December 11, 2017

Colorado Gives: Rocky Mountain Children’s Law Center Compassionately Transforms the Lives of Abused and Neglected Children

Colorado Gives: CBA CLE Legal Connection is focusing on several legal charities in honor of Colorado Gives Day, December 5, 2017. These charities, and many, many others, greatly appreciate your donations of time and money.

childrens-law-center-logo-gFor over thirty-five years, the Rocky Mountain Children’s Law Center has provided compassionate legal advocacy and clinical services to children who have been abused or neglected. Through a team of legal professionals and social workers, the Children’s Law Center serves at-risk children and considers the whole child with each recommendation regarding the child’s best interest.

The Children’s Law Center also works for public policy change, working to make children a political priority at the local, state, and national levels. The Children’s Law Center has made great progress in this area. They created the first Colorado Child Protection Ombudsman Program, promoted a 2013 Senate Bill to reduce the number of child abuse fatalities in the state, promoted a 2013 House Bill to streamline the process to report child abuse, and much more.

The Children’s Law Center has several programs devoted to legal advocacy for children. The Education Program promotes the adoption of policies and procedures in the schools and legislature to recognize the impact of trauma on children’s learning behaviors, reduce school transfers for children in the child protection system, and redirect children in the school disciplinary system from the school-to-prison pipeline. The Children’s Law Center also has a caregiver advocacy program, a domestic violence program, a trauma-informed yoga program, and a therapeutic garden.

The Children’s Law Center relies on donations to continue providing compassionate legal advocacy to abused, neglected, and at-risk children. Their annual operating expenses total over one million dollars per year. Donate on Colorado Gives Day by clicking here or any day by filling out the form on this webpage.

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

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

Dependency and Neglect—No Fault—Summary Judgment.

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

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

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

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Social Worker Not Entitled to Qualified Immunity after Violating Defendant’s Constitutional Rights

The Tenth Circuit Court of Appeals issued is opinion in T.D. v. Patton on Monday, August 28, 2017.

Ms. Patton is a social worker for the Denver Department of Human Services (DDHS) and was responsible for removing T.D., a minor, from his mother’s home, and recommending T.D. remain in the temporary custody of his father, Duerson. T.D. was removed from Duerson’s home after DDHS made a determination that T.D. had suffered physical and sexual abuse at the hands of his father. This case concerns Ms. Patton’s motion for summary judgment on the grounds that she is entitled to qualified immunity.

The Tenth Circuit Court of Appeals concluded that Ms. Patton violated T.D.’s clearly established substantive due process constitutional right to be free of a state official’s creation of danger from a private actor under a danger-creation theory. The court found that Ms. Patton violated T.D.’s substantive due process right by knowingly placing T.D. in a position of danger by recommending that T.D. be placed in Duerson’s custody despite admitted concerns about T.D.’s safety, her knowledge of Duerson’s criminal history and conviction for attempted sexual assault against a minor, and failure to investigate whether Duerson was abusing T.D. despite her awareness of evidence of potential abuse. The court found that Ms. Patton acted recklessly and in conscious disregard of a known and substantial risk that T.D. would suffer serious, immediate, and proximate harm in his father’s home.

Under 42 U.S.C. § 1983, a person acting under color of state law who subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution shall be liable to the injured party. However, a defendant in an action may raise a defense of qualified immunity, which shields public officials from damages unless their conduct was unreasonable in light of law. Once a defendant asserts qualified immunity, the plaintiff has the burden to show that the defendant’s actions violated a federal constitutional or statutory right and that the right was clearly established at the time of the defendant’s unlawful conduct.

The court first evaluated whether the facts satisfied T.D.’s claim of danger-creation. The court considered whether Ms. Patton created or increased the danger posed to T.D. The court concluded that Ms. Patton’s actions amounted to a failure to investigate evidence that Duerson was abusing T.D., satisfying the first element. The second element is whether T.D. was a member of a limited and specifically definable group. The court held that because the state removed T.D. from his natural parent and took him into state custody, T.D. fell within a limited and specifically definable group of children.

Third, Ms. Patton’s conduct put T.D. at substantial risk of serious, immediate, and proximate harm. This is evidenced by Ms. Patton withholding relevant information and recommending T.D. be placed with his father, by failing to investigate evidence of potential abuse, and by continuing to recommend T.D. remain with his father.

The court discussed the fourth and fifth elements simultaneously. Ms. Patton acted recklessly and in conscious disregard of a risk (element 4) that was obvious or known (element 5). Ms. Patton knew of Duerson’s criminal history, but deleted those concerns for fear of being fired. She further withheld concerns of T.D.’s safety and concerns, stemming from her professional judgment, that T.D. should be removed from the home. Her intentional exclusion of her knowledge and concerns from her hearing report showed she acted recklessly and in conscious disregard of an obvious or known risk that Duerson posed to T.D.

The last element is satisfied by Ms. Patton’s conscience-shocking conduct. Ms. Patton’s conduct was held to significantly exceed ordinary negligence or permitting unreasonable risk and rose to a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.

In sum, Ms. Patton’s conduct violated T.D.’s substantive due process right by creating or increasing T.D.’s vulnerability to the danger of private violence by Duerson.

The court found that the law was clearly established at the time of Ms. Patton’s misconduct. The court held that a reasonable official in Ms. Patton’s shoes would have understood that she was violating T.D.’s constitutional right by creating or increasing T.D.’s vulnerability to the danger posed by Duerson.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s DENIAL of summary judgment.

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

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

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

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

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

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

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor’s Comment on Witness’s Credibility Did Not Constitute Plain Error

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

JuvenileDelinquentRobberyAssaultProsecutorial MisconductSentenceFeesWaiverIndigence.

After T.C.C. removed a package from the front step of Ipson’s neighbor’s house, Ipson confronted T.C.C. and told him to return the package. T.C.C. then slapped, punched, and swore at Ipson. A judgment was entered adjudicating T.C.C. delinquent of an act that would constitute robbery and third degree assault if committed by an adult. At sentencing, T.C.C. asked the court to waive all mandatory fees based on his indigence. Instead of ruling on the motion, the court deferred this decision to probation.

On appeal, T.C.C. contended that the prosecutor improperly vouched for Ipson’s credibility and truthfulness when he argued, “Certainly Mr. Ipson has no reason to make up that he got struck numerous times from [T.C.C.]” The prosecutor’s argument was a reasonable inference from the record and not improper.

T.C.C. also contended that the trial court erred in delegating the waiver decision to probation and in permitting a waiver of fees based on “good behavior.” The plain language of the statutes permits only the court to waive fees and surcharges based solely on a finding of indigence, not based on good behavior. Therefore, the court erred by not ruling on T.C.C.’s motion.

The judgment and sentence were affirmed, and the case was remanded for the trial court to rule on T.C.C.’s motion for waiver of fees and costs based on indigence.

Summary provided courtesy of Colorado Lawyer.

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

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

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

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

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

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

Summary provided courtesy of Colorado Lawyer.

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

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

DOMESTIC RELATIONS

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

CRIMINAL

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

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

Tenth Circuit: Social Workers Held to Have Qualified Immunity on Foster Child’s Special-Relationship Claims

The Tenth Circuit Court of Appeals issued its opinion in Dahn v. Amedei on Monday, August 14, 2017.

This case concerns an exception to the general rule that states are not liable for harm caused by private actors. This exception, called the special-relationship doctrine, makes a state or its agents liable under 42 U.S.C. § 1983 for failing to protect people from harm if they have deprived those people of liberty and made them completely dependent on the state for their basic needs. In this case, the Tenth Circuit Court of Appeals decided whether the geographical reach of the special-relationship doctrine crosses state lines.

A foster child, James Dahn, sued two Colorado social workers responsible for investigating reports that he was being abused. Dahn had been in Oklahoma’s custody until, in 2008, a Colorado adoption agency (Adoption Alliance) placed him for adoption with a foster father, Jeremiah Lovato, in Colorado. The foster father physically abused Dahn before and after adopting him. Many reports of suspicious abuse were reported to employees of the Moffat County Department of Social Services, Audrey Amedei and Amanda Cramer. Amedei and Cramer responded to the reports from Dahn’s school regarding Dahn’s suspicious bruising and significant, twenty-eight-pound weight loss, by interviewing Dahn and speaking with Lovato, via telephone. The reports of abuse were then determined to be unfounded. After further reports of suspicious bruising, Cramer chose not to speak with Dahn or Lovato, but instead called Vicki little, an independent contractor hired by Adoption Alliance to act as Dahn’s caseworker. Little visited the home, only speaking with Dahn alone for a few minutes, and shrugged off the concerns, determining Dahn was doing well. After two more visits where Little failed to speak to Dahn alone, she recommended that Lovato be allowed to adopt Dahn.

In 2010, the physical abuse from Lovato had escalated to the point where Dahn had to protect himself by running away. Dahn was taken to the hospital, where it was discovered that Lovato had broken Dahn’s arm months earlier, there was still ongoing abuse resulting in bruising, internal injuries, and bleeding, as well as open lesions. Lovato was tried and convicted of criminal child abuse in Colorado and sentenced to 119 ½ years-to-life in prison.

In 2013, Dahn sued Adoption Alliance, Little, Tem (Little’s supervisor), Amedei, and Cramer for his injuries. Dahn alleged (1) all defendants violated his Fourteenth Amendment substantive due process rights, under a special-relationship theory; (2) all defendants violated his Fourteenth Amendment substantive due process rights, under a state-created-danger theory; and (3) that defendants Adoption Alliance, Tem, and Amedei failed to properly train and supervise their employees in evaluating, monitoring, and investigating the prospective adoptive placement for abuse, resulting in violations of Dahn’s Fourteenth Amendment substantive-due-process rights. Dahn also brought state-law claims for negligence and outrageous conduct against all defendants. The issue decided by the Circuit was whether the district court erred in concluding that Amedei and Cramer had a special relationship with Dahn, and whether the law on this issue was clearly established.

Due process claims built on the special-relationship doctrine have four elements. First, the plaintiff must demonstrate the existence of a special relationship, meaning that the plaintiff completely depended on the state to satisfy basic human needs. Second, the plaintiff must show that the defendant knew that the plaintiff was in danger or failed to exercise professional judgment regarding that danger. Third, the plaintiff must show that the defendant’s conduct caused the plaintiff’s injuries. And, fourth, the defendant’s actions must shock the conscience. The question the Circuit decided was whether a foster child in the custody of one state can, after being placed by a private adoption agency with a foster father in a different state, establish a special custodial relationship with that second state when the second state takes on the duties to investigate evidence suggesting abuse.

The Tenth Circuit found that the law does not clearly extend constitutional liability under the special-relationship doctrine to employees of a state that did not deprive Dahn of his liberty or supply his basic needs, even though they were social workers in the county where he resided. Although the Circuit stated that Amedei and Cramer owed some duty to Dahn, as they investigated the suspected abuse but failed to take any action to remove Dahn from Lovato’s custody, the court found that Dahn had failed to show clearly established law that created a special-relationship between him, Amedei, and Cramer. This conclusion comes from a previous case which noted that the affirmative duty to protect arises not from the state’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf. Because the state had not deprived the child of his liberty, it did not have a custodial relationship with him that required the state to protect him from harm. The Circuit declined to address the other element of his claim, which is whether Amedei and Cramer acted in an unprofessional and conscience-shocking manner.

The Tenth Circuit Court of Appeals REVERSED the district court’s order denying Amedei and Cramer’s motion to dismiss Dahn’s special-relationship claim against them, and REMANDED for further proceedings.

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

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

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

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

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

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

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

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

Summary provided courtesy of Colorado Lawyer.

Lawyers Run for Kids on October 1, 2017

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

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

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

Perks for you:

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

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

Colorado Court of Appeals: Withdrawal of Charge by DHS Does Not Constitute Final, Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of C.S. on Thursday, July 13, 2017.

Dependency and Neglect—Expungement—Lack of Jurisdiction.

The Weld County Department of Human Services (Department) filed a motion with the juvenile court to dismiss a dependency and neglect petition involving C.S. Father agreed to the dismissal but requested expungement of administrative findings of child abuse made against him by the Department. The court dismissed the case and denied father’s request, finding that father could obtain due process through an administrative hearing.

On appeal, father argued that the juvenile court denied him a fundamentally fair proceeding when it dismissed the case without also ensuring the expungement of the administrative child abuse filing that led to the filing of the case. The court of appeals concluded that the juvenile court lacks authority to order expungement of child abuse and neglect records and reports, and the court’s order granting the parties’ voluntary dismissal of the petition is not final and appealable. The court does not have jurisdiction to hear the appeal.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.