Court Business
| Publication year | 2013 |
| Pages | 95 |
| Citation | Vol. 42 No. 3 Pg. 95 |
By Michael L. Bender, Chief Justice Colorado Supreme Court.
From the Courts
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Colorado Judicial Department Chief Justice of the Supreme Court Directives
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CJD 04-08 Directive Concerning Court Appointments of Child and Family Investigators Pursuant to CRS § 14-10-116.5 Amended December 2012
I. INTRODUCTION
The following policy is adopted to assist the administration of justice through the appointment and training of child and family investigators ("CFIs") pursuant to section 14-10-116.5, C.R.S. It is intended to apply to all CFIs appointed pursuant to section 14-10-116.5, C.R.S., mcludmg those CFIs who are paid privately and those paid with state funds pursuant to either CJD 04-05 (non-attorney CFIs) or CJD 04-06 (attorney CFIs).
CFIs (formerly "Special Advocates") were created by statute in 1997 and are authorized to investigate, report, and make independent and informed recommendations to the court, following a court appointment by order which clearly sets forth the subject matter and scope of the CFFs duties. The statute provides that a CFI may be an attorney, a mental health professional, or any other individual whom the court believes is able to fill this role.
The Commission on Families in the Colorado Courts recommended in its August 2002 Final Report that standards be drafted to clarify the role and the accountability of CFIs. The Supreme Court's Standing Committee on Family Issues through its Other Professionals Subcommittee solicited comments from members of the public, judges, attorneys, and CFIs from around the state, and learned that a lack of clear standards has created problems in certain key areas. These are role clarification and avoidance of multiple roles, communication issues, payment issues, establishment of clear procedures for complaints, and consistency in court procedures. In response to questions, the Other Professionals Subcommittee made several amendments in 2007 to provide clarification on access to CFI reports and to the CFI’s role before the court.
The Supreme Court Standing Committee on Family Issues recommended in its November 2010 Final Report that the order of appointment of a CFI limit the fee to be charged for all CFI appointments in order to eliminate CFI investigations that are indistinguishable from parental responsibility evaluations. In response to this recommendation, a maximum CFI fee was established within this directive for privately paid CFIs. CJD 04-05 states the maximum fee for state paid non-attorney CFIs. CJD 04-06 states the maximum fee for state paid attorney CFIs.
CFI investigations are not, by definition, parental responsibility evaluations. The purpose of a CFI investigation is to provide a brief assessment that is non-intrusive, efficient, and cost effective. In the event that a CFI finds that a more comprehensive assessment is required, s/he can provide that recommendation to the court. The court may then choose to appoint a parental responsibility evaluator other than the appointed CFI or take other action deemed necessary.
The CFI standards, duties of the courts, and the model CFI appointment order set forth in this CJD have been drafted with recognition that the CFI’s role will be filled by people from different professions and backgrounds. These standards are intended to provide guidance to CFIs and to provide a structure for regulating CFI conduct in order to better serve the families of Colorado. The standards do not, however, exhaust the ethical and professional considerations that should inform a CFI in his or her duties. Violation of a standard should not in and of itself give rise to a cause of action nor should it create any presumption that a legal duty has been breached or that a professional ethical violation has occurred. The standards should be interpreted with reference to the purpose of a CFI as defined by the statute. The comments that accompany each standard explain and illustrate the meaning of the standard, and are intended to guide interpretation of the standard.
II. STATUTORY AUTHORITY AND EXISTING CHIEF JUSTICE DIRECTIVES
A. This CJD sets forth a comprehensive set of standards for all CFIs appointed pursuant to section 14-10-116.5, C.R.S., irrespective of whether the CFI is an attorney or a non-attorney, privately paid or state paid. This CJD also sets forth the duties of the courts when appointing a CFI. Section 14-10-116.5, C.R.S., authorizes the courts to appoint CFIs in domestic relations cases. The CFI may be an attorney, a mental health professional, or any other individual with appropriate training, qualifications, and an independent perspective acceptable to the court. The role of the CFI, as defined by statute, is to investigate, report, and make recommendations to the court on issues that affect the best interests of the minor and dependent children involved in a domestic relations case. The subject matter and scope of the CFI’s duties shall be clearly set forth in the court’s appointment order. A model CFI appointment order can be found at the end of this CJD.
B. CJD 04-05 addresses appointment and payment procedures for non-attorney CFIs appointed pursuant to Section 14-10-116.5, C.R.S. These non-attorney CFIs are reimbursed by the State Court Administrator’s Office ("SCAO") in matters where one or more of the parties have been found to be indigent. CJD 04-06 addresses court appointments of attorney CFIs through the Office of the Child’s Representative ("OCR") in matters where one or more of the parties have been found to be indigent.
III. MAXIMUM FEES
A. Privately Paid CFIs.
1 Investigation and Report. The presumptive maximum fee for the investigative and reporting work of all privately paid CFIs is $2, 000 per appointment The total investigation and report fees of a privately paid CFI shall not exceed this presumptive $2, 000 cap unless prior court approval is obtained in the form of a written order with specific findings concerning the extraordinary circumstances that justify the excess fees.
2 Testimony and Preparation Time. It is anticipated that, in some matters, the testimony of the privately paid CFI will be sought by the parties or deemed necessary by the court. In such matters, a presumptive maximum fee of $500 per appointment shall be established concerning such testimony, including any preparation or other work performed in association with giving such testimony. The total testimony and preparation time fees of a privately paid CFI shall not exceed this presumptive $500 cap unless prior court approval is obtained in the form of a written order with specific findings concerning the extraordinary circumstances that justify the excess fees.
3. Hourly Rate. Every order appointing a privately paid CFI shall state the CFI’s hourly rate. If the CFI charges one rate for investigative and reporting work and another rate for testimony and preparation time, the CFI appointment order shall state both hourly rates.
B. State Paid CFIs.
1 State Paid Non-Attorney CFIs. The maximum hourly rate and maximum total fee amount per appointment for state paid non-attorney CFIs is established by CJD 04-05. These non-attorney CFIs are paid by the SCAO in matters where one or more of the parties have been found to be indigent. State paid non-attorney CFIs seeking fees that exceed the maximum allowable amount must comply with the procedures for approval set forth in CJD 04-05. Claims for payment by state paid non-attorney CFIs shall be submitted by the CFI in accordance with the guidelines set forth in CJD 04-05.
2 State Paid Attorney CFIs. As set forth by CJD 04-06, the maximum fee amount per appointment for state paid attorney CFIs are set by the OCR. These attorney CFIs are paid by the OCR in matters where one or more of the parties has been found to be indigent. State paid attorney CFIs seeking fees in excess of the OCR’s maximum allowable amount must comply with the OCR’s procedures for approval of excess fees. Claims for payment by state paid attorney CFIs shall be submitted by the CFI in accordance with the guidelines set forth in the OCR Billing Procedures.
IV. GUIDELINES FOR APPOINTMENT
A. Prior to being eligible for appointment, all CFIs are required to submit to the SCAO a completed affidavit and disclosure document, titled "Affidavit of Mandatory Consent and Disclosure: For Eligibility of Appointment as a Child and Family Investigator and Placement on Statewide Eligibility Roster."
B. Prior to being eligible for appointment, all CFIs are required to undergo and successfully pass a...
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