February 19, 2018

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.

Colorado Court of Appeals: Concealed Weapon Statute Requires Person to Carry Weapon “Unlawfully”

The Colorado Court of Appeals issued its opinion in People in Interest of L.C. on Thursday, June 15, 2017.

Protection Order—Constitutionality—Evidence—Possession of Weapon.

A police officer observed L.C. in a public park after hours. The officer contacted L.C. and discovered that he was subject to a protection order, which provided, among other things, that L.C. was not to “possess or control a firearm or other weapon.” When the officer searched L.C.’s backpack, he found a knife with a five and one-half inch blade inside a sheath. L.C. was found guilty of violating a protective order and unlawfully carrying a concealed weapon. He was adjudicated delinquent and sentenced to probation. L.C. petitioned for district court review, which was denied.

On appeal, L.C. contended that C.R.S. § 18-12-105, which defines the offense of unlawfully carrying a concealed weapon, is unconstitutionally vague and overbroad. The statute is not unconstitutionally vague, and the merits of L.C.’s overbreadth argument were not addressed because he did not raise it in the district court. L.C. also contended that the evidence was insufficient to prove that he carried a concealed knife “on or about his . . . person,” as required to sustain a conviction for the statutory violation. He argued that because the knife was in a sheath in an interior zippered compartment of his backpack, it was not readily accessible and therefore was not “on or about” his person. The Court of Appeals disagreed with L.C.’s interpretation.

L.C. further contended that because the prosecution failed to prove that he did anything directed at the protected person named in the protection order, the evidence was insufficient to establish that he violated it. Violation of a protective order does not always require proof that the accused contacted the protected person. Thus, evidence that the protection order contained a provision prohibiting L.C. from possessing a weapon and that L.C. was found in possession of a weapon was sufficient to sustain his conviction for violation of a protection order.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Post-Decree Modifications of Parental Responsibilities — Best Interests, Endangerment, and More

Sometimes, after a decree of dissolution is entered, parents seek to modify their allocation of parental responsibilities. The standard for modification of decision-making is found in C.R.S. § 14-10-129(2)(a) through (d). Subsection (a) allows for modification when the parties agree, but in practice this rarely or never happens. Subsection (b) allows modification when the child has been integrated into the family of the moving party with the consent of the other party — this, too, rarely happens. Subsection (c) addresses relocation and lists specific criteria for modification. The “meat” of the statute, however, is in subsection (d).

Subsection (d) allows modification of decision-making when “The child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.” Many cases have interpreted “endangerment” as it relates to the modification of decision-making; it is where attorneys get creative with their arguments. Typically, though, “endangerment” is when the parent fails to make decisions or when the parents cannot agree on even the most minor of decisions and it harms the child.

The standard to modify parenting time is the best interest of the child standard, which is slightly less onerous to meet than the endangerment standard. Learn more about the interplay of the two standards and practical applications of the standards in case law from Marie Moses, a partner at Lass Moses Ramp, LLP. Ms. Moses presented a program, “Mastering Post-Decree Modification Standards: Best Interests Versus Endangerment,” which is available here:

Ms. Moses discusses the difference between the best interests and the endangerment standards, and how courts apply the two in practical situations.

The materials and homestudy are available for purchase here.

CJD 16-02 Regarding Office of Respondent Parents’ Counsel Amended by Colorado Supreme Court

On Tuesday, June 13, 2017, the Colorado State Judicial Branch announced amendments to CJD 16-02, “Court Appointments Through the Office of Respondent Parents’ Counsel.” The changes include minor additions and changes to various sections, as well as:

  • Giving ORPC the authority to select attorneys for specific cases upon notice to the court;
  • Prohibiting the same attorney from representing multiple parents in the same case;
  • Clarifying the appellate appointment policy;
  • Removing billing policies from the CJD that were contained in the ORPC billing policies;
  • Allowing Judges and Magistrates to appoint RPC prior to the filing of a petition for good cause; and
  • Clarifying appointment protocols.

The changes to CJD 16-02 were adopted June 13, 2017, and are effective July 1, 2017. For the full text of CJD 16-02, click here. For all of the Colorado Supreme Court’s Chief Justice Directives, click here.