Tcl - Dependency and Neglect Law: New Legislation and Case Law - September 2006 - Juvenile Law
| Publication year | 2006 |
| Pages | 79 |
| Citation | Vol. 35 No. 9 Pg. 79 |
2006, September, Pg. 79. TCL - Dependency and Neglect Law: New Legislation and Case Law - September 2006 - Juvenile Law
September 2006
Vol. 35, No. 9 [Page 79]
Juvenile Law articles are sponsored by the CBA Juvenile Law Section to apprise practitioners of substantive and procedural information concerning the field of juvenile law.
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During the past year, the Colorado legislature and courts focused on the rights of parents and services for families in dependency and neglect law. Practitioners must keep current on the law to ensure the best representation of children and families.
The complexities of dependency and neglect ("D&N") law require practitioners to keep abreast of new legislation and case law, as well as changes to the panoply of services available to parents and children through the Department of Human Services ("DHS") and other governmental and private agencies. This article provides an overview of relevant legislation from the 2006 session of the Colorado legislature, as well as significant cases decided in the past year by the Colorado Court of Appeals and the Colorado Supreme Court. The purpose of this article is to provide an update for the D&N practitioner - whether county attorney, guardian ad litem, respondent parent counsel, or judicial officer.
In an effort to be user friendly, the information in this article is presented in the order in which issues arise in D&N cases. Recent changes in the broader scope of juvenile law, including delinquency and truancy, will be discussed only in relation to the practice of D&N law.
Dependency and Neglect Trial Practice
D&N cases are civil proceedings initiated by a county DHS by filing a petition alleging abuse or neglect of the subject child. Cases are heard by juvenile court magistrates or judges. The juvenile court obtains jurisdiction to enter orders in a D&N case on adjudicating the child a dependent and neglected child. Grounds for sustaining a D&N petition include current abuse or neglect, as well as prospective harm based on unsafe conditions in the home or with the parent.
Colorado courts considered cases affecting nearly every stage of D&N litigation during the past year. New legislation that was passed during the 2006 legislative session also will affect how D&N cases are handled. The following discussion provides an overview of new case law and legislation affecting various issues present in D&N cases.
Newborns and Drug Use
It has long been the practice of DHS to file D&N petitions regarding children who test positive for illicit drugs at birth. In 2005, the Colorado legislature codified this practice by amending the definition of "dependent and neglected child" to include one who tests positive for schedule-I or schedule-II controlled substances at birth.(fn1)
This statutory provision led to an interesting challenge to this practice, based on the question of whether exposing a fetus to drugs or alcohol is considered child abuse. A fetus does not meet the statutory definition of a "child,"(fn2) and a D&N petition cannot be filed on behalf of a fetus.
The Colorado Court of Appeals held that the statute does not change this aspect of the law; instead, it specifically refers to the condition of the child at birth.(fn3) Exposing a fetus to controlled substances and/or alcohol is considered sufficient evidence to support a finding that the child will be exposed to an injurious environment and will lack proper parental care. Therefore, a child who has not been subjected to abuse since birth, or who has never been placed in the custody of the parents, may be adjudicated a dependent and neglected child.(fn4)
Individual Adjudication
The status of a child, not the guilt or fault of a parent, supports the finding of D&N. However, it is not enough that one parent admits to the child's status(fn5) to sustain the petition against the other parent. Each parent has an independent right to an adjudicatory trial by judge or jury. Attaching jurisdiction as to a parent based on the admission of another would allow for D&N cases to be used for manipulative purposes.(fn6)
Indian Child Welfare Act
The Indian Child Welfare Act ("ICWA")(fn1) is triggered in a dependency and neglect case when a child is determined to be an Indian child. Indian tribes have a separate and distinct interest in Indian children, which is considered equivalent to parental interests.(fn2) It is important to determine early in a case whether ICWA applies. ICWA defines an Indian child as an unmarried person under the age of 18, who is either: (1) a member of an Indian tribe; or (2) eligible for membership in an Indian tribe and the biological child of a member.
A tribe must be given an opportunity to be heard in a case involving an Indian child. Notice requirements under ICWA are triggered whenever the petitioning party has "reason to know" or "reason to believe" a child may be an Indian child. Notice must be sent to the identified tribe on receiving reasonably reliable information that the child is an Indian child. If no specific tribe is identified, notice must be sent to the Bureau of Indian Affairs.(fn4)
These are amorphous standards that must be determined on a case-by-case basis, considering the totality of the circumstances. They are to be liberally applied.(fn5)
1. Indian Child Welfare Act of 1978, 92 Stat. 3069, 25 U.S.C §§ 1901-1963 (2000).
2. B.H. v. People in the interest of X.H., 2006 Colo. LEXIS 557, (2006), citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989).
3. 25 U.S.C. § 1903(4).
4....
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