Summer 2006 Newsletter
Colorado Bar Association
JUVENILE LAW SECTION NEWSLETTER – July 2006
Election Results for 2006-2007 Officers
Twelve people attended the June 6 meeting to elect new officers. We have a great slate of new officers for this year, all of whom have vowed to make this an exciting and eventful year for the Juvenile Law Section. New Officers are:
Chair – Sue Thibault
Chair-elect – Linda Weinerman
Secretary – Barb Shaklee and Laura Eibsen
Subcommittees Formed for the 2006 – 2007 year
The following people have agreed to head the subcommittees and, along with the officers, will make up the Executive Council for the section:
Legislative – Toni Gray
Membership – Donna Worley
Newsletter – Sue Thibault
Program – Linda Weinerman
Board of Governors – Bonnie Saltzman
Juvenile Law Column – Barb Shaklee and Linda Weinerman
SCAO – Ann Vitek
Website – Sue Thibault and Donna Worley
Please consider joining one of the subcommittees this year. The juvenile law section greatly values your contributions. Please call Sue Thibault or any of the subcommittee heads to let us know of your interest.
July Meeting Report
On July 14, 2006, the Juvenile Law Section hosted a CLE meeting on legislative updates in Juvenile Law from the 2006 Legislative session presented by Suzanne Fasing, Assistant City Attorney, City and County of Denver. This meeting brought us up to date through the recent special legislative session. If you were not able to attend, Suzanne presented handouts that will be posted on the Juvenile Law Section website in the near future.
Make Plans now to attend these Juvenile Law Section Meetings
At the June meeting we scheduled meetings for every other month, many of which will include free or low-cost CLE credits. Additional meetings may be added as interest demands. Currently scheduled meetings include:
September 8, 2006
November 9, 2006
January 23, 2007
March 14, 2007
May 8, 2007
Please put these dates on your calendars now and send in your RSVPs when you get the meeting notices from Melissa Nicoletti.
Juvenile Law Section Survey to be sent to members
What have you wished to see from this Juvenile Law Section? What types of CLE sessions would you like to see offered? What speakers would you like to hear from? This is a great section composed of currently around 200 members - guardians ad litem, respondent parents’ attorneys, county attorneys, juvenile court judges, magistrates, and other professionals working with juveniles and their families. Your comments, thoughts and suggestions are very valuable. Look for the survey and be sure to complete it and return it promptly. This is your chance to express your opinions and help shape the Juvenile Law Section for this and future years. Get involved this year and volunteer to give a CLE, organize a CLE event, arrange for a speaker, etc.
Colorado Lawyer - Juvenile Law Articles
Be sure to Read the Juvenile Law articles in your Colorado Lawyer. Recent Articles include:
Do you have suggestions for a topic for an article? Would you like to write an article for the Colorado Lawyer? If so, please contact either Barb Shaklee or Linda Weinerman. They would love to hear from you.
Case Law Update
ASW v. Oregon
In the Interest of A.J.H.
In the Interest of B.C
In the Interest of K.T
In the Interest of C.T.S
In the Interest of MG
In the Interest of M.S
In the Interest of N.A.T
In the Interest of T.T
In the Interest of U.S.
People v. Escobedo-Betson
In re the Marriage of J.M.H
This case had us all scared when the court of appeals held that in the absence of a statutory provision to the contrary, it appears that Colorado has adopted the common law age of consent for marriage as 14 for a male and 12 for a female, which existed under English common law. J.M.H. was 15 years old when she allegedly entered into a common law marriage with Rouse. Therefore, if all other elements for common law marriage were satisfied, Rouse’s marriage to J.M.H. was valid ab initio, because J.M.H. was competent at common law on the date she was married. The case was remanded to determine if the criteria for common law marriage had been met.
NOTE: This case has been effectively defused by the recent special legislative session in which legislation was approved amending C.R.S. 14-2-109.5 to prohibit common law marriages unless each party is eighteen years of age or older.
., 2006 WL 1643211 (Colo. App. 2006) Rouse appeals from the judgment declaring invalid his April 2003 attempted marriage to J.M.H. The judgment is reversed and the case is remanded with directions. 2006 WL 391830 (Colo. O.P.D.J.) February 2006. Attorney suspended for four months, thirty days stayed, two years of probation. Attorney was a GAL and was found to have knowingly disobeyed obligations under the rules of a tribunal when she failed to comply with Chief Justice Directive 97-02. GAL had failed to see her assigned children in their home or placement and submitted an affidavit that she had complied with all the requirements of the Chief Justice Directive when she had not., 121 P.3d 326 (Colo. App. 2005) GAL appeals the dispositional order. GAL filed a motion for summary judgment stating that since father entered an admission, it would be a waste of judicial time to have a trial where the result would be the same. The court denied the motion. At the end of the proof, the court entered a special verdict in mother's favor. Court then adopted a treatment plan for the father but not the mother as it held it did not have jurisdiction over her. An adjudication of a child is necessary to vest the court with dispositional remedies. GAL said that since father had admitted to mother’s faults and the adjudication was as to the status of the child, mother should have a treatment plan as well. One parties admission, while binding upon that party, are legally insufficient to establish the allegations in a dependency and neglect petition in the fact of the other party's denial. The fact that father had made a "fault" admission was held to be irrelevant. To allow an adjudication under such circumstances would permit dependency and neglect proceedings to be used for manipulation by one parent against another to the possible detriment of the best interest of the child. The court was required to dismiss the petition as to mother., 128 P.3d 328 (Colo. App. 2005) Appeal of a jury verdict. Infant tested positive at birth for methamphetamines. Jury adjudicated dependent and neglected. Mother argued that because the baby wasn't born yet it hadn't been abused or neglected. Court distinguished this case from the filing on an unborn child. The court found that the prenatal substance abuse is sufficient to establish there will be mistreatment or abuse if the child is placed with the parent after birth. The court stated that the legislature amending the statute was to clarify the state of existing law and therefore was instructive of how the law shall be interpreted. The Court decided this case based upon prospective harm.., 2006 WL 1653332 (Colo.) Case involved whether mother was properly advised of her right to have a hearing before a judge. The court held that by waiving formal advisement, mother also waived her right to be told about having a hearing in front of the judge rather than a magistrate. Mother further argued that she had completed significant portions of her treatment plan and that she would be available to parent within six months. Court held partial compliance does not mean that the parent has been rendered fit where mother continued to use cocaine. Mother then claimed that the timelines for preparing an appellate brief are too narrow and it denied her right to due process. Court said the transcripts had been available and she didn't seek to amend the petition or brief so was not persuaded.., 129 P.3d 1086 (Colo. App. 2005). Father appealed the Termination of Parental Rights, claiming the treatment plan is not appropriate because it didn't have a mental health component. Court held that the parties had stipulated to the treatment plan and did not timely request a modification of the plan. The application of the doctrine of invited error is triggered by actions of a party during litigation. It prevents a party from inducing an inappropriate or erroneous ruling and then later seeking to profit from that error. By stipulating to the plan the father acquiesced in any inadequacies of the plan. When a party agrees to the court's error he or she is precluded from challenging the issue on appeal. It is the parent's responsibility to secure compliance with and success of a treatment plan. It is the parent's duty to bring inadequacy to the trial court’s attention prior to the termination hearing.., 128 P.3d 332 (Colo. App. 2005). Appeal of permanent legal custody. Mother failed to appear for adjudication or disposition. Mother fired her court appointed counsel and announced that she wanted to represent herself. Mother later requested court appointed counsel and the court denied that request based on the fact that she had fired her court appointed counsel. Court found that the mother waived her right to counsel. Court found the right was statutory and that there was no due process right to counsel at a permanent allocation of parental responsibility hearing. Mother contended that the court not allowing her to call the GAL as a witness was an error. GAL is only available as a witness if their testimony is not available though any other source. Court found that mother only wanted to show GAL pictures of the children to show that she did not know them and that was not questioning her about her independent investigation and therefore should not have been allowed..., 2006 WL 1493994 (Colo. App. June 1, 2006). Mother appealed termination alleging that court erred in finding she had not complied with treatment plan, plan was unsuccessful and that she was unfit. Court found that although the treatment plan did not require mother to end her relationship with father, she was aware of safety concerns about her violent relationship with father and plan required that she participate in domestic violence treatment. Court held that mother’s conduct in choosing to remain in relationship with father prevented her from providing protection adequate to meet the children’s needs, rendering her unfit. Court further held that delay in being able to conduct psychological evaluation on father, due to need for him to maintain sobriety for at least one year in order to support a definitive diagnosis, was not an undue delay in implementation of a treatment plan and did not require giving father additional time in which to comply with the treatment plan., 129 P.3d 1080 (Colo. App. 2006). Mother appeals termination. Court found that a parent can be unfit as to one, but not all, of his or her children. Mother denied a substance abuse issue even though the baby was born testing positive for multiple substances. Mother refused to cooperate with substance abuse treatment. Mother's thirteen year old child was left with the mother. The court found that although mother could provide minimally adequate care for the older child, she could not meet the greater needs of the younger child. Because of the children's differing needs the trial court was not precluded from finding that the mother was unfit only as to the younger child. The trial court found that "it is beyond any reasonable person's imagination that someone who was not abusing illegal substances would forgo seeing their young child by voluntarily refusing to submit to substance abuse treatment." Mother requested that an expert be appointed to represent her during the middle of the termination trial to help in cross examination of the substance abuse expert. The court found the request was not timely.., 122 P.3d 1067 (Colo. App. 2005). Mother appeals termination of her parental rights. Mother's visits were stopped due to emotional outburst. The court allowed her to send letters and gifts though the children's therapists. The therapists were to devise a plan to resume visitation. The therapists failed to timely file a plan with the court, the court allowed them additional time to submit the plan. The older children's therapist did submit a plan. The youngest child's therapist said there could be no plan because it would devastate the child. Mother sought resumed visitation and a continuance due to the fact that she had a new attorney. The court denied the continuance based on the fact that the trial was set to take place with a break between the people's case and the respondent's defense. Court also denied the resumption of visitation. Mother contends that it was error for the court to defer the decision to allow visitation to the therapist. The court held that the lower court cannot unconditionally delegate to third persons decisions concerning visitation. The code itself requires the trial court to make decisions regarding visitation, and it may not delegate this function to third parties. Court must continually maintain supervision over the visitation issues.., 134 P.3d 528 (Colo. App. 2006). While Father was in jail, mother overdosed on methamphetamines and child was placed at eleven months of age. Mother's rights were terminated in 2004 and father's rights were terminated in 2005. Court amended the termination order to cover respondent counsel's request to withdraw from representing father. Court of appeals held that the 21 days for appeal ran from the signing of the first order terminating father's parental rights, not the amended order. Father filed a motion to reconsider which was granted by the court "under the limited circumstances presented here". The court applied the unique circumstances test - "if a party reasonably relies and acts upon an erroneous or misleading statement or ruling by the trial court". The court then went on to decide the appeal, and upheld the termination. Father had argued that his treatment plan was not appropriate because he was incarcerated. 2005 U.S. App (9th cir.) Lexis 19707 Class action under 42 U.S.C. Sec. 1983 9th circuit reversed the district courts granting of the State's motion to dismiss the lawsuit, based upon allegations of violation of rights under the Adoption Assistance and Child Welfare Act of 1980. The parents claim that they were denied due process prior to the reduction of their adoption subsidy payments. Case was remanded for further review after the 9th circuit found that violation of the act was actionable under Sec.1983. – Undocumented Immigrant Children: Legal Considerations Regarding Human Services Needs, written by Barbara J. Shaklee. – Office of the Child’s Representative: Representation of Children As a Legal Specialty, written by Theresa Spahn, Linda Weinerman, and Sarah Ehrlich – Luncheon meeting at the CBA office to elect new officers for the 2007-2008 year. Details to follow. – Luncheon CLE at the Jefferson County Courthouse. Details to follow. – Luncheon CLE at the CBA office. Details to follow. – Evening Cocktail Party at the University of Colorado School of Law in Boulder. This evening event will follow the first day of the OCR Symposium on Youth Empowerment at the law school. – Luncheon Meeting at the CBA office to discuss the results of our juvenile law survey, plan future CLE meetings and speakers. There will possibly be a one credit CLE offered on Immigration law changes in conjunction with this planning session.