Archive for the 'Colorado' Category

Appointment of a GAL for an adult party in juvenile cases.

March 13, 2007

Look at CRCP 17(c), 19-1-111(c), CRS, and People In Interest of M.M., 726 P.2d 1108, 1118(Colo. 1986), (the second M.M.) which says, in small part:

[32] C.M. further contends that, regardless of whether the appointment of a guardian ad litem (for an adult party) is a matter of statutory right or discretion, the trial court abused its discretion when it refused to make such appointment in this case. We find no abuse of discretion here.

The paragraph following the above cite in M.M. is very pertinent.

I worry that 19-1-111(c) says that the party must have been determined to have been mentally ill or DD by a court. Does that mean this court? Or previously by Probate Court? Webmaster

—– Original Message —–

I need all the statutory and any case law support for my motion to appoint a GAL for RM. She claims to have a brain injury and if she doesn’t, she’s probably mentally ill. She has absolutely no ability to comprehend the D&N proceedings and has failed to accept court-appointed counsel or to hire her own lawyer. We are set for trial and really needs some help. In most counties, any hint of developmental or mental disability is enough to warrant the appointment of a GAL but here I need more specific authority.

Does a GAL have standing to petition for grandparent visitation?

March 13, 2007

If you are a GAL, you must be a  GAL on some case, right?

The GAL is a party in a D&N; 19-1-111(3),CRS. (Though not in a delinquency; id, or in a paternity case. In the Interest of A.R.W., 903 P.2d 10, 12 (Colo. App. 1994).) So a GAL’s standing would seem to come automatically in a D&N.Section 19-3-203(3), CRS, allows, in part, the GAL to “make recommendations to the court concerning the child’s welfare,” and other really pertinent language. Certainly the future contacts with family concerns the child’s welfare.Assuming you’re in a D&N, I don’t think you have to rely on the 19-1-117, CRS, grandparents visitation statute at all. Hope this is helpful. :-)

Webmaster

—– Original Message —–

Subject: [OCR ListServ] Grandparent Visitation

Under 19-1-117 does a GAL have standing to file a motion on behalf of the child to get visitation with grandparents ?

No GAL conflict in two dependency and neglect cases just because some parties are the same.

March 13, 2007

Let me see if I have this straight.You have two different GAL cases with different case numbers.Situation one involves maternal grandmother R. She had custody of grandkids. She wants them back.

Situation two involves paternal grandparents N and J. They had meth-user, teen-mom T in their home but don’t want her or her baby back. But they do want those same grand kids to raise.

You are guardian ad litem for the teen mom T in one case (or two cases), and also for the kids under a completely different case number.

The question is whether you have a conflict representing teen mom T and the kids. You didn’t say whether T and the kids are somehow related, but it may not matter.

Conflicts of interest take two forms, confidentiality and loyalty.

Rule of Professional Conduct 1.6 forbids revealing client confidences. Sometimes representing two clients causes a confidentiality conflict because confidences of one client would be helpful to the other. Generally GAL’s don’t have confidentiality conflicts because the client communications are not confidential. Regardless, I don’t see how things you might have learned from talking with teen-mom T would, if revealed in the termination hearing of the kids, harm T. Or vice versa.

Rules of Professional Conduct 1.7, 1.8, and 1.9 are the loyalty-conflict rules. In reverse order, 1.9 relates to present representation of a party on the opposite side from a former client, in the same matter or a related matter, which is not the case here. 1.8 is a grab bag of specific conflict situations, none of which apply to this situation. 1.7 is more pertinent here.

1.7 says, in (a) we can’t represent clients who are on the opposite sides of a matter. You aren’t doing that. 1.7 in (b) says, more broadly, that we can’t represent one client if our representation is materially limited by our responsibilities to another client.

RPC 1.7(b) is as close as you are getting to a conflict. If your representation of the kids may be materially limited by your responsibilities to T, or your representation of T may be materially limited by your responsibilities to the kids, then you have a conflict.

Nota bene, if you decide you have a conflict, T and the kids can’t waive it. They ain’t competent. That’s why they have a GAL.

A recent discussion of 1.7 (b) appears in The Colorado Lawyer, October 2003, in a good ethics article, the “Conflicts” portion beginning on p. 32.

So. What you have to decide, or the grandparents have to show the trial court, is that your “loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests.” RPC 1.7, Comment.

I don’t think you are even close to a conflict. If I have the facts above correct, the interests of your two sets of clients don’t have anything to do with one another. Your responsibilities to T and the kids may conflict with the desires of the grandparents, but that’s not your problem. It is only mildly interesting that the paternal grandparents happen to be involved in two of your cases. That happens to me all the time. You have no duties of loyalty to the grandparents.

If T were the kids’ mother; that would be a conflict.

If T had sexually abused the kids and might continue; that might be a conflict.

If the kids and T were all going to live in the same home; that might be a conflict.

But not two separate termination hearings, in separate cases, with separate children, at separate times, even if some of the parties are the same.

Or I could be completely wrong.

:-)

Webmaster

—– Original Message —–

Subject: Conflict between children

Hello Everybody – I need some assistance. I apologize in advance for the long factual story.

I represent children as GAL in a case that opened in May. The parents are not compliant with their treatment plan and we just removed the children from Maternal Grandmother’s custody. The case is now getting ugly. We were headed in an APR direction and now we will be setting it for termination.

I also represent a teen mom as a child in a D&N and I am the GAL for her as the parent as well. Those cases opened in September. She has a permanency goal of OPPLA.

Paternal Grandparents N & J of two of the children are the guardians of the teen mom, T. The Paternal Grandparents have been the guardian of T since she was 3 years old. They do not wish to reunify or be considered for placement of her baby. I do not recommend reunification. T is BCOP and a meth user. While in living at N’s home T left her daughter alone for several hours and was using meth.

The allegations which precipitated the removal of the young children from R’s care (maternal grandma) is that she was allowing mom to live in the home, dad to have contact and the 1 1/2 year old was found wandering the streets. Upon removal of the children, R, maternal grandmother, was verbally abusive to police and caseworker in front of children.

Paternal grandmother wants to be considered for placement of the young children. Her home study was denied because of the active D&N case with T. She also allowed Dad contact with his son.     T, the father and paternal grandparents are the reporting parties that provided the information that mom was living in the home with maternal grandparents and the children. All visitation between is suspended between mom, dad and children for lack of compliance.

Attorneys for dad and the maternal grandparents have reserved their right to ask for my removal stating that I may have a conflict.

I do not believe there is a conflict between the children. I do not believe my representation of the these children is compromised in any way. I anticipate that one or both of them may ask that I be removed from both cases due to a conflict. I don’t believe T ever had contact with the children.

What happened to the Central Registry?

March 13, 2007

The Central Registry laws were replaced in part, as to foster families, by House Bill 1024, which came into effect mostly on Jan 1, 2004. Statutes are:

26-6-106.5 State SS shall make rules to notify all counties of foster home 19-1-103(27) violations. No further placements till investigation is concluded.

26.6.104 Licensing and on-site visits and criminal records and finger prints.

Webmaster

—– Original Message —–

Subject: admin appeals

Are any of you familiar with the administrative appellate process within the foster care licensing system? Specifically, when an institutional investigation results in a finding of “founded” neglect or abuse, minor or otherwise, whether or not the license is revoked or a child is moved from the home, what remedy does the foster parent have to challenge any finding? I know that the Central Registry no longer exists and any such findings will be entered into TRAILS but then what??????????

Who brings Dependency and Neglect contempt charges against a respondent parent?

March 13, 2007

Contempt is a quasi-criminal charge concerning a defendant’s offensive actions toward the court. Why should it matter who brings the offensive actions to the attention of the court? Rule 107 allows the court to sua sponte bring charges and appoint an attorney to prosecute. There’s some discussion, albeit on the other side, :-) at www.juvenilelaw.net/contempt.htm Webmaster—– Original Message —–I am representing a Respondent Mother in a D&N action  The Petition alleges that the children were in an injurious environment through no fault of the Respondent Mother. The Respondent father has acted in contempt of court orders since the beginning of this proceeding. DHS filed contempt charges against Respondent father but dropped them as part of a deal to get the father to admit the petition. Respondent father has admitted the Petition. So has Respondent Mother. On behalf of Respondent Mother I filed contempt charges against Respondent Father shortly after DHS filed its contempt charges. In my motion I incorporated the charges of DHS and listed additional charges. Atty for Respondent argues that Respondent Mother cannot file contempt charges in a D&N case. He says that §19-3-504 is the only controlling authority.  Any thoughts as I write my reply?

Can the State terminate parental rights on a motion for default?

March 13, 2007

I changed my mind, if any, as I was writing this. I wouldn’t ever do it if I were
the state. It’s unusual. If it were a criminal case, then of course, it’s clearly not
okay.
Did the defense attorney have notice and an opportunity to object? To waive
his or her client’s appearance at a trial, for instance?
The parent would seem to have the usual time under Rule 60(b) to ask for
relief. Up to six months.
And the court should have followed the proceedures outlined in Rules 55 and
121 1-14.
Rule 55 talks about a defendant who “fails to plead or otherwise defend”.
But the Juve rules say respondent parent doesn’t have to do responsive
pleadings. 3.2(a). Did the respondent ever appear?
So, if I were the state defending an appeal I would pretend I meant it as a
Motion for Summary Judgment and point out People in the Interest of A.E.,
914 P.2d 534 (Colo App. 1996.) (Although the trial court was NOT allowed to
terminate on summary judgment in that case, it SOMETIMES is okay.)
I think it’s a bad idea and I would love to have the appeal if I were
respondent’s attorney.
Webmaster

—– Original Message —–
Subject: terminations

Can a judge enter an order of termination of parental rights based on a motion for a default judgment from the County? the motion was filed on jan 5, and the order entered jan 8– I hadn’t even had time to respond. I thought there was always supposed to be a hearing. It is in the best interests of the child, but I want to make sure it’s procedurally sound, because if mom shows up and wants to appeal than we could have a long drawn out mess…..any thoughts?

Who may intervene in a dependency and neglect action?

March 13, 2007

In the Interest of C.E., 923 P.2d 383, 385 (Colo. App. 1996) says an aunt does not have a protected liberty interest that requires a court to allow her to intervene.Webmaster

—– Original Message —–

Subject: Intervenors19-3-507(5) refers to who can intervene as a matter of right. Are you aware of specific cases which address the issue of intervention when it is at the court’s discretion? I have family from another state who have never met or cared for the child (2 years old) who want to intervene and petition for APR. We have initiated an ICPC homestudy on them but the child is in a legal risk adoptive home and doing well for over 10 months. Father’s termination hearing is coming. He will be arguing that these relatives are a less drastic alternative to termination. I believe they should not be allowed to intervene and have no standing to petition for APR. Also, and most importantly, I believe it is in my client’s best interest to remain and be adopted by the current foster family.

How does a GAL (or anybody) get a dependency and neglect case filed?

March 13, 2007

Look at CRS 19-3-501(2)(b).Any person can ask the court to order an investigation and then order a D&N filing. If an agency askes, the court can order a D&N without an ordered-investigation. A GAL is not an agency. Except in Colorado Springs. :-)I have on occasion filed a Petition Regarding 19-3-501(2)(b) in the Denver Juvenile Court, or raised the issue in a truancy, delinquency, or paternity case, detailing the circumstances, attaching relevant documents, and asking the court to order DDHS to investigate. Sometimes the court sets a hearing. Sometimes the court orders DDHS to investigate and write a report within 10 days. Sometimes the court ignores me.

Webmaster

—– Original Message —–

Subject: GAL’s standing to seek protective hold/ temporary custody

A GAL has been appointed to a case in which one of two siblings has been made the subject of a D&N case and taken into temporary protective custody. The caseworker assigned to this case believes that the other sibling is also at risk, but the supervisor does not. Hence, a case has not been filed with regard to that sibling, and Social Services has not sought to take temporary protective custody of that sibling. The GAL believes that the sibling still in the home is at risk and that this sibling should also be taken into temporary protective custody. Does the GAL have the standing to request a temporary protective custody order on the in-home sibling, and, if so, what is the statute/case that gives the GAL this standing? The GAL has not been appointed as GAL of the in-home sibling, as there is no petition pending with regard to this child.

The GAL gets a hearing before the dependency and neglect is dismissed.

March 13, 2007

Look at R.E., 729 P.2d 1032, 1034 (Colo. App. 1986). That may be what you want.The CRCP Rule you want is 121 1-15.Webmaster

—– Original Message —–

Subject: D&N Dismissal w/o GAL approval

OK, I know the Court cannot dismiss a D&N without the GAL approval but I cannot find the statute and the case. Also, if anyone can tell me the CRCP rule which allows 15 days to respond to the motion to dismiss that would help me too. I need to get my mtn to reconsider filed quick. thank you so much if you can help me out.

What’s the dependency and neglect time limit for review of the magistrate’s order?

March 13, 2007

Section 19-1-108(5), CRS, 2003 (within 5 days for proceedings under Article 3) But the five days starts after you have received notice, so you should state when you received notice. The fun question is what the standard of review is by the district court judge.Webmaster—– Original Message —–

Subject: Review magistrate

I’m aware of Magistrate Rule 7 which provides that one must seek review of a magistrate’s order by filing a motion within 15 days. In D&N cases I’ve heard that the time is shortened by some statute or rule. I believe it’s shortened to 5 days. But, I can’t find said statute or rule.

Can anyone refer me to a statute or rule which shortens the time within which I must request review of a magistrate’s order in a D&N case.

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