August 17, 2019

Archives for October 4, 2012

Colorado Court of Appeals: Announcement Sheet, Week of October 4, 2012

On Thursday, October 4, 2012, the Colorado Court of Appeals issued no published opinions and 32 unpublished opinions. Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 10/2/12

On Tuesday, October 2, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Baker v. Holt

Muhammad v. Workman

Reed v. Michaud

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Psychological Parent Has Standing to Petition for Custody Despite Troxel if Three-Part Test is Satisfied

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities of M.W., and Concerning Taylor on September 27, 2012.

Parental Responsibilities—Nonparent Versus Parent.

In this action involving parental responsibilities for M.W., who is the child of Trista Ann Wamsher (mother) and Edward Day (father), mother’s former boyfriend, Shane Taylor, appealed from the trial court’s judgment denying him allocation of parental responsibilities. The judgment was reversed.

Mother and Taylor entered into a relationship while mother was pregnant with M.W. Taylor was present when M.W. was born and lived with mother and M.W. for the first two years of M.W.’s life. Mother considered Taylor as M.W.’s father and encouraged M.W. to identify Taylor as his father.

Mother and Taylor ended their relationship when M.W. was 2 years old, and mother and M.W. subsequently moved out of Taylor’s home. Taylor then petitioned for an allocation of parental responsibilities for M.W.

After mother moved out, she petitioned for public assistance, which resulted in notifying father, who was living in North Carolina, that a child support action had been initiated against him. Father initially doubted his paternity. Several years later, in the course of a child support proceeding, he arranged for genetic testing and his paternity was confirmed. Thereafter, father intervened in Taylor’s proceeding and moved to Colorado with his girlfriend. With mother’s consent, father and girlfriend began exercising parenting time with M.W.

Following a three-day trial court hearing, the trial court found that although Taylor was M.W.’s psychological parent and had established standing under CRS § 14-10-123(1)(c), the court could not allocate parenting time to him unless it found that mother and father were unfit or likely would make parenting decisions that were not in M.W.’s best interests. Taylor appealed, contending the trial court applied an incorrect legal standard. The Court of Appeals agreed.

Once a nonparent has established standing, the trial court then considers whether to allocate parenting time or decision-making authority to the nonparent based on the factors in CRS § 14-10-124(1.5). Parents, however, have a fundamental right protected by the Due Process Clause to make decisions concerning the care, custody, and control of their children [Troxel v. Granville, 530 U.S. 57 (2000)]. Thus, special factors must justify a court’s interference with this fundamental right.

Also, when a nonparent seeks parental responsibilities contrary to a parent’s wishes, the court must give special weight to the parent’s position. This means that the presumption favoring the parent’s decision can be rebutted only by clear and convincing evidence that granting parental responsibilities to the nonparent is in the child’s best interests. The nonparent does not, however, have to prove that the parents are unfit.

Thus, a court must employ a three-part test in considering the nonparent’s request. First, a presumption exists favoring the parental determination. Second, to rebut this presumption, the nonparent must show by clear and convincing evidence that the parental determination is not in the child’s best interests. Finally, the nonparent must establish by clear and convincing evidence that the nonparent’s requested allocation is in the child’s best interests. The trial court did not apply the foregoing standards and must do so on remand.

Summary and full case available here.

Colorado Court of Appeals: No Requirement of Three Months’ Care of Children for Grandparents to Intervene in Dependency and Neglect Action

The Colorado Court of Appeals issued its opinion in People in Interest of O.C., and Concerning C.M. on September 27, 2012.

Dependency and Neglect—Motion to Intervene—CRCP 24—Final Order—CRS § 19-3-507(5)(a).

In this dependency and neglect proceeding concerning O.C., the child’s maternal grandfather and the child’s maternal step-grandmother (grandparents) appealed from the order denying their motion to intervene. The order was reversed and the case was remanded.

O.C. was removed from mother and father’s care in May 2010. An older child, 2-year-old B.C., had been removed from mother’s care five months earlier because of concerns about possible physical abuse. Grandparents first sought to become involved in the proceeding in October 2010, when they moved to intervene under CRCP 24(a) and (b) and requested that O.C. and B.C. be placed with them. The Jefferson County Division of Children, Youth, and Families (County) opposed the motion, arguing that grandparents did not meet the criteria to intervene as a matter of right under CRS § 19-3-507(5)(a). The trial court denied the motion.

Both the County and the guardian ad litem contended that the order denying grandparents’ motion to intervene was not a final order and, thus, was not properly before the court on appeal. However, the denial of a motion to intervene as a matter of right is a final and appealable order.

Grandparents contended that the trial court erred in denying their motion to intervene as a matter of right under CRS § 19-3-507(5)(a). The trial court denied grandparents’ motion to intervene because they did not have the child in their care for at least three months. However, CRS § 19-3-507(5)(a) only requires foster parents—not parents, grandparents, or other relatives—to have had the subject child in their care for at least three months before being permitted to intervene. CRS § 19-3-507(5)(a) affords to grandparents of a dependent and neglected child the right to intervene in a dependency and neglect proceeding at any time after adjudication, and such right is not contingent on a showing that those grandparents have had the child in their care for more than three months. Accordingly, the order was reversed and the case was remanded to the trial court to allow grandparents to intervene in the proceeding.

Summary and full case available here.

Colorado Court of Appeals: Roofer Entitled to Sue Insurer as First-Party Claimant When Insurer Refused to Pay Roofer’s Claims

The Colorado Court of Appeals issued its opinion in Kyle W. Larson Enterprises, Inc. v. Allstate Insurance Co. on September 27, 2012.

First-Party Claimant—Repair Vendor—CRS §§ 10-3-1115 and -1116.

Plaintiff Kyle W. Larson Enterprises, Inc., doing business as The Roofing Experts, (roofer) appealed only a portion of the trial court’s summary judgment in favor of defendant Allstate Insurance Company (Allstate). The judgment against the roofer on its claim under CRS § 10-3-1116 was reversed and the case was remanded for further proceedings on that claim.

The roofer contracted with the owners of four homes insured by Allstate to repair their roofs. The contracts provided that the repair costs would be paid from insurance proceeds and granted the roofer full authority to communicate with Allstate regarding all aspects of the insurance claims. The roofer met with Allstate adjustors to discuss the four homes and to determine the amount of each claim, and began each repair after receiving approval from Allstate for the claims. It later was determined that additional repairs were necessary to comply with applicable building codes and to maintain certain manufacturers’ warranties. The roofer made the repairs and invoiced Allstate for them. Allstate paid the claim amounts that were agreed to during the original adjustment, but refused to pay for the additional repairs. Pursuant to CRS §§ 10-3-1115 and -1116, the roofer filed suit as a first-party claimant against Allstate for unreasonable delay and denial of benefits. The trial court ruled that the roofer was not a first-party claimant entitled to seek relief under the statutes, and granted Allstate’s summary judgment motion.

On appeal, the roofer contended that the trial court erred in granting summary judgment for Allstate because the roofer is a first-party claimant. A repair vendor that brings a claim against an insurer on behalf of its insured qualifies as a first-party claimant under § 10-3-1115 and is entitled to sue the insurer under § 10-3-1116. CRS § 10-3-1115(1)(b). This includes vendors such as the roofer, which is authorized to assert, and do assert, claims on behalf of insureds.

Summary and full case available here.

Book Review — “Losing Twice: Harms of Indifference in the Supreme Court”

Losing Twice: Harms of Indifference in the Supreme Court
by Emily M. Calhoun

In Losing Twice, University of Colorado Law School Professor Emily Calhoun argues that the way judicial opinions are written can cause losing stakeholders to suffer additional, unnecessary harms. Given the topic, the book will be of interest to judges and others who write judicial opinions; however Professor Calhoun’s intended audience is “ordinary citizens.”

Calhoun’s thesis is non-ideological. Debates about originalism, minimalism, and activism are refreshingly absent from her book. Instead, Losing Twice focuses on people—most narrowly the non-prevailing parties in Supreme Court constitutional-rights disputes, and broadly, an array of stakeholders affected negatively by court decisions. These stakeholders come to the court in good faith, with much at stake, making the judicial choice to rule against them “essentially [a] tragic choice.”

Judicial opinions can be written in a way that honors losing stakeholders’ status as citizens or that demeans them; that acknowledges their continuing role in constitutional democracy or that shuts them out; or that respectfully articulates their views on an issue or that trivializes those views. For Calhoun, properly honoring losing parties and positions in judicial opinions is more than just a nice thing for judges to do. Opinions that demean losing litigants, that ignore them (willfully or inadvertently), or that hide behind hyper-technical rationality or “the doctrine made me do it” rhetoric create real harms, not only to the immediate parties but also to judicial legitimacy and democracy.

Calhoun offers the judicial opinions for two abortion cases, Roe v. Wade and Gonzales v. Carhart, as examples of opinions causing harm. Although the outcome in the first case is viewed as a pro-choice victory and the outcome in the second a pro-life one, Calhoun argues that both opinions show an indifference to the constitutional stature and autonomy of women.

Held up as an example of a well-written opinion is retired Denver Judge Jeffrey Bayless’s opinion in Romer v. Evans. According to Calhoun, Judge Bayless carefully laid out the arguments of each side and made a “special effort to address all citizen stakeholders,” not just those identified in the parties’ briefs. Judge Bayless also acknowledged the difficulty and impermanence of his decision and “put himself and his judgments about the legitimacy of the decision at the mercy of his audience.”

Calhoun’s claims are not beyond critique. Given how seldom lawyers—let alone “ordinary citizens”—actually read judicial opinions (something Calhoun seems to acknowledge in her discussion of Roe), the composition of opinions may have little effect on our public knowledge of their meaning, or on how their language is paraphrased and summarized by the media or by other instant and historical intermediaries. Nevertheless, judges, lawyers, and armchair Supreme Court enthusiasts will find Losing Twice to be a thought-provoking read that sheds new light on famous constitutional law decisions and that may inform their own written expression.

Derek Kiernan-Johnson is a legal writing professor at the University of Colorado in Boulder. He teaches legal writing, appellate advocacy, and judicial-opinion writing — (303) 492-5863, by permission. ©2011 Colorado Bar Association, 40 The Colorado Lawyer 114 (August 2011). All rights reserved.

CLE Program: Losing Twice – Harms of Indifference in the Supreme Court with Emily Calhoun

This CLE presentation took place on Monday, October 1. The program will be available as a homestudy in two formats: video on-demand and mp3 download.

Tenth Circuit: Petition for Review of BIA’s Denial of Restriction on Removal Denied

The Tenth Circuit Court of Appeals issued its opinion in Neri-Garcia v. Holdeon Wednesday, October 3, 2012.

Efren Neri-Garcia was a citizen of Mexico who was in the United States illegally. He sought restriction on removal under the Immigration and Nationality Act and for relief under the United Nations Convention Against Torture (CAT). The immigration Judge (IJ) found Neri-Garcia established past persecution based on his homosexuality, but that the Department of Homeland Security had rebutted the presumption of future persecution because of a fundamental change of circumstances in Mexico, including steps the Mexican government had taken to prevent violence against gay men. The IJ also found Neri-Garcia was ineligible for restriction on removal under the CAT. Neri-Garcia appealed to the Board of Immigration Appeals (BIA), which adopted the IJ’s reasoning and dismissed his appeal.

The Tenth Circuit found the BIA’s reliance on, and analysis of, the 2009 and 2010 United States Department of State Human Rights Reports (Country Reports) for Mexico was reasonable and its decision was supported by substantial evidence. The court also found no abuse of discretion in the BIA’s denial of Neri-Garcia’s motion to remand as the evidence he offered was insufficient to justify a remand. News articles of the killing of two gay activists weighed against the population of Mexico and lack of government actors was not probative. The Tenth Circuit denied Neri-Garcia’s petition for review.

Tenth Circuit: Unpublished Opinions, 10/3/12

On Wednesday, October 3, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Davis v. Hudson Refinery

Williams v. Mayes

Arencibia v. Barta

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.