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Dependency and Neglect Cases

Phil James, Esq. & Dani Diercks, Esq. MSW

 

1. Jurisdiction

 

The failure to file the petition within 7 working days after a child is taken into custody is not jurisdictional.  People in the Interest of A.M., 786 P.2d 476 (Colo. App. 1989). Filing is not a jurisdictional prerequisite to the commencement of juvenile proceedings; it is simply a remedy for its violation. If violated, the child merely must be released upon court order.

 

The state is the exclusive party to bring a D&N action. McCall v. District Court, 651 P.2d 392 (Colo. 1982); See People in the Interest of R.E. 729 P.2d 1032 (Colo. App. 1986).

 

But the court may order the department to file. CRS 19-3-501(2). See generally In re L.F., 121 P.3d 267 (Colo. App. 2005)

 

          As a corollary, the Court of Appeals found it was not proper for the trial court to dismiss the department and then order the case remain open under the supervision of the guardian ad litem. CRS § 19-1-103(87) provides statutory authority for the provision of protective supervision by the court, Department, or other agency but not by a guardian ad litem in lieu of an agency. People in the Interest of E.D. 09CA0576.

 

However, it is within the exclusive jurisdiction of the court to determine the placement of a child adjudicated neglected, dependent, or delinquent. People In Int. of T.W., 642 P.2d 16, 17 (Colo. App. 1981)(…while the State Department has the authority to prescribe procedures for handling requests and applications for social services through its rules and regulations, it may not encroach upon that authority exclusively placed with the court.) See 19-1-115(3)(a) (… subject to the approval of the court ..) See also Heim v. District Court In and For Fourth Judicial Dist., El Paso County, 575 P.2d 850,850-851, 195 Colo. 107 (Colo. 1978)

 

The court may order a child placed in a home of which the department does not approve, and still order the department to pay for that placement. People In Interest of J.H., 770 P.2d 1355, 1357 (Colo. App. 1989)(... the General Assembly intended to vest the courts with the authority to direct the local social services departments to provide child welfare services, including reimbursement for the costs of private placement, when necessary to protect the welfare of children.)

 

See People in the Interest of M.D. C. M. 522 P2d 1234, 1237(Colo.App.1974)(The department is merely an agency of the court.) City and County of Denver v. Juvenile Court, 182 Colo. 157, 511 P.2d 898 (Colo. 1973).(Court decides placement of the child.)  

 

The Supreme Court defined “the inherent powers of the judiciary” as all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists; the court is, therefore it has the powers reasonably required to act as an efficient court.” , In the Interest of S.C. 802 P.2d 1101 (Colo. App. 1989)(DYC held in contempt of court -Wakefield/Okamoto); See Pena v. District Court, 681 P.2d 953 (Colo. 1984)(court air conditioning)

          See also 13-8-102 (CRS) and People In Interest of J.H., 770 P.2d 1355 1356-57 (Colo. App. 1989)(The juvenile court has the legal and equitable powers to effectuate its jurisdiction and carry out its orders, judgments, and decrees.)(… department to pay foster fees to private placement …) In Interest of J.E.S., 817 P.2d 508, 511 (Colo. 1991)(separation of powers)  In the Interest of L.M., 910 P.2d 100 (Colo. App. 1995).

 

Juvenile Court does not have jurisdiction over unborn children. People in the Interest of H., 74 P.3d 494 (Colo. App. 2003). The C.R.S. 19-3-103(18)o definition of “child” only applies from the time of birth.

 

The child probably does not get to hire or have appointed an attorney in a D&N, who is separate from the GAL. There is no case or statute on point. The nearest case is a Title 14 dissolution of marriage case. In Re Marriage of Hartley, 886 P.2d 665, 676 (Colo. 1994)(Since the child's interests are fully represented in the dissolution proceeding through the GAL, no right to intervene exists with regard to custody disputes.)

 

The child must be adjudicated prior to his 18th birthday. M.C.S. 2014 COA 46

 

UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), whether a Colorado court or a non-Colorado court has jurisdiction in a child custody proceeding, applies to D&N cases. People in the Interest of D.P., 181 P.3d 403 (Colo. App. 2008). Colorado does not have any more than emergency jurisdiction when there’s a protective order case that was begun earlier in time and is still active in another state. In The Interest of M.C., 94 P.3d 1220 (Colo.App. 2004).

 

2. Detention Hearings

 

A shelter or detention hearing is pre-adjudication, is not to determine the parent’s legal interest, but is to ensure the minor’s welfare and safety prior to adjudication. W.H. v. Juvenile Court, 735P.2d 191 (Colo. 1987).

 

Orders entered during the temporary protective or shelter stage of a dependency and neglect proceeding are interim orders pending a final factual determination of the allegations in the dependency or neglect petition. Because they are not final orders subject to appeal, review of such orders may only be sought pursuant to C.A.R. 21. People ex rel. A.E.L., 181 P.3d 1186 (Colo.App. Div. 2 2008)

 

3. Adjudication-Evidence and Findings

 

a.    Substance

 

When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)

 

The removal of a child from the legal custody of a parent who suffers from a handicap cannot be presumed to be in the best interests of the child based on the fact of the handicap alone.  People in Int. of B.W., 626 P.2d 742 (Colo. App. 1981).

 

Incarceration of the parent, by itself, is not dependency or neglect. People in Interest of S.B., 742 P.2d 935 (Colo. App. 1987), discussed in People in the Interest of M.C.C., 641 P.2d 306 (Colo. App. 1982).

 

Merely handing children over to another person is not, by itself, proof of abandonment or of dependency or neglect. Diernfield v. People, 323 P.2d 628 (Colo. 1958). However, if the child is handed to a stranger who has no legal obligation, the child may be considered to be abandoned by the parent. Jones v. Koulos 704 P.2d 704, 706 (Colo. 1960).

 

Custody (APR) can only be determined in a D&N after the child has been decreed dependent and neglected. Jones v. Koulos 704 P.2d 704, 706 (Colo. 1960). See 19-3-507(1)(a), 19-3-508(1)(a)-(b), and People in the Interest of  L.A.G., 912 P.2d 1385, 1390 (Colo. 1996). See N.G. 12COA131 (as to both parents)

 

Legal custody of a child, with its attendant duties, may not be imposed upon an unwilling person who is not the child's parent. People In Int. Of P.D., 41 Colo. App. 109, 113 (1978)

          Collaterally, someone not a parent can't be forced to pay for a child's placement. In the Interest of B.S.M., 09CA1116 July 8, 2010. (stepdad who never adopted)

 

Evidence of non-accidental trauma does not establish prima facie case of dependency or neglect.  In the interest of M.A.L., 553 P.2d 103 (Colo. Ct. App. 1976).

 

Evidence that child is dressed inappropriately, had poor hygiene, and lived in a house in need of repair, did not establish prima facie case of dependency or neglect. In the interest of T.H., 593 P.2d 346 (Colo. 1979).

 

The term “abuse” as statutory basis for declaration of child dependency or neglect, includes emotional abuse.  In the interest of D.A.K., 596 P.2d 747

(Colo. 1979).

 

Dependency and neglect can be established upon proper showing of prospective harm to a child, this is so even where the parents have never had custody of the child.  In the interest of D.L.R., 638 P.2d 39 (Colo. 1981).

 

b.    Procedure

 

Determination of legal custody of a child in a D&N must be determined under Title 19, not Title 14. People in the Interest of L.A.G., 912 P.2d 1385 (Colo. 1996).

 

Res judicata does not bar subsequent dependency and neglect petitions when the petition is based on new facts or incidents.  In the interest of D.A.K., 596 P.2d 747 (Colo. 1979).

 

Evidence Rule 404(b) … past bad acts … doesn’t apply in a prospective harm case. Interest of A.W. (… because mother’s acts in a prior dependency and neglect case were used to predict whether A.W. would be exposed to an injurious environment, and were relevant …, neither CRE 404(b) nor the four-part Spoto test applies to this case.)

 

Adjudications of dependency and neglect are not made “as to” the parents, but rather relate to the status of the child.  In the interest of C.T., 746 P.2d 56 (Colo Ct. App. 1987).

 

A proceeding to determine whether a child is dependent or neglected is designed to determine the child's status or situation at the time of the adjudication.  However, the evidence of alleged instances of abuse and parental neglect relied upon to establish the child's dependency and neglect must be considered in the context of the child's history as well as the respondent parent's prior behavior. People in Interest of D.A.K., 198 Colo. 11, 15 (1979).

 

No fault admission by mother, with whom children were not residing, that child had been assaulted and that children lacked proper parental care, could not sustain an adjudication of dependency and neglect as to father who disputed the allegations and demanded a jury trial.  In the interest of A.M., 786 P.2d 476 (Colo. Ct. Apps. 1989).

 

When father wins the adjudicatory jury trial as to one child after no-fault admission by mother, the child should have been returned to the custody of father. Interest of T.R.W., 759 P.2d 768 (Colo. App. 1988); In the Interest of A.H., No. 10CA0325,Court of Appeals May 26, 2011.

 

If father prevails at his adjudicatory trial, the court loses jurisdiction, temporary orders terminate, that the court does not have jurisdiction to enter APR orders as to a grandparent. In the Interest of ST, 2015COA147

 

A one-time incident of injurious environment by mother, in which father has no fault, cannot support a D&N adjudication by “lack of proper parental care.” Further, mother’s creation of an “injurious environment” does not impute to father. (However, this case did not involve a finding of no-fault by father.) People in the Interest of S.G.L. 214 P.3d 580 (Colo. App. 2009)("dad with no car seat" case, but no "no fault").

Similarly, the fact finder must find in an injurious environment case that the environment as affected by each parent individually was injurious. In the Interest of J.G., 2014COA182

 

The parties may appeal from an adjudication and disposition order as well as a termination order. Which state the child was abused or neglected in is irrelevant. The treatment plan may be different from the determination of the jury. In the Interest of C.L.S., 934 P.2d 851 (Colo. App. 1996).

 

A summary judgment motion may be filed 21 days before the adjudicatory hearing, despite C.R.C.P. 56(c) (summary judgment motion must be filed no later than eighty-five days prior to trial). People in the Interest of A.C., 170 P.3d 844 (Colo. App. 2007). When there is a conflict between a statute and a rule of civil procedure, the rules do not govern procedure and practice in a special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute.

 

A deferred adjudication that has not been revoked is not an adjudication sufficient to give authority to the court to grant custody to a third party. People in the Interest of N.G., 12 COA 131.

 

If respondent’s attorney appears at trial a default adjudication is not a legal resolution, even if the parent doesn’t appear. People in the Interest of K.J.B.

2014 COA 168. No. 14CA0638.

 

4. Respondent Parents’ Attorneys

 

Indigent D&N respondent parents have the constitutional right to appointed counsel at the termination stage if the likelihood of error is high. Lassiter v. Department of Social Services, 452 U.S. 18 1981 (... the risk that the procedures used will lead to erroneous decisions.)

 

When evaluating a claim of ineffective assistance of counsel in termination proceedings, Colorado courts employ the same test that governs claims of ineffective assistance of counsel in criminal cases. People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo. App. 1989). (all attorneys appointed as a constitutional right) Under this test, the parent must show two things: (1) counsel's performance was outside the wide range of professionally competent assistance; and (2) the parent was prejudiced by counsel's errors. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). 

          Applied in People in the Interest of C.H., 16 P3d 288, 290-291 (Colo. App. 2007); see also In the Interest of Z.P., 167 P.3d 211 (Colo. App. 2007).

 

However, where the state seeks only to award custody of a child to other persons, rather than to terminate parental rights, a parent has no due process right to counsel, and therefore may not raise ineffective assistance of counsel claims. In the Interest of L.B., No. 10CA2344.

 

CBA Ethics Opinion 114: There must be writing to D&N client that there is no fee due the attorney; the attorney may not decline to advocate for a non-appearing client, the attorney may do a hearing, even with non-appearing client, by offers of proof, attorney must appeal if asked.

          See also C.Z. 226 P.3d 1054 (Colo. 2010) which rejects filing of an Anders brief when counsel finds no merit to the appeal.

 

The respondent does not have the right to be physically present at D&N hearings. People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo. App. 1989).

 

 

5. Guardians ad Litem

 

Section 19-3-203(3), C.R.S., sets out the duties of the guardian ad litem. Those duties are not mandatory in every case. People in Interest of M.W., 796 P.2d 66 (Colo. App. 1990). But see CJD 04-06

 

The court can’t dismiss a D&N over the objection of the guardian ad litem. The court must hold a probable cause hearing. People in the Interest of R.E., 729 P.2d 1032 (Colo. App. 1986). Grandparents cannot similarly prevent the dismissal of a D&N. People In Interest of G.S., 820 P.2d 1178, 1180 (Colo. App. 1991)(citing R.E.).

 

The appointment of the guardian ad litem in a D&N continues till the case closes. A.R.W., 903 P.2d 10, 13 (Colo. App.) citing M.C.P., 768 P.2d 1253 (Colo. App. 1988) (In M.C.P after recognizing the Children's Code was ambiguous on this point, the court concluded that the extended appointment of a GAL in a dependency and neglect proceeding was necessary to protect the health and welfare of the child. The court held that the appointment of the GAL in a dependency and neglect action continues until entry of the final decree of adoption or until the juvenile court's jurisdiction is terminated.

 

The guardian ad litem missing the second day of a three-day termination hearing is not per se reversible. In ordinary circumstances, CJD 97-02 must be followed by the guardian ad litem.  In the Interest of D.L.C. Jr., 70 P.3d 58 (Colo. App. 2002).

 

Guardian ad litem may file termination motion. In the Interest of M.N., 950 P.2d 674 (Colo. App. 1997).

 

The guardian ad litem may be required to testify in the D&N, but not if she relies only on evidence received by the court from other sources. People in the Interest of J.E.B., 854 P.2d 1372 (Colo. App. 1993)

 

People Ex Rel. M.G., 128 P.3d 332, 335(Colo. App. 2006) helps clarify J.E.B. If a GAL's recommendation is based on an independent investigation, he or she may be called as a witness and examined about his or her opinion in the D&N. But if the GAL's recommendation is based on evidence received by the court from other sources, it is analogous to argument, and the court should not permit the GAL to be called as a witness.

 

The guardian ad litem’s concurrent contract with the department to provide services disqualifies the guardian ad litem from representing a child in a D&N. People In Interest Of J.A.M., 907 P.2d 725 (Colo. App. 1995)

 

The GAL does not have an attorney/client relationship with the child in a D&N. People v. Gabriesheski, 262 P.3d 653 (Colo. 2011)

 

L.A.N 2013 CO 6 (The GAL’s “client” is the “best interests of the child.” § 19-3-203(3); Chief Justice Directive 04-06 § V.B.)

 

6. School

 

Section 23-32-138(7), CRS, says that the school district in which a foster home is located shall waive the foster child’s fees for a broad variety of purposes, including in-school and extracurricular activities, including arguably, sports and summer school and credit recovery.

 

6. Termination of Parental Rights

 

A parent has a fundamental liberty interest in the parental relationship and has due process right in a termination proceeding. B.B. v. People, 785 P.2d 132 (Colo. 1990).

 

The 14th Amendment guarantees a parent the right to “establish a home and bring up children.” Meyer v. Nebraska, 262 US 390, 398 (1923)

 

Clear and convincing evidence is the appropriate constitutional standard of proof in proceedings regarding termination of parental rights.  In the Interest of A.M.D., 648 P.2d 625 (Colo. 1982). Santosky v. Kramer, 455 US 755 (1982).

 

Allocation of parental responsibility (APR) to someone other than the parent and extreme limitation of visitation is not the functional equivalent of a termination of parental rights so as to require proof by clear and convincing evidence. L. L. v. People, 10 P.3d 1271, 1277 (Colo. 2000)

          Accordingly, we reiterate here our holding in A.M.D. that due process of law is accorded to parties when an adjudicatory hearing of a dependency or neglect proceeding is governed by a preponderance of the evidence standard.  Although Petitioner is suffering the loss of many of her parental rights, this fact does not change our analysis of the constitutionality of dependency or neglect proceedings under the Mathews v. Eldridge three-prong test.  As we noted in A.M.D., the governmental interest here is significant.  See A.M.D., 648 P.2d at 639.  The adjudication of dependency or neglect petitions provide the state with the means to intervene to assist parents and children in establishing a home environment that will preserve the family unit.  The purpose of dependency or neglect proceedings is not to deprive parents of their rights to raise their children; rather, it is to preserve the family and protect children.

 

Termination of parental rights may not be accomplished only in the best interest of the minor child, without some showing of parental unfitness. Quilloin v. Walcott, 434 US 246, 255 (1978).

 

Best interest is not the only concern in parental termination. A child should be raised by his parents and termination should occur only with caution. People, Int. of E.A., 638 P.2d 278 (Colo. 1981)

 

Father not given enough time to do the treatment plan - 3 months from disposition to termination hearing - 23 days from treatment plan to termination motion. People in the Interest of D.Y. 176 P.3d 874 (Colo. App. 2007).

 

The termination motion need not be specific. People in the Interest of L.L., 715 P.2d 334 (Colo. 1986). A motion to terminate is sufficient so long as it is couched in the statutory language set forth in § 19-3-604(1), C.R.S. 2005, as it was here. People ex rel. T.D., 140 P.3d 205, 218 (Colo. App. 2006)

 

The trial court may not commence a termination hearing within 30 days of the filing of the termination motion. People in the Interest of C.L.S., 705 P.2d 492 (Colo. App. 1985).

 

The division held that the 120-day statutory time to conduct a termination hearing is not jurisdictional. In the Interest of T.E.H., 168 P.3d 5 (Colo. App. 2007)

 

Admission of dispositional and evaluative reports into evidence does not violate constitutional confrontation requirements or due process where reports are made available to interested parties sufficiently in advance of hearing to permit parties to compel attendance of persons who wrote the reports or prepared the materials and subject them to examination under oath. In the interest of A.M.D., 648 P.2d 625 (Colo. 1982).

 

The hearsay exception allowing social reports to come into evidence is not violative of due process, because the author must be made available to testify. The general rule is that even indigent parents are not entitled to a free transcript, in the absence of an authorizing statute. People in the Interest of A.R.S., 502 P.2d 92 (Colo. App. 1972)

 

Unavailability of report writer is error. People in the Interest of L.L., 715 P.2d 334 (Colo. 1986).

 

Attorney client privilege exists between indigent parent and expert witness appointed for parent at request of attorney, to assist parent in termination of parental rights proceeding.   (Our holding proceeded from the principle that the attorney-client privilege protects not only confidential communications between the client and the attorney but also confidential communications between the client and the attorney's agent retained for the purpose of litigation.) In the Interest of B.B concerning T.S.B., 785 P.2d 132 (Colo 1990).

 

The respondent parent’s attorney-client privilege with the appointed expert did not attach when the children participated in the expert’s evaluation of the mother and themselves. D.A.S. v. People, 863 P.2d 291 (Colo. 1993)

 

The parent does not get an expert witness appointed as a matter of right at adjudication. People in Interest of S.B., 742 P.2d 935 (Colo. App. 1987).

 

Thus, the statutory right to an expert witness may be limited in scope if necessary because of the physical, mental, or emotional needs of the child. People in Interest of M.H., 855 P.2d 15 (Colo. App. 1992).

 

The parent may comply with the treatment plan and still not be successful, and termination is proper. People in the Interest of D.M.W., (Colo. App. 1997).

 

The parent must object to the treatment plan in order to preserve inadequacies for the termination hearing. In the Interest of T.E.H., 168 P.3d 5 (Colo. App. 2007); People in the Interest of D.P., 160 P.3d 351 (Colo. App. 2007)(waiver); People in Interest of M.S., 129 P.3d 1086 (Colo. App. 2005)(Invited error)

          There is a clear split of authority in the Court of Appeals. A contrary case is In the Interest of S.N-V., 10CA2303, 300 P.3d 911 (Colo. App. 2011) (Thus, we cannot fault a parent for failing to assert an error in the treatment plan, which he or she had no duty to assert, to avoid forfeiting the constitutional and statutory right to have the juvenile court consider whether the petitioner met its constitutional and statutory burden of proof.)

 

No appropriate treatment plan” statute interpreted. People in Interest of C.S.M., 805 P.2d 1129 (Colo. App. 1990).

 

There is no per se due process bar to summary judgment in a termination case. People in the Interest of A.E., 914 P.2d 534 (Colo. App. 1996). (Narrow range of cases-but not appropriate here-trial court overruled).

 

There can’t be a termination without a prior adjudication, followed by a disposition (treatment plan). In The Interest of D.R.W., 91 P.3d 453,457 (Colo. App. 2004)(We conclude that the termination must be set aside because the absence of a timely dispositional hearing prejudiced father's ability to preserve his parental rights.)

 

Exclusionary rule doesn’t apply automatically in a termination hearing and evidence not suppressed. People in the Interest of A.E.L. and K.C.-M., 181 P.3d 1186 (Colo. App. 2008). Also Rule 16.2 doesn’t apply in a D&N. Id.

 

Parental deficiencies less serious than unfitness may give rise to a compelling reason not to return the child home. People ex rel. C.M., 116 P.3d 1278, 1283 (Colo. App. 2005); §19-3-702, CRS, 2006.

 

The Constitutional presumption that the parent will act in the best interest of the children from Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), does not apply to D&N cases. People ex rel. C.M., 116 P.3d 1278, 1283 (Colo. App. 2005)( Therefore, the presumption does not arise in the context of a dependency or neglect proceeding, which requires a judicial determination that the child's custodial circumstances or environment is injurious to his or her well-being before a custody order may be made.); §19-3-702, CRS. People in the Interest of N.G., 12 COA 131)

          But see In the Matter of D.I.S., 249 P.3d 775 (Colo. 2011) (In a guardianship by parental consent the parents don't give up their Troxel rights and the burden on a motion to dismiss the guardianship is on the guardian.) See also In Re Reese, 227 P.3d 900 (Colo.App.Div. 2 2010).

 

We hold that absent safety concerns, a parent is entitled to face-to-face visitation, and correspondence between parents and children does not constitute visitation. We further hold that the trial court may not delegate the determination of entitlement to visitation to caseworkers, therapists, and others. People Ex Rel. D.G., 140 P.3d 299, 302 (Colo. App. 2006)

 

Less-drastic alternatives must be considered in termination order but may be implicit in the findings. People in the Interest of M.M., 726 P.2d 1108 (Colo. 1986) (This is M.M. the 2d-See M.M. the 1st at 520 P.2d 128 (Colo. 1974))

 

Permanent placement is not a viable less drastic alternative if the child needs a stable, permanent home that can only be assured by adoption. People in Interest of Z.P., 167 P.3d 211, 214 (Colo. App. 2007).

 

6. Grandparent’s, Relatives, and Foster Parents’ Rights

 

Grandparents visitation rights end at termination. Grandparents may not intervene after termination. In the Interest of J.W.W., 936 P.2d 599 (Colo. App. 1997) and People in the Interest of N.S., 821 P.2d 931 (Colo. App. 1991)

 

Court may order that grandparents may continue to have visitation rights after adoption, but there's a high standard. In re the Matter of R.A. and T.A., 121 P.3d 295 (Colo.App. 2005)(step-parent adoption)

 

The statutory preference for placement with grandparents does not mean the children have to be placed with grandparents. People in the Interest of E.C. and A.C., 47 P.3d 707 (Colo. App. 2002)

 

Aunt can’t intervene after termination. While the parent has a fundamental liberty interest in the parental relationship, the aunt does not. People in the Interest of C.E., 923 P.2d 383 (Colo. App. 1996)(Discusses grandparent’s rights)

 

A step-father has no constitutional liberty interest in raising a child, especially when his interest would conflict with the natural father’s liberty interest.. He has no statutory right to be named a respondent. People ex rel. E.S., 49 P.3d 1221 (Colo. App. 2002) 

 

Parents, grandparents, and relatives may intervene as a matter of right after disposition under 19-3-507(5)(a). In the Interest of O.C. 13CO56 (September 9, 2013)

 

Foster parents who meet the required statutory criteria to intervene may participate fully in the termination hearing without limitation.  A.M. v. A.C., 296 P.3d 1026, 2013 CO 16 (Colo. 2013)

 

7. ICWA

 

25 U.S.C. § 1911(c) (1978) of the ICWA allows Indian tribes to intervene at any point in a state court proceeding involving the foster care placement of, or the termination of parental rights to, an Indian child. However, the Tribe acknowledges that § 1911(c) does not authorize it to intervene in adoption proceedings. People In Interest of AEV, 782 P.2d 858, 859 (Colo. App. 1989)

 

The parent not claiming membership still has standing to contest ICWA compliance. Father’s failure to return an ICWA form after his statements indicating he might be tribe-eligible, required investigation by department. The department’s statement to the tribe or BIA must contain enough information to be meaningful. People in the Interest of J.O., 170 P.3d 840 (Colo. App. 2007)

 

An expert’s specialized knowledge is not required where termination is not based on the Indian culture or society. .ICWA’s “active efforts” is the same as reasonable efforts. People in the Interest of K.D., 155 P.3d 634 (Colo. App. 2007).

 

ICWA applies to step-parent adoptions. The “existing Indian family exception,” created by Kansas Supreme Court, is not adopted in Colorado.  The rejected existing Indian family exception stated that ICWA should apply only to the removal of Indian children who were members of an Indian home and participated in Indian culture. In the Matter of the Petition of N.B., 199 P.3d 16 (Colo. App. 2007).

 

The department violated ICWA by not filing Indian notices and return receipt cards with the court. The notices also didn’t have the statutory information. People in the Interest of N.D.C. 08CA2304

 

If the parent does not raise the issue of Indian heritage during the proceedings, raising it on appeal is too late. No. 10CA1555. People in the Interest of J.C.R.

 

8. Appeals

 

Shelter order is temporary and not appealable as a matter of right to the Court of Appeals. People in the Interest of A.E.L. and K.C.-M., 181 P.3d 1186 (Colo. App. 2008).

 

Parental rights are personal between each parent and child. People in Interest of K.S., 33 Colo.App. 72, 515 P.2d 130 (1973).

 

Termination criteria apply individually to each parent, and one parent may not complain about due process errors concerning the other parent. In re. J.M.B., 60 P.3d 790 (Colo. App. 2002).

 

In deciding whether less drastic alternatives exist, a trial court may recognize differences between the parents. People ex rel. J.L.M., 143 P.3d 1125 (Colo. App. 2006).

 

In a termination hearing the trial court is presumed to ignore incompetent testimony. People in the Interest of A.R.S., 502 P.2d 92 (Colo. App. 1972).

 

Appellate review of a trial court’s conclusions (of fact) at a termination hearing will not be disturbed unless so clearly erroneous as to find no support in the record. People in the Interest of C.A.K., 652 P.2d 603(Colo. 1982). The decision of whether to afford more weight to more recent evidence falls squarely within the discretion of the trial court. Interest of A.J.L., 243 P.3d 244 (Colo. 2010)(overruling the Court of Appeals

 

Trial court is not required to make express findings that it has considered and eliminated less drastic alternatives to termination of parental rights, and though it is better to do so proactively, it may be presumed that the trial court has met implicit requirements of consideration and rejection of those alternatives as long as the findings conform to the statutory criteria for termination and are adequately supported by evidence in the record.  In the interest of L.G., 737 P.2d 431 (Colo. Ct. App. 1987).

 

Rule CAR 3.4 effective in 2005. Very short time frames for D&N appeals.

 

Generally, failure to comply with the mandatory language “shall” in C.A.R. 3.4 will result in dismissal of the petition. People in the Interest of D.M., 186 P.3d 101 (Colo. App 2008).

 

Magistrates can’t reconsider or clarify their orders. C.R.M. 5(a); In Re Marriage Of Moore, 107 P.3d 1150, 1150 (Colo.App. 2005)(Pursuant to C.R.M. 7(a)(1), a party may obtain review of a magistrate's judgment or order by filing a motion requesting review by the district court. In re Marriage of Schmidt, 42 P.3d 81 (Colo. App. 2002). This is the only motion authorized by the rules governing magistrates. In re Marriage of Tonn, 53 P.3d 1185 (Colo. App. 2002) (motion for clarification of magistrate's order is not authorized by rules governing magistrates).)

The magistrate may not even sua sponte reconsider. If the magistrate does reconsider, the order is void. In re M.B.-M., 252 P.3d 506 (Colo.App.Div. 5 2011)

 

Last modified Thursday, October 15, 2015