August 26, 2019

Colorado Court of Appeals: Juvenile Court Must Make Reasonable Accommodations Under ADA in Crafting Treatment Plan for Parents

The Colorado Court of Appeals issued its opinion in People in Interest of S.K. on Thursday, March 7, 2019.

Americans with Disabilities Act—Reasonable Accommodations—Termination of Parental Rights—Dependency and Neglect—Rehabilitation Act of 1973.

The Gunnison County Department of Health and Human Services (Department) received reports that S.K. was failing to thrive. The Department initiated a dependency and neglect case and took custody of S.K.

The parents stipulated that the child was dependent and neglected because she was without proper care through no fault of their own. The juvenile court adopted treatment plans for the parents and appointed a guardian ad litem for each parent. Ultimately, the Department moved to terminate the legal relationships between S.K. and the parents. Mother and father filed a joint motion requesting (1) a finding that the Department had not made reasonable efforts to reunify them with the child, (2) dismissal of the termination motion, and (3) amendment of the treatment plans to provide reasonable accommodations under the Americans with Disabilities Act (ADA). Following a hearing, the court rejected the parents’ arguments and terminated their parental rights.

On appeal, the parents challenged the appropriateness of their treatment plans, the efforts the Department made to reunify them with the child, and the extent of reasonable accommodations required under the ADA. An appropriate treatment plan is one that is approved by the court and is reasonably calculated to render the parent fit to provide adequate parenting within a reasonable time and that relates to the child’s needs. When evaluating parental unfitness and the likelihood that a parent’s conduct or condition will change, the court must consider whether reasonable efforts have been unable to rehabilitate the parent. The reasonable efforts standard is met when services are provided in accordance with C.R.S. § 19-3-208, including appropriate assessments and referrals and mental health and substance abuse treatment services, if funding is available. Title II of the ADA prohibits a public entity from discriminating against a qualified individual with disabilities in the provision or operation of public services, programs, or activities. Section 504 of the Rehabilitation Act of 1973 applies the same requirement to entities that receive federal financial assistance. There is an affirmative duty placed on a public entity to make reasonable accommodations for qualified individuals with disabilities.

Whether a parent is a qualified individual with a disability under the ADA is a case-by-case determination. When a parent in a dependency and neglect proceeding has a disability under the ADA, the Department and the juvenile court must make reasonable accommodations for the parent’s disability in the treatment plan and the rehabilitative services provided. When deciding whether to terminate parental rights, the juvenile court must consider whether reasonable accommodations were made for the parent’s disability in determining whether the parent’s treatment plan was appropriate and reasonable efforts were made to rehabilitate the parent. The juvenile court’s primary concern is the child’s health and safety.

Here, it was undisputed that both parents had serious intellectual and developmental disabilities. Though these were disabilities under the ADA, the ADA does not restrict a court from terminating parental rights when the parent, even after reasonable accommodations, is unable to meet his child’s needs. The juvenile court considered the many services offered to the parents in concluding that the Department provided services that reasonably accommodated the parent’s limitations; the parents’ treatment plans were appropriate; and the Department made reasonable efforts to rehabilitate the parents. These conclusions were supported by the record.

Mother contended that the juvenile court erred in finding that she was an unfit parent and her conduct or condition was unlikely to change in a reasonable time. The record evidence, including the opinions of professional evaluators, did not support this argument. The juvenile court did not err in concluding that mother was an unfit parent and her conduct or condition was unlikely to change in a reasonable time.

Father argued that placing the child with the paternal grandmother was a less drastic alternative to termination. The record showed that a home study resulted in the paternal grandmother being denied placement for the child and otherwise supported the juvenile court’s determination that there was no less drastic alternative to termination.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Judge who Witnessed Crime in Courtroom May Have Appearance of Impropriety for Later Related Proceedings

The Colorado Court of Appeals issued its opinion in People v. Roehrs on Thursday, March 7, 2019.

Criminal Law—Judge—Recusal—Personal Knowledge—Extrajudicial Source Doctrine— Colorado Code of Judicial Conduct Rule 2.11(A)(1)—Appearance of Impropriety—Disqualification.

Roehrs was an interested party in a dependency and neglect hearing at which Judge Cisneros presided. At the hearing, Sergeant Couch testified concerning Roehrs’s presence at the scene of an investigation that he was conducting. During Sergeant Couch’s testimony, Roehrs stood up, walked toward the witness stand, and said, “You’re a liar. I am going to have your job.” Judge Cisneros asked Roehrs to leave the courtroom, which Roehrs did. After Sergeant Couch’s testimony, Roehrs threatened him in the courtroom hallway. Judge Cisneros later called Sergeant Couch and the attorneys into her chambers to discuss what had happened outside the courtroom.

The People charged Roehrs with retaliation against a witness, harassment, and intimidating a witness. Before trial, Roehrs’s counsel moved to recuse Judge Cisneros. Judge Cisneros denied the motion, ruling that Roehrs failed to prove bias or personal knowledge of the disputed facts. Judge Cisneros presided over Roehrs’s criminal trial. Roehrs contested a number of factual issues. A jury found Roehrs guilty of retaliation against a witness and harassment.

On appeal, Roehrs contended that the trial court erred in denying her motion to recuse because she had personal knowledge of disputed facts and was a material witness to Roehrs’s conduct; thus, there was an appearance of bias or prejudice. Judge Cisneros was not a likely material witness. But under Colorado Code of Judicial Conduct Rule 2.11(A)(1), a judge need not be a likely material witness for disqualification to be mandated; all that is required is personal knowledge of the facts that are in dispute. The court of appeals examined the scope of the extrajudicial source doctrine and concluded that although knowledge gained in the course of a judge’s courtroom duties does not normally prevent a trial judge from presiding over subsequent, related proceedings, when a trial judge witnesses all or part of a crime in the courtroom, she has personal knowledge of facts that are in dispute within the meaning of Rule 2.11(A)(1). Here, the judge witnessed part of the crime and thus had personal knowledge of disputed facts. Accordingly, Roehrs’s motion was sufficient to raise an appearance of bias or prejudice and Judge Cisneros’s continued participation in the trial was improper.

The judgment of conviction was reversed and the case was remanded with directions to grant appellant a new trial before a different judge.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Students and Teachers in Youth Corrections Classroom “Members of the Public” for Purposes of Public Indecency Statute

The Colorado Court of Appeals issued its opinion in People in Interest of D.C. on Thursday, February 21, 2019.

Juvenile Law—Delinquency—Public Indecency—Members of the Public.

D.C. and E.L. were committed to the Division of Youth Corrections (DYC). During their DYC science class, D.C. exposed one of his testicles to E.L. As a result, D.C. was adjudicated delinquent for committing an act that, if committed by an adult, would constitute public indecency.

On appeal, D.C. argued that insufficient evidence supported the adjudication because the prosecution failed to establish that the DYC classroom in which D.C. exposed his testicle was a “public place” under the public indecency statute.A person commits public indecency by knowingly exposing his genitals to the view of another under circumstances that are likely to cause affront or alarm “in a public place or [in a place] where the conduct may reasonably be expected to be viewed by members of the public.” Here, other students and a teacher were present when D.C. exposed himself. Therefore, sufficient evidence established that D.C. exposed his genitals in a public place under the indecency statute.

The adjudication was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Juvenile’s Miranda Waiver Sufficiently Reliable Under Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Barrios on Monday, January 28, 2019.

Juvenile—Miranda—Advisement Waiver.

In this case, the supreme court considered whether a juvenile’s Miranda advisement waiver was reliable under the totality of the circumstances. The court held that the police detective complied with the provisions of the juvenile Miranda waiver statute, C.R.S. § 19-2-511, and that the concerns identified by the trial court do not undermine the reliability of the waiver. Because both the juvenile and his legal guardian were fully advised of all the juvenile’s rights and the juvenile issued a reliable waiver, his statements to police should not be suppressed. Accordingly, the trial court’s order suppressing the juvenile’s statements was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Speedy Trial Rights Violated if Juvenile Not Brought to Trial Within 60 Days of No-Bond Order

The Colorado Court of Appeals issued its opinion in People in Interest of G.S.S. on Thursday, January 10, 2019.

Children’s Code— Juvenile Court—Delinquency—No-Bond Order—Speedy Trial.

G.S.S. was arrested and charged with two delinquent acts for threatening to shoot students at his middle school. He was placed in secure detention. At the initial detention hearing on May 2, 2017, the district court ordered that G.S.S. be held without bond. Numerous hearings were held over the next several months regarding the status of G.S.S.’s release from detention. On August 9, 2017 defense counsel moved to dismiss the case for violation of G.S.S.’s statutory speedy trial rights. The district court granted the motion.

On appeal, the prosecution argued that G.S.S.’s requests for continuances waived or extended the speedy trial period, and if there was a speedy trial violation, dismissal is not the proper remedy. Under CRS § 19-2-509(4)(b), a court is required to bring a juvenile to trial within 60 days of a no-bond order, so G.S.S. was entitled to a trial within 60 days of May 2, 2017, or July 1, 2017. The court did not hold a trial within that 60-day limit. In addition, counsel’s actions on behalf of G.S.S. were designed to get G.S.S. released, not to delay a trial date. Thus, G.S.S.’s requested continuances did not waive, toll, or extend the speedy trial period. Accordingly, the district court violated G.S.S.’s statutory speedy trial rights. Further, the court of appeals discerned that it was the legislature’s intent to require dismissal when a speedy trial violation occurs, regardless of whether the speedy trial period was established by a no-bond hold order or entry of a not guilty plea. Therefore, the district court did not err by dismissing G.S.S.’s case.

The order was affirmed.

Summary provided courtesy ofColorado Lawyer.

Colorado Supreme Court: Non-Party to Juvenile Delinquency Case Needed Only to Show It Was Substantially Aggrieved to Appeal District Court’s Order

The Colorado Supreme Court issued its opinion in People in Interest of D.Z.B. on Monday, January 14, 2019.

Standing on Appeal.

The supreme court reviewed whether the court of appeals erred in concluding that the Arapahoe County Department of Human Services (the Department) lacked standing to challenge a district court’s temporary custody order placing D.Z.B., a juvenile, in one of its residential facilities pending his delinquency adjudication.

The court concluded that the court of appeals erroneously merged the analysis used to determine whether a plaintiff has standing to sue with the analysis used to determine whether a non-party has standing to appeal to assess whether the Department, a non-party to the district court proceedings, had standing to appeal. As a result, the division required the Department to demonstrate that it (1) suffered an injury in fact to a legally protected interest and (2) was substantially aggrieved by the district court’s order. Because the Department was a non-party to the lower court proceedings, the court of appeals should have assessed only whether the Department was substantially aggrieved by the district court’s order. Accordingly, the court reversed and remanded the case to the court of appeals to apply the correct standard and to consider any outstanding issues.

Summary provided courtesy ofColorado Lawyer.

Colorado Gives: Rocky Mountain Children’s Law Center Compassionately Transforms the Lives of Children who Experience Abuse, Neglect or Trauma

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

For more than thirty-six years, the Rocky Mountain Children’s Law Center has improved the lives of more than 25,000 abused, neglected, and at-risk children and youth through compassionate legal advocacy, clinical services, education, and public policy reform.  Using a team of lawyers and social workers, the Children’s Law Center advocates for children in the courtroom, in the community, and at the Capitol.

The Children’s Law Center works to improve the child welfare and foster systems through policy advocacy, working to make children a political priority at the local, state, and national levels. The Children’s Law Center has made great progress in this area. Most recently, they launched Colorado’s first Baby Court in Pueblo – a specialty court providing wraparound services for children ages 0-3 and families involved in Dependency and Neglect cases. They also created the first Colorado Child Protection Ombudsman Program, promoted a 2013 Senate Bill to reduce the number of child abuse fatalities in the state, promoted a 2013 House Bill to streamline the process to report child abuse, and much more.

Here’s how their programs improve kids’ lives:

  • They help children with special education needs thrive in their appropriate school settings.
  • They help children heal and thrive with caregivers when parents are unable to care for their basic needs and wellbeing.
  • Their attorneys and social workers represent children who have experienced domestic violence.
  • They help young adults, most of whom have experienced foster care, obtain basic documentation such as social security cards and birth certificates.
  • Current and former foster youth in their Project Foster Power program advocate to improve the child welfare and foster care systems through policy advocacy.
  • Their Trauma-informed Bloom Yoga program helps kids process and heal from their trauma.

The Children’s Law Center relies heavily on donations to continue providing compassionate legal advocacy to children who have experienced abuse, neglect or trauma. Their annual operating expenses total over one million dollars per year. Please make a gift to the Children’s Law Center on Colorado Gives Day by clicking here or any day by filling out the form on this webpage.

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 Court of Appeals: Then-Applicable Competency Statute for Juveniles Not Unconstitutional Facially or As Applied

The Colorado Court of Appeals issued its opinion in People in Interest of A.C.E.-D. on Thursday, November 15, 2018.

Juvenile Delinquency—Competency—Evidence.

Following a complaint of shoplifting, police officers contacted A.C.E-D. He confessed, led them to the merchandise, and was charged with misdemeanor theft. In a separate case, A.C.E-D. was charged with misdemeanor harassment based on Facebook messages sent to his ex-girlfriend. In both cases, A.C.E-D. pleaded guilty. Before sentencing, he moved to determine competency and later moved to withdraw his guilty pleas. The court ordered a competency evaluation, found A.C.E-D. competent, allowed A.C.E-D. to withdraw his guilty pleas, and conducted a bench trial. The court found A.C.E-D. guilty of the charges and adjudicated him a juvenile delinquent.

On appeal, A.C.E-D. argued that the previous iteration of the competency statute for juveniles, C.R.S. § 19-2-1301(2), was facially unconstitutional or unconstitutional as applied because it incorporated the definition of “incompetent to proceed” for adults in criminal proceedings set out in C.R.S. § 16-8.5-101(11), which did not allow the court to consider A.C.E-D.’s age and maturity. A juvenile adjudication need only be fundamentally fair, and using the same competency test for both juveniles and adults is fundamentally fair. Because A.C.E-D. failed to show that under no set of circumstances would the statute be constitutional, the trial court’s finding that the statute was not facially invalid was proper.

A.C.E-D. also argued that that statute was unconstitutional as applied to him because the trial court’s application precluded him from being declared incompetent since he didn’t prove he had a mental or developmental disability. Sufficient evidence in the record supports the trial court’s finding of competency under Dusky v. United States, 362 U.S. 402, 402 (1960), and thus A.C.E-D. did not prove beyond a reasonable doubt that the trial court unconstitutionally applied the statute to him.

A.C.E-D. also argued that the trial court erred in admitting Facebook messages because the prosecution did not provide sufficient evidence to show that he wrote and sent the Facebook messages. The prosecution met the heightened standard for Facebook messages, and A.C.E-D’s contrary evidence goes to the weight of the messages. The trial court did not abuse its discretion in admitting the messages.

The adjudications were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Court Need Not Make Findings Regarding Whether Restitution Would Cause “Serious Hardship or Injustice” to Juvenile

The Colorado Court of Appeals issued its opinion in People in Interest of A.V. on Thursday, September 20, 2018.

Juvenile Delinquency—Sentencing—Restitution—Waiver—Evidence—Reasonableness.

A.V. was arrested in connection with a series of home and business burglaries. The victim businesses included Animal Attractions Pet Store (Animal Attractions) and the Country Inn Restaurant (Country Inn). Country Inn sustained extensive fire damage in the burglary, and the fire destroyed most of the business. As part of a global case disposition, A.V. pleaded guilty to some counts in exchange for dismissal of other counts, stipulating to a factual basis and agreeing to pay restitution to all victims, including those in the dismissed cases. The juvenile court ordered restitution of $1,000 to Country Inn’s owner for the deductible and $681,600 to Country Inn’s insurer for the repair work. The juvenile court further found that the loss amounts submitted by Animal Attractions and its insurer in the victim impact statements sufficiently established the victims’ losses to order restitution in the amount requested.

On appeal, A.V. contended that no facts exist to show that he caused the Country Inn fire and that the prosecution failed to meet its burden of proving proximate cause for these claimed losses. Here, A.V. waived his challenge to proximate cause by (1) stipulating to a factual basis in the plea agreement and at the providency hearing; (2) stipulating to pay restitution to the victims of the dismissed counts (in this case the arson count) in the plea agreement; (3) agreeing with the prosecutor before the restitution hearing that A.V.’s stipulated factual bases in all cases included a stipulation to causation; and (4) asking the court to order $470,874.47 for losses related to the dismissed arson count.

A.V. next contended that the juvenile court erroneously ordered him to pay the estimated repair costs to Country Inn’s insurer, rather than actual costs incurred to date. Here, the prosecution presented competent evidence of the estimated expenses, which A.V. did not rebut. Therefore, the juvenile court did not err.

A.V. also contended that the invoices submitted with Animal Attractions’ victim impact statement were insufficient to establish restitution and that the prosecution was required to present witness testimony to satisfy its burden. The restitution statute does not require the prosecution to present evidence in the form of testimony. Here, because the documents support the court’s order and A.V. offered no rebuttal evidence, the juvenile court’s order was not an abuse of discretion.

A.V. last contended that the juvenile court was required to make specific reasonableness findings before ordering restitution and that $692,806.20 was not a reasonable amount of restitution to be awarded against an incarcerated juvenile. However, the statute’s plain language mandates that the juvenile court order full restitution for the victims’ losses, and the juvenile court is not required to make specific reasonableness findings before imposing restitution.

The restitution orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Exclusionary Rule Correctly Applied to Suppress Results of Illegal Collection of Juvenile’s DNA

The Colorado Supreme Court issued its opinion in Casillas v. People on Monday, September 24, 2018.

Evidence—Searches and Seizures—Exclusionary Rule.

In this criminal appeal, the supreme court reviewed whether the exclusionary rule required the suppression of evidence derived from a juvenile probation officer’s unauthorized collection of DNA from a juvenile in violation of C.R.S. § 19-2-925.6 and the Fourth Amendment. The court held that (1) juvenile probation officers are properly considered adjuncts to law enforcement; (2) the officer’s collection of the juvenile’s DNA for uploading to CODIS served an inherent law enforcement function; (3) nothing in the record suggests the officer conducted the buccal swab search in reliance on misinformation provided by a third party; and (4) the unlawful search here was not based on a reasonable misinterpretation of the law. Because suppression would have a deterrent effect by removing incentives to collect DNA from ineligible juvenile offenders, the court held that suppression was warranted. Accordingly, the court reversed the court of appeals’ judgment and remanded the case with instructions to vacate petitioner’s conviction.

Summary provided courtesy of Colorado Lawyer.