July 22, 2018

Archives for January 5, 2011

Colorado Court of Appeals: Foster Parents May Participate in Dispositional Hearings but Have Only Limited Role at Termination Hearings

The Colorado Court of Appeals issued its opinion in People in the Interest of A.M., and Concerning A.C. on December 23, 2010.

Dependency and Neglect—Termination—Parental Rights—Foster Parents—Intervenors—Evidence.

In this dependency and neglect proceeding, mother and father appealed the judgment terminating their parental rights with respect to their child, A.M. The Montezuma County Department of Social Services (MCDSS) separately appealed the judgment terminating mother’s parental rights, but it supported the judgment terminating father’s parental rights. The child’s guardian ad litem (GAL) and the child’s foster parents, who were permitted to intervene in the termination hearing, supported the judgment with respect to both parents. On appeal, both parents and MCDSS challenged the right of the foster parents to fully participate as parties in the hearing. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

MCDSS, mother, and father contended that the trial court committed reversible error by allowing the foster parents to become “full participant intervenors” at the termination hearing. Foster parents may participate fully in a dispositional hearing, but have only a limited right to provide information at a termination hearing. Therefore, the trial court erred by allowing the foster parents to fully participate at the termination hearing. Further, a foster parent’s relationship with a child does not give rise to a constitutionally protected liberty interest. Therefore, the trial court also violated the constitutionally protected liberty interest of mother and father in the parent–child legal relationship by allowing the foster parents to fully participate in the termination hearing as intervenors. The Court determined that both of these errors were harmless beyond a reasonable doubt as to father, but not harmless beyond a reasonable doubt with respect to mother. Accordingly, the termination judgment was reversed and the case was remanded with respect to mother.

Mother and MCDSS also contended that in terminating mother’s parental rights, the trial court erred in failing to consider the totality of the evidence. The trial court focused on evidence of mother’s progress during the child’s first year and did not give more weight to evidence of her progress during the seven and a half months preceding the termination hearing. If another motion to terminate parental rights is filed on remand as to mother, the trial court may, but need not, attribute more weight to the most recent reports and evaluations.

Father contended that his parental rights also were erroneously terminated as a result of the court’s focus on the child’s first year and the parents’ compliance with their treatment plans during that period. Unlike mother, father’s compliance with his treatment plan deteriorated after the parents separated in June 2009. Neither the caseworker nor any of father’s treatment providers recommended reunification of father and child. Because the more recent evidence, as well as the earlier evidence, supports the trial court’s findings that father failed to comply with his treatment plan, that he is unfit, and that his conduct or condition is unlikely to change within a reasonable time, the trial court properly terminated father’s parental rights.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 23, 2010, can be found here.

Colorado Court of Appeals: Signing a Petition as an Elector Does Not Make a Person “Named, Individually, as a Party to the Transaction” to Necessitate Rejection of Notarization

The Colorado Court of Appeals issued its opinion in Griff v. City of Grand Junction on December 23, 2010.

Notary—Zoning Ordinance—Petition.

Appellants Harry Griff and Candi Clark appealed the district court’s order affirming the invalidation of signatures on a petition to suspend implementation of a zoning ordinance and denying an opportunity to cure those signatures. The order was reversed and the case was remanded with directions.

Appellee SLB Enterprises, LLC, doing business as Brady Trucking, purchased property in Mesa County in 2006 and entered into an agreement with the City of Grand Junction (city) to annex the property to the city. In September 2008, the city council voted to zone a portion of the property as “light industrial” and a portion as “industrial/office.” Appellants prepared a petition to suspend the implementation of the zoning ordinance. Candi Clark helped draft the petition, signed the petition as an elector, and notarized other signatures on the petition. The city clerk found that the petition was defective due to Candi Clark’s personal involvement and did not give appellants an opportunity to cure it.

On appeal, appellants claimed that the city clerk abused her discretion by rejecting Candi Clark’s notarization and invalidating the section of the petition that she signed as an elector and notarized. CRS § 12-55-110(2)(b) disqualifies those notaries who are “named, individually, as a party to the transaction.” However, signing a petition as an elector does not make a person “named, individually, as a party to the transaction” under the statute. The city clerk therefore abused her discretion by ruling that Candi Clark had a disqualifying interest and by invalidating the section of the petition that she notarized.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 23, 2010, can be found here.

Colorado Court of Appeals: Settlement Agreement Provision Requiring Husband to Pay Part of Future Benefits to Wife Is Void

The Colorado Court of Appeals issued its opinion in In re the Marriage of Anderson on December 23, 2010.

Post-Decree—Dissolution of Marriage—C.R.C.P. 60(b)—Social Security Benefits—Anti-Assignment—Settlement Agreement—Void—Property Distribution—Maintenance.

In this post-dissolution of marriage matter, Herbert Anderson (husband) appealed from the district court’s order denying his motion to set aside or modify certain property division provisions of the decree entered in conjunction with the dissolution of his marriage to Marilyn Anderson (wife). The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Husband contended that the district court erred in denying him relief under C.R.C.P. 60(b) from the provision of the decree requiring him to pay part of his future Social Security benefits to wife. The Social Security Act contains an anti-assignment clause. Pursuant to this clause, a state court in a dissolution proceeding may not distribute or divide a spouse’s future Social Security benefits as marital property, nor may it employ an indirect offset, as a part of the overall marital property distribution, to account for the value of a spouse’s Social Security benefits. Further, a settlement agreement provision that distributes future Social Security benefits as marital property is void because it violates the anti-assignment provision of the Social Security Act. Therefore, the settlement agreement provision that was incorporated into the decree and required husband to pay part of his future Social Security benefits to wife was void. Accordingly, the district court erred in denying husband relief from the provision of the decree requiring him to pay part of his future Social Security benefits to wife. In reconsidering the property division, the court must consider the parties’ economic circumstances at the time of the remand hearing.

Husband also contended that the district court erred in affirming the magistrate’s finding that the monthly payment to wife for her health insurance or healthcare was in the nature of property division rather than maintenance. The parties each waived maintenance and agreed to characterize these payments as property division in their settlement agreement. Therefore, the district court did not err in upholding the parties’ agreement on this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 23, 2010, can be found here.

Colorado Court of Appeals: Medicaid Home- and Community-Based Services Benefit Wrongly Deemed Terminable

The Colorado Court of Appeals issued its opinion in Koehler v. Colorado Dep’t of Health Care Policy and Financing on December 23, 2010.

Medicaid—Home- and Community-Based Services for the Elderly, Blind, and Disabled—Community Spouse—Institutionalized Spouse—Spousal Allowance.

Pursuant to CRS § 24-4-106(9), plaintiff Ruth Koehler sought judicial review of the district court’s judgment upholding the decision of the Colorado Department of Health Care Policy and Financing (Department) to terminate Koehler’s benefits under Medicaid Home- and Community-Based Services for the Elderly, Blind, and Disabled (HCBS). The judgment was reversed.

Koehler argued that the Department violated federal Medicaid law when it applied the Department’s regulatory definition of “community spouse” and directed her to elect between receiving HCBS benefits or the community spouse monthly income allowance (CMSIA). The articulated purpose of the CMSIA is to transfer income from an institutionalized spouse to the spouse remaining in the community to assist the remaining spouse in meeting basic needs. Koehler’s husband met the statutory definition of “institutionalized spouse” because he was in an institution and was married to a spouse not in an institution. Further, Koehler met the statutory definition of a “community spouse” because she was the spouse of a person in an institution; thus, a spousal allowance was due to her.

The Department, however, precluded such a result by applying 10 C.C.R. 2505-10, § 8.112D.3, which conflicts with the intent of Congress because it precluded the at-home spouse of a person in a nursing facility from receiving a spousal allowance solely because the at-home spouse is receiving HCBS. Koehler’s HCBS benefit was wrongfully deemed to be terminable, and the district court’s decision was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 23, 2010, can be found here.

Colorado Court of Appeals: Affidavit in Support of Search Warrant Sufficient to Include AOL Images of Child Pornography

The Colorado Court of Appeals issued its opinion in People v. Rabes on December 23, 2010.

Sexual Contact With a Child—Motion to Suppress—Search Warrant—Evidence—Prior Statements—Admissions—Jurors—Sentencing.

Defendant Deane Rabes appealed the judgment of conviction and sentences entered on a jury verdict finding him guilty of multiple offenses involving sexual contact with a child. The judgment was affirmed and the case was remanded for resentencing.

The National Center for Missing and Exploited Children (NCMEC) received a tip from America Online (AOL) that Rabes had uploaded images of child pornography for transmission through his AOL account. NCMEC forwarded the tip to Nebraska police, who viewed the images and obtained a warrant. When police searched Rabes’s house, they found images on his computer depicting sexual contacts between him and a young girl.

On appeal, Rabes contended that the trial court erred in denying his motion to suppress the items recovered in the search of his home. Specifically, he argued that the affidavit in support of the search warrant was “bare bones” because it did not include the AOL images or describe them. The Court of Appeals disagreed. To establish probable cause, an affidavit must allege “facts sufficient to cause a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.” It was sufficient to allege in the affidavit that AOL reported the images and that the investigating officer had examined the images and concluded that the images depicted child pornography.

Rabes contended that the trial court violated C.R.E. 410 and his due process rights in admitting evidence of his prior statements made in pleading guilty in the federal case. By pleading guilty, a defendant waives certain rights, including the right against self-incrimination. Therefore, the trial court did not err in admitting defendant’s admissions of fact from the federal case.

Rabes argued that the trial court erroneously refused to excuse two potential jurors for cause. Although the jurors conceded a danger that they would convict based on their reaction to explicit photos, both jurors seemed to understand the burden of proof. Therefore, the trial court did not err in refusing to excuse these jurors for cause.

Reasoning that his convictions all rested on identical evidence, Rabes also contended that the trial court erroneously imposed consecutive sentences for his two convictions of felony sexual exploitation of a child. However, because the prosecution presented multiple and distinct images of M.V. and Rabes involved in sexually explicit conduct, the trial court did not err in running defendant’s sentences for felony sexual exploitation of a child consecutive to one another.

The Court agreed with the parties that defendant’s misdemeanor sexual exploitation conviction must be vacated. Defendant was sentenced to twenty-four months for this misdemeanor conviction, but at the time of his conviction, this was a class 1 misdemeanor, punishable by a maximum of eighteen months. Therefore, the Court remanded the case for resentencing on that count alone. In all other respects, the judgment and sentences were affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 23, 2010, can be found here.

Six New Judges Appointed to Colorado District and County Courts

Last month, Governor Bill Ritter announced the appointments of six new county and district court judges:

  • John Joseph Briggs of Windsor will become a new Weld County Court judge, effective January 1, 2011. Briggs has been an associate attorney in the Law Office of Robert E. Ray since 2004. His practice focuses on criminal law, domestic relations, and appeals. He also worked as a law clerk for the Kansas Court of Appeals. He received his law degree from Washburn Law School in 1993.
  • Francis Stephen Collins of Parker will become a new District Court judge in the 18th Judicial District (Arapahoe, Douglas, Elbert and Lincoln counties), effective February 1, 2011. He is currently a shareholder at Ducker, Montgomery, Lewis & Bess, P.C., where he has practiced since 2000 and is now a commercial litigator. Prior to that, he was an associate and partner with Pendleton, Friedberg, Wilson & Hennessey; an associate with Parcel, Meyer, Schwartz, Ruttum & Mauro; and a law clerk to the Alaska Supreme Court Justice Edmond W. Burke. Collins received his law degree from the University of California, Hastings College of the Law, in 1979.
  • Julie Kunce Field of Fort Collins will become a new District Court judge in the 8th Judicial District (Jackson and Larimer counties), effective January 1, 2011. Field is currently a sole practitioner. She previously worked as a litigation associate with Nutter, McClennen and Fish; associate professor and clinic director of Washburn University Law School; clinical program director for the University of Denver College of Law; adjunct faculty and guest lecturer for the University of Colorado-Denver Masters’ Program in Public Policy; and as a special consultant to International Monetary Fund and World Bank. She earned her law degree from the University of Chicago in 1985.
  • Debra Marie Gunkel of Springfield will become a new Baca County Court judge, effective January 11, 2011. She is currently a sole practitioner. She previously worked as a deputy district attorney in the 16th Judicial District Attorney’s Office. She earned her J.D. from Southwestern University in 1989, and an LLM in taxation from Boston University in 1991.
  • Stephen Enderlin Howard of Fort Collins will become a new District Court judge in the 8th Judicial District, effective January 1, 2011. He is currently a partner at Howard and Francis. He previously worked at Fischer and Wilmarth as an associate and a partner. He earned his law degree from the University of Colorado School of Law in 1978.
  • Cindy Lu Wilson of Coalmont will become a new Jackson County Court judge, effective February 9, 2011. She is currently a certified public accountant with her own practice. She previously was the owner/operator of the Shamrock Ranch and she was a CPA with Tredway, Henion and Kerr and with Wilson & Co.

District court judges serve an initial provisional term of two years. Then, if retained by voters, they serve six-year terms.

County court judges serve an initial provisional term of two years. Then, if retained by voters, they serve four-year terms.

Tenth Circuit: Opinions, 1/3/11

The Tenth Circuit on Monday issued no published opinions and two unpublished opinions.

Unpublished

Cooley v. Medina

United States v. Wright