Family Law, 0222 COBJ, Vol. 51, No. 2 Pg. 28
| Author | BY AMY M. GOSCHA AND ELIZABETH ROSE HARDMAN |
| Position | Vol. 51, 2 [Page 28] |
At the Intersection
Handling Dependency and Neglect and Juvenile Delinquency Issues in Family Law Cases
BY AMY M. GOSCHA AND ELIZABETH ROSE HARDMAN
This article discusses the interplay between family law cases and dependency and neglect and juvenile delinquency cases. It provides an overview of dependency and neglect and juvenile delinquency proceedings and offers suggestions for family law attorneys on addressing common dependency and neglect and juvenile delinquency issues that arise during the pendency of family law cases.
Family lawyers routinely handle child-related issues in the course of their work. Topics such as parenting time, decision-making responsibilities, and child support are part of the typical family law practice. But what happens if a Department of Human Services (DHS) caseworker contacts your divorce client during the divorce proceeding? Or what if your client informs you that one of her children was just arrested for showing up to school with marijuana, in the middle of an allocation of parental responsibilities (APR) case? Family lawyers must understand such issues to properly advise clients.
This article focuses on the interplay between family law cases and dependency and neglect and juvenile delinquency cases. It provides a brief overview of the structure of dependency and neglect and juvenile delinquency processes. It also offers suggestions for handling dependency and neglect and juvenile delinquency issues that commonly arise in family law cases.
Dependency and Neglect
Dependency and neglect (D&N) cases concern child abuse or neglect. These are civil cases that do not involve the criminal prosecution of parents, but there could be a concurrent criminal case. The D&N court has jurisdiction over children for their safety, protection, stability, and family preservation.
When is a Child Dependent or Neglected?
A child is dependent or neglected when:
■ a parent, guardian, or legal custodian abandoned the child or subjected the child to mistreatment or abuse; or a parent, guardian, or legal custodian suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring.
■ the child lacks proper parental care through the actions or omissions of a parent, guardian, or legal custodian.
■ the child's environment is injurious to his or her welfare.
■ a parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for the child's health, guidance, orwell-being.
■ the child is homeless, without proper care, or not domiciled with a parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian.
■ the child is a runaway or is otherwise beyond the control of a parent, guardian, or legal custodian.
■ the child was born affected by alcohol or substance exposure, except when a substance was prescribed or recommended and monitored by a licensed health care provider, and the newborn child's health or welfare is threatened by substance use.
■ a parent, guardian, or legal custodian subjected another child to an identifiable pattern of habitual abuse; such parent, guardian, or legal custodian was the respondent in another court proceeding where a court adjudicated a child neglected or dependent based on allegations of sexual or physical abuse, or a court o f competent jurisdiction determined that such parent's, guardian's, or legal custodian's abuse or neglect caused the death of another child; and that pattern and type of habitual abuse poses a current threat to the child.
Parties to a D&N Case
D&N cases necessarily involve governmental as well as private parties. All parties, including parents and children, are entitled to a lawyer at all stages of the proceedings. In addition, a court-appointed special advocate (CASA) volunteer may be assigned to assist the court in deciding issues concerning the children. The parties and their roles are:
Lawyers. Parents, guardians, or legal custodians named in a D&N case as respondents may hire counsel or, if they cannot afford a lawyer, the court will determine their eligibility for a state-funded lawyer to represent them. The Colorado Office of Respondent Parent Counsel oversees all state-funded attorneys.
DHS caseworker. DHS caseworkers coordinate services and maintain contact with the family. They also provide the court with written reports (family service plans), which provide updates, including progress toward completing the treatment plan, and recommend services that should be provided to the family.
Guardian ad litem (GAL). The GAL is the lawyer assigned to represent the child's best interests.
County attorney. The county attorney (or city attorney of a city and county)
CASA volunteer. CASA volunteers are appointed by a judge to gather information about the child and make recommendations to inform the judge's decision-making. CASA volunteers advocate solely for the child's best interests and safety. They are not required to be attorneys.
The D&N Process D&N cases are governed by CRS Title 19, the Colorado Rules of Juvenile Procedure, and 12 CCR 2509-1 to -7 (Rule Manual Volume 7). Procedurally, a D&N case begins much like a criminal case, with the respondent's response to the allegations. If the allegations are proven, the case concludes with an allocation of parental rights order, guardianship to a third party, or termination of parental rights.
Initial matters. A D&N case begins when the county attorney or, in Denver and Broomfield, the city/county attorney, files a petition. The parents, guardians, or legal custodians named in the petition are the respondents and are required to appear in court to admit or deny the allegations against them. Respondents may request that the case be heard by a six-member jury,[7] a judge, or a juvenile magistrate. Otherwise, respondents who admit to the allegations advance immediately to the disposition phase to set the respondent's treatment plan.
Preliminary protection proceeding. If DHS removes a child from the home based on alleged abuse or neglect, the court must hold a preliminary protection hearing.
Adjudicatory hearing. The court decides at the adjudicatory hearing if the child is dependent or neglected.
Reviews. The court periodically reviews a D&N case as long as the child remains in DHS custody or under its supervision.
Permanency plan. If the child remains in an out-of-home placement, the court must hold a permanency planning hearing.
Scenarios Involving Family Law and D&N Cases
The scenarios below illustrate common D&N situations that arise during dissolution of marriage or other family law proceedings. All scenarios assume that the client has a family law proceeding pending and requests advice on how to proceed. Family law practitioners who are not up to speed on D&N law should consult with counsel experienced in this area. Practitioners may also consult the Colorado Guided Reference in Dependency, a helpful resource on the D&N process.
A DHS caseworker makes initial contact with the client.
The family lawyer needs to determine whether or not to advise the client to cooperate with the caseworker. In this regard, attorneys should consider contacting the caseworker directly to determine if there is an open investigation. In some circumstances, it is best for the family lawyer to advise the client to cooperate with the caseworker. In other circumstances, such as when the client is accused of incest, the family lawyer should be mindful of the client's Fifth Amendment rights and not advise the client to immediately cooperate with the caseworker. If there is serious bodily injury to the child, the family lawyer should proceed cautiously for the same reason.
CRS § 19-3-207 provides a form of protective order that disallows a client's statements made during treatment or testimony in the D&N case from being used in the criminal case, subject to a hearing on admissibility. In the...
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