PRELIMINARY PROTECTIVE
PROCEEDING
Shelter Hearing
Advisement Hearing
Temporary Protective Custody Hearing
Detention Hearing
Emergency Custody



Law Enforcement may remove a child without a
court order if the child is seriously endangered or
seriously endangers others.
The Department may remove a child with an ex
parte court order, if necessary because there is a
danger to the child’s life or health.
The court may also issue ex parte protective orders,
without removing the child.
Deciding whether to take emergency
custody

7.304.3 Out-of-home placement criteria
 In deciding whether to remove a child, the
Department looks at 3 criteria. All three are
required to be met prior to removal.
Criteria 1
Under Volume 7, a child can be at risk for out of home placement
because of:
 Abandonment;
 Abuse/neglect;
 Domestic violence;
 Caretaker unable to care for child because of substance abuse,
mental illness, disability, illness, homelessness;
 Child beyond control of parent;
 Danger to self or others;
 Infant or young child of teen in placement- Note Vol. 7 (12
CCR2509-1) at 7.001.41G: Title IV-E foster funds extend to the child
of a teenage parent who is eligible for these funds.
 Delinquency;
 Relinquishment or termination of parent rights;
 Child returning home from placement.
Criteria 2
Assess LEVEL of risk for removal (Volume 7.202.5)
 If imminent then determine child/family strengths
and identify appropriate services (reasonable
efforts).
 If services are not available, are unsuccessful, or
exhausted, removal may be considered.
Criteria 3



Removal appropriate when placement is best choice
of available options
Volume 7.304.5
BUT must continue reasonable efforts to resolve
conditions which led to imminent risk
Reasonable Efforts



Identify appropriate parent/relative/caretakers
Assess the parent/r/c ability to protect
Ability to assist the parent/r/c in accessing services.
Preliminary Protective Proceeding
(PPP) Hearing


C.R.S. §19-3-403; 405
When the Department has taken emergency
protective custody of a child, a PPP hearing is held
to determine whether that custody should continue
with the Department or whether the child should be
returned to his or her parents.
Emergency Protective Orders


If the Department did not take custody on an
emergency basis, but instead sought ex parte
protective orders, this hearing is held to modify or
continue those orders.
If the Department has not sought any ex parte
orders, either custody or protection orders, this
hearing is the first chance to make such requests.
Burden of Proof



Department has the burden of proof.
Standard for a non-Indian child is whether the
custody or protection order is appropriate and in
the child’s best interests. C.R.S. §19-3403(3.6)(a)(V).
Any probative evidence is admissible.
Burden of Proof Under ICWA


Different standard for removal for an Indian child
Who is an Indian child?
 Member
of an Indian tribe; or
 Eligible for membership
and is the biological
child of a member.
Burden of Proof Under ICWA

Standard for removal:
Active Efforts
 Child must face serious emotional or physical damage if left
in the home
 Standard of proof is clear and convincing evidence



Including testimony of a qualified expert witness
Placement preferences if child is removed- 25 U.S.C. §
1915(b):
Child’s extended family
 Member of child’s tribe
 Member of another tribe
 Foster care

Timing




72 hours after removal; 48 hours for police hold
72 hours after protective orders entered
Excluding weekends and holidays
NOT jurisdictional
Placement Options



Preference to relatives
 Relative must be willing, capable, and appropriate
Child’s best interests
C.R.S. §19-3-403 (3.6) (a) (III)
Placement Options, continued

Otherwise Court Considers:
 Child’s safety
 Least restrictive environment
 Appropriate to child’s needs
 Near parents/community
 Educational needs of child
 Cultural considerations
 Family’s religious preferences
 Availability and costs
 Sibling placement
 42 U.S.C. 675 (5) (A)
Relatives

How do you know if they are appropriate?
 CBI and Trails/state central registry check
 Federal law under the ASFA, codified in
Colorado, at C.R.S. §19-3-406, eliminates
people with certain convictions from consideration
for placement.
 People with certain other convictions MAY be
approved by the court, but it is discretionary.
 Have space/provisions
 Can be protective
 Will facilitate parent/sibling contact
Relatives, continued
Appropriate also often means the Department
approves of placement with them.
 Volume 7 regulations permit emergency placement:
 Kin does not have to be certified prior to
placement
 Placement can be done on emergency basis –
“visitation basis”
 Kin are eligible for supportive services, including
Medicaid, child care, family preservation services,
and core services to make placement viable.

Relatives, continued




Volume 7.304.2
Placement with kin can be voluntary.
Kin are entitled to foster care payment if they
become licensed.
 Kin are entitled to foster care payment. It is NOT
a need based calculation.
 If relatives do not choose to become certified,
they may choose to apply for Relative TANF for
public funds to help support the child. They could
also ask for child support from the Department.
Broad definition of “kin”
 Relatives or persons with a “family like”
relationship
Defenses at PPP






Volume 7 process – identify family strengths,
identify needed services
Emergency?
Reasonable Efforts?
Safety Plan?
Placement with kin
Effect of admissible hearsay
Contesting the PPP Hearing

Consider the following when deciding whether to contest the
hearing or not:
 Defenses? Ask your client factual questions to determine any
possible defenses
 Witnesses? Ask your client to identify the presence of helpful
witnesses, if any
 Likelihood to prevail? Discuss with client what you believe are
the chances
 Placement and visitation? Discuss with client the alternatives
 RPC 1.2 - Client decides the objective of the representation,
and the lawyer decides the means. Client decides whether or
not to contest PPP.
Seeking Visitation Orders





Reunification is dependent upon frequent and meaningful
visitation.
Agency office visits are the worst locations for families to visit.
Ask that Department follow best practices regarding visitation.
Ask client to identify someone who may be able to supervise visits
outside of the Department – a friend, relative, pastor, community
worker. Then ask the court to order Department to investigate this
person as a visitation “host.”
If visitation at the Department is limited because of staffing or
financial concerns, consider asking the court to order visitation at
a community visitation agency. Find Colorado agencies, contact
information, and pricing at: http://www.svdirectory.com/
Application for Visitation Argument




C.R.S. §19-1-103 (89): “ ‘Reasonable Efforts’ …..means the exercise of diligence
and care throughout the state of Colorado for children who are in out-of-home
placement…..In determining whether it is appropriate to provide, purchase, or
develop the supportive and rehabilitative services that are required …to foster the
safe reunification of a child with a child’s family…..the child’s health and safety shall
be the paramount concern….”… -plus-
C.R.S. §19-3-208 (2)(b)(IV): “…[the] following services shall be
available…visitation services for parents with children in out-of-home placement….”plus12 CCR 2509-4 J sections 1, 2, and 6 : “…The visitation plan shall specify the
frequency, type of contact, and the person(s) who will make the visit. At a minimum
the plan shall provide the methods to meet….the growth and development of the
child…-plusCDHS and Family Services Review 1/28/09: parents should be encouraged to
attend doctor, physical therapy and other appointments…serves the dual purpose of
additional contact and helping the parent learn appropriate care … (pp. 59-60)
Litigating the Application for a Visit
Host




Argue: Providing a means for your client to see her children is a “reasonable effort”
in support of reunification and promotes the children’s health and well being in that
current minimum practice only permits the child to see her parents the equivalent of
two days per year and more frequent visits that are fun, supportive and mimic family
life are more likely to help the child maintain her attachments. C.R.S. §19-1-103
(89)
Argue: DHS is responsible for providing “visiting services” for a child separated from
parents by foster care. C.R.S. §19-3-08 (2)(b)(IV). Applicable regulations make
clear that a visiting plan is supposed to meet the developmental needs of a child and
should progress as reunification gets closer. 12 CCR 2509-4 J sections 1, 2, and 6.
Argue: CDHS has recognized that better visiting plays a key role in safe reunification,
that visiting should be organized around typical parenting events ,and that people
outside the caseworker should be accessed to be a resource to provide more visits.
Argue: Your client should not be compromised or deprived of the benefit of the law
and recognized best practices because of scarce resources- visit hosts are win-win.
Seek Orders for Services
 Services:
when appropriate and client agrees:
Referral for substance abuse evaluation and
monitoring
Mental health evaluation and treatment
 Evaluations: need agreement for immunity
Admissions at PPP?

Benefits


Risks


The rationale for this is to fast track the case to the
treatment plan phase and to provide services to the family
as soon as possible, thereby speeding reunification.
The risk of making an admission to not just the petition for
Temporary Protective Custody, but also to the petition in
dependency and neglect is the rush to prejudge the facts
prior to an investigation and completing discovery.
Local practice

It is important to know what is typical practice in your
jurisdiction, but it is just as important to make a case by case
decision about what process to follow.
PPP Motions Practice

Possible written motions after PPP hearing
 Motion
for reconsideration, or motion for district court
review if heard by magistrate
 Motion for change of placement
 Motion for deposition of witness
 Motion for discovery
 Motion to conduct kinship home study
 Motion for physical or mental examination, CRE 37
 Motion to exclude evidence at trial
 Motion to redact hearsay within hearsay
 Subpoena for author of a report C.R.S. §19-1-107(2)
PPP Checklist Review

Before the hearing:
 Petition
 Client interview
 Contact information
 Formulate a position
PPP Checklist Review

During the hearing :
 ICWA
 Visitation
 Service referrals
 Kinship investigations
PPP Checklist Review

After the hearing
 Client Appointment
 Service referrals
 Visitations
 Relatives
10 Minute Networking Break
PPP Hearing Exercise- Breakout
Groups


Break into groups based on the sticker color on your
nametag.
You will need Handout 7: D&N Intake and Handout
9: Conversations Prior to PPP Hearing
CLIENT COUNSELING AND
OVERCOMING
COMMUNICATION OBSTACLES
Building a Healthy Child Welfare System
Colorado Practice Standards
Colorado Standards for RPC
 Training
 Competent
Representation
 Communication
 Documentation
Colorado Practice Standards, continued
 Investigation:
facts and timing
 Agency Advocacy: services and placements
 Client Location: keeping track
 Cultural Awareness: impact on case success
 Appeals
Client Location
Several sources:
 Federal parent locator service:
http://www.acf.hhs.gov/programs/cse/newhire
(accessible by DSS)
 Colorado Corrections: www.doc.state.co.us/oss. Need
DOB or DOC number.
 Criminal background checks: www.cbirecords.com
 To find any person: www.switchboard.com
 ICON access at:
https://www.jbits.courts.state.co.us/pas/pubaccess/inde
x.cfm
ABA Standards of Practice for
Attorneys Representing Parents
General Principle:
Understand and protect the parent’s rights to information
and decision-making while the child is in foster care.
Client Communication and Counseling


Introducing the client to the system:
 What to cover:
 Whether to contest the removal
 Explaining process
 Answering questions, particularly about visits
 Relatives and other support
 Native American heritage
 What to save for another day
 Fact investigation
 Witnesses
 Health care and mental health needs
 Older children
 Religion and culture
Advisement of rights: Watch for new English/Spanish video version
Client Communication and Counseling,
continued
Ethical Issues:
 Client with disability: Rules of Professional Conduct 1.14
See “Representing the Mentally Retarded or Disabled Parent
in a Colorado Dependent or Neglected Child Action,” 11 Colo. Law. 693
(1982).
 Determining whether client has a disability: Can client make reasoned
decisions? Can client appreciate consequences? Can client take positions
consistent with his or her best interests?
 Remedial action
 Consult with family members.
 Request a GAL for parent

Impact
 Weigh the pros and cons
 Signals to court that parent may not be able to parent
Relationship With The Client:


Advocate for the client’s goals and empower the client to
direct the representation and make informed decisions based
on thorough counsel.
Provide the client with contact information in writing and
establish a message system that allows regular attorney-client
contact.
Relationship With Client, continued
Meet and communicate regularly with the client well before
court proceedings. Counsel the client about all legal matters
related to the case, including specific allegations against the
client, the service plan, the client’s rights in the pending
proceeding, any orders entered against the client and the
potential consequences of failing to obey court orders or
cooperate with service plans.
Relationship With Client, continued





Work with the client to develop a case timeline and tickler system.
Act in a culturally competent manner and with regard to the socioeconomic
position of the parent throughout all aspects of representation.
Take diligent steps to locate and communicate with a missing parent and
decide representation strategies based on that communication.
Be aware of the unique issues an incarcerated parent faces and provide
competent representation to the incarcerated client.
Be aware of the client’s mental health status and be prepared to assess
whether the parent can assist with the case.
Investigation and Discovery



Conduct a thorough and independent investigation at every
stage of the proceeding.
Review the child welfare agency case file.
Obtain all necessary documents, including copies of all
pleadings and relevant notices filed by other parties, and
information from the caseworker and providers.
ADJUDICATION HEARING
Factfinding
Trial
Before the Adjudicatory Hearing



Advisement hearing
 Often the chance to enter a denial or an admission to the petition
 Sometimes advisement hearings, or 1st hearings, are used as
control dates for return of service for noncustodial parents.
Formal advisement
Opportunity to make an admission
 RPC should very carefully weigh the advantages and
disadvantages for the client to making an admission at the first
hearing.
 Advantages include proceeding more quickly to the treatment
plan and receiving services and perhaps reunifying the family
faster.
 Disadvantages: no time for an investigation, no time to obtain
records and discovery, and no time to create any possible
defenses.
Admissions Generally
Admission includes waiver of factual basis
 Request C.R.S. §19-3-207 orders to protect client’s
statements.
 A C.R.S. §19-3-207 (2) order is a protective order
that says no professional can be called to testify
about anything the respondent said during
treatment in a subsequent criminal proceeding.
 Consider seeking an interim treatment plan to obtain
services as quickly as possible

Informal Adjustment



When parties are before the court,
But before a D & N petition is filed,
Court may authorize an informal adjustment
 Parents
must be advised and are entitled to counsel
 Parents admit facts necessary to establish prima facie
jurisdiction: the admission, however, may not be used
later if a petition is filed.
 Informal adjustment may not last longer than 6 months.
 C.R.S. §19-3-501
Deferred Adjudication
(delayed dismissal or continued adjudication)




When parties are before the court
And a D & N petition has been filed
Court may authorize deferred adjudication
(delayed dismissal)
Requires:
 Admission
by parent
 Consent of all parties
 Conditions – similar to treatment plan
 6 months plus 6 months
 Governed by C.R.S. §19-3-505(5)
Admissions



No fault. C.R.S. §19-3-102 (1) (e):
 Some jurisdictions routinely use “no-fault” admissions,
as a way for the court to gain jurisdiction over the
parties and enable the court to order a treatment
plan.
 One parent’s no-fault admission cannot be used
against the other parent.
Impact:
 Court has jurisdiction over parties and the subject
matter and can enter orders against all parties.
Homelessness should not be used as the sole basis to
sustain a petition of dependency.
Admissions





Injurious environment C.R.S. §19-3-102(1)(c)
Waive or stipulate to a factual basis: agree to address
all issues in treatment
Lacks proper care through acts or omissions C.R.S. §193-102(1)(b)
Beyond control of parent C.R.S. §19-3-102(1)(f)
Admission by one parent not enough to adjudicate
against the other parent. Other parent still has a right to
a trial.
 People in the Interest of A.M., 786 P.2d 476 (Colo.
App 1989).
Settlement Conference




Not used in all jurisdictions
Who runs it
 Family court facilitator or magistrate
Issues
 Negotiated settlement
 Possible treatment plan
 Fathers
Agreements
 Some jurisdictions allow these to be
immediately entered on the record.
Pretrial Conference


Pretrial issues
 Witness lists
 Jury instructions
Not always a hearing:
 Some jurisdictions use case management/trial
management orders
Local Practice

District Plan
 Required
 Details how to handle dependency and neglect
cases, including procedures for jury trials
 Where to find it
 http://www.courts.state.co.us/Courts/Supreme_Cou
rt/Committees/Committee.cfm/Committee_ID/8
Pretrial Motions

Motions for summary judgment
 Purpose: Moving party can avoid trial when, as a
matter of law, no disputed facts exist and the other
party cannot prevail. Court grants summary
judgment when clear and convincing evidence shows
no triable issue of material fact exists.
 C.R.C.P .56(c) controls, except for timing
 Motion must include affidavit
 RPC must respond, with specific facts, also supported
by affidavit, to survive MSJ
Pretrial Motions, continued


Motions in Limine
 Exclude evidence at trial
 Exclusionary rule from criminal law does not apply.
 While hearsay is admitted at many hearings (except
adjudication and termination), remember that
privilege may apply.
 Child hearsay exception: C.R.S. §13-25-129
Discovery
 Controlled by C.R.S. §19-1-307 – not C.R.C.P. 26!
Jury Trial





Colorado permits jury trials for adjudication
hearings - C.R.S. §19-3-202
Entitled to jury of 6
Must request when petition denied, or waived C.R.J.P.
4.3(a)
Three peremptory challenges C.R.J.P 4.3(b) plus 1 for
an alternate
Challenges for Cause C.R.C.P. 47(e)
Timing


Non-EPP: Within 90 days from service of the
petition if child over 6
EPP: Within 60 days from
service of petition if
any child under 6
Burden of Proof



On Department to show child is dependent or
neglected
Non-ICWA: By a preponderance
ICWA: Clear and convincing, as to certain factors,
with expert testimony
Purpose


Purpose of adjudication is to determine the status of
the child
Adjudication not made “as to” the parent
 People in Interest of P.D.S., 669 P2d 627 (Colo.
App. 1983)
 Interest and welfare of the child control. Fulton v.
Martensen, 129 Colo. 125 (1954)
Causes of Action: Abuse

Physical Abuse
 Defined at C.R.S. §19-1-103: Physical abuse is an
injury:
 a) that is not justifiably explained,
 b) that is explained by an explanation that is at
variance with the injury, or
 c) the circumstances surrounding the injury indicate
that it was caused by non-accidental means.
Causes of Action: Abuse


Sexual Abuse: Defined in the criminal code at C.R.S.
§16-22-102(9)
Emotional Abuse is defined as identifiable and
substantial impairment or risk of impairment of a
child’s intellectual or psychological functioning or
development. The parent must have inflicted the
abuse or allowed another to abuse the child. C.R.S.
§ 19-1-103 (1) (a) (IV).
Causes of Action: Neglect




Abandonment
 When the parent leaves the child and does not intend to
parent the child for 6 months or more.
Lacking Parental Care
Injurious Environment
Neglect: when the parent fails or refuses to provide the child w/
proper or necessary:
 Subsistence;
 Education;
 Medical care; or
 Other care necessary for child’s health, guidance, or well being
Cause of Action: Neglect
No fault
 Beyond control of parent
 Abused child’s sibling

 Evidence
of abuse of one child is admissible and
sufficient to sustain a petition as to another child.

Prospective Neglect
 The
theory is that past behavior is indicative of risk
to the child and this is enough to sustain a petition.
Dismissal





Court fails to sustain the petition
Case dismissed
Child released to parent
Parent released from prior orders
Department must expunge its records
Review Checklist



Before the hearing
During the hearing
After the hearing
Motions, Evidence, Expert Testimony
Thomas L. Kennedy
District Court Judge
JANE ALWAYS SUFFERED FROM PRE-TRAUMATIC
STRESS DISORDER ON THE FIRST DAY OF TRIAL
Introduction
Proceedings are civil in nature and are
governed by Colorado Rules of Civil
Procedure (C.R.C.P.)
 Unless Colorado Rules of Juvenile
Procedure (C.R.J.P.) specifically APPLY

Colorado Rules of Evidence
C.R.E. 1101 - Rules of evidence apply to all
courts in the State of Colorado
 The rules generally apply to civil actions
(which includes D&N)

Colorado Rules of Evidence
Exceptions

Exceptions to application of rules of
evidence:
 Preliminary questions of fact under
Rule 104
 Privilege, qualifications, admissibility
of evidence
Exceptions, continued
 Temporary
Custody Hearings – C.R.S.
§19-3-403(3.6)(a)(II)v
 Any evidence having probative value may
be received by the court, regardless of its
admissibility under the Colorado Rules of
Evidence
95% of the lawyers give the rest of
us a bad name
Topics
JUDICIAL NOTICE
 EXPERTS
 HEARSAY
 EVIDENTIARY OBJECTIONS
 MOTIONS
 OTHER TIDBITS

Scenario 1
At the beginning of proceeding, county
attorney asks Court to take judicial notice of
Court’s entire file.
 IS THIS PROPER?

Judicial Notice
Rule 201
 Not subject to reasonable dispute
 Generally known within jurisdiction of Court
 Capable of accurate and ready
determination by resort to sources whose
accuracy cannot reasonably be questioned

Judicial Notice
So what items from the Court file are
appropriate for judicial notice?
 If judicial notice does not apply, are there
other ways to get in reports or documents
from the file?

Scenario 2
Caseworker offered as expert in child
protection based upon a B.A. in psychology,
80 hours of DHS training, and 3 months of
work experience at DHS; No prior expert
testimony
 Should the Court qualify the caseworker as
an expert?

Scenario 3
Same caseworker qualified as expert,
questioned by county attorney regarding
statements of child victim of abuse about the
identity of her abuser
 ADMISSIBLE THROUGH EXPERT?

Scenario 4
Same caseworker questioned about results of
U.A. for respondent parent disclosing
presence of methamphetamines
 ADMISSIBLE THROUGH EXPERT?

Scenario 5
Same caseworker questioned about
statements made by respondent parent
 ADMISSIBLE THROUGH EXPERT?
 ADMISSIBLE TO BOTH PARENTS?

Scenario 6
Same caseworker offers opinion that it is in
the best interests of the child to terminate
parental rights
 ADMISSIBLE?

Rule 702: Expert Witnesses

If scientific, technical, or other knowledge will
assist the trier of fact to understand the
evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge,
skill, experience, training or education, may
testify thereto in the form of an opinion or
otherwise.
EXPERT WITNESSES

MR. SCIENCE STANDARD
 I KNOW MORE THAN YOU
 WHAT I HAVE TO SAY WILL BE
HELPFUL TO TRIER OF FACT
Rule 703: Experts
IF facts and data are the type reasonably
relied on by experts in the field, those facts
and data need not be admissible, BUT
 Facts or data that are otherwise inadmissible
shall not be disclosed to the jury UNLESS the
court determines their probative value
substantially outweighs the prejudice.

Rule 704

Testimony in the form of an opinion or
inference otherwise admissible is not
objectionable because it embraces an
ultimate issue to be decided by the trier of
fact
People ex rel. M.M. 215 P.3D 1237 (C.A.
2009)




“When the underlying basis for the expert’s
opinion is not accepted as reliable by the
court, the expert’s testimony is inadmissible.”
Polygraph case
Judge specifically stated did not rely on
polygraph results
REVERSED
People in Interest of J.E.B.
854 P.2D 1372 (C.A. 1993)
Social services experts may rely on reports
and other info in case which might otherwise
be objectionable hearsay
 C.R.S. § 19-1-107, for purposes of “proper
disposition”, reports may be considered by
the court
 If requested the party who prepared the
report must be available to testify
 Reports may also be considered in
termination hearing

People in Interest of A.E.L.
181 P.3D 1186 (CA 2008)
Exclusionary rule does not necessarily apply
in D&N
 Balance the deterrent benefits against the
societal costs of excluding relevant evidence
 So drugs seized illegally from parent’s home
are admissible in D&N adjudicatory trial

A.E.L., continued
Approved social worker’s qualification
as an expert in child welfare
 Weight to be given that testimony is up
to the jury

Scenario 7
Visitation supervisor testifies that respondent
father appeared to be under the influence of
drugs during visit
 ADMISSIBLE?

Lay Opinions
Rule 701: rationally based upon
perceptions
 Helpful
 Not based on specialized knowledge
 Examples: intoxication, handwriting,
mental confusion, sound of voice

Authentication
Rule 901: The document is what the witness
says it is
 How does the witness know?

Self-Authentication
Rule 902: Public records under seal
 Certified copies of public records
 Certified domestic business records

Hearsay Definition

Out of court statement offered to
prove the truth of the matter
asserted
Hearsay Steps
IS IT HEARSAY?
 IS THERE AN EXCEPTION THAT
APPLIES?

What Hearsay Isn’t
Prior Statements by witness
 Admission by party opponent
 Not offered to prove the truth, but to explain
subsequent conduct or relevant for other
purpose

Scenario 8
Babysitter testifies that 8 year old girl told
her that step-dad had touched her private
parts
 HEARSAY?
 ADMISSIBLE?

Scenario 9
Father testifies that 4 year old son comes
homes crying and says that 19 year old
neighbor hurt his bottom
 HEARSAY?
 ADMISSIBLE?

Scenario 10
Police arrive at scene of alleged domestic
violence incident. Mom has a black eye and
tells police that dad just tried to kill her
 HEARSAY?
 ADMISSIBLE?

Scenario11
On-call caseworker testifies that the
department received a call on the hotline
reporting dad abused his son who is at the
hospital
 Caseworker proceeds to hospital
 IS HOTLINE STATEMENT HEARSAY?

Exceptions
C.R.S. §13-25-129: Child Hearsay
 Applies to D&N proceedings
 Victim of sex abuse and domestic violence

C.R.S. §13-25-129
Hearing out of the presence of jury
 Time, content, and circumstances provide
sufficient safeguards of reliability
 Child either testifies or is unavailable
and there is corroborative evidence of
the act described
 REQUIRES LIMITING INSTRUCTION

Child Hearsay




Expert testimony RE: Child victims
SHRECK, 22 P.3d 68 (Colo. 2001): relevant,
reliable, helpful
FASY, 829 P.2d 1314 (Colo. 1992): victim
suffered from PTSD
WITTREIN, 221 P.3d 1076 (Colo. 2009):
avoid testimony of child’s truthfulness
Hearsay Rules

Rule 803: Whether or not witness is available
 Present
sense impression
 Excited utterance
 Then existing condition
 Statements of purposes of medical diagnosis or
treatment
 Business or public records
Present Sense Impression

A spontaneous statement describing or
explaining an event or condition made while
the declarant was perceiving the event.
Excited Utterance

A statement relating to a startling event or
condition made while the declarant was
under the stress or excitement caused by the
event or condition.
People in Interest of O.E.P.
654 P.2d 312 (CA 1982)

Statements of 2 year old victim of sex
assault to care provider and social worker
admissible as excited utterances
 Stress-inducing event
 Lack of time OR capacity to fabricate
People v. Vigil
127 P.3D 916 (Colo. 2006)
Statements to father and father’s friend
admissible as excited utterance
 Statement to doctor that “butt hurt”
admitted; no reference to who committed the
assault

Then Existing Condition
A statement of the declarant’s then existing
state of mind, emotion, sensation, or physical
condition, such as intent, plan, motive, design,
mental feeling, pain, and bodily health
 Circumstances indicate sincerity

Medical Diagnosis


Statements giving history or describing symptoms
or general character of cause or external source
“insofar as reasonably pertinent to diagnosis or
treatment.”
WHAT ABOUT A STATEMENT TO L.C.S.W.?
Medical Diagnosis, continued
Oldsen v. People, 732 P.2d 1132 (Colo.
1986)
 Child’s statements to social worker,
psychologist, and physician that dad sexually
assaulted her not related to medical
diagnosis and therefore not admissible under
this exception
 Superseded by CHILD HEARSAY statute

Medical Diagnosis, continued
Identity of perpetrator of abuse generally
inadmissible under this rule, unless member of
victim’s family or household WHICH ARE
reasonably pertinent to the physician’s
recommendations
 U.S. v. Joe, 8 F.3d 1488 (10th Cir. 1993)

Business Records





Report or data in any form
Made at or near the time of event
Made by person with knowledge
Regular practice to make report
Testimony by custodian or other qualified witness
Business Records, continued

People in Interest of R.D.H., 944 P.2D 660
(CA 1997)
 Admissibility of social services records
under C.R.S. §19-1-107 and C.R.E.
803(6)
 Also discusses confidentiality of treatment
records under federal regulations 42 CFR
2.63(a)
Business Records, continued

People v. Buckner, 228 P.3d 245 (Colo. App.
2009)
 Data or information automatically
generated by a machine is not hearsay
 Involved record of incoming call on a cell
phone
Rule 804

Witness Unavailable
 Refuses to testify
 Lack of memory
 Incompetent: Child witness
Rule 804 Exceptions
Former testimony
 Statement against interest
 Statement of personal or family history

Miscellaneous

C.R.S. §19-3-207(1): Admissibility in
criminal case of evidence derived from
compulsory process in D&N
 Requires notice and hearing
 Burden on DA to prove prejudice to
prosecution
Miscellaneous

C.R.S. §19-3-207(2): Statements made to
professionals pursuant to court order are
inadmissible in criminal case
 No notice or hearing
Miscellaneous

C.R.S. §19-3-207(3): No admission by
respondent in open court or by pleading
admissible in criminal case except for
impeachment
Miscellaneous
C.R.S. §19-1-307: Discovery of DHS
records
 Presumptively confidential for most purposes
 Except if necessary for determination of issue
before court

Miscellaneous
People v. Jowell, 199 P.3D 38 (C.A. 2008)
 Discovery of DHS records governed by this
statute, NOT Rule 16
 Describes process to obtain in camera review

Residual Exception

Rule 807
 More probative than other evidence
 General purposes served by admission
 Requires prior notice to opponent
In the future, please say “I object”,
rather than “that’s total bullshit”
Most Common Objections
Leading
 No foundation
 Hearsay
 Argumentative

Objections

C.R.E. 103 Requires:
 Timely objection
 Reversal only upon showing that affects
substantial right of a party
Objections, continued

When to make:
 Exclude prejudicial evidence
 Disrupt opponent’s presentation
 Sometimes an objection highlights evidence
Objections, continued

How to make:
 Objection (hearsay, leading, etc.)
 Avoid speaking objections in presence of
jury
 STAND UP!!!!
More Miscellaneous Rules

RULE 611(C): Leading questions on direct
are permissible to develop testimony
Rule 612
Refresh recollection
 Document need not be admissible

Rule 613

Prior inconsistent statement
 Call attention to time and place of prior
statement
 “The exact language of the prior statement
may be given”
 If admitted, extrinsic evidence not
admissible
Motions


PRE-TRIAL
 Discovery
 Summary judgment
 Experts- when to use
TRIAL
 Motions in limine
 Directed verdict
Privilege
C.R.S. §19-3-311: Traditional Privileges
“Shall not be a ground for excluding
evidence resulting from a report…of child
abuse
 But does not constitute a complete waiver, Dill
v. People, 927 P.2D 1315 (Colo. 1996)

Other Tidbits
Negative inference from silence
 Baxter v. Palmigiano, 425 U.S. 308 (1976)
 Chaffin v. Wallain, 689 P.2d 684 (Colo. App.
1984)

JUVENILE COURT
CASE LAW UPDATE
Survey of Case Law 2010-2012