December 11, 2016

When Your Client’s Kid Needs Help: Juvenile Criminal Justice for Every Attorney

pow6qw4fks1i955Every lawyer has had the experience of their client asking questions about an area of law in which they don’t practice. A tax lawyer may field questions about her client’s DUI matter. An immigration attorney may receive a question from his client about preparing an estate plan. A domestic relations attorney may hear questions about her client’s business. Regardless of an attorney’s area of expertise, clients will ask legal questions and expect informed answers.

So what do you do when your client tells you his kid might be in trouble with the law? Because few matters are more important to a parent than the well-being of his or her child, knowing what to say and when to recommend that your client seek a juvenile defense attorney is vital.

From the legalization of marijuana in Colorado to the perils of social media, kids live in a different world than a generation ago. These days, it seems there are more and more ways for kids to find themselves in trouble with the law, not because of criminal intent, but because the children or their families do not understand what behavior the law criminalizes. The pitfalls kids face in the criminal system and school disciplinary settings can be extraordinary, and the consequences can be far-reaching—even lifelong.

In seeking to protect the client’s children from lifelong consequences, it is imperative and ethically required for an attorney to fully understand the laws applicable to the matter, or to find someone who specializes in juvenile law to provide guidance. The Criminal Code and Children’s Code are complex, and children are frequently treated differently than adults in regard to criminal matters.

On Monday, December 12, 2016, attorney Lara Marks Baker will deliver a one-hour breakfast presentation on guiding your client through juvenile criminal justice issues. This program is a great way to learn about what to do when your clients need help with their kids. Lara will highlight the federal and state laws which are frequently implicated in matters of juvenile justice, and when to signal a client that criminal or disciplinary matters may be forthcoming. Register by calling (303) 860-0608 or by clicking the links below.

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CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

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

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

childrens-law-center-logo-gFor over thirty 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 Gives: Rocky Mountain Immigrant Advocacy Network Promotes a More Humane Immigration System

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

rmianThe Rocky Mountain Immigrant Advocacy Network (RMIAN) is a nonprofit legal services organization that believes justice for immigrants means justice for all. RMIAN provides life-changing legal services to vulnerable immigrant children in Colorado, and to adults in immigration detention. Without this assistance from RMIAN’s attorneys, RMIAN’s child clients and individuals in detention would be forced to face immigration court hearings entirely on their own, an injustice by any standard. A national study, headed by a federal judge, found that immigrants with lawyers are five times more likely to win their cases than those without. For many, a loss in immigration court means deportation and a forced return to the persecution, abuse, or other violence from which they fled. For many others, it signifies a permanent and heartbreaking separation from spouses, partners, children, siblings, and other loved ones.  RMIAN’s programs are dedicated to ensuring legal representation, due process, and support.

RMIAN’s Detention Program has a daily presence at the immigration detention center in Aurora, Colorado, where over 900 individuals are detained on civil immigration charges every day. RMIAN’s attorneys provide know-your-rights presentations before detained individuals have to go before the immigration judge for the first time, assist with applications and case preparation, refer cases to pro bono attorneys, represent clients, and provide social service support for the most vulnerable detainees. Recent RMIAN cases involving clients in detention include a man from Somalia granted asylum on the basis of his political opinion; a longtime lawful permanent resident granted a second chance by the immigration judge to stay with his family in Colorado; a young man from Honduras granted asylum based on the persecution he would face because of his sexual orientation; and numerous clients who won bond reductions with RMIAN’s representation. In 2015, RMIAN’s Detention Program provided 209 know-your-rights presentations to over 1,700 individuals in detention, conducted over 800 individual intakes, held 33 workshops for over 100 individuals fighting their cases on their own, and provided intensive individual assistance to over 500 detainees. In addition, RMIAN’s staff attorneys and volunteer attorneys represented 59 clients in their complete immigration court cases.

RMIAN’s Children’s Program provides immigration legal services to children through Colorado. Recent clients include a young man who was granted a T visa based on being a victim of human trafficking; several children who won Special Immigrant Juvenile Status as a result of being abused, abandoned or neglected; several young crime victims and their family members who were granted U Visas; and numerous youth who were granted Deferred Action for Childhood Arrivals. In the past several years, RMIAN’s Children’s Program has seen an exponential increase in its representation of unaccompanied children who fled horrors in their home countries and who are now seeking asylum and other immigration relief before the Denver Immigration Court. In 2015, RMIAN’s Children’s program directly represented 288 children, conducted 658 intakes and consultations, and referred 205 cases to pro bono attorneys. By providing free legal services to immigrant children, as well as outreach efforts to community partners, RMIAN educates children and their families on the rights and protections to which they are entitled under federal immigration law and works to ensure that Colorado’s communities are safe.

In addition to direct legal services, RMIAN provides community education and training about immigration law, particularly as it relates to individuals in immigration detention and immigrant children. In 2015, RMIAN gave 66 presentations to 2,210 community members.

Please consider making a donation to RMIAN today to help us fulfill our values statement, “We believe that justice for immigrants means justice for all.” Donations may be mailed directly to RMIAN at 3489 West 72nd Avenue, Suite 211, Westminster, CO 80030 or via RMIAN’s website at www.rmian.org  RMIAN is participating in Colorado Gives Day on Tuesday, December 6, 2016.

Colorado Court of Appeals: Jury Finding of No Dependency and Neglect Not Final Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of S.M.-L. on Thursday, November 17, 2016.

Dependency and NeglectFinal and Appealable Order.

The Department of Human Services (Department) filed a dependency and neglect petition regarding S.M-L., B.M-M, and R.S. (the children). The petition named D.S. as R.S.’s biological father and named G.S. as the mother of all of the children. The Department asserted that father had sexually abused his stepdaughter S.M-L. He was arrested and criminally charged with sexual abuse. Father denied the allegations and mother believed S.M-L was lying about them. Mother requested a bench trial and father requested a jury trial.

As to mother, the court found the allegations in the petition had been proven by a preponderance of the evidence and entered an order adjudicating the children dependent and neglected. However, the jury returned a verdict as to father finding that R.S. was not dependent or neglected. The Department moved for an adjudication of father notwithstanding the verdict. The trial court denied the motion and dismissed father from the petition. Both the Department and mother appealed.

The Colorado Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of a final, appealable order, noting that it was unaware of any authority for the proposition that dismissing a parent from a petition based on a jury verdict was a final appealable order. C.R.S. § 19-1-109(2)(c) provides that an order decreeing a child to be neglected or dependent shall be a final and appealable order upon the entry of the disposition. This section does not address the dismissal of a party from the petition based on a jury’s verdict finding a child was not dependent or neglected as to that party. The court also noted that after the jury determined that R.S. was not dependent or neglected as to father, the trial court did not have jurisdiction to enter any orders other than dismissal of the petition. Because a jury’s “no adjudication” verdict is not a proper basis for a motion for adjudication notwithstanding the verdict and thus is not a final appealable order under C.A.R. 3.4(a) or C.R.S. § 19-1-109(2)(c), the Department’s appeal was dismissed.

Mother challenged her adjudication on several grounds, but the court found no reversible error because the evidence supported the trial court’s factual findings.

The Department’s appeal was dismissed and the order adjudicating mother was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Gives: Disability Law Colorado Recognizes the Inherent Value of All People and Embraces Empowerment

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

dlc-630x160Disability Law Colorado (formerly known as The Legal Center for People with Disabilities and Older People) was created in 1976 out of the dream of a small group of parents who came together to secure equal rights for their children with developmental disabilities who were living in state institutions. These parents wanted a better life for their children and believed that all people with disabilities deserved the right to live full and rewarding lives. Disability Law Colorado’s early successes included requiring school districts to pay for children’s education in public schools, allowing children with severe disabilities to attend school for the first time. Disability Law Colorado also succeeded in preventing sterilization of people with developmental disabilities and preventing workplace discrimination against people with disabilities.

In 1977, the governor designated Disability Law Colorado to be Colorado’s Protection and Advocacy (P&A) System for people with developmental disabilities. Today, Disability Law Colorado is recognized as a leader in the National Disability Rights Network made up of Protection and Advocacy programs from all the states and territories.

For Colorado Gives Day, Disability Law Colorado has a $15,000 fundraising goal. By donating through Colorado Gives, your gift will go further thanks to a $1 million dollar incentive fund. Click here to donate.

Colorado Court of Appeals: Deferred Juvenile Adjudication Not Predicate Felony Offense for POWPO Purposes

The Colorado Court of Appeals issued its opinion in People in Interest of A.B. on Thursday, November 17, 2016.

A.B., a juvenile, was the rear driver’s side passenger in a parked car when police blocked the car due to a noise violation from the car’s loud stereo. All three of the vehicle’s occupants exited when the police arrived, and an officer saw A.B. pull a gun from his waistband and throw it into the car. He was charged with possession of a weapon by a previous offender (POWPO) based on a prior incident in which A.B. accepted a deferred adjudication on a charge of aggravated motor vehicle theft in the first degree, a felony.

Before trial, A.B. moved to suppress the weapon, arguing the search was unconstitutional because when police officers ordered him to get back in the car, they seized him but lacked reasonable suspicion to do so. The trial court denied the motion to suppress based on the officer’s testimony that he saw A.B. throw the gun into the car. The officer presented the same testimony at trial. When the prosecution rested, A.B. moved for judgment of acquittal, arguing the deferred adjudication did not constitute a prior adjudication for POWPO purposes. The court denied his motion, and A.B. was convicted and sentenced to two years in youth corrections.

On appeal, A.B. argued the trial court erred in denying his motion to suppress. The court of appeals disagreed. The court declined to reach the constitutional issue of whether the encounter was a seizure for Fourth Amendment purposes, and instead found that the officers had reasonable suspicion that every person in the vehicle was violating the Denver Municipal Code’s noise ordinance. Therefore, the court found that the officers had reasonable suspicion to seize A.B. based on a violation of the noise ordinance.

A.B. next argued that his deferred adjudication was not a predicate felony for POWPO purposes. The court of appeals agreed. The court analyzed the POWPO statute applicable to juveniles, C.R.S. § 18-12-108(3), and found no reference to deferred adjudications. A.B. relied on the plain statutory language in arguing that because he accepted a deferred adjudication, he was not actually adjudicated at the time of the POWPO offense. The Attorney General analogized the juvenile statute to its adult counterpart, relying on cases interpreting “conviction” to include deferred judgments. The court of appeals analyzed the juvenile delinquency statutes and found that they distinguished deferred adjudications from adjudications of juvenile delinquency both as to definition and effect. The court found that the General Assembly expressly equated deferred adjudications to delinquency adjudications in several instances, evidencing an intent to separate the two definitions. The court found that A.B.’s deferred adjudication was not a predicate offense for POWPO purposes.

The court of appeals affirmed the denial of the suppression order, reversed the adjudication, vacated the sentence, and remanded for entry of judgment of acquittal.

When Your Client’s Kid Needs Help — Advising Clients Whose Children are in Trouble

On Thursday, November 17, 2016, the Colorado Court of Appeals issued its opinion in People in Interest in R.C. When R.C. was 14 years old, he took a picture of his friend, L.P., during class one day. R.C. used Snapchat to draw a picture of a penis ejaculating near L.P.’s face. R.C. showed the picture to L.P. and three other friends, giggling. One other friend laughed, but L.P. felt bad. The class ended and the boys went to lunch. In the cafeteria, R.C. showed the altered pic to a few more people. L.P.’s friends could tell he was upset and asked R.C. to apologize, which he tried to do, but L.P. pushed him away. After lunch, L.P. and his friends reported the incident to the school’s principal.

R.C. was charged with disorderly conduct, and, after a trial, the court found that R.C. had committed disorderly conduct and sentenced him to three months’ probation, therapy, and eight hours of work crew.

R.C. appealed, arguing the prosecution failed to prove every element of disorderly conduct and that his drawing was protected speech under the First Amendment, because only “fighting words” were banned and the altered photo did not qualify as “fighting words.” The Colorado Court of Appeals noted that “fighting words” are words that by their very utterance tend to provoke retaliatory conduct in others. The court remarked that the Colorado statute does not prohibit utterances or displays that inflict injury, but only those that tend to incite an immediate breach of the peace.

The court found that the cartoon-like drawing on the photo was not enough to constitute “fighting words.” The court noted that the district court had apparently found the picture to be “fighting words” because it implied that L.P. was gay, and disagreed with this reasoning. The court found no evidence that R.C. intended to imply L.P. was gay, and even if he did, the court remarked, “We disagree with the district court, and the dissent, that the suggestion of homosexuality or homosexual conduct is so shameful and humiliating that it should be expected to provoke a violent reaction from an ordinary person.” The court determined that the average person, even the average 14-year-old, would not be expected to fly into a violent rage by seeing a picture of himself with a penis drawn on it.

The court of appeals agreed with R.C. that his photo did not amount to fighting words, and therefore found that the government failed to prove an element of the offense. The court of appeals reversed the conviction.


It is no surprise that adolescents make bad decisions. Many 14-year-old boys have joked about their friends inappropriately. R.C. did just that. But for R.C., the bad decision had severe consequences. His immature and inappropriate decision to draw a picture of a penis ejaculating near his friend’s face caused him far more than a phone call home from the principal. He faced years of legal troubles. He was charged with a criminal offense, went to trial, and was convicted. Although his conviction was reversed on appeal, he spent many years fighting it.

R.C. could have been any kid who made an immature decision. R.C.’s parents could have been any of us. But what happens when R.C.’s parents happen to be your clients for a business transaction, or estate planning, or even for a domestic dispute? The parents, your clients, are naturally going to call you for advice.

All too often attorneys are contacted by a current client that has a kid accused of wrongdoing. Federal and state laws have increased the number of suspensions, expulsions, probation, and criminal allegations against high school and college students. Educate yourself about how the laws work in Colorado.

On December 12, Lara E. Baker of Foster Graham Milstein & Calisher, LLP will present a one-hour seminar, “When Your Client’s Kid Needs Help,” to discuss the pitfalls young students face in Colorado with attorneys who have routinely handled these kinds of matters. Learn how to guide these children to avoid mistakes that can have lifelong consequences.

  • Avoiding pitfalls in the juvenile justice system, focusing on the perils of social media
  • Drugs and alcohol
  • Sex and the laws of consent
  • School disciplinary consequences
  • Law enforcement interaction with juveniles

This is a program no parent can afford to miss. And if you represent parents of teenagers, you should attend, too. Register by calling (303) 860-0608 or clicking the links below.

 

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CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Courts Celebrate National Adoption Day Throughout November

Each November, National Adoption Day is celebrated to recognize and raise awareness of the over 100,000 children in foster care awaiting permanent families. Since its inception, National Adoption Day has made the dreams of thousands of children come true through the cooperative work of courts, judges, attorneys, adoption professionals, child welfare agencies and advocates to finalize adoptions and find permanent, loving homes for children in foster care. In Colorado, the adoptions of 132 children will be finalized this month. Currently, 283 Colorado children await permanent families.

In 2006, for the first time, National Adoption Day was celebrated in all 50 states, the District of Columbia and Puerto Rico. This year, events will be held throughout the country to finalize the adoptions of more than 4,500 children in foster care, and to celebrate all families who adopt. Since 2000, more than 50,000 children have had their adoptions finalized on National Adoption Day.

Throughout the state, courts will be celebrating Adoption Day this month. Some of the events are listed here:

  • First Judicial District (Jefferson and Gilpin counties): On Thursday, November 17, 2016, from 1 to 5 pm at the Jefferson County Courthouse, Magistrates Andrew Fitzgerald and Margaret Tims will preside over adoptions for 15 families. On Saturday, November 19, 2016, from 8:30 am to noon, Judges Margie Enquist, Gail Meinster and Tamara Russell, and Magistrate Jamin Alabiso will preside over 24 adoptions for 18 families. Cameras are welcome; contact Mallory Hyatt at (303) 271-4389 for more information.
  • Second Judicial District (Denver County): On Thursday, November 10, 2016, the Denver County Court held its National Adoption Day celebration. Forty-six children were united with 31 families. Contact Barbara Bosley, Family Court Facilitator, Denver Juvenile Court, (720) 337-0584 or (303) 638-5098 for more information.
  • Third Judicial District (Huerfano and Las Animas counties): On Tuesday, November 29, 2016, at 2 pm, Judge Leslie J. Gerbracht will preside over the adoptions of three children into two families. All families who have adopted children in the Third Judicial District are invited to attend, and cameras are welcome with the families’ permission. Contact Joanne A. Montero at (719) 497-8208 for more information.
  • Tenth Judicial District (Pueblo County): On Friday, November 18, 2016, District Court Judge David W. Crockenberg will preside over six adoptions. Expanded media coverage has been granted; contact Amanda Ledbetter at (719) 583-4716 for more information.
  • Twelfth Judicial District (Alamosa, Conejos, Castillo, Mineral, Rio Grande, and Saguache counties): On Tuesday, November 1, 2016, the Twelfth Judicial District held a reception to honor the 27 children who were adopted into 18 families last year. Members of the public, the courts, Departments of Human Services, county attorneys, and county commissioners were in attendance. Chief Judge Pattie Swift addressed the group and discussed the important role of adoptive families in the justice system and thanked DHS staff and attorneys for the work that they do.
  • Seventeenth Judicial District (Adams and Broomfield counties): On Saturday, November 19, 2016, from 9 am to noon, nine children will be united with eight families. District Court Judges John Popovich and Jill-Ellyn Straus, as well as Magistrate Fran Simonet, will preside over the adoptions. Cameras will be allowed in the courtroom with the permission of the families. For more information, contact Simone Jones, Court Programs Coordinator, at (303) 654-3230.
  • Eighteenth Judicial District (Arapahoe, Douglas, Elbert, and Lincoln counties): On Friday, November 18, 2016, Adoption Day hearings will be held at both the Arapahoe County Courthouse and the Douglas County Courthouse. Judge Theresa Slade will preside over the adoptions of 13 children in Arapahoe County from 8:30 am to 4 pm. Magistrate Rebecca Moss will preside over eight adoptions in Douglas County from 2 to 4 pm. Cameras will be permitted in both courts with written permission of the families. For more information, contact Shaun Clark, Deputy District Administrator, at (303) 649-6382.
  • Twentieth Judicial District (Boulder County): On Friday, November 18, 2016, from 10:30 am to noon, Boulder County will host a celebration for all children adopted in Boulder County this past year. County Court Judge Elizabeth Brodsky and District Court Magistrate Monica Haenselman will be in attendance to celebrate with the families. There will be a reception, a short presentation, and crafts and games for the children. The celebration is open to the public; contact Erika Skufca at erika.skufca@judicial.state.co.us or (303) 441-4921 or Raina Lesser at raina.lesser@judicial.state.co.us or (303) 441-3744 for more information.
  • Twenty-first Judicial District (Mesa County): On Friday, November 18, 2016, from 9 am to 1 pm, District Court Judge Valerie Robison will preside over eight adoptions. An additional celebration will be held in the jury assembly room at 3 p.m. for all adopted on November 18 and in the past. Cameras will be allowed in the courtroom with permission of the families. For more information, contact Angeline Roles, Mesa County Department of Human Services, at (970) 248-2453 or angeline.roles@mesacounty.us.

For more information about Adoption Day events, click here.

Colorado Court of Appeals: Photos May Be Considered “Erotic Nudity” if Recipient Uses Them for Sexual Satisfaction

The Colorado Court of Appeals issued its opinion in People in Interest of T.B. on Thursday, October 20, 2016.

Juvenile Sexual Exploitation of a Child—Delinquency Adjudication.

T.B. used his cell phone to solicit, receive, and store nude photographs of teenage girls who were 15 and 17 years old. He also texted them photographs of his erect penis. Among other offenses, the prosecution charged T.B. with sexual exploitation of a child. The sexual exploitation counts were severed. A jury acquitted him of the remaining counts.

After a bench trial on the sexual exploitation counts, the court adjudicated T.B. delinquent, sentenced him to sex offender probation, and required him to register as a sex offender.

On appeal, T.B. asserted that the evidence was insufficient to support his delinquency adjudication. He argued that because the girls did not take the photos for their own sexual satisfaction, the photos did not depict “erotic nudity,” a necessary component of the crime of sexual exploitation of a child. He also contended that the statutory reference to “persons involved” in the definition of erotic nudity necessarily means that the people displayed in the photograph must be sexually stimulated. The Colorado Court of Appeals disagreed, citing the Colorado Supreme Court’s rejection of the contention that the focus of the overt sexual gratification component of the definition of erotic nudity could only be the persons depicted in the photograph. The court of appeals concluded that the statutory requirement was met.

T.B. also argued that the chain of custody was insufficient to show that he knew that he possessed the nude photos on his cell phone. He contended that the chain of custody linking his cell phone and the photographs was insufficient because it did not show that the photographs were accurate copies of the photographs that were on his phone. The court found that the photos were found by the police on the T.B.’s cell phone, they were identified by the girls as photos they had taken of themselves and texted to him, and T.B. had complimented one of them on the photos. A digital forensic officer testified that the data in T.B.’s phone had not been tampered with, and the photographs had been opened and viewed. Accordingly, there was sufficient evidence to prove that T.B. knowingly possessed the nude photos.

T.B. also argued that because there was no “sexual abuse of a child” in the photos, the evidence was insufficient to support a conviction. The court found that the clear and unambiguous language of the statute does not contain such a requirement.

T.B. further argued that the statute does not cover “teen sexting.” The court found nothing in the language of the statute to support such an argument.

T.B. also contended that the trial court abused its discretion when it denied his request for a jury trial. The court concluded that the trial court did not abuse its discretion because its decision fell within a range of reasonable options.

Finally, T.B. argued that he was being selectively prosecuted because he was a male and the trial court should have dismissed the sexual exploitation charges. The court found that the prosecution was not motivated by a discriminatory purpose and concluded that the trial court’s decision was not manifestly arbitrary, unreasonable, or unfair.

The delinquency adjudication was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Presence of Juvenile Defendant’s Parent Satisfies Statutory Requirement

The Colorado Supreme Court issued its opinion in People in Interest of A.L.-C. on Monday, October 24, 2016.

The juvenile defendant, A.L.-C., was charged with sexual assault on a child after his little sister, B.O., reported that he had touched her inappropriately and had intercourse with her. Defendant’s mother, also the mother of B.O., had accompanied him to his forensic interview. During a recorded exchange in which Defendant, his mother, and his step-father discussed whether he would waive his Miranda rights, Defendant’s mother asked him if he understood his rights and he said he did. She informed him that she had to protect B.O. and chided him for never paying attention. Defendant told his mother that he would rather keep quiet. It was disputed whether he meant he would rather not talk to his mother or the detective.

Defendant’s mother was present for the entire forensic interview. At first, Defendant denied B.O.’s allegations, but after being confronted with details from an earlier interview with B.O., Defendant confessed. He was charged with sexual assault on a child.

Before trial, Defendant sought to suppress his statements in the forensic interview, arguing that that his mother’s presence did not satisfy the requirement in C.R.S. § 19-2-511(1) that a parent be present at the interview because his mother did not hold his interests “uppermost in mind.” The trial court agreed and suppressed Defendant’s statements. The People filed an interlocutory appeal with the Colorado Supreme Court regarding whether the statute required more than Defendant’s parent’s presence at the interview.

The supreme court analyzed the statute and determined its plain language required nothing more than a parent’s presence during advisement and interrogation. Defendant argued that the statute requires not only a parent’s presence, but also that the parent hold the defendant’s interest “uppermost in mind,” citing several cases. The supreme court distinguished case law advanced by Defendant, noting that in those cases it was not a parent present at the interview. The supreme court held that the shared interest analysis from the prior cases was inapposite because a parent was already in one of the statutorily defined categories. 

The court noted that although its holding may seem to differ from People v. Hayhurst, 571 P.2d 721 (Colo. 1977), it was actually in line with Hayhurst. In that case, the supreme court held that a parent could not fulfill his statutory role if his interests were adverse to his child’s. However, the court also held that the fact that the father was upset with his son did not necessarily mean their interests were adverse.

The supreme court reversed the trial court’s suppression order and remanded for further proceedings.

CJD 05-01, “Directive Concerning Access to Court Records,” Amended by Colorado Supreme Court

On Tuesday, October 18, 2016, the Colorado Supreme Court adopted changes to Chief Justice Directive 05-01, “Directive Concerning Access to Court Records.” The changes to this Chief Justice Directive were proposed by the Public Access Committee, and they replace previous public access policies. The changes include clarification of wording that was causing confusion, a mandate that court records involving a child victim be redacted before being released to the public, inclusion of applications for public defenders, court-appointed counsel, or guardians ad litem as not accessible to the public, and changes to Appendix C for consistency purposes. The full Chief Justice Directive is available here.

Colorado Court of Appeals: Children’s Code Does Not Restrict DA’s Prosecution for Mandatory Reporter Violations

The Colorado Court of Appeals issued its opinion in Berges v. County Court of Douglas County on Thursday, October 6, 2016.

The Children’s Code—Authority of District Attorneys to Prosecute Mandatory Reporters.

Plaintiffs are medical doctors, clinical social workers, and healthcare professionals charged with violating C.R.S. § 19-3-304, under which they are “mandatory reporters” required to report suspected child abuse or neglect. Plaintiffs moved to dismiss the charges, arguing that the district attorney lacked authority to prosecute under C.R.S. § 19-3-206. The county court denied the motions. Plaintiffs filed a complaint under C.R.C.P. 106(a)(4) seeking review of the county court’s orders. The district court denied all relief and upheld the county court’s determination.

On appeal, plaintiffs contended that C.R.S. § 19-3-206 of the Children’s Code vests county attorneys with exclusive authority to prosecute mandatory reporters for criminal violations of C.R.S. § 19-3-304 because such prosecutions are “proceedings” brought under article 3 of the Children’s Code. The Colorado Court of Appeals concluded that C.R.S. § 19-3-206 does not preclude district attorneys from prosecuting mandatory reporters because C.R.S. § 19-3-304 does not set forth a proceeding under article 3, but simply defines an offense. Criminal prosecutions of that offense do not constitute article 3 proceedings.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.