The Colorado Court of Appeals issued several family and juvenile cases in the first weeks of 2022, some of which affect most civil practice areas.
Parental Responsibilities Concerning ACB, 2022 COA 3 clarified the right to counsel in contempt proceedings. When a government entity brings against an indigent person a contempt action – even if merely remedial – the court should provide a state-paid lawyer for the alleged contemnor. While this case does not determine that an indigent defendant accused of remedial contempt by a private party has a right to counsel, the reasoning of this opinion may apply in those situations. Expect to see more court appointments for remedial contempt.
In People in Interest of EB, 2022 COA 8, a division of the Colorado Court of Appeals clarified that technical difficulties in remote hearings may create due process concerns. A parent facing the termination of parental rights could not make the remote hearing software work, and counsel requested a continuance. The trial court denied the request. The appellate court reversed. Even though parents do not always have the unequivocal right to appear at termination hearings (e.g., parents who choose not to appear but are represented by counsel), technical difficulties are not sufficient to overcome a parent’s desire to defend against the termination of their rights. The lessons of this case are broadly applicable as courts limit in-person appearances. In other words, even if WebEx provides enough due process, it has to actually work for individuals.
People in Interest of BH, 2020 COA 9 is interesting mainly to appellate lawyers. Juvenile cases have their own appellate rules. These rules do not toll the deadline to appeal for certain post-trial motions. This contrasts to general civil appeals, where the same kind of post-trial motion does toll the appellate deadline. The Court of Appeals held that the different text of the different rules is a distinction with a difference; the appeal was dismissed without review of the merits because it was not timely filed. This is yet another lesson in “call your appellate lawyer early” to avoid missing jurisdictional deadlines.
Finally, People in Interest of EW, 2020 COA 12 applies the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in a unique context. The standard rule is that, wherever a child lives for six months becomes that child’s “home state” to determine which state court has jurisdiction to hear juvenile or child custody cases. In EW, the parent and the child left the state and were gone for more than six months after the case opened. The trial court ultimately terminated the parent’s rights, but the parent challenged the judgment for lack of jurisdiction under the UCCJEA. The Colorado Court of Appeals disagreed and upheld the termination order. As a practical matter, this makes some sense in the juvenile context. It would be difficult to maintain court supervision of parents in the child welfare system if a parent could leave and deprive the court of jurisdiction. Prevention of opportunistic behavior, therefore, may be what drives the outcome, even though the opinion is mainly couched in legal and jurisdictional terms.
If the first couple of weeks of January are any indication, this may be a busy year for the appellate courts in family and juvenile cases. Watch this space to see how these cases my affect your practice.