December 10, 2018

Colorado Court of Appeals: Grandparent Has No Constitutionally Protected Liberty Interest in Society or Custody of Child

The Colorado Court of Appeals issued its opinion in People in Interest of C.N. on Thursday, November 15, 2018.

Dependency and NeglectGrandparentsFourteenth AmendmentDue ProcessStanding.

In 2015, the Jefferson County Division of Children, Youth, and Families filed a petition in dependency and neglect due to concerns about mother’s mental health. Mother’s newborn was placed in foster care and mother’s parental rights were terminated a year later. A division of the court of appeals affirmed the judgment and a mandate was issued in February 2017. That same month, grandmother filed a motion to intervene in the case and then filed a motion for the child to be placed with her. The juvenile court held a contested hearing on the motion and found it was in the child’s best interest to permanently remain with the foster parents. The court also terminated grandmother’s visitation with the child. The child was adopted by the foster parents in January 2018.

On appeal, grandmother argued that mother did not receive reasonable accommodations to address her mental health issues and the child had a fundamental right of association with grandmother. Also, she asserted that as an intervenor in the case she was a real party interest as to these issues. The court construed grandmother’s arguments to be that she had standing in the case. Grandmother cited no substantive law granting her standing to assert the rights of mother and the child. Further, courts have consistently held that in dependency and neglect appeals parents and intervenors lack standing to assert the rights of other parties. Grandmother lacked standing to raise the issues on appeal regarding mother and the child.

Grandmother also argued the juvenile court lacked subject matter jurisdiction to hear the case because the child never resided or was present in Jefferson County. The allegation that the child was dependent or neglected conferred subject matter jurisdiction with the juvenile court; the question then turned on whether venue was proper. When mother gave birth to the child, she was asked at the hospital where she lived and she provided an address in Arvada, which is within Jefferson County. Thus, venue was proper.

Grandmother further argued that her fundamental associational rights with the child required that she be fully considered for placement of the child and it was error for her not to receive notice of the termination hearing. Grandmother did not have a constitutionally protected liberty interest in the society or custody of the child because she had only limited visitation rights derived from statute and had no existing custodial relationship. Grandmother did not have placement of the child and was not entitled to notice of the termination hearing.

The court also rejected grandmother’s argument that it was error to not allow grandmother to file a petition for the adoption of the child in the dependency and neglect case. There is no such right in the dependency and neglect proceeding, and grandmother was not precluded from timely filing an adoption petition in a separate proceeding. Accordingly, the juvenile court did not err in disallowing the filing of the adoption petition.

The court further rejected grandmother’s argument that the juvenile court erred in terminating her visitation rights with the child. Grandmother’s visitation rights were terminated at the time mother’s parental rights were terminated.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Lack of Compliance with ICWA’s Foster Care Placement Provisions Does Not Deprive Juvenile Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of M.V. on Thursday, November 15, 2018.

Indian Child Welfare ActFoster Care PlacementDependency and NeglectAdmissibility of Video RecordingsSubject Matter Jurisdiction.

The El Paso County Department of Human Services (the Department) initiated a dependency and neglect case regarding mother’s children. The case was based on methamphetamine use, manufacture, and distribution, and domestic violence. Following a jury trial, the juvenile court adjudicated the children dependent and neglected. After another hearing, the court entered a dispositional order that adopted a treatment plan for mother.

On appeal, mother argued that the record did not demonstrate compliance with the Indian Child Welfare Act (ICWA) and therefore the juvenile court lacked subject matter jurisdiction to adjudicate the children and enter a dispositional order. The court of appeals first concluded that the juvenile court’s asserted lack of compliance with ICWA’s notice provisions do not divest it of subject matter jurisdiction to enter the adjudicatory and dispositional orders. The ICWA allows Indian children, parents, and tribes to challenge a termination judgment, but this does not take away the jurisdiction of the state court. Here, the asserted lack of compliance with ICWA’s notice provisions did not divest the juvenile court of subject matter jurisdiction to enter the adjudicatory and dispositional orders.

The court also determined that the ICWA’s foster care placement provisions apply to a dispositional order, but not to an order adjudicating a child dependent and neglected. In this case, based on mother’s ICWA assessment form, there was reason for the court to know that the children were Indian children. The record contains no indication that the Department gave the required notices or that the juvenile court made the necessary findings. The record fails to demonstrate compliance with the ICWA.

Mother also argued that the juvenile court committed reversible error by admitting video recordings of her and the children that had been anonymously provided to the Department and were not properly authenticated. Here, the Department did not establish either the accuracy of the scenes depicted in the videos or the accuracy of the recording process. Thus, the juvenile court erred in admitting the video recordings. Further, the court could not conclude that the admission of the videos did not substantially influence the jury’s verdict. Therefore, the error was not harmless.

The adjudicatory and dispositional orders were reversed and the case was remanded for a new adjudicatory trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Rules for Magistrates and Colorado Appellate Rules Amended

On Tuesday, September 11, 2018, the Colorado State Judicial Branch announced Rule Changes 2018(13) and 2018(14), amending the Colorado Rules for Magistrates and the Colorado Appellate Rules, respectively.

Rule Change 2018(13) amends C.R.M. 6, “Functions of District Court Magistrates,” to update references to the Colorado Rules of Probate Procedure in subparagraph (e)(1)(A). Rule Change 2018(14) amends C.A.R. 3.4, “Appeals from Proceedings in Dependency or Neglect,” to update a cross-reference to C.A.R. 53(h) in subparagraph (l).

For the redlines and clean copies of Rule Change 2018(13) and Rule Change 2018(14), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: When Child Adjudicated Dependent and Neglected, Separate Court Loses Jurisdiction Over Parentage Proceeding

The Colorado Court of Appeals issued its opinion in People in Interest of D.C.C. on Thursday, July 12, 2018.

Dependency and Neglect—Uniform Parentage Act—Exclusive, Continuing Jurisdiction.

The Weld County Department of Human Services (Department) filed a petition in dependency or neglect and for a determination of paternity. The petition named A.M.G. as the father of the child and advised him that paternity might be determined in the action pursuant to the Uniform Parentage Act (UPA). No one disputed paternity. Before the filing of the dependency and neglect proceeding, stepmother had filed a motion for allocation of parental responsibilities in a domestic relations court. The domestic relations court ordered father to complete genetic testing in this case, but he didn’t get tested before the dependency and neglect case. The domestic relations court then certified the issues of legal custody and parental rights and responsibilities to the dependency and neglect court.

Father failed to appear at his adjudicatory hearing in August 2016, and the district court entered a default decree adjudicating the child dependent or neglected. Father appeared for the first time at a hearing in February 2017, and the court appointed counsel and ordered genetic testing. Meanwhile, the Weld County Child Support Services Unit had filed a petition for support in another division of the juvenile court in November 2016. Father had failed to appear in that case as well and failed to appear for the genetic testing that was also ordered in that case.

In April 2017, the dependency and neglect court informed the parties that the magistrate in the child support case had entered an order finding that father wasn’t a legal parent of the child and declared stepmother to be the child’s legal parent. The dependency and neglect court was unsure if this was proper, but ultimately decided that the child support court’s parentage order was final because no one had sought review. The court dismissed A.M.G. from the case as the father.

On appeal, father argued that the dependency and neglect court erroneously relied on the order from the child support court that he wasn’t the child’s legal father. He argued that after the dependency and neglect court adjudicated the child, it maintained exclusive, continuing jurisdiction over the child until the case was closed or the child reached age 21. Under the Children’s Code, the juvenile court has exclusive, original jurisdiction in both dependency and neglect proceedings and proceedings to determine parentage. The Court of Appeals held that once a child has been adjudicated dependent or neglected, all matters related to the child’s status must be addressed in the open dependency and neglect case, where parents are afforded procedural and substantive due process protections that aren’t available under the UPA.

The order dismissing father from the petition in dependency or neglect was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ICWA Requires Notice to BIA in State with No Designated Tribal Agents

The Colorado Court of Appeals issued its opinion in People in Interest of I.B.-R. on Thursday, May 17, 2018.

Dependency and Neglect—Indian Child Welfare Act Notice—Bureau of Indian Affairs.

In this dependency and neglect proceeding, J.S.R. is the father of one of the four children. He told the Weld County Department of Human Services (Department) that he had Cherokee heritage on his father’s side and his lineage descended from a tribe in Arkansas, but he did not know which tribe. The Department did not notify any tribe or the Bureau of Indian Affairs (BIA) of the dependency and neglect proceeding. Following the filing of their motion to terminate parental rights, the Department sent notice of the termination proceedings to the three federally recognized Cherokee Tribes. Each responded that the child was not a member or eligible for membership. The Department also notified the BIA, but did not mention J.S.R.’s reported affiliation to an unknown tribe in Arkansas. No further inquiry was made and all three parents’ parental rights were terminated.

On appeal, J.S.R. contended that the trial court and the Department did not comply with the Indian Child Welfare Act of 1978 (ICWA) after he asserted Native American heritage. He argued the Department failed to comply with the ICWA’s notice requirements because it did not send notice to any tribes in Arkansas. ICWA-implementing legislation in Colorado requires that in dependency and neglect proceedings, the petitioning party must make continuing inquiries to determine whether the child is an Indian child. When there is reason to know or believe that a child involved in a child custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes. The BIA publishes a list of designated tribal agents for service of ICWA notice in the Federal Register each year. There are no federally recognized tribes with designated tribal agents in Arkansas. If the identity or location of a tribe cannot be determined, notice must be given to the BIA. While the ICWA does not require courts or departments of human services to find tribal connections from vague information, it was the BIA’s burden to research whether there could be a tribal connection in Arkansas. However, the notice in this case did not alert the BIA that J.S.R. had reported a tribal connection to Arkansas, so it had no reason to conduct such an investigation.

The case was remanded with detailed directions to proceed with ICWA compliance.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: State May Not Terminate Parental Rights Under Relinquishment Statute when Dependency and Neglect Proceeding Underway

The Colorado Supreme Court issued its opinion in People in Interest of L.M. on Monday, April 30, 2018.

Children’s Code—Dependency and Neglect—Relinquishment—Termination of Parental Rights—C.R.S. § 19-3-602—C.R.S. § 19-5-105.

This case required the supreme court to determine whether the State may seek to terminate a parent’s parental rights under the relinquishment provision of the Colorado Children’s Code, C.R.S. § 19-5-105, when the child is already subject to a dependency and neglect proceeding under Article 3 of the Code, C.R.S. §§ 19-3-100.5 to -805.

The court concluded that when a dependency and neglect proceeding is pending, the State can terminate parental rights only through the procedures set forth in Article 3 of the Code and cannot use the more limited processes provided in Article 5.

The court affirmed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Dismissal of Single Parent from Dependency and Neglect Proceeding Not Final Appealable Order

The Colorado Supreme Court issued its opinion in People in Interest of R.S. on Monday, April 30, 2018.

Children’s Code—Dependency or Neglect Proceedings—Appeals.

In this dependency or neglect case, the trial court held a single adjudicatory trial to determine the dependent or neglected status of the child. The judge served as fact-finder with respect to allegations against mother, and a jury sat as fact-finder with respect to the allegations against father. The judge ultimately concluded that the child was dependent or neglected “in regard to” mother. In contrast, the jury concluded there was insufficient factual basis to support a finding that the child was dependent or neglected. In light of these divergent findings, the trial court adjudicated the child dependent or neglected and continued to exercise jurisdiction over the child and mother, but entered an order dismissing father from the petition. The People appealed the jury’s verdict regarding the father.

The court of appeals dismissed the People’s appeal for lack of jurisdiction, reasoning that the dismissal of a single parent from a petition in dependency or neglect based on a jury verdict is not a final appealable order because neither the appellate rule nor the statutory provision governing appeals from proceedings in dependency or neglect expressly permits an appeal from a “‘no adjudication’ finding.”

The supreme court concluded that, with limited exceptions not relevant here, section 19-1-109(1) of the Colorado Children’s Code authorizes appeals in dependency or neglect proceedings from “any order” that qualifies as a “final judgment” for purposes of C.R.S. § 13-4-102(1). Because the trial court’s order dismissing father from the petition was not a “final judgment,” the court concluded that the court of appeals lacked jurisdiction and properly dismissed the Department of Human Services’ appeal.

The court of appeals’ dismissal was affirmed.

Summary provided courtesy of Colorado Lawyer.

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: Judge Committed Reversable Error by Not Recusing Where Judge Was Previously GAL in Different Case Involving Mother

The Colorado Court of Appeals issued its opinion in People in Interest of C.Y. and J.O. on Thursday, April 5, 2018.

Dependency and Neglect—Recusal—Disqualification.

In this dependency and neglect proceeding, during the termination hearing, the judge realized she had served as a guardian ad litem (GAL) on a different case involving mother’s oldest child. The judge declined to recuse herself from the case over mother’s objection and terminated mother’s parental rights.

On appeal, mother contended that the judge erred by not recusing herself from the termination hearing based on her having served as the GAL of mother’s older child in 2005. The Code of Judicial Conduct requires judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. Here, both the GAL and the Department of Human Services discussed the 2005 case and urged the court to rely on it when ruling on the termination motion, which the court did. Under these circumstances, the judge created the appearance of impropriety by presiding over the case and abused her discretion by not recusing herself.

The judgment was reversed and the case was remanded for a new termination hearing before a different judicial officer.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Erred by Terminating Parental Rights Without Establishing Treatment Plan

The Colorado Court of Appeals issued its opinion in People in Interest of B.C. on Thursday, March 22, 2018.

Dependency and Neglect—Required Findings—Termination of Parental Rights—Appropriate Treatment Plan.

In this dependency and neglect proceeding, mother admitted that the child’s environment was injurious to his welfare and stipulated to an adjudication. She also stipulated to a preliminary treatment plan, but no dispositional hearing was held. Based on the stipulation, the trial court entered an order adjudicating the child dependent and neglected. The court further ordered the Pueblo County Department of Social Services to submit a formal treatment plan within 20 days that would be adopted and made an order of the court if no objections were filed. There was no finding that the plan was “appropriate.” Mother did not object to the submitted treatment plan.

The Department later moved to terminate mother’s parental rights. Mother objected and asserted she was in compliance with the treatment plan. Approximately a year after the petition was filed, following a contested hearing, the court entered judgment terminating mother’s parental rights. The court found that mother had not complied with the treatment plan.

On appeal, mother contended that the trial court erred by not conducting a dispositional hearing or adopting a formal treatment plan that was found to be appropriate. C.R.S. § 19-3-508(1) requires the court to “approve an appropriate treatment plan,” and C.R.S. § 19-3-604(1)(c)(I) requires a finding that “an appropriate treatment plan approved by the court has not been reasonably complied with” before parental rights are terminated. Here, there was no dispositional hearing, and the trial court did not approve an appropriate treatment plan nor make a finding that the proposed plan was appropriate.

The order was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ICWA Notice Should be Sent to All Tribes in Ancestral Group if Only Ancestral Group Indicated

The Colorado Court of Appeals issued its opinion in People in Interest of L.H. on Thursday, February 22, 2018.

Dependency and Neglect—Indian Child Welfare Act—Notice Requirement.

In this dependency and neglect proceeding, mother initially denied Native American heritage but then informed the Jefferson County Department of Human Services (Department) that her biological brother is registered with “Navajo-Deni.” The Department sent six separate notices to the Navajo Nation at six different addresses. The Navajo Nation responded that there was no record of the family with the Navajo Nation, and therefore the child was not enrolled or eligible for enrollment with the Navajo Nation. Based on this response, at the termination hearing the trial court found that the Indian Child Welfare Act (ICWA) did not apply in this case.

Mother appealed the judgment terminating the parent–child legal relationship with her child. Based on its review of the record, the Court of Appeals could not determine whether the Department complied with the ICWA. A review of the Bureau of Indian Affairs (BIA) list of Tribal Agents by Affiliation shows that the Colorado River Indian Tribes are also tribes historically affiliated with the Navajo. The Court concluded that because mother had made a general reference to Navajo, and not just the Navajo Nation, the Department was required to also notify the Colorado River Indian Tribes. The notice to only the Navajo Nation was insufficient to satisfy the ICWA’s notice requirement.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Colorado River Indian Tribes.

Summary provided courtesy of Colorado Lawyer.