August 20, 2018

Archives for April 30, 2018

Colorado Supreme Court: Announcement Sheet, 4/30/2018

On Monday, April 30, 2018, the Colorado Supreme Court issued five published opinions.

People in Interest of R.S.

People v. Rediger

People v. Smith

People in Interest of L.M.

People v. Taylor

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Where Father Acquitted of Underlying Sexual Abuse Charges, Juvenile Court Erred in Terminating Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of L.M. on Thursday, April 19, 2018.

Dependency and Neglect—Juvenile Court—Termination of Parent-Child Legal Relationship.

The juvenile court found by a preponderance of the evidence that father had sexually abused L.M. and that M.M. was suffering secondary trauma as a result of the abuse. The court adjudicated L.M. and M.M. dependent and neglected. The court granted temporary custody to mother and prohibited father from having any contact with the children during the pendency of the case.

Father’s treatment plan was predicated on his guilt, but he was later acquitted in the criminal case. The juvenile court could not find that the assault allegations had been established by clear and convincing evidence and further concluded that it could not discount the possibility that no abuse occurred. Even so, the juvenile court terminated father’s parental rights, finding there were no less drastic alternatives because the children continued to experience trauma specific to father, which he did not recognize.

On appeal, father challenged the finding that there were no less drastic alternatives to terminating his parental rights. When considering termination under C.R.S. § 19-3-604(1)(c), the court must also consider and eliminate less drastic alternatives. The determination of whether there is a less drastic alternative to termination is influenced by a parent’s fitness to care for his or her child. Here, there is no indication in the record that father was offered treatment or a path to becoming a fit parent other than to acknowledge sexual abuse of L.M. It was error to terminate his parental rights.

Although not raised on appeal, the court of appeals also determined that the juvenile court failed to make the required inquiry of father under the Indian Child Welfare Act.

The judgment was reversed and the case was remanded with instructions that before considering termination of parental rights, the court must adopt an appropriate treatment plan under C.R.S. § 19-3-508(1)(e)(I) that relates to the children’s trauma and is reasonably calculated to render father a fit parent. If the court again considers termination of father’s parental rights, it must confirm whether he knows or has reason to know or believe that the children are Indian children.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Child’s Medical Records Admissible Under CRE 803(4) where Statements Made for Medical Diagnosis or Treatment

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, April 19, 2018.

Dependency and Neglect—Admissibility of Evidence under CRE 803(4)—Indian Child Welfare Act.

The child was born prematurely and spent six weeks in the hospital. The Mesa County Department of Human Services (Department) sought and received emergency custody after the hospital reported that it could not locate his parents to take him home. The Department later filed a petition in dependency and neglect. At a shelter hearing, the court granted the Department’s request to return the child to his parents’ care under the Department’s supervision.

Three months later the court held an adjudicatory trial. As the sole basis for adjudication, the court found that the child had tested positive for a schedule II controlled substance at birth and that the positive test did not result from mother’s lawful use of prescribed medication. The court relied on testimony from a physician specializing in neonatal care who had cared for the child immediately after his birth.

On appeal, mother argued that certain test results to which the child’s physician testified were inadmissible hearsay under CRE 803(4). CRE 803(4) creates a hearsay exception for statements that are made for purposes of medical diagnosis or treatment; describe medical history, symptoms, or the inception or cause of symptoms; and are reasonably pertinent to diagnosis or treatment. Here, the testifying physician was qualified, without objection, as an expert in neonatology and pediatrics. He gave comprehensive testimony regarding the child’s symptoms and treatment and mother’s positive toxicology screen for methamphetamine. The physician’s testimony conformed to the requirements of CRE 803(4).

The court also rejected mother’s contention that even if the test results were admissible it was error for the trial court to rely on them because they were only admitted as the basis of the expert’s testimony under CRE 703, not as substantive evidence. The trial court admitted the results under both CRE 803(4) and 703 and they were therefore substantive evidence on which the court could rely to conclude that the child had testified positive for a controlled substance at birth.

Mother also argued that the trial court erred when it determined that the Indian Child Welfare Act (ICWA) does not apply to this proceeding because the child had been returned to mother’s home. The ICWA applies to a child custody proceeding even when, following a shelter hearing, the child is returned to the mother’s home, because the hearing could have resulted in foster care placement. The trial court did not conduct the proper ICWA inquiry.

The part of the judgment adjudicating the child dependent or neglected was affirmed. The dispositional order was reversed and the case was remanded for the purpose of conducting a proper ICWA inquiry.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Complete Exhaustion of Funds by Contractor Without Paying Subcontractor Violates Trust Fund Statute

The Colorado Court of Appeals issued its opinion in Franklin Drilling & Blasting, Inc. v. Lawrence Construction Co. on Thursday, April 19, 2018.

Construction Law—Public Works Trust Fund Statute—Civil Theft Statute—Directed Verdict—Culpable Mental State.

Lawrence Construction Company (Lawrence) was the general contractor on a Colorado Department of Transportation (CDOT) road project. Franklin Drilling and Blasting Inc. (Franklin) was a subcontractor. Lawrence was paid in full by CDOT but refused to pay Franklin. Franklin sued Lawrence on a variety of claims, and all but the claim for civil theft were arbitrated in favor of Franklin.

Following arbitration, the parties tried the civil theft claim to the court. Franklin alleged that Lawrence violated the Public Works Trust Fund statute (trust fund statute). The trial court granted Lawrence’s motion for directed verdict, finding that Franklin had not proved that Lawrence intended to permanently deprive Franklin of the monies it was owed. The court also awarded Lawrence costs.

Franklin appealed the judgment in favor of Lawrence on the civil theft claim and the costs awarded to Lawrence. The court of appeals first concluded that C.R.C.P. 50 is unavailable when a trial is to the court. Instead, the governing rule is C.R.C.P. 41(b). Under that standard, the court must find that upon the facts and the law the plaintiff has shown no right to relief.

As relevant here, the theft statute, C.R.S. § 18-4-401(1), provides two ways that Lawrence could possess the culpable mental state required for civil liability: knowing use (C.R.S. § 18-4-401(1)(b)), or intent to deprive (C.R.S. § 18-4-401(1)(a)). On the knowing use element, the Court focused on the “res” created when the government entity (CDOT) pays monies to the contractor to be held in trust for its subcontractors and suppliers. When the res is exhausted before payment to the subcontractor, a violation of the trust fund statute, and perhaps the civil theft statute, may be established. Here, the evidence Franklin presented at trial established that at various relevant times the bank account into which Lawrence deposited the CDOT payments had a zero or negative balance. The trial court’s findings do not resolve the “knowingly uses” alternative mental state, and the trial court erred by not addressing this element of the civil theft claim.

Franklin also argued that the trial court’s ruling in Lawrence’s favor regarding the intent to deprive element was unsupported by the record. The trial court made extensive findings regarding Lawrence’s intent to permanently deprive. Reasonable minds could differ about whether Franklin proved that Lawrence intended to permanently deprive Franklin of the CDOT funds, so the court could not conclude that the trial court findings and conclusion were “so manifestly against the weight of evidence as to compel a contrary result.”

The court denied Franklin’s request for attorney fees because it did not enter judgment in Franklin’s favor.

The judgment was affirmed to the extent the trial court determined that Franklin failed to prove Lawrence’s culpable mental state under C.R.S. § 18-4-401(1)(a). It was reversed and the case was remanded with directions for the trial court to determine whether Lawrence possessed the culpable mental state defined by C.R.S. § 18-4-401(1)(b).

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/27/2018

On Friday, April 27, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

John J. Pembroke Living Trust v. U.S. Bank National Association

United States v. Capra

United States v. Pinkerton

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.