Transcript Case Law and Legislative Update

Case Law and Legislative Update
JUDGE VANNOY,
13 TH JUDICIAL DISTRICT
SARAH EHRLICH J.D.,
OFFICE OF THE CHILD’S
REPRESENTATIVE
ALICIA DAVIS J.D.,
COLORADO STATE COURT
ADMINISTRATOR’S OFFICE
2009 Legislative Update
www.courts.state.co.us/Administration/
Section.cfm/Section/jp3res
Child Welfare
Postadoption Contact Birth Siblings Bill (SB 079)
 Authorizes a confidential intermediary to inspect confidential
dependency and neglect records.
 Allows adults who were former foster children, who may or may
not have been adopted, to use the confidential intermediary
program to search for an adult birth sibling who may or may not
have been adopted or in the foster care system
 Authorizes the confidential intermediary commission to receive
and expend gifts, grants, and donations for the purpose of
conducting searches for birth siblings.
 03/25/2009 Signed by the Governor
Child Welfare Training Academy (SB 164)
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Requires DHS to create rules to establish a training academy
Academy will provide training and certification to new county child welfare
caseworkers and supervisors
DHS, by rulemaking, will identify staff who are required to traini to attain
certification from the academy, establish minimum standards of competence,
establish alternative methods of attaining certification for persons who have already
completed similar training
Training for 450 new caseworkers and 140 supervisors per year
Recommended by the Child Welfare Action Committee
Signed on 5/19/09, effective upon passage (contingent upon funding)
Changes to Conform Portions of Federal P.L. 110-351
Relating to Kinship (SB 245)
 Establishes a Kinship guardianship program in DHS
 Amends portions of the Children’s Code to comply with the Fostering
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Connections to Success and Increasing Adoptions Act of 2008
Amends 19-3-403, time limits – changes the fifteen days to seven for
form affidavit, the copy delivered no later than five days after the
date of the hearing
Each parent may suggest an adult relative to be the caretaker
Children may be consulted
Court shall order DHS to exercise due diligence to contact
grandparents and relative within 30 days of removal (was 90) and
the county shall provide notice to the relatives of removal
Establishes kinship guardian assistance program – contingent on
funding
Sent to the Gov on 5/19/09
Verifiable Documents Foster Care Youth Bill (SB 104)
 Requires each county and/or city responsible for a youth
in foster care to provide that youth with verifiable
documents, such as a certified birth certificate and a social
security card, on or before the youth's eighteenth birthday
and at no cost to the youth.
 Effective 90 days after the end of session, unless
referendum filed, signed 5/2/09
Concerning training for foster parents (09-1078)
 Concerning training for foster parents in regard to IEPs requires the
dept to make FP training available on IEPs
 Training available upon the request of the foster parents
 Signed by the Gov. on 3/19/09, effective date 90 days after final
adjournment
Concerning improving child protection efforts
(HB 09-1007)
 Adds DV experts to interagency oversight groups in the
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collaborative management program.
Requires DV rep to be a part of the collaborative
management team (old HB 1451) programs
Newell, Frangas
Signed on 3/20/09
Effective date, 90 days
Delinquency
Sealing Of Direct File Records Bill (HB 1044)
 Current law allows certain juvenile offenders to petition the court to
have their juvenile, criminal records permanently removed or
expunged, provided they meet certain criteria
 Certain offenders not eligible for expungement, including those
designated by the court as aggravated or violent juvenile offenders;
 convicted of an offense involving unlawful sexual behavior;
convicted of an offense that is considered a crime of violence
under Colorado law; and
 charged as an adult for a crime committed as a juvenile, a process
known as "direct file.“
 Bill allows a juvenile who was charged as an adult, but ultimately
sentenced as a juvenile, to later petition to have the record expunged.
 Signed, 3/18/09, effective 9/1/09, unless referendum petition filed
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Extension of the study of the treatment of persons with mental illness who
are in the criminal or JJ systems (HB 1021)
 Extends the legislative oversight committee and task force until 2015.
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The committee was set to expire in 2010.
Committee originally created in 1999
Adds a rep to the committee from the Dept. of Labor
Provides new guidelines for study:
The diagnosis, treatment, and housing of adults with mental illness or
co-occurring disorders who are involved in the justice system;
diagnosis, treatment, and housing of juveniles with mental illness or
co-occurring disorders who are involved in the justice system; ongoing
treatment, housing, and supervision of adults and juveniles who are
involved in the justice system and the availability of public benefits for
these persons; and safety of the staff who treat or supervise individuals
with mental illness and the use of force against persons with mental
illness. Signed on 3/20/09, 90 day effective date
Increasing the age of persons eligible for sentencing
to YOS (HB 1122)
 Expands eligibility for sentencing to the Youthful Offender
System (YOS) in the Department of Corrections (DOC) to
include young adult offenders who are 18 or 19 at the time
the offense is committed, but less than 21 years old at the
time of sentencing. The bill excludes most sex offenders
and individuals convicted of class 1 and most class 2
felonies (felony murder is the exception if it is pled down to
a class 2 felony and meets certain sentencing guidelines)
from eligibility for the YOS.
 This bill will take effect October 1, 2009, and it will sunset
on October 1, 2012.
 Signed on 4/02/09
Concerning the placement of a juvenile who is awaiting trial in district
court (09-1321)
Amends 19-2-508
 A juvenile who is to be tried as adult pursuant to direct file shall not be held
at any facility intended to be used by juvenile offenders, unless DA and
defense counsel agree
 To determine if jail is appropriate, the DA shall consider the age, the offense,
physical maturity, the juvenile’s history, mental state, community
protection, safety of other juveniles in the facility, and if the juvenile
presents an imminent risk of harm to others or themselves.
 DA may agree to change placement from jail to juvenile facility at any stage
 The bill is the result of two specific instances in 2008 where a juvenile was
killed or harmed in an adult facility while awaiting trial. The federal act that
controls this area of law is scheduled to be renewed in 2009 and contains
very similar language as found in HB09-1321.
 Signed on 6/1/09
Justice Reinvestment Act (SB 286)
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Colorado Commission on Criminal and Juvenile Justice to study sentencing
practices in Colorado. The bill provides suggestions about areas related to
sentencing the commission may study, including but not limited to the
following:
 • a statewide Department of Corrections (DOC) correctional facility
management plan and
 potential DOC correctional facility bed limitations;
 • sentencing practices related to the offense of driving under restraint and
drug crimes; and
 • whether parole should be included in an offender's sentence or not.
 requires the commission to study the impact of reducing the previously
mentioned sentencing areas and the impact of incarceration on crime rates.
The commission is required to provide an update by November 30, 2009, as to
its findings, recommendations, and proposed plan for the ongoing study of
sentencing reform.
Sent to the Gov on 5/19/09
DR/DV Bills
Funding For Domestic Abuse Services Bill (SB 068)
 Increases the fee for a marriage license ($20), the filing fee for a
petition, and response fee in a dissolution of marriage action
($10), to fund domestic abuse services for married, separated, or
divorced persons or their families.
 Specifies that 50% of the money collected from the fee increases
will be used to reimburse domestic abuse programs for services
to members of the military and veterans or their families.
 Effective date August, 4, 2009. Signed 5/15/09.
Immunity Liability Parenting Coordinator Bill (SB 069)
 Provides that a parenting coordinator appointed by the court
cannot be liable for any claim of injury during the
performance of his or her duties, so long as the parenting
coordinator is acting within the scope of his or her duties
and the act or omission is not willful or wanton.
 Does not bar a claim regarding fee charged, or negligent act
involving motor vehicle operated by a parenting coordinator.
 Specifies when a parenting coordinator may be required to
testify or produce records.
 04/16/09, signed, effective upon passage. (Probably applies
“retroactively.”)
Education/Health
Parental Leave Academic Activities Bill (HB 1057)
 Involvement of parents and legal guardians in
school-sponsored academic activities is critical
 Allows an employee to take unpaid leave for attending
parent-teacher conferences or other academic activities
related to the child.
 Limits the unpaid leave to 6 hours per month and 40
hours in any academic year. 3- hour increments; must
have written verification from school.
 Requires employee to provide at least 3 days' notice of
the leave except in when employee is not aware prior to
3 days.
 05/14/2009 Sent to the Governor
Increase High School Graduation Rates (HB 1243)
 Colorado statewide graduation for 2006-07 was 75%, an
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improvement over 2005-2006.
Students with disabilities graduate at 67%.
Gaps exist within different ethic and economic groups.
Kids often say that they missed school because they felt “unsafe.”
Designed to reduce student dropout rate by the creation of the office of
dropout prevention and student re-engagement in DOE.
Requires the office annually to analyze attendance data and assess the
incidence, causes, and effects of student dropout, engagement, and reengagement.
Directs the department to provide technical assistance to priority
schools.
Effective 5/21/09, but implementation of the office shall not begin until
 sufficient gifts, grants, or donations are received to fund its operations.
Pilot program to reduce dropout rate of adolescent
students (SB 123)
 Creates the Healthy Choices pilot program to reduce
dropout rate in public schools; goal is to enhance
physical and mental health, creates a fund in the
state treasury, requires use of grant money, school
needs to be in a district where at least 30% of
students failed to graduate from HS
Interim Commission on School Safety (HB 1025)
 Establishes a 16 member legislative interim
committees, 4 legislators and 12 representatives of
state and local agencies (CDHS, DOE, Foster Care,
Law Enforcement, School Districts Judicial).
Committee will consider safe school laws, strengths
and weaknesses of existing agencies how systems
deal with school safety and evaluation of students
with a record of behavioral or mental health
disorders who pose a safety risk to other students.
Youth Corps Program (HB 1280)
 This bill permits the state to participate in the National Guard's Youth
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Challenge Program.
The mission of the program is to develop life and work skills and
increase educational levels for high school dropouts between the ages of
16 and 18. It has both an intensive 22-week residential phase and a 1year post-residential phase.
As described by the program's website, participants receive "militarybased discipline and training combined with educational instruction,
experiential learning and mentoring" in the residential phase. I
Post-residential, students are paired with mentors who assist them in
the "transition from the structured environment of the residential
phase to self-management.“
Students have the option to join the military at the conclusion of
program.
Competency of Mental Health Professionals (HB 1086)
 Sets requirements for the renewal of licenses or
certifications for social workers, marriage and family
therapists, professional counselors, and addiction
counselors.
 DORA to adopt rules that must include:
a test of the professional's knowledge and skills;
 development and implementation of a learning plan
based on the test; and
 periodic demonstration of the ability to practice the
profession safely.
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 Beginning January 1, 2011, professionals must satisfy
to renew or reinstate their license to practice.
Coordinated payments for IDEA part c (HB 1237)
 Modifies the statutes that provide for the system that coordinates payments
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between state and federal funds and private health insurance plans for early
intervention services for children from birth to three years of age with
developmental delays. Changes include:
requires that a child's private insurance carrier pay for services prior to the use
of public funds;
requires insurance plans to pay the coverage limit into the Early Intervention
Services Trust Fund for each eligible child covered;
allows the Division for Developmental Disabilities to increase coverage limits
equal to an increase by the General Assembly to the annual appropriated rate to
serve one child;
clarifies that the coverage limit does not apply for post-surgical rehabilitation
services; and prohibits an insurer from terminating coverage or refusing to
deliver services as a result of a child accessing benefits for early intervention
services. Signed on 5/2/09, effective upon
Concerning assistance to the counties to implement recidivism reduction
programs for the mentally ill (HB 1022)
 Grant program to fund
 mental health courts;
 transitional housing or employment programs;
 re-entry services;
 alternatives to incarceration;
 transition services; and
 community corrections programs.
 Recommended by the Legislative Oversight Committee for the
Continuing Examination of the Treatment of Persons with Mental
Illness who are Involved in the Criminal Justice System,
 Creates a Recidivism Reduction Grant Program within DCJ to
provide 3-year program implementation grants to reduce recidivism
for individuals with mental illness who have been involved in the
criminal justice system. Count(ies) are eligible to apply.
 Signed on 5/21/09, effective upon signature
Communicable Disease Control (SB 179)
 Requires HIV testing of all women during the first
trimester of pregnancy or when entering the hospital for
delivery if not tested during pregnancy, unless woman
declines the test
 Medicaid already includes HIV testing in the standard costs
for treatment
 Signed on 4/09/09, effective upon signature
Probate
Probate Happenings
 Sandie Franklin, former
Denver Probate Court
Magistrate and
Administrator at SCAO.
 2 Probate Examiners
Coming Soon!
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Greeley/Adams/Fort Collins
Denver
Springs/Pueblo/Arapahoe
Probate Code Omnibus Bill (HB 1241)
 Amends provisions concerning the appointment of a guardian
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for a minor child by means of a signed writing.
Court may appoint a guardian ad litem to represent the
interest of a PROTECTED person as well as for minor or
incapacitated person.
It is designed to ensure that the intention of the trust creator
or decedent is carried out, and to govern the proper
distribution of assets to trust beneficiaries, heirs, and devisees.
The bill limits the applicability of the Uniform Principal and
Income Act of 1955 to trusts and other interests that are not
subject to the 2000 act.
Provides procedures by which trustees administering trusts,
and personal representatives administering estates, allocate
receipts and payments to principal and income.
Designated BeneficiaryAgreement Bill (HB 1260)
 Authorizes 2 competent adults who are not married to enter into a designated
beneficiary agreement, making each adult a designated beneficiary of the
other.
 In the absence of a superseding legal document, a designated beneficiary
agreement entitles each party to:
 protections regarding ownership of real and personal property;
 Be a conservator or guardian for the other designated beneficiary (and
make medical decisions );
 Be treated as a beneficiary for life insurance or health insurance;
 Visit the other designated beneficiary in the hospital or in a nursing
home;
 Inherit through intestate succession upon the death of the other
designated beneficiary;
 Have standing to sue for wrongful death of the other designated
beneficiary.
 Signed on April 4, 2009, effective upon signature
Enact Changes To Colorado Probate Code, 1 (HB 1287)
 Uniform State Laws. Effective
July 1, 2010.
 Cost-of-living adjustments, wills, parental
inheritance, step-parent adoption, and surrogacy
agreements.
 For purposes of inheritance through intestate succession, a
parent-child relationship exists:
 Between child and genetic parents, regardless of marital
status;
 Between an adoptee and the adoptee's adoptive parent.
 A parent may NOT inherit if parental rights were
terminated or the child died before reaching 18 years of
age and there is clear and convincing evidence that the
parental rights could have been terminated.
Enact Changes To Colorado Probate Code, 2 (HB 1287)
IN VITRO INHERITANCE
 Addresses inheritance issues for children conceived through assisted
reproduction where a child is conceived by a method of causing
pregnancy other than sexual intercourse and the birth is to a woman
other than a gestational carrier as follows:
 A third-party donor does not have a parent-child relationship with
a child conceived as a result of assisted reproduction (child of
assisted reproduction) despite a genetic relationship with the child;
 A parent-child relationship exists between a child of assisted
reproduction and the child's birth mother;
 A parent-child relationship exists between a child of assisted
reproduction and the husband of the child's birth mother if the
husband's sperm were used during his lifetime by his wife for
assisted reproduction and the husband is the genetic father of the
child, unless the husband withdraws his consent.
Enact Changes To Colorado Probate Code, 3 (HB 1287)
GESTATIONAL AGREEMENTS
 A parent-child relationship is conclusively established by a court
order designating the parent or parents of a gestational child.
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A parent-child relationship between child and gestational carrier does not exist
unless the gestational carrier is designated as a parent in a court order or the
gestational carrier is the child's genetic parent and a parent-child relationship
does not exist with an individual other than the gestational carrier.
 A parent-child relationship exists between a child of assisted
reproduction and an individual other than the birth mother who
intends to be treated as parent;
 If no court order otherwise, the parent-child relationship exists
between a gestational child and intended parent(s) who
functioned as parent(s) not later than 2 years after child's birth.
 Addresses what happens if the intended parent dies while the
gestational carrier is pregnant or if an individual's sperm or eggs
were used after the individual's death or incapacity.
Uniform Power Of Attorney Act (HB 1198)
 Enacts the "Uniform Power of Attorney Act", drafted by
the national conference of commissioners on uniform
state laws.
 Default rules govern how people can deal with their
property in case of future incapacity.
 The bill takes effect August 4, 2009.
Budget Bills
Flexibility to Use State Revenues (SB 228)
 Removes Arveschoug-Bird 6% limitation on the
growth of the general fund operating budget from
the previous year’s general fund operating budget.
 Limit is set at 5% of Colorado personal income,
removing the “ratchet effect.”
 Does not change overall TABOR limits, but allow
greater latitude in determining funding priorities.
Judicial Budget Highlights
 14 new probation officers and 17 new Drug Court staff.
 In FY2009, we requested supplemental funding for the mandated cost
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budget and received $1.3M – this is ongoing funding.
In FY2009, we requested supplemental funding for the language
interpreter line and received $500K in ongoing funding.
For FY2010, we were slated to receive 12 district court judges and staff
and 3 county court judges and staff. Due to statewide budget shortfalls,
these judgeships were delayed. Some districts will get a judge in May
2010 and the rest will come on-line in July 2010.
The entire State was cut 1.82% in personal services. Should be around
$4M for us across all programs.
SCAO moves to 101 Colfax as of July 1.
CONCERNING CLARIFYING THE APPOINTMENT OF STATEPAIDPROFESSIONALS IN CASES INVOLVING CHILDREN (SB 268)
 Budget Reduction Bill
 Precludes the court from ordering that the State bear the cost of a CLR or a CFI in a
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domestic relations proceeding unless both parties in the case are found to be
indigent;
Post decree court shall make effort to minimize costs to the state,
Allows the court to appoint a guardian ad litem (GAL) in truancy proceedings only
in exceptional and extraordinary circumstances;
Requires the court to make specific findings that the appointment of a GAL in
certain delinquency cases is necessary to serve the child's best interests; and
Clarifies when the appointment of a GAL terminates in a delinquency proceeding:
when sentence is imposed, unless the court continues the appointment because the
child is sentenced to residential or community out of home placement as a
condition of probation; or, when the child reaches 18, unless child has a
developmental disability
Court may terminate the appointment of a GAL in delinquency on its own motion
or on motion of the GAL when the appt is no longer necessary
(parent/guardian/custodian appears, conflict of interest no longer exists or appt no
longer serves the best interest of the child)
Signed by the Gov. on May 1, 2009, effective upon signature
Clarification Of Judicial Fees Bill (SB 038)
 Removes the repeal of the docket fees for county court
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civil actions.
Clarifies that the assessment for displaced homemakers
applies to a petition for declaration of invalidity of
marriage, legal separation, or declaratory judgment.
Fee assessed against non-indigent person
Effective July 1, 2009, for all petitions filed on or after
July 1, 2009
Signed on 4/16/09
Match for County Child Care (SB 267)
Budget Package Bill. Under current law, counties are required to pay 10
percent of the cost of services for children placed in residential child care
facilities in FY 2009-10. The county contribution increases to 20 percent on
July 1, 2010.
 This bill moves the date for the higher contribution rate forward by six
months. Effective January 1, 2010, the bill changes the local contribution
that counties must pay for children in the child welfare system who are
placed in residential child care facilities in FY 2009-10 from 10 to 20
percent.
 Signed on 5/1/09, effective upon signature
Delay Child Welfare Mental Health Pilot Bill (SB 207)
 FY 08-09 Budget Balancing Bill. Delays implementation
of the child welfare and mental health services pilot
program (program) in the department of human services
until on or before July 1, 2015.
 Repeals the 2008-09 fiscal year appropriation for the
program.
 03/02/2009 Governor Action - Signed
School Finance Act (SB 256)
 For our purposes - an amendment to School Finance
Act, EARRS is “Exceptional and At-Risk Student
Services,” amends the School Finance bill to pilot
the use of community educational advocates, to
provide advocacy and support services for children
and youth involved in truancy proceedings, and/or to
offer appropriate alternatives to GAL representation.
 Signed on 5/21/09
Killed Bills
Repeal And Reenact Uniform Parentage Act (HB 1286)
 Colorado Commission on Uniform State Laws. Repeals and reenacts the
"Uniform Parentage Act", which is contained in the "Colorado Children's
Code"
 To update the statutes on establishing legal parentage of children to reflect
modern technologies used for conception and for genetic testing, as
recommended by the national conference of commissioners on uniform state
laws.
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Establishes a separate procedure for genetic testing allowing a court to order testing without a
paternity action.
 Bill was PI’d, but there is a workgroup meeting over the summer to bring this
legislation back next session
Youth Corrections Facilities Reporting (09-1306)
 Requires employees of the department of human
services (department) to file an incident report any
time a youth in the youth corrections system in the
department claims to have been injured as a result of
child abuse or neglect, the inappropriate use of force
or restraint, or an assault by another person in the
facility that is facilitated by a facility employee.
Renfroe Nikkel PI'd
Locked Doors (HB09-1314)
 Locked Doors in Daytreatment Centers Allows day
treatment centers to use locked doors in order to
protect the public and others in treatment
 Judd, Sandoval
 PI 'd in senate Health and Human services
committee
Risk Assessment HB-1225
 Allows a school district to conduct a risk assessment
of certain students who apply for admission to a
public school of the school district and who have,
within the previous 6 months, been involved in
circumstances related to a threat of physical harm or
other act of violence.
 PI’d
The End