Juvenile Court Handbook

Colorado Juvenile Court Attorney Materials

From http://www.juvenilelaw.net

I. Purpose

II. Respondent Parent’s Attorney

1. 1^st Hearing

2. First Client Contact

3. Pre-Trial Conference

4. Trial Preparation

5. Trial

6. Disposition

7. Reviews

8. Pre-Termination

9. Termination

10. Appeal

11. Client Contact Strategy

III. Forms

a) Respondent's Admission

b) Motion for Independent Expert--Order

c) Respondent’s Summary Judgment Response

d) Respondent's Confession of Termination

I. Purpose

These materials are for respondent parent’s counsel in Colorado. Similarly to the comment in our Colorado Rules of Professional Responsibility’s Preamble, these materials are not intended and not should be used to create per se civil liability and so would not be a good guide in a malpractice suit. This is a few attorneys’ view of how to do D&N’s.

II. Respondent Parent’s Attorney

1. 1^st Hearing—Detention Hearing.

After you are appointed at the first court hearing as respondent parent’s counsel, begin by talking with the social worker. You want to know if Human Services wants to take the kids out of the home, because that is the hot issue for the parents.

As appointed parent’s defense counsel you may start out with the client by telling the parent/client that you are a real attorney, you are their attorney, you don’t work for the state, you are here to achieve their goals, and they don’t have to pay you. They really might not understand all those things. The parent is at court for three things; to get advised, to get an attorney appointed for them if they are eligible, and to have a detention hearing if kids are taken from them. The first hearing is not time for a trial, the case is not going to go away today.

If Human Services wants custody of the children and wants them out of the home, the respondent parents may have a detention hearing; a hearing for the judge or magistrate to determine if Human Services can show the proof necessary to meet the burden of removing the children. You will have about 12 seconds to prepare, which can be very difficult though experience will make you better. A checklist of trial-preparation questions to ask the parent includes:

a. The social worker wants to take the kids because you did this or didn’t do that. What is our response?

b. Has this happened before?

c. Do you have arrests or convictions for anything?

d. Do you have DUIs or marijuana convictions or even arrests?

e. What family members could take your children into their home today?

f. Do the family members have criminal records?

You won’t get all the information from the parent that you need to defend the detention hearing. The social workers usually are willing to discuss the facts and that discussion will get you more information about which you can ask your client. Sometimes the detention hearing will be done by offers of proof, that is by a brief summary of the facts that each side believes would be adduced by a longer, more formal hearing with testimony and cross-examination. All parties have to stipulate to this shorter, more-efficient, less-due-process process.

Detention hearings are informal and hearsay is specifically allowed. 19-3-403(3.6). (Any information having probative value…) But don’t give up on the other rules of evidence. It is arguable that the rules on expert rules still apply. For instance, the social worker can testify that the doctor told her that the liver heals very quickly. But the social worker shouldn’t be able to express the medical opinion that the liver heals very quickly. Regardless of what the statute says, privilege has still got to apply. While the city or county attorney doesn’t have to prove CRE 803(4) statements to the doctor for medical treatment of themselves at the emergency room, because hearsay comes in, still the underlying issue of medical privilege ought to apply; 13-90-107(d), CRS, and so you may be able to keep the statement out anyway.

If there is any possibility of criminal charges being filed, remind your client that he or she does not have to talk to the police, though they usually already have, and that anything they say to the social worker can be used against them. Advise them not to testify at the detention hearing. Remember they can be called to testify despite their stated intention to take the Fifth and that you may have to affirmatively interpose the Fifth Amendment while they are testifying. A D&N is a civil case and the court may take a negative inference from your client’s failure to testify. They may still have to testify as to certain matters. For instance, the state’s question to a dad in a physical abuse case “Are you the father of the child?” is only jurisdictional and probably does not bear on possible criminal charges, and is a fair question. But “Are you the dad?” in a sexual abuse case might make the difference between the charge of sexual assault or incest, and is not a fair question. The state attorney will not be in a mood to be fair.

It sometimes makes sense to allow Human Services to take the kids for a weekend or a short time and reserve your detention hearing right, if the court allows, so the social worker can investigate the grandma, or so mom can get the plumbing fixed. But sometimes that’s not worth the extra effort, because Human Services is going to want to take the kids anyway. You might as well get the detention hearing over with. Note that agreeing with grandmother taking the children “temporarily” arguably wins the detention issue for Human Services, because custody shifts away from the parent. The effect of this is to make it harder to quickly force a return of the children to the parents.

2. First Client Contact

Your relationship with D&N clients can be simple, as in for instance the unfortunately too-common D&N case in which you never see the client after the first hearing. That’s pretty simple. Just show up to hearings, don’t take a position, because you don’t have a clue what they want, and be sure to ask sufficient questions to be sure that there is due process. I suggest not usually going all out in a custody or termination hearing for a client you haven’t hear from in 4 months. It can be very embarrassing to go the distance in a adjudication hearing or termination hearing on behalf of a missing client, and have him or her call later and say: “What did you do THAT for?”

Some attorneys try to withdraw if their client disappears. That may not make a whole lot of sense. The time a client needs representation in court most is when she or he can’t be there.

Or your client relationship can be complicated. D&N clients are just like regular civil, business clients, except more so. They can be remarkably rude and abusive. They can be drunk or stoned. Often they can be demanding. Or at the worst they can be pitiful. Their kids were just taken by a social worker who was apologetic, endlessly willing to listen, and still took their kids. They don’t have housing and now don’t have any welfare income because they lost their children. And the court won’t return their kids until they get housing. So they are mad and you are the person standing right there in front of them.

However. There are two cardinal rules. You can’t, on one hand, let them run over you. If you let them abuse you, you are proving to them that it must be your fault. Because you didn’t scream and yell back at them. You don’t have to put up with a severely abusive client, although it may be good training for you if you plan to raise teenagers. If you occasionally move to withdraw because of an abusive client, everybody will understand, and the client may treat the next attorney a little better.

The other rule is that you can’t fix all their problems for them. When you repeatedly remind your client of this and that, give your client rides here and there, and lend your client money, you are merely being co-dependent, and your client will be no closer emotionally to getting his or her children back.

The madder your client is at the social worker and you, the more letters you should write them. It is always possible that your client will get something from the third reading of a letter that he or she just didn’t hear from you said once in the court hallway. When you talk to your clients, always take good notes in your file. It is amazing how often D&N clients will tell you that you told them an impossible thing three months ago, though you know you couldn’t possibly have said that. If you took good notes at the time, you can read the notes back to the client

3. Pre-Trial Conference

This is done a little differently in different jurisdictions. But whatever hearing passes for a pre-trial conference in your jurisdiction, is a time for your client to decide if you and the client will go to trial. You may get to set the pre-trial conference over from the detention hearing date to another date, or combine the pre-trial conference with the detention hearing. If your client can separate out the issues of detention from the pre-trial-conference issues, you can either admit the Petition, or set the matter for trial, right there at the detention hearing date. Sometimes even very competent parents will need a breathing space between the shock of becoming involved with Human Services and the court, and need a later hearing back at court when they can make a more reasoned decision.

You obviously may want to meet in person with some special clients, who need extra or repeated explanations, between the time of the detention hearing and the pre-trial conference. Mostly, however, you will meet a half an hour or so before the pre-trial conference with the parent, in the hallway or cafeteria at court, and discuss the following:

a. “You have two choices today. You can either agree to let Human Services be involved with your family for the next 6 to 12 months, maybe longer, or you can set a trial. You can have a trial to the court or a jury. My job is to do what YOU want. What do you think you want to do?”

b. The client will often then begin to discuss the case. “That social worker is nuts. I didn’t hit Johnny. She’s out to get me. If she would let me have him back none of this would be necessary.”

c. Tell your client, “I understand you don’t like the social worker. But we can’t just make this case go away. We only have two choices today, to admit the Petition or set a trial.”

d. At some point your client is likely to ask, “Well, what do YOU think? Should I go to trial?” This is a trick question. Neither yes nor no is a right answer. No matter which choice you pick, you will be in trouble later. If you make the decision for your client you will always have made the wrong decision. Tell them “I can tell you the law, tell you how this court works, tell you what I think our chances are, but only you can decide whether to go to trial.”

e. Occasionally, your client just won’t be able to decide. Consider advising him as if he had decided to admit the petition and then take the client in before the magistrate or judge and ask for a continuance, so your client can have more time to make up his mind. If the magistrate or judge says no continuance, and your client still can’t decide, the magistrate or judge will set it for trial and you can go on from there.

If your client decides to admit the Petition, advise her or him in the manner as set out in the Adjudication Admission form in the back. The standard of proof is preponderance unless it’s a Native American case, when the proof must be clear and convincing.

Just because your client admits the Petition, and the children are therefore adjudicated by the voluntary act of your client, doesn’t mean you can’t appeal as to the treatment plan (sometimes known as the disposition). See the end of the adjudication trial section below for important timing of your appeal.

4. Trial Preparation

Let’s suppose at the pretrial conference you have set the case for trial to the court or a jury trial. Then you need to get together with your client to prepare for trial. These clients often have trouble getting to your office. They may be more likely to be able to meet you at court, because they’ve been to court and know how to get there. And you go to court all the time. I do D&N trial preparation like this:

a. Tell the client what questions you plan to ask her. That, of course, means you will actually have to have read the allegations in the Petition, any disclosure by human services, the rest of your file, and have prepared questions before meeting with the client. Tell your client she has to tell the truth, that she can choose not to testify but that not testifying would generally hurt her case, and that the state can call her anyway.

b. Tell the client what the likely cross-examination of her will be. The client needs to think about the tough questions well before trial. If your client asks you why you sound so negative, explain that part of your job is to be sure she is prepared, that she isn’t surprised when she walks into trial. Tell her that prior criminal convictions, and arguably arrests, prior D&Ns, prior drug and alcohol treatment, prior mental health hospitalizations, the stability of her housing and employment, are all fair game for the state attorney.

Arrests are arguably relevant to the character of your client, and her character is at issue. The state’s argument is that when your client has been hauled away by the police twice in the last five years, not only is that a bad example for the children, but also that was time when your client was not available to care for the children. CRE 404 (Prior bad acts) is NOT a defense for you here because the state is not trying to prove that your client acted in conformity, on a particular occasion, with her alleged bad character.

c. Ask your client to help you prepare your cross-examination of the social worker and the other obvious witnesses. Tell your client, as best you can, what the social worker will say at trial. You client may say, “Well, she’s lying.” Tell your client that the social worker still gets to testify, and you still need to know what to ask the social worker to best present your client’s side of the facts.

d. Ask your client what witnesses she would like you to bring, though be ready to tell her that you get to decide trial strategy including which witnesses to call. See Rules of Professional Conduct (R..P.C.) 1.2, Comment-Scope of Representation. Many witnesses the client proposes will be character witnesses, which is not necessarily a bad thing in a trial like a D&N trial where character is in evidence. But often the witnesses are likely to not be especially convincing, because they would be expected by any reasonable fact-finder to be biased. The nice lady who knows your client’s grandmother and occasionally sees your client and the kids at the grocery store, will not be a powerful defense witness, when the issue is your client’s drug use. Always write down the name, phone number, and address of every witness your client seriously proposes and try to reach them for a short, phone interview. You may be pleasantly surprised. Talk to your client about subpoenas. Some attorneys subpoena everybody. Some very few. Sometimes potentially friendly witnesses turn hostile over service of a subpoena. Explain to your client the risks and benefits of a subpoena, that you really expect to get a continuance if a witness without a subpoena fails to appear but a subpoena may turn a witness off. Let your client make the choice. Your client knows the people in her life; you don’t know much. If your client can’t decide, subpoena the witnesses. Don’t forget to send copies of your subpoenas to the state attorney and the guardian ad litem. CRCP 45(c). Don’t forget to make a record at trial and possibly ask for a continuance based on surprise if the state doesn’t send you its subpoena copies in a timely manner. Id.

e. You don’t have the right to have an expert appointed for your client for an adjudication trial. People in the Interest of S.B., 742 P. 2d 935, 939 (Colo. App. 1987) You can always ask, however, arguing that your client is indigent, that the circumstances of this particular D&N focus on the outcome of expert testimony, such as in a shaken-baby case, and that it is a violation of due process for the state to have unlimited funds to hire an expert to testify on their side, yet for you not to have an expert. The judge might just agree.

f. In private civil cases it is common for counsel to do discovery, depositions, interrogatories, and requests for admissions. These are not common in D&N cases. The reason may be pretty simple. In private civil cases the parties may not be sure of the issues. Depositions in those cases preserve testimony, elicit what the testimony will be, and often narrow the issues and frame the particular law affecting the case. In D&N cases a deposition certainly shapes up what the social worker’s testimony will be at trial, but the issues are usually obvious, and the law is pretty much the same from case to case. More importantly from the respondent parent’s side, the state attorney has many, many of these cases, is never sure when or if any particular case will go to trial, and may not be as well-prepared as you will make him by asking the state to pay for a deposition of the social worker.

g. Most counties have open discovery. Some county human services have traditionally been difficult about releasing records, or have even given only partial access to the records without notice that there are other parts, in spite of 19-1-307(2)(e), CRS, as amended. More responsible counties just let you come in and see the files. In many cases most of the core information that the social worker has is already in the petition or has been presented at a detention hearing

5. Adjudication Trial

The only jury trial possible in a D&N is the adjudication trial. Note the new rules about jury reform, with jury notebooks and questions. Most of the trial strategy in this adjudication trials are also covered in the Termination Hearing section below.

Opening statements are NOT time to argue the case. It’s okay to say the evidence will show that mother wasn’t drunk when she dropped the baby. It is not okay to argue that the social worker’s side of the story will not be logical or will not be believable. Save it for closing.

Remember you can’t appeal as a matter of right immediately after an adjudication trial, unless the disposition order for a treatment plan is entered at the same time as the trial. People in the Interest of C.L.S., 934 P.2d 851, 854 (Colo. App. 1996). Be wary of ANYTHING that sounds like a treatment order at the end of an adjudication trial or at the time your client admits the Petition. Your 45 days may have just begun to run?

See the section on Appeals below.

6. Disposition/Treatment Plan

Assuming the social worker is going to propose a treatment plan (which she doesn’t technically have to but will in 95% of the cases), it is the responsibility of the state to formulate a treatment plan that is adequate. Otherwise the state will not be able to terminate parental rights later if they decide to. See 19-3-604(1)(c)(I). (Grounds for termination.) Your responsibility regarding the treatment plan is to be sure 1. your client is happy with the treatment plan and 2. that it isn’t a trap for the client. If your client doesn’t WANT to do a plethismograph for possible pedophilia, and follow any then-recommended treatment, because his cousin’s brother-in-law says he might have looked at dirty pictures of little girls ten years ago, your argument is that the proposed treatment is onerous in relation to the likely increase in safety of the client’s children, that there are more reasonable alternatives to the proposed plan, that your client can’t afford to pay for treatment, that “following then-recommended treatment” is not sufficiently definite and so speculative that you can’t address it at this hearing, and that your client has only teenage male children.

Alternately, sometimes your client is feeling guilty or passive and will agree to anything. Be sure on behalf of your client that the treatment plan is realistic. A treatment plan for a single mom with three little children and no transportation, who has to work in order to earn her TANF dollars, including weekly parenting classes, weekly mental health therapy for mom, weekly drug and alcohol therapy for mom, weekly play therapy for two of the kids, a mandatory weekly visit at the residential treatment facility the older child is in, is just not going to work out for your client. Make a record. Urge the court to combine mental health therapy with the drug and alcohol therapy. Ask that the parenting classes be dropped, or done by the social worker in the home, or set back until after therapy is over. Always make a record of asking for the state to pay the costs of all treatment plan items. Your client is indigent or you wouldn’t be there. The state is asking for the plan, not your client, and the state ought to darn well pay for it.

Don’t make up your client’s mind for them. This is not your opportunity for social engineering. You do not have to live forever with the consequences of your client’s decisions.

7. Review Hearings

A very difficult client-contact issue arises at a review hearing in which you discover your client isn’t doing very well on the treatment plan. If you don’t point out the things that your client needs to do to succeed at the treatment plan, you are doing your client a disservice. But your client is probably feeling much put upon by the social worker, and the magistrate or judge. And now if you start sounding like you are criticizing him, he’s going to be defensive. You are going to get the, “Whose side are you on, anyway?” question. Perhaps pretty angrily.

Tell him that you have two jobs as his attorney. In court you are his strong advocate. You always take his side. But in private you have the obligation to counsel him. And counselors-at-law have to tell the truth. You aren’t going to lie to him.

8. Pre-Termination. What to do when the case goes bad.

a. Expert Witness.

Once the termination motion is filed, you get an expert. 19-3-607, CRS. See Form 2 below for ideas. You can ask the court orally for an expert at the first hearing that you hear the termination motion has been filed or is about to be filed and the court may grant your motion but may require a written, follow-up motion and order. Notice the form motion and order comply with the requirements of the Chief Justice. But the form still leaves room for a fair payment to your expert. The idea here is this is NOT just a psych evaluation for a criminal case. This is really a psych eval combined with a both a further parenting evaluation and professional testimony at court with the attendant waiting time.

Your expert may do first an evaluation of the parent for the purpose of determining if the parent is likely to be able to parent the children. Second, and separately, your expert may do a parent-child evaluation to find any significant bonding. Note that your client must make an important choice between part one and part two. The case law has established that, oddly, there is no patient-doctor privilege between your client and your expert; B.B. v. People in the Interest of T.S.B., 785 P.2d 132, 138-9 (Colo. 1990), but there is a client-attorney privilege among you, your parent/client, and the expert. But a Denver case established that once your expert sees the kids, the attorney-client privilege is waived, and your expert may be called by the state to testify against you, including the previously privileged evaluation of just the parent. D.A.S. v. People, 863 P.2d 291, 296 (Colo. 1993) Three Justices dissented.

Note that when the parent/child evaluation goes the wrong way for you, and you don’t want your expert to testify, the state attorneys often will subpoena your expert without making any preliminary arrangement to pay their fees, as required by the CBA Inter-Professional Committee rules, by which we are all bound. Attorney’s can be disciplined for not paying expert fees. Private Discipline C, April, 1997, The Colorado Lawyer, p. 105. The state attorney’s failure to make that arrangement may be grounds for you to ask that the subpoena be quashed, though be careful who you try to represent.

It is a major tactical error to fail to prepare your expert with the bad facts. Even the best expert can get pounded if she doesn’t know that your client had a prior sex abuse conviction, or blew out of two prior inpatient drug treatment facilities, or had a hot UA last week. This is also not fair to your expert, who is trying hard to help you out.

Your expert “evaluation shall be made available to counsel at least 15 days prior to the hearing”; 9-3-607(2), CRS, but the extent of the disclosure is not described in the statute or case law. Remember CRCP 16 and 26 don’t automatically apply to D&N’s. Therefore a short report paralleling the requirements necessary to get an expert’s opinion into evidence; fairly setting out the opinions of your expert that you intend to elicit at trial, the grounds for his expertise, and a description of the expert’s knowledge of the parent, should be sufficient. In support of this minimalist position, note that CRE 705 only requires at trial the expert give his opinion, without underlying facts or data, unless the court requires otherwise. You must balance two concerns. The state often short-changes their description of their experts’ proposed testimony, and if you disclose too much you will give them powerful cross-examination and have little yourself. Alternately there is always the possibility that if you disclose too little, a random judge might forbid your use of your expert. Of course that would give you a heck of an appeal issue.

b. In the pre-termination time; that is the period between the time the termination is set and the day of termination, the person on your side who is in the best position to prevent termination is not you or your expert. It is your client. Tell your client that. Sometimes the respondent parent gets the idea that your psychologist expert is somehow going to magically step in and win the termination hearing. This is in part understandable. The expert may well be supportive in the interviews. The report may be positive, or at least not flat-out negative. And the client may get the impression that the termination hearing will be easily won. That’s not true, of course. Your odds of winning a termination hearing, even with positive expert testimony, are still way below 50%. Often below 5%. If your client can use that two or three month period to go to parenting classes, do his or her therapy, drug and alcohol classes, and drop clean urines regularly, you have a much improved argument at the termination hearing that the parent will rehabilitate within a reasonable time.

c. The Department of Human Services can’t win the termination hearing if the case never goes to trial. Of course you can’t ask for a continuance merely to hinder or delay. See generally R.C.P. 3.1. But that doesn’t mean you can’t talk to the social worker and guardian ad litem about a different outcome. If your client really has made an improvement, talk to the social worker about giving your client a little more time. If your client isn’t doing so well but there is an appropriate relative or close family friend who is available to raise the child till 18 years, talk to the social worker about your client giving up permanent custody to the relative or family friend with limited or supervised visitation with the parent. Then if that looks promising, talk to your client realistically about the choices. Though your client has the final choice, you can ask him or her “What will you choose? Not ever again having custody of your children but getting to see them sometimes and maybe being part of their lives, or going to a termination trial, of which Human Services wins 95%, and never seeing your children again?” Then of course you do what your client says. R.P.C. 1.2(a).

Some sort of non-binding mediation of D&N cases, including some cases set for termination, is in place in many judicial districts. The idea is to get the parents, the Guardian ad Litem, the social worker, and maybe even the proposed adoptive parents together in one room so they can see each other. The mediator may make recommendations or be non-directive. One thought is that some parents just need the opportunity to face up to the seriousness of the situation and participate in the child’s change of caretakers, rather than have it thrust upon them.

d. Prepare for the termination hearing by:

Talking to the witnesses for the state who are disclosed by the state. Don’t assume the witnesses are opposed to your client just because they are endorsed by the state. Often that witness endorsement is a laundry list and the state’s attorney hasn’t yet talked with them. Two good examples of witnesses who very well may be mostly on your side, or at least will have pretty nice things to say about your witness, are the person from Humans Services who supervised the visits between your client and the children, sometimes called a case aid, and the therapist for your client, even if your client wasn’t as successful in therapy as she or he might have been.

e. Motions by the State for Summary Judgment.

Like summary judgment motions for adjudication, People in the Interest of S.B., 742 P.2d 935, 939 (Colo. App. 1987), there are times a motion for summary judgment for termination may be granted. People in the Interest of A.E., 914 P.2d 534, 538 (Colo. App. 1996) For some general defenses to summary judgment in D&N’s, see Form 3.

When you are arguing against the state’s motion for summary judgment as to the termination motion in front of the judge, be ready to distinguish the two different kinds of standards of proof necessary for the court to find for the state. In AE Judge Taubman makes it clear that when weighing the evidence the court must consider the regular termination standard of clear and convincing evidence. Id. But a prior, threshold standard of proof on the very important issue of whether there are disputed facts, must be decided at a much higher level. There is case law (see form) that says that standard of proof is beyond any doubt.

Motion for summary judgment must be filed 75 days before trial; C.R.C.P. 56(c), though the state attorney will file a motion to shorten the time. The state’s affidavits must be based on personal knowledge and the facts stated must be admissible. C.R.C.P. 56(e). The affidavit can contain hearsay if it’s part of the basis of an expert opinion. K.H.R. 807 P.2d 1201, 1203 (Colo. App. 1990) (Paternity case.).

9. Termination

a. Hearsay

I. Business records. Human services reports. Business records and R.D.H..

The department of human services will bring in much evidence during a termination hearing that is hearsay. Obviously that is in addition to statements by your client, which are admissions, and are defined as non-hearsay statements and come in pretty much all the time. CRE 801(d)(2). Two kinds of human services hearsay will likely come into evidence; their business records and their social worker reports. Business records are admissible under CRE 803(6) in any kind of hearing. In D&N hearings the department of human services has the extra benefit of a specific statutory hearsay exception, found at 19-1-107(2), CRS and 19-3-604(3), CRS.

But you still have defenses to the admission of this evidence. Business records are written evidence, not oral evidence. The social worker may not just read her own records or parts of other agency reports into the record. The report from the other agency must meet the foundational requirements of CRE 803(6), the state attorney must lay the foundation for admission, and then the report itself may then come into evidence. The business record may well have objectionable hearsay-in-hearsay in it. This is sort of forbidden by CRE 805. I say sort of because while 805 requires each level of hearsay have its exception, the Colorado appellate courts have modified that rule as to 803(6) business records. When there is foundation laid for business records, and the business record has another level or two of hearsay in it, the case law does NOT require the state attorney to prove a hearsay exception for every level, but rather only must prove that the information is:

· Provided as part of a business relationship.

· The business substantially relied upon that information.

In the Interest of R.D.H., 944 P.2d 660, 665 (Colo. App. 1997). Make the state attorney do that. Especially the “substantially” part.

Be very wary when the state attorney jumps up and says to the Judge: “That’s not hearsay. We aren’t presenting it for the truth of matter asserted.” Of course they are. That’s the time you will have to convince the judge that the main purpose the state is putting that evidence in is for the truth of the matter asserted.

Remember the other side of presenting evidence at a termination hearing. Whenever your own evidence is rejected by the court as hearsay, or for any reason, you MUST made an offer of proof or you lose your right to complain to the Court of Appeals about the bad ruling.

II. Social services reports

The department of human services also has the special legislative dispensation to put pretty much anything they want into social worker reports, and it comes into evidence. 19-1-107(2), CRS. 19-3-106(3), CRS. But the social worker can go too far. If the social worker attaches other agency reports to the social worker report you can argue that such reports are not social worker reports as contemplated by the Legislature in 19-1-107. A more difficult problem is when the social worker takes information from other agency reports and just inserts it into the social worker report. When I have objected to this in trial and then on appeal, the Court of Appeals has had a tendency to say, “These reports seem to be the kind of report contemplated by the statute.”

Remember, if you don’t object on the record, and if your objection isn’t specific enough, then you haven’t properly preserved the issue for appeal. You can argue on appeal that despite your lack of contemporaneous objection, the error was so grievous that it was “plain error.” That almost never works.

b. Lay witnesses—person who supervises visits.

In a termination hearing if the department of human services doesn’t subpoena the case aid or other person at human services who has supervised the visits for your client, consider subpoenaing that case aid yourself. Talk to him or her. I find more than half the time that case aid is very sympathetic to my client. Same thing with the parent’s therapist even if therapy was not ultimately successful.

c. Experts:

I. It seems to be a regular occupation of state attorneys in D&N termination hearings to get information in front of the judge that would otherwise be hearsay, by injecting it as the basis of an expert’s opinion. The standard for what is expert opinion, is so low, that the parenting coordinator, the social worker, the therapist, and the social worker’s cousin’s babysitter will be allowed to give expert testimony. Always make sure that the state attorney lays the foundation for expertise BEFORE asking questions that would otherwise be hearsay. If the hearsay question and answer are prior to the qualification of the expert, or is not relevant to the expert question presently in front of the court, and you don’t object as to hearsay, you have just let that hearsay evidence come in for the truth of the matter asserted.

It is often not clear to attorneys that information elicited as the basis of an expert opinion is NOT a hearsay exception. I do not know of any Colorado case law specifically on this point but there are unequivocal cases in other jurisdictions. Kim v. Nazarian, 576 N.E.2d 427, 433 (Ill. App. 2d Dist. 1991)(Rule 703 does not create a hearsay exception.); U.S. v. Farley, 992 F.2d 1122, 1125 (10th Cir. 1993)(expert could testify to child’s statements, but only with jury instruction limiting use as foundation for expert’s opinion.); City of Santa Fe. v. Komis, 845 P.2d 753, fn.4 (NM 1992)(Justifiable reliance by expert does not make hearsay admissible.)

II. Privilege:

Privilege is a general trial right of all litigants.

§13-90-107. Who may not testify without consent.

(g) A licensed psychologist, professional counselor, marriage and family therapist, or social worker shall not be examined without the consent of such licensee's client as to any communication made by the client to such licensee or such licensee's advice given thereon in the course of professional employment; nor shall any secretary, stenographer, or clerk employed by a licensed psychologist, professional counselor, marriage and family therapist, or social worker be examined without the consent of the employer of such secretary, stenographer, or clerk concerning any fact, the knowledge of which such employee has acquired in such capacity; nor shall any person who has participated in any psychotherapy, conducted under the supervision of a person authorized by law to conduct such therapy, including but not limited to group therapy sessions, be examined concerning any knowledge gained during the course of such therapy without the consent of the person to whom the testimony sought relates.

Note that the privilege extends to persons who only participate in psychotherapy.

Title 19 does NOT waive confidentiality or privilege. Section 19-3-311(1), CRS, waives privilege just as to the child abuse reporting required by 19-3-304, CRS.

Don’t forget the federal law. An interesting discussion of the effect of 42 U.S.C. 290dd-2(1994) limitation of drug and alcohol treatment information appears in A.H., 944 P.2d 660, 663 (Colo. App. 1997), where Judge Plank may well have found that the Federal Confidentiality Statute prevented disclosure of drug and alcohol information in that case, though it was eventually found to be cumulative.

d. Less Drastic Alternatives.

The oft-appealed issue from an order of termination of parental rights, no less drastic alternative, is a court-created element from about 1975. At that time the only statutory criteria for termination of parental rights was “best interest”; People in the Interest of MM, 726 P.2d 1108 (Colo. 1986)(MM 2d) and the proof-standard was preponderance. See People in the Interest of AMD, 648 P.2d 625 (Colo. 1982)(preponderance standard unconstitutional). Cases such as People in the Interest of MM, 533 P.2d 936 (Colo. App. 1975)(MM 1^st) required the court to find there are no alternative remedies. In 1977 the Legislature adopted specific standards that became effective July 1, 1977. Since then the element of less drastic alternatives kept popping up, despite not being in the statute. E.g. People in the Interest of CS, 613 P.2d 1304 (Colo. 1980)(district court considered alternatives less drastic than termination). But in People In Interest of M.M., 726 P.2d 1108 (Colo. 1986) (M.M. II) the Supreme Court said two seemingly paradoxical things. It said “[W]e urge trial courts to enter specific findings on less drastic alternatives in order to avoid any uncertainty about these aspects of the case…” But it also says:

Although section 19-11-105 does not require a trial court to make an express finding that less drastic alternatives have been considered and eliminated, we are convinced that a trial court's consideration and elimination of these alternatives are implicit in the statutory criteria for termination. Before an order for termination can be entered on the basis of a prior dependency adjudication, the court either must devise an appropriate treatment plan or must have previously found that an appropriate treatment plan could not be devised. § 19-11-105(1)(b)(I), 8B C.R.S. (1986). An appropriate treatment plan in this context means a plan "which is reasonably calculated to render the particular respondent fit to provide adequate parenting to the child within a reasonable time and which is relative to the child's needs." § 19-3-111(1)(e)(II), 8B C.R.S. (1986). In our view, the court's duty to determine in the first instance whether a treatment plan can be devised and, if so, to approve a plan reasonably calculated to provide the parent with adequate parenting ability involves a consideration of alternatives less drastic than termination.

That the consideration and rejection of less drastic alternatives are implicit in the statutory scheme is also apparent from a consideration of the express statutory findings which are essential to an order of termination. When an appropriate treatment plan has been devised by the court incident to a dependency adjudication, an order of termination can be entered only when the court expressly finds (1) that the treatment plan has not been reasonably complied with by the parent or has not been successful, (2) that the parent is unfit, and (3) that the conduct or condition of the parent is unlikely to change within a reasonable time. § 19-11-105(1)(b) (I), (II) and (III), 8B C.R.S. (1986).

It is therefore arguable that less-drastic-alternatives refers to the effectiveness of the treatment plan, rather than other places the children could be placed. And the trial court should make specific findings on no less-drastic-alternatives for historical purposes.

Section19-3-702(5)(a)(I)-(IV) lists reasons human services may have in a permanency planning hearing to NOT file a termination motion. These may also be good cross examination questions for you to ask the social worker in a termination hearing.

If there is family willing to take the children, but who have been rejected by social services, be sure they know to file a written request for custody prior to the commencement of the termination hearing. 19-3-605, CRS. This gives you an argument for less drastic alternatives and also, arguably establishes in the filing-family the due-process right to force a hearing after the termination hearing has been won by the state, on the issue of placement of the children with that family. They probably have the right to hearing, but of course don’t have the right to win. You probably won’t be at that hearing.

10. Appeal

The rules for appealing from a D&N are tricky, as appellate rules always are. It’s easy to get them messed up and end up with a Notice to Show Cause from the Court of Appeals asking why you did this or didn’t do that, and why they shouldn’t dismiss your appeal and whang you on the ear.

If you think about it, it is an unusual variation of Colorado Appellate Rule 1(a)(1), that respondent parents get to appeal to the Court of Appeals as a matter of right at TWO different times in a D&N. C.A.R. 1(a)(1) says you may appeal from a final judgment. C.R.C.P. 54(b) sort of says that a final judgment is one that adjudicates all claims of all parties. And an adjudication trial is the beginning of a D&N, not the end. Fortunately the Court of Appeals has made it clear that we may appeal after adjudication and disposition. People in the Interest of C.L.S., 934 P.2d 851, 854 (Colo. App. 1996). The state can also appeal from the adjudication and disposition, obviously, because the state’s failure to win at adjudication trial is final for everybody. (Though they almost never appeal.) Notice this potential land mine. You may not appeal from just the adjudication. If the treatment plan; the disposition, is not entered on the same day as you lose the adjudicatory trial, you must wait until the disposition hearing is complete to appeal. Id. The disposition hearing is supposed to occur no later than 45 days after the completion of the adjudicatory trial, but the court may extend that period in the “best interest” of the child. 19-3-508(1), CRS.

11. Client Contact Strategy

Your client is a unique kind of client. He or she didn’t pick you. He or she doesn’t know anything about you. That’s why your clients will sometimes ask if you’re a public defender, or if you’re a real attorney. So when these unsophisticated clients run across what for more sophisticated clients is an understandable difference in your attitude in the courtroom; that is defending the client to the hilt, and your attitude in the hallway; that is telling the client the hard facts about their poor chances at trial, they sometimes get confused and angry and take it out on you. They will confront you in the hallway with, “Whose side are you on anyway?” This usually small difference, which your regular clients who have picked you to represent them will be able to straddle, can be an unbridgeable gulf for the indigent client. You dress like the county attorney, you obviously know the county attorney, and the magistrate knows you by name. Why would the indigent client believe that you feel any special obligation to him or her? One way to try to explain is to say, “What would you do if you were the attorney here? Lie to your client? Tell your client everything’s gonna be fine when it isn’t gonna be fine? Or do you want me to give you the straight facts when we talk here alone?”

Oddly enough, it is my experience that if the client fires one attorney, the client is much more accepting of the second attorney. It is not a badge of honor to be fired, but it is no great shame either.