Building a Defense and Helping Families in the Child Welfare System

COURT IMPROVEMENT PROGRAM TRAINING

A Respondent Parent Counsel Curriculum for Improvement of the Child Welfare System

Building a Defense and Helping Families in the Child Welfare System:

Attorney Training for Respondent Parent Counsel Module 1: Preliminary Protective Proceeding Through Adjudication

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By: Colene Flynn Robinson Editor: Lauren Dingboom 2010 Court Improvement Program Office of the Colorado State Court Administrator 101 W. Colfax, Suite 500 Denver, CO 80202

TABLE OF APPENDICES

PowerPoint Presentation PowerPoint

Agenda Handout 1

Glossary of Terms Handout 2

Practice Guidelines for RPC Handout 3

Child Welfare Flowchart Handout 4

Dependency and Neglect Court Process Handout 5

PPP Checklist Handout 6

Dependency and Neglect Intake Handout 7

Sample Advisement Form Handout 8

Conversations Prior to PPP Hearing Handout 9

Adjudication Checklist Handout 10

Case Law Update Handout 11

Pre and Post-Training Evaluation Online

Resource Bibliography Handout 13

HANDOUT 1: AGENDA

AGENDA-DAY 1 Respondent Parent Counsel Training Building a Defense and Helping Families in the Child Welfare System

8:30 am – 9:00 am Registration and Breakfast

9:00 am – 9:15 am Welcome and Introductions

9:15am – 10:15 am Preliminary Protective Proceedings PowerPoint Presentation

10:15 am – 10:25 am Break and Networking

10:25 am – 11:25 am Preliminary Protective Proceedings Discussion/ Exercise – Breakout Groups

11:25 am – 12:15 pm Client Counseling and Overcoming Communication Obstacles (sub-issue: representing incarcerated parents)

12:15 pm – 1:15 pm Networking Lunch

1:15 pm – 1:50 pm Adjudicatory Hearing PowerPoint Presentation

1:50 pm – 2:50 Motions, Evidence and Expert Testimony

2:50 pm – 3:00 pm Break and Networking

3:00 pm – 4:00 pm Case Law Update

4:00 pm – 4:30 pm Record Access Presentation and Closing Review

5:00 pm – 6:30 pm Group Networking Dinner

HANDOUT 2: GLOSSARY OF TERMS

GLOSSARY OF TERMS

Allocation of Parental Responsibilities (APR): Final order granting parenting time and decision- making authority for a child.

Assistant City or County attorney (ACA): Attorney representing the child welfare agency as petitioner.

Best Practice Court Teams. Each judicial district in Colorado has a multi-disciplinary, judge-led team of local child welfare stakeholders who effect systems change in dependency and child welfare arenas.

Best Practice Website: www.cobpcteams.com The Colorado Best Practice Courts Team Website – BPC Website – is a virtual meeting place for all of Colorado’s BPC Teams to communicate directly with one another and to share information.

Caseworker (CW): Employee of county department of social services assigned to work with the family in a dependency and neglect case.

Case Aide: Typically a Department of Social Services employee who provides life skills training or supervises visitation or provides other supportive services for several cases.

Chief Justice Directives 98-02 and 96-08: These CJDs require districts to work collaboratively with local departments of social services, county attorneys, guardians ad litem, and respondent parents’ counsel to develop local policies and procedures which will focus on permanency for children within twelve (12) months of the earliest of, a judicial finding of abuse and neglect or sixty days after the child’s removal from the home. Child Advocacy Center (CAC): Agency that conducts forensic interviews of children who are suspected to be victims of physical or sexual abuse. Interviews are typically videotaped and preserved for evidence.

Children’s Code: The Colorado Statues governing child abuse or neglect cases and juvenile delinquency. Found at C.R.S. Title 19. Definitions are at C.R.S. §19-1-103.

Colorado Assessment Continuum (CAC): The assessment continuum used by the Department of Social Services that includes the safety assessment and plan (Section 7.202.52 G and 7.202.62 B), the risk assessment (Section 7.202.52 I), the risk re-assessment (Section 7.202.62 C), and the needs assessment (Section 7.301.1.D).

Court Appointed Special Advocate (CASA): Court appointed volunteers who advocate for abused and neglected children so that they can thrive in safe, permanent homes. Court Improvement Program: federally funded grant administered by State Judicial to improve outcomes for children, youth and families through collaboration of child welfare stakeholders at the local and state levels.

HANDOUT 2: GLOSSARY OF TERMS

Department of Social Services (DSS): The child welfare system in Colorado is state supervised and county administered. The state system is the Colorado Department of Human Services (DHS). The names of the various county child welfare systems vary, but Department of Social Services is common. The Department investigates cases of suspected child abuse or neglect and provides services to families where children have been abused or neglected and children subjected to abuse or neglect.

Expedited Permanency Planning (EPP): Children under 6 are subject to a faster timetable for the dependency and neglect process in Colorado.

Family Court Facilitator: Court employee who may provide various services for litigants, such as case management meetings or court settings.

Foster Home: Can be a relative caregiver or not, licensed and certified by the county, to provide care for children removed from their parents’ custody. Foster parents are compensated monthly for the care they provide. Foster homes are governed by Article 6 of C.R.S. Title 26.

Guardian ad litem (GAL): Attorney appointed to represent the child or children.

Hotline/ Child abuse hotline: Hotlines work differently in different counties and there is a DHS effort to consolidate the hotline into a state centered reporting system.

Indian Child Welfare Act (ICWA): This is the federal law that modifies the procedures and placement preferences for Native American families. Procedural differences include notification requirements for tribes, mandatory and discretionary tribal court jurisdiction, and evidentiary burdens. When removing children from their parents or guardians, the law’s placement preferences require first looking to family, then tribal members, then other Native Americans, before placing a child in non-kinship foster care.

Intake Worker: Employees of county department of social services assigned to investigate an allegation of child abuse or neglect.

Judicial District Plans: These are the plans that each district develops in response to CJD 98-02 and 96-08 to develop early case management procedures.

Lead Judges: dependency court judicial officers appointed in each judicial district by the Chief Judge. It is the Lead Judge who organizes and convenes BPC Teams. Mandated Reporter: Someone who, in their professional capacity, has contact with children and is required by statute to report suspected child maltreatment or neglect to the child abuse hotline. C.R.S. §19-3-304.

Mediation: “An intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power but who assists the disputing parties

HANDOUT 2: GLOSSARY OF TERMS

in voluntarily reaching their own mutually acceptable settlement of disputed issues in a non- adversarial setting.”1

Multi-Systemic Therapy (MST): An evidence based treatment modality developed in the 1970s, MST provides in home services for adolescents and their parents. MST utilizes different treatments like cognitive behavior therapy and family therapy, with the goal of alleviating anti- social behavior in a number of settings such as family life, school, and the community.

Residential Treatment Child Care Facility (RTCCF): A residential placement for children who need 24-hour therapeutic care.

Respondent Parent Counsel (RPC): Attorney appointed to represent an indigent parent or guardian.

Sexual Assault on a Child: Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim. C.R.S. §18-3-405(1).

1 Donald Duquette, Non-Adversarial Case Resolution, Child Welfare Law and Policy (Donald Duquette et al. eds (2005), citing Children’s Bureau, U.S. Dep’t Health & Human Services, Adoption 2002: The President’s Initiative on Adoption and Foster Care, Guidelines for Public Policy and State Legislation Governing Permanency For Children, at v-2 (1999). 3

HANDOUT 5: DEPENDENCY AND NEGLECT COURT PROCESS

DEPENDENCY AND NEGLECT COURT PROCESS

Preliminary Protective Proceeding (Also called a detention hearing, temporary protective custody hearing, or a shelter hearing) C.R.S. § 19-3-403 and §19-3-405

Purpose:

If a child has been removed from his or her home by the police or the department, then the parents’ have a right to this hearing. The purpose of the hearing is to determine further custody of the child or whether any emergency protective orders should continue.

Type and Burden of Proof

Judge may consider any information having probative value regardless of its admissibility under the rules of evidence, as to whether there is probable cause to believe the child should be removed from his or her parents’ custody.

Required findings by the Judge or Magistrate:

 Continuation of the child in the home would be contrary to the child’s best interests; or return home;  There has been compliance with reasonable efforts requirements regarding removal of the child from the home, as follows:  Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home; or  An emergency exists; or  Reasonable efforts not needed because parent has subjected child to aggravated circumstances (Abandoned, tortured, chronically abused or sexually abused); parent’s rights to a sibling have been terminated; voluntary manslaughter of another child or the parent; felony assault on the child or sibling; aided, abetted or attempted to commit crimes of murder or voluntary manslaughter to child or sibling

HANDOUT 5: DEPENDENCY AND NEGLECT COURT PROCESS

Adjudication (Fact-finding Hearing, Trial) C.R.S. § 19-3-505

Purpose:

To prove the allegations in the petition. Parties are entitled to a jury of 6.

Burden:

The burden is on the Department to prove by a preponderance of the evidence the facts contained in the petition. Hearsay is not admissible and the rules of evidence do apply.

Required Findings by the Judge or Magistrate:

 Has the Department proven the allegations in the petition?  Do the facts meet the definition of a dependent or neglected child?

Adjudication Disposition (Treatment Plan Hearing, Dispositional Hearing) C.R.S. § 19-3-505, 507, 508

Purpose:

To establish a treatment plan for each respondent and each child. Treatment should address the specific needs of each person, and be designed to alleviate the problems which lead to the dependency and neglect petition. Dispositional hearing should follow immediately after adjudication, or may be continued for up to 30 days.

Burden:

The burden is on the Department to prepare and present a treatment plan. If siblings have been separated, caseworker must show it is in siblings’ best interests to be placed separately. If out of home placement is sought, the Department must show by a preponderance of the evidence that separation from the parents is in the child’s best interest. The standard is best interests of the child.

Required Findings for the Judge or Magistrate

 Court shall order one of the following dispositions: o Continue legal custody of the child with the parent, parents or guardian with or without protective supervision by the Department; or o Place the child in the legal custody of a relative; or o Place legal custody of the child with the Department or a child placement agency, or; o Require medical or psychological examination or treatment or the Court may place the child in a hospital or mental health facility. o The Court shall approve an appropriate treatment plan for each child and each respondent, unless no treatment plan can be devised under the exceptions. 1

HANDOUT 5: DEPENDENCY AND NEGLECT COURT PROCESS

 Does the treatment plan identify the problems of the Dependency and Neglect adjudication?  Does it take into account barriers to overcoming those problems?  Does it include each respondent? Each child?  Is it likely to be successful?  Is it specific?

Permanency Hearing (Review) C.R.S. § 19-3-702

Purpose:

To choose a permanent plan for the child. Focus at a review hearing is to assess the placement and treatment plan. Permanency hearing is about final decisions about where the child will be raised. For children who are 6 and older, the permanency hearing must occur within 12 months of placement. For children under 6, the permanency planning hearing must happen within 3 months of dispositional hearing. If no treatment plan was devisable for a parent, then permanency hearing must happen within 30 days of dispositional hearing.

Burden:

The Court first looks to whether child can go home. If not, then Department must show whether there is a substantial probability that the child will be returned to the parent within 6 months. If the court finds a compelling reason why it would not be in the child’s best interests to return home, the court will determine the appropriate permanency goal for the child.

Required Findings for the Judge or Magistrate:

 Whether Department is providing adequate services and making reasonable efforts to reunify the child and his or her parents;  Whether it would be contrary to the best interests of the child to return home.  Assess progress under the treatment plan;  If adequate progress is not being made, then what the appropriate permanency goal for the child should be, including any concurrent goals;  How likely is the goal to be achieved?  When the goal is likely to be achieved?

Termination Hearing (TPR, termination of parent-child legal relationship) C.R.S. § 19-3-602

Purpose:

The termination hearing is to determine whether the criteria to terminate the parent-child legal relationship have been met by clear and convincing evidence.

Type and Burden of Proof:

HANDOUT 5: DEPENDENCY AND NEGLECT COURT PROCESS

The Department must prove by clear and convincing evidence the criteria have been met. Rules of evidence do apply.

Required Findings by the Judge:

 The court has jurisdiction over the subject matter and the parties herein;  The court takes judicial notice of prior findings and orders;  Did the respondent fail to appear after proper notice and is in default?  If respondents appear, they have been advised of their rights;  A written motion for termination was filed with the court at least 30 days prior to the hearing;  GAL was appointed;  Attorney was appointed for parents;  Judgment was entered against respondent on ______(when)______and the child(ren) was/were adjudicated dependent and neglected; An appropriate treatment plan was adopted by the court, or an exception applied;  Finding: the treatment plan has been unsuccessful in rehabilitating the respondent(s) and they cannot provide reasonable parental care for the children, or;  The respondent(s) has/have not complied with the treatment plan; and  The respondent(s) is/are unfit because ______;  The conduct or condition of respondent(s) render (s) the respondent unwilling or unable to give the child reasonable parent care; and  The conduct is unlikely to change within a reasonable period of time;  Reasonable efforts to rehabilitate the respondent(s) have been made or where excused;  Less drastic alternatives to termination are not viable;  It is in the best interest of the child to terminate the parent-child legal relationship

HANDOUT 6: PPP CHECKLIST

PRELIMINARY PROTECTIVE PROCEEDING CHECKLIST2

BEFORE

 Prepare and bring to court new file, releases of information, and business cards. Also prepare and bring blank letter to client with information about the process, your role, and blank spaces to be filed in at court with: next court hearing date, appointment with you, caseworker’s name and contact information, dates, time, and location of visitation, and any service referrals.  Review petition and affidavit for: o Legal sufficiency of the allegations o Timeliness of filing o Notice o Reasonable efforts made to prevent/eliminate need for removal, or emergency circumstances o Potential jurisdictional issues o Efforts to place with relatives  Analyze for existing and potential conflicts.  Begin discussion/negotiation with opposing counsel and GAL.  Introduce self to client and explain role as counsel and the focus of the PPP hearing.  Obtain basic information (contact addresses and numbers, parentage, relatives, Indian heritage).  Encourage system buy-in when appropriate and address client’s concerns.  Impress upon client the significance of these proceedings.  Determine initial service needs, if any.  Determine the need for any protective orders.  Interview relatives and interested persons regarding allegations, visitation, placement options, ASFA restrictions. Get relevant information on home environment, criminal background, need for funding.  Formulate position on whether the child(ren) should stay home or remain in foster care. Decide whether any safety plans can be implemented to allow the child(ren) remain home or return home.  Analyze whether reasonable efforts were made, or whether a true emergency existed to prevent the need for efforts.  Evaluate need for testimony or continuance.  Advise clients as to his or her rights.

2 See, Judicial Council of California/Administrative Office of the Courts, California Dependency Guide (2007), C. Robinson, “Case Assessment and Planning” in Child Welfare Law and Practice, 715-29 (D. Duquette et al. eds., 2010), and J. Cohen and M. Cortese, “Cornerstone Advocacy in the First 60 Days: Achieving Safe and Lasting Reunification for Families,” 28 ABA Child Law Practice 3, 2009. 1

HANDOUT 6: PPP CHECKLIST

DURING

 Be aware of law and applicable burdens of proof.  Did the department meet its burdens of proof? o ICWA: 25 U.S.C. 1903 (e): “No foster care placement may be ordered… in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”  Select relevant case law or statutes to cite.  Request appropriate orders, such as needed to facilitate the following: o Placement with relative o Visitation with client or relatives o Services for entire family o Protective orders (C.R.S. §§ 19-1-113, 19-1-114)  Call for witness testimony if necessary.  Ensure that court addresses: o Placement o Services for family o Parentage o Indian heritage (ICWA) o Visitation with parents, siblings, and other appropriate persons o Education and medical decision making and involvement o Any other specifically requested orders o Setting next hearings AFTER

 Explain to the client the court’s rulings and reinforce client’s ability to “fix the problems.”  Establish an action plan for the client (i.e., get into services, get restraining order, clean up house). Preferably follow up with written action plan.  Provide contact information and next court date, and explain role of caseworker.  Schedule first client interview time.  Remind client to complete relative affidavit thoroughly and return to you and the caseworker within 5 days.  Fill in blank client letter, and give it to the client.

HANDOUT 7: DEPENDENCY AND NEGLECT INTAKE

DEPENDENCY OR NEGLECT COURT INTAKE

CHILDREN TO BE FILED ON: SEX AGE BIRTH DATE MOTHER FATHER

Michael Williams M 16 4/13/93 Tonia Tillman Shane Williams Derek Latham, Jr. M 13 4/13/96 Tonia Tillman Derek Latham, Sr. Mary Ann Tillman F 5 8/11/04 Tonia Tillman

Relationship Name Address DOB MOTHER Tonia Tillman Granite, CO 80301 10/28/76 FATHER(S) Derek Latham, Sr. Unknown 1/20/76 Shane Williams 123 Main, Schoolcraft, MI 4/10/70

Is the child(ren) part Native American? _____No ___x__Yes Tribe: _Cherokee__ Date case opened:___ Emergency Worker:___ Phone # ______Intake Worker:_ Stacey Porter Caseworker Phone #_303-123-4567____ Ongoing Worker ____ Phone #______X_ Non – emergency ___Judge's Hold ___ Protective Order __ Police

Initial reason for intervention: (Mark all that apply)

__X___ Neglect __X___ Substance Abuse _____ Physical Abuse _____ Domestic Violence _____ Sexual Abuse _____ Mental Health Issues _____ Parent-Child Conflict _____ Parent Incarceration

Immediate circumstances precipitating this filing:

On 8/9/09 it was reported that Tonia Tillman drank 40 ounces of beer and smoked marijuana while caring for her children. Ms. Tillman told the caseworker that she drank the beer and smoked marijuana with friends at a nearby residence. Ms. Tillman stated that while she was drinking and smoking, her daughter, Mary Ann, was with a neighbor, and her two sons, Michael and Derek, were at the family's residence. Ms. Tillman stated that she returned home and smoked a small amount of resin on the back porch while Michael and Derek were inside watching movies. Ms. Tillman stated that she waited about half an hour, and then went to pick MaryAnn up from the neighbor's house. According to the reporter, Ms. Tillman stated that she had smoked a bowl about 5 minutes before the reporter arrived, sometime between 11:20 pm and 12:20 am. Ms. Tillman blew a .035 at about 12:20 am on 8/10/09 and told the reporter she drank "a 40" around 6 pm. The reporter asked Ms. Tillman to leave Mary Ann at

HANDOUT 7: DEPENDENCY AND NEGLECT INTAKE

the neighbor's house for the night and Ms. Tillman agreed. Ms. Tillman told the caseworker that she felt capable of caring for her children at the time she went to pick Mary Ann up.

The caseworker met with Ms. Tillman on 8/17/09 and asked her to complete UA's and breaths and BCTC and Ms. Tillman agreed, but she has not yet followed through. Michael and Derek were absent on the first day of school because Tonia had not registered them. Michael told Caseworker Porter that Ms. Tillman had slept late on 8/19/09 and did not register the boys until around 2 pm, so it was too late for them to go to school that day. Caseworker Porter interviewed Michael, Derek and Mary Ann on 8/20/09, and Mary Ann told the caseworker that Ms. Tillman hits Michael and Derek with a wooden spoon. Ms. Tillman denied hitting her children and said that Mary Ann was confused about Ms. Tillman hitting the kitchen table with the wooden spoon, like a gavel.

It was reported on 8/20/09 that in February or March of 2009 Michael and/or Derek were shooting a BB gun inside Ms. Tillman's residence. Ms. Tillman reportedly said at the time that the BB gun was being used to kill a mouse inside the residence. Reportedly, the BB's damaged several doors and walls inside Ms. Tillman's residence, including a closet door near Mary Ann's room. The caseworker is waiting on more detailed information about the damage. It is likely that Ms. Tillman will be evicted shortly as she is behind on her rent. At this time the caseworker is unaware of any immediate assistance that would prevent the eviction from occurring.

Additional history or pertinent information:

Absenteeism has been a problem for Derek, and especially for Michael, for at least two years. There was a founded report of educational neglect against Ms. Tillman in 2007 in which Michael and Derek were the victims. Educational concerns were also brought up in an assessment in September of 2008. During the 2008-2009 school year, Derek had at least 9 full-day absences and partial absences on 20 additional days (excluding activities & field trips). For the 2008-2009 school year Michael had at least 11 full-day absences and had partial absences on 94 additional days. Tonia has been cooperative, has acknowledged that she has some things to work on, and has said that she is feeling overwhelmed. Tonia has expressed interest in taking parenting classes and getting therapy for herself and her children, so the caseworker is working on making those referrals.

Tonia reports that Shane Williams has had sporadic telephone and mail contact with his son, but that he provides little support. Tonia says that Derek Latham used to be involved in the boys' lives but abandoned them years ago, she reports no current contact information for him. Tonia reports that she does not know who Mary Ann's father.

Recommendations: 1. Tonia Tillman will cooperate with the Department of Human Services and will sign all necessary releases of information.

HANDOUT 7: DEPENDENCY AND NEGLECT INTAKE

2. Tonia Tillman will fill out and return to the court an ICWA affidavit and a relative affidavit. 3. Tonia Tillman will ensure that her children, Michael Williams, Derek Latham, and Mary Ann Tillman attend full days of school every school day unless excused by a doctor. 4. Tonia Tillman will consult with the DHS caseworker about all of Michael's, Derek's and Mary Ann's absences. 5. Tonia Tillman will complete a drug & alcohol evaluation and substance abuse monitoring as requested by DHS. 6. All firearms, including BB guns, will be removed from the residence immediately.

______Worker's signature Date ______Approved by Supervisor Date

STATE OF COLORADO ) ) SS: COUNTY OF GRANITE ) I, ______, a child protection caseworker employed by the Granite County Department of Human Services being first duly sworn on oath state that the contents of this Dependency or Neglect Intake Form/Petition are true to the best of my knowledge, information and belief.

______Name and title of caseworker Subscribed and sworn before me this ______day of ______, 20_____.

Name, Notary Public My Commission Expires:

HANDOUT 8: SAMPLE ADVISEMENT FORM

SAMPLE ADVISEMENT FORM

In the Interest of: Case Number: ADVISEMENT IN DEPENDENCY AND NEGLECT CASE

YOUR RIGHTS as a respondent parent or guardian in this Dependency and Neglect (D&N) case include the following (please initial each paragraph you have read): ______1. You have the right to be represented by an attorney (counsel) during all stages of the proceedings. If you cannot afford an attorney and the Court determines that you qualify financially, the Court will appoint an attorney upon your request. ______2. In D&N cases, the Court will appoint a guardian ad litem (GAL) who is an attorney who represents the child(ren)’ s best interest. The recommendations of the GAL may or may not be what the child(ren), parents, or the Department of Human Services Division of Children Youth and Families (DHS or DCYF) desire. ______3. Except for temporary protective custody hearings, you have the right to have your case heard by a District Court Judge instead of by a Magistrate. You must indicate to the Magistrate at the time the matter is set for hearing that you are requesting your case be heard before the District Court Judge. If you do not elect to have the District Court Judge hear the matter, the hearing will be before a Magistrate. You have the right to a written appeal of any decision of the Magistrate. ______4. If you deny the allegation set forth in the petition, a hearing (trial) will be set within ninety (90) days of the filing of the petition, or sixty (60) days if any of the children listed in the petition are under the age of six at the time of the filing. You have the right to a trial (known as an adjudicatory hearing) before either a jury of six persons or before the Court (District Court Judge or Magistrate) as to whether the petition has been proven by the County Attorney, representing the People of the State of Colorado. You also have the right to have witnesses subpoenaed to require them to appear to testify. At the trial, you may question all witnesses called by other parties, present any defenses to the petition, call witnesses to testify on your behalf, and testify yourself. ______5. Prior to the adjudicatory hearing, the parties may be ORDERED to attend a Case Management Conference with the Family Court Facilitator at least ______days prior to trial. You must attend the conference, unless you are excluded in the order. If you fail to attend the conference and a jury trial has been set, the adjudicatory jury trial will be deemed waived and will be vacated. The parties will proceed on the scheduled date with an adjudicatory hearing tried before the Court. Counsel’s attendance at the conference is mandatory. ______6. At the adjudicatory hearing, the County Attorney must prove the petition by a preponderance of the evidence. This means that the trier of the case finds that it is more likely than not that the petition has been proven. However, if the Indian Child Welfare Act is applicable, the children are eligible for enrollment in a recognized Tribe, then the burden of proof is by clear and convincing evidence. (Clear and convincing means a firm belief). ______7. Any admission by you to the petition or amended petition must be made freely and voluntarily, and not the result of any undue influence, coercion, pressure, force or promises on the part of anyone. Any promises or representation that may be made to you as to what the remedies will be in this case do not bind the Court. ______8. You have the right to appeal the decision from the adjudicatory hearing to the District

HANDOUT 8: SAMPLE ADVISEMENT FORM

Court Judge, if the matter is heard by the Magistrate, or to the Colorado Court of Appeals, if the matter is tried to the District Court Judge or to a jury. ______9. If you enter an admission to the petition, or if the petition is proven at trial, the court shall approve an appropriate treatment plan involving each named child and each named respondent at a dispositional hearing. The DCYF will submit a proposed treatment plan and the Court will adopt a treatment plan that is reasonably calculated to render the respondent fit to provide adequate parenting to the child(ren) within a reasonable time and which relates to the child(ren)’s needs. The dispositional hearing must be held within forty-five days of the admission or trial, or thirty days if any child of the matter is under the age of six. All parties may appear and present their case as to what treatment plan should be ordered by the Court. _____ 10. The Court has the authority to order any of the following dispositions: a. Continue legal custody of the child with the parent, parents, or guardian with or without protective supervision, under such conditions as the Court deems necessary and appropriate; or b. Place the child in the legal custody of a relative; or c. Place legal custody of the child with the DCYF or a child placement agency; or d. Require medical or psychological examination or treatment or the Court may place the child in a hospital or mental health facility. e. The Court shall approve an appropriate treatment plan involving the child(ren) and each respondent. 11. If the child is under six (6) years of age and placed with a respondent parent or guardian, the treatment plan shall include a requirement that the family obtain services specific to the families’ needs if available in the community where the family resides; or _____ 12. If out of home placement is ordered at the dispositional hearing, the Department of Human Services DCYF must show by a preponderance of the evidence that separation from the parents or guardians is in the child(ren)’ s best interest, and you would have the right to have the Court review the placement within ninety (90) days after the order is entered. ______13. You are further advised that termination of the parent-child legal relationship is a possible remedy if you enter an admission to the petition, or if the petition is proven at trial. Termination of the parent-child legal relationship means that the child(ren) would be eligible for adoption, and it means the permanent elimination of any and all legal rights, powers, privileges, immunities, duties and obligation between the child(ren) and parent, except child(ren)’ s status as an heir at law prior to an adoption. A motion to terminate requires a separate hearing where the DCYF must prove by clear and convincing evidence that you did not comply with the treatment plan or that it was not successful. If the Indian Child Welfare Act is applicable, the DCYF must prove a termination hearing beyond a reasonable doubt. ______14. Parents or guardians are Ordered to provide to the DCYF, within 15 days after today’s hearing, the names, addresses, and telephone numbers, if known, of any relatives. ______15. Concerning the maximum time frames for adjudication, disposition, and termination of parental rights, the party(s) should be advised that the process could take as long as the following: a. For cases in which any child is under the age of six (6) at the time of the filing: 1) Between the time of the service of the initial petition and the adjudication as dependent or neglected, the process can be up to sixty (60) days. 2) Between the time of adjudication and disposition, the process can be up to thirty (30) days.

HANDOUT 8: SAMPLE ADVISEMENT FORM

3) Between the time of disposition and the permanency hearing, the process can be up to three (3) months. 4) Between the time of placement out-of-home and the child being place in a permanent home, including the filing of a petition to terminate parental rights, the process can take up to one (1) year. b. For all other cases in which all children are over age six (6) at the time of the filing: 1) Between the time of the service of the initial petition and the adjudication as dependent or neglected, the process can be up to ninety (90) days. 2) Between the time of adjudication and disposition, the process can be up to forty-five (45) days. 3) Between the time of disposition and the review of the placement hearing, the process can be up to 6 months. 4) Between the time of placement out-of-home and the permanency hearing, the process can take up to one (1) year.

STATEMENTS BY RESPONDENT(S) As parent or guardian of the child(ren) as alleged in the petition, I hereby state that I have read, understood, and initialed all of the statements in this advisement form, and that I have been fully advised of and understand the petition or amended petition, my rights in this matter and the possible consequences, and that I should review this notice with an attorney. I have received a copy of the advisement.

______Respondent Respondent

______Date Date

STATEMENTS BYATTORNEY(S) The undersigned, as attorney for the respondent(s) in this matter, hereby certify that I have fully discussed with my client(s) the petition, and the contents of this advisement form. In my professional opinion, my client understands all of the above listed rights.

______Attorney Date

HANDOUT 9: CONVERSATIONS PRIOR TO PPP HEARING

CONVERSATIONS PRIOR TO PPP HEARING

Conversation with Tonia Tillman:

Tonia is very tearful and upset. She has come with her sister, Monica Tillman. Derek Latham, Derek Jr.’s father, is also in the hallway. Derek is telling everyone lies about Tonia because he wants custody of the kids due to the fact that he owes $5,000 in back child support. He is also a meth user and he has offered meth to Tonia in the past.

Tonia has always taken care of the kids, and they have never lived anywhere else. They get by with food stamps, Section 8 housing, and social security disability checks for Mary Ann, who was born premature.

While she goes out and drinks with her friends every once in awhile, it is only if she has plans for someone else to take care of the kids. She doesn’t drink in front of the kids. She is willing to do any substance abuse monitoring asked of her. She reports that she called Arapahoe House, where the caseworker asked her to do UAs, but they never called her back. She says she called and left a message for the caseworker telling her this. She never heard back from the caseworker. Also, the caseworker never offered her a safety plan or other services. She has not had a drink since the night of the report.

She says she has met with the school district’s attendance officer and has an attendance contract with them for Michael and Derek. The attendance officer told her that if she does not follow the contract, the school will take her and the boys to truancy court. Since signing the contract, the boys have had excellent attendance. Tonia says she did not finish high school- she dropped out, but she knows it’s important for the boys to go to school regularly. Mary Ann has very good attendance. Tonia does not understand why the Department of Social Services is involved with the school stuff – she has already worked it out with the school. She’s not supposed to be in court about truancy because she is following her contract with the school.

She wants to see the children immediately, and has not seen them or talked to them in 4 days. She knows Derek Sr. is going to ask for custody because he wants her to have to pay him for child support. She wants the children returned to her today. She will take any kind of test today to prove she is sober. She says a drug test might be positive for marijuana, but she has a medical marijuana card due to her scoliosis.

She does not want the children to go with Monica – she wants the children to come home to her.

Conversation with Monica Tillman, Maternal Aunt:

Monica is 32 years old and lives with her husband and three kids. She is willing to take placement of her niece and nephews. She has no criminal background. She does think that Tonia drinks only with her friends, and that she has someone to watch Mary Ann when she goes out. Monica is Mormon, and does not drink at all. Monica thinks Tonia drinks too much. Monica has 3 children – her daughter Karen is 17, daughter Kylie is 3 and her son Mason is 1. She was a

HANDOUT 9: CONVERSATIONS PRIOR TO PPP HEARING

teenage parent when Karen was born. She thinks maybe she had a little bit of social services contact when Karen was 12 because at that time, Karen was beyond her control. Conversation with Stacey Porter Caseworker, Intake Worker:

Ms. Porter is the intake worker. She is new to the Department and graduated from college a year ago. She placed the kids on Friday night in a non-kinship foster home. They are in a receiving home and will need to be placed in a more permanent home in the next 30 days. She told the foster mom to take them and enroll them at her local school today, as the foster home is in the county next to Granite County.

She has met Monica today, and the Department is willing to investigate her for placement. She thinks they will need to do a Safe Study on the home, which will take at least 30 days. But Tonia told her that she is not in agreement with placement with Monica, so the Department cannot investigate any relatives over Tonia’s objection. There will be a new ongoing worker assigned sometime later. She wants Tonia to complete a substance abuse evaluation and begin treatment right away. She also wants Tonia to undergo a psychological evaluation.

Conversation with Sarah Smith, County Attorney:

Ms. Smith is willing to offer a no-fault admission for Ms. Tillman if she agrees to address all issues in treatment. The treatment plan will include substance abuse evaluation and counseling if recommended, sobriety monitoring, and parenting classes.

Questions for Group Discussion: 1. Could reasonable efforts to prevent removal still be made? If so, what efforts would you recommend? 2. Would you recommend a safety plan, and what would it include? (Vol. 7.202.52) 3. Do Ms. Tillman’s actions meet the definition of neglect at Vol. 7.202.6? a. “Minor – physical or emotional needs of child are marginally or inconsistently met, but little or no impact on child’s functioning”; b. “Medium – physical or emotional needs of child are inadequately met resulting in some impairment in the child’s functioning”; or c. “Severe – physical or emotional needs of child are not met resulting in serious injury or illness” 4. What did she do that meets any of the above? 5. If Ms. Tillman’s actions do not, or barely, meet the definition of minor neglect, then what arguments will the Department make to justify removal? 6. Look at the Department’s criteria for removal, Vol. 7.304.3, for questions to use on cross- examination of the caseworker. 7. What about placement with relatives? 8. What is the impact on mom completing a substance abuse or psychological evaluation prior to adjudication? 9. Can statements she makes in the evaluation be used against her at the trial? 10. Will a C.R.S. § 19-3-207 order protect her statements? How is such an order obtained? 11. Are the evaluations reasonable? 12. Adjudication offer: What do you think of the no fault offer? Should you counsel your

HANDOUT 9: CONVERSATIONS PRIOR TO PPP HEARING

client to take the offer? What are the pros and cons? 13. What other issues, or defenses, should be raised, if any?

HANDOUT 10: ADJUDICATION CHECKLIST

ADJUDICATION HEARING CHECKLIST3

BEFORE

 Conduct an independent investigation. o Obtain discovery – make informal requests and motions to compel if necessary o Subpoena records, including police reports and medical records if necessary o Review all documents, including case worker’s files o Interview potential witnesses  If client is in custody, ensure that a transportation order is issued  Discuss with client: o Accuracy and completeness of information in petition o Position as to truth of allegations o Desired outcomes and wishes as to direction of litigation  Counsel client on alternative strategies and probable outcomes.  Assess and formulate position on: o Strength of Department’s evidence supporting each allegation, especially whether there is a nexus between the alleged behavior and risk to the child o Current situation and risk of harm to the child o Whether any presumptions apply o Need for contested adjudication: bench or jury trial o Need for child’s testimony, or other witnesses, and client’s wishes regarding witnesses.  Negotiate with opposing counsel.  If adjudication is to be contested: o Evaluate need for expert testimony and physical evidence o Issue subpoenas o Exchange witness lists o Prep all witnesses, including your client, for direct or cross examination  File any pretrial motions (i.e., motions in limine, motion to dismiss, motion for discover, pretrial statement).  Respond to any motions for summary judgment.  Use pretrial hearing to get input on your case from bench.  Prepare for and participate in mandatory case management conferences. Anticipate and clarify treatment plan.  Prepare jury instructions. DURING

 Be aware of law and applicable burdens of proof.  Make appropriate objections on the record to preserve issues for appeal.

3 See, Judicial Council of California/Administrative Office of the Courts, California Dependency Guide (2007), C. Robinson, “Case Assessment and Planning” in Child Welfare Law and Practice, 715-29 (D.Duquette et al. eds., 2010), and J. Cohen and M. Cortese, “Cornerstone Advocacy in the First 60 days: Achieving Safe and Lasting Reunification for Families”, 28 ABA Child Law Practice 3, 2009.

HANDOUT 10: ADJUDICATION CHECKLIST

 Consider motion to dismiss after the Department’s case.  Request appropriate interim orders pending disposition (i.e., placement, visitation, services).  Ensure court properly and timely sets next hearing – disposition must be within 30 days if EPP, 45 days if not.

AFTER

 Consult with client to explain court rulings and answer questions.  Set tentative deadlines with client for events to occur (beginning services, increasing visits).  Calendar important dates.  Follow up with caseworker on making referrals for services and progression of visitation.

Colorado Summit on Children, Youth, and Families: Juvenile Law Update Survey of Case Law 2010-2012

Justice Brian Boatright, Colorado Supreme Court Judge David Furman, Colorado Court of Appeals Phil James, Attorney at Law

May 25th, 2012

With special thanks and gratitude given to the following people who have worked on the selection and summaries of these cases from which we have heavily borrowed: Judge Ann Gail Meinster, District Court, 1st District Sue S. Thibault, Assistant Clear Creek County Attorney Sarah Felsen, Law Clerk for Judge Meinster

Also thanks to the following people who have worked on summaries of these cases from which we have also borrowed: Teresa Wilkins, Denver Attorney providing summaries for the CBA Paul Sachs, Steamboat Springs Attorney providing summaries for the CBA Steven B. Epstein & Timothy R.J. Mehrtens, Family Law Update 2011-12 5/14/12 Table of Contents

I. DEPENDENCY & NEGLECT ………………………………………………. A. Reasonable Efforts………………………………..…………………… 5.

People ex rel. S.N-V. Colo. App. 2011

B. Right to Counsel………………………………………………………. 6.

People ex rel. R.D. Colo. App. 2012

C. Immunity……………………………………….……………………. 7.

Shirk v. Forsmark Colo. App. 2012

D. Evidence and Privilege………………………………………..…….

People v. Gabriesheski Colo. 2011 7.

People ex rel. S.X.M., Colo. App. 2011, Cert. Denied, January 9, 2012 8.

People ex rel. L.A.N.,Colo. App. 2011, cert. granted. 10.

People in the Interest of A.J.L. Colo. 2010 11.

E. Rights of Foster and Step-Parents…………………………………

People ex rel. A.C. Colo. App. 2011, cert grated, November 14, 2011 12.

People in the Interest of A.M. Colo. App. 2010 13.

People in the Interest of B.S.M. Colo. App. 2012 14.

F. Indian Child Welfare Act…………………………………………..

People ex rel. J.C.R., Colo. App., 2011 14.

People in the Interest of A.R.Y.-M., Colo. App. 2010 15.

2 G. Allocation of Parental Responsibilities………………

In re the Parental Responsibilities of E.S., Colo. App. 2011 16.

In re the Parental Responsibilities of S.M.J., Colo. 2011 17.

People in the Interest of E.C. Colo. App. 2010) 18.

H. Jurisdiction…………………………………….

People in the Interest of A.H., and Concerning G.H. Colo. App 2010, 19. cert denied 2011

People in the Interest of R.D., and Concerning M.D., Colo. App. 20. 2011

I. Ineffective Assistance of Counsel………………………

People in the Interest of L.B., and Concerning R.B. Colo. App. 2011 21.

J. Appeals………………………………………………..

People in the Interest of C.Z., Colo. App. 2010 22.

K. Summary Judgment

People in the Interest of T.M. Colo. App. 2010 22.

II. JUVENILE DELINQUENCY……………………………………………….

Fifth Amendment and Due Process Rights…………………………

In the Interest of C.Y. Colo. App 2012 23.

III. CONTEMPT OF COURT……………………….……………..

Court Order…………………………………………

Re the Marriage of Leverett, Colo. App. 2012 24.

3 IV. CUSTODY & CHILD SUPPORT…………………………………………..

A. Modification of Out of State Child Custody Order………

In re Marriage of Brandt Colo. 2012 25.

B. Guardians, Special Advocates, Child Representatives…

In the Matter of Minor Child D.I.S., and Sidman v. Sidman Colo 26. 2011

C. Paternity………………………………………………………………..

In Re the Parental Responsibilities Concerning G.E.R. Colo. App. 28. 2011

People in the Interest of C.L.S. Colo. App. 2011 29

D. Maternity……………………………………………………………

In re the Interest of S.N.V. and Concerning C.A.T.C. Colo. App. 2011 31.

V. ADOPTION…………………………………………………………………

A. Abandonment………………………………………………………..

D.P.H. v. J.L.B., and Concerning A.B. Colo. 2011 32.

VI. FEDERAL LAW CASES…………………………………………………………...

A. U.C.C.J.E.A. and F.P.K.P. ……………………………………………

In re the Parental Responsibilities of L.S. and Concerning 33. McNamara Colo. 2011

B. School Interviews……………………………………………………..

Green v. Camreta US 2011 35.

4 I. DEPENDENCY & NEGLECT

A. Reasonable Efforts

Is failure to object to the treatment plan always a bar to an appeal on that issue?

People ex rel. S.N-V., 10CA2303 (Colo. App.) December 22, 2011 Father appealed the judgment terminating the parental relationship with his daughter, S.N-V. The judgment was affirmed.

Father's challenge to the juvenile court's reasonable efforts finding is based on the Department's decision not to provide him with a full neuropsychological evaluation. He contends this evaluation was necessary to determine whether appropriate services were being rendered to him.

The Denver Department of Human Services (Department) contended that a parent’s failure to object to the treatment plan constituted a waiver, estoppel, and forfeiture of the parent’s right to seek appellate review of the sufficiency of the evidence supporting the court’s termination findings pursuant to CRS § 19-3-604. The COA, however, held that a parent’s position regarding his or her treatment plan at the time of its adoption, or at any point thereafter before the termination hearing, is not equivalent to, or a substitute for, a juvenile court’s finding at the termination hearing by clear and convincing evidence that the services provided to the respondent parent were appropriate. Therefore, father had the right to seek appellate review.

Father argued that the juvenile court erred in finding that he was unfit because the Department did not make reasonable efforts to rehabilitate him. The trial court had ordered the Department to pay for father's psychological evaluation and authorized a full neuropsychological evaluation if necessary. The Department chose to provide father with only the psychological evaluation and not the full neuropsychological evaluation for budgetary reasons. The psychologist who performed the evaluation testified that, based on both father’s cognitive disorder diagnosis and his seizure disorder that had been occurring since he was 9 years old, his treatment plan providing visitations with S.N-V. and therapy to address parenting skills was appropriate. Therefore, the record supports the court’s findings that an appropriate treatment plan had been adopted for father and determined that, despite his recent efforts to comply with his treatment plan, father was unfit and unlikely to become fit within a reasonable period of time.

Father also contended that the juvenile court erred in finding that no less drastic alternative to termination existed. Father’s therapist and caseworker testified that termination of parental rights was appropriate, that no less drastic alternatives existed, and that adoption was in S.N-V.’s best interests. The paternal aunt testified that S.N-V. lived with her and had developed a close relationship with her other

5 children. She also testified that she wanted to adopt S.N-V. Because the record supports the juvenile court’s findings, the court did not err in finding that clear and convincing evidence showed no less drastic alternative to termination existed.

B. Right to Counsel

May the court unilaterally waive a parent’s right to counsel?

People ex rel. R.D., 12 COA 35 11CA1347 (Colo. App.) March 1, 2012 Dependency and Neglect—Termination—Parental Rights—Due Process—Right to Counsel—Clear and Convincing Evidence.

In this dependency and neglect case, father appealed from the judgment terminating the parent–child relationship between him and his children, R.D. and R.D. Mother also appealed from the judgment terminating the parent–child relationship between her and her children, R.D., R.D., C.L., and D.L. The judgment was vacated and the case was remanded as to father. The judgment was affirmed as to mother.

Father contended that the trial court violated his statutory and due process rights to counsel when it prohibited his attorney from participating on his behalf and entered default against him on the first day of the termination hearing and sua sponte allowed his counsel to withdraw on the second day of the hearing. In all dependency and neglect proceedings, a parent possesses the legal right to be represented by counsel at every stage of the proceedings. Here, after commencing the termination hearing, in the absence of father but with his counsel present and participating, the trial court found father in default and granted the motion to terminate his parental rights. It also indicated on the first day of the hearing that it was dismissing his counsel, over her objection. The court proceeded with day one of the termination hearing without father or his counsel present. On the second day of the hearing, the court allowed father to participate, but without the assistance of counsel. No statutory exception exists here to permit such a deprivation of this right. Accordingly, the trial court violated CRS §§ 19-3-202(1) and -602(2) when it deprived father of his right to the assistance of counsel during substantial parts of the termination hearing. This constituted reversible error per se.

Mother contended that the judgment terminating her parental rights was not supported by clear and convincing evidence. The overwhelming evidence, however, supports the trial court’s findings that mother continued to demonstrate the same behaviors identified in the treatment plan, including a “strange absence of emotional attachment.” Further, despite mother’s claims of progress, the evidence showed that her issues were chronic. Both mother’s therapist and the caseworker testified that she would not be able to safely parent within a reasonable time. Accordingly, the termination of mother’s parental rights was supported by clear and convincing evidence.

6 C. Immunity

Do Human Services employees have qualified immunity if they are alleged to have violated the Constitutional rights of the children?

Shirk v. Forsmark, 12COA3 10CA2141 (Colo. App.) January 5, 2012 Adoption—Department of Social Services—42 U.S.C. § 1983—Abuse—Injuries— Foster Care—Qualified Immunity.

Defendants Joan Forsmark, Cathy O’Donnell, and Angela Lytle, who are all employees of the Adams County Department of Social Services (Department), sought review of the trial court’s orders denying their motions for summary judgment, which asserted qualified immunity for their discretionary decisions as government officials regarding claims arising from the placement and adoption of foster children. The orders were affirmed.

Plaintiffs Michael and Joanna Shirk filed this action individually and on behalf of their adopted children, B.N.S., R.T.S., and B.K.S., who were in the Department’s custody from approximately August 2000 through their adoption in August 2003. The case from which this interlocutory appeal arises involves 42 U.S.C. § 1983 claims on behalf of children for injuries suffered in connection with their foster care placement and adoption.

Defendants contended that because their conduct did not constitute a violation of a clearly established constitutional right, the trial court erred in denying them qualified immunity. Children in the state’s legal custody have a clearly established “constitutional right to be reasonably safe from harm; and that if the persons responsible place children in a foster home or institution that they know or suspect to be dangerous to the children they incur liability if the harm occurs.” Here, plaintiffs alleged that Forsmark placed the children in an obviously dangerous foster home because (1) there were previous reports of abuse at that home; (2) the previous foster mother, Penny Staley, had been placed on the central registry for child abuse; (3) two of Staley’s adoptive children were reported for sexually abusing other children; (4) Forsmark and O’Donnell ignored many signs of ongoing sexual abuse while the children were at the Staley home; and (5) defendants failed to disclose to the Shirks the abuse, including incestuous behavior between the children. Because plaintiffs alleged conduct violated the constitutional rights of B.N.S., R.T.S. and B.K.S, defendants were not entitled to summary judgment based on qualified immunity.

D. Evidence and Privilege

Does a Guardian ad Litem have an attorney/client relationship with the child in a D&N? Does the relationship invoke statutory privilege or ethics confidentiality?

7 People v. Gabriesheski, 262 P.3d 653 (Colo. 2011) October 24, 2011 Dependency and Neglect Proceeding—Attorney–Client Privilege—Confidentiality of Communications—Guardian ad Litem—Social Worker—Witnesses.

The People sought review of the court of appeals’ judgment affirming two in limine evidentiary rulings of the district court in a prosecution for sexual assault on a child by one in a position of trust. Following the district court’s exclusion of testimony concerning the recantation of defendant’s step-daughter, the alleged sexual assault victim, the prosecutor conceded her inability to go forward, and the case was dismissed. The court of appeals concluded that CRS § 16-12-102(1) gave it jurisdiction to entertain the People’s appeal, and it affirmed both of the trial court’s evidentiary rulings.

With regard to the exclusion of testimony by the guardian ad litem (GAL) appointed in a parallel dependency and neglect (D&N) proceeding, the court of appeals held that the child’s communications with the GAL fell within the attorney–client privilege, as set out at CRS § 13-90-107(1)(b). With regard to the exclusion of testimony by a social worker also involved in the D&N proceeding, the court or appeals found her to be a professional who could not be examined in a criminal case without the consent of the parent-respondent, pursuant to CRS § 19-3-207, as well as a licensed professional who could not be examined without the consent of her client, pursuant to CRS § 13-90-107(1)(g).

The Supreme Court affirmed in part and reversed in part. The Court held that the court of appeals did have jurisdiction to entertain the People’s appeal, but disapproved of its conclusions with regard to the trial court’s evidentiary rulings. The Court found that because a child who is the subject of a D&N proceeding is not the client of a court-appointed GAL, neither the statutory attorney–client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child. Further, the Supreme Court found that because the trial court apparently understood § 19-3-207 to bar the examination of the social worker in defendant’s criminal case—as long as she qualified as a professional involved in the D&N proceeding—it failed to make sufficient findings to satisfy the additional statutory requirement that the statements at issue be made in compliance with court treatment orders, or to demonstrate the applicability of §13-90-107, which is limited by its own terms to communications made by a client in the course of professional employment or psychotherapy.

When respondent father in a D&N jury trial is only permitted to observe his child’s jury testimony from another room over closed-circuit television, are his Due Process rights violated?

People ex rel. S.X.M., 11CA398 (Colo. App.) September 15, 2011, Cert. Denied, January 9, 2012

8 Dependency and Neglect—Child Testimony Viewed by Television—Right to Confront and Due Process—Jury Instructions.

In this dependency and neglect proceeding, father appealed from the order adjudicating his child S.X.M. dependent and neglected. The order was affirmed.

In June 2010, S.X.M., then 6 years old, was removed from father’s care after the Larimer County Department of Human Services (LCDHS) received a report that the child had disclosed that father had sex with her and that other inappropriate sexual actions had take place between father and the child. A jury trial was scheduled for February 2011.

Before trial, LCDHS filed a motion in limine requesting that the child be permitted to testify in front of the jury but not in the presence of father. The trial court granted the motion over father’s objection, but ordered that father should have the opportunity to view the child’s testimony via closed-circuit television. The child testified according to this procedure and the jury adjudicated the child dependent and neglected.

On appeal, father contended that he had a right to confront the child in the courtroom, and that the procedure adopted denied him that right and the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment. The Court of Appeals disagreed. Father argued he had a right to confront the child that should not have been denied absent evidence that the child would have been traumatized if required to testify in his presence. His argument regarding his right to confront in a non-criminal case was based on his right to “fundamentally fair procedures” in a dependency and neglect proceeding.

The Court first noted that Colorado has rejected the argument that the Sixth Amendment right of confrontation should be extended to a parent in a dependency and neglect proceeding. The Court then rejected any further contention that fundamental fairness required he be allowed to confront the child in court.

Father argued that because the jury instructions used the past tense and therefore focused the jury’s attention on the child’s status “at some moment in the past when some abuse was alleged to have occurred,” rather than on the child’s status at the time of the hearing, the jury’s findings were not in compliance with CRS § 19-3-102. The Court disagreed. The Court noted that a jury instruction that misleads or confuses a jury amounts to error, but such error is not a ground for reversal unless it prejudices a party’s substantial rights. Review is for abuse of discretion, which is found only when the ruling is manifestly arbitrary, unreasonable, or unfair.

The Court reviewed the statute, which uses the present tense: a child is deemed neglected or dependent if he or she “lacks” proper parental care or if his or her environment “is” injurious to his or her welfare. The trial court noted that the use of the present tense in the jury instructions could cause “massive confusion” if, at the

9 time of the hearing, the jury was informed that the child had been removed from harm and was doing well in foster care. This could lead to the child not being adjudicated dependent and neglected while in his or her parent’s care, which would not be in the best interests of the child and not consistent with the purposes of the Children’s Code. Although the trial court’s instructions were not what the Court considered the best solution to this issue, it concluded that they were not misleading and were not an abuse of discretion.

NOTE: Petitions for a Writ of Certiori before the Colorado Supreme Court were granted in L.A.N. on the following issues (1) Whether a guardian ad litem in a dependency and neglect proceeding can waive the child’s psychotherapist- patient privilege; (2) whether the court of appeals erred in determining that the child’s psychotherapist-patient privilege was waived with respect to certain materials in the psychotherapist's file. (No. 11SC529).

People ex rel. L.A.N., 10CA2408 (Colo. App.) July 7, 2011 Termination of Parental Rights – Privilege & Waiver – ICWA

The trial court decision was vacated and remanded for failure to provide ICWA notice. In this dependency and neglect proceeding, Mother appealed from the judgment terminating her parent-child legal relationship with L.A.N. and the trial court’s denial of her request for production of the L.A.N’s therapist’s file.

In 2008, Denver Department of Human Services (DDHS) received a referral regarding the then seven year old L.A.N. due to reports that L.A.N. had been brought to Children’s Hospital because of out-of-control behavior and suicidal statements; mother had refused their treatment recommendations; and that Mother had attempted to flee with L.A.N. when told that transfer of the child to a mental health facility was being considered.

DDHS filed a D&N petition. Upon release from the hospital, the child was placed in the custody of her maternal aunt who hired a therapist for the child. Two years later, the court terminated Mother’s parental rights because she had not successfully met the objectives of her treatment plan.

On appeal, Mother argued that the juvenile court erred in filing to ensure that the notice requirements of the Indian Child Welfare Act (ICWA) were met because there was no record to show that notice was sent to the Cherokee Nation of Oklahoma, or that any determination was made as to whether the child’s biological father had Indian heritage. The Court agreed and vacated the judgment due to these deficiencies.

10 Mother also argued that the juvenile court erred when it denied her request for production of the child’s therapist’s file. The Court found that Mother was entitled to at least a portion of the file and remanded for further proceedings.

During the course of treatment with the child, the therapist submitted a letter to the GAL to share some of her observations regarding the case. Although she did not explicitly recommend against reuniting the child with Mother, she described a number of “concerns” that she had about the child’s welfare were that to occur. Without attempting to reserve the privilege between the therapist and the child, the GAL provided the therapist’s letter to the court and each of the other parties.

In June 2010, mother’s attorney subpoenaed the therapist for a deposition and to produce her entire case file. The therapist moved to quash the subpoena arguing that it sought information and documents that were privileged under C.R.S. § 13-90- 107(1)(g). Mother responded that any privilege was implicitly waived because the mental condition of the privilege holder (the child) was at issue, the child’s progress in therapy was “outcome-determinative” of Mother’s parental rights, and access to the therapist’s records was necessary to determine the basis for the information, opinions, and conclusions set forth in the therapist’s letter to the GAL.

The trial court found that the child was not competent to waive her own privilege; Mother could not waive it because in opposing termination of her parental rights, her interests could be adverse to those of the child; and neither the DDHS caseworker nor the GAL was in a position to waive it, even if so inclined. The court ordered the therapist to participate in a deposition or a “chat” with Mother’s attorney, but not to produce any records.

The Court concluded that DDHS and the GAL expressly waived the privilege because both of them obtained privileged information from the therapist and then disclosed that information to the court. Because privileged information from the therapist portrayed mother negatively, and this information was used by DDHS and the GAL in seeking to terminate her parental rights, the Court of Appeals concluded that Mother was deprived of a fundamentally fair opportunity to protect her rights. The case was remanded to the trial court to conduct an in-camera review of the therapist’s file and to identify the discoverable portions of the file.

Must a trial court attribute more weight to the most recent evidence?

In People in the Interest of A.J.L., 243 P.3d 244 (Colo. 2010)

In A.J.L. a division of the court of appeals reversed a trial court’s judgment terminating parental rights of mother because the trial court did not attribute more weight to the most recent evidence showing that mother was fit. That more recent evidence included: 1. Testimony that a full mental health evaluation completed in Montana showed no personality disorder or other psychological problems; 2. reports that mother was very motivated and doing well in treatment; 3. reports that

11 mother was successfully parenting her newest child and that mother was “wonderful;” 4. a lack of evidence of domestic violence; and 5. a lack of evidence that mother was dishonest.

The supreme court reversed, noting that a trial court’s factual findings are set aside only when they find no support in the record, and holding that the decision of whether to afford more weight to more recent evidence falls squarely within the discretion of the trial court.

E. Rights of Foster and Step-Parents

NOTE: The Colorado Supreme Court in A.C. has granted certiorari on the following issue: Whether pre-adoptive foster parents of a child whose biological parents’ rights have been terminated have a constitutionally-protected liberty interest in a continuing relationship with the child and a right to due process concerning removal of the child from the parents’ home. (No. 11SC725)

People ex rel. A.C., 10CA2536 (Colo. App.) September 15, 2011, cert grated, November 14, 2011 Post-Termination of Parental Rights—Foster Child Placement.

M.S. and S.S. (foster parents) appealed from the order changing the placement of A.C., a foster child formerly in their care, to another foster home. The judgment was affirmed in part and the case was remanded with directions.

The juvenile court placed A.C. in foster care days after he was born and terminated the parent–child legal relationship between A.C. and his mother less than a year later. The Denver Department of Human Services (Department) moved A.C. from his first foster home to his second foster home before his first birthday. The Department placed A.C. in a third respite home with the appellant foster parents shortly after he turned one. The Department certified foster parents’ home as a “24- hour foster home” for the term of one year.

After seven months with foster parents, the Department reported to the juvenile court that (1) A.C. had made positive progress; (2) the placement was appropriate; (3) foster parents were meeting A.C.’s needs; and (4) the Department had no safety concerns. The Department recommended that A.C. remain with foster parents until his adoption was finalized. The court adopted these recommendations.

The following week, A.C.’s therapist reported concerns about foster mother. Based on the report, a Department Certification Review Committee concluded it needed to remove A.C. from foster parents’ care. The Department did not notify or consult A.C.’s guardian ad litem (GAL) or the juvenile court before removing A.C. from foster parents’ home.

12 The GAL filed a motion for a forthwith hearing. At that hearing, the juvenile court stated it was “appalled” by the removal. It found that the removal was “extremely unusual” and that the Department had violated CRS § 19-3-203(2) because it had not kept the GAL informed of any significant developments in the case.

At a subsequent hearing, a psychologist testified about her concerns with foster mother and recommended A.C. not be returned to foster parents. The juvenile court adopted that recommendation. Foster parents appealed.

Foster parents argued that their due process rights were violated because they had a constitutionally protected liberty interest in a continued relationship with A.C. The Court of Appeals disagreed. Foster parents’ rights are derived from a contractual relationship with the state of Colorado to act as parens patriae to safeguard the interests of vulnerable children within the state. These rights are not those from which a protected liberty interest might be derived.

Foster parents also argued that the juvenile court erred in its application of the best interests standard at the removal hearing. Under the Colorado Children’s Code, the best interests of a removed child is: (1) to be placed in a stable and secure environment; (2) not to be indiscriminately moved from foster home to foster home; and (3) to have assurance of long-term permanency planning. Children under the age of 6 should be placed in permanent homes as expeditiously as possible. Any delay in placement to a permanent home must be in the child’s best interests. To make such a finding, the court must be shown, by clear and convincing evidence, that either (1) reasonable efforts were made to find the child an appropriate permanent home and such a home was not currently available; or (2) the child’s mental or physical needs or conditions deem it improbable that such child would have a successful permanent placement.

The Court concluded that the Department did not make either of the required showings by clear and convincing evidence. On remand, the juvenile court must determine whether A.C. is now in a permanent home; if so, he may not be removed absent the Department showing one of the foregoing conditions by clear and convincing evidence. If the juvenile court determines that A.C. is not in a permanent home, it must determine whether foster parents’ home is still available as a foster home and, if so, must return him to that home unless the Department shows, by clear and convincing evidence, that concerns about foster mother rendered the home “not currently available.”

May foster parents fully participate as parties in the termination proceedings?

In People in the Interest of A.M., (Colo. App.) No. 10CA522, December 23, 2010)

In A.M. mother and father appealed the judgment terminating their parental rights with respect to their child. The child’s guardian ad litem filed a motion to terminate parental rights after a weekend visit with the parent’s, where the child lost 13.5

13 ounces and the parents had been involved in a domestic violence incident. The deparmtne of human services opposed the motion. The trial court granted the foster parents full intervention in the termination hearing based on section 19-3- 507(5)(a)(allowing foster parents to intervene as a matter of right).

The division reversed in part, holding that foster parents may intervene as full participants under section 19-3-507(5)(a) only in dispositional hearings, and that foster parents may exercise only their right to be heard during a termination hearing. The majority based its holding on statutory and constitutional due process basis. The dissent argues that the trial court’s granting of full intervention was proper.

Is a stepfather who declines to take custody of child in a dependency and neglect case, and who had no other legal duty to support the child, obligated to pay foster care fees incurred by the department of human services for the child’s out-of-home placement?

In People in the Interest of B.S.M., 251 P.3d 511 (Colo. App. 2010)

In B.S.M. stepfather appealed the district court’s judgment against him for $40,738.24 in foster care fees incurred by the department on behalf of his former stepson. Stepfather was married to the child’s mother, but is not the biological father of the child and did not ever adopt the child. The parties subsequently divorced in Louisiana.

The department instituted a dependency and neglect action concerning the child, and placed him in foster care. During the D&N proceeding, stepfather declined to take custody of the child.

The division held that because section 19-1-115, under which the department sought reimbursement, imposes an obligation on a “parent” to reimburse costs expended for residential placement, and “parent” means the child’s natural parent or a parent by adoption, that stepfather was not obligated to reimburse the department. The division noted that nothing in the record indicated that the Louisiana custody order imposed an support obligation on stepfather, that stepfather never voluntarily provided any financial support for the child, and that stepfather declined to take physical custody of the child when the D&N action was filed.

F. Indian Child Welfare Act

The timeliness or sufficiency of ICWA tribal notice may be raised for the first time on appeal. May a parent assert possible Indian heritage for the first time on appeal?

14 People ex rel J.C.R., 259 P.3d 1279 (Colo. App., 2011) May 12, 2011 Dependency and Neglect—Termination of Parent–Child Relationships—Indian Child Welfare Act—Compliance With Treatment Plan.

In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationships with J.C.R. and her twin children. Father appealed from the judgment terminating his parent-child legal relationship with J.C.R. The judgment was affirmed.

Mother asserted that the Indian Child Welfare Act (ICWA) notice requirements were not met. The Court of Appeals disagreed. Mother made no assertion of possible Indian heritage at trial, nor did she provide any information supporting her Indian heritage during the proceedings. Therefore, the trial court had no reason to know or believe that that an Indian child was involved in the case. While previous cases have held that the timeliness and sufficiency of a notice provided pursuant to ICWA can be raised for the first time on appeal, a parent may not assert possible Indian heritage for the first time on appeal.

Mother also argued (1) there was no credible evidence of domestic violence; (2) she would have been found a fit parent had she been given an additional six months to work on her treatment plan; (3) evidence did not support the trial court’s conclusion that there were no less drastic alternatives to terminating her parental rights; and (4) ACDHS failed to provide “diligent supportive services” to her because it required that she and father have no contact and that rendered her virtually homeless. The Court disagreed with each of these contentions, holding that the grounds for terminating mother’s parental rights were proven by clear and convincing evidence.

Father argued, like mother, that it was error to conclude he had failed to reasonably comply with his treatment plan within a reasonable time. The Court found ample evidence in the record to support the trial court’s findings. Accordingly, the judgment was affirmed.

Does harmless error apply to a department’s violations of the ICWA’s notice requirement?

In People in the Interest of A.R.Y.-M., 230 P.3d 1259 (Colo. App. 2010),

In A.R.Y.-M. division of the Court of Appeals, citing the BIA guidelines, 25 C.F.R. § 23.11(a), (d), and (e), identified the specific information that must be included in the ICWA notices, but concluded that errors in the department’s ICWA notices to two tribes were harmless because the tribes responded that the child was not eligible for enrollment or could not verify the child’s eligibility.

G. Allocation of Parental Responsibilities

For standing purposes, what does a non-parent having “physical care” mean under 14-10-123(b)? If a parent voluntarily places custody with a non-parent, what is the standard of proof required to maintain custody with the non-parent over the objection of the parent?

In re the Parental Responsibilities of E.S., 264 P. 3d 623 (Colo. App., 2011) May 12, 2011 Dissolution of Marriage—Parental Responsibilities—Nonparent—Standing—Clear and Convincing Evidence.

Father appeals from the order allocating primary parenting time to Silvernail, a nonparent in this post-dissolution of marriage matter.

The parties’ marriage was dissolved in 2006. Mother was allocated majority parenting time with E.S. In 2008, Mother moved to relocate out of state, and Father objected. Silvernail, who is the adoptive parent of two of the parties’ other children, moved to intervene, contending that E.S. spent substantial time with her and with E.S.’s siblings, and that she was concerned that the proposed relocation would prevent E.S. from doing so. The trial court denied Mother’s request to relocate, and permitted Silvernail to intervene and exercise parenting time with E.S. E.S. then moved into Silvernail’s home full time under a temporary guardianship agreement between Father and Silvernail.

Father claims that as a non-parent, Silvernail lacks standing to request allocation of parental responsibilities. C.R.S. § 14-10-123(1)(b) provides that a nonparent has standing when the child is not in the physical care of either parent and the nonparent is in physical care of the child. When determining whether a parent or nonparent has “physical care” of a child, a court considers the nature, frequency, and duration of contacts between the child and the parent and between the child and the nonparent as well as the manner by which the child came to be under the physical care of the nonparent. The nonparent must show that the parent voluntarily permitted the nonparent to assume the responsibility of physically caring for the child.

Father not only voluntarily turned over physical care of E.S. to Silvernail, with whom E.S. lived full time, but he also made Silvernail the child’s temporary guardian, with no limitations on her authority. Because Silvernail had full physical care of E.S. as the child’s guardian, she has standing under section 14-10-123(1)(b) as a nonparent to petition for allocation of parental responsibilities.

However, the Court found that the trial court erred by allocating primary parental responsibilities to Silvernail, over Father’s objections, without recognizing Father’s constitutional preference as the child’s parent and without finding by clear and convincing evidence that doing so was in the child’s best interests. A parent does not

16 relinquish parental rights by voluntarily placing a child under the care of a third party, and Troxel protections still apply in that situation.

Does continual presence of an Indian child in Colorado, entrustment of care of the child to a non-parent, and failure by both parents to visit for over a year establish abandonment for the purposes of determining domicile of the child in Colorado versus domicile at the reservation?

In re the Parental Responsibilities of S.M.J.C., 62 P.3d 955 (Colo.App.Div. 4 2011) Sept. 12, 2011 Allocation of Parental Rights—25 U.S.C. § 1911(a) and (b)—Domicile - ICWA

In this allocation of parental rights proceeding, the Oglala Sioux Tribe (Tribe), acting through the Oglala Nation Tiospaye Resource Advocacy Center (ONTRAC), appealed from the order denying its motion to dismiss the proceeding or transfer the proceeding to the Tribe’s tribal court. The order was vacated and the case was remanded for further proceedings.

S.M.J.C. was born on November 24, 1998. His mother is an enrolled member of the Tribe, and his father’s membership was “pending” as of March 10, 2010. Mother and father were divorced in 2006 by the tribal court. Mother was given custody of the couple’s four children, and father was permitted visitation.

In October 2007, father, mother, and several of their children were living in a van in Denver. Father asked Constance Crawford, a Denver resident, whether they could stay with her due to the cold weather. She agreed. When the family moved out, Crawford offered to keep S.M.J.C. and his older brother, M.R.C., and enroll them in school. Father agreed and signed a document purporting to give guardianship of the two children to Crawford. On November 26, 2007, mother signed a similar document.

M.R.C. did not remain with Crawford. S.M.J.C. was still living with her in October 2009 when she petitioned a Colorado court for an allocation of parental responsibilities for the child. Crawford alleged mother had not seen the child for three years and father had not seen him since April 2008, and that it would be in the child’s best interests to allocate parental responsibilities entirely to her. The court ordered the child to remain in Colorado pending resolution of the action.

Crawford gave notice of her action to the Tribe. In November 2009, the tribal court gave temporary custody of the child to ONTRAC, and in December, ONTRAC moved to intervene and requested dismissal of the case. ONTRAC argued that the Tribe had exclusive jurisdiction over the matter under 25 U.S.C. § 1911(a) because the child’s domicile—the Pine Ridge Indian Reservation—followed the parents. Alternatively, ONTRAC argued that even if the tribe did not have exclusive jurisdiction, there was no good cause to deny transfer to the tribal court under § 1911(b).

17 The court held that S.M.J.C. had been abandoned by his parents to Crawford, and that this changed his domicile to Colorado. It also found good cause to deny transfer of the case, holding that Colorado was a more convenient forum because S.M.J.C. had expressed a desire to remain in Colorado and was receiving sophisticated medical and dental treatment in Colorado.

On appeal, ONTRAC argued that because parental rights had not been terminated, it was error to find that the child’s domicile was not that of his parents. The Indian Child Welfare Act (ICWA) was enacted in part to address the failure of non-Indians to understand the concept of “extended family” in Indian society. A parent’s entrustment of an Indian child to a relative or friend is not necessarily abandonment of the child. Here, the Court concluded that the record did not support a finding that the child had been abandoned. Because he was not abandoned, his domicile is the same as his custodial parent, his mother.

On remand, the trial court is to make findings regarding the domicile of mother at the inception of the proceedings. If she was domiciled on the reservation, then the motion to dismiss shall be granted and the proceedings transferred to the Oglala Sioux Tribal Court. If the court determines mother was not domiciled on the reservation, then it may reinstate its order denying the motion to dismiss.

Is a permanency planning hearing a final appealable order?

In People in the Interest of E.C.., 259 P.3d 1272 (Colo.App.Div. 2 2010)

In E.C. father appealed an order allocating parental responsibilities for his daughter to the child’s maternal aunt. In the district court, mother obtained a civil protection order against father, and requested from the district court an allocation of parental responsibilities for the child. Mother and child moved several times, ultimately resuming living with father, notwithstanding the existing protection order. The department filed a dependency and neglect action, requesting custody of the child.

The dependency and neglect court assumed jurisdiction over the child. At the shelter hearing, the parents advised the court that the child possibly had Apache relatives. The child was adjudicated dependent and neglected and treatment plans were approved by the court, requiring, inter alia, that mother and father to participate in treatment. They did not do so and, at a subsequent permanency planning hearing, the dependency and neglect court entered an order allocating to the aunt the parental responsibilities for the child. The case was then transferred back to the district court.

The division concluded that the order allocating parental responsibilities and transfer to the district court constituted a final appealable order because it left nothing further to be done to determine the rights of the parties.

18 H. Jurisdiction

When mother enters a no-fault admission and father prevails at trial, does the court’s limited jurisdiction end?

People in the Interest of A.H., and Concerning G.H., No. 10CA0325. Dependency and Neglect—Jurisdiction—Court-Appointed Counsel.

NOTE: Petition for Writ of Certiori before the Colorado Supreme Court was denied. (No. 11SC413).

In this dependency and neglect (D&N) case, father appealed the judgment of the trial court that declined to return his child to him after he prevailed at his adjudicatory trials on the allegations of the petition, and instead awarded permanent legal custody of the child to his paternal grandfather. The judgment was reversed.

The child was removed from father’s home on January 28, 2008 based upon a report received by El Paso County DHS alleging that father used drugs in the child’s presence and physically abused her. Mother was not able to take the child as she did not have her own residence. Mother entered a no-fault admission. Father entered a general denial to the allegations in the Petition and set the matter for jury trial. Father prevailed at the jury trials.

After the jury trials, the Court removed Father as a party to the case but continued the court’s jurisdiction over mother and the child. The Court based its order on the fact that father did not have “legal custody” of the child prior to DHS involvement. Father later moved to be added as an intervenor for the limited purpose of challenging the court’s subject matter and personal jurisdiction. In a separate motion he asked the court to vacate all orders that were entered after the jury verdicts, arguing that those orders were void for lack of jurisdiction. He also asked the Court to return the child to him and terminate jurisdiction in the case.

Father argued that the trial court exceeded its jurisdiction when it refused to return the child to him after two juries failed to find that the child was dependent and neglected; and effectively forced him to re-enter the case as an intervenor to vindicate his parental rights. The Court found that Mother’s no-fault admission to the D&N allegations was only sufficient to continue the court’s jurisdiction in this matter until father’s rights were determined by the jury. After two juries found that the D&N allegations were not proven by a preponderance of the evidence as to father, the status of the child was not considered “dependent and neglected.” Therefore, the court’s limited jurisdiction over the case ended, and the court was required to order the petition dismissed and the child and father discharged from any previously ordered restrictions. Accordingly, the judgment was reversed and the case was remanded with directions to dismiss the D&N petition. In addition, the order granting permanent custody of the child to the paternal grandfather was

19 vacated and the child and father were discharged from any existing temporary orders.

The Court also ruled that Father was entitled to appointed counsel at both stages of the proceedings. Accordingly, the trial court’s order declining to appoint counsel for father during the remand proceedings and on appeal was reversed and counsel was appointed retroactively.

Does a Rule 3.4(d) notice of appeal without the parent’s signature and without an attorney’s statement that the parent authorized the appeal, invoke the Court of Appeals jurisdiction?

People in the Interest of R.D., and Concerning M.D., 259 P.3d 562 (Colo.App. 2011)

Dependency and Neglect—Ineffective Notice of Appeal Under C.A.R. 3.4(d)— Jurisdiction.

In this dependency and neglect proceeding, mother appealed the trial court’s judgment terminating her parent–child legal relationship with R.D. The appeal was dismissed for lack of jurisdiction.

R.D. was approximately 8 months old when he was removed from mother’s care; therefore, the case fell under the expedited permanency planning statutes. If mother’s parental rights were terminated, the permanency plan was for the maternal grandparents, who had custody of the child, to adopt. On August 30, 2010, mother’s parental rights were terminated in a written order that was served on the parties by mail on September 2, 2010. Based on that date, mother’s notice of appeal was due on or before September 27, 2010.

On October 8, 2010 (eleven days late), mother’s counsel filed a notice of appeal. As good cause for the untimely filing, counsel alleged she had not heard from mother since the termination hearing on August 4, 2010 and needed to confirm that mother intended to appeal, because it would delay the adoption by the grandparents. Counsel attached a certificate documenting her efforts to locate mother.

Rather than ruling on the motion, the Court of Appeals ordered counsel to show cause why the appeal should not be dismissed for failure to secure mother’s signature or specific authorization to appeal. Counsel did not respond, and the appeal was dismissed on January 11, 2011.

On January 19, 2011 (114 days late), mother’s counsel filed a motion requesting the Court to reconsider the dismissal of appeal. The motion stated that mother had contacted counsel on January 3, but did not explain why she failed to contact counsel sooner. Counsel attached an amended notice of appeal with mother’s signature. On April 20, 2011, a motions division of the Court of Appeals granted the

20 motion and noted an opinion would issue in due course. The Court dismissed the appeal for failure to timely appeal.

The Court reviewed C.A.R. 3.4(d) and determined that the initial notice of appeal was noncompliant because it lacked mother’s signature or a statement from counsel that mother had authorized the appeal. The notice therefore was ineffective and did not invoke the Court’s jurisdiction.

The Court then considered whether the amended notice of appeal invoked the Court’s jurisdiction. It concluded that it did not. The delay was attributable solely to mother and no explanation was given for her conduct; therefore, no good cause under either C.A.R. 2 or C.A.R. 26(b) was shown for the untimely filing of the amended notice of appeal.

I. Ineffective Assistance of Counsel

Does a parent have a due process right to counsel in a custody hearing arising out of a D&N? If not, can there be ineffective assistance of counsel for the parent at that custody hearing?

People in the Interest of L.B., and Concerning R.B., 254 P.3d 1203 (Colo.App.Div. 5 2011) Dependency and Neglect—Ineffective Assistance of Counsel.

In this dependency and neglect (D&N) action, mother appealed from the judgment allocating sole physical custody and decision-making responsibility for her child, L.B., jointly to the child’s father and his parents. The judgment was affirmed.

When L.B. was born in 2002, mother and father were married. The parents separated in April 2009 and a dissolution action was filed. Lake County Health and Human Services (Department) opened a voluntary D&N case after receiving reports of domestic violence between mother, who had custody, and her ex-boyfriend. Both parents complied with the voluntary treatment plan and L.B. remained with mother.

In September 2009, the Department filed a D&N petition based on concerns that mother had physically abused L.B. and a report that L.B. had displayed sexualized behavior. Father became L.B.’s primary caretaker and mother received supervised visitation. Father and mother entered no-fault admissions to the petition and the court adjudicated L.B. dependent and neglected and approved treatment plans for both parents.

In January 2010, a decree of dissolution entered. The Department moved for temporary legal custody. At that time all parties agreed that L.B. needed residential treatment. The court ordered L.B.’s placement at a treatment center. In September 2010, the court held a contested permanency planning hearing to allocate parental responsibilities. The court awarded sole physical custody and decision-making

21 authority to father and his parents and allowed mother supervised parenting time every other week.

On appeal, mother argued that she had received ineffective assistance of counsel and that the Court of Appeals should remand the case for further proceedings. The Court held that mother has no right to such relief. As an indigent parent, she had a statutory right to court-appointed counsel at every stage of the D&N proceeding. Where, as here, the state seeks only to award custody of a child to other people instead of terminating parental rights, a parent has no due process right to counsel, because the parent maintains many rights, including the right to petition to regain custody or increase parenting time. Thus, because the right to counsel here is purely statutory, it does not give rise to an ineffective assistance of counsel claim.

The Court also found that despite the lack of specific reasonable efforts and procedural safeguards findings, the trial court record was more than sufficient to support the findings.

J. Appeals

Substitution of Appellate Counsel: Must respondent parent counsel show good cause for substitution of appellate counsel under C.A.R. 3.4(j)(2)?

People in the Interest of C.Z., ___ P.3d ___ (Colo. App. No. 08CA2159, November 24, 2010,

In C.Z. on remand from the supreme court, a division of the court of appeals, applying criminal “good cause” standards, concluded that substitution of counsel was warranted under C.A.R. 3.4(j)(2)(“new counsel may be substituted on a showing of good cause”).

K. Summary Judgment

May a court enter summary judgment as to a termination motion under section 19- 3-604 (1)(b)(III)?

People in the Interest of T.M., 240 P.3d 542 (Colo. App. 2010)

In T.M. the division affirmed a trial court’s order granting summary judgment with respect to a parent who was imprisoned and not eligible for parole for thirty-six months as to a child under the age of six, but reversed a trial court’s order with respect to a child who was over the age of six because the department did not establish his parole eligibility date showing he would be incarcerated for more than six years.

22 II. JUVENILE DELINQUENCY

A. FIFTH AMENDMENT AND DUE PROCESS RIGHTS

In a delinquency matter is a finding of incompetency with a finding of unrestorability a final, appealable order? Does a court’s pre-trial order for a psychosexual evaluation in that circumstance violate the child’s 5th Amendment rights?

People in the Interest of C.Y. 2012 COA 30, 11CA0604 (Feb. 16, 2012)

C.Y. was charged with committing sex-related delinquent acts. The magistrate entered an order that he was incompetent to stand trial and that he could not be restored to competency. As part of the resulting management plan, the magistrate ordered the juvenile to complete a psychosexual evaluation to determine whether he posed a risk to community safety and what steps could be taken to ensure the juvenile’s safety and future development. The District Court reversed the magistrate’s order and ruled that the juvenile was not required to complete the psychosexual evaluation. The People appealed that Order. The Court of Appeals addressed two issues: 1) whether the magistrate’s order violated the juvenile’s 5th Amendment rights and 2) whether the magistrate’s order violated the juvenile’s due process rights?

The juvenile suffered from severe mental and developmental delays that included a serious brain injury. He lives at home and continues to receive extensive therapy and special education. Neither the People nor the Defense contested the result of the competency evaluation that found the juvenile incompetent and not restorable. The psychosexual evaluation was the only contested item in the proposed management plan. C.R.S. Sec. 19-2-1303(3)(b)(V) gives the magistrate discretion to include any remedy found to be appropriate by the magistrate in a management plan. The District Court ruled that the magistrate’s order for the psychosexual evaluation was outside the parameters of that discretion.

The Court of Appeals initially addressed the issue of whether they had jurisdiction to hear the appeal. The argument centered on whether the magistrate’s order was final for purposes of appeal. C.R.S. Secs. 19-1-109(2)(a), 19-2-903(2) gives the prosecution in delinquency cases the same appellate rights as it has in criminal cases. (See C.R.S. Sec 16-12-102.) The Court concluded in an analysis of C.R.S. Sec 19-2-1303(3)(c) that a finding of incompetency in a delinquency case with the added finding that the juvenile cannot be restored to competency places limits on the court’s jurisdiction. Therefore, the Court found that the finding that a juvenile cannot be restored to competency is a final, appealable order. The Court analogized the situation to a situation where an adult defendant is found not guilty by reason of insanity which is considered a final adjudication on the merits. Citing People v. Galves, 955 P.2d 582 (Col. App. 1997), the Court reasoned the order was final even though the Court

23 maintained jurisdiction to resolve issues regarding the juvenile’s placement and treatment.

The Court found that the magistrate’s order did not violate the juvenile’s Fifth Amendment rights. The opinion interprets for the first time, some provisions of Colorado’s statutes that govern the procedures for determining issues of juvenile competency. The Court referred to C.R.S. Sec. 19-2-1305(3) which states that: “evidence obtained during a competency evaluation or during treatment related to the juvenile’s competency or incompetency are not admissible on the issues raised by a plea of not guilty. (Emphasis in original) The Court found that this section of the statute provides the juvenile with immunity that is coextensive with the immunity provided in the Fifth Amendment. The Court also concluded that any statements the juvenile made during the psychosexual evaluation could not be admitted in any criminal matter (including a delinquency case) at any time. The Court found this interpretation of the statute was consistent with legislative intent, with other provisions of the Children’s Code and with existing case law.

The Court next addressed the juvenile’s argument that his due process right to be presumed innocent was violated by the order to complete a psychosexual evaluation. The Court found the order to complete the psychosexual evaluation did not implicate the presumption of innocence as the juvenile would never stand trial on the charges because of the incompetency and non-restorable finding.

III. CONTEMPT

Must domestic relations14–10–128.5 arbitrator awards be affirmed by the court before the award is a “court order” subject to CRCP 107 indirect contempt sanctions?

Re the Marriage of Leverett, 12 COA 69, 10CA1338. April 26, 2012)

Yes. In the Leverett post-decree case the parties arbitrated issues according to 14-10- 128.1 and the arbitrator issued a written decision. No party requested that the court confirm the written order of the arbitrator. Mother brought a contempt citation alleging violation of the “court order.” The magistrate fond the father in indirect contempt of court, later sentenced him, and father applied to the judge timely for review. The judge confirmed the finding of contempt.

The Court of Appeals determined that the written findings of an arbitrator, without confirmation of the court order by a court, is not a “court order” for the purposes of contempt under CRCP 107.

24 IV. CUSTODY AND CHILD SUPPORT

A. Modification of Out of State Child Custody Order

To divest a first state of continuing UCCJEA jurisdiction, the new court must find that no parent “presently resides” in the first state. Is the term “presently resides” the same as ‘currently resides” or “physically present.”?

In re Marriage of Brandt, 2012 CO 3. No. 11SA248, 268 P.3d 406 (Colo. 2012) CRS §§ 14-13-202 and -203—Interpretation of the Term “Presently Reside”— Modification of an Out-of-State Child Custody Order—Uniform Child Custody Jurisdiction and Enforcement Act—Burden of Proof on Party Asserting That the Issuing State Lost Exclusive Continuing Jurisdiction.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides that the issuing state has exclusive continuing jurisdiction over its child custody order until it decides it no longer maintains a significant connection with the child or until it, or another state, makes a determination that the child and the child’s parents do not “presently reside” in the issuing state. Until either occurs, a different state may enforce, but may not modify, the custody order.

The parties in this matter were divorced in Maryland in 2006. Their agreement provided for joint custody with Mother having primary physical custody. At the time of the divorce, Father was an active duty Army member. In 2008, the Army transferred Father to Colorado. The child spent half of the summer of 2009 with Father in Colorado. In 2010, Father retired from the Army but remained in Colorado. Mother was commissioned into the Army in 2009. In March 2009 the Army stationed her in Texas; Mother moved with the child to Texas. The child split the summer of 2009 between Mother in Texas and Father in Colorado. Mother was deployed to Iraq in April 2010 and returned to Texas in October 2010. The parties agreed the child would complete the 2010-11 school year with Father and would then return to live with Mother in Texas. On April 26, 2011 mother received orders to return to Maryland and complete her active duty in a non-deployable position at Fort Meade, Maryland. As planned, the child returned to Mother in May 2011. Mother’s orders were to report to Maryland by August 1, 2011. On May 6, 2011, Father filed a petition in Arapahoe County District Court to register the Maryland custody order pursuant to 14-13-305, C.R.S. (2011)

On May 25, 2011, the Arapahoe County District Court assumed jurisdiction to modify a Maryland child custody order on the ground that neither the child nor the child’s parents currently reside in Maryland.

The Supreme Court disagreed with the trial court’s ruling. The Court notes that under the UCCJEA and pursuant to C.R.S. Sec.14-3-202(1), the state that enters the initial child custody order retains exclusive jurisdiction to modify that order as long as the initial jurisdiction was proper. That exclusive jurisdiction continues unless

25 one of two events occur: 1) the state of exclusive jurisdiction decides that neither a parent nor a child has a “significant connection” to the state; or 2) a court of the issuing state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the issuing state. C.R.S. Sec. 14-1202(10(a)-(b)(2011). It is the second scenario on which the Colorado trial court based their order to assume jurisdiction.

The Supreme Court found that although for the purposes of issuing an initial custody order, a child’s home state may change within the meaning of the UCCJEA, that state may not be divested of exclusive continuing jurisdiction by another state unless no party “presently resides” in that state. The purpose behind this provision is so that parents do not have an incentive to take the child out-of-state to try to secure an advantage in a custody battle.

The Court focuses on an interpretations of the statutory term “presently reside.” The Court concludes that term is not equivalent to “currently reside” or “physical presence,” the two notions on which the trial court based its order assuming jurisdiction to modify Maryland’s child custody decree. Instead, the court’s determination should be based on an inquiry into the totality of the circumstances that make up a person’s permanent home—“domicile”—to which he or she intends to return to and remain. The Court concluded that the appropriate legal standard to be applied in determining whether the issuing state lost exclusive continuing jurisdiction based on non-residency involves application of a totality of the circumstances test. The Court listed a number of factors to be considered in making the residency determination. These factors include but are not limited to: the length and reasons for the parents’ and the child’s absence from the issuing state; their intent in departing from the state and returning to it; reserve and active military assignments affecting one or both parents; where they maintain a home, car, driver’s license, job, professional licensure, and voting registration; where they pay state taxes; the issuing state’s determination of residency based on the facts and the issuing state’s law; and any other circumstances demonstrated by evidence in the case. The party asserting that the issuing state has lost exclusive continuing jurisdiction bears the burden of proof.

The Court stressed the importance of communication between the issuing state and the potential modifying state and the importance of making a complete record with factual findings on the issue of residency. (C.R.S. Sec. 14-13-110 to 14-13-112)

The Court reversed and vacated the district’s court’s order assuming jurisdiction, and remanded the case for further proceedings.

B. Guardians, Special Advocates, and Child Representatives

A fit parent’s delegation of the day-to-day custody of the child to a guardian is presumed to be in the best interest of the minor child, is the fit parent’s

26 determination to end the guardianship presumed to be in the best interest? Is it the parent’s burden to establish best interest? What is the burden of proof?

In the Matter of Minor Child D.I.S., and Sidman v. Sidman, 249 P.3d 775 (Colo. Mar. 21, 2011). CRS § 15-14-204(2)(a)—Guardianship by Parental Consent—Termination of Guardianship—Parental Presumption—Burden of Proof—Troxel v. Granville.

The Supreme Court addressed whether, in seeking to terminate a guardianship established by parental consent, fit parents may invoke the constitutional presumption that they make custodial decisions in the best interests of their child.

D.I.S. was born in 1999. Soon after his birth, mother developed severe post-partum depression that prohibited her from providing care for the child. While father attempted to care for both mother and D.I.S., the situation became untenable. The child was eventually placed in the care of the child’s paternal aunt and uncle (“the guardians”). Father executed a power of attorney to the guardians and signed a letter addressed to the guardians detailing the reasons for placing his child in their care, with the understanding that the guardians would “support [father’s] efforts to visit with and be in D.I.S.’s life and ultimately be reunited with D.I.S. in [the parents’] home.”

Seven months later, the guardians petitioned the El Paso County District Court for guardianship of D.I.S., stating this would enable them to travel out of state with the child as well as provide him with medical insurance, and make emergency medical decisions on his behalf. The parents were reluctant to agree. The parents signed consents to the guardianship, but inserted the word “temporary” in the language granting their consent. The parents also added a provision that explained their preference to extend the power of attorney rather than enter into a guardianship. They added that their consent to the guardianship was based on the assumption that the guardians would support ultimate reunification of D.I.S. with the parents.

In April of 2004, the parents initiated reunification discussions with the guardians. Neither father nor mother had visited D.I.S. frequently in part due to mother’s health and the fact that the parents lived in Massachusetts. Mother’s first visited in June 2004, over three years after the guardians assumed care of D.I.S. Father’s visits were more consistent, occurring approximately two to three times per year. The guardians argued the parents’ inconsistent and infrequent visitation with D.I.S. showed a lack of commitment to their son. Throughout the time he lived with his guardians, the parents provided financially for D.I.S.’s care.

In June 2006, the parents filed a motion to terminate guardianship. Prior to the hearing, the district court magistrate entered two orders. In the first order, dated August 16, 2006, the magistrate ruled that the motion to terminate guardianship would be decided under the best interest of the child standard. The second, dated June 22, 2007, ruled that the parents were not entitled to a presumption that their

27 decisions regarding the custody of D.I.S. were in his best interests, and that the parents lost the right to this presumption when they consented to the placement of the child with the guardians. The order also determined that the parents had to prove by a preponderance of the evidence that termination of guardianship was in the best interests of D.I.S.

A hearing was held on the parent’s motion to terminate guardianship in August 2007, where the court found that mother’s health was stabilized and no longer prevented her from caring for D.I.S. The trial court ruled that, by consenting to the guardianship, parents implicitly lost the constitutional presumption that they make care, custody and control decisions in the best interests of their child, and could not invoke this presumption in seeking to terminate the guardianship.

Relying on Troxel v. Granville 530 U.S. 57, 120 S. Ct. 2054 (2000) and its progeny, the Supreme Court reversed the Court of Appeals and held that, in a guardianship established through parental consent under C.R.S. § 15-14-204(2)(a), parents delegate the day-to-day care, custody, and control of their child to the guardians as provided through the court’s guardianship order. Parents may not interfere with the guardian’s day-to-day decision-making, unless limitations are contained in the order. The Court found that just as the fit parents’ decision to consent to a guardianship is presumed to be in the best interest of the child, their decision to seek termination of the guardianship and regain care, custody, and control of the child is also presumed to be in the best interests of the child, unless the guardianship order contains an express provision limiting the parents from asserting this presumption. If there is no such limitation in the guardianship order, when fit parents seek to terminate the guardianship, the guardians bear the burden of demonstrating by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child.

C. Paternity

The Uniform Parentage Act in Title 19 permits filing of an action “at any time.” May a UPA action be filed to obtain birthing costs while the District Court under the Uniform Dissolution of Marriage Act in Title 14 has continuing jurisdiction with a pending issue of modification of child support?

In re the Parental Responsibilities Concerning G.E.R., 264 P.3d 637 (Colo.App. 2011) September 15, 2011). Allocation of Parental Responsibility – Filing for Paternity under the Uniform Parentage Act (UPA) – C.R.S. § 19-4-109(1)

Mother alleged that she and Father were the natural parents of G.E.R., born out of wedlock. In November 2009, Mother petitioned for allocation of parental responsibilities (APR) and child support under the Uniform Dissolution of Marriage Act (UDMA). The magistrate entered a child support order and determined the allocation of parental responsibilities

In June 2010, Mother moved for a modification of child support and also filed a petition for paternity under the Uniform Parentage Act (UPA), seeking birth-related costs, court costs, and attorney fees, yet she contended that paternity was not an issue and that Father was, in fact, the biological parent to G.E.R. At a hearing on the petition for paternity, the magistrate found that there was no question of paternity, and that, although the UDMA and UPA provided different remedies, the remedies were mutually exclusive and Mother had to elect between pursuing an action under the UDMA or an action under the UPA. Thus, the magistrate dismissed Mother’s petition for paternity.

Mother petitioned for district court review of the magistrate’s order under C.R.M. 7(a) alleging that the magistrate could consider a request for birth-related costs under C.R.S. § 19-4-116 after it had entered orders under the UDMA. The district court adopted the magistrate’s order on the basis that the paternity issue had already been resolved.

The Court of Appeals agreed with Mother's contention that the magistrate erred by concluding that she had to elect between pursuing an action under the UMDA or the UPA and remanded the issue to the district court. The Court found that birth-related costs incurred by Mother could not be awarded as a debt of the marriage under C.R.S. § 14-10-113 because the parties were never married. Thus, to recover birth-related costs, Mother was required to file a petition for paternity under the UPA.

C.R.S. § 19-4-109(1) provides that an action under the UPA may be joined with an action in another court of competent jurisdiction for child support. Here, Mother had a motion for modification of child support pending when she filed her UPA action. Although the better practice would have been to bring both actions simultaneously, and then to consolidate them pursuant to C.R.S. § 19-4-109(1), nevertheless, both actions could have been joined under C.R.S. § 19-4-109(1). Because the UPA provides that a parent may bring an action in paternity “at any time,” Mother was not precluded from seeking birth-related costs under the UPA despite the fact that the father-child relationship was uncontested.

When ex-husband is genetically the father of a child and is presumed to be the father, and boyfriend is on the birth certificate and is presumed to be the father, what is the burden of proof between competing presumptions?

People in the Interest of C.L.S., No. 10CA1980 (Colo. App., November 23, 2011). Statutory Presumptions of Paternity – Preponderance Standard

Mother and Husband were married a short time when son, C.L.S., was conceived. Mother simultaneously had a short, intimate relationship with Boyfriend. Mother filed for dissolution of marriage prior to son’s birth. The dissolution decree, issued after son was born, does not refer to any children. The son’s birth certificate does not list a father.

Mother and Boyfriend began dating three months after son was born. Genetic testing was performed excluding Boyfriend as son’s biological father. Nonetheless, boyfriend acted as son’s father, signed an acknowledgement of paternity, and added his name to the certificate.

Upon ending his relationship with Mother, Boyfriend asked a court to grant him parental responsibilities for the son. The court awarded him parenting time and he paid mother child support. Mother applied to child support enforcement (CSE), which sought an order establishing Husband as the son’s legal father and requiring him to pay regular child support. Genetic testing established a 99.99% probability that husband was son’s biological father. When CSE learned that Boyfriend had signed an acknowledgement that he was the son’s father and that his name was on the birth certificate, it filed an action to determine son’s legal father.

The first step in establishing a father-child relationship is determining whether a man is presumed to be a child’s father. C.R.S. § 19-4-105(1). There are six statutory presumptions.

Two applied to Husband: • § 19-4-105(1)(a) (the man and the child’s mother were married and the child was born during the marriage); and • §19-4-105(1)(f) (genetic tests establish that the probability of a man’s parentage of the child is 97% or higher). Two applied to Boyfriend: • § 19-4-105(1)(d) (the man received the child into his home and openly held the child out as his natural child); and • § 19-4-105(1)(e) (the man acknowledges his paternity in writing, but, if another man is also presumed to be the father, the other man has given written consent to the acknowledgement). No statutory presumption of paternity is conclusive. Once a presumption is established, it may be rebutted by clear and convincing evidence. C.R.S. § 19-4- 105(2)(a). Although Colorado has recognized that evidence must be clear and convincing to rebut any established presumptions of paternity, it has not addressed what burden of proof should be applied to result competing presumptions.

Normally, the burden of proof in civil cases is preponderance of the evidence. C.R.S. § 13-25-127(1). The plain meaning of the language used in C.R.S. § 19-4-105(2)(a), “the weightier considerations of policy and logic,” is consistent with the preponderance standard. By determining which considerations are weightier, a trial court essentially determines which ones are “more probable” to be in the child’s best interests, as opposed to those that are “highly probable.”

The court here held that trial courts should resolve competing presumptions by using the preponderance standard rather than the clear and convincing standard. The

30 legislature has stated generally that the preponderance standard is the burden of proof in civil cases, C.R.S. § 13-25-127(1), and paternity cases are civil cases. By using the word “weightier,” the plain language of section 19-4-105(2)(a) indicates that the preponderance standard applies. Our supreme court and two divisions in this court have stated that the preponderance standard applies to paternity cases. Employing the clear and convincing standard at this point of the decision-making process would make it harder to promote the child’s best interests because this elevated standard of proof would (a) put greater weight on the rights of the presumed fathers than those of the child, when it is the child who has the most at stake in a paternity proceeding; (b) change the focus of the analysis to the interests of the presumed fathers, even though in some cases, the child’s best interests may not match the best interests of any of the adults involved; and (c) make it more difficult to determine which presumed father should become the legal one, lessening the prospect of a workable result.

D. Maternity

Under the Uniform Parentage Act 19-4-105 may a non-birth mother gain the status of a child’s natural mother? Is she eligible for the presumptions just as a father is?

In re the Interest of S.N.V. and Concerning C.A.T.C., No. 10CA1302 (Colo. App., December 22, 2011)

Maternity under § 19-4-105 – Colorado Uniform Parentage Act - § 19-4-125

Two women dispute motherhood; one as the biological mother, while the other claims legal motherhood under presumptions set forth in the Colorado Uniform Parentage Act (UPA).

S.N.V. was born in 2007. He was conceived through sexual intercourse between Birth Mother and Husband. Husband and Wife assert that they arranged with Birth Mother to act as a surrogate, paid for all birth-related expenses, and have been S.N.V.’s sole caregivers since his birth. Birth Mother asserts that S.N.V.’s conception was the result of her intimate relationship with Husband, denies the existence of a surrogacy agreement, and states that she participated in S.N.V.’s care for the first two years of his life.

In 2009, Birth Mother sought allocation of parental responsibilities under C.R.S. § 14- 10-123. Wife filed an action under the UPA to establish that she is S.N.V.’s legal mother under C.R.S. § 19-4-105. Birth Mother moved to dismiss Wife’s petition, arguing that Wife lacks the capacity to bring an action under the UPA. Alternatively, Birth Mother requested summary judgment in her favor because she is undisputedly S.N.V.’s biological mother.

31 The magistrate ruled in favor of Birth Mother and concluded that Birth Mother must prevail as a matter of law because she is the biological mother. The district court affirmed the magistrate’s decision. The Court of Appeals reversed and held that an action to determine legal maternity may be brought by any woman who is presumed to be the child’s mother under C.R.S. § 19-4-105. The Court framed the argument in terms not of Wife’s standing to but of her statutory capacity to seek a declaration of maternity. The matter was remanded to the District Court to determine the mother- child relationship in accordance with the standards set forth in N.A.H.. (See C.L.S. P.3d, 2011 Colo. App. LEXIS 1942, (Colo. App. NO. 10CA1980, Nov. 23, 2011)

The Court of Appeals held that the Supreme Court’s interpretation of the UPA as it applies to paternity actions also applies to maternity actions. The Supreme Court‘s interpretation is that the competing claims of biology and legitimacy must be resolved by focusing on the best interests of the child.

The UPA governs any dispute about the existence of a parent-child-relationship. Although, on its face, section 19-4-105 applies only to paternity determinations, the Court of Appeals held that it is extended to maternity determinations by sections 19- 4-122 and 19-4-125. See § 19-4-122 (“Insofar as practicable, the provisions of [the UPA] applicable to the father and child relationship apply.”); § 19-4-125 (“In case of a maternity suit against a purported mother, where appropriate in the context, the word ‘father’ shall mean ‘mother.’”).

Thus, under C.R.S. Sec. 19-4-105, a woman may gain the status of a child’s natural mother, even if she has no biological tie to the child. A woman’s proof of marriage to the child’s father, or her proof of receiving the child into her home and holding the child out as her own, may also establish the mother-child relationship.

The Court also reiterated that “the statute no longer makes the child an indispensable party to the paternity action and no longer requires either that the child be joined in the action or that a guardian be appointed for the child.” See in re A.D. 240 P. 3d 488, 490 (Colo. App. 2010)

V. ADOPTION

A. Abandonment

In a step-parent adoption, is the birth father’s intention to abandon in the 12 months prior to the filing of the petition for adoption the only issue? If the birth father files a motion for parenting time in the collateral dissolution of marriage action, is that determinative of his intention not to abandon?

D.P.H. v. J.L.B., and Concerning A.B., 260 P.3d 320; 2011 Colo. LEXIS 697 (Colo. Sept. 12, 2011)

32 Abandonment Determination—CRS § 19-15-203—Delay of Adoption Proceeding— Totality of the Circumstances—Parenting-Time Motion.

Stepfather filed a Petition for Adoption with Mother’s written and verified consent. Pursuant to C.R.S. Sec. 19-5-203(1)(d)(II) a child may be available for adoption upon the filing of a written and verified consent of the parent in a stepparent adoption and 1) a showing that the other biological parent has abandoned the child for a period of one year or more or 2) that the other birth parent has failed without cause to provide reasonable support for the child for a year or more.

Here, the trial court found that Father had abandoned the child and as a result the child was available for adoption by the Stepfather. The Court determined that resolution of the abandonment issue should focus on whether the parent’s intent during the twelve months preceding the commencement of the adoption proceeding was to abandon the child. This determination should be made by considering the totality of the circumstances. It is the trial court’s responsibility to consider the totality of the circumstances and to make this factual determination. The trial courts factual findings in this regard should not be disturbed unless clearly erroneous. Here, the evidence before the juvenile court of the father’s intent during the twelve- month period was conflicting. Father had not seen the child since June 2006. The trial court did not find Father credible in his testimony that Mother prevented him from seeing the child. The Supreme Court held that the court of appeals erred in determining that a single act-Father’s filing of a parenting-time motion—precluded a finding of intent to abandon, essentially as a matter of law. The filing of the parenting time motion is one fact for the court to consider in finding whether it was Father’s intent to abandon the child.

Further as long as the trial court adequately considers the parenting-time motion in making its abandonment determination it need not delay adoption proceedings pending resolution of the parenting time motion. Here, the court of appeals erred in holding that the juvenile court should have delayed the adoption proceedings until the father’s parenting-time motion was resolved. The court of appeals’ judgment was reversed and the case was remanded specifically for findings on whether it was father’s intent to abandon the child in the twelve month period immediately preceding the filing of the Petition.

VI. FEDERAL LAW CASES

A. Simultaneous Jurisdiction

The state UCCJEA and the Federal Parental Kidnapping Protection Act (PKPA) require state 2 to give full faith and credit to state 1’s determination of custody if state 1’s determination is in substantial conformity with those acts. If state 1 does not have jurisdiction under its own law to determine custody, must state 2 give full faith and credit?

In re the Parental Responsibilities of L.S. and Concerning McNamara, 257 P.3d 201 (Colo. June 27, 2011).

In this case regarding jurisdiction, Colorado and Nebraska were exercising simultaneous jurisdiction and issuing contrary orders. The child resided with Mother in Colorado.

The Nebraska district court initially entered an order granting custody to father. The Colorado Court reversed and held that Colorado had to accord the Nebraska order full faith and credit even though Nebraska entered the order without having jurisdiction. The Supreme Court reversed the Court of Appeals order.

Parallel federal and state statutes, the PKPA (Parental Kidnapping Protection Act) and the UCCJEA, adopted by both Colorado and Nebraska, govern whether Nebraska had jurisdiction to enter an initial child custody determination and whether Colorado must enforce that determination. The PKPA was enacted by Congress as an addendum to the full faith and credit statute of the U.S. Constitution in order to establish a national standard for the resolution of interstate child custody jurisdictional disputes. The PKPA mandates that when a state enters an initial custody determination, a second state must enforce that determination provided that the first state made the determination in compliance with the PKPA, no other State may exercise concurrent jurisdiction over the custody dispute and all States must accord full faith and credit to the first State’s custody decree. Conversely, if a state court’s custody determination fails to conform to the PKPA’s requirements, then the custody determination is not entitled to full faith and credit. The Colorado General Assembly adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Colo. Rev. Stat. Sec. 14-13-101 in 2000. The purpose of the UCCJEA was to make state law consistent with the provisions of the PKPA. Therefore, Colorado’s statutes regarding jurisdiction over child custody disputes and enforcement of foreign custody decrees are substantively identical to the PKPA.

Colorado statutes mandate that a Colorado court is obligated to enforce the child custody determination of another state when it determines that the sister state made the determination in “substantial conformity” with or under factual circumstances satisfying the jurisdictional requirements of the UCCJEA which is substantively identical to the PKPA.

The PKPA provides that a state’s custody determination is made consistently with the PKPA when: (1) the court of the state has jurisdiction under its own law, and (2) the exercise of jurisdiction meets one of the conditions set out in 28 U.S.C. § 1738A(c)(2).

Nebraska Revised Statutes section 43-1238(a), which sets out requirements for Nebraska to exercise jurisdiction to make an initial custody determination, provides

34 four independent bases for jurisdiction to make an initial child custody determination. Only the first two are relevant here: (1) home state and (2) significant connection.

In order for a Nebraska court to have jurisdiction to make an initial custody determination, the Nebraska court must either be the home state of the child or there must be significant contacts between the child and the state. The home state of the child is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” including a “period of temporary absence.” If Nebraska is not the home state of the child, then it may exercise significant connection jurisdiction “only if”: (1) another state does not have jurisdiction as the child’s home state; or (2) the home state “has declined to exercise jurisdiction on the ground that Nebraska is the more appropriate forum. Here, the Nebraska district court did not have jurisdiction over the custody determination under its own law. The child lived in Colorado with at least one parent for more than six consecutive months. Mother brought the child to Nebraska on vacation, and Father refused to return the child to Colorado. Thus, Colorado, not Nebraska, was the child’s home state. Further, Colorado, as the child’s home state, did not decline jurisdiction on the ground that Nebraska did not have jurisdiction under its own law, the PKPA does not require Colorado to accord the Nebraska custody determination full faith and credit.

The case was remanded to the Court of Appeals to remand to the trial court for proceedings consistent with this opinion.

B. School Interviews

Under what circumstances may the US Supreme Court hear an appeal from a ruling of a circuit court where the circuit court ruling was favorable to the appellant? Does a social worker and sheriff interview of a minor child at school without a warrant or parental consent violate the 4th Amendment prohibiting certain searches and seizures? If so, does that create a cause of action on behalf of the child?

Greene v. Camreta, 563 U.S. ____ (2011). School Interviews – Search and Seizure – Due Process

Nearly a decade ago, Camreta, a state child protective services worker, and petitioner Alford, a county deputy sheriff, interviewed then 9 year old S.G. at her Oregon elementary school about allegations that her father had sexually abused her. They did not have a warrant or parental consent to conduct the interview. S.G. eventually stated that she had been abused. Her father stood trial for that abuse, but the jury failed to reach a verdict and the charges were later dismissed.

35 S.G.'s mother later sued Camreta and Alford on S.G.'s behalf for damages under 42 U.S.C. Sec. 1983, alleging that the in-school interview breached the Fourth Amendment's proscription on unreasonable seizures. The District Court granted Summary Judgment to the officials. The Ninth Circuit Court of Appeals affirmed, but still ruled that seizing S.G. absent a warrant, court order, parental consent, or exigent circumstances violated the Constitution. But the court further held that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct. The court explained that it had chosen to rule on the merits of the constitutional claim so that officials would be on notice that they could not dispense with traditional Fourth Amendment protections in this context. Although the judgment entered was in their favor, Camreta and Alford petitioned the U.S. Supreme Court to review the Ninth Circuit's ruling that their conduct violated the Fourth Amendment. S.G. did not cross-petition for review of the decision that the officials had immunity from damages.

The US Supreme Court held that it could review a lower court's constitutional ruling at the request of government officials who have won final judgment on qualified immunity grounds. But, the USSC held that it was required to dismiss the case because it was moot. S.G. can no longer claim the plaintiff's usual stake in preserving the court's holding because she no longer needs protection from the challenged practice: She has moved to Florida and is almost 18 years old. Thus, the USSC vacated the judgment of the 9th Circuit to prevent an unreviewable decision from producing any legal consequences. The vacatur rightly strips the decision below of its binding effect. Because mootness has frustrated Camreta's ability to challenge the 9th Circuit's ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school, that part of the 9th Circuit's decision must be vacated.

Vacated in part and remanded.

36 HANDOUT 13: RESOURCE BIBLIOGRAPHY

Bibliography

Attorney Directory of Forensic Psychiatrists, http://www.forensicpsychonline.com/online.html Bailie, K. “The Other Neglected Parties in Child Protective Proceedings: Parents in Poverty and the Role of the Lawyers who Represent Them,” 66 FORDHAM L.REV. 2285 (1998).

Barish, N., Juvenile Law Resource Center, Admissibility of Parenting Capacity Evaluations (2009). Budd, K.S., Felix, E.D., Sweet. S.C., Saul, A., & Carleton, R. A., Evaluating Parents in Child Protection Decisions: An Innovative Court-Based Clinic Model, PROFESSIONAL PSYCHOLOGY: RESEARCH AND PRACTICE, 666-75 (Vol. 37 2006).

Budd, K.S., et al, Legal Use of Mental Health Evaluations in Child Protection Proceedings, FAMILY COURT REVIEW, 629-40 (Vol. 42 2004).

Calogero, E. K. “Reasonable Efforts: They Aren’t Just for Funding Anymore.” THE MICHIGAN CHILD WELFARE LAW JOURNAL, 30-42 (Spring 2009).

Child abuse and neglect, in PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR rd MENTAL HEALTH PROFESSIONALS AND LAWYERS (G. B. Melton, et al. eds., 3 Ed., The Guilford Press 2007).

Cohen, J., & Cortese, M., “Cornerstone Advocacy in the First 60 Days: Achieving Safe and Lasting Reunification for Families”, CHILD LAW PRACTICE, 28:3, 37-44 (2009).

Committee on Professional Practice and Standards, Guidelines for Psychological Evaluations in Child Protection Matters, AMERICAN PSYCHOLOGIST, 586 – 93, 1999.

Condie, L.O. PARENTING EVALUATIONS FOR THE COURT: CARE AND PROTECTION MATTERS (Kluwer Academic/Plenum 2003).

Condie, L. O. & Condie. D., “Termination of Parental Rights,” in Forensic Psychology: Emerging topics and expanding roles 294-33 (A. M. Goldstein ed., John Wiley & Sons, Inc. 2003).

Debebe, G. “Cross Cultural Competence and Power-Based Rules: A Native American Case Study.” INTERNATIONAL JOURNAL OF INTERCULTURAL RELATIONS 32:5, 399-414 (2008).

Duquette, D., & Haralambie, A., eds, Child Welfare Law and Practice (Bradford Publishing, 2010, 2nd ed.)

HANDOUT 13: RESOURCE BIBLIOGRAPHY

Haight, W., et al “Understanding and Supporting Parent-Child Relationships During Foster Care Visits: Attachment Theory and Research”, Social Work 48 (2), 2003.

Hanley, J.H. “Beyond the Tip of the Iceberg: Five Stages Toward Cultural Competence” available at http://www.cyc-net.org/reference/refs-culturalcompetence.html.

Haynes, J.P., Parenting Assessment in Abuse, Neglect, and Permanent Wardship Cases, in PRINCIPLES AND PRACTICE OF CHILD AND ADOLESCENT FORENSIC MENTAL HEALTH (American Psychiatric Publishing 2010). Hughes, T., The neglect of children and culture: Responding to child maltreatment with cultural competence and a review of Child abuse and culture: Working with diverse families, FAMILY COURT REVIEW, 501-10 (Vol. 55 2006).

Implicit Association Test, https://implicit.harvard.edu/implicit/demo/

JUDICIAL COUNCIL OF CALIFORNIA/ADMINISTRATIVE OFFICE OF THE COURTS, CALIFORNIA DEPENDENCY GUIDE (2007)

Kuehne, H et al., "Child Protection Evaluations: The Forensic Stepchild", FAMILY AND CONCILIATION COURTS REVIEW, 38:3, 368-391 (2000).

Leathers, S., “Parental Visiting and Family Reunification: Could Inclusive Practice Make a Difference?” Child Welfare 81:4, 595-616 (2002)

NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES, KEY PRINCIPLES FOR PERMANENCY PLANNING FOR CHILDREN (1999).

Native American Rights Fund, “A Practical Guide to the Indian Child Welfare Act” http://www.narf.org/icwa/index.htm (2010). Includes online index of Colorado Cases.

Montoya, M. & Cruz, C.Z., Narrative Braids: Performing Racial Literacy, 33 AM. IND. L. REV. 863 (2010). Otto, R.K. & Edens, J. F., Parenting capacity, in Evaluating competencies: Forensic assessments and instruments, 229-308, (T. Grisso ed., Kluwer Academic/Plenum Publishers, 2nd ed. 2003).

Pope, K, et at, THE MMPI, MMPI-2, AND MMPI-A IN COURT: A PRACTICAL GUIDE FOR EXPERT WITNESSES AND ATTORNEYS (3rd ed. American Psychological Association 2006).

Pozner, L. & Dodd, R. Cross-Examination Skills for Law Students (2009).

Rauber, D. “Working with Parent Partners to Achieve Better Case Outcomes for Families,” CHILD LAW PRACTICE, 28:11 (2010).

HANDOUT 13: RESOURCE BIBLIOGRAPHY

STATE COURT ADMINISTRATIVE OFFICE, CHILD WELFARE SERVICES DIVISION, PARENTS’ ATTORNEY PROTOCOL (2008), available at http://courts.michigan.gov/scao/services/cws/cws.html.

Thornon, E., “Tools for Evaluating Parent Attorney Performance”, CHILD LAW PRACTICE, 29:6 (2010).

U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Court Performance Measures in Abuse and Neglect Cases. 2008.

HANDOUT 4: CHILD WELFARE FLOWCHART

CHILD WELFARE FLOWCHART

Colorado Dependency and Neglect Process

Intake Investigation

Temporary Custody/Initial

Admit Petition Advisement Hearing Deny Petition

Adjudicatory Hearing

Petition Petition Not Sustained Sustained

Case Disposition/ Closed Treatment Plan Team Decision-making Hearing Meetings anytime placement may be changing

Treatment plan Placement adopted: Reviews: Appearance or paper if If no treatment child is home plan adopted, then 30 days to

Permanency

Planning Hearing

Permanent Other Planned Reunite with Termination Placement w/ Permanent Living Family Other Arrangement Custody1 with Social Services for adoption

COURT IMPROVEMENT PROGRAM TRAINING

Building a Defense and Helping Families in the Child Welfare System

A Respondent Parent Counsel Curriculum for Improvement of the Child Welfare System

Building a Defense and Helping Families in the Child Welfare System:

Attorney Training for Respondent Parent Counsel Module 2-Disposition through Termination

      

By: Colene Flynn Robinson Editor: Lauren Dingboom 2010

Court Improvement Program Office of the Colorado State Court Administrator 101 W. Colfax, Suite 500 Denver, CO 80202

TABLE OF CONTENTS

Competencies/Learning Objectives………………………………………………...1

Materials……………………………………………………………………………1

Welcome and Feedback Loop…………..………………………………...………..3

Dispositional Hearing…………...……………………………………………….....4

Dispositional Hearing Exercise….………………………………………………..13

Collaboration vs. Advocacy…………...…………..……………………………...14

Permanency Planning Hearing…………..………………………………………..15

Permanency Planning Hypothetical Exercise…………………………………...... 22

Termination of Parental Rights Hearing…………………………..………………23

Conclusion: How Can I Improve the System? Best Practices…………..…...……33

BUILDING A DEFENSE AND HELPING FAMILIES IN THE CHILD WELFARE SYSTEM CONCLUSION

TABLE OF APPENDICES

PowerPoint Presentation- Overview Disposition to Termination Online

Agenda Handout 1

Evidence and Objections Handout 2

Trial Preparation Handout 3

Annotated Federal Statutes Handout 4

Dispositional Hearing Checklist Handout 5

CORE Services and Funding Handout 6

Treatment Plan for the Tillman Family Handout 7

Collaboration vs. Zealous Advocacy Article Handout 8

Permanency Hearing Checklist Handout 9

Permanency Planning Hypotheticals Handout 10

Termination Hearing Checklist Handout 11

Sample Cross-Examination of Caseworker Handout 12

Chief Justice Directive 04-05 Handout 13

Chief Justice Directive 87-01 Handout 14

Insider’s Guide to Colorado Practice Material Handout 15

Resource Guide Handout 16

Bibliography Handout 17

HANDOUT 1: AGENDA

AGENDA- DAY 2 Respondent Parent Counsel Training Building a Defense and Helping Families in the Child Welfare System

8:30 am – 9:00 am Registration and Breakfast

9:00 am – 9:15 am Welcome and Feedback Loop

9:15 am – 10:20 am Dispositional Hearing PowerPoint Presentation

10:20 am – 10:30 am Break and Networking

10:30 am – 11:30 pm Dispositional Hearing Exercise- Breakout Groups

11:30 am – 12:15 am Collaboration vs. Advocacy Discussion

12:15 pm – 1:15 pm Networking Lunch

1:15 pm – 2:00 pm Permanency Planning Hearings PowerPoint Presentation

2:00 pm – 2:45 pm Permanency Planning Exercise- Breakout Groups

2:45 pm – 3:00 pm Break and Networking

3:00 pm -3:45 pm Termination Hearing PowerPoint Presentation

3:45 pm – 4:30 pm Discussion and Conclusion: How Can I Improve the System? Best Practices?

HANDOUT 2: EVIDENCE AND OBJECTIONS

EVIDENCE AND OBJECTIONS1

1. INTRODUCTION These materials are not intended as a review of the law of evidence, but deal only with specific evidentiary areas that commonly arise. With this in mind, the following materials should help familiarize you with evidence problems and provide a basis for further research. Basic evidentiary sources include the Colorado Rules of Evidence (C.R.E.), found in Volume 12 of the Colorado Revised Statutes, Bailin, et al., COLORADO EVIDENTIARY FOUNDATIONS, and Best, et al, COLORADO EVIDENCE 2004 COURTROOM MANUAL.

2. CHECKLIST OF COMMON OBJECTIONS

a. Objections to the Form of the Question:

i. Ambiguous: The question is vague or is capable of more than one interpretation. ii. Argumentative: Jury argument in the guise of a question. iii. Asked and Answered: Repetitive, unnecessary, and time-consuming. iv. Assumes a Fact Not in Evidence: Exception for hypothetical questions. v. Calls For Narrative Answer: Danger is that witness will stray. vi. Compound: Two or more questions in one. vii. Leading: Generally not permissible on direct; generally allowed on cross. viii. Mischaracterizes the Evidence: Either testimony or an exhibit. ix. Testimony by Counsel: Even cross-examination must be by question

b. Objections to Exhibits:

i. Hearsay: C.R.E. 801 et seq. ii. Insufficient Foundation: C.R.E. 901 et seq. iii. No Authentication: C.R.E. 901 et seq. iv. Not Original Document: C.R.E. 1002 v. Prejudicial and Not Probative: C.R.E. 401, 42 and 403 vi. Reading From Exhibit That Has Not Been Admitted: Foundation first.

c. Objections to Testimony:

i. Calls for Legal Conclusion: Invades the province of the judge. ii. Calls for Conclusion or Speculation by Witness: C.R.E. 602 iii. Examination Outside the Scope of Direct or Cross Examination: C.R.E. 611 iv. Hearsay: C.R.E. 801 et seq. v. Improper Lay Opinion: C.R.E. 701

1 Excerpted from the Criminal Practice Manual, written by Clinical Professors H. Patrick Furman, Robert Dieter, and Ann England, for the Criminal Defense Clinic at the University of Colorado Law School. 1

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vi. Improper Expert Opinion- Foundation: C.R.E. 702 vii. Improper Expert Opinion- Basis of Opinion: C.R.E. 703 viii. Irrelevant: C.R.E. 401 ix. Outside Scope of Witness’ Knowledge: C.R.E. 602 x. Parole Evidence Rule Violated: Admissible if writing is ambiguous. xi. Prejudicial or Inflammatory: C.R.E. 403 xii. Privileged: Codified at C.R.S. 13-90-107 xiii. Remote so Not Probative: C.R.E. 403 xiv. Speculative: C.R.E. 602 xv. Unresponsive: May be made only by examining counsel. xvi. Witness Reading Memoranda: This is hearsay.

3. DEMONSTRATIVE EVIDENCE AND DIAGRAMS

a. Demonstrative Evidence:

Demonstrative evidence depicts something at issue in the case. It is not admissible unless it fairly and accurately portrays or illustrates relevant facts, and helps the jury understand the testimony about those facts. Examples of demonstrative evidence are photographs, diagrams, models, charts, summaries, re-enactments, videotapes, skeletons, sketches, etc. Demonstrative evidence is a distinguished from real evidence in that real evidence is an object which is significant in and of itself, like a bloody shirt in an assault case, a bag of marijuana in a possession case, etc.

b. Diagrams:

Most diagrams are demonstrative evidence. Demonstrative diagrams have no probative value themselves, but serve merely as a visual aid to the jury in comprehending the testimony of a witness. If the diagram has significance beyond this purpose, it is documentary evidence and requires a different foundation.

Admission of diagrams is discretionary with the trial judge. Admissibility is determined by whether the diagram will be helpful or will tend to confuse or mislead the trier of fact. Once the proper foundation is established (i.e., that it is authentic and a true and accurate representation of what the witness is trying to describe), the diagram may be admitted. If it is admissible only as an aid to understanding testimony, the manner in which it was produced is generally of no significance, although you may want to lay this foundation for advocacy reasons. A diagram need not be a perfect recreation of the scene to be admissible.

A diagram should not be shown to the jury until a proper foundation has been established. Likewise, if a diagram is to be used during opening statement, counsel must ask permission of the court and represent that a proper foundation will be laid through a particular witness. There may be times when it is appropriate to stipulate to the admission of such an exhibit; but this is less

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frequently the case when the exhibit is offered as evidence other than for illustrative purposes. If the exhibit is offered only for illustrative purposes, you may want to request a cautionary or limiting instruction to the jury to that effect.

c. Foundations:

The foundation for every exhibit is different.2 What follows is an example of a typical foundation, offered to support the introduction of a drawing of the Pearl Street Mall. The drawing is being used to illustrate the officer’s testimony about where the defendant was found as part of a prosecution of the defendant for violating a court order to stay off of the mall.

i. Are you familiar with the physical layout of the Pearl Street Mall? Yes ii. Where is that mall? In downtown Boulder, Colorado. iii. How is it that you are familiar with the mall? I’ve lived here for over twenty years and that portion of town is also part of my regularly assigned police beat. iv. May I approach the witness? The Court: You may. v. Let me show you what has been marked for identification as Exhibit “A”. Have you had an opportunity to examine it? Yes, I have. vi. What is it? It’s a map or drawing of the mall and the surrounding area. vii. Who created this drawing? I did. viii. When was it created? About an hour ago. ix. Is this drawing a fair and accurate representation of the Pearl Street Mall as it existed on the day you arrested the defendant? I believe so. x. Is this drawing to scale? No, but all the buildings and streets and the like are in the right spots. xi. Would the use of this diagram help the jury understand your testimony? I think it would. xii. Your honor, I offer People’s Exhibit A. xiii. The Court: Any objection, counsel? xiv. Defense counsel: No objection as long as the jury is instructed that the map is being admitted only for the limited purpose of helping explain the testimony and not as an accurate map of the area. xv. The Court: It will be admitted subject to that limitation.

4. SAMPLE EXHIBIT CHECKLIST In re: ______Hearing Type:______Date:______Judge:______NO. DESCRIPTION OFFERED/ADMITTED 1/A 2/B 3/C 4/D

2 See Colorado Evidentiary Foundations, Bailin et al., Chapters 1 and 4. 3

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5/E

5. GENERAL PROCEDURES FOR HANDLING EXHIBITS

a. Mark the Exhibit for Identification:

In courts with a reporter, the actual marking will be done by the reporter. In courts without a reporter (most county and municipal courts) the marking is done by counsel or the court. Exhibits are marked in sequence with either a number or letter of the alphabet, for example: PEOPLE’S EXHIBIT “A” or DEFENDANT’S EXHIBIT “1”. In all subsequent testimony, the Exhibit should be referred to by that designation. Groups of items of a similar nature may be marked and identified collectively as a single exhibit.

To avoid delay and loss of interest by the judge or jury, try to mark exhibits prior to trial, during a recess or all at one time. Exhibit stickers are available from the court or Legal Aid. If the court reporter is marking the exhibits, be sure the reporter has finished marking the exhibit before beginning your examination of the witness.

Some courts are now requiring that as many exhibits as possible be pre-marked and placed into juror notebooks. Only those exhibits that both parties believe will be admitted should be placed in these notebooks.

b. Lay the Proper Foundation With the Witness:

Until admitted, the exhibit should be referred to as “What has been marked for identification as Exhibit A.” Once admitted, the exhibit should thereafter be referred to as “Exhibit A.” Once the exhibit has been marked, counsel should describe it for the record. This description need only be sufficiently detailed to distinguish the exhibit from all other exhibits in the case. As noted, the specific foundation varies according to the exhibit, but all foundations must meet certain requirements:

Relevancy: The exhibit must be relevant and material to an issue in the case, i.e. it must bear upon a fact of consequence to the case. The fact need not be contested.

Authenticity: The exhibit must be clearly identified as to what it purports to be and the exhibit must be authentic, i.e., it must be in fact what it purports to be.

Condition: Physical evidence must be in the same condition as it was at the relevant time and the chain of custody must be established.

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Fairness and/or Accuracy: Photographs, drawings, models and the like must be shown to be fair and accurate representations of what they purport to be. Also, an exhibit may not be prejudicial or inflammatory.

Opposing counsel may ask permission of the court to “voir dire” or to “examine the witness on foundation.” Voir dire is discretionary with the court and is restricted to questions concerning the evidentiary foundation for admissibility or competency of the exhibit, that is, authenticity of a document, chain of custody and the like. Questions directed to the weight to be given the exhibit, once it is admitted as evidence, must be asked during cross-examination.

What follows is a typical foundation for a photograph offered to illustrate the testimony concerning the scene of an alleged assault.

Q: Let the record reflect that I am offering Defendant’s proposed Exhibit 1 to the prosecutor. May I approach the witness? A: The Court: You may. Q: I hand you what has been marked for identification purposes as Defendant’s Exhibit 1. Do you recognize that? A: Yes, I do. Q: What is it? A: It’s a picture of my front yard. Q: What is your address? A: 1920 Ford Avenue, Boulder, Colorado. Q: Are you familiar with that yard? A; Yes, I’ve lived there for three years. Q: Did you live there on the day the assault allegedly occurred? A: Yes, I did. Q: Who took the picture? A: My wife did. Q: When did she take it? A: About an hour after the fight. Q: Is it a fair representation of how your yard looked that day? A: Yes. Q: Your honor, I’d offer Defendant’s Exhibit 1. A: The Court: Any objection? Q: The Prosecutor: May I voir dire the witness, your honor? A: The Court: You may. Q: Did you say that the picture was taken about an hour after the fight? A: Yes. Q: So, it was taken about 7:00 p.m., right? A: That’s right. Q: It was darker at 7:00 p.m. than it was when the fight occurred, wasn’t it.

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A: A little, I suppose. Q: Your honor, I object on the ground that while the photo may show the same area, the difference in the lighting situation will tend to confuse the jury. This photo makes the area seem much darker than it really was at the time of the fight. A: The Court: Any response? A: By Defense Counsel: Your honor, that objection goes to weight, not admissibility. The witness has testified that it is a fair and accurate depiction. A: The Court: I’ll admit it. c. Admit the Exhibit:

The record should clearly reflect that the exhibit has been offered into evidence and the court has either rejected or received the exhibit as evidence. Sometimes the court will reserve a final ruling on admissibility subject to “connecting-up” the exhibit into evidence prior to resting.

Sometimes, counsel may also wish to show or read from the exhibit to the trier of fact. “If the court pleases, may I show Defendant’s Exhibit No. 1 to the jury?” Alternatively, counsel may have copies of an exhibit to pass out to jurors. d. Examine the Witness:

The witness is not allowed to testify concerning contents of the photograph or explain its significance until this foundation has been laid and the exhibit formally offered and admitted into evidence by the court. Only now may the witness describe the yard in detail and relate what is depicted in the photograph to other evidence concerning the assault.

During cross-examination, opposing counsel may repeat some of the foundation questions asked on voir dire, and may now ask the questions going to the importance or meaning of the exhibit. It is completely within the power of the jury to determine what weight, if any, to give this photograph or any other exhibit admitted in the case. e. Juror Notebooks:

All the “paper” exhibits intended on being used at trial can be bound together in a three-ring notebooks or some other method. Each exhibit should be clearly marked with the exhibit number. The jurors will be able to refer to this copy in the jury room during deliberations. Juror notebooks may also be used during trial so the jurors may refer to an exhibit when it is admitted into evidence.

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6. “GUT-CHECK GUIDE” TO EVIDENTIARY FOUNDATIONS3

a. Some General Observations:

Trials are adversarial forums where parties attempt to establish facts and recreate a past event or circumstance. Parties do this by presenting testimonial evidence through witnesses or by introducing documentary, real or demonstrative evidence.

The purpose of a trial is to ascertain the truth. Although the rules of evidence are designed to facilitate the ascertainment of the truth, sometimes the rules sacrifice the ascertainment of truth to uphold special societal values (See Rules 407-411; 501).

b. Evidence Must be Relevant:

“Relevance” is a necessary condition of admissibility with respect to all evidence. Colorado Rules of Evidence 401 and 402. Evidence is relevant if, as a matter of logic, experience, and accepted assumptions concerning human behavior, it possesses “any” tendency to make the existence or “non-existence” of a fact that is of consequence to the determination of an action more or less probable than it would be without the evidence.

c. Foundations for Evidence:

The proponent of the evidence has the burden of showing that the evidence is admissible. C.R.E. 901(a).

Although leading questions may be used to establish a foundation, is counsel in fact testifying?

An opponent can ask questions to show that the evidence does not satisfy the requirements of admissibility. This “voir dire” or questioning in aid of making an objection is distinct from the right to cross-examine on the evidence as to weight and credibility. C.R.E. 104 (e).

Foundation is a matter of law. C.R.E. 104(a). Simply stated, “foundation” is all the various components of admissibility. The court must conclude that the foundation which is offered is sufficient to permit a reasonable juror to find that the evidence in question is what its proponent claims it is and otherwise satisfies the rules of evidence. If upon consideration of the evidence, its authenticity and the challenge by the opponent, as a whole, the court determines that the evidence is sufficient to support a finding by a reasonable juror that the matter in question is what its proponent claims, the evidence will be admitted. All that is required is a prima facie showing on this threshold question. The ultimate decision is with

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the jury to decide whether or not to rely on the evidence and they are so instructed - the “Weight” vs. “Admissibility” question. Proof of authenticity may be direct or circumstantial. The proponent need only establish a rational basis from which the jury may conclude that the evidence is what it purports to be.

d. Evidence Must be More Probative Than Prejudicial:

C.R.E. 403 almost always overrides all the other rules. Even if an exhibit is properly authenticated, or fair and accurate, or otherwise admissible, if the court determines that the probative value is significantly outweighed by the danger of unfair prejudice, a waste of time, confusion of the jury, etc., the Court may exclude the exhibit pursuant to C.R.E 403. e. What Kind of Evidence is This? The Four Categories:

i. Is This Testimonial evidence?

Relevance: C.R.E. 401. Does the testimony have some rational tendency to prove or disprove a fact in issue?

Personal Knowledge: C.R.E. 602. Where is this person getting this information? Unless the person is an expert, the witness must be testifying from his own observations and sensory perceptions.

Opinions: C.R.E. 701 and 702. Is the witness stating opinions or facts? Is the witness testifying to something that requires special knowledge, skill, experience, training or education? If so, the witness needs to be qualified as an expert.

Hearsay: C.R.E. Art. 8. Is the statement which this witness is testifying to or about a statement made while the declarant was testifying at a trial or other hearing? If not, and if the content of the statement is being offered to prove the truth of the matter asserted by the declarant in the statement, the testimony is hearsay and an exception is required. The usual exceptions to hearsay are:

1. It’s not hearsay because it’s not offered for the truth. 2. If offered for the truth, the statement reveals the speakers state of mind. C.R.E. 803 (3).

Privilege: C.R.E. 501; § C.R.S. 13-90-107. Is the testimony a privileged communication?

Competency: C.R.E. 601 and 104(a). Is the witness competent?

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Character Evidence: C.R.E. 404, 405, 607, 608 & 609. Is this evidence about a person’s behavior on a prior occasion? Such testimony is inadmissible under C.R.E. 404 unless it is about a conviction for a crime (C.R.S. §13 -90-101 and F.R.E. 609), it bears on a witness’ truthfulness (C.R.E. 608), it concerns an ultimate issue in the case (C.R.E. 608), and it is offered for some other purpose than to show that a person acted in conformity with the behavior on that other occasion (C.R.E. 404b). In criminal trials, it may also be admissible character evidence if it is appropriately at issue and is about the victim (C.R.E. 404(a)(1)) or the defendant (C.R.E. 404(a)(2)).

Habit or Routine Practice: C.R.E. 406. This is not character evidence and is admissible to prove that the person acted in conformity with his or her habit.

ii. Is This Demonstrative Evidence?

Relevance : C.R.E. 401. What does this stuff demonstrate and how does this tend to prove or disprove something of consequence in this case?

Authentication: C.R.E. 901(a). Is this a fair and accurate representation of what it is supposed to demonstrate? Will it help the witness testify in a way that the jury will better understand the testimony? Remember, the purpose of a trial is to ascertain the TRUTH and a jury is not helped to ascertain the truth by misleading demonstrative evidence. iii. Is This “Real” Evidence?

Relevance: C.R.E. 401. What is this “thing”? If this is the “very thing,” it is relevant because of what it is. If it is not the “very thing,” it is irrelevant (unless it is perhaps demonstrative evidence).

Authentication: C.R.E. 901(a). How does the witness know this “thing” is what he says? What is the basis for identification?

Chain of custody: Is this something that, if tampered with, its relevance would change? Is its present condition in court the same or different from its condition at the relevant time? iv. Is This “Documentary” Evidence?

Relevance: C.R.E. 401. What fact of consequence to the determination of this case does this document tend to make more or less probable than it would be without it?

Authentication: C.R.E. 901(a). Is this document genuine, i.e., how do we know it is what it purports to be? Unless the document is self-authenticating

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under C.R.E. 902, a live witness must authenticate it. Self-authenticating documents are documents which in the normal course of events are unlikely to be forged or fraudulent, are presumed to be authentic and do not require extrinsic foundational evidence. Is this document generated by a process? If so, a witness must authenticate the process. C.R.E. 901(b)(9).

Hearsay: C.R.E. 801 – 807. Documents are out-of-court written statements and generally hearsay. The usual exceptions for documents are C.R.E. 803 (6) and (8). The theory of reliability under C.R.E. 803(6) is based on two circumstances: necessity and inherent reliability. Therefore, was this document generated under circumstances which indicate a lack of trustworthiness?

Original Document Rule: C.R.E. Art. 10. Is the document being offered to prove the truth of its contents? If so, the original document or an acceptable substitute therefore must be produced.

7. MAKING OBJECTIONS

As a general proposition, an objection must be both timely and adequately specific. C.R.E.103(a).4 The failure to make an objection that is both timely and appropriately specific may waive any objection to the evidence on appeal.

To make an objection, counsel should stand and state “Objection,” and then state the grounds for the objection. For example: “Objection, your honor, that question calls for hearsay.”

Generally, counsel should state all of the alternative grounds that counsel considers appropriate. It is important to express yourself completely prior to the Court’s ruling because once a judge has ruled, it is uncommon for the court to change a ruling. Of equal importance is the fact that a ground for an objection that is not raised to the trial court will generally not be considered on appeal. On the other hand, a ground for admissibility that was not argued by counsel or considered by the trial court may be considered on appeal under the harmless error doctrine.

Counsel should wait until opposing counsel has completed the question before objecting. The final portion of a question may render it unobjectionable. An exception to this rule exists when the question itself is objectionable, such as if counsel starts to ask a leading question about a topic that the court has already declared inadmissible.

4 See also “Courtroom Objections” by Jamison & Multz, Vol. 9 The Colorado Lawyer, pages 1768-84 (September 1980). 10

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Counsel should not proceed until the court has ruled on the objection. It may be necessary at times to call to the court’s attention that, in all the excitement and argument about the objection, the court has not yet ruled on the objection.

Watch for counsel who attempt to testify themselves or to make a speech while making an objection. An example of a speaking objection is, “Your honor, I object to that leading question. If counsel wants to testify, counsel ought to get up on the witness stand and take the oath like every other witness.” The Court generally disfavors these sorts of objections, although they may be appropriate if the objectionable question is particularly egregious or outrageous or if counsel is making the same objectionable question repeatedly.

The response to an objection should be equally succinct. For instance, “Your honor, the statement is not hearsay because we are offering the statement only to show the effect it had on the listener, not for its truth.” However, a speaking response may be appropriate if the objection is to relevance. Counsel may well be entitled to make a ‘mini-closing’ to show the court the relevance of the testimony being adduced.

Sometimes, a continuing objection is in order. For example, counsel has begun a series of questions concerning a certain matter of a witness, which opposing counsel finds objectionable and interposes an objection to question #1 of the series and is overruled. He objects again to questions #2 and #3 and is again unsuccessful. At this point he realizes the futility of continuing to object again and again and so he requests the Court to entertain his continuing objection to all of the remaining questions in the series. This simply means that he is asking the Court to consider each of the remaining questions as though each had been objected to as before and said objections overruled as before. This may make sense if counsel believes the entire subject is covered by a privilege; it makes less sense when the objection is relevancy, because relevancy is often determined on a question by question basis.

The phrase ‘same objection’ may be appropriate when counsel asks a question, opposing counsel objects, the Court rules on the objection and counsel then asks another question that is objectionable on the same ground. It is not unusual for counsel to try to re-phrase a question only slightly in an effort to avoid an objection, but to fail in this effort. It is not unheard of for counsel to ask the same question again, hoping that opposing counsel is not paying attention. Rather than stating the word objection and then the grounds again, opposing counsel simply says, “Same objection.”

If the argument about an objection is likely to be lengthy or to contain references to evidence that has not yet been deemed admissible, it may be necessary to approach the bench. The court may hear argument at the bench, outside the hearing of the jury, or may send the jury out of the courtroom. In either event, make sure that a proper record is made of what occurs and whether it occurs within, or out of, the hearing of the jury.

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Keep in mind that your witness’ only defense to mistreatment by opposing counsel’s cross-examination is your objection; thus, protect your witness. Judges will sometimes rule erroneously, so move on, and note it for appeal. Objections are sometimes used by opposing counsel to break your train of thought or to discourage your pursuit of a certain line of questioning; do not let them rattle you.

Everyone makes mistakes. If you ask an objectionable question, admit it and tell the court you will re-phrase it. This helps your credibility with both the court and the jury (as long as it does not occur too frequently). Similarly, if you do not wish to argue an objection, you may render your question a nullity by simply saying, “I will withdraw the question.” An objection may similarly be withdrawn. Remember, never ask a question you know to be objectionable.5

Objections need not be limited to the questions of counsel and the answers of witnesses. Counsel can object to questions, statements, or conduct on the part of anyone in the courtroom (including the judge or clerk or audience) that counsel believes to be improper.

8. OFFER OF PROOF

“. . . [H]e who would obtain reversal of a judgment because of the exclusion of evidence offered by him must in connection therewith make a timely and adequate offer of proof.”6

a. General:

When, after objection by opposing counsel, the court precludes or excludes evidence or testimony of a witness, it is often necessary to make an offer of proof. C.R.E. 103(a)(2). An offer of proof has two purposes: (1) to better inform the court so that its ultimate ruling is based upon a complete understanding of the entire matter, and (2) to make an adequate record for appeal so that the reviewing court can determine if the exclusion of evidence, if error, is prejudicial or harmless.

An offer of proof is made, ordinarily, by stating to the court: (1) what the testimony of the witness would be if permitted to answer the question, (2) the purpose and object of the testimony sought to be introduced; and, (3) all facts necessary to establish its admissibility, including relevancy to the case. Id. An offer of proof is not required where relevancy and materiality of the answer (to a proper question) is apparent from the context of the question itself.7

5 C.R.P.C. 3.1 6 Denver Decorators Inc. v. Twin Teepee Inc., 163 Colo. 343, 349, 431 P.2d 8 (1967)(emphasis added). 7 Wooten v. Byers School District No. 320, 156 Colo. 89, 396 P.2d 964 (1964); Buckstaff v. Russell, 151 U.S. 626, 14 S.Ct. 448, 38 L.Ed. 292 (1894). 12

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An offer of proof is inadequate if the witness is not present and ready to testify.8

b. On Cross-Examination:

Ordinarily, offers of proof are not required on cross-examination, but where it does not appear what benefit would be obtained from the use of evidence which counsel attempts to introduce on cross-examination, the reviewing court is unable to determine in what way exclusion of the evidence was prejudicial.9

c. Challenge to a Witness:

When an objection to a witness is that he or she is incompetent to testify, counsel should make an offer of proof showing that the witness is competent or otherwise within an enumerated exception to the disqualifying section of the statute.10

d. Series of Offers:

Consider making a series of offers as to specific points. In this way, failure to make a sufficient offer as to one point (which would negate the entire offer) will not necessarily result in a loss of the entire offer. Note that counsel must also get a separate ruling as to each phase of the series.11

e. How to Make an Offer:

Question and Answer Method: Ask the witness questions and have the witness testify directly outside the presence of the jury as follows:

“May it please the Court, as this time I wish to make an offer of proof outside the presence of the jury” (Jury removed). “I wish to make an offer of proof by the witness, Sally Smith, in question and answer form” (Proceed with examining the witness).

Narrative method: Have counsel recite the anticipated testimony into the record outside the presence of the jury. The recital must state specific facts, not conclusions.

“May it please the Court, I wish to make an offer of proof in narrative form. The defendant offers to prove by the witness, Sally Smith, and she will testify, if permitted, that on the morning of January 20, 1980, she was at the plaintiff’s place of business located at 12 Elm Street in Boulder, Colorado;

8 Johnston v. Johnston, 123 Colo. 28, 224 P.2d 949 (1950). 9 Rhodig v. Cummings, 160 Colo. 499, 418 P.2d 521 (1966). 10 Parker v. Hilliard, 106 Colo. 187, 102 P.2d 734 (1940). 11 See Operative Service Corp. v. McIntyre Pump Co., 85 Colo. 519, 277 P. 773 (1929). 13

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that the plaintiff, Fred Jones, and John Jones, the plaintiff’s partner were present at that time …”

Written Statement of Testimony: Counsel can attempt to introduce a written statement, preferably signed by the witness, setting forth the expected testimony. The document should be marked as an exhibit and introduced into the record for appeal.

An offer of proof as to real evidence generally consists simply of marking the item for identification and introducing it as an exhibit for the record on appeal. Be certain the foundation is complete.

References include: C.R.E. 103, 104; Colorado Digest, Trials, Key 45-49; 75 Am. Jur., Trials § 128 et seq.; and 89 A.L.R.2d 279

9. PHOTOGRAPHS

a. General:

A photograph is admissible in evidence on the same basis as a map or diagram to illustrate or explain the testimony of a witness.12 The modern trend also recognizes that in a proper case, once admitted, the photograph has probative value as direct evidence itself.13

Some useful references are: Scott, Photographic Evidence-Preparation and Presentation (2nd Ed. 1968); C.R.E. 1001 et seq. and Photographs as Evidence, 9 AM. Jur. POF 147.

b. Admissibility and Authenticity:

A photograph is admissible when it is shown that it is a correct likeness of the persons or objects which it purports to represent, and that fact may be shown by the person who made it or by another competent person.14

Photographs are admissible into evidence when shown to be a true and correct representation of the object, person or site depicted.15 C.R.E. 901(a) & (b)(1). Photographs are not admissible if the objects have been posed or arranged in a material fashion which distorts the scene, although the trier of fact can be cautioned about the changes and the photograph admitted.16 If conditions have

12 Reed v. Davidson Dairy Co., 97 Colo. 462 (1935). 13 U.S. v. Taylor, 530 F.2d 639 (5th Cir. 1976). 14 Mow v. People, 31 Colo. 72 P. 1069, 351 (1903); accord, Kortz v. Guardian Life Ins. Co. of America, 144 F.2d 676 (10 Cir. 1944). 15 Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). See generally 9 ALR 2d. 899. 16 Green v. Denver, 111 Colo. 390, 142 P.2d 277 (1943); Reed v. Davidson Dairy Co., supra. 14

HANDOUT 2: EVIDENCE AND OBJECTIONS

been slightly changed, the photograph can be admitted at the court’s discretion if it is shown to be a correct likeness in all other respects for which it is offered.17

Generally, any occurrence witness, party, or other competent witness can verify the photograph and it is unnecessary to authenticate the photograph through the person who took the picture and developed it unless the correctness of the photograph is in issue.18 Of course, it must be shown that the verifying witness has personal knowledge about the person, object or scene depicted. The sufficiency of the verification is a preliminary question of fact to be decided by the trial judge.19 Generally, a chain of custody need not be shown as a condition of admissibility, although counsel may wish to lay such a foundation for advocacy purposes.

c. Relevancy:

The subject matter represented by the photograph must relate to some pertinent fact in issue and the photograph must tend to prove or disprove a disputed or material issue in the case; otherwise, the photograph is irrelevant and inadmissible.

Some general tests of relevancy are:

i. The photograph tends to prove or disprove some disputed or material fact in issue in the case.20 ii. The photograph assists the trier of fact in understanding the case and is not misleading or confusing. iii. The photograph corroborates oral testimony or other evidence.21 iv. The photograph contradicts or impeaches a witness.22 v. The photograph assists in illustrating or explaining the testimony of a witness.23

Even though relevant and having probative value, a photograph may be inadmissible because it is of such a character as to deliberately inflame or excite the passions and prejudices of the jury.24

d. Discretion of the Trial Judge:

17 Id. 18 Dolan v. Mitchell, supra. 19 Wold v. City of Boulder, 91 Colo. 44, 9 P.2d 931 (1932); Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970). 20 Dolan v. Mitchell, supra. 21 Maynes v. People, 119 Colo. 149, 200 P.2d 915 (1948); DeSalvo v. People, 98 Colo. 368, 56 P.2d 28 (1936); Ferguson v. Hartford Ins. Co., 2 Colo. 507, 290 P.2d 229 (1955). 22 Burr v. Green Bros. Sheet Metal Inc., 159 Colo. 25, 409 P.2d 511 (1966). 23 Claxton v. People, 164 Colo. 283, 434 P.2d 407 (1967). 24 Archina v. People, 5 Colo. 8, 307 P.2d 1083 (1957)(morgue photographs). See Martinez v. People, 124 Colo. 170, 235 P.2d 810 (1951). 15

HANDOUT 2: EVIDENCE AND OBJECTIONS

As a general rule, the admission or rejection of photographic evidence is a matter that rests within the sound discretion of the trial judge.25 The trial judge’s ruling will not be reversed on appeal unless a prejudicial abuse of discretion is shown.26 It is an abuse of discretion not to receive relevant photographs into evidence.27

The fact that the photograph is cumulative to oral testimony is not a good ground for objection.28 The attempted introduction of a number of photographs that depict the same scene, particularly if that scene is gruesome, may be grounds for keeping out some of the photographs.

e. Making the Record:

When referring to photographs during the trial, be certain you refer to them by exhibit number. When a witness uses a photograph to point out places or objects, be careful to make the record reflect precisely what the witness is indicating.

f. Getting the Photograph into Evidence:

A verifying witness (photographic qualifications, familiarity with scene as it appeared on the date in question) and the foundation identifying the subject matter of the picture as a fair representation are necessary to get the photograph into evidence.

Q. Are you familiar with the intersection of 12th and Elm Streets in Boulder, Colorado, as the intersection existed on January 19,1980? Yes Q. I hand you what has been previously marked for identification as Defendant’s Exhibit 3, and ask you if you can identify it? I can. Q. What is it? It’s a photo of that intersection. Q. Does the photograph fairly represent the condition of the intersection of 12th and Elm Streets in Boulder, Colorado, as it existed on January 19,1980? It does. Q. Would this photograph assist you in explaining your testimony to the jury? It would. Q. I offer Defendant’s Exhibit 3 into evidence.

25 Reed v. Davidson, supra; Potts v. People, supra; Stout v. People, 464 P.2d 872, 171 Colo. 142 (1970). 26 Stout v. People, supra; People v. Hosier, 186 Colo. 116 525 P.2d 116 (1974). 27 People v. Murata, 161 Cal. App.2d 369, 326 P.2d 947 (1958). 28 Potts v. People, 114 Colo. 259, 159 P.2d 912 (1945); Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970); Dolan v. Mitchell, supra. 16

HANDOUT 3: TRIAL PREPARATION

TRIAL PREPARATION HANDOUT29

TRIAL PREPARATION: 1. Subpoena Witnesses 2. Subpoena Duces Tecum (documents) 3. Prepare Trial Notebook - General--Research/Strategy - Voir Dire/Jury List - Pretrial Matters - Opening Statement - Exhibits/Discovery/Reports - Cross-Examination of Department Witnesses - Motion to Dismiss/Directed verdict - Respondent’s Case - Closing Argument - Jury Instructions - Miscellaneous/Things To Do 4. Prepare Respondent’s Witnesses and Respondent

TRIAL PREPARATION CHECKLIST:

You are now in the process of preparing for trial. If your case does proceed to trial, you can expect to spend 30-40 hours on trial preparation.

Motions:

Motion to Dismiss, Grounds______Motion in Limine, Grounds and Evidence______Motion for Discovery Motion for Written Interrogatories Motion for Expert Assistance if at Termination Other______

Witnesses:

List all witnesses whose names appear anywhere in the social services reports or whom you intend to call. Attach a witness interview form for each.

29 Excerpted from the Criminal Practice Manual, written by Clinical Professors H. Patrick Furman, Robert Dieter, and Ann England, for the University of Colorado Criminal Defense Clinic. 1

HANDOUT 3: TRIAL PREPARATION

Respondent Witnesses Written Name & Address Interviewed Statement Subpoenaed a. ______b. ______c. ______d. ______e. ______

Petitioner’s Witnesses Written Name & Address Interviewed Statement Subpoenaed a. ______b. ______c. ______d. ______e. ______

Fact Investigation: Indicate the date each task performed and who performed it, if applicable. ______Obtained discovery ______Inspected scene ______Photographed scene ______Diagrammed scene ______Re-enacted events ______Explored possible defense ______Obtained all reports (e.g., accident/medical/alcohol treatment reports) ______Obtained and reviewed client’s criminal/traffic record ______Scientific testing/retesting performed ______Other______

HANDOUT 3: TRIAL PREPARATION

Theory of Defense: a. My theory of defense is:______

b. Organizing the defense theory for trial: Brainstormed Rough Draft Final Draft Closing ______Motions ______Voir Dire ______Objections ______Instructions ______Witness (a) ______Witness (b) ______Witness (c) ______Witness (d) ______Witness (e) ______

c. Trial notebook prepared with sections for: 1. Things to do ______2. Pretrial matters______Motions filed______3. Legal issues ______Motions filed______4. Voir dire ______5. Opening ______6. Each witness ______7. Motion for directed verdict______8. Instructions ______Prepared (2 copies)______9. Closing ______10. Exhibits ______Marked______

HANDOUT 3: TRIAL PREPARATION

Things To Do: 1. Factual investigation - What still needs to be done? ______2. Legal Investigation - What still needs to be researched/ developed? ______3. Transcripts: Motions Trial Other Requested ______Obtained ______Copied ______Indexed ______Motion to Incur Costs for Preparing Transcript at State Expense: Prepared______Filed ______Granted/Denied by Judge ______4. Have you: Reviewed audio ( ) video ( ) tapes on voir dire? Observed an actual voir dire? Made clean copies of all reports? Done sample direct and cross with client? Discussed physical appearance with client? Discussed physical appearance with each witness? Prepared for disposition, in case you lose?

Final Efforts To Resolve Case: Final effort to resolve case with county attorney. Final effort to resolve case with client.

HANDOUT 4: ANNOTATED FEDERAL STATUTES

ANNOTATED FEDERAL STATUTES30

30 Modified from Child Welfare Information Gateway, http://library.childwelfare.gov 1

HANDOUT 4: ANNOTATED FEDERAL STATUTES

Fostering Connections to Success and Increasing Adoptions Act of 2008: 110 P.L. 351; 122 Stat. 3949; 2008 Enacted H.R. 6893; 110 Enacted H.R. 6893.

This Act amends Title IV-E to permit states to claim federal reimbursement for part of the cost of providing kinship guardianship assistance to relatives who become legal guardians of children who have been in foster care. The Act also amends Title IV-B to authorize Family Connection Grants for support of kinship navigator programs and other services to help children in, or at risk of entering, foster care to reconnect with family members. It provides or revises requirements for case-by-case waiver of licensing standards for relatives; adoptive or guardianship placement for children older than age 18; a transition plan for children aging out of foster care; short-term training for child welfare agencies, relative guardians, and court personnel; educational stability of the child while in foster care; ongoing oversight and coordination of health care services for any child in a foster care placement; placement of siblings in the same foster care, kinship guardianship, or adoptive placement; foster care and tribal programs operated by Indian tribal organizations; and adoption of children with special needs.

Child and Family Services Improvement Act of 2006 : Public Law 109-288 : S. 3525

This Act reauthorizes the Promoting Safe and Stable Families (PSSF) program through FY2011, and increases set-asides for Indian tribes. The Act reserves funds for States to develop activities designed to improve caseworker retention, recruitment, training, and ability to access the benefits of technology, as well as to support monthly caseworker visits to children in foster care.

Safe and Timely Interstate Placement of Foster Children Act of 2006 : Public Law 109-239 : H.R. 5403

This requires each state plan for foster care and adoption assistance to provide that the state shall have procedures for orderly and timely interstate placement of children; complete home studies requested by another state within a specified period; and accept home studies received from another state. Commonly referred to as the ICPC.

Adoption Promotion Act of 2003 : Public Law 108-145 : H.R. 3182

This reauthorizes the adoption incentive program under Title IV-E; provides additional incentives for adoption of older children (age 9 and older) from foster care.

Foster Care Independence Act of 1999 : Public Law 106-169 : H.R. 3443

HANDOUT 4: ANNOTATED FEDERAL STATUTES

This Act amends Title IV-E of the Social Security Act to provide states with more funding and greater flexibility in carrying out programs designed to help children make the transition from foster care to self-sufficiency. Adoption and Safe Families Act of 1997 : Public Law 105-89 : H.R. 867

ASFA seeks to promote the safety, permanency and well-being of children in foster care; accelerate the permanent placement of children in care; and increase the accountability of the child welfare system.

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 : Public Law 104- 193: H.R. 3734.

This Act limits eligibility for federal foster care and adoption assistance payments to children in families that would have been eligible for Aid to Families with Dependent Children (AFDC). It requires states to consider giving preference to adult relatives over non- relative caregivers when choosing a placement for a child [Note: The AFDC program was replaced by Temporary Assistance for Needy Families (TANF)].

Multi-Ethnic Placement Act of 1994: Public Law 103-382

This Act prohibits states from making foster care or adoption placements based on matching the race, color, or national origin of the prospective parents and child. It also requires states to actively recruit potential adoptive and foster parents who reflect the race, color, and national origin of the children in its foster care population.

Adoption Assistance and Child Welfare Act of 1980 : Public Law 96-272

This authorized appropriations for adoption and foster care assistance to the states. It required states to provide adoption assistance to parents who adopt a child who is AFDC- eligible and is a child with special needs. For foster care assistance, states are required to make reasonable efforts to prevent placement or to reunify children with their families.

Indian Child Welfare Act : Public Law 95-608 : S. 1214

ICWA established standards for the placement of Indian child in foster or adoptive homes and to prevent the breakup of Indian families. It was enacted in 1978.

Child Abuse Prevention and Treatment Act : Public Law 93-247 : S. 1191

HANDOUT 4: ANNOTATED FEDERAL STATUTES

Enacted in 1974, it established the National Center on Child Abuse and Neglect; authorized funding for fiscal years 1974 through 1977 for demonstration projects on the prevention, identification, and treatment of child abuse and neglect.

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)

The UCCJEA governs which state has jurisdiction over the individuals. The Act outlines the two most relevant jurisdictional options for our cases. The most relevant options are emergency jurisdiction and home state jurisdiction. Emergency jurisdiction allows a court to make findings and enter orders necessary to protect a child on an emergency basis when a child is located in that state. The home state is where the child has lived for least 6 consecutive months before the proceedings.

The process of UCCJEA: The UCCJEA provides for inter-court communication and allows courts to coordinate evidentiary hearings in both states.

HANDOUT 5: DISPOSITIONAL HEARING CHECKLIST

DISPOSITIONAL HEARING CHECKLIST31

BEFORE:

 Review the treatment plan. Is it reasonable and calculated for success? o Are services culturally appropriate? o Are services geared to the needs of the parent and children? o Are services available in parent’s first language? o Can services be consolidated? o How far and how often is parent being asked to travel? o Are any additional services needed?  Re-interview client and strategize regarding desires and position on the following: o Treatment plan recommendations o Placement (with client, previously noncustodial parent, relative, current caretaker) o Need for services, and whether services are reasonably tailored to client’s needs o Ability to substantially comply with treatment plan within allotted time o Visitation with client, siblings, grandparents, and others o Availability of a visitation supervisor: friend, family, church member, co-worker, other o Ability to be involved in child’s life through attendance at school events, doctor appointments, or other similar events. Identify events and activities o Assess client’s support system  Assess and formulate positions on the following: o Current safety risk to child if in custody of one or both parents o What can be done to prevent/eliminate need for removal (changes in living environment, services), or to facilitate return home.  Individualized services needed for family and children. (C.R.S. §19-1-107 (2.5) for possible services in EPP cases)  Provide client copy of treatment plan  Review the need for expert testimony  Review client’s compliance with interim services and get updates from service providers.  Consider filing motions such as: change of placement, submission of letters from service providers, evaluations, increase visitation, decrease substance abuse monitoring, need for inpatient treatment, sibling visitation or reunification, explore kinship placement, interpreter services.

31 See, Judicial Council of California/Administrative Office of the Courts, California Dependency Guide (2007), C. Robinson, “Case Assessment and Planning” in Child Welfare Law and Practice, 715-29 (Donald Duquette et al. eds., 2010) , J. Cohen and M. Cortese, “Cornerstone Advocacy in the First 60 days: Achieving Safe and Lasting Reunification for Families”, 28 Child Law Practice 3, 2009, and National Council of Juvenile and Family Court Judges, Improving Court Practice in Child Abuse and Neglect Cases, 1995.

HANDOUT 5: DISPOSITIONAL HEARING CHECKLIST

DURING

 Advocate positions identified above in keeping with any additional evidence received.  Request appropriate orders such as: o Case plan specific to the family and children o Special services (i.e., foreign language, geographical concerns) o Protective order under C.R.S. § 19-3-207 (2) to protect statements made during the course of treatment from being used against the respondent  Present evidence as to client’s compliance with interim treatment plan orders, or changed circumstances.  Ensure court addresses: o Placement o Services o Visitation with client, siblings, grandparents, and other appropriate persons . Advocate for visits outside of the agency – agency visits do not fairly depict family functioning o Whether the department has made reasonable efforts to prevent or eliminate the need for removal o Setting the next hearing

AFTER

 Develop timeline of important dates and calendar reminders.  Discuss with client how to keep track of important dates.  Ask Caseworker to provide you with a written copy of service referrals.  Consult with client to explain court rulings and answer questions.  Discuss interim objectives with client (when should services have begun, when should visitation increase, etc.), and instruct client to contact you when appropriate.  File necessary forms/motions if pursuing appeal.

HANDOUT 6: CORE SERVICES AND FUNDING

CORE SERVICES AND FUNDING

Core Services: Detailed Descriptions and Local Availability32

Home-Based Intervention:

Home Based Intervention services are provided primarily in the home of the client and include therapeutic, concrete, and collateral services as well as crisis intervention, depending on the needs of the child and family. Studies have shown that certain home-based interventions provided by nurse practitioners (e.g., Nurse-Family Partnerships, The Family Connections Project) have a positive effect on child abuse and neglect cases and future child behavior problems (WSIPP, 2007). In addition, emerging evidence indicates that these kinds of programs are also effective in preventing or reducing involvement in the child welfare system (WSIPP, 2008). Intensive Family Preservation services (in-home crisis intervention services) have been shown to prevent or reduce child welfare involvement (WSIPP, 2008).Two counties (Eagle and Pitkin) reported that they do not have home-based intervention services available. One county (Boulder) noted that they would like to expand capacity of home based teams to provide immediate family coaching services in order to prevent most out of home placements.

Intensive Family Therapy:

Intensive Family Therapy programs typically involve intervention with all family members and aim to improve family communication, functioning and relationships. Some specific intensive family therapy programs (such as Multisystemic Therapy and Functional Family Therapy [FFT])have been shown to be effective in reducing family problems, juvenile delinquency, and substance use and have also been shown to be cost-effective (Washington State Institute for Public Policy, 2007). Studies are currently underway regarding the effects of Multisystemic Therapy on subsequent child abuse and neglect. Another family therapy program, Parent–Child Interaction Therapy, has been shown to be cost-effective in preventing or reducing child welfare involvement (WSIPP, 2008).

Life Skills:

Life Skills programs are generally provided in the home and teach household management, accessing community resources, parenting techniques, and family conflict management. Life skills training is a component in many successful child welfare programs, including various nurse home-visitation programs and the Triple-P Positive Parenting Program (WSIPP, 2008).

Day Treatment:

32 Modified from Core Services Evaluation Annual Report 2008-2009. Available online at: http://www.cdhs.state.co.us/childwelfare/PDFs/Core_Services_Program_Evaluation_Annual_Report_SFY_2008- 2009_9-29-09_Signed_Full_Final.pdf

HANDOUT 6: CORE SERVICES AND FUNDING

Day Treatment programs are comprehensive, highly structured services that provide education to children and therapy to children and their families. One example is the Chicago Child Parent Centers program, which provides a government-paid pre-school and kindergarten program that also provides parenting assistance and helps involve parents in their child’s learning. The program has shown promising child safety, permanency, and well-being outcomes and has been identified as a cost-effective program in preventing or reducing involvement with the child welfare system.

Forty percent of counties (26 counties) reported no day treatment services were available for children. However, in addition to the 44 counties that reported having day treatment programs, three counties indicated they provide day treatment alternatives in their county designed services. Another county reported that funds are set aside in case day treatment is needed, but there is not a local program available. For many of the Western Slope rural counties, Colorado West Mental Health has a day treatment program (which has been described as “well developed”) that is utilized by multiple counties.

Sexual Abuse Treatment:

Sexual Abuse Treatment refers to therapeutic intervention designed to address issues and behaviors related to sexual abuse victimization, sexual dysfunction, sexual abuse perpetration, and prevention of further sexual abuse and victimization.

Mental Health Services:

Mental Health Services include diagnostic and/or therapeutic services to assist in the development of the family services plan, and to assess and/or improve family communication, functioning and relationships. Because this category is broad in the types of services included, it is difficult to make comparisons with evidence based practices. However, one county did report that parenting skills training and home visitation (two strategies generally proven effective) were included in mental health services.

No counties reported that mental health services were not available to children and families. Many contract for these services through their local community mental health center or regional Behavioral Health Organization (BHO), or participate in a multiple county contract for services. One rural county reported that there is a gap in service because the BHO services do not meet local needs.

Substance Abuse Treatment Services:

Substance Abuse Treatment Services include diagnostic and therapeutic services to assist in the development of the family services plan, to assess and/or improve family communication, functioning and relationships, and to prevent further abuse of drugs or alcohol. One substance abuse-focused program, the Family Treatment Drug Court in California, has shown positive effects in reducing child abuse, the number of OOH placements, and permanent OOH placement (WSIPP, 2008). All but two counties (Eagle and Gunnison) reported that substance abuse treatment services were available in their

HANDOUT 6: CORE SERVICES AND FUNDING

counties. Nearly all counties (97%) provide substance abuse treatment services to children and families. Many rural counties provide shared services, in multi-county plans or through their regional MHSA.

County Designed Services:

County Designed Services are provided as part of the Core Services Program and are designed by counties to meet specific local needs. Nearly three-fourths (74%) of the counties reported using county designed services to meet the needs of children and families in their communities.

As mentioned in the discussion of day treatment programs, many counties use county designed programs to provide more locally appropriate services for children who would otherwise receive traditional day treatment. In addition, county designed services often include evidence based practices such as mentoring, Multisystemic Therapy, Functional Family Therapy (FFT), Parents as Teachers, Family Treatment Drug Court, Dialectic Behavior Therapy (DBT), Wraparound, and nurse home visitation programs.

County designed services are also used to serve populations who may not benefit from traditional treatment or therapy programs. For example, three (3) counties have implemented play therapy programs for young children who do not yet possess the verbal or reasoning skills needed for traditional therapy approaches. Several counties have implemented programs targeting adolescents. Examples include a mini-bike program in Larimer County where riding time on mini-bikes is used as an incentive for teenagers; a youth-centered permanency program in Arapahoe County that focuses on preparing young adults for emancipation; and a Dialectical Behavioral Treatment program designed specifically for adolescents and created as a regional county designed program in La Plata, San Juan, Montezuma, Archuleta and Dolores counties. The table below shows county designed services as listed in each individual county Core Services plan. Programs highlighted in bold font are established evidence based programs (EBP) that have been proven to be effective either in reducing family involvement with the child welfare system or in reducing child problem behaviors. Programs highlighted with italics either share program features with a named EBP but have not necessarily been specifically named as effective programs, or have been documented as promising or research based programs in the core services plans submitted to Child Welfare. Please note that these classifications are based on information provided in county Family Preservation/Core Services Commission Reports. Additional programs in this list may be based on EBPs, but were not classified as such due to lack of information. For example, some programs were listed by the name used locally without description of the service.

County Designed Programs:

County Service Type on Core Plan

Adams Supervised Therapeutic Visitation Service Youth Intervention Program

HANDOUT 6: CORE SERVICES AND FUNDING

Alamosa Discovery Group Family Decision Making Conferences Intensive Mentoring Program Arapahoe Multisystemic Therapy- Synergy Multisystemic Therapy- Savio Direct Link program Family Group Conferencing (Youth Centered Permanency, LINKS) Archuleta Intermediate/Middle School/High School Responsibility/Mentoring Baca None Bent None Boulder Adoption Counseling Community Evaluation Team (CET) Family Group Decision making Broomfield Day treatment alternative Multisystemic Therapy Chaffee Chaffee County Mentoring Youth at Crossroads Cheyenne None Clear Creek None Conejos Intensive Mentoring Costilla Intensive Mentoring Project Crowley None Custer None Delta Mentoring Multisystemic Therapy – Local modification called Family Intervention Team Day Treatment Alternative Denver Emerson Street School – alternative school Multisystemic Therapy Savio Direct Link Program Denver Effect/Family Outreach Domestic Violence Intervention Team Decision Making Supervised Visitation Dolores Day Treatment Alternative Douglas None Eagle None Elbert Multisystemic Therapy Family Coaching/Youth Mentoring Youth Mentoring El Paso Mediation Services Nurturing Program Day Treatment Alternative Domestic Violence Functional Family Therapy Multisystemic Therapy Fremont Day Treatment Alternative

HANDOUT 6: CORE SERVICES AND FUNDING

Family Group Conferencing Adolescent Support Group Functional Family Therapy Parenting Skills Supervised Visitation Family Treatment Drug Court Nurturing Foster Care Support Group Garfield Adolescent Mediation Gilpin None Grand Day Treatment Alternative Parent Child Visitation Parenting Time/Supervision Gunnison Therapeutic Mentoring Hinsdale Therapeutic Mentoring Huerfano Reconnecting Youth Jackson Day Treatment Alternative Jefferson Multisystemic Therapy Team Decision Making Kiowa None Kit Carson Functional Family Therapy Lake Intensive Family Therapy (IFT)/School Partnership La Plata Play Therapy Multisystemic Therapy Adolescent Dialectical Behavioral Treatment (DBT) Larimer Foster Care/Kin/Adoption Support Groups Multisystemic Therapy National Youth Project Using Mini-Bikes (NYPUM) Functional Family Therapy (FFT) Parent Child Conflict Mediation Family Options 1 – Family Safety and Resource Team Family Options 2 – Family Unity Meetings Family Options 3 – Family Group Conferencing Substance Abuse Petty Offenders Youth Intervention Program Youth Services Nurturing Program - Life Nurse Visiting Program Community Based Family Services and Support Child Mentoring and Family Support Las Animas None Lincoln Family Group Conference Foster Care\Adoption Support Program Logan Play Therapy Mesa Structured/Supervised Parenting Time Day Treatment to Adolescents Rapid Response Moffat Day Treatment Alternative

HANDOUT 6: CORE SERVICES AND FUNDING

Mineral None Montezuma Day Treatment Alternative Adolescent Dialectical Behavioral Treatment (DBT) Montrose Promoting Healthy Adolescents Trends PHAT Morgan Structured Parenting Time Day Treatment Alternative Family Group Decision Making Otero Play Therapy Ouray/San Miguel Day Treatment Alternative Park None Phillips None Pitkin None Prowers None Pueblo Visitation Center For Keeps Program Rio Blanco Day Treatment Alternative Rio Grande/Mineral None Routt Day Treatment Alternative Saguache None San Juan Multisystemic Therapy Adolescent Dialectical Behavioral Treatment (DBT) Sedgwick None Summit Youth Outreach /Mediation Day Treatment Alternative Mentor Supported Substance Abuse Treatment for Adolescents Multisystemic Therapy Team Decision Making Teller Multisystemic Therapy Washington Foster Care/Adoption Intervention Weld Teamwork, Innovation, Growth, Hope and Training (TIGHT) Multisystemic Therapy Foster Parent Consultation Functional Family Therapy Yuma None Southern Ute Multisystemic Therapy Indian Tribe

Sources of Additional Funds Identified in Core Services Commission Reports:

• Health Care Policy and Finance (HFPF) • Additional Case Management Fund • Asset Forfeiture Dollars • Catholic Charities • Child Development Service Fund • County Governments

HANDOUT 6: CORE SERVICES AND FUNDING

• Division of Behavioral Health-Additional Family Services (AFS) • Excess IV-E Funding • Family to Family • Fund Raisers • Grants • Access to Recovery • Child Welfare Block Grant • Federal Grants • Gates Foundation • Local grants • VALE Grants • Healthier Communities Fund • House Bill 1414 • House Bill 1451 • Judicial Districts • Local Boards of Cooperative Education • Local Departments of Public Health • Local Mental Health Centers • Local Nonprofit Organizations • Local School Districts • Medicaid covered services • Parent Fees • Promoting Safe and Stable Families • Senate Bill 94 • Southern Ute Community Action Program • Special Property Tax • Temporary Assistance to Needy Families/Colorado Works

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

TREATMENT PLAN FOR THE TILLMAN FAMILY

INSTRUCTIONS:

Read the proposed treatment plan below. The individuals addressed in the treatment plan are different than those used in Module 1 of the RPC training. In order to simplify for the treatment plan hearing, only two children, Derek and Mary Ann are addressed. Additionally, only one father, Derek Latham is addressed. Furthermore, here they are placed with Jennifer Tillman, the maternal grandmother. The mother’s sister, Monica is no longer involved.

Assume you represent either respondent mother, Tonia Tillman, or respondent father, Derek Latham, Sr. While reading, consider a theory of the case for disposition. What elements of the treatment plan, if any, will you oppose, and how? Will you contest the treatment plan and set it for a contested hearing? Why or why not? Assuming you are setting for a contested hearing, what will your evidence be at the hearing? What arguments will you make? Prepare preliminary direct or cross examinations for your contested hearing. Spend 15 minutes reading the treatment plan and preparing, and we will spend 15 minutes discussing the different courses of action.

ADDITIONAL FACTS:

Ms. Tillman has made all of her visits, and the case aide tells you that she is a wonderful mother and there are no safety concerns during her visits. The maternal grandmother (MGM) is willing to supervise visits, and she wants Tonia to come live with her and the children to help take care of the children.

Tonia reports she has been so sad and crying all the time because her children are not with her. She says she has not been doing any drugs, but she has been missing appointments because she is overwhelmed and lacks motivation and energy. She wants her children returned today.

Derek Sr. reports that his visits are great, he is employed and has a suitable home. He does not know why the kids are not being placed with him. No one has been to his home. He has contacted a day care, has identified a pediatrician, and is ready to start parenting the kids today.

FAMILY SERVICES PLAN

PART 1: FAMILY INFORMATION Court Case#: 2009-JV-000 Hearing Type: Dispositional Date/Time: 11/20/20__ at 2:00 ______FAMILY MEMBERS

Name: LATHAM, DEREK LAMONTE DOB: 1/17/1972 Relationship: Father of DEREK L. LATHAM Employer/School: Comcast

Name: TILLMAN, TONIA

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

DOB: 10/28/1973 Relationship: Mother Employer/School: Unemployed Everest College

Name: LATHAM, DEREK LAMONTE DOB: 4/13/1996 Relationship: subject child Employer/School: Granite Middle School

Name: TILLMAN, MARY ANN DOB: 8/11/2004 Relationship: subject child Employer/School: ______OTHERS INVOLVED

Provider: Jennifer Tillman, Special Respondent

Family Assessment Update

Current Custody Update: The children remain placed with Jennifer Tillman the maternal grandmother.

Current Situation: Ms. Tillman continues to visit the children as ordered from the visitation hearing. The visits with her son, Derek, are cordial, and Derek is pleasant and talks about school and sports. They have no problem ending the visit. Ms. Tillman has attended all visits. Mary Ann often cries during visits, and is resistive to attending and ending the visits. The case aide has intervened and given mother feedback on visits. However, Ms. Tillman seems to forget the feedback during the next visit.

Ms. Tillman has completed her initial intake for drug and alcohol treatment. Outpatient groups and individual treatment are recommended, as well as UA monitoring. Mother has had a difficult start to treatment, often forgetting or not understanding what she is expected to do. Ms. Tillman is also struggling with employment.

Mr. Latham continues to visit with Derek. The visits are a good example of positive interaction. Mr. Latham helps with homework and the two of them often play football or baseball in the park. Mr. Latham completed his intake for domestic violence treatment and the provider recommended no treatment.

Mary Ann has stabilized in her grandmother's care although she often has outbursts surrounding the visits. Mary Ann is enrolled in school, but she often has difficulty paying attention and often progresses up the sanction system frequently missing recess.

Derek is enrolled and attends school regularly. He is easily distracted and reports that he finds school boring.

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

As to ICWA, the tribe has responded and stated that the children are not eligible for enrollment.

OBJECTIVE #1: Ms. Tillman will maintain a sober lifestyle by complying with substance abuse and mental health treatment recommendations. ACTION STEPS: A. Ms. Tillman will participate in an intake as scheduled by the MHC and other treatment providers to include individual therapy and psychiatric services. B. Ms. Tillman will abstain from alcohol and illegal drug use. C. Ms. Tillman will participate in UA's as recommended by DHS and/or substance abuse treatment providers. 1. Any missed/failure to show for a UA on the date and time scheduled will be measured as positive. 2. Any failure to produce a UA will be measured as positive. 3. Any flushed or altered UA will be measured as positive. D. Ms. Tillman will not decrease or stop her monitoring or treatment modalities without the written approval of the treatment providers. E. Increasing visits will depend on her compliance with treatment plan. MEASUREMENT OF SUCCESS: Ms. Tillman will work with the MHC as scheduled and structured by the providers with 100% compliance. Ms. Tillman will make progress in her treatment goals as evidenced through her improvement in her adult functioning. Her treatment providers will report that she is making progress in her treatment goals. Ms. Tillman will participate with UA's as recommended by DHS with 100% compliance. Ms. Tillman will abstain from alcohol and illegal drug use, with 100% compliance. Ms. Tillman will not decrease or stop her monitoring or treatment modalities without the written approval of the treatment providers, with 100% compliance.

OBJECTIVE #2: Ms. Tillman will maintain her relationship with her children, Derek and Mary Ann.

ACTION STEPS: A. Ms. Tillman will participate in supervised visits with Derek and Mary Ann each week, as scheduled and structured by DHS and the GAL. B. Ms. Tillman will show up on time for her visits. Visits will be cancelled 15 minutes after start time if Ms. Tillman has not arrived for the visit. C. The visits can be increased, decreased, altered to become unsupervised or supervised at the discretion of the caseworker and GAL as assessed to be in the best interest of the child. D. Ms. Tillman will take the feedback given during visitation and utilize that feedback throughout her future visits. MEASUREMENT OF SUCCESS: Ms. Tillman will participate in supervised visits with her children at DHS each week, as scheduled and structured by DHS and the GAL with 100% compliance. Ms. Tillman will show up on time for her visits. Visits will be cancelled 15 minutes after start time if Ms, Tillman has not arrived for the visit. 3

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

OBJECTIVE #3: Ms. Tillman will stabilize her lifestyle and improve her adult functioning in order to appropriately parent her children.

ACTION STEPS: A. Ms. Tillman will have no further law violations. B. Ms. Tillman will obtain and maintain employment to demonstrate the ability to financially support herself and her children. C. Ms. Tillman will ensure that her children receive the appropriate medical attention and that she has Medicaid or medical insurance. D. Ms. Tillman will have all of her children available at least once a month for their face to face contact with their DHS caseworker. MEASUREMENT OF SUCCESS: Ms. Tillman will have no further law violations. Ms. Tillman will demonstrate the ability to financially support herself and her children by working with 100% compliance. Ms. Tillman will ensure that her children are covered by insurance or Medicaid when she is the primary caregiver for the children, with 100% compliance. Ms. Tillman will ensure that her children receive the appropriate medical attention when they are in her care, with 100% compliance. Ms. Tillman will ensure that her children receive the appropriate supervision, food, clothing and shelter when she is in her care, with 100% compliance. Ms. Tillman will provide a nurturing, safe and developmentally appropriate environment that encourages her children to, thrive and grow when she is in her care, with 100% compliance.

OBJECTIVE #4: Ms. Tillman will obtain and maintain safe and stable housing.

ACTION STEPS: A. Ms. Tillman will obtain and maintain housing. B. Ms. Tillman will allow DHS access to her home so that the safety and appropriateness of Ms. Tillman' home can be assessed on a regular basis and she will follow all recommendations from DHS around creating a safe home environment. C. If Ms. Tillman chooses to have roommates, those roommates will complete a background check through DHS prior to them moving into the home. D. Ms. Tillman will notify the caseworker in writing within two business days of any change of address, phone number or household composition. E. Ms. Tillman will maintain a home environment free from alcohol, illegal drugs and violence. MEASUREMENT OF SUCCESS: Ms. Tillman will obtain and maintain affordable housing, with 100% compliance. DHS will assess the safety and appropriateness of Ms. Tillman' home on a regular basis and she will follow all recommendations from DHS around creating a safe home environment, with 100% compliance. If Ms. Tillman chooses to have roommates, those roommates will complete a background check through DHS with 100% compliance. Ms. Tillman will notify the caseworker in writing within two business days of any change of address or household composition, with 100% compliance. Ms. Tillman will maintain a home environment free from alcohol, illegal drugs and violence, with 100% compliance. 4

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

OBJECTIVE #5: Ms. Tillman will allow monitoring of the treatment plan progress.

ACTION STEPS: A. Ms. Tillman will contact the caseworker once per month to go over treatment plan progress. B. Ms. Tillman will allow unannounced home visits by the caseworker and Guardian ad litem. C. Ms. Tillman will sign all requested releases of information in order to monitor progress of the treatment plan and to gather necessary information. MEASUREMENT OF SUCCESS: Ms. Tillman will contact the caseworker once per month to go over treatment plan progress, with 100% compliance. Ms. Tillman will allow unannounced home visits by the caseworker, with 100% compliance. Ms. Tillman will sign all requested releases of information, with 100% compliance.

OBJECTIVE #6: Ms. Tillman will work to enhance her ability to parent.

ACTION STEPS: A. Ms. Tillman will participate in parenting classes through a DHS provider. B. Ms. Tillman will implement parenting techniques in her interactions with her children. MEASUREMENT OF SUCCESS: Ms. Tillman will participate in parenting classes with 100% of attendance. She will implement parenting techniques' so as to better parent her children.

FAMILY SERVICES PLAN PART 3A: TREATMENT PLAN

FOR PARENT: Derek Latham Sr.

OBJECTIVE #1: Mr. Latham will stabilize his lifestyle and improve his adult functioning in order to appropriately parent his children.

ACTION STEPS: A. Mr. Latham will maintain employment to demonstrate the ability to financially support himself and his child. B. Mr. Latham will ensure that the child receives the appropriate medical and dental attention when they are in his care and that they have Medicaid or medical insurance. C. Mr. Latham will ensure that the child's emotional, physical, educational and developmental needs are appropriately met when he is in his care. MEASUREMENT OF SUCCESS: Mr. Latham will maintain employment to demonstrate the ability to financially support himself and his children. Mr. Latham will ensure that the children are covered by insurance or Medicaid, with 100% compliance. Mr. Latham will ensure that the

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY children receive the appropriate medical and dental attention when they are in his care, with 100% compliance. Mr. Latham will ensure that the children receive the appropriate supervision, food, clothing and shelter when they are in his care, with 100% compliance.

OBJECTIVE #2: Mr. Latham will obtain and maintain safe and stable housing. ACTION STEPS: A. Mr. Latham will obtain and/or maintain safe and affordable housing. B. Mr. Latham will allow DHS access so that the safety and appropriateness of his home can be assessed on a regular basis and he will follow all recommendations from DHS around creating a safe home environment. C. If Mr. Latham chooses to have roommates, those roommates will complete a background check through DHS prior to any placement or visitation of the child in his home. D. Mr. Latham will notify the caseworker in writing within two business days of any change of address or household composition. E. Mr. Latham will maintain a home environment free from alcohol, illegal drugs and violence. F. Mr. Latham will participate in a Domestic Violence assessment and follow any treatment recommendations. MEASUREMENT OF SUCCESS: Mr. Latham will obtain and maintain affordable housing, with 100% compliance. DHS will assess the safety and appropriateness of Mr. Latham' home on a regular basis and he will follow all recommendations from DHS around creating a safe home environment, with 100% compliance. If Mr. Latham chooses to have roommates, those roommates will complete a background check through DHS with 100% compliance. Mr. Latham will notify the caseworker in writing within two business days of any change of address or household composition, with 100% compliance. Mr. Latham will maintain a home environment free from alcohol, illegal drugs and violence, with 100% compliance.

OBJECTIVE #3: Mr. Latham will allow monitoring of the treatment plan progress. ACTION STEPS: A. Mr. Latham will contact the caseworker once per month to go over treatment plan progress. B. Mr. Latham will allow unannounced home visits by the caseworker. C. Mr. Latham will sign all requested releases of information in order to monitor progress of the treatment plan and to gather necessary information. MEASUREMENT OF SUCCESS: Mr. Latham will contact the caseworker once per month to go over treatment plan progress, with 100% compliance. Mr. Latham will allow unannounced home visits by the caseworker, with 100% compliance. Mr. Latham will sign all requested releases of information, with 100% compliance.

OBJECTIVE #4: Mr. Latham will maintain his relationship with his son, Derek.

ACTION STEPS:

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

A. Mr. Latham will participate in supervised visits with Derek each week, as scheduled and structured by DHS and the GAL. B. Mr. Latham will show up on time for his visits. Visits will be cancelled 15 minutes after start time if Mr. Latham has not arrived for the visit. C. The visits can be increased, decreased, altered to become unsupervised or supervised at the discretion of the caseworker and GAL as assessed to be in the best interest of the child. MEASUREMENT OF SUCCESS: Mr. Latham will participate in supervised visits with his son and step son each week, as scheduled and structured by DHS and the GAL with 100% compliance. Mr. Latham will show up on time for his visits.

OBJECTIVE #5: Mr. Latham will work to enhance his ability to parent.

ACTION STEPS: A. Mr. Latham will participate in parenting classes through a DHS provider. B. Mr. Latham will implement parenting techniques in his interactions with his child. MEASUREMENT OF SUCCESS: Mr. Latham will participate in parenting classes with 100% of attendance. He will implement parenting techniques' so as to better parent his child.

OBJECTIVE #6: Mr. Latham will maintain a sober lifestyle by complying with substance abuse and mental health treatment recommendations.

ACTION STEPS: A. Mr. Latham will participate in an intake as scheduled by the MHC and other treatment providers to include individual therapy and psychiatric services. B. Mr. Latham will abstain from alcohol and illegal drug use. C. Mr. Latham will participate in UA's as recommended by DHS and/or substance abuse treatment providers. 1. Any missed/failure to show for a UA on the date and time scheduled will be measured as positive. 2. Any failure to produce a UA will be measured as positive. 3. Any flushed or altered UA will be measured as positive. D. Mr. Latham will not decrease or stop her monitoring or treatment modalities without the written approval of the treatment providers. E. Increasing visits will depend on his compliance with treatment plan. MEASUREMENT OF SUCCESS: Mr. Latham will work with the MHC as scheduled and structured by the providers with 100% compliance. Mr. Latham will make progress in her treatment goals as evidenced through her improvement in her adult functioning. His treatment providers will report that she is making progress in his treatment goals. Mr. Latham will participate with UA's as recommended by DHS with 100% compliance. Mr. Latham will abstain from alcohol and illegal drug use, with 100% compliance. Mr. Latham will not decrease or stop his monitoring or treatment modalities without the written approval of the treatment providers, with 100% compliance.

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

FOR CHILD: Mary Ann Tillman

Permanency Goal: Date Set: Target Date:

Alternative Permanency Goal:

OBJECTIVE #1:Mary Ann Tillman's medical, physical, emotional, and developmental needs will be met by her caregivers.

ACTION STEPS: A. Mary Ann will attend all needed medical and dental appointments. She will have all of her immunizations and well-child check-ups in a timely manner. B. Mary Ann will receive the appropriate education and special services that are recommended by the school system or other professionals. 1. Mary Ann should be evaluated for speech and developmental issues to determine her need for specialized services. 2. If specialized services to address speech and other developmental issues are identified, Mary Ann should participate in services to address those needs. C. Mary Ann will attend school regularly to address her educational and emotional needs. She will have no unexcused absences and arrive on time every day. D. Mary Ann will not be exposed to acts of violence. If she is, she will be removed from the home again. E. Mary Ann will not be exposed to alcohol or illegal drugs. MEASUREMENT OF SUCCESS: Mary Ann will attend all needed medical and dental appointments and she will have all of her immunizations and well child check-ups in a timely manner, with 100% compliance. Mary Ann will receive the appropriate education and special services that are recommended by the school system or other professionals, with 100% compliance. Mary Ann will attend school regularly, have no unexcused absences, and be at school on time with 100% compliance. DHS will receive no confirmed reports that Mary Ann has been exposed to acts of violence or illegal drugs, with 100% compliance.

OBJECTIVE #2: Mary Ann will maintain the parent/child and sibling relationships.

ACTION STEPS: A. Mary Ann will be made available to participate in supervised visits each week with her mother and siblings, as scheduled and structured by DHS and the GAL. B. Once her father is located and it is determined to be in her best interest to develop a relationship with her father, Mary Ann will be made available to participate in supervised visits with her father, as scheduled and structured by DHS and the GAL. MEASUREMENT OF SUCCESS: Mary Ann will be made available to participate in supervised visits each week with her mother, her father and siblings, as scheduled by DHS and the GAL, with no less than 90% compliance.

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

OBJECTIVE #3: Monitoring of the treatment plan progress will be allowed.

ACTION STEPS: A. Mary Ann will be made available for face-to-face contact with the Department at least once per month. B. Mary Ann will be made available to the caseworker and GAL as requested by DHS. This is to include drop by visits. MEASUREMENT OF SUCCESS: Mary Ann will be made available for monthly face-to-face contact with the caseworker at least once per month, with 100% compliance. Mary Ann will be made available to the caseworker and GAL as requested by DHS with 100% compliance. This is to include drop by home visits.

FOR CHILD: Derek Latham, Jr.

Permanency Goal: Date Set: Target Date:

Alternative Permanency Goal:

OBJECTIVE #1: Derek Latham's, Jr.'s medical, physical, emotional, and developmental needs will be met by his caregivers.

ACTION STEPS: A. Derek will attend all needed medical and dental appointments. He will have all of his immunizations and well-child check-ups in a timely manner. B. Derek will receive the appropriate education and special services that are recommended by the school system or other professionals. C. Derek will attend school regularly to address his educational and emotional needs. He will have no unexcused absences and arrive on time every day. D. Derek will not be exposed to acts of violence. If he is, he will be removed from the home. E. Derek will not be exposed to alcohol or illegal drugs. MEASUREMENT OF SUCCESS: Derek will attend all needed medical appointments and he will have all of his immunizations and well child check-ups in a timely manner, with 100% compliance. Derek will receive the appropriate education and special services that are recommended by the school system or other professionals, with 100% compliance. Derek will attend school regularly, have no unexcused absences, and be on time for school every day with 100% compliance. DHS will receive no confirmed reports that Derek has been exposed to acts of violence or illegal drugs, with 100% compliance.

OBJECTIVE #2: Derek will maintain the parent/child and sibling relationships.

ACTION STEPS:

HANDOUT 7: TREATMENT PLAN FOR THE TILLMAN FAMILY

A. Derek will be made available to participate in supervised visits each week with his mother and siblings, as scheduled and structured by DHS and the GAL. B. Derek will be made available to participate in supervised visits with his father, as scheduled and structured by DHS and the GAL. MEASUREMENT OF SUCCESS: Derek will be made available to participate in supervised visits each week with his mother, as scheduled by DHS and the GAL, with no less than 90% compliance. Derek will be made available to participate in supervised visits with his father, as scheduled and structured by DHS and the GAL, with 100% compliance.

OBJECTIVE #3: Monitoring of the treatment plan progress will be allowed.

ACTION STEPS: A. Derek will be made available for face-to-face contact with the Department at least once per month. B. Derek will be made available to the caseworker and GAL as requested by DHS. This is to include drop by home visits. MEASUREMENT OF SUCCESS: Derek will be made available for monthly face-to-face contact, with the caseworker at least once per month, with 100% compliance. Derek will be made available to the caseworker and GAL as requested by DHS with 100% compliance. This is to include drop by home visits.

SUMMARY A. STATEMENT OF SERVICES: Referrals were made for Ms. Tillman at intake for services at ARC, the MHC, and CMI for UA's. Ms. Tillman only completed two UA's. Supervised visits for Ms. Tillman and the children and unsupervised visits for Mr. Latham and Derek. B. Summary of Test Results: Ms. Tillman' UA result was positive for THC on 8/23/2009. The test that was ordered by the court on 10/20/09 was also positive for THC. AGENCY RECOMMENDATIONS: A. CUSTODY RECOMMENDATIONS: It is recommended that the children, Mary Ann Tillman and Derek Latham, Jr. remain in the custody of DHS. B. THAT THE COURT ORDERS THE ATTACHED TREATMENT AND VISITATION PLANS. C. THAT THE COURT ORDER THAT THE PARENTS SIGN ALL NECESSARY RELEASE OF INFORMATION AUTHORIZATIONS BY AS NEEDED, SO THAT DHS, THE GAL AND THE COUNTY ATTORNEY'S OFFICE CAN MONITOR THE RESPONDENTS AND CHILDREN'S COMPLIANCE AND PROGRESS. D. THAT THE TIME FRAMES FOR ALL OBJECTIVES BE: 8/24/20---8/24/20--

Respectfully Submitted by:

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______Date Date Child Protection Social Caseworker Child Protection Supervisor

Collaboration vs. Zealous Advocacy: Ethically Inconsistent or Highly Compatible?

By Candi Mayes, J.D., C.W.L.S.1 John P. Passalacqua, J.D., C.W.L.S.2 Gary C. Seiser, J.D., C.W.L.S.3

"It is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law."4

Introduction.

Attorneys have a duty of zealous advocacy, but frequently courts want them to work together, to "collaborate." Can an attorney ethically do both or does zealous advocacy mean you can't collaborate? Is there a wall between the two? Does the duty of competence help create a bridge? What of the evolving change from "zealous advocacy" to "reasonable diligence and promptness"; does that make a difference? And what of professionalism and civility? These are all good questions, especially in the juvenile dependency system where a state's rules of professional responsibility may not always seem to "fit," attorneys sometimes represent multiple parties or take on hybrid roles, and reasonable minds can differ as to what is best for children and families.

This paper seeks to briefly shed some light on this very important topic through the views of three experienced practitioners; two have years of experience representing children and parents, and one has represented a social services agency for over two decades. If we three can agree, then perhaps our thoughts can provide a starting place for others to begin or continue this discussion. This article, as is the field of juvenile dependency law and practice, is a work in progress.

1 Candi Mayes is the CEO and Executive Director of the Dependency Legal Group of San Diego (DLG), a California non-profit public benefit corporation, which represents parents and children. She was the recipient of the Outstanding Acts of Civility Award by the San Diego County Bar Association in 2008. 2 John P. Passalacqua has a private practice in Mendocino and Lake Counties, California, where he is appointed counsel for children and parents in juvenile dependency proceedings, and previously worked in Sacramento and Stanislaus Counties representing parents. 3 Gary C. Seiser is a supervising deputy with the Juvenile Dependency Division of the Office of County Counsel, San Diego County, California, which represents the San Diego County Health and Human Services Agency. In 2010 he received the L. Michael Clark Civility and Professionalism Award from the County Counsels' Association of California, Child Welfare Study Section. 4 In re S.C. (2006) 138 Cal.App.4th 412, 41 Cal.Rptr3d 453, 468, quotation marks and citations omitted.

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Counsel for Parents/Guardians.

The right of a parent to the care, custody, and control of their child has been described by the United States Supreme Court as perhaps the oldest of the fundamental liberty interests (Troxel v. Granville (2000) 530 U.S. 57, 65). Attorneys who represent parents in dependency proceedings play a critical role in safeguarding these liberty interests [Sankaran, Representing Parent in Child Welfare Proceedings, (2010)]. Under the ABA Model Rules of Professional Responsibility, the ABA approved Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases and state rules, attorneys have an obligation to provide competent and zealous advocacy. The validity of the agency‟s position must be thoroughly analyzed and tested on both a factual and legal basis at every hearing [Murray, California Juvenile Dependency Practice § 11.3 (CEB 2009)]. Even the appearance of divided loyalty may impair the client‟s trust and undermine the ability to maintain a productive attorney-client relationship [Duquette & Haralambie (eds.), Child Welfare Law and Practice: Representing Children, Parents and State Agencies in Abuse, Neglect and Dependency Proceedings (2d ed. 2010)]. Notwithstanding this duty of zealous advocacy, dependency cases are required to be conducted in an informal and non-adversarial atmosphere when possible and it is recommended that parent‟s counsel cooperate with other professionals in the case [See California Welfare & Institutions Code § 350, subd. (a)(1); Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases, p. 3 (ABA 2006)]. There is however, considerable debate as to how a competent and zealous parent‟s counsel should fulfill his or her obligations to advocate for their clients‟ parental rights. In recognition of the unique and less formal nature of dependency proceedings, the term “collaboration” is often used to describe the ideal culture for effective resolution of the dependency case. Many parents‟ counsel take issue with the notion of collaboration and feel that it is antithetical to the concept of zealous advocacy. These individuals point to the dictionary definition of collaboration as “the act of cooperating as a traitor” and focus on the fact that unlike other players in the dependency process, a parent‟s counsel is not charged with the duty to act in the best interests of the child. To be clear, the obligation of a parent‟s attorney is to protect the interests of the parent and advocate for their position, not to safeguard the best interests of the child. That duty falls upon the agency, minors' counsel and the court [Rauber, Representing Parents in Child Welfare Cases, p. 6 (ABA 2000)]. However, the ethical and effective representation of parents requires an amalgamation of collaboration and zealous advocacy and recognition of when to employ each. A zealous advocate is one who, with knowledge of the law, the facts of the case, and their client‟s position, charts the course most likely to achieve success. This requires thorough consultation with the client, particularly those clients whose myopic or emotional view of the circumstances could undermine their goals. Often, the most effective dependency attorneys labor extensively

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outside the courtroom, gaining the most for their clients by focusing on negotiation [Laver, Representing Parents Effectively Post-ASFA in ABA Child Law Practice, vol, 18, No. 10 (Dec.1999)]. The strong dependency practitioner also understands that having a productive relationship with the agency social worker will often benefit the client in each case. Furthermore, zealous advocacy oftentimes necessitates collaboration to make systemic changes which benefit parents as a whole such as increasing the quantity and quality of visitation and available services. In short, quality parent representation encompasses both zealous advocacy and collaboration. It requires the ability to recognize: (1) when to fight, by carefully selecting what issues need to be contested, (2) how to fight, by selecting a measured response to the problem, and (3) when to resolve issues through non-adversarial methods or collaboration [Rauber, Representing Parents in Child Welfare Cases, p. 4 (ABA 2000)].

Counsel for Child Protection Agencies.

Whether a state or county department, child welfare agencies are represented by counsel in the vast majority of dependency proceedings. Who the attorney actually represents is not always clear for social workers and other participants, however. In those jurisdictions where the prosecuting attorney assists the juvenile court in the presentation of evidence in dependency cases, the attorney generally advises the department but represents the state, the "people." Where counsel other than a prosecuting attorney is involved, such as county counsel representing a county welfare agency, the client is generally the department, not the individual social worker. In doing so, counsel represents agency policy through advocating for the social worker's position in an individual case, unless the two are inconsistent [Standards of Practice for Lawyers Representing Child Welfare Agencies (ABA 2004); Laver, Agency Attorneys and Caseworkers: Working Well Together in Child Welfare Law and Practice: Representing Children, Parents and State Agencies in Abuse, Neglect and Dependency Proceedings, ch. 27 (2d ed. 2010); Clark, Representing Petitioner in Cal. Juvenile Dependency Practice, ch. 14 (Cal. CEB 2010); Scahill, The Prosecuting Attorney in Dependency Proceedings in Juvenile Court: Defining and Assessing a Critical Role in Child Abuse and Neglect Cases (NCJJ 2000)].

Each model of agency representation has its strengths and difficulties. Regardless of the model, unless properly trained, individual counsel may find their greatest problem is communicating and working with social workers. This is for a number of reasons: lawyers are schooled in the adversarial process while social workers are educated in a more collaborative process; counsel and case workers often differ as to what kind of results they value in a case; and they each communicate – at least at the beginning – in a different "language." This is where collaboration must begin for the agency attorney.

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Social workers have an ethical duty to respect all people, including their clients and their colleagues [NASA Code of Ethics]. How do they feel when attorneys don't do the same, especially when the attorney is their own? Devalued, unappreciated, not supported or treated as a professional, and sometimes deservedly although uncharacteristically angry. Equally important, how do case workers feel when their lawyer makes a "legal" decision or presents an argument that is contrary to best social work practice despite the evidence supporting the social worker's assessment and recommendation? Unrepresented. Thus, the duties of loyalty, communication, and confidentiality are especially important in agency representation, with working together being essential to accomplishing not only the department's goals, but the attorney's ethical responsibilities.

Agency counsel also have the same duties of competence and diligence (zealous advocacy) as do counsel for children and parents. For agency counsel, however, an even stronger argument can be made that working together with other counsel, parties, service providers, and the court are essential to fulfilling the duties of both competence and diligence. This is because duty of diligence is "tempered by several factors unique to dependency proceedings" [Clark, Representing Petitioner in Cal. Juvenile Dependency Practice, ch. 14, § 14.25, p. 1157 (Cal. CEB 2010)]. These factors, which competent agency counsel must be aware of and consider in their practice, include such things as recognition that after jurisdiction is found the parents generally must work with the social worker and the social worker with the family; criticizing a parent or the parent's counsel in court, rather than just arguing facts in a balanced manner can make a parent hostile and a social worker's job more difficult. The same is true if the agency's counsel is unwilling to work with the parents' and children's counsel to resolve the language of the allegations, placement, visitation, and services. In many cases, going to trial is the least effective way to achieve the child's best interest while also protecting the child [Ibid.; see also Seiser & Kumli, California Juvenile Courts Practice and Procedure, § 2.10[3], p. 2-26 (Mathew Bender 2011 ed.)].

The agency's counsel is in an excellent position to greatly influence the general tone of dependency proceedings. If the attorney is knowledgeable, reasonable, willing to negotiate where appropriate, and treats everyone, including the social worker, parents, and all counsel, with respect, that tone will be a very positive and productive one.

Counsel for Children.

All lawyers owe certain duties to their clients, including loyalty, competence, and diligent and dedicated advocacy. Attorneys who represent minors are no different in this regard from attorneys who represent adults [Duquette & Haralambie (eds.), Child Welfare Law and Practice (2d ed. 2010); ABA Standards of Practice for Lawyers Who Represent

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Children in Abuse and Neglect Cases, Approved 1996]. Attorneys who represent minors must perform to the same professional level as all attorneys on the case. They are required to perform an independent investigation that includes meeting with and talking to their client, as well as to obtain, review, and analyze all relevant evidence from others involved [Child Abuse Prevention and Treatment Act (CAPTA) 42 U.S.C. §§1501-5119; Duquette & Haralambie (eds.), Child Welfare Law and Practice (2d ed. 2010); ABA Standards of Practice]. Attorneys who represent minors may not simply rely on the social worker‟s report or the representations of other parties when evaluating a case or determining a position. This is true whether the attorney is providing client directed representation as appointed counsel or advocating for the minor‟s best interest as a CAPTA GAL [42 USC 5106(a)(xiii), Duquette & Haralambie (eds.), Child Welfare Law and Practice; ABA Standards of Practice (2d ed. 2010); Renne, Legal Ethics in Child Welfare Cases (ABA 2004)].

Dependency attorneys are litigators and minor‟s attorneys must certainly be expected to try their cases when necessary. Of course, much of what happens in a dependency case happens outside of trial and minor‟s attorneys must also be effective advocates in those circumstances as well. Too often minor‟s attorneys rely on other counsel to develop the case or take a secondary role in negotiations. All clients are entitled to the same competent and zealous advocacy from their attorneys, regardless of their age [Duquette & Haralambie (eds.), Child Welfare Law and Practice (2d ed. 2010); ABA Standards of Practice, NACC Recommendations for Representation of Children in Abuse and Neglect Cases (2001)]. Attorneys who represent minors often perform a dual role but they are certainly not held to a lesser standard of representation. An effective attorney should take an active and involved role in developing their own side of the case as well as negotiating with others.

Quality representation requires both good trial skills as well as good negotiation and communication skills [ABA Standards of Practice, Model Rules of Professional Conduct]. Quality representation also requires a willingness and ability to work with others to discuss the status of cases and share information to the extent possible; in other words, the ability to play well with others. While there are attorneys who hold onto the notion that everyone else on the case is the enemy – there is no evidence that this attitude produces better outcomes for their clients. In fact, approaching the practice of law in this way could very well harm your client by denying them the benefit of cooperative reasonable negotiation and settlement discussions. Respect, cooperation, and good faith are all needed for successful negotiation [Gordon Wade Rule, The Art of Negotiation, © 1962].

Not every state has standards of practice for dependency attorneys but there does seem to be a trend towards emphasizing civility and collaboration. While some practitioners take

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issue with the term „collaboration,‟ this term of art is growing in popularity in the legal arena around the nation. In fact, the model rules and some states are deleting the adjective „zealous‟ to modify advocacy in their rules of professional conduct [Arizona Attorney, April 2008]. Arizona was the first state to do so, specifically citing attorneys use of the term „zealous‟ to justify all manner of terrible behavior. Many of the states who have followed the model rules and Arizona are choosing terms such as „reasonable diligence‟ (see Illinois, New Jersey, Louisiana, Montana, Nevada, New Jersey, Washington, and Oklahoma Rules of Professional Conduct) or “commitment and dedication‟ (see Indiana and Arizona Rules of Professional Conduct) to define appropriate attorney conduct and client representation instead of „zealous.‟ While there are certainly those who will continue to define collaboration in military war terms of „conspiring with the enemy‟, many others it seems prefer the Webster‟s definition „to work together‟ [Webster‟s Dictionary (2000); see also Roget‟s 21st Century Thesaurus (2005)].

The decline of civility in the practice of law has become a much lamented and discussed topic in legal literature. U.S. Supreme Court Justice, Sandra Day O‟Connor has expressed her concerns about the decline of civility in an article for Washington University Law Quarterly (reproduced on the Missouri State Bar Association website, www.mobar.org) stating, “When lawyers themselves generate conflict, rather than addressing the dispute between the parties they represent, it undermines our adversarial system and erodes the public‟s confidence that justice is being served. Greater civility can only enhance the effectiveness of our justice system, improve the public‟s perception of lawyers, and increase lawyers‟ professional satisfaction.” There are a growing number of attorneys and judges who credit the doctrine of zealous advocacy with this decline [Allen K. Harris, Zealous Advocacy: Duty or Dicta?, Oklahoma Bar Journal, Ethics & Professional Responsibility.

Whether we use the phrase „working together‟ or the term „collaboration‟, the point is to ensure that the process is as congenial as an adversarial process can be and that the clients benefit from the ability of the attorneys to operate from a civil, professional point-of-view (as opposed to the emotional base that most clients are operating from). The furtherance of the client‟s goals must be paramount – and while the client may receive some short- term satisfaction from drawing a line in the sand if they are no closer to their goal from a legal standpoint then the attorney has not done their job. In fact, in dependency cases especially, refusing or failing to work together can actually delay reunification for your client. The most effective minor‟s counsel seeks out the facts and evidence independently, is open to re-evaluation as new facts and evidence come to light, honestly and frankly advises their client in an age appropriate manner, works with the other professionals in a congenial and civil manner, and takes those issues to trial that cannot be agreed upon. This is effective advocacy – the best kind!

Mayes, Passalacqua, Seiser (June 9, 2011) Page 6

Conclusion.

The most effective litigants in dependency proceedings, be they on the side of the agency, the child or the parent, are rarely those who consistently draw the hardest line or take the most cases to contested hearings. Instead, they are usually those who work with knowledge, insight, and a spirit of cooperation to achieve realistic and reasonable goals for their clients both inside and outside the courtroom. Litigants who achieve the best result regardless of their role in the proceedings strive to protect the child and to maximize the involvement of the family in decision making and services. Those litigants who focus on problem solving enjoy the greatest likelihood of success and the least degree of hostility. All agencies, attorneys and courts should evaluate their own approach to dependency proceedings in light of these guiding principles.5

The terms "zealous" and "collaboration" may not have been the best choice of words, but the words themselves are not the problem. It is the way we individually define and practice the words that creates the difficulty. Like "the best interest of the child," reasonable minds can differ. What can't be argued, however, is that zealous advocacy means you have to be argumentative, obstreperous, unprofessional, or less than civil. It doesn't. Nor does "collaborate" mean you have to sell out your client, be unethical, or always go to trial. Everyone in the system should be zealous yet civil, diligent yet professional; and all attorneys should be competent and effective, recognizing the best way to accomplish as much of your client's desires as reasonably possible is to work with other parties, counsel, and the court in a cooperative and ethical manner. Good luck.

5 Seiser & Kumli, California Juvenile Courts Practice and Procedure, § 2.10[3], p. 2-26 (Mathew Bender 2011 ed.)

Mayes, Passalacqua, Seiser (June 9, 2011) Page 7

Resources .

Duquette & Haralambie (eds.), Child Welfare Law and Practice: Representing Children, Parents and State Agencies in Abuse, Neglect and Dependency Proceedings (2d ed. 2010)

Heywood (ed.), California Juvenile Dependency Practice (Cal. CEB 2010)

Kisthardt, Working in the Best Interest of Children: Facilitating the Collaboration of Lawyers and Social Workers in Abuse and Neglect Cases, 30 Rutgers L. Rec. 1 (Spring 2006)

Laver, FOUNDATIONS FOR SUCCESS: Strengthening Your Agency Attorney Office (ABA 1999)

Laver, Representing Parents Effectively Post-ASFA in ABA Child Law Practice, vol, 18, No. 10 (Dec. 1999)

Patton, Legal Ethics in Child Custody and Dependency Proceedings: A Guide for Judges and Lawyers (Cambridge Univ. Press, 2006)

Rauber, Representing Parents in Child Welfare Cases (ABA 2000)

Renne, Legal Ethics in Child Welfare Cases (ABA 2004)

Scahill, The Prosecuting Attorney in Dependency Proceedings in Juvenile Court: Defining and Assessing a Critical Role in Child Abuse and Neglect Cases (NCJJ 2000)

Seiser & Kumli, California Juvenile Courts Practice and Procedure (Mathew Bender 2011 ed.)

Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases (ABA 2006)

Standards of Practice for Lawyers Representing Child Welfare Agencies (ABA 2004)

Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (ABA 1996)

Mayes, Passalacqua, Seiser (June 9, 2011) Page 8

HANDOUT 9: PERMANENCY HEARING CHECKLIST

PERMANENCY HEARING CHECKLIST33

BEFORE

 Ensure caseworker’s report is provided 3 working days before hearing.  Request and review caseworker’s file and visitation notes.  Request and review reports from service providers.  Ensure all court-ordered programs and services were provided in timely fashion.  Review treatment plan ordered at last hearing.  Check for efforts to place siblings together.  Contact client to discuss possible outcomes and position on the following: o Department’s recommendations o Frequency and quality of visits o Availability of a visitation supervisor o Activities and events in the child’s life that parent would like to be present for o Appropriateness of current placement o Progress in services: Can client articulate what he or she has learned? o Any education issues with children o Client’s contact and relationship with caseworker  Provide client with copy of report.  Update client’s contact information.  Contact caregiver, if appropriate, to discuss reunification, current contact with client, and willingness to continue if permanency achieved.  Contact caseworker to discuss: o Visitation: Safety concerns? Progression of visits? Can visits move outside of the agency? Has the caseworker observed visits? Provision of makeup visits if visits have been missed through no fault of client. Transportation barriers to visits?  Contact service providers to discuss: o Opinions on client’s well-being and progress o Are services culturally appropriate? o Are services geared to the right developmental stage of the parent? o Are services provided in the parent’s first language? o Can services be consolidated or discontinued? o How far and how often is parent being asked to travel? o Are any additional services needed for the parent?

33 See, Judicial Council of California/Administrative Office of the Courts, California Dependency Guide (2007), C. Robinson, “Case Assessment and Planning” in Child Welfare Law and Practice, 715-29 (Donald Duquette et al. eds., 2010), J. Cohen and M. Cortese, “Cornerstone Advocacy in the First 60 days: Achieving Safe and Lasting Reunification for Families”, 28 Child Law Practice 3, 2009, and National Council of Juvenile and Family Court Judges, Improving Court Practice in Child Abuse and Neglect Cases, 1995 1

HANDOUT 9: PERMANENCY HEARING CHECKLIST

o Any risk of detriment if child is returned or recommended timeliness  Formulate position on the following: o Reunification and/or case closure o Visitation o Services o Whether to request a contested placement hearing  If return will not occur, is placement with relative possible?  Contact opposing counsel to discuss position and remove as much mystery from hearing as possible.  Consider filing motions such as: change of placement, contempt for non-delivery of services, explore kinship placement, conduct ICPC, increase visitation, decrease UA monitoring, discovery, sibling reunification, change of services, and/or housing assistance,

DURING

 Be aware of applicable law and burdens (C.R.S 19-3-702).  Inform court of client’s wishes.  Acknowledge positives and update court on client’s situation and progress in services.  Inform court of barriers to success for treatment plan and request appropriate orders.  Request contested hearing (if appropriate or necessary).  Ensure court addresses the following: o Return home, if in child’s best interests. If not today, then court must determine whether there is a substantial probability that child will be returned within six months. o Whether reasonable efforts were made. o The continued necessity for and appropriateness of placement. o The extent of compliance with the case plan, and the extent of progress that has been made toward alleviating or mitigating the causes necessitating placement in foster care (C.R.S. 19-3-702 (6)).  Request visitation orders with specific times, locations, and plan for progression. If denied.  Request discretion to caseworker and GAL to expand visitation without further court order.  Request discretion to caseworker and GAL to return home without further court order.

AFTER

 Consult with client to explain court orders and rulings and answer questions.  Set deadlines and future goals for client.  Review court orders for accuracy.

HANDOUT 10: PERMANENCY PLANNING HYPOTHETICALS

PERMANENCY PLANNING HYPOTHETICALS

INSTRUCTIONS:

Spend a five minutes reading these short fact scenarios below and 15 minutes discussing with your small groups. We will spend our last 10 minutes discussing in the large group. These clients face permanency planning issues. How will you counsel them about the permanency options in their cases?

HYPOTHETICALS:

Maria: Maria’s three children live with Maria’s sister and brother-in-law. Maria is a victim of domestic violence and the children were removed when Maria refused to leave her husband, Robert. Maria continues to live with Robert. She denies any ongoing abuse. The case is set for a permanency hearing in 2 weeks. The department wants to do an APR to aunt and uncle because Robert and Maria continue to live together. Robert is halfway done with his 52 week offender course, and Maria has completed her victim’s therapy. They deny any new incidents of physical abuse. The children report hearing from extended family that abuse is still happening. Maria wants her children returned to her custody.

Jennifer: Jennifer is a teen mom who is also the subject of a dependency and neglect case. She lives with her four month old, Joshua, in a residential treatment facility for teen moms. She very much wants to leave the facility. She wants to live with her sister in Section 8 Housing. Her sister has three young children of her own. The department has not approved a goal of independent living for teen mom.

Steve: Steve is the biological dad of Johnny. Johnny has been living with his mom, who is addicted to methamphetamine. Steve has a criminal history of prior felony assaults and drunk driving. He claims to have been clean for 4 years, and is living in community corrections. He will be released from community corrections in 2 months, and then plans to live with his mother. The case has been going on for 12 months, and the Johnny has been living with maternal grandmother this whole time. Johnny is 10 years old, and very much wants to live with his dad. Steve wants custody of Johnny.

DISCUSSION QUESTIONS FOR EACH OF THE HYPOTHETICALS:  What are the permanency options?  How will you advocate for what the client wants? What is the best advocacy route?  How will you counsel these clients?

HANDOUT 11: TERMINATION HEARING CHECKLIST

TERMINATION HEARING CHECKLIST34

BEFORE

 Obtain adjudication transcript/record if necessary.  Obtain and analyze discovery.  Request videotaping of visits, if appropriate.  Object to unnecessary evaluations of client.  File motion and order for court appointed expert.  Seek referrals for experts.  Interview experts.  Retain expert.  Provide expert with necessary collateral information.  Communicate with client about expert and setting up appointments.  Obtain court appointed expert report.  Develop litigation strategy.  Meet with client, discuss options.  Identify any relatives that have not already been located, notify them of timeframes for intervention for placement.  Interview witnesses.  Subpoena witnesses.  Prepare and distribute witness list.  Conduct depositions or send out interrogatories when appropriate.  Participate in pretrial conferences. o Settle when possible: if not on entire case, then on certain issues such as visitation, suspended judgment, placement with relatives. o Agree on stipulations when possible, reduce to writing when necessary.  Prepare exhibits.  Prepare and file pretrial motions.  Prepare stipulations when possible.  Prepare direct and cross examinations.  Prepare closing argument.  Prepare trial notebook.

DURING:

 Participate in trial – conduct examinations of witnesses and present evidence.  Seek appropriate orders, including sibling or parental visitation, placement, or other orders if appropriate and necessary AFTER:

34 See, Judicial Council of California/Administrative Office of the Courts, California Dependency Guide (2007), C. Robinson, “Case Assessment and Planning” in Child Welfare Law and Practice, 715-29 (Donald Duquette et al. eds., 2010), J. Cohen and M. Cortese, “Cornerstone Advocacy in the First 60 days: Achieving Safe and Lasting Reunification for Families”, 28 Child Law Practice 3, 2009, and National Council of Juvenile and Family Court Judges, Improving Court Practice in Child Abuse and Neglect Cases, 1995 1

HANDOUT 11: TERMINATION HEARING CHECKLIST

 Obtain court orders and give copy to client.  Visit and counsel client and explain court’s findings and orders.  Meet with client and discuss appeal.  Have client sign the Notice of Appeal, or specifically authorize filing of appeal.  File notice of appeal and designation of record within 21 days: continue appeal.  Identify appellate counsel and make referral if necessary.  Order transcript.  Facilitate goodbye visit if necessary

HANDOUT 12: SAMPLE CROSS EXAMINATION OF CASEWORKER

SAMPLE OF ADVANCED CROSS EXAMINATION OF CASEWORKER:

Below is a sample of an advanced cross examination, one that brings out the theory of the defense, and slowly builds up an idea.

DECISION-MAKING AUTHORITY: • Ms. Smith, you are a child protection worker? • You work for the Department of Social Services(DSS)? • As a caseworker for DSS you obviously have a supervisor? • Your supervisor is Ms. Susan Supervisor? • It is her job to review all of the reports you file. • She signs the reports you file. • But as your supervisor she is not just a rubber stamp. • As your supervisor she substantively reviews your cases? • And makes her own determinations about how the case should proceed? • Now you meet about your cases. • Discuss your cases. • Ultimately come to a determination of whether to ask the County Attorney to file a request for termination of parental rights? • The reports that you file do not state if you and your supervisor agree about the conclusions. • Or disagree about your conclusions. • The report here before the court just states what “the department’s” conclusion is. • And the language you have used in this report is “the Department.”

PERSONAL CONTACT: • Now to be clear you were the person who worked closely with Ms. Tillman? • And you were the person who met with Mary Ann Tillman? • And her grandmother Jennifer Tillman? • Ms. Supervisor rarely if ever met with Ms. Tillman. • Never met with Mary Ann Tillman. • Never met with Jennifer Tillman except for during one staffing.

TERMINATION OF PARENTAL RIGHTS PERMANENT: • Termination of parental rights is permanent. • It is forever. • And because of this, it is seen as a last resort. • In fact under the law it is the mandate of DSS to reunite parents and children. • And as such, it is your mandate to reunite children with parents. • And to do this you must offer support to parents and children so that they succeed. • This is at least in part, because studies have consistently shown that children have better outcomes when they are with their parents. • Even in imperfect situations studies have shown that children do better with their parents.

HANDOUT 12: SAMPLE CROSS EXAMINATION OF CASEWORKER

CHANGE: • You would agree that for people with serious issues change can be difficult? • And often slow to come. • This slow ability to change can be an indication of how deep the person’s struggles are. • As an experienced social worker you have seen a lot of people start to change. • And have worked hard to help people follow through. • But then these same people are unable to follow through. • This can be frustrating for you. • This can be disappointing for you. • These experiences can lead you to feel cautious when you see someone start to change. • You feel especially cautious because you are dealing with that person’s child. • And the disappointment of a parent’s failure to follow through with change can be difficult for children. • You are especially wary when it comes to drugs and alcohol. • However, you would agree that some people have amazed you. • They have succeeded. • When you were fairly convinced they could not. • Each case is unique. • Each person’s situation is unique.

MS. TILLMAN’S PROGRESS: • So let’s talk about Ms. Tillman. • Ms. Tillman clearly has had significant difficulties in her life. • Her father died when she was 8. • She struggled in school. • She was in an abusive relationship with Mary Ann’s father. • She has problems with alcohol and drugs. • This has led her to struggle with stability. • Consistency. • And accountability. • Those are the areas that she has worked on in her treatment plan. • Let’s talk about those three things, but before we get there: • Just to be clear Ms. Tillman has never physically abused Mary Ann. • Ms. Tillman has always wanted Mary Ann to be in her life. • She has never asked to give up Mary Ann for adoption. • Still doesn’t agree with this termination of her parental rights. • She very strongly does not want to sever her parental responsibilities to Mary Ann.

STABILITY: • So let’s first talk about Ms. Tillman’s stability. • As a part of her treatment plan Ms. Tillman was required to “stabilize her lifestyle and improve her adult functioning.” • This was objective #3. • Specifically Ms. Tillman was to A) have no new law violations.

HANDOUT 12: SAMPLE CROSS EXAMINATION OF CASEWORKER

• And B) obtain employment or apply for TANF. • As to this objective you wrote that Ms. Tillman was UNSUCESSFUL • However, Ms. Tillman has had no new law violations. • And although she has not obtained employment she has successfully applied for TANF and food stamps. • To be clear, objective #3 did not state that she was to “HAVE GOTTEN” TANF and food stamps but to “have applied for.” • So, Ms. Tillman did meet Objective #3 • The next factor you looked for in Ms. Tillman’s treatment plan as to stability was the requirement that Ms. Tillman obtain and maintain safe and stable housing. • This was objective #4. • For this objective Ms. Tillman was to A) “obtain and maintain affordable housing.” • And B) allow DHS access to her home so that its appropriateness could be assessed. • As to this objective, you wrote that Ms. Tillman was UNSUCESSFUL. • However, Ms. Tillman did obtain housing. • Your issue was that she did not have the means to pay for it. • You never determined that this housing was unsuitable. • Or inappropriate. • You issue with this housing is that she currently did not have the means to pay for the housing. • To be clear as of this date, Ms. Tillman has not lost her housing. • And as noted above in your report Ms. Tillman is currently waiting for her TANF and food stamps to arrive. • As to the second part of Objective #4 as you wrote in your report “Ms. Tillman has communicated appropriately with this caseworker.” • So, Ms. Tillman both currently has housing. • Has a potential means to pay for it. • And has communicated appropriately with you in regards to her housing. • Finally, as to the aspect of the treatment plan concerning Ms. Tillman’s stability - Ms. Tillman was to “allow monitoring of the treatment plan progress” • This was objective #5. • For this objective Ms. Tillman was to A) contact the caseworker once a month. • B) Allow unannounced visits by the caseworker. • And C) Sign all requested releases. • For this condition, you wrote that Ms. Tillman was ONLY Partially Successful • However, as noted in your report Ms. Tillman has A) successfully maintained contact with you. • B) Then the next condition has no noted problems. • C) Finally, she has successfully signed all releases. • So, even though you wrote Partially Unsuccessful as to this objective you listed nothing that Ms. Tillman did not successfully complete.

CONSISTENCY:

HANDOUT 12: SAMPLE CROSS EXAMINATION OF CASEWORKER

• The next issue you were working on with Ms. Tillman was her consistency as it related to Mary Ann • To meet that goal, Ms. Tillman was to “maintain her relationship with her child Mary Ann.” • This was objective #2. • To do this she is supposed to A) Participate in supervised visits with Mary Ann each week. • B) Show up on time for her visits. • C) Visits will be increased or decreased or converted to unsupervised at the discretion of the case worker and take feedback given during visitations and utilize that feedback throughout future visits. • For this objective you again wrote she was UNSUCCESSFUL. • However, Ms. Tillman did show up for numerous visits with MaryAnn. • Ms. Tillman did call in advance when she was going to be late or miss an appointment. • Overall Ms. Tillman was only late or missed 5 visits. • To be clear you did not specifically note how many of those 5 visits were missed versus the number of times she showed up but she was late. • So when she was late she still visited with Mary Ann. • So to be clear Ms. Tillman has only missed less than 5 meetings with Mary Ann. • You also noted that Ms. Tillman has been unable to “effectively incorporate feedback and is resistant to such help.” • To be clear, in your report, you did not give one example of Ms. Tillman’s inability to incorporate feedback. • Further, in your report did you note any negative impact this may have had on her parenting. • Or any negative impact this may have had on her relationship with Mary Ann. • In contrast, in regards to the content of Ms. Tillman’s visits with MaryAnn you wrote and I quote “visits with Mary Ann go well when Ms. Tillman attends.” • Finally as to increased visitations, Ms. Tillman requested that she be permitted to have increased visitations with MaryAnn. • She requested that she be allowed to have overnight weekend visitations. • This was a request that you never responded to. • Never permitted her to have additional visitation. • Even though you had the ability under this treatment plan to allow more visitation, this was never done.

ACCOUNTABILITY: • The final aspect of your treatment plan was designed to look at her accountability. To do this you monitored Ms. Tillman’s use of alcohol and drugs. • Ms. Tillman was required to “maintain a sober lifestyle by complying with substance abuse and mental health treatment recommendations.” • This is found in Objective #1. • Specifically, Ms. Tillman was required to A) participate in an intake as schedule by the mental health center and other treatment providers to include individual therapy and psychiatric services.

HANDOUT 12: SAMPLE CROSS EXAMINATION OF CASEWORKER

• B) She was required to abstain from alcohol and illegal drugs. • C) Next she was required to participate in UA’s as recommended by DHS. • Finally, D) she was required to not decrease or stop her monitoring or treatment modalities without written approve of the treatment providers. • For this objective you also wrote that Ms. Tillman was UNSUCESSFUL. • However, Ms. Tillman did successfully complete a psychological evaluation and parent child interactional. • Further, Ms. Tillman did comply with some mental health (MH) treatment. • Ms. Tillman also did attend some group therapy for her substance abuse treatment. • So to be clear, Ms. Tillman has never stopped MH treatment. • In your report you did not list one appointment that Ms. Tillman ever missed in relation to her mental health. • You never listed one session of her substance abuse group that she missed. • Nor has she ever completely stopped her substance abuse therapy. • Your issue with her is that she did not go to treatment as often as you would like. • This treatment is group therapy. • You are not a psychologist? • Psychiatrist? • Mental health counselor? • So you do not know if the particular treatment recommended is the best for Ms. Tillman? • Or if going to the treatment every week is more helpful to Ms. Tillman than going every other week or every third week. • You do not know if going at all to these treatments is helpful to Ms. Tillman. • To be clear, in your report you did not list one appointment that Ms. Tillman ever missed in relation to her mental health treatment. • You never listed one session of her substance abuse group that she missed. • To be clear, Ms. Tillman has been fully compliant over the past three months with her UA’s • Most importantly – all of those UA’s have been clean. • You cannot tell us if Ms. Tillman will be clean for three more months. • Six more months. • Twelve more months. • The rest of her life. • You would agree that every month Ms. Tillman maintains sobriety is good for MaryAnn. • And for most people the longer they go sober, the stronger they get with their sobriety. • So even though Ms. Tillman did her mental health evaluation, has gone to mental health treatment, gone to substance abuse treatment and been clean for three months you did not write that Ms. Tillman was partially successful you wrote that she was unsuccessful.

NOTHING WOULD CHANGE: • Currently, Mary Ann is staying with Jennifer Tillman. • Jennifer Tillman is Ms. Tillman’s mother. • You have asked Jennifer Tillman to adopt Mary Ann if Ms. Tillman’s parental rights are terminated.

HANDOUT 12: SAMPLE CROSS EXAMINATION OF CASEWORKER

• However, if Ms. Tillman’s parental rights were NOT terminated MaryAnn would stay with Jennifer Tillman. • Ms. Tillman would continue to visit. • Ms. Tillman would continue to be monitored. • She would continue to participate in treatment. • If Ms. Tillman continued to be sober for three more months and continued to maintain her housing and continued to visit with Mary Ann you would likely agree to more visitation. • Maybe over time she would do overnight visitation. • If in six months she continued to be sober and continued to maintain her housing and continued to visit with Mary Ann you would likely agree to even more visitation. • She likely could have temporary custody of Mary Ann. • However, if Ms. Tillman does not comply - termination could be re-raised by the Department . • However, if termination is granted today it can never be undone. • It is permanent.

Chief Justice Directive 04-05 Amended July 2009

SUPREME COURT OF COLORADO

OFFICE OF THE CHIEF JUSTICE

APPOINTMENT AND PAYMENT PROCEDURES FOR COURT APPOINTED COUNSEL PURSUANT TO TITLES 12, 13, 14, 15, 19 (DEPENDENCY AND NEGLECT ONLY), 22, 25, 27, AND GUARDIANS AD LITEM, CHILD AND FAMILY INVESTIGATORS AND COURT VISITORS PAID BY THE STATE COURT ADMINISTRATOR’S OFFICE

The following policy is adopted to assist the administration of justice through • the appointment of counsel for children and adults under Titles 12, 13, 15, 19 (dependency and neglect only), 22, 25, and 27; • the appointment and training of guardians ad litem and court visitors appointed on behalf of wards or impaired adults in all cases; • the appointment of non-attorney child and family investigators in the best interest of children pursuant to §14-10-116.5, C.R.S. This policy does not cover appointments made pursuant to Titles 16 and 18, nor appointments of counsel in juvenile delinquency matters pursuant to Title 19, nor appointments of guardians ad litem for minors, attorney child and family investigators and child’s legal representatives (Office of the Child’s Representative (OCR) appointments). For information concerning criminal and juvenile delinquency appointments refer to Chief Justice Directive 04-04, and for state paid attorneys appointed in the best interest of children and paid by the OCR, refer to Chief Justice Directive 04-06.

I. Statutory Authority

A. The federal and state constitutions and various Colorado statutes provide authority for the appointment of counsel, guardians ad litem (GAL), child and family investigators, and court visitors in certain legal actions.

B. State funds are appropriated to the Judicial Department to provide for representation in dependency and neglect cases and in certain other cases in which the party represented, or the party’s parent or legal guardian, is determined to be indigent.

II. Eligibility Determination

A. The person for whom representation is requested or, in the case of children, the responsible party, must be indigent to qualify for court-appointed representation at state expense pursuant to Titles 14, 22, 25, and 27 and for representation of respondents in a dependency and neglect action under Title 19. Such person(s) must also be indigent for the court to authorize payment of certain costs and expenses.

B. An indigent person is one whose financial circumstances fall within the fiscal standards set forth in Attachment A.

C. All persons requesting court-appointed representation to be paid by the state on the basis of indigency must complete, or have completed on their behalf, application form JDF208 ("Application for Public Defender, Court-Appointed Counsel or Guardian ad litem") signed under oath, before an appointment of counsel at state expense may be considered. Form JDF208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27, guardianship and protective proceeding cases under Title 15 in which the respondent refuses to or is unable to supply the necessary information, cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to §12-37.5-107(2)(b), C.R.S. Pursuant

1 Chief Justice Directive 04-05 Amended July 2009

to §13-90-208, C.R.S. a person who is deaf or hard of hearing may have access to counsel for advice on whether to execute a waiver of state funded interpreter services.

D. For appointments under Title 15 and some appointments under Title 25 where the court believes that the person needs the assistance of counsel and is unable to obtain counsel, the person for whom representation is requested or, in the case of children, the responsible party, need not be indigent to qualify for court-appointed representation at state expense.

E. If, in the best interests of justice, a tentative appointment of legal counsel or a guardian ad litem for the party is necessary, such appointment may be made pending a final decision regarding indigency. If a review of a person's application shows that the person is not indigent and the person is not qualified to have court- appointed representation at state expense, the court may order the person to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel or a guardian ad litem.

F. An attorney or other person appointed by the court on the basis of one or more party’s inability to pay the costs of the appointment shall provide timely notice to the court in the event financial related information is discovered that would reasonably call in to question the party’s inability to pay such costs. The court shall have the discretion to reassess indigence, and for purposes of possible reimbursement to the state, the provisions of Section V. of this Chief Justice Directive shall apply. Based upon a reassessment of a party’s financial circumstances, the court may terminate a state-paid appointment, require reimbursement to the State of Colorado of all or part of the costs incurred or to be incurred, or continue the appointment in its current pay status.

III. Guidelines for Appointment of Counsel, GAL (for Adults), Non-Attorney Child and Family Investigators and Court Visitors:

The Clerk of Court or the District Administrator shall maintain a list of qualified persons from which appointments will be made under this section. The order of appointment shall specify the: 1. Authority under which the appointment is made; 2. Reason(s) for the appointment; 3. Scope of the duties to be performed; and 4. Terms and method of compensation (including indigency status).

See Attachments B (form JDF209), and C (form JDF210).

A. Appointments of Counsel

Appointments may be made under flat fee or hourly contracts developed by the Judicial Department, or if necessary to meet the jurisdiction’s needs, on a non-contract hourly fee basis. Any attorney not under contract with the Department who requests appointments must submit to the Chief Judge a request with an affidavit of qualifications for such appointments. The Chief Judge, in his or her discretion, may approve additions to the list of non-contract attorneys at any time. An attorney not under contract with the Judicial Department must submit an updated affidavit every three years to ensure that he or she is maintaining his or her qualifications for such appointments. The judge or magistrate shall consider the number of an attorney’s active cases, the qualifications of the attorney, and the needs of the party to be represented when making appointments.

1. Appointment of Counsel for Respondent in Dependency and Neglect Proceedings: Counsel shall be appointed for an indigent parent or guardian in dependency and neglect proceedings as provided under Title 19, as amended. If the court determines that due process calls for the appointment of counsel for

2 Chief Justice Directive 04-05 Amended July 2009

indigent parents in stepparent adoption proceedings, the court shall make findings of fact in the order of appointment. In re C.A.O. for adoption of G.M.R, 192 P.3d 508 (Colo. App. 2008).

2. Appointment of Counsel for Involuntary or Emergency Alcohol/Drug Commitment Proceedings: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 25, Article 1, as amended.

3. Appointment of Counsel for Care and Treatment of Mentally Ill: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 27, Article 10, as amended.

4. Appointment of Counsel for Probate, Trusts, and Fiduciaries: Counsel appointments to provide legal representation to eligible persons shall be in accordance with provisions under Title 15, Article 14, as amended.

5. Appointment of Counsel for a Juvenile:

a. Counsel may be appointed for a child in a truancy matter under Title 22 if adjudication is previously entered and the child is served with a contempt citation or if the court deems representation by counsel necessary to protect the interests of the child or other parties. Parties requesting counsel must complete form JDF208 and a finding of indigence is required for the appointment of counsel at state expense. If the party is not qualified to have court-appointed representation at state expense, the court may order the responsible party(ies) to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel.

b. Counsel may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to §12-37.5-107(2)(b), C.R.S. and Chapter 23.5 of the Colorado Rules of Civil Procedure (“Rules of Procedure for Judicial Bypass of Parental Notification Requirements”).

6. Appointment of Counsel for Appeals: The trial court shall determine the need and statutory requirement for appointment of counsel on appeal. The court shall be under no obligation to appoint counsel in appeals where the sole issue for determination is the individual allocation of parental responsibilities between and among two parents. Where applicable, determinations of indigency should be in accordance with the procedure described in section II. The maximum total fee allowable on an appeal shall be in accordance with the maximum fees outlined in section IV. D. Requests for payment shall be filed on Form JDF207 (Colorado Judicial Department Request and Authorization For Payment of Fees) with the appellate court and must contain a copy of the order appointing counsel to represent the indigent person on appeal. An appellate court judge, or designee, shall carefully review all requests for payment submitted to the court for approval.

7. Appointment of Counsel for a Person who is Deaf or Hard of Hearing: Pursuant to §13-90-208, C.R.S., the right of a person who is deaf or hard of hearing to a qualified interpreter or auxiliary service may not be waived except in writing by the person who is deaf or hard of hearing. Prior to executing such a waiver, a person who is deaf or hard of hearing may have access to counsel for advice.

B. Appointments of Guardians ad litem (for Adults), Non-Attorney Child and Family Investigators and Court Visitors.

The court may appoint a qualified person other than an attorney as a child and family investigator or court visitor when the appointment of an attorney is not mandated by statute. The court shall maintain a list of

3 Chief Justice Directive 04-05 Amended July 2009

qualified persons to accept appointments as Guardians ad litem, court visitors and non-attorney child and family investigators from which the court will make appointments. 1. Appointment of GAL in Dependency and Neglect Case: A guardian ad litem may be appointed for a parent or guardian in dependency and neglect proceedings who has been determined to be mentally ill or developmentally disabled, unless a conservator has been appointed, pursuant to Title 19.

2. Appointment of GAL in Trusts or Estates: In formal proceedings involving trusts or estates of decedents, protected persons, and in judicially supervised settlements pursuant to Title 15, a guardian ad litem may be appointed for an incapacitated person, unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation exists.

3. Appointment of GAL in a Civil Suit: A guardian ad litem may be appointed for an incompetent person who does not have a representative and who is a party to a civil suit.

4. Appointment of GAL for Emergency or Involuntary Commitment of Alcoholics or Drug Abusers: Upon the filing of a petition for involuntary commitment of alcoholics or drug abusers, a guardian ad litem may be appointed for the person if the court deems the person’s presence in court may be injurious to him or her pursuant to Title 25.

5. Appointment of Non-Attorney Child and Family Investigator: A non-attorney child and family investigator may be appointed in a domestic relations case pursuant to §14-10-116.5, C.R.S. For appointment of an attorney child and family investigator, see applicable guidelines implemented through the Office of the Child’s Representative. Pursuant to §14-10-116.5(b), C.R.S., in cases where the appointment is made prior to the entry of a decree of dissolution or legal separation, the court shall consider the combined income and assets of both parties for purposes of determining indigence and whether the state shall bear the costs, fees, or disbursements related to the appointment of a child and family investigator. The court shall enter an order for costs, fees, and disbursements against any or all of the parties and, as provided in §14-10-116.5(c), C.R.S., shall make every reasonable effort to apportion costs between the parties in a manner that will minimize the costs, fees, and disbursements that shall be borne by the state. When a responsible party is indigent, the state will pay the non-attorney child and family investigator at the rates established in section IV.C. and IV.D. for the portion of authorized fees and expenses for which the indigent party is responsible.

6. Appointment of Court Visitor: A court visitor shall be appointed for a respondent pursuant to Title 15.

IV. Guidelines for Payment of Counsel, Guardians Ad Litem, Non-Attorney Child and Family Investigators, and Court Visitors

A. The fees and costs associated with appointments described under this directive shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made under contracts developed by the Judicial Department or on a non-contract hourly fee basis. Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON/Eclipse computer system and complete the appointment on the CAC system for payment and tracking purposes. Claims for payment on hourly appointments shall be entered in the Department’s web-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, claims for payment shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees (form JDF207). Claims for payment on flat-fee, contract appointments shall be entered in the Department’s web-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, such claims for payment shall be filed with the State Court Administrator’s Office using

4 Chief Justice Directive 04-05 Amended July 2009

the process and format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel, Guardians ad litem, Non-Attorney Child and Family Investigators and Court Visitors Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment D) and shall follow the Court Appointees and Investigators Procedures for Payment of Fees and Expenses (Attachment E). All hourly payment requests shall be reviewed by the District Administrator or his/her designee to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete or erroneous claims will be returned to the attorney or other appointee with an explanation concerning the issue(s) identified.

2. Court Costs, Expert Witness Fees, and Related Expenses: Costs incurred by counsel shall be pre- approved and paid by the appointing court. Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives/Orders, and other policies and procedures of the Judicial Department, including the Mandated Costs chapter of the Judicial Department’s Fiscal Policies and Procedures manual. A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01, as amended.

3. Online Appointee Billing: Appointees shall invoice the Judicial Department using the Department’s web-based system (CACS) according to the policies and procedures set forth by the State Court Administrator’s Office. An appointee may request an exception to this requirement by contacting the Financial Services Division at the State Court Administrator’s Office. In the request, the appointee shall describe the extenuating circumstances preventing the use of CACS for invoicing. The Director of Financial Services or his/her designee shall review such requests and shall have final decision authority concerning the granting or denial of the request. Failure of an appointee to learn or avail him/herself of training on the use of CACS is not sufficient cause to warrant an exception.

4. To maintain the security and integrity of CACS, appointees shall immediately notify the Director of Financial Services, or his/her designee, in writing, of any changes in appointee’s staffing or practice that may require cancellation or other changes in appointee’s or appointee’s staff’s CACS login authority and credentials.

5. Failure of appointee to appropriately use CACS shall be sufficient grounds for denial of payment and may result in removal from consideration for future appointments.

B. A flat fee contract system is available to the Judicial Districts to use in appointing and compensating attorneys for certain appointment types. The Department contracts with individual attorneys for this purpose on a state fiscal-year basis (July 1 through June 30) at rates established by the Department. Claims for payment by attorneys for appointments made under flat fee contracts shall be submitted by appointees in compliance with the procedures specified in the contract and set forth by the State Court Administrator’s Office. Claims for payment not covered by flat fee contracts with the Department shall be submitted in accordance with the procedures described in this Section IV and Attachment E. Judicial districts shall make every effort to appoint flat fee contractors on the appointment list if that compensation method is selected by the district.

5 Chief Justice Directive 04-05 Amended July 2009

C. The following maximum hourly rates are established for any hourly invoicing: (No payment shall be authorized for hourly rates that exceed the “maximum hourly rates”.)

MAXIMUM HOURLY RATES

In court & Out of court Court-appointed Counsel and Guardian ad litem $57.00 per hour (07/01/06)* $60.00 per hour (07/01/07)* $65.00 per hour (07/01/08)*

Non-Attorney Child and Family Investigator $20 per hour $25 per hour (07/01/08)*

Paralegal, Legal Assistant, or Law Clerk Time $25 per hour (07/01/06)*

Court-authorized Investigator $33 per hour (07/01/06)*

Court Visitor $25 per hour

* For work performed on or after date indicated

D. Maximum total fees, established July 1, 2008, that may be paid by the Department for court-appointed counsel, guardians ad litem, non-attorney child and family investigators, or court visitors are as follows:

MAXIMUM TOTAL FEE PER APPOINTMENT

Title 19 – Dependency and Neglect Matters Respondent Parent Counsel $2,870 Non-Attorney Child and Family Investigator $1,250

Title 19 – Other Matters (i.e. delinquency GAL, support, adoption, paternity, etc.) Non-Attorney Child and Family Investigator $ 625

Titles 14 and 15 Counsel (probate only) $2,870 Guardian ad litem (for adult) $2,870 Non-Attorney Child and Family Investigator $1,250 Court Visitor $ 500

Titles 22, 25, and 27 Counsel $ 750 Guardian ad litem (for adult) $ 750

Appeals Counsel and Guardian ad litem (for adult) $2,870 Non-Attorney Child and Family Investigator $1,250

E. Under no circumstances shall the total fees exceed the maximums outlined without a detailed written motion and detailed written order showing the specific special circumstances that justify fees

6 Chief Justice Directive 04-05 Amended July 2009

in excess of the maximum (see guidelines in Attachment D, paragraph B). If a court-appointed attorney chooses to use the support of a paralegal, legal assistant, investigator, or law clerk, the combined fees, inclusive of expenses, of the attorney or non-attorney appointee and other support staff shall not exceed the total maximum outlined.

F. To maintain effective representation by court-appointed counsel and to provide basic fairness to attorneys and others so appointed, the State Court Administrator is directed by the Chief Justice to periodically review and make recommendations concerning the fee schedule established in this CJD and/or Chief justice Order for court-appointed counsel. More than three years shall not pass without such a review.

G. Appointees shall maintain records of all work performed relating to court appointments and make all such records available to the Judicial Department for inspection, audit, and evaluation in such form and manner as the Department in its discretion may require, subject to any applicable attorney/client privilege.

H. In instances in which fees for activity such as travel time, waiting time, and mileage expenses were incurred simultaneously for more than one court appointment, appointees shall apportion the fees or expenses across cases, as applicable. (For example, traveling to court would be billed 50% on the client A appointment and 50% on the client B appointment if the appointee made one trip to cover both clients’ hearings.)

V. Reimbursement to the State for Court-Appointed Costs

For all appointments requiring a finding of indigence, the court shall review the indigency status of the responsible party(ies) or estate at the time of appointment, during the course of the appointment (at the court’s discretion if questions concerning indigence arise), and, if feasible, at the time of case closure. In the case of a court visitor appointment, the petitioner and/or the respondent may be ordered to pay all or a portion of the visitor’s fees and expenses if they are not determined to be indigent. If the court determines, at any time before or after appointment of counsel, guardian ad litem, non-attorney child and family investigator or court visitor, that the responsible party(ies) or estate has the ability to pay all or part of the costs for representation or other costs, the court shall enter a written order that the person(s) or estate reimburse all or part of said costs. Such order shall constitute a final judgment including costs of collection and may be collected by the state in any manner authorized by law.

Collection of fees and costs related to court-appointed representation and other costs may be referred to the Collections Investigator or a private collector with whom the Judicial Department has contracted.

Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel contract rate, or at the hourly cost of providing legal representation for the number of hours reported by counsel to the court. Other costs incurred may also be assessed, including, for example, costs for transcripts, witness fees and expenses, language interpreter fees, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as sign language interpreter fees, may not be assessed.

7 Chief Justice Directive 04-05 Amended July 2009

SECTIONS VI and VII APPLY ONLY TO GUARDIANS AD LITEM AND COURT VISITORS APPOINTED ON BEHALF OF WARDS OR IMPAIRED ADULTS, AND DO NOT APPLY TO APPOINTMENT OF LEGAL COUNSEL.

VI. Training of Guardians ad Litem and Court Visitors Appointed on Behalf of Wards or Impaired Adults

A. Attorneys appointed as a guardian ad litem shall possess the knowledge, expertise, and training necessary to perform the court appointment, and shall be subject to all of the rules and standards of the legal profession.

B. In addition, the guardian ad litem shall obtain 10 hours of continuing legal education, or other courses relevant to an appointment that enhance the attorney’s knowledge of the issues in representation, per legal education reporting period. The court shall require that proof of such education, expertise, or experience be on file with the court at the time of appointment.

C. In those cases in which a non-attorney is appointed as a court visitor, the non-attorney shall also demonstrate the knowledge, expertise, and training necessary to fulfill the terms of the appointment. The court may determine whether the person’s knowledge, expertise, and training are adequate for an appointment, and may require the person to demonstrate his or her qualifications.

VII. Duties of Guardians ad litem and Court Visitors Appointed on Behalf of Wards or Impaired Adults:

A. The person appointed shall diligently take steps that he or she deems necessary to protect the interest of the person for whom he or she was appointed, under the terms and conditions of the order of appointment, including any specific duties set forth in that or any subsequent order. If the appointee finds it necessary and in the best interests of the ward or impaired adult, the appointee may request that the court expand the terms of the appointment and scope of the duties.

B. Persons appointed shall perform all duties as directed by the court, which may include some or all of the duties described below:

1. Attend all court hearings and provide accurate and current information directly to the court. (Although another qualified attorney may substitute for some hearings, this should be the exception.) 2. At the court’s direction and in compliance with applicable statutes, file written or oral report(s) with the court and all other parties. 3. Conduct an independent investigation in a timely manner, which shall include, at a minimum: a) Personally meeting with and observing the client, as well as proposed custodians, when appropriate; b) Reviewing court files and relevant records, reports, and documents;

In cases in which the ward or impaired person is living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person are waived unless extraordinary circumstances warrant the expenditure of state funds required for such visits. However, the appointee shall endeavor to meet the person if and when that person is within 100 miles of the jurisdiction of the court.

VIII. Duties of Judges and Magistrates

A. The appointing judge or magistrate shall monitor the actions of the appointee to ensure compliance with the duties and scope specified in the order of appointment.

8 Chief Justice Directive 04-05 Amended July 2009

B. Judges and magistrates shall ensure that guardians ad litem and court visitors involved with cases under their jurisdiction are representing the best interests of adult wards or impaired adults and performing the duties specified in this order. In providing this oversight, judges and magistrates shall:

1. Routinely monitor compliance with this directive; 2. Encourage local bar associations to develop and implement mentor programs which will enable prospective guardians ad litem and court visitors to learn these areas of the law; 3. Meet with guardians ad litem and court visitors at the first appointment to provide guidance and clarify the expectations of the court; 4. Hold periodic meetings with all practicing guardians ad litem and court visitors as the court deems necessary to ensure adequate representation of wards or impaired adults.

IX. Complaints

A. Colorado’s “Practice Guidelines for Respondent Parents’ Counsel in Dependency and Neglect Cases” (Attachment F to this directive) may provide helpful guidance in the Court’s investigation of the complaint regarding court- appointed Respondent Parents’ Counsel. All written complaints and documentation of verbal complaints regarding the performance of any state paid counsel, guardian ad litem, non-attorney child and family investigator or court visitors appointed pursuant to this directive shall be submitted to the District Administrator. The District Administrator shall forward the complaint to the presiding judge or, if appropriate, the chief judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the District Administrator will forward the complaint to another judge designated for that purpose.

B. If the complaint involves an attorney and the reviewing judge or District Administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or District Administrator and the State Court Administrator of the final outcome of the investigation.

C. Copies of all written complaints and documentation of verbal complaints, and the results of the investigation including any action taken with regard to Judicial paid counsel, guardians ad litem, non-attorney child and family investigators, and court visitors shall be forwarded by the District Administrator to the State Court Administrator’s Office. The State Court Administrator may conduct an additional investigation and take action he believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to, terminating the contract with the attorney, GAL, non-attorney child and family investigator or court visitor.

X. Sanctions

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract and/or removal from the appointment list.

B. B. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

9 Chief Justice Directive 04-05 Amended July 2009

CJD 04-05 is amended and adopted effective July 1, 2009.

Done at Denver, Colorado this 24th day of June, 2009.

/s/ Mary J. Mullarkey, Chief Justice

10 Attachment A Chief Justice Directive 04-05 Revised March 2009

PROCEDURES FOR THE DETERMINATION OF ELIGIBILITY FOR COURT APPOINTED COUNSEL AND GUARDIAN AD LITEM REPRESENTATION ON THE BASIS OF INDIGENCY

Indigency Determination Persons requesting court-appointed representation to be paid by the state on the basis of indigency must complete, or have completed on their behalf, application form JDF208 (“Application for Court-Appointed Counsel or Guardian ad litem”) signed under oath, before such an appointment may be considered by the court. Form JDF208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27 in which the respondent refuses to or is unable to supply the necessary information and cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to §12-37.5-107(2)(b), C.R.S.

Procedures for the Determination of Indigency

• Completion of Form JDF208 by Applicant Persons applying for state paid counsel or guardian ad litem representation must complete, or have completed on their behalf, the Application for Court-Appointed Counsel, form JDF208, and submit it to the court.

• Review of Financial Information by Court Personnel Court personnel shall review the applicant’s information on form JDF208 to determine whether or not the applicant is indigent on the basis of three factors: Income 1 Liquid assets 2 Expenses 3

Criteria for Indigency An applicant qualifies for court appointed counsel or guardian ad litem on the basis of indigency if his or her financial circumstances meet either set of criteria described below.

1. Income is at or below guidelines / Liquid assets equal $0 to $1,500

• If the applicant’s income is at or below the income eligibility guidelines and he or she has liquid assets of $1,500 or less, as determined on form JDF208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation at state expense.

1 Income is gross income from all members of the household who contribute monetarily to the common support of the household. Income categories include: wages, including tips, salaries, commissions, payments received as an independent contractor for labor or services, bonuses, dividends, severance pay, pensions, retirement benefits, royalties, interest/investment earnings, trust income, annuities, capital gains, Social Security Disability (SSD), Social Security Supplemental Income (SSI),Workers’ Compensation Benefits, Unemployment Benefits, and alimony. NOTE: Income from roommates should not be considered if such income is not commingled in accounts or otherwise combined with the applicant’s income in a fashion which would allow the applicant proprietary rights to the roommate’s income.

Gross income shall not include income from TANF payments, food stamps, subsidized housing assistance, veteran’ benefits earned from a disability, child support payments or other assistance programs.

2 Liquid assets include cash on hand or in accounts, stocks bonds, certificates of deposit, equity, and personal property or investments which could readily be converted into cash without jeopardizing the applicant’s ability to maintain home and employment.

3 Expenses for nonessential items such as cable television, club memberships, entertainment, dining out, alcohol, cigarettes, etc., shall not be included. Allowable expense categories are listed on form JDF208.

1 Attachment A Chief Justice Directive 04-05 Revised March 2009

2. Income is up to 25% above guidelines / Liquid assets equal $0 to $1,500 / Monthly expenses equal or exceed monthly income

• If the applicant’s income is up to 25% above the income eligibility guidelines; the applicant has assets of $1,500 or less; and the applicant’s monthly expenses equal or exceed monthly income, as determined on form JDF208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation.

In cases where the criteria above are not met but extraordinary circumstances exist, the court may find the applicant indigent. In such cases, the court shall enter a written order setting forth the reasons for the finding of indigency.

INCOME ELIGIBILITY GUIDELINES (amended March 2009)

Family Size Monthly Income* Monthly Income Yearly Income* Yearly Income plus 25% plus 25%

1 $1,128 $1,410 $13,538 $16,922 2 $1,518 $1,897 $18,213 $22,766 3 $1,907 $2,384 $22,888 $28,609 4 $2,297 $2,871 $27,563 $34,453 5 $2,686 $3,358 $32,238 $40,297 6 $3,076 $3,845 $36,913 $46,141 7 $3,466 $4,332 $41,588 $51,984 8 $3,855 $4,819 $46,263 $57,828

* 125% of poverty level as determined by the Department of Health and Human Services

For family units with more than eight members, add $390 per month to "monthly income" or $4,675 per year to "yearly income" for each additional family member.

Source: FEDERAL REGISTER (74FR4200, 01/23/2009)

2 Attachment B Chief Justice Directive 04-05

County Court District Court Denver Juvenile Court ______County, Colorado Court Address:

Plaintiff/Petitioner:

v. COURT USE ONLY Defendant/Respondent: Case Number:

Division: Courtroom: ORDER APPOINTING COUNSEL, GUARDIAN AD LITEM, CHILD AND FAMILY INVESTIGATOR, CHILD LEGAL REPRESENTATIVE, OR ATTORNEY REPRESENTATIVE UNDER TITLE 12, 14, 19, OR 22

1. Upon Court's own motion; stipulation of the parties; motion of ______; (appointee name) ______(address) ______(phone)______(SSN)/Atty. Reg. # ______is appointed as Counsel, Guardian ad Litem/GAL, Child & Family Investigator, or Child’s Legal Representative for the following child(ren) number of children represented _____ or adult(s):______(address)______(phone) ______.

2. This Order is entered pursuant to Section: Appointment is in the best interest of a minor (under the age of 18). OCR Paid Appointment 19-1-111(1) and 19-3-203(1) appointment of a GAL for a child in a dependency and neglect case. 19-1-111(2)(a)(I, II, III) appointment of a GAL for a child in a delinquency case. 19-1-105(2) appointment of GAL for a child in a truancy matter under Title 22. 19-2-517 appointment of a GAL for a juvenile charged as an adult in a criminal case. 19-4-110 appointment of a GAL in a paternity action as to child support and the establishment of a parent-child relation and the Court finds one or more of the parties responsible indigent. 14-10-116 appointment of an attorney to serve as the Legal Representative of the Child in a domestic relations matter and the Court finds the responsible party indigent OR 14-10-116.5 appointment of an attorney Child & Family Investigator to serve the Court in a domestic relations matter that involves allocation of parental responsibilities and the responsible party is indigent (appoint to the child). Other (e.g. civil matters best interest for a minor. Refer to CJD 04-06 for appointments where determination of indigency are required.) ______. This Order is entered pursuant to Section: Judicial Paid Appointment 19-1-111(2)(c) appointment of a GAL for a parent, guardian, legal custodian, custodian, stepparent, or spousal equivalent in dependency or neglect proceedings for an adult (age 18 or older). 19-3-202(1) appointment of counsel for a Respondent parent in a dependency and neglect action. 14-10-116.5 appointment of a non-attorney Child & Family Investigator to serve the Court in a domestic relations matter that involves allocation of parental responsibilities and the responsible party is indigent (appoint to the child). 19-1-105(2) appointment of counsel for a child in a truancy matter under Title 22. Appointment of a GAL for an indigent impaired adult in a civil case. 12-37.5-107(2) The Court, at its discretion may appoint an attorney if said minor is not represented by counsel - judicial bypass – this case is suppressed and confidential. Other (specify) ______.

3. The appointee is directed to: Represent the best interests of the child(ren). Provide legal representation as counsel for the party. Investigate, report upon, and make recommendations to the Court concerning: parental responsibility parenting time potential dependency and neglect issues allegations of abuse placement conflicts between the parties property division visitation with other parties sentencing recommendations Other (specify) ______

4. The appointee shall be compensated by the: Responsible party(ies) as directed by the Court: (______% paid by Petitioner; _____% paid by Co-Petitioner/Respondent; ______% paid by the State of Colorado because the Court finds Petitioner Co-Petitioner/Respondent indigent). State of Colorado because all responsible parties are indigent (JDF 208 completed). Other (explain) ______

5. Dependency and neglect cases appointment of counsel only. The following have occurred or are applicable to this appointment made: after treatment/permanency plan. after a change of venue. after a motion to terminate parental rights has been filed.

6. The appointee shall have access, without further release or liability, to all relevant information regarding the child(ren) or adults, including, but not limited to, psychiatric, psychological, drug, alcohol, medical, law enforcement, school, social services, and financial reports, evaluations and other information.

NEXT APPEARANCE DATE IS ______(DATE), AT ______(TIME), IN ______(DIVISION).

Date: ______Judge Magistrate

JDF 209 R9/05 ORDER APPOINTING COUNSEL, GUARDIAN AD LITEM, CHILD AND FAMILYINVESTIGATOR, CHILD LEGAL REPRESENTATIVE, OR ATTORNEY REPRESENTATIVE UNDER TITLE 12, 14, 19, OR 22 Copies: ______File ______Appointee ______Party(ies) ______SCAO (With request for payment of fees or monthly appointment report)

Attachment C Chief Justice Directive 04-05 County Court District Court Denver Probate Court ______County, Colorado Court Address:

Plaintiff/Petitioner: COURT USE ONLY v. Case Number:

Defendant/Respondent: Division: Courtroom: ORDER APPOINTING COUNSEL, GUARDIAN AD LITEM, OR COURT VISITOR UNDER TITLE 15, 25, OR 27

1. Upon Court's own motion; stipulation of the parties; motion of ______; (appointee name) ______(address) ______(phone) ______(bar #:/ SSN:) ______is appointed as Counsel, Guardian ad Litem, or Court Visitor for the following child or adult:______(address)______(phone) ______.

2. This order is entered pursuant to Section: 27-10-103 appointment of GAL for minor under 15 who is a ward of DHS or any minor objecting to hospitalization. 27-10-125(4)(a) appointment of counsel for a respondent in an imposition of legal disability - deprivation of legal right or restoration of such right. 27-10-106(10) appointment of counsel in the event of involuntary admittance to 72 hour treatment/evaluation facility. 27-10-107(5) appointment of counsel in short term treatment certification proceedings. 27-10-103 appointment of counsel for minor. 27-10.5-110(5)(a) appointment of counsel for respondent with an imposition of legal disability – removal of legal right. 27-10-111(4.5)(a) appointment of counsel for respondent who refuses medication. 25-1-311(3) appointment of a GAL in involuntary commitment of alcoholic proceedings. 25-1-311(10) appointment of counsel in involuntary commitment of alcoholic proceedings. 25-1-310(6) appointment of counsel in emergency commitment of a person intoxicated or incapacitated by alcohol 25-1-1106(6) appointment of counsel in emergency commitment of a person under the influence of/incapacitated by drugs 25-1-1107(3) appointment of a GAL in involuntary commitment of drug abuser proceedings 25-1-1107(11) appointment of counsel in involuntary commitment of drug abuser proceedings 15-10-403(5) appointment of a GAL to represent the interest of a minor or unborn in a trust, estate, or judicially supervised settlement matter. 15-10-403(5) appointment of a GAL to represent the interest of an incapacitated or unascertained person in a trust, estate , or judicially supervised settlement matter. 15-14-115 appointment of a GAL in a probate matter (appointment for a minor – indigency required.) 15-14-305(1); or 15-14-406(1) appointment of a court visitor in a probate matter (appointment for a minor – indigency required.) 15-14-305(2); 15-14-205(3); 15-14-405(1); 15-14-406(2); or 15-14-312 appointment of counsel in a probate matter (appointment for a minor – indigency required.) other (specify) ______.

3. The appointee is directed and empowered: To represent the interests of the minor party – GAL (OCR appointment) To represent the interests of the party To investigate, report upon and make recommendations to the Court concerning: parental responsibility parenting time potential dependency and neglect issues allegations of abuse client financial status property division Other (specify) ______

4. The appointee shall be compensated by: The captioned estate. The responsible party(ies) as directed by the Court: ______ The State of Colorado because all responsible parties are indigent (JDF 208 completed). The State of Colorado because the parents/guardians refuse to pay for good cause: ______ The State of Colorado because indigency cannot be determined (Title 27 only). Other (explain) ______.

5. The appointee shall have access, without further release or liability, to all relevant information regarding the child(ren) or adult, including, but not limited to, psychiatric, psychological, drug, alcohol, medical, law enforcement, school, social services, and financial reports, evaluations and other information.

NEXT APPEARANCE DATE IS ______(DATE), AT ______(TIME), IN ______(DIVISION).

Dated: ______BY THE COURT

______ Judge Magistrate

JDF 210 ORDER APPOINTING COUNSEL, GUARDIAN AD LITEM OR COURT VISITOR UNDER TITLE 15, 25, OR 27

Copies: ______File ______Appointee ______Party(ies) ______SCAO (With request for payment of fees or monthly appointment report)

Attachment D Chief Justice Directive 04-05 Amended July 2009

Guidelines for Itemized, Hourly Payment: Judicial Paid Appointments Only Court-Appointed Counsel, Guardians ad Litem (for adults), Non-Attorney Child and Family Investigators and Court Visitors

A) Claims for payment on an hourly basis by shall be submitted using the Judicial Department’s online CAC System (if the appointee is authorized to use this system) or submitted to the appointing court on form JDF207 ("Colorado Judicial Department Request and Authorization For Payment Of Fees") including attachments, and shall be in compliance with these guidelines. For appellate counsel only, claims for payment shall be submitted directly to the Court of Appeals. The claims and attachments shall conform to the Procedures for Payment of Fees and Expenses (Attachment E, this CJD). In accordance with this CJD and all other applicable Department policies and procedures, and upon review and approval by the appointing court, the request for payment will be sent to the State Court Administrator’s Office (SCAO) for processing. The SCAO may review, verify, and revise, when appropriate, such authorized requests for payment.

B) A schedule of maximum hourly rates for appointees is established by the Supreme Court in this Chief Justice Directive, section IV.C., and/or by Chief Justice Order. No payment shall be authorized for hourly rates in excess of the Chief Justice Directive or Order. The maximum total fee that may be paid to an appointee for representation on a case is also established in this Chief Justice Directive, section IV.D. This maximum includes appointee fees (both contract flat fees plus hourly, as applicable), allowable incidental expenses, paralegal, legal assistant, and law clerk time.

1) If there are unusual circumstances involved in the case and the appointee determines that additional work must be completed, which will create fee charges over the maximum allowed, pre- approval for fees in excess is to be obtained by submitting a Motion to Exceed the Maximum to the presiding judge/magistrate. (While there may be exceptions in which pre-approval is not possible before additional work is performed, seeking pre-approval should be the norm.) If satisfied that the excess fees are warranted and necessary, the presiding judge/magistrate should approve such motion. The District Administrator (or designee) should deny further payment unless accompanied by a Motion to Exceed the Maximum and an order granting the Motion by the presiding judge or magistrate.

2) The Motion to Exceed the Maximum must cite the specific special and extraordinary circumstances that justify fees in excess. The judge or magistrate, in his or her discretion, may grant approval with an Order for Fees in Excess which provides a maximum up to 150% of the established maximum as outlined in section IV.D. of this Chief Justice Directive. A subsequent Motion to Exceed Maximum must be submitted for the same appointment if total fees are expected to further exceed the maximum established by the judge or magistrate.

C) All court appointees and investigators must submit their JDF207 (or invoice using CACS, as applicable) to the court within six months of the earliest date of billed activity. For example, for work performed during July 1, 2009 through December 14, 2009, the court must receive the bill by December 31, 2009. Any court appointee or investigator desiring to request an exception to the 6- month rule based on unusual circumstances shall make such request in writing to the Director of Financial Services at the SCAO, or the Director's designee, whose decision concerning payment shall be final. Before an exception will be considered, the request must detail the extraordinary circumstances concerning a bill or portion of a bill wherein the activity does not fall within the six- month rule.

1 Chief Justice Directive 04-05 Amended July 2009

D) The District Administrator or his/her designee will carefully review all hourly payment requests submitted for approval. To assist in this review, attorneys, other appointees and investigators must submit a detailed itemization of in-court and out-of-court hours with each request for payment as outlined in Procedures for Payment of Fees and Expenses, Attachment E. Authorization for payment is not automatic, and the District Administrator (or designee) must be satisfied that the number of hours billed and expenses charged are appropriate and necessary for the complexity of the issues involved. If there are questions concerning the reasonableness of the bill, the appropriate judge or magistrate will be consulted. If reimbursement to the state is to be ordered, the District Administrator or his/her designee shall forward the JDF207 to the appropriate judge for an Order for Reimbursement.

E) Requests by appointees for reimbursement of expenses must include itemized statements and accompany the request for payment. In addition, such requests must comply with Maximum Hourly Rates/Maximum Fees Per Appointment as set forth in section IV., C. and D. of this Chief Justice Directive. When practical, a paralegal or legal assistant should be used for tasks that require legal expertise but can be done more cost-effectively by an assistant, such as drafting court motions or performing some legal research. The billable hourly rate for a paralegal or legal assistant time is found in section IV. C. The Judicial Department does not pay for the time of administrative support staff. Therefore, charges for time spent on administrative activities, such as setting up files, typing, copying discovery or other items, faxing documents, making deliveries, preparing payment requests, , and mailing letters are not reimbursable costs. Attorneys are expected to have sufficient administrative support for these activities.

1. Certain court costs are paid individually by the appointing court (not SCAO) with prior court approval. The appointing court pays court costs incurred by counsel. Counsel, other appointees, or investigators should submit the bills for items listed below directly to the local court and should not include these costs for reimbursement on the Request for Payment form (JDF207).

Costs Paid Locally by the Individual Court • Cost of subpoenas; • Fees and expenses of witnesses; • Service of process; • Language interpreters; • Mental Health examinations/evaluations; • Transcripts; • Discovery Costs (including: Lexis Nexis research charges, medical records, etc.)

2. Court-appointed counsel and investigators may request reimbursement for certain reasonable out-of-pocket expenses that are incurred on behalf of their clients. The expenses below may be claimed on the Request for Payment form (JDF207) or using CACS.

Other Allowable Expenses • Copy charges at the rate of $0.10 per page (specify the number of copies made); • Mileage at the rate defined by §24-9-104 C.R.S. (the actual number of miles must be specified for each trip); • Long-distance telephone calls at cost (if total billing exceeds $50, it must include a copy of the telephone bill with the following information highlighted date, phone number, and charges);

Chief Justice Directive 04-05 Amended July 2009

Other Allowable Expenses, cont.

• Postage at cost (regular 1st class mail charges); • Reimbursement for delivery and express mail charges are only reimbursable for a case on appeal. A receipt or invoice for these charges must be attached to the order for payment; • Requests for payment of overnight travel or out-of-state travel require prior authorization by the court and must be in accordance with state travel regulations as described in the Travel section of the Colorado Judicial Department’s Fiscal Policies and Procedures manual. Out-of-state travel expenses incurred by the appointee shall be submitted to the court using form JDF207 with the appropriate copies of travel receipts included.

3. The following items are not authorized for payment or reimbursement.

Non-Allowable Expenses • Phone calls when no contact is made (i.e., no answer, client not available or message left to call back, etc.); • Fax charges; • Parking Fees; • Items purchased for indigent (or other) persons represented which includes meals, books, clothing, and other personal items; • Administrative activities (as previously discussed) • Electronic filing fees for which state funded counsel appointments are exempt.

F) In any case in which a payment has been made to the attorney by a party who is later determined to be indigent, the state will reimburse the attorney for the total number of hours expended on the case, less any payments received from the party for fees incurred prior to the determination of indigence. The payment calculation is at the allowed Chief Justice Directive and/or Chief Justice Order hourly rate applicable to when the activity occurred.

G) Attorneys shall maintain records of all work performed relating to court appointments and make all such records available to the Judicial Department for inspection, audit, and evaluation in such form and manner as the Department in its discretion may require, subject to attorney/client privilege.

H) The Judicial Department will review and respond promptly to any question or dispute concerning a bill received, submitted, or paid. However, due to research time and record retention limitations, there is a time restriction of two years for billing questions and disputes. The two-year restriction starts from the activity date (or date of service) that is in question. For prompt resolution concerning questions or disputes concerning hourly or contract payment requests, all questions and disputes must be directed to the local court or State Court Administrator’s Office immediately when issues arise.

Attachment E Chief Justice Directive 04-05 Amended July 2009 Judicial Paid Appointments * Procedures for Payment of Fees and Expenses *

GENERAL INFORMATION

These procedures apply to requests for payment of fees and expenses for court-appointed counsel, other appointees, and investigators paid by the Judicial Department on an hourly basis. Payment requests shall be submitted via the Department’s online CAC System (CACS) in accordance with the policies and procedures set forth by the State Court Administrator’s Office or, if an exception has been granted pursuant to Section IV.A.3. of this Chief Justice Directive, by using the standardized "Colorado Judicial Department Request and Authorization For Payment of Fees” form JDF207 (Judicial Department Form). Completion, including attachments, should adhere to the procedures described below. Requests for payment that do not include the necessary information will be returned to the appointee or to the court for completion or correction.

All appointees, both hourly and contract, who have not yet received payment from the Judicial Department must submit a completed W-9 form and, if applicable, an “Authorization to Pay a Law Firm” form before a payment can be issued. Payments are issued/submitted to whomever the attorney has authorized and approved on W-9 and “Authorization to Pay a Law Firm” forms. Therefore, if an attorney is no longer with the law firm indicated on a prior W-9 and/or Authorization to pay a Law Firm, he/she must complete a new form(s) and submit them to the Financial Services Division at SCAO. The forms are available from the court or from the Financial Services Division by calling (303) 837-3639.

To change the mailing address, enter the new address on the JDF207 form and check the indicator box for new address. The new address change should be indicated on the first five JDF207 forms submitted to the court. (Or, if using the online CAC System, send the address change to the Colorado Judicial Department, Financial Services Division, 1301 Penn., Ste. 300, Denver, CO 80203, or call for e-mail instructions). This process should not be used if the attorney has changed law firms or is no longer with a law firm.

When billing for multiple cases in representation of the same client (i.e., companion cases) one JDF207 form should be used (or one case chosen as the “master” billing case, if billing online), and the total information for all cases must be provided. Cases that are not concurrent, even if they are to represent the same defendant, should not be reported on the same form.

When an attorney is appointed to continue on a case for the purposes of appeal, payment shall be on an hourly basis even if the original appointment was on a contract, flat-fee basis.

Attachment E Chief Justice Directive 04-05 Amended July 2009

A. PROCEDURES FOR BILLING

1. Detail of Itemized Billing

Time sheets must be attached to the JDF207 to support the summarized hours billed. (If CACS online billing is used, the detail is entered in this system.) Time must be described in sufficient detail to justify the amount of time spent on the activity. Time reported must include all time spent between the beginning and ending dates of the billing and must be in chronological order. Time sheets must be legible – preferably typed. Expenses must be described. A sample itemization is shown on the next page.

Rates may vary pursuant to Chief Justice Directive or Order. The appointee should contact the local district court, State Court Administrator’s Office or visit the web site at www.courts.state.co.us if there is a question concerning the current authorized rates.

a. The billing detail and itemization needs to include date, distinguish between out-of court and in-court time, and a description of service performed. Time must be billed in tenths of an hour using the decimal system. One-tenth of an hour is equal to six (6) minutes. For example, 12 minutes is charged as 0.2 hours.

b. Mileage itemization must include the date of the trip, the purpose of the trip, and the number of miles traveled for each trip.

2. Other Attachments

a. Investigators must include the order of appointment appointing the attorney for whom the investigator is working, the court’s order authorizing an investigator, and the amount of expenses the investigator may incur.

b. If the total fee request (including past payments and the current invoice) exceeds the maximum fee allowed by this Directive, a copy of the court’s order authorizing fees to exceed of the maximum must be submitted. Submitting this copy once is sufficient.

c. If total expenses exceed $50, all receipts or invoices for those expenses must be submitted.

d. All receipts for any expenses outside of the guidelines and an explanation for the additional costs must be submitted.

Attachment E Chief Justice Directive 04-05 Amended July 2009

John Sample, Attorney at Law

Date Activity In-court Out-of-court Paralegal 05/06/09 Court – temp. protection custody hearing 0.4 05/06/09 Conf with client to discuss hearing 1.1 06/05/09 Review social services report 0.5 06/09/09 Court appearance, review hearing 0.3 06/10/09 Meet with client to discuss permanency plan 1.0 06/11/09 Prepare motion to reconsider placement 0.2 08/07/09 Travel to Canon City Prison (57 miles) 1.4 08/07/09 Conf. with client and Social Services 1.0 08/07/09 Prepare motion for placement 0.2 08/14/09 Hearing concerning motion on placement 0.3 Dates of service 05/06/09 – 08/14/09 Total hours 1.0 5.0 0.4

SUMMARY OF FEES Activity: 6.0 hours @ $65 per hour $390.00 0.4 hours @ $25 per hour $10.00 TOTAL FEES $400.00

TOTAL MILEAGE 57 miles @ $0.50 per mile/(or rate defined by §24-9-104 $28.50 C.R.S. )

OTHER EXPENSES Copies, Social Services report = 12 @ $0.10 $1.20 Postage $0.44 TOTAL OTHER EXPENSES 1.64

TOTAL BILLING $430.14

COMPLETION OF THE JDF207 (Hourly Billing if not billing online)

Completion of the JDF207 form is required by the Judicial Department for payment of court appointees appointed on an hourly basis unless the appointee has been authorized to invoice using CACS (online system). The appointee should keep a copy and submit the original plus one copy. The form is in triplicate and includes copies for the appointee, the court file, and the State Court Administrator’s Office (SCAO). All applicable sections of the form should be completed as indicated in the instructions. Attach all required documents before submitting to the local court. All incomplete Requests for Payment will be returned to the appointee for correction(s).

Attachment E Chief Justice Directive 04-05 Amended July 2009 Section I. Enter the case number of the charges being billed. When billing for multiple cases in representation of the same client (i.e., companion cases), enter all applicable case numbers. If the bill is for appellate charges, include the appeal case number and the original case number being appealed.

Include the name(s) and number of persons represented, the name of the case, applicable county, name of appointing judge/magistrate and current judge/magistrate. Indicate if the case jurisdiction is district or county.

Section II. Enter all applicable appointee information, attorney registration number, name, complete address, phone, fax, e-mail. If the address has changed, check new address box. For more information concerning changes, review the General Information section in this attachment.

The Social Security Number or Tax Id Number must be included on each JDF207 (for more information concerning authorized payee changes, review the General Information section in this attachment).

Indicate the appointment date, if you are an original or substitute appointee, if the case has or has not gone to trial, if the case was originally under contract. If originally under contract, explain why an hourly bill is being submitted and the date circumstances changed resulting in hourly billing.

Section III. Indicate the type of representation provided.

Section IV. Indicate the authority/statute title allowing for the appointment. This is indicated on the original appointment form/order.

Section V. The indigency status of the person represented must be noted. If the person is found indigent, use the date of determination. If the person is not indigent, indicate which statement is applicable to the party represented and if reimbursement is to be ordered by the presiding judge. This information is usually included in the order of appointment or may be found in the application for court-appointed counsel (form JDF208) or another affidavit of indigence, as requested by the court.

Section VI. Under this section all charges are to be summarized.

For the activity from date, enter the first chronological date of activity billed from the itemized detail document. For the activity to date, enter the last chronological date in which activity occurred as itemized in the detail document. Group the start and to date for activities in which the effective date of the maximum rates as set by Chief Justice Directive or Chief Justice Order are the same.

Instructions for summarizing attorney hours and fees are located on the reverse side of the Request and Authorization for Payment of Fees form (JDF207) #5.

For non-attorney billing activity, summarize all non-attorney hours by category. Next, apply the maximum rate as set by Chief Justice Directive or Chief Justice Order and enter the total charge

Attachment E Chief Justice Directive 04-05 Amended July 2009 requested in the right column. Summarize all expenses by type, apply the correlating rates and/or receipts and enter the total charge per category. Charges must correspond to attached receipts.

Total all charges and calculate total amount billed.

Include all prior amounts invoiced for the appointment in the “Total Amount Previously billed” line, (excluding the current request).

Determine the cumulative total of fees charged by appointee for the case by adding the “Total Amount Previously billed” plus the current request amount. If the cumulative total is over the authorized maximum, check the indicator box “Exceeds allowed maximum”. Include the Motion to Exceed Maximum and the approved Order to Exceed Maximum (if possible, this should be judge/magistrate pre-approved and not requested after services are performed).

Appointee signature and date are required.

If this is the final bill, check the “Final Bill” box.

Attachment F Chief Justice Directive 04-05 Amended July 2009 Practice Guidelines for Respondent Parents’ Counsel in Dependency and Neglect Cases

Preface

In order to ensure quality representation for all litigants, the Colorado Supreme Court’s Respondent Parents’ Counsel Task Force developed practice guidelines for respondent parents’ counsel in dependency and neglect cases. These practice guidelines are based in part on the American Bar Association Standards for Respondent Parent Representation that were approved in August 2006.

There are nine practice guidelines that were developed through a collaborative process that involved Colorado judges and magistrates, respondents’ counsel representing parents in dependency and neglect cases, City and County Attorneys, and Guardians ad Litem for children and parents. The comments set forth with each guideline explain and illustrate the meaning and purpose of the guideline and are intended as a guide to its interpretation.

These guidelines are intended to assist in ensuring quality representation for respondent parents, ensuring due process of law, and affording parents the best opportunity to maintain familial relationships successfully. All attorneys appointed as respondent parents’ counsel are subject to the rules and standards of the legal profession, including the additional responsibilities set forth by Colorado Rule of Professional Conduct 1.14. Violation of a guideline should not in and of itself give rise to a cause of action nor should it create any presumption that a legal duty has been breached or that a professional ethical violation has occurred. These guidelines are intended to promote quality representation and uniformity of practice among the attorneys appointed to defend a parent’s fundamental liberty interest in the care and custody of his or her child.

One TRAINING

An attorney appointed as respondent parents’ counsel in a dependency or neglect case (hereinafter “RPC”) shall possess the knowledge, expertise, and training necessary to perform the court appointment. RPC shall be familiar with the Colorado Children’s Code, basic agency practices, procedural rules of the court, the applicable Chief Justice Directives, local custom or practice, and relevant state and federal law. In addition, RPC shall obtain 10 hours of the required continuing legal education courses or any other modified training requirements established by subsequent Chief Justice Directive practice standards, rule or statute, which are relevant to the appointment and that enhance the attorney’s knowledge of the issues in best interest representation. These requirements should be met prior to attorney’s first appointment and per legal education reporting period. When submitting an application to provide attorney services or to renew a contract, the attorney shall provide the district of appointment with proof of compliance with this requirement.

Attachment F Chief Justice Directive 04-05 Amended July 2009 Commentary: Dependency and neglect cases are both factually and legally complicated. Not only do these cases involve difficult issues related to litigation, they also involve numerous other systems that must be navigated by parents whose families are involved in the child welfare system.

RPC who have a basic knowledge and understanding of the practices of the social service agencies with whom their clients must deal may facilitate earlier, more appropriate services by extra-judicial advocacy on behalf of their client with the agency.

RPC must be able to seek help from the court when necessary. This requires a working knowledge of statutory remedies, rules of procedure, applicable Chief Justice Directives (including CJD 96-08 and 98-02), and local court practices. In addition, if the child/ren is eligible for membership in an Indian Nation, the family and child/ren have additional legal rights under the Indian Child Welfare Act.

Counsel should attend court- or DHS-sponsored trainings, continuing legal education seminars, or other specialized programs to assist them in developing the necessary expertise in dependency practice. These trainings should include multidisciplinary trainings that educate the attorney on, among other things, substance abuse evaluations, mental health or psychological evaluations, visitation assessments, safety assessments, and other family reunification services.

Two REPRESENTATION

RPC shall diligently advocate for the client at all stages of the proceedings. RPC shall be adequately prepared for proceedings. A RPC shall make reasonable efforts to expedite litigation consistent with the interests of his or her client. RPC must be aware of the impact that his or her client’s dependency and neglect case may have on other legal proceedings. RPC shall advise the parents of his or her rights to information and decision making while the child/ren is in out-of-home placement.

Commentary: RPC should personally attend all court hearings and provide accurate and current information directly to the court. When counsel is unavailable for a court appearance, substitute counsel should be obtained. Participating in pretrial proceedings may improve case resolution for the parent either to help the client obtain early access to services or to deter the agency from filing a petition or removing the client’s child if a petition is filed. The attorney should discuss available services with the client. RPC must balance the need for early treatment for the client against the potential waiver of important rights at a very early stage of the proceedings.

Delaying a case often increases the time a family is separated, and can reduce the likelihood of reunification. Additionally, continuances may actually prejudice a client’s rights, particularly in expedited permanency planning cases, where the Adoption and Safe Families Act timelines continue to run regardless of any delay in the proceedings. If a continuance is imperative to protect the client’s interests, RPC should request the continuance in writing, as far as possible in advance of the hearing, and should request

Attachment F Chief Justice Directive 04-05 Amended July 2009 the shortest delay possible, consistent with the client’s interests. If there is a delay in either the provision of services to the family or the procedural status of the case, RPC should take care to request the Court make “good cause” findings for the extension of Expedited Permanency Planning guidelines.

Three COMMUNICATION

RPC shall meet or otherwise communicate with the client on a regular basis to the greatest extent possible. Communication with imprisoned clients raises special challenges, and the RPC representing an incarcerated respondent parent shall take particular care to ensure that the incarcerated parent is kept informed of the status of the case.

Counsel shall also stay in communication with other professionals involved in the case or with the client.

Commentary: Representing parents in dependency and neglect cases presents unique challenges for an attorney. Parents are frequently unemployed, homeless, incarcerated, or without telephones. Financial circumstances, substance abuse, or unresolved mental health issues may cause parents to have extremely unstable living arrangements that make it difficult and sometimes impossible, despite counsel’s best efforts, to communicate with the client.

Establishing a system for communication is one method of making certain that there is ongoing contact between RPC and the client. RPC may wish to have clients acknowledge receipt of an advisement of their responsibility to stay in communication with RPC. When possible, meeting with the client well in advance of court hearings outside of the courthouse will assist RPC in effectively representing the client. It is extremely important that the client understands each stage of the case and the consequences that may flow from non-compliance with court orders. RPC should make sure that his or her client understands any court orders.

Incarcerated parents are in an especially vulnerable position regarding their parental rights. Treatment plans adopted to remediate the difficulties that bring families before the court often cannot be realistically implemented due to the parental incarceration. This problem is exacerbated by the difficulty in communicating with someone in jail or prison. RPC representing an incarcerated parent must take communication limitations into consideration in case planning. There may, for example, be long time lags between a message and a response.

The parent’s attorney should communicate with attorneys for the other parties, court appointed special advocates (CASAs) or guardians ad litem (GALs). Similarly, the parent’s attorney should communicate with the caseworker and service providers to learn about the client’s progress and their views of the case, as appropriate. The parent’s attorney should have open lines of communication with the attorney(s) representing the client in related matters such as any criminal, protection from abuse,

Attachment F Chief Justice Directive 04-05 Amended July 2009 private custody, or administrative proceedings to ensure that probation orders, protection from abuse orders, private custody orders, and administrative determinations do not conflict with the client’s goals in the dependency and neglect case.

Four DOCUMENTATION

Unless prohibited by order of the court or confidentiality rules or statutes, RPC shall access copies of pleadings, court reports, court orders, the child welfare agency case file, and all other documents that are necessary to represent the client. When possible, copies of treatment plans and court orders shall be provided and explained to the client.

Commentary: Miscommunication or misunderstanding is less likely when the client possesses information in written form. Having information in writing also allows a client to review the information with other professionals involved in his or her case. In order for a parent to make informed decisions regarding the course of the litigation, including whether he or she is in compliance with a court ordered treatment plan, the client should also have access to all of the necessary and available documents in advance of each hearing.

Five INVESTIGATION

RPC shall conduct an independent investigation of facts at every stage of the proceedings through a review of records and interviews of witnesses or professionals, as dictated by the needs of the case.

Commentary: The parent’s attorney must take all reasonable steps to prepare an independent case theory, and a thorough investigation is an essential element of that preparation. Consistent with the client's interests and goals, and as permitted by agreement or court order, RPC should contact service providers who work with the client, relatives who can discuss the parent’s care of the child, the child’s teacher, caregivers, or other people who can develop facts helpful to the client, or to clarify information relevant to the case. Pending availability of funding for investigators, the attorney should petition the court for funds to hire an investigator.

Six AGENCY ADVOCACY

RPC shall, consistent with the interests of their clients, engage in case management planning, advocate for appropriate family or individual services, and, where appropriate, explore placements of the child/ren with kin when return to the parent may not be a viable option.

Attachment F Chief Justice Directive 04-05 Amended July 2009 Commentary: Case management planning is critical to the parents’ successful resolution of a dependency and neglect case. Making certain that the treatment plan for the parents and child/ren is client-specific, reasonable, practical, culturally appropriate and that it adequately addresses the issues that resulted in the case being filed is a crucial part of RPC’s representation.

RPC must not only have an understanding of the issues at the initiation of the case, but also of the issues that are disclosed as the case evolves. Dependency and neglect cases are dynamic by their very nature. This often requires adjustments of the services provided to the family during the course of the litigation. Effective advocacy for appropriate adjustments requires RPC to advocate informally with the social services agency and, when necessary, formally before the court.

If parental incarceration or other circumstances justify a finding that no appropriate treatment plan can be identified to reunify the parent and child/ren, RPC may serve the client’s interest by advocating for an outcome that preserves the familial relationship. To this end, RPC should counsel clients to share information about potential kinship placement and extended family members as mandated by ICWA or other requirement. RPC should advocate for concurrent planning when it allows an opportunity for a more positive result for the client.

Seven CLIENT LOCATION

RPC shall make good faith efforts to locate his or her client.

Commentary: Upon accepting an appointment, RPC should advise the client of his or her responsibility to stay in contact with the attorney. In order to protect the due process rights and liberty interests of his or her client, RPC representing a missing parent should make good faith efforts to locate that person. Good faith efforts include leaving contact information with the client’s family, the caseworker, or service providers, or sending a letter to the last known address of the parent, address correction requested. If the attorney is unable to find and communicate with the client after initial consultation, the attorney should assess what action would best serve the client’s interests. This decision must be made on a case-by-case basis. In some cases, the attorney may decide to take a position consistent with the client’s last clearly articulated position. In other cases the attorney may decline to participate in the court proceedings in the absence of the client because that may better protect the client’s right to vacate orders made in the client’s absence. After a prolonged period without contact with the client, the attorney should consider moving to withdraw from representation.

Attachment F Chief Justice Directive 04-05 Amended July 2009

Eight CULTURAL AWARENESS

RPC shall be aware of the client’s culture and how that culture may impact the parents’ participation in the case.

Commentary: A significant number of respondent parents who enter the child welfare system are from cultures other than the community’s dominant culture. There may be language barriers or cultural considerations that affect the client’s ability to understand what the court is requiring.

Unless RPC is respectful of the client’s culture and sensitive to the impact of these considerations upon the client’s participation in the case, the attorney cannot be sure that the client understands the nature of the proceedings or what is required of the client or the possible consequences for failing to comply with court-mandated treatment plans.

Nine APPEALS

RPC shall make certain that appellate options, timelines, and requirements are fully explained to parents whose rights have been affected by orders of the court. RPC handling the appeal shall keep the client informed as to the status of any appeal that is filed.

Commentary: Appeals in dependency and neglect proceedings are now expedited pursuant to Rule 3.4 of the Colorado Appellate Rules. RPC must discuss the specific requirements of an appeal with the client at the earliest practicable time so that the appellate timelines do not lapse before the client can make an informed decision about whether to seek appellate review. RPC must also be familiar with local practices that may affect the ability of counsel to perfect the appellate record. Specifically, RPC must be familiar with the local compliance plan adopted by each jurisdiction pursuant to Chief Justice Directive 05-03 for the transcription of the record for appeal.

--i' .. Chief Justice Directive 87-01 Amended January 1, 1998

~ SUPREME COURT OF COWRADO

Office of the Chief Justice

DIRECTIVE CONCERNING COURT COMPENSATION OF EXPERT WITNESSES

In an effort to control costs associated with state court cases, the following policy shall apply to expert witnesses who are entitled to compensation paid by the Colorado Judicial Department pursuant to Section 13-33-102(4),5 C.R.S. (1997). The court may order an hourly fee in excess and/or a total fee in excess of the following guidelines only upon a showing by the requesting attorney that said fee is necessaryand reasonable and was incurred with the prior approval of the court.

I. The hourly fee paid expert witnesses with the following advanced educational degrees or professional certifications must be reasonableand may not exceed $100.00:

Doctor of Medicine (M.D. , including specialties) Doctor of Psychology (Psy.D.) Doctor of Philosophy (ph.D.) Doctor of Dental Science (D.D.S.) Doctor of Osteopathy (D.O.) r Doctor of Education (Ed.D.) Doctor of I urisprudence (I. D .) Certified Professional Engineer (p .E.) Certified Public Accountant (C.P .A.)

2. The hourly fee paid all other expert witnesses must be reasonable and may not exceed $80.00.

3. No expert witness fee in excess of ten hours at the hourly rate (i.e. , a total fee in excess of $1,000.00 for experts listed under paragraph one or in excess of $800.00 for experts under paragraph two) may be incurred without prior written court approval. The motion requesting approval shall include an estimate of the total fees and expenses in excess of those allowed, including any projected travel time, travel expenses, and/or food and lodging expensesdue to extraordinary circumstances. The court's approval of excess fees and/or expensesmust accompany any payment request described under paragraph four below.

4. After the expert witness's services have been completed, the attorney retaining the expert witness shall file with the court's district administrator a motion and order to pay expert witness fees, using the form attached. An itemized statement from the expert witness detailing the services, the hourly rate, and the hours spent shall be attached to the motion. Any expensesrequested, as described under paragraphs five and six , below, shall be itemized and included in the motion and order. The district administrator or designee shall review all submitted motions, orders, and itemizations for compliance with this directive before forwarding to the judge or magistrate for approval. 1

County Court District Court Denver Juvenile Court Denver Probate Court ______County, Colorado Court Address:

Case Name:

COURT USE ONLY Attorney or Party Without Attorney (Name and Address): Case Number:

Phone Number: E-mail: FAX Number: Atty. Reg. #: Division Courtroom MOTION AND ORDER TO PAY EXPERT WITNESS FEES AND EXPENSES

I, ______, move the Court for an order authorizing payment of the following expert witness fees and/or expenses, based on the attached itemized statement from the expert witness. Said fees were incurred pursuant to §13-33-102(4), C.R.S., in the above case and are reasonable for the services performed. Fees and compensation follow the policy and guidelines set forth in Chief Justice Directive 87-01.

Expert’s Name, Degree/Certification, Address, and Social Security/or Federal Tax Identification number:

Name: ______Degree/Certification: ______

Address: ______City/State/Zip: ______

Social Security Number or Federal Tax Identification Number: ______

(A completed W-9 form containing the payee’s Tax Identification Number (Social Security Number or Federal Employer Tax Identification Number) must be on file before a payment will be processed. If the payee has not previously received payment from the State of Colorado Judicial Department, a W-9 form must be completed, including the payee’s signature, and attached to this form along with required payment documentation as per CJD 87-01 guidelines. A W-9 form can be accessed and printed from the following web sites): http://www.irs.gov/pub/irs-fill/fw9.pdf or http://www.colorado.gov/dpa/dfp/sco/forms/substitute%20form%20w-9.pdf

Fees: Case preparation: Hourly rate $ ______x ______hours = $ ______Testimony time Hourly rate $ ______x ______hours = $ ______Time waiting to testify due to the scheduled appearance being delayed Hourly rate $ ______x ______hours = $ ______Travel time Hourly rate $ ______x ______hours = $ ______

Total Fees $ ______

Expenses: Mileage/travel expense at statutory rate Rate $ ______x ______miles = $ ______or Airfare for out-of-state witness (receipts attached) $ ______Food and/or lodging expenses due to extraordinary circumstances (receipts and itemization attached) $ ______

Total Expenses $ ______

Total Payment Requested $ ______

Dated: ______Signature of Attorney

Reviewed by District Administrator/designee: ______Date: ______Approved by Judge or Magistrate: ______Date: ______

JDF 204 R8/04 MOTION AND ORDER TO PAY EXPERT WITNESS FEES AND EXPENSES HANDOUT 15: COLORADO PRACTICE MATERIALS

Colorado Practice Materials Resource Checklist

Compiled by Alan Pannell William A. Wise Law Library, University of Colorado Law School Updated October 2010

Colorado Practice Series

Vol 1-3A Krendl, Methods of Practice (with Colorado Business Corporation Act Deskbook) Vol 4-5 Civil Rules Annotated Vol 5A Colorado Handbook on Civil Litigation Vol 6 Civil Trial Practice Vol 7-8A Personal Injury Practice: Torts and Insurance Vol 9-10 Creditors' Remedies, Debtors' Relief Vol 11-13 Civil Procedure Forms & Commentary Vol 14-15 Criminal Practice and Procedure Vol 16-16A Colorado Employment Law and Practice Vol 17 Colorado Workers' Compensation Practice and Procedure Vol 18 Colorado Appellate Law and Practice Vol 19-21 Colorado Family Law and Practice Vol 22 Colorado Handbook on Evidence

Topic-Specific Materials

Criminal Law

Colorado DUI Benchbook H. Patrick Furman et al.

Criminal Practice and Procedure (Colorado Practice Series) Robert J. Dieter

Elder Law/Estate Planning

Colorado Estate Planning, Will Drafting & Estate Administration Forms with Commentary C. Jean Stewart

Colorado Estate Planning Handbook David K. Johns et al.

Colorado Handbook of Elder Law Susan Fox Buchanan et al.

Colorado Law of Wills, Trusts, and Fiduciary Administration James R. Wade et al.

HANDOUT 15: COLORADO PRACTICE MATERIALS

Colorado Probate System James R. Wade et al.

Fundamentals of Colorado Trust Practice: Counseling Clients, Drafting Trusts, and Building a Successful Practice Carol A. Payne

The Green Book: Selected Colorado Materials on Wills, Estate, Trusts & Taxes David K. Johns et al.

The Orange Book: Colorado Estate Planning Forms

Family Law

Colorado Domestic Relations Forms Robert T. Hinds & Albert M. Bonin

Colorado Family Law and Practice (Colorado Practice Series) Frank L. McGuane, Jr., Kathleen A. Hogan & Brenda L. Storey

Practitioner’s Guide to Colorado Domestic Relations Law Gretchen L. Aultman

Landlord-Tenant Law

Rights and Obligations: Colorado Landlord-Tenant Law from the Perspective of a Tenant Advocate Manuel Ramos & Continuing Legal Education in Colorado

Annual Surveys

Annual Survey of Colorado Law (Colorado Lawyer)

Annual Tenth Circuit Survey (DU Law Review)

Litigation Materials

Court Rules

Colorado Court Rules: State

Colorado Court Rules: Federal

Colorado Revised Statutes (LexisNexis) Court rules in last two volumes

Colorado Revised Statutes Annotated (West) 2

HANDOUT 15: COLORADO PRACTICE MATERIALS

Civil procedure rules in volumes 4-6; other rules located with relevant code sections

Colorado Rules of Evidence Annotated

Civil Procedure

Civil Procedure Forms and Commentary (Colorado Practice Series) Debra Knapp

Civil Rules Annotated (Colorado Practice Series) Sheila K. Hyatt & Steven A. Hess

Discovery: A Handbook for Colorado Practitioners William H. Remine & Continuing Legal Education in Colorado

Trial Practice

Civil Trial Practice (Colorado Practice Series) David R. DeMuro

Colorado Causes of Action: Elements, Defenses, Remedies, Forms

Colorado Courtroom Handbook for Civil Trials Victoria C. Swanson & Continuing Legal Education in Colorado

Colorado Handbook on Civil Litigation (Colorado Practice Series) Stephen A. Hess

Colorado Litigation Forms and Analysis Richard W. Laugesen

Damages in Colorado Civil Trial Practice Dennis W. Brown et al.

On Depositions in Colorado

Trial Handbook for Colorado Lawyers Patricia K. Kelly & J. Patrick Kelly

Evidence

Colorado Evidence Courtroom Manual Arthur Best et al.

Colorado Evidence Handbook Victoria C. Swanson

Colorado Evidentiary Foundations Continuing Legal Education in Colorado et al.

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Colorado Handbook on Evidence (Colorado Practice Series) Steven A. Hess & Sheila K. Hyatt

Colorado Rules of Evidence Annotated Alan H. Bucholtz

Colorado Rules of Evidence With Objections William G. Meyer et al.

Playing by the Rules: Winning with Evidence in Colorado Family Law Cases (with CD-ROM) Denise K. Mills

Jury Instructions/Verdicts

Colorado Jury Instructions for Civil Trials Colorado Supreme Court Committee on Civil Jury Instructions & Continuing Legal Education in Colorado

Colorado Jury Instructions 4th, Civil Colorado Supreme Court Committee on Civil Jury Instructions

Colorado Jury Instructions, Criminal Colorado Supreme Court Committee on Criminal Jury Instructions

Jury Verdict Reporter of Colorado: Weekly Summaries of Colorado Jury Verdicts

Appellate Procedure

Colorado Appellate Handbook Janice B. Davidson & Continuing Legal Education in Colorado

Colorado Appellate Law and Practice (Colorado Practice Series) Leonard P. Plank & Anne Whalen Gill

Professional Resources

Books

Colorado Attorney’s Professional Liability Handbook Robin L. Beattie

Colorado Ethics Handbook Colorado Bar Association, Ethics Committee

Lawyer’s Professional Liability in Colorado: Preventing Legal Malpractice and Disciplinary Actions Michael T. Mihm & Continuing Legal Education in Colorado

HANDOUT 15: COLORADO PRACTICE MATERIALS

Practitioner’s Guide to the Attorney-Client Privilege and the Work Product Doctrine Thomas E. Spahn

Periodicals

Colorado Lawyer http://www.cobar.org/tcl

The Docket (Denver Bar Association) http://www.denbar.org/docket

Law Week Colorado http://www.lawweekonline.com

Associations

Colorado Bar Association http://www.cobar.org

Colorado Criminal Defense Bar http://www.ccdb.org

Colorado Trial Lawyers Association http://www.ctlanet.org/co

Denver Bar Association http://www.denbar.org

Women’s Bar Association http://www.cwba.org

Court Resources

Colorado State Judicial Branch www.courts.state.co.us

. Colorado Chief Justice Directives http://www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm

. Colorado Water Courts www.courts.state.co.us/Courts/Water/Index.cfm

Colorado Supreme Court www.courts.state.co.us/Courts/Supreme_Court/Index.cfm

U.S. Courts for the Districts of Colorado www.cod.uscourts.gov

U.S. Court of Appeals for the 10th Circuit www.ca10.uscourts.gov 5

HANDOUT 15: COLORADO PRACTICE MATERIALS

Colorado State Government/Legal History

Websites

Colorado General Assembly http://www.leg.state.co.us

State of Colorado (Includes Local Government Websites) http://www.colorado.gov

Code of Colorado Regulations (Colorado Administrative Code) http://www.sos.state.co.us/CCR/Welcome.do

Colorado Register http://www.sos.state.co.us/CCR/RegisterHome.do

Colorado Agencies http://www.colorado.gov/colorado/agencies.html

Attorney General Formal Opinions http://www.ago.state.co.us/ag_opinions.cfm

Governor’s Executive Orders http://www.colorado.gov/governor/executive-orders.html

Research Resources

Colorado Law Libraries

Colorado Supreme Court Library http://cscl.colibraries.org

US Tenth Circuit Library http://www.ca10.uscourts.gov/library

Colorado Legislative Council Library http://www.state.co.us/gov_dir/leg_dir/lcsstaff

National Indian Law Library http://www.narf.org/nill/catalog/catalog.htm

University of Colorado, Wise Law Library http://www.colorado.edu/law/lawlib

University of Denver, Westminster Law Library http://law.du.edu/library

HANDOUT 15: COLORADO PRACTICE MATERIALS

Online Library Catalogs

Colorado Virtual Library http://coloradovirtuallibrary.org

Prospector http://prospector.coalliance.org

WorldCat http://www.worldcat.org

Research Guides

Colorado Legal Resources: An Annotated Bibliography Robert C. Richards, Jr. and Barbara Bintliff

Online

CoALL Legal Research Corner http://www.aallnet.org/chapter/coall/lrc.asp

Colorado Bar Association Legal Research Links http://www.cobar.org/hotlinks.cfm

CU Law Library Research Guides http://www.colorado.edu/law/lawlib/researchtools.htm

DU Law Library Colorado Research Guides http://www.law.du.edu/library/content.cfm?pg=research

HANDOUT 16: RESOURCE GUIDE

RESOURCE GUIDE

Juvenile Law: A Resource Guide for Practioners35

By Colene Flynn Robinson Colene Flynn Robinson directs the Juvenile Law Clinic at the University of Colorado Law School, and co-directs the CU Juvenile and Family Law Program—(303) 492-0166, [email protected]. She previously had a solo practice in the same areas and has worked as the Program Director of the National Association of Counsel for Children.

Abstract: Juvenile law is a dynamic area that encompasses both the law and the social sciences, providing Colorado practitioners with unique challenges to staying well-informed. This article covers the main treatises and secondary sources in child welfare for juvenile law attorneys. Juvenile law, meaning child welfare and delinquency practice, is a fast-paced, resource- dependent area of practice. This specialized area of law is changing rapidly from its child- saving, children-as-property roots, to a new paradigm of children as rights-based citizens. It requires a thorough understanding not only of legal processes and procedures, but of the rapidly evolving social sciences. For new practitioners or experienced practitioners seeking new information, this resource review is offered as a quick way to focus one’s research quickly.

Substantive Law

Colorado Law

Practitioners in juvenile law need to know child welfare law, both state and federal. Juvenile law in Colorado is controlled by Title 19, the Children’s Code of the Colorado Revised Statutes C.R.S. 19-1-101 et seq. The 2005 Colorado Judicial Benchbook, Stepping Up To Juvenile Court extensively and practically covers the law. With charts and checklists, it explains child welfare procedure and addresses the questions before the court at each hearing. Practitioners also need to be familiar with Volume 7 of the Colorado Code of Regulations, which deals with child welfare.

Federal Law An excellent reference book, written by the nation’s top scholars and practitioners, is Child Welfare Law and Practice: Representing Children, Parents, and State Agencies in Abuse, Neglect, and Dependency Cases, Ventrell and Duquette, (Bradford Publishing Co., 2005, 2nd edition expected 2010). This book is commonly referred to as the “Red Book.” It takes an exhaustive look at child welfare practice in America. It covers the federal child welfare statutes, such as federal funding acts, the Child Abuse and Prevention Act, and Titles IV-B

35 Originally published at 36 The Colorado Lawyer 10 (Oct. 2007). Permission to reprint on file with author. 1

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and IV-E of the Social Security Act. It also discusses constitutional law, including the development of parental rights.

For a more basic understanding of child welfare procedure and substantive issues, the Improving Court Practicei series is excellent. A quick, easy-to-use reference series from the National Council of Juvenile and Family Court Judges (NCJFCJ), these books cover each hearing, from the temporary shelter hearing to adoption. They identify the purpose and timing of each hearing, and they discuss how to prepare for the hearing and address questions that must be answered at each hearing. They also have easy-to-use laminated cards for each hearing. These cards, included with each book, provide a checklist of necessary parties, questions to ask, and best practices.

Ethics and Standards of Practice

In addition to substantive law, practitioners must be familiar with the ethics and standards of practice of working with children and families. In part due to the complexity of the roles of the attorneys in child welfare cases, several Chief Justice Directives (CJDs) help provide guidance: CJD 04-04 governs court-appointed counsel in delinquency cases; CJD 04-05 addresses respondent parents’ counsel and others; and CJD 04-06 speaks to attorneys representing children and appointments handled by the Office of the Child’s Representative (OCR).

Representing children creates various potential ethical problems because attorneys must represent what is in the child’s best interests, as opposed to performing client-directed representation. As lawyers, all guardians ad litem (GALs) are bound by the Colorado Rules of Professional Conduct. At times integrating the Children’s Code with the duties of the GAL can be confusing.

For an excellent discussion of the potential problems, see “Ethical Issues for Guardians ad litem Representing Children in Dependency and Neglect Cases.” This article explores the most common ethical issues confronting GALs, such as the duty of loyalty, duty of confidentiality, and conflicts of interest. In her book Legal Ethics in Child Welfare Cases, Jennifer Renne has a longer discussion on this topic, and also covers ethics for agency attorney and respondent parent counsel. A more academic discussion of these issues can be found in Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions by Jean Koh Peters.

Attorneys also should be familiar with the applicable standards of practice, including the American Bar Association’s (ABA) Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases. The ABA also has produced Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases and Standards of Practice for Attorneys Representing Child Welfare Agencies.

Evidentiary Hearings

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Lawyers working in juvenile law need to be prepared for contested hearings at several different points in the case. An excellent reference guide for general evidentiary manners is the Colorado Evidence: 2005–2006 Courtroom Manual by Best, Hardaway, Jamison, and Weissenburger. This book was specially designed for use in the courtroom, and provides fast, authoritative answers on questions likely to arise during contested evidentiary hearings.

Another must for juvenile law practitioners is Professor John Myers’ book, Myers on Evidence in Child, Domestic, and Elder Abuse Cases. Aimed mostly at criminal prosecution of child abuse and neglect, this book covers pertinent case law and medical and psychological research. Myers discusses a range of potential issues, such as children’s testimonial competence, proving physical and sexual abuse, and evidentiary objections.

Advocacy on Collateral Issues

Immigration

Because immigration law is changing so rapidly, it can be difficult to keep up-to-date with the latest laws affecting juveniles and families. Therefore, when dealing with immigration law issues, it is best to consult with a lawyer who has immigration expertise. One publication on Special Immigrant Juvenile Status (SIJS) has consistently been the guide of choice for juvenile lawyers: Special Immigrant Juvenile Status for Children Under Juvenile Court Jurisdiction, published by the Immigrant Legal Resource Center. It covers eligibility, risks of applying, the application process, and other immigration options to consider. It contains all the necessary forms and court orders, and is indispensable in walking practitioners through a SIJS issue, be it their first or last. Practitioners should be aware that because this publication was published in 2005, some of the information it contains may be outdated.

Educational Advocacy

The first place to start when trying to understand complex educational law and its intersection with child welfare cases is the Educational Advocacy Manual, a publication of the Colorado Department of Human Services. Another, more general resource for understanding the issues is Learning Curves: Education Advocacy for Children in Foster Care. This publication focuses on the educational issues facing children in foster care, including special education, school discipline, and program needs of children.

Conferences and Trainings

Keeping up-to-date on current research and best practices can be a daunting task for any practitioner. Several annual conferences and trainings assist juvenile law practitioners with this task.

• Office of the Child’s Representative Trainings: The OCR typically hosts three low-cost trainings a year—two in the Front Range and one in Steamboat Springs. The OCR covers very topical issues, mostly geared toward the attorneys representing

HANDOUT 16: RESOURCE GUIDE

children in dependency and neglect or domestic relations cases. Visit http://www.coloradochildrep.org. • National Association of Counsel for Children Annual Conference: Held each fall, this is a well-organized and well-attended national conference, with tracks in abuse and neglect, juvenile justice, family law, and policy advocacy. Recently, the National Association of Counsel for Children (NACC) has been offering a one-day training, prior to the conference, through its certification in child welfare law program. Although only certain states recognize child welfare law specialists, the list of states is growing. Even if a practitioner is not able to become certified, taking the certification course provides a comprehensive education in the field. Visit http:// www.NACCchildlaw.org. • NACC Rocky Mountain Child Advocacy Training Institute: Held every May in Denver, in conjunction with the National Institute of Trial Advocacy and the Rocky Mountain Children’s Law Center, this is an intensive four-day trial advocacy course designed specifically for child advocates. Visit http:// www.NACCchildlaw.org. • Colorado Bar Association Juvenile Law Section Trainings and Brown Bag Trainings: The Juvenile Law Section sponsors several brown bag trainings in courthouses across the state throughout the year. In addition, the Colorado Bar Association (CBA) often offers an annual juvenile law training; for example, in early 2007, the CBA sponsored “Dependency and Neglect Fundamentals.” All CBA programs also are available on video. Visit http://www.cobar.org. • Colorado Department of Human Services Child Welfare Conference: Held each June in different locations throughout Colorado and sponsored by the Colorado Department of Human Services (CDHS), this large annual conference brings together local and national experts to explore cutting-edge issues in child welfare practice. CDHS also hosts smaller trainings throughout the state, and generally allows juvenile law attorneys to attend current offerings, space permitted. Relevant topics for practitioners include child maltreatment, developmental delays, and substance abuse issues. Attorneys, county employees, and foster parents (and others can sign up for courses at http://www.cocwtraining.com. Trainings are posted online six months in advance. • Colorado County Attorneys Association Conference: Held each year in June and November, the Colorado County Attorneys Association sponsors conferences with child welfare sessions for agency attorneys. Topics can include all aspects of child abuse and neglect, state and federal laws, case law updates, trial tactics, child development, mental health, substance abuse, immigration, education, and funding streams. Other Resources

The Colorado Lawyer Articles

• Bellonger, “Colorado Moves Toward Full Compliance With Federal Indian Child Welfare Act,” 31 The Colorado Lawyer 77 (Nov. 2002). Gives a general synopsis of Indian Child Welfare Act (ICWA) and the interplay of ICWA and recent additions to Colorado law.

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• Bittan, “The Nuts and Bolts of Juvenile Delinquency,” 31 The Colorado Lawyer 19 (Oct. 2002). Takes a detailed look at the legal processes and laws involved in juvenile delinquency cases. • Craig, “Juveniles in the Department of Human Services: Commitment to Change?” 27 The Colorado Lawyer 121 (June 1998). Discusses the placement options provided by DHS and the role attorneys play in the decision-making process. • Elstein, “Children Exposed to Parental Substance Abuse: The Impact,” 24 The Colorado Lawyer 29 (Feb. 2005). Presents a concise overview of several common substances used by parents and the mental and physical effects that this substance abuse has on children, both mentally and physically. • Furman et al., “The Role of the Guardian ad Litem in Juvenile Delinquency Cases,” 27 The Colorado Lawyer 53 (Feb. 1998). Discusses the role of GALs within the framework of a criminal juvenile delinquency case. • King, “Colorado Juvenile Court History: The First Hundred Years,” 32 The Colorado Lawyer 63 (April 2003). Presents a detailed overview of the history and development of the juvenile court system. • Rappaport, “Children as Witnesses,” 31 The Colorado Lawyer 15 (Oct. 2002). Offers thorough analysis of the steps necessary to determine whether a child should take the stand. • Schoen, “Kids and Court,” 33 The Colorado Lawyer 31 (Jan. 2004). Looks at the basic tools available for lawyers to help eliminate re-victimization of children in the court process. • Ventrell, “Child Maltreatment and the Role of Colorado Lawyers,” 31 The Colorado Lawyer 79 (Oct. 2002). Provides an overview of the history of society’s response to child maltreatment and the role lawyers play in that response.

Periodicals

• ABA Child Law Practice. Published by the ABA Center for Children and the Law. The Child Law Practice Series presents articles on current issues in child welfare law, including issues facing foster youth, adoptive parents, and attorney practices in the child welfare system. • Children and Youth Services Review. Published by Elsevier Science. This journal provides interdisciplinary scholarly analysis of child welfare practice and policies, including foster care practices, abuse and neglect cases, adoption, and much more. It is available online at http://www.childwelfare.com/index.htm. • The Children’s Rights Journal. Co-edited by the ABA Center on Children and the Law and the Loyola University Chicago School of Law. This journal presents articles that focus on the how the law affects children and children’s rights within the legal system. It offers articles for both practicing attorneys, as well as professionals working in the child rights and welfare field. • Children’s Voice and Child Welfare. Published by the Child Welfare League of America. Children’s Voice covers a variety of topics relating to children, including articles on special education, children affected by hurricane Katrina, and families who choose to adopt. Child Welfare is designed as a tool for child welfare professionals

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and offers practice-oriented articles, as well as articles on current trends and research in the field of child welfare. • The Guardian. Published by the National Association of Counsel for Children. The Guardian provides a comprehensive review of legal practice strategies, research, policies, and training opportunities in the child welfare field, as well as an invaluable update of recent case law. • Journal of Juvenile Law and Policy. Published by the University of California-Davis School of Law. The Journal of Juvenile Law and Policy presents articles in the areas of juvenile, family, and education law. Beyond the academic articles and topics covered, this journal also presents a special section on children and adults in the child welfare system presented through personal narratives, artwork, and poetry. • Journal of Public Child Welfare. Published by Haworth Press. This new scholarly journal debuted in the spring of 2007. It covers a wide range of scholarly topics in the child welfare field, including current research, policy analysis, and program reviews. The journal focuses on providing information for practicing attorney, judges, social workers, and other professionals working in the child welfare system. • Three publications focusing on juvenile and family law are available from the NCJFCJ. The Juvenile and Family Law Digest provides up-to-date case summaries and decisions in juvenile and family law. The Juvenile and Family Court Journal presents scholarly articles on research and policy developments. Juvenile and Family Justice Today presents current news and events in the juvenile and family law field. • Juvenile Justice Bulletin. Published by the Office of Juvenile Justice and Delinquency Prevention. This publication reviews major research and development in the juvenile justice field and presents up-to-date information on conferences and trainings available for attorneys. Websites

• ABA Center on Children and the Law, http://www.abanet.org/child. Legal resources are available in all areas of child welfare law and are available on this website. The Web page offers online resources, as well as access to more information on current projects in child welfare law. • ABA National Child Welfare Resource Center on Legal and Judicial Issues, http://www.abanet.org/child/rclji/home.html. This Web page focuses primarily on child abuse and neglect issues. Online resources include articles, training, and federal legislation summaries. • Child Welfare Information Gateway, http://www.childwelfare.gov. With a focus on child abuse and neglect, this site offers information on prevention, response to abuse and neglect, and support for families. Statistics, as well as a state statute searches, are available. • Child Welfare League of America (CWLA), http://www.cwla.org. A comprehensive site, CWLA provides advocacy resources, as well as information on special initiatives, current programs, current research and data, and consultation and training.

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• Children’s Defense Fund (CDF), http://www.childrensdefense.org. This site offers an in-depth overview of all CDF’s major projects. In addition, practitioners can access several online publications and national and state level data on child welfare. • Indian Child Welfare Law Center, http://www.icwlc.org. This site offers a wealth of information on ICWA and child welfare issues affecting Native American children and families. • Juvenile Law Center (JLC), http://www.jlc.org. The JLC site offers information on child welfare and juvenile justice issues. The site contains links to current litigation, publications, media resources, and more. • Juvenile Law Net, http://www.juvenilelaw.net. This site is specifically for Colorado attorneys practicing in child welfare law. Information is available on the GAL program, respondent parents, appeals, truancy, mental health defense, contempt defense, and more. • National Association of Counsel for Children (NACC), http://www.naccchildlaw.org. This site provides information about NACC training and certification programs, national juvenile and family law conferences, and comprehensive resource access for attorneys. • National Council of Juvenile and Family Court Judges, http://www.ncjfcj.org. This comprehensive site contains information about child abuse and neglect, juvenile delinquency, family violence, domestic relations, substance abuse, and more. • Office of the Child’s Representative, http://www.coloradochildrep.org. This site contains information about current legislation, the CASA (Court Appointed Special Advocates) program, and GAL programs, as well as access to online resources covering a variety of child welfare issues. • Pew Commission on Children in Foster Care, http://pewfostercare.org. This site features data, DVDs, publications, and other data for parents, children, judges, and lawyers concerning the foster care system and the courts.

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Bibliography

ABA Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases (ABA 2007) available online at http://www.abanet.org/child/clp/ParentStds.pdf.

ABA Standards of Practice for Attorneys Representing Child Welfare Agencies (ABA 2004) available online at http://www.abanet.org/child/agency-standards.pdf.

Barish, N., Juvenile Law Resource Center, Admissibility of Parenting Capacity Evaluations (2009). Best et al., Colorado Evidence, 2005–2006 Courtroom Manual (Matthew Bender & Co., Inc., 2005).

Budd, K.S., Felix, E.D., Sweet. S.C., Saul, A., & Carleton, R. A., Evaluating Parents in Child Protection Decisions: An Innovative Court-Based Clinic Model, PROFESSIONAL PSYCHOLOGY: RESEARCH AND PRACTICE, 666-75 (Vol. 37 2006).

Budd, K.S., et al, Legal Use of Mental Health Evaluations in Child Protection Proceedings, FAMILY COURT REVIEW, 629-40 (Vol. 42 2004).

Calogero, E. K. “Reasonable Efforts: They Aren’t Just for Funding Anymore.” THE MICHIGAN CHILD WELFARE LAW JOURNAL, 30-42 (Spring 2009).

Child abuse and neglect, in PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR rd MENTAL HEALTH PROFESSIONALS AND LAWYERS (G. B. Melton, et al. eds., 3 Ed., The Guilford Press 2007).

Cohen, J., & Cortese, M., “Cornerstone Advocacy in the First 60 Days: Achieving Safe and Lasting Reunification for Families”, CHILD LAW PRACTICE, 28:3, 37-44 (2009).

Colorado Judicial Benchbook, Stepping Up To Juvenile Court (Colorado Department of Human Services (CDHS), available online at http://www.cobenchbook.com

Committee on Professional Practice and Standards, Guidelines for Psychological Evaluations in Child Protection Matters, AMERICAN PSYCHOLOGIST, 586 – 93, 1999.

Condie, L.O. PARENTING EVALUATIONS FOR THE COURT: CARE AND PROTECTION MATTERS (Kluwer Academic/Plenum 2003).

HANDOUT 17: BIBLIOGRAPHY

Condie, L. O. & Condie. D., “Termination of Parental Rights,” in Forensic Psychology: Emerging topics and expanding roles 294-33 (A. M. Goldstein ed., John Wiley & Sons, Inc. 2003).

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Erickson, S.K., et al, A Critical Examination of the Suitability and Limitations of Psychological Tests in Family Court, FAMILY COURT REVIEW, 154-74 (Vol 45, Issue 2, 2007), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2007.00136.x/full Haight, W., et al “Understanding and Supporting Parent-Child Relationships During Foster Care Visits: Attachment Theory and Research”, Social Work 48 (2), 2003.

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HANDOUT 17: BIBLIOGRAPHY

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HANDOUT 17: BIBLIOGRAPHY

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