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.
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.
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.
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.
Colorado Court of Appeals: Juvenile Petition Dismissed Where Acts Charged Occurred when Offender Under 10 Years Old
The Colorado Court of Appeals issued its opinion in People in Interest of P.K. on August 27, 2015.
Juvenile—Aggravated Incest—Subject Matter Jurisdiction—Age.
In 2011, when P.K. was 11 years old, he was charged with three counts of aggravated incest against his younger brother. P.K. was between 8 and 11 years old at the time of the alleged offenses. P.K. offered an admission to a single charge of aggravated incest. The juvenile court accepted P.K.’s admission and sentenced him to two years of supervised probation. After a second petition to revoke probation was filed against P.K., his counsel asserted that the juvenile court lacked subject matter jurisdiction to have taken P.K.’s admission and imposed a sentence because he was under 10 years old for over half of the charging period. The juvenile court denied his motion to withdraw his admission. P.K. appealed.
In assessing the jurisdiction of the juvenile court, the relevant inquiry is the age at which the alleged acts were committed, not the age at which a disposition was imposed. Here, the prosecution charged multiple dates within a range, some of which occurred when P.K. was under 10 years old. Because the juvenile court only has jurisdiction over children 10 years of age and older, the juvenile court was without jurisdiction to accept P.K.’s admission because the charging document was fatally defective by including dates in which P.K. was under the age of 10. The order was reversed and the case was remanded with directions to the juvenile court to dismiss the delinquency petition without prejudice.
Colorado Court of Appeals: Sex Offender Registration Not Punishment so No Eighth Amendment Violation for Juvenile Offender Registration Requirement
The Colorado Court of Appeals issued its opinion in People in Interest of J.O. on Thursday, August 27, 2015.
Juvenile—Unlawful Sexual Contact—Indecent Exposure—Sex Offender Registration—Evidence—Eighth Amendment.
J.O., who was 15 years old at the time of the charged offenses, was adjudicated delinquent for acts that, if committed by an adult, would constitute misdemeanor unlawful sexual contact, attempted misdemeanor unlawful sexual contact, and two counts of indecent exposure. As part of adjudication, J.O. was required to register as a sex offender.
On appeal, J.O. argued that the trial court erred in ordering him to register as a sex offender because (1) he met the criterion for the magistrate to exempt him from registration, (2) the registration violated his rights under the Eighth Amendment, and (3) (1) the evidence was not sufficient to support the adjudication. Because J.O. was simultaneously adjudicated for unlawful sexual contact and indecent exposure, he did not meet the first offense criterion in CRS § 16-22-103(5)(a)(III) for exemption from sex offender registration. Additionally, because sex offender registration is not punishment, requiring him to register did not violate his constitutional rights. Finally, there was sufficient evidence showing that J.O. possessed the requisite intent for unlawful sexual contact and indecent exposure.Therefore, the evidence was sufficient to support his adjudication. The judgment was affirmed.
Colorado Court of Appeals: Consecutive Sentences May Constitute De Facto Life Sentence for Juvenile Offender
The Colorado Court of Appeals issued its opinion in People v. Ellis on Thursday, August 13, 2015.
Juvenile—Murder—Life Sentence—Eighth Amendment—Possibility of Parole—Life Expectancy—Direct Transfer Hearing—Jury Selection—Batson Challenge.
Ellis was 17 years old when he shot and killed C.H. and wounded N.A. from the backseat of his friend’s car. Defendant was found guilty of the charges against him for these crimes. He was sentenced to life with the possibility of parole after forty years on the first-degree murder conviction and a thirty-two-year consecutive sentence for the attempted first-degree murder–extreme indifference conviction.
On appeal, Ellis contended that his sentence to life with the possibility of parole after a minimum of forty years’ imprisonment, together with his mandatory consecutive term of thirty-two years imprisonment, is the equivalent of life without the possibility of parole and, therefore, unconstitutional. The Eighth Amendment prohibits mandatory life sentences without the possibility of parole for juveniles convicted of homicide. Ellis’s sentence would constitute a de facto life sentence without the possibility of parole, and therefore would be unconstitutional, if it left Ellis without a meaningful opportunity for release. However, because Ellis’s contention depended on a factual determination of his life expectancy, which the trial court did not previously conduct, the case was remanded to the trial court to make this determination.
Ellis contended that the trial court erred when it denied his request for a direct transfer hearing. CRS § 19-2-517(1)(a)(I) permits prosecutors to charge juveniles 16 years old or older as adults, without a transfer hearing, if their charges include a class 1 or 2 felony. The reenacted statute included a provision allowing juveniles charged by direct filing to file a motion with the district court seeking transfer to juvenile court. However, the reenacted statute became effective three days after a jury convicted Ellis. Therefore, the trial court did not err when it denied Ellis’s reverse transfer motion as untimely.
Ellis also contended that the trial court abused its discretion when it denied his Batson challenge to the prosecution’s use of peremptory challenges to excuse two potential jurors on account of their race. The prosecution provided a race-neutral explanation, the court found the prosecutor’s reasons believable, and the trial court’s ruling is supported by the record. Therefore, the trial court did not clearly err when it denied Ellis’s Batson challenges.
The Colorado State Judicial Branch released several amended forms in July and August, 2015. The amended forms were in the categories of adoption, DMV appeals, protection orders, relinquishing parental rights, and sealing cases. The forms are available here in PDF format and are available for download as Word documents from the State Judicial website.
- JDF 345 – “Order for Appointment of Confidential Intermediary” (revised 8/15)
- JDF 599 – “Complaint for Judicial Review of Denial, Cancellation, Suspension, or Revocation of a Driver’s License or Identification Card” (revised 8/15)
- JDF 440 – “Mandatory Protection Order” (revised 7/15)
- JDF 512 – “Relinquishment Interrogatory – Father” (revised 8/15)
- JDF 305 – “Petition for Expungement of UDD” (revised 8/15)
- JDF 313 – “Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)
- JDF 314 – “Order Regarding the Sealing of Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)
- JDF 323 – “Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)
Click here for all of State Judicial’s JDF forms.
Colorado Court of Appeals: Dependency and Neglect Action Not Moot When Collateral Consequences Probable
The Colorado Court of Appeals issued its opinion in People in Interest of C.G. on Thursday, July 30, 2015.
Dependency and Neglect—Mootness Following Child’s Death—CRCP 60(b) Motion.
In March 2006, the Jefferson County Division of Children, Youth, and Families (Division) filed a dependency and neglect petition and assumed temporary custody of a 5-year-old child and his younger half-sibling. The petition asserted that father (“whereabouts unknown”) had abandoned him. Publication notice was completed.
In May 2006, the court placed the child in the temporary custody of Phillips, the father of the child’s half-sibling. In November 2006, the court adjudicated the child dependent and neglected by default as to father and granted an allocation of parental responsibilities (APR) for the child to Phillips. The child died a year later. Phillips was convicted of first-degree murder and child abuse resulting in death.
Several years later, father, the child’s mother, and the personal representative of the child’s estate commenced a federal court action against the Division, the Denver County Department of Human Services (Department), and two caseworkers from the Department. The claims were 42 USC §1983 claims for violations of the child’s substantive due process rights.
In June 2014, father moved for CRCP 60(b) relief in the dependency and neglect proceeding. He sought to vacate the trial court’s orders because the Division had failed to exercise due diligence to ascertain his identity before serving him by publication. The Division responded that the matter was moot, and father answered that it would have a practical effect on the §1983 action. The court denied father’s motion as moot without holding a hearing.
The Court of Appeals concluded that the request for relief was not moot because of the collateral consequence of the dependency and neglect orders in father’s federal action. The Court noted that an issue is not moot when the judgment may result in significant collateral consequences to a party. This decision turns on showing the reasonable possibility of such consequences. Here, the orders in the dependency and neglect proceeding were being used to impose a collateral consequence on father—the denial of relief in his federal action. If the child was not in the state’s custody after transferring custody and awarding APR to Phillips, then father’s only surviving claims in the federal action (against the caseworkers) would be dismissed. If, however, his CRCP 60(b) relief was granted, there would be a reasonable possibility that he could pursue his remaining claims in federal court.
Even if father’s motion were moot, the district court should have considered its merits because its substantive issues fell within the exceptions to the mootness doctrine. The order was reversed and the matter was remanded for consideration of the merits of the CRCP 60(b) motion.
The Colorado Court of Appeals issued its opinion in People in Interest of C.Z. on Thursday, June 18, 2015.
Dependency and Neglect—Termination of Parent–Child Legal Relationship—Americans with Disabilities Act.
The Weld County Department of Human Services (Department) filed a dependency and neglect petition after mother was unwilling to follow through with treatment to address her multiple mental health diagnoses. The Department also asserted father had been diagnosed with severe depression. The court granted the Department custody of the child.
The court then adjudicated the child dependent and neglected and approved a treatment plan for the parents. After receiving the psychological and parent–child interactional evaluations, the Department moved to terminate the parents’ parental rights, asserting that no appropriate treatment plan could be devised to address their unfitness. Following a contested hearing, the court terminated the parent–child legal relationship.
On appeal, mother and father argued that CRS § 19-3-604(1)(b)(I) conflicts with the Americans with Disabilities Act (ADA) because it allows the court to terminate parental rights of disabled parents without requiring the Department to provide them the rehabilitative services that other parents receive. The Court first addressed the Department’s assertion that the parents’ contention should be summarily rejected because the ADA is not a defense to termination of parental rights. Title II of the ADA does not limit the court’s authority to terminate a disabled parent’s rights when the parent is unable to meet his or her child’s needs. However, it does apply to the provision of assessments, treatment, and other services that a department provides to parents through a dependency and neglect proceeding before a termination hearing. Accordingly, the issue in this case is whether CRS § 19-3-604(1)(b)(I) is preempted by the ADA.
The type of preemption at issue here was conflict preemption, which voids a state statute that conflicts with a valid federal law. A conflict is found when compliance with both federal and state regulations is a physical impossibility or when the state law stands as an obstacle to the accomplishment and full execution of the purposes and objectives of federal law.
CRS § 19-3-604(1)(b)(I) permits termination of parental rights of mentally impaired parents without requiring the Department to provide them treatment plans. However, the Court held this does not conflict with the ADA’s requirement that a public entity make reasonable accommodations for qualified individuals with disabilities. If rehabilitative services can be offered to address a parent’s mental impairment so that he or she can meet the child’s needs within a reasonable time, then termination is not authorized under CRS § 19-3-604(1)(b)(I). A finding that no treatment plan can be devised to address a parent’s unfitness caused by mental impairment is the equivalent of a determination that no reasonable accommodations can be made to account for the parent’s disability under the ADA.
In determining whether reasonable accommodations can be made to address the parent’s disability under the ADA, the court’s paramount concern is the child’s health and safety. The ADA does not protect an individual who poses a safety risk to others. The Court concluded that the trial court’s findings here satisfy the ADA requirement that no reasonable accommodations could be made to enable mother and father to participate in an appropriate treatment plan and rehabilitative services.
Father also argued the termination of his parental rights solely on the basis of his mental disability violated his right to equal protection under the Fourteenth Amendment. The Court disagreed. Parents who are unable to meet their children’s needs within a reasonable time, whether because of mental impairment or another statutorily enumerated reason, are not similarly situated to parents who have the ability to become fit within a reasonable time. The judgment was affirmed.
Colorado Court of Appeals: Bond Condition Does Not Impermissibly Impair Defendant’s Right to Parent his Children
The Colorado Court of Appeals issued its opinion in People v. Fallis on Thursday, June 4, 2015.
Bond Conditions—Right to Parent.
A Weld County grand jury indicted petitioner for second-degree murder of his wife. The trial court released petitioner on bond. One of the bond conditions was that petitioner remain in Colorado during the pendency of this criminal case. Petitioner filed a motion to reconsider the bond condition, which was denied.
On appeal, petitioner argued that the trial court transgressed on his presumption of innocence in setting the bond condition and unconstitutionally interfered with his right to parent his children, who reside in Indiana. The court did not treat petitioner as guilty of the charged offense; instead, the court properly considered the nature of the charged offense and the penalty that would be imposed if he was found guilty beyond a reasonable doubt. Further, the court did not limit petitioner’s right to parent his children. Any such restrictions arise from circumstances outside the trial court’s control: petitioner’s decision to move himself and his children to Indiana after his wife’s death, and the temporary decision of an Indiana court prohibiting the children from being removed from Indiana. Accordingly, the court did not abuse its discretion in imposing the bond condition. The petition for review of the bail order was dismissed.