Winter 2013

• Recent Meetings and Events
• Schedule of Future JLS Events
• Other Events of Interest
• Legislative Subcommittee Report

• Articles for The Colorado Lawyer
• Case Law Update
• Section Officers and Executive Counsel

On Sept. 5, the JLS hosted an Ethics CLE Luncheon, “Representing Parties in Juvenile Proceedings: Is Collaboration a Positive Development?” presented by Amy C. DeVan, Assistant Regulation Counsel, Office of Attorney Regulation Counsel.

On Nov. 28, Becky Updike, Ombudsman’s Office, presented on “How the Ombudsman Receives and Investigates Complaints.”

On Jan. 9, the Hon. Justice Brian Boatright, Colorado Supreme Court, presented on “The Appellate Process for Juvenile Appeals and Persuasive Appellate Writing.”

The meetings for the remainder of this calendar will occur at different times to accommodate members who are not able to make it to a noon meeting. Please put these dates on your calendar now and send in your RSVP when you get the meeting notice from Andrea Mueller. Notices about CLE topics, speakers, and any special meeting locations will be sent separately via email.

Juvenile Case Law Summary will be presented by the Hon. Ann Gail Meinster and Sue Thibault—Wednesday, March 27 at 4 p.m.

Annual JLS Conference, “Improving Outcomes for Adolescents in Juvenile Cases.”—Friday, April 19, 8:30 a.m.–4:30 p.m.

Election Meeting and a Legislative Update presented by Sarah Felsen—Wednesday, May 22, noon.

Unless otherwise noted, all meetings are held at the Colorado Bar Association Office, 1900 Grant Street, 3rd Floor, Denver, CO 80203. The meetings are available by audio conference for members who are unable to travel to Denver. Please contact Andrea Mueller, our CBA Liaison, to arrange for audio conferencing.

Many of these conferences offer special discounts for CBA Juvenile Law Section members—Be sure to ask when registering for an event.

April 14–17, the Court Improvement Program will sponsor Colorado’s Best Practices D&N Court Teams in Keystone, CO. For more information, contact M. Kay Yorty, J.D., Office of the Colorado State Court Administrator Planning and Analysis Division, Judicial Programs at Margaret.yorty@judicial.state.co.us, or go to coloradocip.com.

April 18–19, OCR will sponsor a Domestic Relations Conference at Pueblo Community College. Visit coloradochildrep.org for more information.

The first Regular Session of the Sixty-ninth General Assembly convened on Wednesday, Jan. 9. Throughout the session, Sarah Felsen, JLS Legislative Committee Head, hosts a legislative conference call meeting every Tuesday at noon to discuss pending bills relating to juvenile law. Section members are welcome to participate: dial 1-866-200-5786, or 303-218-2281(metro area). When prompted for a conference ID, enter 3038245311.

You can review a matrix of the bills up for discussion online.

Please contact Michael Valdez if you wish to include additional legislation for the section to consider at these weekly conference calls. Michael sends out a weekly email update on all proposed legislation that you may be interested in receiving. Sign up online to receive your free subscription. If you received the newsletter during the 2012 legislative session, you do not need to re-subscribe. Also, check out Valdez’s weekly video recaps.

Juvenile Law Articles and Other Articles of Interest

The August 2012 issue of The Colorado Lawyer, Volume 41, No. 8, contains the 2012 CBA Legislative Update for Juvenile Law prepared by Michael Valdez, Director of the CBA Department of Legislative Relations, on page 70.

The January 2013 issue of The Colorado Lawyer, Volume 42, No. 1, contains an article written by The Hon. Ann Gail Meinster on “Juvenile Law as a Specialty” in the Judges’ Corner section, on page 71.

Barbara Shaklee and Linda Weinerman, both past Chairs of the JLS, are co-editors of the Juvenile Law articles that appear in The Colorado Lawyer. For information about submitting articles please contact Barbara Shaklee at 720-944-2965 or Linda Weinerman at (303) 860-1517.

Please note, Colorado Court of Appeal Summaries and links to the full opinions are available online. Go to cobar.org/opinions, and click on the appropriate case date.

The Court of Appeals summaries are written for the CBA 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 CBA, and are not the official language of the Court. The CBA cannot guarantee the accuracy or completeness of the summaries.

2012 COA 131. No. 10CA0417. People in the Interest of N.G., and Concerning J.P.W.

Dependency and Neglect—Deferred Adjudication—Parental Presumption.

In this dependency and neglect (D&N) proceeding, father appealed from the magistrate’s order allocating permanent custody and parental responsibilities for his child to the child’s maternal uncle, and from the district court’s order denying his petition for review of the magistrate’s order. The orders were vacated.

In June 2010, the El Paso County Department of Human Services (DHS) removed N.G., then 5 years old, from his mother’s care because of concerns about her drug use. The child was placed in the care of his maternal uncle. Father, a resident of Arizona, learned of the removal from mother. He had not seen the child in three years, but court-ordered testing had confirmed his paternity and he was voluntarily paying child support. Father expressed no interest in becoming a part of child’s life when contacted by DHS.

On Aug. 23, 2010, father admitted to the Amended Petition in Dependency and Neglect, which alleged that father did not reside in the home of mother and the child, and that the incidents that had led to the removal “placed the welfare of the child at risk,” but were “beyond his immediate control.” Based on this admission, the magistrate found the child dependent and neglected.

A treatment plan for father also was approved by the court. A favorable report regarding father’s performance in this plan was submitted to the court in January 2011. Two days later, father moved for placement and custody of the child. In February, a mediation was held to consider placing the child with father, during which it was decided that father should come to Colorado “for at least a couple visits” to see the child. In late May, DHS concluded that the child should be placed in the permanent custody of uncle because father did not make the required visits with the child. The magistrate entered an order adjudicating the child dependent and neglected as to mother, nunc pro tunc Aug. 23, 2010.

In September 2011, a magistrate granted the motion to allocate parental responsibilities to uncle. Father moved for review in the district court. The district court upheld the magistrate’s order and revoked the deferred adjudication as to father. Father appealed.

The Court of Appeals first reviewed the law under Article 3 of the Children’s Code. It concluded that (1) in permitting a continuation of the adjudicatory hearing, CRS § 19-3-505(5) contemplates reconsidering the child’s status before entering the adjudicatory order; (2) reconsideration may be requested expressly or impliedly; and (3) reconsideration should be accompanied by any additional findings required to address new evidence and the child’s current status. Consequently, during the deferral period, the parent may seek to present evidence probative of the current status of the child as to that parent and/or the continued vitality of any admission to a petition alleging D&N.

The Court then reviewed Troxel v. Granville, 530 U.S. 57, 66 (2000). In an issue of first impression concerning the status of this presumption during a D&N proceeding that has gone forward on the basis of a deferred adjudication, the Court concluded: (1) the mere judicial authorization to file a petition alleging D&N does not overcome the Troxel presumption; and (2) where the adjudication has been deferred, the preponderance determination is not final as to the merits of the allegations set forth in the D&N petition. Therefore, the Troxel presumption will generally survive such a determination.

The Court then applied the foregoing conclusions. First, it rejected DHS’s argument that the Children’s Code requires only an adjudication as to one parent. It then held that by entering into the deferred adjudication agreement, father did not waive his right to request an adjudicatory hearing or further findings on the child’s current status. Therefore, it was error for the magistrate not to address father’s evidence presented at the hearing before allocating parental rights to uncle.

It also was error for the magistrate to fail to rule on father’s motion for placement and custody of the child and to decline to address the Troxel presumption. The Court also ruled that the Troxel presumption survived the deferred adjudication agreement and must be addressed.

Accordingly, the Court vacated the district court’s order denying father the relief he requested in his petition for review of the magistrate’s order and vacated the magistrate’s order. The case was remanded to the district court with instructions to remand the case to the magistrate to conduct further proceedings regarding father’s motion for placement and custody of the child.

2012 COA 142. No.11CA1006. In re the Parental Responsibilities of D.T., and Concerning Lavattiata.

Allocation of Parental Responsibilities—Nonparent—CRS § 14-10-123(1)(c).

Crystal Lavattiata appealed from the judgment dismissing her petition for parental responsibilities for D.T., who is the child of Christina Trujillo (mother). The judgment was affirmed and the case was remanded.

Mother and Lavattiata became acquainted when mother was a teenager and she attended school with Lavattiata’s children. After mother gave birth to D.T. in 2003, she moved into Lavattiata’s home, and Lavattiata assisted her in caring for the child. Although mother moved out of Lavattiata’s home when D.T. was 6 months old, Lavattiata continued to assist mother with D.T.’s care until 2010, when mother ended Lavattiata’s time with him. Lavattiata subsequently petitioned for an allocation of parental responsibilities. The trial court concluded that Lavattiata did not have standing under CRS § 14-10-123(1)(c) and dismissed Lavattiata’s petition.

On appeal, Lavattiata contended the trial court erred by dismissing her petition for parental responsibilities. A nonparent can attain standing under CRS § 14-10-123(1)(c) if the nonparent has had the physical care of the child for six months or more and commences an action seeking parental responsibilities within six months of the termination of such care. Here, mother at all times acted as D.T.’s parent and directed his care. Lavattiata functioned in a grandmother-like role to D.T. and provided care for D.T. at mother’s direction and under her supervision. Mother remained in control of D.T.’s care by continuously monitoring and directing Lavattiata’s actions with D.T., and then terminating Lavattiata’s care of the child when Lavattiata refused to follow her directions. Thus, the trial court did not err in concluding that Lavattiata lacked standing under CRS § 14-10-123(1)(c). The judgment was affirmed, and the case was remanded to the trial court for determination of mother’s appellate attorney fee request under CSR § 14-10-119.

2012 COA 151. No.11CA1951. People in the Interest of K.W.

Juvenile Delinquent—Diversion Program—Statute of Limitations—Tolling—Disorderly Conduct—Evidence

K.W., a juvenile, appealed the judgment adjudicating her delinquent based on findings that she committed acts that, if committed by an adult, would constitute disorderly conduct in violation of CRS § 18-9-106(1)(a). The judgment was affirmed.

The People charged K.W. with one count of interfering with staff or students, a class 3 misdemeanor. As an alternative to prosecution, the case was diverted to the Juvenile Offender Services Program. K.W. agreed to enter the program. Subsequently, K.W. was terminated from the diversion program based on her noncompliance. The People thereafter filed a second petition in delinquency in the district court. This petition encompassed the original interference charge and the additional charge of disorderly conduct. K.W. was found to be delinquent on the disorderly conduct charge.

K.W. contended that the magistrate and the district court erred when they exercised jurisdiction over the disorderly conduct charge. A petition in delinquency must be filed in a “court of competent jurisdiction” within the applicable time period. For petty offenses, the applicable period is six months. However, CRS § 16-5-401(12) tolls the limitations period for charges “brought to facilitate the disposition of the case,” which includes a diversion program. Here, K.W. was initially charged within the six-month statute of limitations period and entered into a diversion program. After she failed the diversion program, and eleven months after the initial date she was charged, the People added a charge. Therefore, the court had jurisdiction to adjudicate the juvenile on the disorderly conduct charge, because the limitations period for bringing the charge was tolled while the Diversion Agreement concerning the same conduct was pending.

K.W. also argued that as a matter of law there was insufficient evidence to adjudicate her on the disorderly conduct offense. K.W. was hostile and threatening; refused to leave the scene; used obscene language; and attempted to reach the students, causing the security officer to intervene and push her back. Therefore, the evidence was sufficient to support the disorderly conduct adjudication.

2012 COA 161. No. 12CA0649. People in Interest of O.C., and Concerning C.M.

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.

2012 COA 162. No. 12CA0771. In re the Parental Responsibilities of M.W., and Concerning Taylor.

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.

2013 CO 6. No. 11SC529. L.A.N. v. L.M.B.

Dependency and Neglect—Psychotherapist—Patient Privilege—Guardian ad Litem—Waiver.

The Supreme Court affirmed the court of appeals’ finding that the guardian ad litem (GAL) held the minor child’s psychotherapist–patient privilege in this dependency and neglect proceeding. A GAL holds a minor child’s psychotherapist–patient privilege in a dependency and neglect case when: (1) the child is too young or otherwise incompetent to hold the privilege; (2) the child’s interests are adverse to those of his or her parent(s); and (3) CRS §19-3-311 does not abrogate the privilege.

The Court also affirmed the court of appeals’ holding that the GAL partially waived the child’s psychotherapist–patient privilege when she disseminated a letter from the child’s therapist to the juvenile court and to all of the parties. However, the Court disagreed with the procedure the court of appeals described for determining the scope of the waiver. On remand, the juvenile court must determine the scope of the waiver consistent with the Court’s instructions.

2012 COA 195. No. 11CA1448. People in Interest of A.R., and Concerning F.N.

Dependency and Neglect—Parental Rights—Termination—Indian Child Welfare Act—Active Efforts.

In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationship with A.R. The Department of Human Services (Department) joined mother’s appeal of the termination and also challenged that part of the judgment addressing the Department’s guardianship. The judgment terminating mother’s parental rights was affirmed, the part of the judgment addressing guardianship was reversed, and the case was remanded.

Because A.R. is an “Indian child” as defined in 25 USC § 1903(4), these proceedings were subject to the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 to 1963. Mother contended that the court erred in terminating her parental rights. She asserted that the Department did not meet the ICWA’s “active efforts” requirement, and there were viable, less drastic alternatives to termination, including A.R.’s placement with A.W. and C.W. The ICWA’s “active efforts” standard requires more effort than the “reasonable effort” standard in non-ICWA cases. Here, despite the court’s use of the term “best efforts,” the record supports the court’s determination that the Department’s actions met the requisite “active efforts” standard under the ICWA with regard to mother, A.W. and C.W. The trial court found, with record support, that although mother substantially complied with her treatment plan, it was unsuccessful in rendering her a fit parent and that her conduct or condition was not likely to change within a reasonable time. It also found that A.R. needs lifelong care or intensive services for her special needs, and mother was unable to provide those services. Additionally, placement with A.W. and C.W. without terminating mother’s parental rights was not a less drastic alternative; A.R. needed permanency, so it was not in her best interests.

The Department contended that, even if the court’s termination of mother’s parental rights was proper, the court erroneously deviated from the ICWA’s placement preferences when, in granting the Department guardianship, it denied the Department permission to place A.R. with A.W. and C.W. for purposes of adoption. The ICWA presumes that the child’s best interests are served by placement with an extended family member who also has Indian heritage. Here, the record does not support the trial court’s finding that there was good cause to deviate from the ICWA’s placement preferences. Therefore, the court erred in deviating from the ICWA’s placement preferences. The trial court’s judgment was reversed in this regard and the case was remanded with directions for the court to allow the department to arrange a home visit with A.W. and C.W., and to consider an adoption or preadoptive placement of A.R. consistent with the ICWA placement preferences, including possible placement with A.W. and C.W. or her foster parents.

JLS Officers for 2012–13 fiscal year, beginning July 1, 2012:

Chair: Pax Moultrie, 303-636-1895, pmoultrie2@co.arapahoe.co.us

Chair-elect: Ashley Ratliff, 720-515-0288, aratlifflaw@gmail.com

Secretary: Terry Bernuth, 303-550-8689, tbernuth@msn.com

Immediate Past Chair: Kris Ward, 303-974-6969, Kris@wardlawfirmpc.com

Committee Heads for 2012–13 fiscal year, beginning July 1, 2012:

Legislative: Sarah Felsen, 303-271-6435, sarah.felsen@judicial.state.co.us

Membership: Angela Brant, 303-799-9001, ext. 6230, angela.brant@coloradodefenders.us

Newsletter: Sue Thibault, 303-679-2432, sthibault@co.clear-co.us

Website: Sarah Felsen, 303-271-6435, sarah.felsen@judicial.state.co.us

Program: Sarah Oviatt, 303-271-8909, soviatt@co.jefferson.co.us

CBA Board of Governor’s Liaison: Betsy Fordyce, 303-692-1165, bfordyce@childlawcenter.org

If you have any interest in serving on any of the committees, please contact one of the officers or committee heads.

Stay up-to-date with the Juvenile Law Section by visiting the CBA JLS website.

This newsletter is for information only and does not provide legal advice.

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