Issue 2, 2008 OFFICE OF THE CHILD’ S REPRESENTATIVE Fall OCR NEWSLETTER OCR updates serve to Court Opinions inform OCR attorneys The summaries below highlight aspects of cases relevant to child representation, but they are neither official nor complete and other interested pro- court opinions. Decisions may be subject to multiple interpretations, and attorneys should consult with the original deci- fessionals of recent court sion prior to citing it. The full text of many of the following decisions can be accessed on the Colorado Court of Appeals decisions, studies, and website, http://www.courts.state.co.us/coa/coaindex.htm, or the Colorado Supreme Court website, http:// current events relating to www.courts.state.co.us/supct/supctcaseannctsindex.htm. If you are not able to access a decision online, please feel free to child advocacy, OCR ac- contact the OCR’s Staff Attorney, Sarah Ehrlich, (303-860-1517, ext. 1), for assistance. tivities, GAL activities, and resources and events that may be beneficial to U.S. Supreme Court you or your clients. Please Giles v. California, 128 S. Ct. 2678, (2008).— Giles was convicted of first degree murder after shooting his feel free to email the OCR girlfriend, Avie. There was a history of domestic violence between Giles and Avie. Avie had made state- with any feedback or in- ments to police three weeks before her death regarding a domestic violence incident where Giles threatened formation that you wish to kill her. The trial court admitted the statements into evidence under a provision of California law that to have posted in the next update. permits out-of-court statements describing the threat of physical injury on a declarant when the declarant is unavailable at trial and the prior statements are trustworthy. Giles was convicted and while awaiting his appeal the US supreme court decided Crawford v. Washington. The California Court of Appeals held that admitting Avie’s statements at trial did not violate the confrontation clause as construed by Crawford be- cause Crawford recognized a doctrine of forfeiture by wrongdoing. Forfeiture by wrongdoing applies only when the defendant engages in the wrongdoing that was intended in and resulted in the declarant being unavailable to testify as a witness. Giles forfeited his right to confront Avie because he murdered her and this Inside this issue: intentional criminal act made Avie unavailable to testify. The California Supreme Court affirmed. The Supreme Court reversed and remanded Giles’ conviction because Justice Scalia found that the doctrine of forfeiture was not established at the time of the founding of the Bill of Rights, therefore the theory of forfei- ture by wrongdoing is not a founding-era exception to the confrontation right. The court dissected the his- Court Opinions 1 tory of the doctrine and looked to common law where the rule was only applied when the defendant engaged in conduct that was designed to prevent (by detaining) the witness from testifying. At common law, the Colorado Opinions 2 exception only applied when the defendant engaged in conduct designed to prevent the witness from testify- ing, and the manner in in which the rule was applied demonstrates that ―unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.‖ When the 5-6 Legislative Update Supreme Court approved the doctrine in 1997 through the FRE, the comment states ―the exception applies only if the defendant has in mind the particular purpose of making the witness available.‖ Editor’s note: I included this case because of the implications in cases involving domestic violence. The dissent by Justice Conferences and 7 Training Souter notes that domestic violence cases are susceptible to intimidation of the victim to ensure that they will not testify at trial, and the concern remains that the Confrontation Clause may provide the criminal with a windfall. Resources 7 Articles 8 Awards and 8 Recognition/OCR in Brief OCR NEWSLETTER Page 2 Colorado Court of Appeals Cases In the Interest of L.O.L., No. 08CA0402, October 30, 2008—The department filed a motion to terminate parental rights of L.O.L. The court denied the motion. The child, through the GAL appealed the order. The court of appeals first addresses the issue of mootness because the child is now in the mother’s custody, and at the most recent review hearing the parties agreed to keep child with mother. The court agreed with the mother and department that the issue of termination was moot, because child was now residing with mother, and no party believed that the child should not remain with mother. Since no party now sought to terminate parental rights, the decision of the court will have no effect on the case. The court did not ad- dress the issues that the GAL raised on appeal: 1) the trial court’s decision to rely on their own experience and not expert testimony; 2) judicial notice of matters not in evidence; 3) abuse of discretion in admitting evidence and ex parte communications with the department of social services; 4) failure to make findings regarding statutory criteria. The court focused on the burden of proof, and reversed as to that issue since the trial court denied the motion to terminate because it did not have evidence to terminate using the ―beyond a reasonable doubt,‖ standard which is the proper standard under the Indian Child Welfare Act Reminder! (IWCA). The record did not demonstrate the child was a member or eligible to be a member of any tribe, therefore, the trial court should have used the ―clear and convincing evidence‖ standard. Notice was sent The OCR has a out in accordance with ICWA, and no tribe indicated the child was an Indian Child as of the date of the termination hearing. The court of appeals reversed the court’s order as to the ICWA matter. new address In re the Matter of the Petition of C.A.O., No. 07CA1033, July 10, 2008 -In re the Matter of the Petition 1580 Logan Street of C.A.O., an indigent, incarcerated father appealed the court’s denial of his request to be appointed coun- sel when the child’s stepfather initiated a stepparent adoption proceeding and sought to terminate the fa- Suite 340 ther’s parental rights. While an indigent parent does have the right to appointed counsel in a state-initiated dependency and neglect proceeding, ―[t]here is no explicit right to counsel in a stepparent adoption pro- ceeding.‖The court held that the trial court should have used the test provided in C.S., 83 P.3d 627, 636 Denver, CO (Colo. 2004) to determine if this particular indigent father was entitled to be appointed counsel on account of his indigency. C.S. provides that the court must consider whether: the parent’s interest is an extremely 80203 important one; (2) the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and . has a possibly stronger interest in informal procedures; and (3) the complexity of the proceeding and the incapacity of the uncounselled parent could be . great enough to make the risk of an erroneous deprivation of the parent’s rights insupportably high. The court of appeals remanded the case so that the trial court could use the above factors to determine whether appointment was necessary in that specific case since the trial court must answer this question first, subject to appellate review. That being said, the court stated in dictum that (1) parents have an important interest in opposing termination of their parental rights and (2) while the state is not a party to the case in a stepparent adoption proceeding, it does play an ―integral part of the process because only the state can officially decree termination of the parental relationship.‖ OCR NEWSLETTER Page 3 Colorado Court of Appeals Cases In the Interest of K.W.S., No. 07CA0667, July 24, 2008. In the Interest of K.W.S., the Colorado Court of Appeals held that it had no jurisdic- tion to review an unrevoked deferred judgment and sentence agreement. The defendant entered a one-year deferred adjudication agreement where he agreed that the court could ―impose any conditions of supervision that it deem[ed] appropriate that are stipulated to by the juvenile and the district attorney.‖ Among these conditions was the requirement that the juvenile submit to genetic marker testing. The juvenile subsequently mo- tioned for the trial court to defer or stay this requirement. The trial court denied the motion and the juvenile appealed. On appeal, the court held that the deferred judgment agreement was not subject to direct appellate review until it was revoked because an appeals court’s authority to grant post-conviction remedies is limited to instances where a conviction has been entered; a deferred judgment and sentence, by definition, is not a con- viction. It is only where that deferred judgment has been revoked that a conviction is entered and the deferred judgment and sentence agreement becomes appealable. Further, ―a trial court’s authority to impose supervisory conditions as part of a deferred judgment and sentence agreement extends only as far as the parties stipulate . [t]herefore, the unavailability of post-conviction review merely preserves the parties’ stipulations.‖ In re the Marriage of Rozzi, No. 07CA0467, June 12, 2008, the Colorado Court of Appeals addressed a post-dissolution of marriage appeal. The petitioner claimed that the court committed reversible error when it appointed a parenting coordinator when there was a claim of domestic vio- lence. She also claimed that error occurred when the appointed parenting coordinator was given special master’s powers.