Monthly meetings are held the second Wednesday of the month. All meetings are held at the Colorado Bar Association Office, 1900 Grant Street, 9th Floor, Denver, CO 80203. The meetings are available by audio conference for members who are unable to travel to Denver. Please contact Elizabeth Akalin, our CBA Program Coordinator, to arrange for audio conferencing at [email protected].

Notices about CLE topics, speakers and any special locations for the meetings will be sent separately by e-mail. Please put these dates on your calendar now and send in your RSVP when you get the meeting notice from Rebecca.

• February 14 — Valentine’s Day — No meeting
• March 14 — TBA
• April 11, 5–6 p.m. — Working with Immigrant Children and Families CLE at the CBA Offices, presented by Kathleen M. Glynn, Senior Associate Attorney at Grob & Eirich, LLC
• April 11, 6–7:30 p.m. — Happy Hour Event at the Warwick Hotel
• May 9 — Annual Election and Human Trafficking CLE
• June 13 — Annual Case Law Update with Honorable Judge Ann Gail Meinster and Honorable Judge David Furman
• July 11 — Annual Legislative Update with Genevieve Manco and the Legislative Committee

January 10, 2018– The Juvenile Justice and Delinquency Prevention Act, presented by Meg Williams and Stacie Nelson Colling

December 13, 2017 – Christmas Stocking Stuffing Party for youth in juvenile detention facilities across the metro area

The Denver Juvenile Court presents free monthly CLE topics open to all. For more information and current monthly topics, contact Barbara Bosley, Family Court Facilitator, Denver Juvenile Court (720) 337-0584, [email protected].

The Second Regular Session of the 71^st Colorado General Assembly convened on January 10, 2018.

The JLS is following and reporting on bills important to the section. Genevieve Manco, legislative liaison, will present a summary of the session at the July meeting. The Legislative Summary will be posted on the JLS website. If you would like to work on this important subsection of the JLS in 2018, please contact Gen at (720) 353-4053 or [email protected].

“Representing Respondent Parents: Measuring the Impact of the ORPC,” written by Ruchi Kapoor, appeared in the December 2017 issue of Colorado Lawyer, Vol, 46, No. 11, Page 34. 

Sheri Danz and Jennifer Collins, are Coordinating Editors of the Juvenile Law articles that appear in Colorado Lawyer. For information about submitting articles please contact Sheri at (303) 860-1517, ext. 102, [email protected], or Jennifer at (720) 944-6456, [email protected].

Please note, Colorado Court of Appeal Summaries and links to the full opinions for are also available online by going to cobar.org/For-Members/Opinions-Rules-Statutes/Colorado-Court-of-Appeals-Opinions and clicking the appropriate case date.

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2017 COA 119. No. 16CA1416. People in re C.L.T.

Termination of Parental Rights – Dependency and Neglect – Jurisdiction – Uniform Child Custody Jurisdiction and Enforcement Act – Emergency Jurisdiction.

C.L.T., a child, was adjudicated dependent and neglected. Thereafter, the Denver Department of Health and Human Services moved to terminate the parental rights of mother and father, alleging that they had not complied with their treatment plans and that both of them were unfit parents. The trial court found that although reasonable efforts had been made to rehabilitate mother, her treatment plan had not been successful, she was not fit to parent the child, and she was not likely to become fit within a reasonable period of time. The court made similar findings regarding father. Then it terminated the parental rights of both mother and father.

On appeal, mother contended that the trial court lacked jurisdiction to terminate her parental rights because it failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). She argued that because a child welfare case remained open in Texas when the Colorado case was filed, the Colorado court could exercise only emergency jurisdiction unless and until it acquired ongoing jurisdiction under the UCCJEA. The information in the record, which was limited but contained at least some indication that the court may not have had the requisite jurisdiction, was insufficient to establish whether the trial court had jurisdiction to enter any order beyond the temporary emergency order.

2017 COA 135. No. 17CA0182. People in re C.A.

Dependency and Neglect – Termination of Parental Rights – Indian Child Welfare Act Inquiry Provisions.

The Montrose Department of Health and Human Services (Department) initiated a dependency and neglect petition on behalf of C.A. At the initial hearing, the trial court asked the parties generally if the child was a Native American and if the child had any Native American heritage. Father said he did not, and mother offered no response. Father and mother were not represented by counsel at this time. The Department ultimately moved to terminate mother’s and father’s parental rights. The Department’s motion did not state the efforts the Department made to determine if C.A. is an Indian child and the trial court did not inquire on the record whether the child is an Indian child. Following a contested hearing, the trial court terminated parental rights and determined that the child was not subject to the Indian Child Welfare Act (ICWA).

On appeal, mother contended that the trial court did not comply with the ICWA’s inquiry provisions. The Court of Appeals concluded that when a trial court inquires at an initial temporary custody hearing at the commencement of a dependency and neglect proceeding whether there is a reason to know that a child is an Indian child, it must make another inquiry when termination is sought, at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Because the record did not show that the trial court made the proper inquiry at the termination proceeding, the case was remanded for the limited purpose of making the ICWA inquiry. The trial court was further directed to make appropriate findings and proceed accordingly with any actions necessary to comply with ICWA. In addition, Court of Appeals gave the parties detailed directions to take further actions, based on the trial court’s determination, within a specified timeframe. 

2017 COA 160. No. 16CA2238. People in re S.L. and A.L.

Dependency and Neglect – Due Process – In Camera Review – Ineffective Assistance of Counsel – Disclosures – Expert Witness.

The Rio Blanco County Department of Human Services (Department) became involved with the parents in this case as a result of concerns about the children’s welfare due to the condition of the family home, the parents’ use of methamphetamine, and criminal cases involving the parents. Attempts at voluntary services failed, and on the Department’s petition for dependency and neglect, the district court ultimately terminated the parents’ rights.

On appeal, the parents contended that the Department failed to make reasonable efforts to reunify them with their children. Specifically, the parents contended that the Department did not give them sufficient time to complete the services under their treatment plans and failed to accommodate their drug testing needs. The termination hearing was not held until more than a year after the motion to terminate was filed. For nine months before the motion to terminate was filed, the Department provided numerous services to the parents, including substance abuse therapy, therapeutic visitation supervision, drug abuse monitoring, and a parental capacity evaluation. The Department also provided counseling for the children. Both parents missed drug tests and tested positive during the testing period, and both were arrested for possession of methamphetamine during the pendency of the case. The Department made reasonable accommodations to meet the parents’ needs and the parents had sufficient time to comply with their treatment plans. The record supports the trial court’s findings that termination was appropriate because (1) the court-approved appropriate treatment plan had not been complied with by the parents or had not been successful in rehabilitating them; (2) the parents were unfit; and (3) the conduct or condition of the parents was unlikely to change within a reasonable time.

Father also contended that the trial court’s decision to interview the 9-year-old twin children together in chambers fundamentally and seriously affected the basic fairness and integrity of the proceedings and violated his due process rights. Father also argued that answers the judge gave to the children’s questions during the interview were improper. More than five months before the termination hearing, the court interviewed the children in chambers. The interview was recorded and transcribed, and a copy of the transcript was provided to the parties before the termination hearing. Whether counsel may be present during an in camera interview of a child in a dependency and neglect proceeding is determined on a case-by-case basis and is within the trial court’s discretion. In making this determination, the trial court should consider, among other things, the child’s age and maturity, the nature of the information to be obtained from the child, the relationship between the parents, the child’s relationship with the parents, any potential harm to the child, and ultimately any impact on the court’s ability to obtain information from the child. In addition, in the interests of fairness and to allow for the record to be fully developed, the trial court should allow the parents or trial counsel to submit questions to the child, which the court may ask in its discretion. Further, the interview, regardless of whether counsel is present, must be on the record, and a transcript of the interview must be made available to the parties before a termination hearing. Here, the trial court did not abuse its discretion in the interview procedures that it followed nor in the weight it accorded to the information solicited.

Father next contended that he was provided ineffective assistance of counsel. Although his trial counsel failed to meet discovery and disclosure deadlines for an expert witness, the record fails to demonstrate the necessary prejudice to establish a claim based on ineffective assistance.

Father further contended that the trial court abused its discretion and violated his due process rights in allowing five of the Department’s witnesses to testify as experts despite the Department failing to comply with CRCP 26(a). Despite inadequacies in the CRCP 26 disclosures, the bases for the experts’ testimony at the hearing had been disclosed to father. Therefore, the trial court did not abuse its discretion in concluding that father was not prejudiced by the inadequate CRCP 26(a) disclosures.

2018 COA 2. No. 16CA2159. Romero v. Colorado Department of Human Services.

Colorado State Administrative Procedure Act – Sexual Abuse – Evidentiary Facts – Adverse Inference – Fifth Amendment.

In this administrative law case, the Larimer County Department of Human Services (DHS) made a finding confirming that Romero sexually abused his grandchildren and exposed one grandchild to an injurious environment, which required Romero to be listed in the statewide child abuse registry. Romero appealed DHS’s confirmations pursuant to Colorado’s State Administrative Procedure Act (APA). An administrative law judge (ALJ) concluded in an initial decision that the preponderance of the evidence did not support DHS’s confirmation decisions. DHS appealed, and the Colorado Department of Human Services (Department) reversed the ALJ’s initial decision, concluding that the evidentiary facts, including an adverse inference based on Romero’s invocation of his Fifth Amendment right to remain silent, supported a finding that Romero sexually abused his grandchildren. Romero appealed to the district court, which reversed the Department’s final decision.

On appeal, the Department argued that the district court erred by overruling the Department’s final decision and by restricting the application of the adverse inference to situations where the Department provides an “adequate explanation” of why it has applied the inference. An agency’s determination in a final agency action to apply an adverse inference to a defendant’s invocation of his right to remain silent is an ultimate conclusion of fact under the APA. Consequently, the agency is required, as a matter of law, to make its own determination regarding the adverse inference and can substitute its own judgment for that of the administrative law judge regarding the inference and the weight to give the inference in light of the other evidence presented. To apply the adverse inference for invocation of the right against self-incrimination, a party in a civil case must have been asked questions the answers to which would have been potentially incriminating in a future criminal action, and the party must have invoked his Fifth Amendment rights. There must also have been probative evidence offered against the person claiming the privilege.

It is undisputed that during discovery for the ALJ hearing, DHS deposed Romero and asked him incriminating questions, including whether he touched his grandchildren for his own sexual gratification. It is also undisputed that Romero invoked his Fifth Amendment rights for the entire deposition except for the first few questions. Further, the record is clear that had Romero been called to testify at the ALJ hearing, he would have invoked his Fifth Amendment rights because of the ongoing criminal investigation into the allegations. Here, the Department’s application of the adverse inference was not arbitrary or capricious because it was supported by the record; it considered Romero’s constitutional rights; and it was not contrary to the law on Fifth Amendment adverse inference. Further, there is no authority that supports the district court’s imposition of a duty on the Department to provide an explanation for why it was applying the inference. Accordingly, the district court erred by effectively precluding the Department from making its own determination on the adverse inference.

Romero argued that the district court’s judgment should be upheld because the facts relied on by DHS to support findings of sexual abuse are speculative and do not support the ultimate findings. The Department’s view of the evidence was not speculative or contrary to the weight of the evidence presented to the ALJ.

The district court’s judgment overturning the Department’s final decision was reversed. 

2017 COA 138. No. 16CA1382. People in re T.C.C.

Juvenile – Delinquent – Robbery – Assault – Prosecutorial Misconduct – Sentence – Fees – Waiver – Indigence.

After T.C.C. removed a package from the front step of Ipson’s neighbor’s house, Ipson confronted T.C.C. and told him to return the package. T.C.C. then slapped, punched, and swore at Ipson. A judgment was entered adjudicating T.C.C. delinquent of an act that would constitute robbery and third degree assault if committed by an adult. At sentencing, T.C.C. asked the court to waive all mandatory fees based on his indigence. Instead of ruling on the motion, the court deferred this decision to probation.

On appeal, T.C.C. contended that the prosecutor improperly vouched for Ipson’s credibility and truthfulness when he argued, “Certainly Mr. Ipson has no reason to make up that he got struck numerous times from [T.C.C.].” The prosecutor’s argument was a reasonable inference from the record and not improper.

T.C.C. also contended that the trial court erred in delegating the waiver decision to probation and in permitting a waiver of fees based on “good behavior.” The plain language of the statutes permits only the court to waive fees and surcharges based solely on a finding of indigence, not based on good behavior. Therefore, the court erred by not ruling on T.C.C.’s motion.

The judgment and sentence were affirmed and the case was remanded for the trial court to rule on T.C.C.’s motion for waiver of fees and costs based on indigence.

2017 COA 139. No. 16CA1916. People in re D.B.

Dependency and Neglect – Indian Child Welfare Act – Termination – Expert Witness – Hearsay.

This dependency and neglect proceeding was governed by the Indian Child Welfare Act (ICWA). Mother’s parental rights were terminated after the trial court determined that continued custody of the child by one of the parents would likely result in serious emotional or physical damage to the child due to the parents’ extensive substance abuse, extensive domestic violence, lack of housing, and lack of income to meet the child’s needs.

On appeal, mother contended that the trial court erred in terminating her parental rights without testimony from a qualified expert witness that her continued custody of the child would likely result in serious emotional or physical damage to the child, as required by the ICWA. The ICWA provides that a court may only terminate parental rights if it determines that there is proof beyond a reasonable doubt that the child is likely to suffer serious emotional or physical damage if the child remains in the parent’s care. Such determination must be supported by evidence that includes testimony from qualified expert witnesses. The statute does not mandate, however, that an expert witness specifically opine that the child is likely to suffer emotional or physical damage in the parent’s custody. Rather, the expert testimony must constitute some of the evidence that supports the court’s finding of the likelihood of serious emotional or physical damage to the child. Here, although the expert witness’s testimony did not track the ICWA language, the record as a whole contains sufficient evidence, including testimony from a qualified expert witness, to support the trial court’s determination that the child would likely suffer serious emotional or physical damage if placed in mother’s care.

Mother also contended that the trial court erred in relying on inadmissible hearsay statements in the termination report to conclude that she had failed to maintain sobriety and that the child would thus likely suffer serious emotional or physical damage if he remained in her custody. The trial court, however, had access to other admissible evidence to support its determination that mother had failed to maintain sobriety. Further, this was not the sole basis to terminate mother’s parental rights.

The judgment was affirmed.

2017 COA 144. No. 17CA0049. People in re M.M. and P.M. III.

Dependency and Neglect – No Fault – Summary Judgment.

The Fremont County Department of Human Services (Department) filed a dependency and neglect petition concerning M.M. and P.M. III. Mother admitted that the children were dependent and neglected. Although father did not dispute that the children were in an injurious environment and were without proper parental care through no fault of a parent, he denied the allegations in the petition against him and requested an adjudicatory trial before a jury. The Department moved to adjudicate the children dependent and neglected by summary judgment. The trial court granted summary judgment and adjudicated the children dependent and neglected.

On appeal, father asserted that the trial court erred in granting summary judgment. He contended that the facts concerning him were disputed, the remaining undisputed facts concerned only mother, and the children could not be adjudicated dependent and neglected simply because the Department established that mother was a danger to the children. There are four statutory grounds for adjudication, two of which require a showing of fault as to each parent. The undisputed facts established that, with respect to the “no-fault” grounds, CRS § 19-3-102(1)(c) and (e), the children were dependent and neglected and the trial court properly granted summary judgment on those statutory grounds. With respect to CRS § 19-3- 102(1)(a) and (b), however, the material facts concerning father’s conduct were disputed and thus the trial court erred in granting summary judgment on those grounds.

The judgment was affirmed in part and reversed in part. The case was remanded for the trial court to amend the order of adjudication to reflect that the children were adjudicated dependent and neglected only under CRS § 19-3-102(1)(c) and (e).

2017 COA 153. No.17CA0070. People in re K.G. and A.R.

Juvenile Court – Dependency and Neglect – Child Custody – Indian Child Welfare Act.

The district court adjudicated K.G. and A.R. dependent and neglected and allocated parental responsibilities to the aunt and uncle. Before entering the allocation order, the district court did not address the applicability of the Indian Child Welfare Act (ICWA).

On mother’s appeal, the Court of Appeals concluded that the ICWA applies to this proceeding. The Court found no indication in the record that mother was asked whether she knew or had reason to know the children were Indian children; the district court did not make required inquiries of the parents, guardian ad litem, or the Department of Human Services; and although the record indicates that the Department had reason to know that K.G. might be an Indian child, there is no indication that it sent the required notices to the Cherokee tribes on K.G’s behalf.

The case was remanded for further proceedings to determine whether the children are Indian children in accordance with the ICWA.

No. 16SC731, People in Interest of J.W.

Children’s Code – Dependency or Neglect Proceedings – Jurisdiction.

The supreme court reviews whether a juvenile court validly terminated a mother’s parent-child legal relationship without first entering a formal written order adjudicating her children as dependent or neglected. The juvenile court accepted the mother’s admission that her children were neglected or dependent, but did not enter a formal order adjudicating the children’s status as to the mother before it terminated the mother’s parental rights approximately a year later. The court of appeals held that the juvenile court lacked jurisdiction to terminate the mother’s parental rights because it had not entered an order adjudicating the children’s status as dependent or neglected.

The supreme court held that the juvenile court’s acceptance of the mother’s admission established the children’s status as dependent or neglected, thus fulfilling the purpose of the adjudicative process and permitting state intervention into the familial relationship. The juvenile court’s failure to enter an adjudicative order confirming the children’s status did not divest the juvenile court of jurisdiction to terminate the mother’s parental rights in this case, nor did it impair the fundamental fairness of the proceedings or deprive the mother of due process under the circumstances of this case. Accordingly, the supreme court reversed the judgment of the court of appeals and remanded for the court of appeals to consider the mother’s other contentions on appeal.

The Spring 2018 Newsletter is scheduled to go out by March 21, 2018.  The deadline for submitting cases, articles and events is March 14, 2018. Please send any submission requests to [email protected], or call (303) 679-2432 (phone), or fax to (303) 679-2444.