recreates the committee.  The recreated committee is comprised of 8 members, with the majority and minority party leaders of each chamber of the general assembly appointing 2 members of those bodies. The committee is staffed by the office of legislative legal services, and is charged with: Making an ongoing examination of the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms; Receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and anachronisms in the law; Recommending legislation, from time to time, to effect such changes in the law as it deems necessary in order to modify or eliminate antiquated, redundant, or contradictory laws; and Reporting its findings and recommendations from time to time to the committee on legal services and annually to the general assembly.

The CBA is working with the Sponsors to offer amendments to shape the scope and membership of this committee.  We believe that the members and expertise of the Bar Association can provide value to the committee upon enactment, and into the future, should the bill pass.

HB 16-1145 Documentary Fee For Residential Real Property

Currently, a person filing a real property conveyance document with a county clerk and recorder must pay a documentary fee if the consideration for the conveyance is more than $500. The amount of the fee is based on the consideration paid, which is the total sales price to the purchaser, unless there is evidence of a separate consideration paid for personal property.

For purposes of the documentary fee, the bill changes the determination of the consideration paid for the grant or conveyance of residential real property as follows: Eliminates any reduction for a separate consideration paid for personal property from the total sales price; Generally requires the consideration amount listed on the grant or conveyance document to be used to determine the documentary fee; and If there is no consideration amount or the amount listed on the grant or conveyance document is $500 or less, and there is a related declaration filed, then the total sales price listed on the declaration is used to determine the documentary fee.  The bill also specifies that, unless indicated as commercial or industrial real property at the time of recording, a grant or conveyance is deemed to be of residential real property for the purpose of determining the documentary fee.

The CBA has significant concerns about this bill and the effects it will have upon real property transactions across the state.  We have been working with the stakeholders and sponsors to try and improve the bill, and to try and find a solution to the documentary fee challenges, but without harming other important aspects of property transactions.

SB 16-026 Personal Rights Of Protected Persons

A guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order.  A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors.  An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person’s right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person’s access to the protected person; Modify the guardian or conservator’s duties; or Remove the guardian or conservator.
A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person’s closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person’s residence for more than 7 days; Is admitted to a medical facility for acute care or
emergency care; or Dies.

The CBA supports the intent and purpose of this legislation.  We offered testimony that outlined our belief that this was a significant bill, outlined some concerns we had for how the bill might not work well with existing statute, and reaffirmed our commitment to continuing our work with the sponsor.

New Bills of Interest

These are a few of the new bills.  They have been sent to our Sections for review and comment.  If you have any questions about these – or any other bills at the legislature, please drop me a line and I’m happy to help you however I can.

HB 16-1115 Prohibition of Sealing Municipal Domestic Violence Convictions

Under current law, conviction records related to municipal offenses are eligible for record sealing. The bill prohibits sealing a municipal assault or battery conviction or any other municipal conviction, if the conviction involves the underlying factual basis of domestic violence.

HB 16-1117 Electronic Recording for Certain Custodial Interrogation

The bill requires all law enforcement agencies to have audio-visual recording equipment available and policies and procedures in place for preserving custodial interrogations by January 1, 2017. A peace officer must record custodial interrogations occurring in a permanent detention facility if the peace officer is investigating a class 1 or 2 felony or a felony sexual assault. A peace officer does not have to record the interrogation if: the defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing; The recording equipment fails; The recording equipment is unavailable, either through damage or extraordinary circumstances; Exigent circumstances related to public safety prevent recording; or The interrogation takes place outside of Colorado.

The court may admit evidence from a custodial interrogation that is not recorded. When offering evidence from an unrecorded interrogation, if the prosecution shows by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, the court shall issue a cautionary instruction to the jury after admitting the evidence.

HB 16-1154 Employer Definition Clarify Franchisee Status

The bill clarifies that the definition of “employer” only includes a person that possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

Comment Period Open for Proposed Changes to Colorado Appellate Rules

The Colorado Supreme Court is soliciting comments regarding proposed changes to the Colorado Appellate Rules. The changes affect Rule 3.4, “Appeals from Proceedings in Dependency and Neglect,” and the corresponding forms, JDF 545 through 549. The proposed changes to Rule 3.4 include minor changes, such as changing the word “record” to “transcript” in some places, and major changes, including the court’s continued jurisdiction over the case, composition of the record on appeal, inclusion of information about the Indian Child Welfare Act, and more. A redline of the proposed changes is available here.

Comments regarding the proposed changes may be submitted in writing to Christopher Ryan, Clerk of the Colorado Supreme Court, via email or via U.S. mail to 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 6, 2016. Comments will be posted on the State Judicial website after the comment period has closed.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

New CJD 16-01 Repeals and Replaces CJD 04-03

Effective January 1, 2016, the Chief Justice Nancy Rice of the Colorado Supreme Court adopted Chief Justice Directive 16-01, “Establishment of Statewide Probation Priorities,” to replace and repeal CJD 04-03. The Chief Justice Directive updates priority lists for offender supervision for investigation, supervision, and probation performance review. The goal of the new priorities is to maximize public safety by directing offender supervision resources to the highest risk offenders.

Click here to read CJD 16-01. Click here for all of the Colorado Supreme Court Chief Justice Directives.

Three Chief Justice Directives Related to Family Law Amended

On Friday, January 1, 2016, three amended Chief Justice Directives were issued by the Colorado Supreme Court: CJD 04-06, regarding court appointments through the Office of the Child’s Representative (OCR), CJD 04-05, regarding payment of court-appointed attorney child representatives, and CJD 04-08, regarding court appointment of Child and Family Investigators (CFIs).

The changes to CJD 04-05 are due to legislation passed in 2015. HB 15-1153 transferred oversight of state-paid attorney CFIs from the Office of the Child’s Representative to the Office of the State Court Administrator, and CJD 04-05 was amended to reflect this change. CJD 04-06 was also amended to eliminate appointments of state-paid CFIs from the Office of the Child’s Representative, and to clarify GAL appointments in dependency and neglect cases, establish standards for GALs in delinquency proceedings and other cases, and require attorneys to submit a certificate of compliance with the CJD’s requirements to the OCR for all case types.

The changes to CJD 04-08 were significant. Judges who routinely appoint CFIs are encouraged to request a redline of the changes, given the volume of changes. State Judicial summarized some of the changes below:

• Regarding CFI oversight, SCAO will oversee all CFI appointments, with all state pay CFI appointments governed by CJD 04-05. OCR will have no involvement in CFI oversight or payment.
• Regarding expansion of CFI appointments, courts may expand a CFI appointment to a parental responsibility evaluation for an otherwise qualified appointee only upon written stipulation of the parties, approved by the court.
• Regarding the presumptive fee cap in private pay CFI cases, the cap increased from $2,000 to $2,750. This amount is a cap, not a flat fee.
• Regarding CFI complaints, complaints must be filed no later than one year following termination of the CFI appointment. No investigation will occur for complaints involving individuals not listed on the Statewide Roster. Regarding founded complaints, District Administrators will provide the complaint, investigation report and CFI report to regulatory agencies entitled to notice of the founded complaint, such as DORA and OARC, redacting the names, addresses and birthdates of the children and collateral witnesses, and with the redacted documents marked, “Confidential pursuant to CJD 04-08.” No complaint is required for a district to find a CFI no longer suitable for appointment and to remove the CFI from the district’s eligibility roster. When this occurs, the district must notify the SCAO of the reason for removal and SCAO will determine whether to remove the CFI from the Statewide Roster.
• Regarding Standard 2, CFIs must file JDF 1338, the Mandatory Disclosure form, to disclose the existence or nonexistence of a prior or current relationship.
• Regarding Standard 11, the “timely” filing of a report when the court has not specified a due date is defined as “at least 35 days before the trial or hearing.” Reports should not recite all information obtained during the investigation, but rather summarize legally relevant information.
• Regarding Standard 12, requests for CFI files must be written. Standard 12 now contains a default time frame for provision of the CFI file and adds a permissible rate for file duplication or scanning.
• Regarding Standard 13, CFIs shall not perform or require drug, alcohol, polygraph or other testing, inspection or evaluation unless specifically ordered by the court. Standard 13 now permits a qualified CFI to conduct drug and alcohol evaluation in addition to other CFI duties when specifically ordered. CFIs may conduct domestic violence screening if competent to do so.

For all of the Chief Justice Directives, click here.

Top Programs and Homestudies — Intellectual Property, Elder Law, Immigration, and More

Over the past few weeks, we have been featuring the Top Ten Programs and Homestudies in various practice areas. Previous posts include:

Although we addressed several substantive practice areas, we offer many more great programs not featured on the previous Top Ten lists. These are discussed today.

Intellectual Property The Annual Rocky Mountain Intellectual Property & Technology Institute is the region’s premier event for IP lawyers. The 2015 Institute featured four simultaneous tracks of sessions for attorneys, covering patents and patent litigation, trademarks/copyrights, licensing, and transactional/e-commerce. As a bonus, Odyssey Beerwerks in Arvada donated custom brews for the 2015 Institute. The 2016 IP Institute is scheduled for June 2 and 3, 2016, at the Westin Westminster. Click here for more information about the IP Institute and the 2016 conference agenda.

Elder Law Colorado CLE presents an annual mountain program for elder law practitioners, the Annual Elder Law Retreat. The 2015 Retreat, held in beautiful Snowmass, discussed social security issues, including maximizing benefits; trends in VA, including special programs and applications for long-term care; atypical beneficiary requests; financial exploitation of the elderly; long-term care planning; and much more. The dates for the 2016 Retreat have not yet been announced; stay tuned to cle.cobar.org/elder for details.

Immigration — In addition to the comprehensive reference book, Immigration Law for the Colorado Practitioner, Colorado CLE offers several great immigration programs each year. Most recently, the CBA Immigration Law Section co-sponsored the program, “Immigration Law — Asylum and Other Humanitarian Relief,” which covered U visas, T visas, VAWA, special immigrant juvenile status, asylum law, and more. Find this and other important immigration law programs here.

Alternative Dispute Resolution Colorado CLE offers many great ADR programs, but the flagstone event is the 40-hour Mediation Training. This five day live program, taught by renowned mediator Judy Mares-Dixon, presents an in-depth guide to mediation as well as several breakout sessions to practice mediation skills. The 40-hour Mediation Training will occur on January 18, 19, 20, 25, and 26, 2016. Space is limited so register today.

Workers’ Compensation — Each year, the CBA Workers’ Compensation Section co-sponsors two annual events: the Workers’ Compensation Fall Update and the Workers’ Compensation Spring Update. Topics vary from year to year but each program features case law updates and news from the Division. In addition, many times medical professionals will provide education on particular types of injuries, including psychological injuries. More information about CLE’s workers’ compensation offerings can be found here.

Health Law — Two years ago, Colorado CLE began offering an annual Health Law Symposium, co-sponsored by the CBA Health Law Section and the American Health Lawyers Association. This program offers an exceptional speaker lineup of nationally recognized health law experts focused on current issues in health law of interest and concern to practicing attorneys in the rocky mountain. Topics discussed at the 2015 Health Law Symposium include discussion of the Affordable Care Act, franchising in the health care industry, HIPAA and meaningful use, antitrust rules in the provider context, and more.

Juvenile Law Although many family law programs cover topics of interest to juvenile law practitioners, this important practice area also has its own programming. Each year, Colorado CLE presents a juvenile law update, co-sponsored by the CBA Juvenile Law Section. The 2016 Juvenile Law Program, “Ethics! Ethics! Ethics!,” is scheduled for April 1, 2016, with a focus on—you guessed it—ethics. Topics covered include implicit bias, social media, ethical challenges in juvenile defense, and more. Click here to register.

Solo/Small Firm — This technically is not a practice area, but there are myriad issues that solo practitioners face while running a law business that their biglaw counterparts do not. The Solo and Small Firm Section of the CBA puts on great programming throughout the year, including topical lunches, and hosts monthly networking meetings, the Solo in Colo blog, and much more. For information on joining the Solo and Small Firm Section, click here.

If you don’t see your practice area listed here or on the previous Top Ten posts, please let us know. If you are interested at speaking at an event in your practice area, we would love to hear from you. Contact us today!

Top Ten Family Law Programs and Homestudies

As the compliance period ends for many Colorado attorneys, we are featuring top homestudies and programs in several practice areas. Today’s focus is on family law — click here for the Top Ten Ethics Programs and Homestudies, and stay tuned for Top Ten lists in other practice areas.

10. Lesbian/Gay/Bisexual/Transgender (LGBT) Law Institute — Dignity to All Persons. Although not strictly a family law program, this informative Institute discussed several issues of interest to family law practitioners, including Colorado’s litigation path to same-sex marriage, a discussion of polyamory, a point-counterpoint panel discussion of the Supreme Court’s decision in Obergefell v. Hodges, and more. Eleven general credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

9. Civil Unions — Legal Consequences for Family Law and Trust & Estate Practitioners. In May 2013, the Colorado Civil Unions Act became effective, allowing civil unions for same sex couples. This program discussed the changes to Title 14 and Title 19, C.R.S., and predicted consequences from the enactment of the Civil Unions Act. Three general credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

8. 33rd Annual National CLE Conference — Family Law. This annual conference in gorgeous Vail will highlight several important topics, including custody and placement issues for special needs children, tax aspects of divorce, and complex personalities in family law matters. Twenty-one general credits, including 3.6 ethics credits; only available as live program.

7. The Difficult Client: Annual Advanced Family Law Institute 2014. Most lawyers are prepared to address difficult legal issues, but what about difficult clients? Narcissistic, angry, defiant, and criminal clients cross all demographic backgrounds, but none are easy to represent. Family law practitioners encounter many difficult clients, and this program aims to provide practitioners with tools to deal with them. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

6. Trials and Tribulations: Preparing for Permanent Orders in Family Law — Family Law Fall Update 2014. This program details trends in family law, including an interactive ethics program on Rule 45 subpoenas, the most common grievances, emerging trends in Colorado family law, a judges’ panel on effective trial strategies and preparation, and more. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

5. Family Law Basic Skills. An ideal program for practitioners just entering family law, this event provides a comprehensive toolkit of skills for family law attorneys. Hear about ethics, jurisdiction, Rule 16.2, bankruptcy, collaborative law, criminal law issues in family law, low income issues, childhood development, juvenile issues, child support and maintenance, separation agreements, and more. Seventeen general credits, including 1.8 ethics credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and here for the 2013 program.

4. Civility, Cultural Competence, and Challenging Issues — Family Law Fall Update 2015. Faculty members at this program discuss civility in the practice of law and how to bring it back. Cultural competence refers to an ability to work with people of different cultural and socio-economic backgrounds. Challenging issues include everything from domestic violence to military divorce to LGBT issues. In addition to these topics, the program discusses case law updates and rule changes. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

3. Family Law Spring Update 2015. Stay up to date with recent changes in family law practice, including legislative and case law updates, imputation of passive and earned income, premarital and marital agreements, LGBT issues, out-of-court legal services, complex financial issues, and more. Eight general credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

2. So You Want to Be A Super Lawyer: Best Practices for Family Law Attorneys In and Out of the Courtroom — Annual Advanced Family Law Conference 2015. Regardless of inclusion in a “Super Lawyers”-type publication, every attorney wants to be the best lawyer they can be. This program provides tools to help family law attorneys excel, including tips for organizing all the pieces of a case, how to address thorny evidence issues, getting the best bang for your buck at mediation, view from the bench, balancing client interests with the best interests of the child, and more. Nine general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

1. Annual Family Law Institute. Every summer, Colorado’s family law practitioners gather in the mountains to learn about the latest family law issues — and also enjoy fun events like Hawaiian Shirt Day, a wine tasting event, hiking, and more. Topics covered at the 2015 Institute included marijuana and parenting time, parenting plans for infants, sex addiction and divorce, spoliation, real estate transfers in family law, a judges’ panel on maintenance, and more. Twenty-seven general credits, including four ethics credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 Institute and click here for the 2013 Institute.

Tenth Circuit: Miller v. Alabama Only Affected Mandatory Life Sentences for Juvenile Offenders

The Tenth Circuit Court of Appeals issued its opinion in Davis v. McCollum on Tuesday, August 25, 2015.

When he was 16, Johnny Davis was involved in a botched convenience store robbery that resulted in the murder of the store clerk. In 1992, under the Oklahoma sentencing scheme in effect at the time, he was sentenced to a discretionary sentence of life imprisonment without the possibility of parole. Davis appealed, and the OCCA affirmed his sentence in 1995 on direct appeal. He did not appeal the OCCA’s determination and his sentence became final. In June 2013, Davis filed a pro se application for postconviction relief in state court, which claimed his age at the time of the offense precluded the sentence of life without parole. Two weeks later, with the assistance of counsel, he filed a second application, asserting the same claims. The state court denied his applications and the OCCA affirmed those denials.

In May 2014, Davis filed a pro se federal habeas petition, asserting that (1) his life without parole sentence violated the Constitution because of the new standard expressed by the Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012); (2) his counsel was ineffective at trial and on appeal; and (3) as a juvenile offender, his sentence was unconstitutional. The district court denied him a COA, finding his second and third claims were time-barred and the first issue lacked merit because Miller was inapposite. Davis appealed.

The Tenth Circuit, using AEDPA deference, agreed with the district court that the second and third claims were time-barred. Because his conviction became final before the enactment of AEDPA, his deadline to file was in April 1997. The Tenth Circuit next addressed whether Miller created a new constitutional rule for all cases in which juvenile offenders were sentenced to life without the possibility of parole. The Tenth Circuit noted that Miller only created a new rule for cases in which a juvenile offender was sentenced under a mandatory sentencing scheme; because the Oklahoma court had discretion to impose life with the possibility of parole, Miller was inapplicable to Davis’s case.

The district court’s denial of a COA to Davis was affirmed.

Finalists for Child Protection Ombudsman Announced

On Friday, November 6, 2015, the Colorado Child Protection Ombudsman Board announced five finalists to be considered for appointment as the Child Protection Ombudsman. The five finalists are William Betts, Dennis Goodwin, Amy Hendrickson, Claudia Ponce Joly, and Stephanie Villafuerte. Comments regarding the five finalists may be emailed to Terry Scanlon and must be received no later than close of business on November 19, 2015. The Child Protection Ombudsman Board will conduct interviews with the five finalists at a publicly scheduled meeting on Tuesday, November 10, 2015 in the Ralph Carr Judicial Center. The Board will determine which finalist to appoint as Child Protection Ombudsman at another publicly scheduled meeting on Friday, November 20, 2015. The appointee must pass a criminal background check. For more information about the Child Protection Ombudsman program, click here.

Colorado Court of Appeals: Father’s Prevailing at Dependency and Neglect Hearing Deprives Juvenile Court of Further Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of S.T. on Thursday, October 8, 2015.

Dependency and Neglect—Subject Matter Jurisdiction.

The Department of Human Services (Department) became involved in this case after receiving a call from someone concerned that mother was abusing prescription pills and not properly supervising her infant, S.T. Following its investigation, the Department obtained an emergency custody order, placed S.T. with his maternal grandparents, and filed a dependency and neglect petition. The biological father was unknown, but the petition named three possible fathers. Mother admitted to the allegations, and the juvenile court adjudicated S.T. dependent and neglected.

Following a paternity test, the juvenile court identified the biological father of S.T. Father denied the allegations in the dependency and neglect petition and requested a contested adjudicatory hearing. The court dismissed the petition after a hearing but did not award custody to father, finding it was in S.T.’s best interests to remain in placement with his grandparents. Father moved for an order allocating parental responsibilities and summary judgment on that motion. He contended that he should have been awarded custody after the juvenile court dismissed the dependency and neglect petition.

The juvenile court denied the summary judgment motion but held a hearing as to allocation. It entered an allocating parental responsibilities (APR) order, granting parental responsibilities for S.T. to the grandparents.

The Court of Appeals considered whether the juvenile court lacked subject matter jurisdiction to enter the APR order and concluded that it did. CRS § 19-3-505(6) provides that when the allegations in a dependency and neglect petition are not proven, the court loses jurisdiction over the matter. Therefore, the court erred in holding a fitness hearing and entering the APR order. The APR order was vacated and the juvenile court was directed to discharge father and S.T. from any existing temporary orders entered before the adjudicatory hearing involving father and S.T.

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

Colorado Court of Appeals: Evidence of Prior Bad Acts Not Introduced to Show Character but to Show Potential Harms

The Colorado Court of Appeals issued its opinion in People in Interest of A.W. on Thursday, October 8, 2015.

Juvenile—Dependent and Neglected—Motion to Continue—Witness—CRE 404(b)—Injurious Environment—Motion for New Trial—CRCP 59(d)(1).

This case involves a juvenile court adjudicating an infant child, A.W., dependent and neglected. A.W.’s mother tried her case to a jury, which found that A.W. lacked proper parental care and that A.W.’s environment was injurious to her welfare.

On appeal, mother argued that the juvenile court erred in denying her motion to continue the adjudicatory hearing. When a motion for continuance is based on the absence of a witness, there is no abuse of discretion in denying the motion if the party seeking continuance did not use due diligence to procure the presence of that witness. Here, mother did not provide the transcript of the hearing in which she requested the continuance. Therefore, it cannot be shown that the juvenile court abused its discretion in denying her motion.

Mother next argued that the juvenile court violated CRE 404(b) and People v. Spoto, 795 P.2d 1314 (Colo. 1990), in permitting the Department of Human Services to introduce evidence about her prior dependency and neglect case, wherein her parental rights to her other seven children were terminated. A.W. had not been in mother’s care; therefore, neither CRE 404(b) nor the Spoto test applied to this case. Further, because mother’s acts in a prior dependency and neglect case were used to predict whether A.W. would be exposed to an injurious environment, they were relevant to the jury determining A.W.’s status as dependent and neglected.

Finally, mother contended that the juvenile court erred by denying her motion for a new trial. Because mother’s motion was not supported by affidavit, as required by CRCP 59(d)(1), the juvenile court did not abuse its discretion by denying her motion. The order was affirmed.

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

Colorado Court of Appeals: Restitution Award Vacated Where No Evidence Defendant Proximately Caused Damage

The Colorado Court of Appeals issued its opinion in People in Interest of D.I. on Thursday, September 24, 2015.

Restitution— Unendorsed Expert Testimony.

A police officer responded to a dispatch of someone recklessly driving a car that had been reported stolen two days earlier. The sole occupant of the car, D.I., was arrested. After he was in custody, officers saw that the ignition had been “punched” so that it could be started with a screwdriver. They found a screwdriver near the driver’s seat and no keys.

D.I. was charged with theft, first-degree aggravated motor vehicle theft, and possession of burglary tools (the screwdriver). The juvenile court adjudicated D.I. for committing the crimes of second-degree aggravated motor vehicle theft and possession of burglary tools. He was sentenced to “up to two years of probation or further court order” and ordered to pay $3067.91 in restitution for damage to the car.

On appeal, D.I. argued the trial court abused its discretion when it ordered restitution because there was no evidence that he proximately caused the damage to the car. The Court of Appeals agreed. According to the court’s findings, the damage to the car was inflicted two days before the time the court found that D.I. exercised control over the car. Therefore, the restitution order must be vacated.

D.I. argued that it was error to admit unendorsed expert testimony from a lay witness when it allowed a police officer to testify about the use of screwdrivers to operate stolen vehicles. The Court concluded that even if some of the testimony should not have been admitted, any error was harmless. The judgment of conviction was affirmed and the restitution order was vacated.

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

Colorado Court of Appeals: Amendments to Direct Filing Statute Did Not Negate District Court Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, September 10, 2015.

Juvenile—Direct Filing Statute—Sentence.

Nelson was charged with aggravated cruelty to animals, cruelty to animals, and underage possession of alcohol after a 2011 incident in which he killed his mother’s dog. Nelson was a juvenile at the time of the offense, but he was charged as an adult under Colorado’s direct filing statute. Nelson pleaded guilty to aggravated cruelty to animals, and at his sentencing hearing, asked the district court to apply the direct filing statute’s amended sentencing provisions. He argued that he had been convicted of an offense that is no longer eligible for direct filing and, therefore, he should be sentenced as a juvenile. The district court denied his request and sentenced Nelson in accordance with the adult felony sentencing scheme.

On appeal, Nelson argued that the district court erred by failing to apply the amended direct filing statute to his case and remanding his case to the juvenile court for sentencing. House Bill 12-1271 did not change the district court’s discretion to sentence Nelson as an adult. Therefore, the judgment of conviction and sentence were affirmed.

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