2017 Notes

The Judge "Shuffle"

December 2017

Magistrates and Judges in Larimer County move around to some extent. In the “long-run” this is a good way to ensure a wide variety of experiences and expertise is available once this circuit has been completed, but in the “short-run” for anyone involved in cases, this means a change in the way your case is viewed and handled.

Each Judge and Magistrate has a unique set of styles, abilities, and predictable reactions to certain circumstances. An event in a case that might be viewed as minor by one Court, may become a huge issue if there is a new person presiding over an ongoing case. Predicting how a Court will react to certain events (facts), motions (strategy), or the reactions of other parties to a case, are a very important aspect of any type of case. Being familiar with how a Court has handled situations in the past and is likely to handle the circumstances in a case, can make an attorney more productive and (importantly) efficient in their work for the client.

No attorney likes to say “I told you so”, or “I predicted this” to a client, but every client should want to have an attorney that can say that to them much more often. “That was a surprise” is not want a client wants to hear from their attorney. Having an attorney that routinely appears before many different Magistrates and Judges can be helpful in this regard.

There are three (3) Magistrates in Larimer County. They are Beranado, Spangler, and Jostad. Magistrate Beranado did the Dependency and Neglect cases, followed by Juvenile Court, Domestic Relations (post-decree-issued). Magistrate Spangler started in Dependency and Neglect, followed by Juvenile Court, and now resides in (pre-decree) Domestic Relations Court. Magistrate Jostad started in Dependency and Neglect Court, moved to (pre-decree) Domestic Relations, and now resides in Juvenile Court. Each Magistrate has their own temperament, style and opinions, which they will bring to the bench each day.

Many of the issues, and indeed many of the cases themselves, can overlap between types of cases. A domestic Relations case for example, may have a child custody case, where a Dependency and Neglect action was filed, and a child(ren) is involved in a Juvenile Delinquency matter.

A client can be better served by an attorney that has worked with each Magistrate, in each venue, when deciding how to approach any of these types of matters.




Topics:

  • Litigation
  • Courtroom
  • Judge
  • Magistrate
  • Juvenile Court
  • Domestic Relations
  • Domestic Relations Court
  • JV
  • DR




The First Court Appearance in a D&N




Topics:

  • Family Law
  • Juvenile Law
  • Child Abuse
  • Allegations
  • Child Protection
  • DHS
  • CPS
  • Child Protective Services
  • Child Welfare




November 2017

D&N cases will almost always begin in a confusing whirlwind of activity followed by the news that you, as parents (or custodians) will be required to appear in court.

There is a Juvenile Court Magistrate that will preside over these cases and you will see them for the first time at what is called a Preliminary Protection Proceeding. There is an official explanation of this hearing (listed first) and my practical explanation of this hearing (offered second). In practice you will usually be able to ask that a hearing is conducted, but the Magistrate can actually make rulings based merely on the evidence that is presented by the Department of Human Services in a sworn letter attached to the Petition.

At this hearing the Department (People of the State of Colorado) are requesting that the Court allow the Petition (which contains the alleged problems) is filed, thus requiring the Parents to respond to it at a later time (usually three(3) weeks later). The official version of this proceeding is summarized as follows, and skips the part where you may meet your attorney (if one will be appointed for you).

At the Preliminary Protection Proceeding, the judge or magistrate must most importantly decide if the Child(ren) should be temporarily removed from their home because it is “unsafe” for them to remain there. The Court can order physical or mental examinations of the children as well. This hearing must happen within 72 hours after the children have been placed out of the home (excluding Saturdays, Sundays, or Court Holidays).

The practical version adds in the fact that the Court can also issue Protective Orders that basically cover whatever the Court thinks is needed to protect the children. This can limit contact with the parents to certain types of visits (Supervised, Unsupervised, Monitored, or none-at-all, but more on these distinctions later). Adults can also be ordered to be examined, or tested, most often in regards to substance abuse issues.

The reality is that at this point the Court will be most concerned with protecting the children, and willing to wait to examine the truth and accuracy of the accusations made until later. The letter written by DHS will have every allegation, many of which may be assumptions or inaccurate versions provided by anyone willing to offer information. For this reason, once a family has been brought into the court, it is very difficult to persuade the court to deny the request to file the Petition and allow everyone to simple return to “how things were” before the case was brought to the court room for the first time.

Dependency and Neglect cases are unique in another way regarding the treatment and rules regarding “hearsay”, which deserve another separate blog entry as well.

The Roles in a Dependency & Neglect Case

October 2017

D&N cases are very unique, and the people that will be involved in the case in Larimer and Weld (or any) Counties are fairly consistent. It can be very helpful to be represented by someone that has had an ongoing relationship with these people over a significant number of years and with cases that have a variety of circumstances. Often challenges can be overcome by communication between the parties and professionals involved without resorting to having a Judge or Magistrate resolve the issues that arise.

There is a Juvenile Court Magistrate that will preside over most matters and one or two District Court Judges assigned to longer hearings if they are needed. A district Court judge alone can terminate Parental Rights. Decisions of the Magistrate can be appealed to a Judge, but this must be done within five (5) days of the decision (order) of the Magistrate. The process is very complicated, but it does move down a predictable and legally defined path.

An attorney representing a parent is called a Respondent Parent Counsel and it is important that this is not just your usual “family attorney”, or an attorney you have used before. They should be familiar with these cases, or consult with an attorney who is.

The Caseworker is employed by the County’s Department of Social (Human) Services and provides and coordinates the services that will be offered during a DN case. They will also write letters to the Court providing their over-all review of the progress being made and making recommendations as to where a case should be headed. It is helpful if your attorney has had previous cases with the caseworker involved and has an ongoing relationship with them.

The same is true regarding the Guardian Ad Litem (GAL), as they will be one-of-a-few attorneys from the County that represents the children in D&N cases. They are “highly-specialized” attorneys FOR the children, but they are charged with telling the Court their opinion of what is in your children’s best interests (regardless of what your children, or you, desire). Like all others involved, their preference is to return the “family” to the state is was in before the case was filed, and with the concerns addressed and corrected. They are free to say that this is not possible, or would not be in the best interest of the children. GALs are also unique in that they are expected to investigate allegations and talk to all of the people involved directly, when forming their opinion. They will likely talk to all of the professionals involved in providing services as well. GALs are also unique in that they can offer their opinion (like an expert witness) directly to the Court, but they cannot usually be cross-examined like a witness.

The County Attorneys represent the Department of Human Services and often does it in a way where they are representing the Caseworker to further their view of the case. Again it is important that a parent’s attorney has a good and established relationship with these professionals.

There are other professionals and volunteers that may be involved. Their roles will be discussed later after the next discussion of the procedures that initially bring a case before the Court.




Topics:

  • Family Law
  • Juvenile Law
  • Child Protective Services
  • Child Welfare
  • Caseworker
  • GAL
  • Parental Rights




Dependency & Neglect Cases




Topics:

  • Family Law
  • Juvenile Law
  • Child Abuse
  • Allegations
  • Child Protection
  • DHS
  • CPS
  • Child Protective Services
  • Child Welfare




September 2017

Dependency & Neglect (D&N) cases are neither criminal nor typical civil cases. They are juvenile cases where the County Department of Human Services, represented by the County Attorney, brings the action asking that a Petition be filed with the Court. They are asking the Court to ensure that the parents of children take certain steps and make certain changes in their behavior to ensure the safety of their children.

It is alleged that the children are neglected and /or dependent on the State of Colorado to ensure that their situation changes. Usually there are allegations of physical, emotional, or even sexual abuse, but there can also be concerns about living conditions, or the “availability” of a parent to care for a child.

In general terms, a child can be considered dependent (on the State), or neglected, for the following reasons:

  1. A parent or guardian abandons, mistreats, or abuses a child.
  2. A parent or guardian allows another person to do the same, or does not take steps to prevent the “abuse”, or prevent it.
  3. The child lacks proper care through the actions and/or inactions of the parent or guardian.
  4. The child’s environment is unsafe.
  5. The child is homeless, or without proper care.
  6. The child has run away, or is beyond the control of the parent or guardian.

The definitions of many of the terms above are technical and open to debate in Court. The definition of: “abandonment”, “proper care”, “homeless”, and “beyond the control”, all have interpretations that are defined in Statutes and laws established by actual court cases.

If you are involved in a D&N case it is important to have good legal representation, because the consequences of making a mistake or not understanding these cases can be extreme and lasting.

Start With Your Employee Handbook

August 2017

You may not have read it in years, or at all, but this is the place to start when you are having issues at work. If there is no handbook or written procedures to follow, then you need to be aware of that as well. If possible, it is better to have sent an e-mail, or written request asking about procedures for addressing issues at work, and to have a written response explaining how you should proceed.

An employee that cannot prove they have followed the proper process for raising issues, or complaints, can find that they are at a disadvantage when stating an employer has failed to act properly. An employer must also follow the procedures that they have established, but usually the employee must initiate the process properly. Many complaint policies require that a complaint first be submitted in writing, and some even specify a particular format or require particular details.

Once you have begun the steps needed, it is important to keep records and copies of any communications that have happened as a result. Even if you are just keeping your own written notes on events this can be helpful to ensure that you have a “version of events” that have happened during this initial period where you are trying to solve the problems you have through the established procedures.

Going through this process may feel frustrating and tedious, but it may be that your issues just need to be brought to the attention of the appropriate person. You may even find that your issues are addressed and solutions are found. You could end up being the driving force behind critical improvements at your workplace.




Topics:

  • Employment Law
  • Workplace problems
  • Supervisor problems
  • Policies
  • Complaints
  • Employer




The Initial Consult




Topics:

  • Legal Advice
  • Solutions
  • Consult
  • Family Law
  • Employment Law
  • Complaint




July 2017

When people first call my practice they are often at the point where they have already decided themselves that “legal action” has become necessary. Often, hearing the details of a situation and providing general legal advice to a client will be all that is required. This means no “Attorney Letter” needs to be sent to an employer, no Complaint needs to be filed with a Governmental Agency, and no lawsuit needs to be filed. These are by far the most rewarding outcomes for me.

After discussing a person’s situation in their home or workplace, I can often help identify possible solutions, and then outline how to proceed from there to ensure a successful resolution. I can discuss whether or not they have approached their dilemma in the best way to ensure they are in a good position from a legal perspective, and then discuss further options if legal action still needs to be taken.

The hardest thing for me to say to someone would be “I wish you had come to see me sooner…I would have told you to...”, so instead I focus on how to move forward. If I can relate to someone a few choices on how to get their problems addressed, suggestions on what are the required "hoops” to jump through, and how to keep records in case legal action becomes unavoidable, then you can reduce your stress and have a plan for whatever comes next.

We all need to be able to sleep at night.