SENATE BILL 97071
BY SENATORS Hopper, Arnold, Hernandez, Pascoe, Perlmutter, Rupert, and Wham;
also REPRESENTATIVES George and Mace.
CONCERNING PROCEDURES TO EXPEDITE DEPENDENCY AND
NEGLECT CASES.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. 1410123,
Colorado Revised Statutes, 1987 Repl. Vol., as amended, is amended
to read:
1410123. Commencement of custody proceedings
jurisdiction. (1) A
child custody proceeding is commenced in the district court or
as otherwise provided by law:
(a) By a parent:
(I) By filing a petition for dissolution
or legal separation; or
(II) By filing a petition seeking custody
of the child in the county where the child is permanently resident
or where he is found; or
(b) By a person other than a parent, by
filing a petition seeking custody of the child in the county where
the child is permanently resident or where he is found, but only
if the child is not in the physical custody of one of his parents;
or
(c) By a person other than a parent who
has had physical custody of a child for a period of six months
or more, if such action is commenced within six months of the
termination of such physical custody; OR
(d) BY A PARENT OR PERSON OTHER THAN A
PARENT WHO HAS BEEN GRANTED CUSTODY OF A CHILD THROUGH A JUVENILE
COURT ORDER ENTERED PURSUANT TO SECTION 191104 (6),
C.R.S., BY FILING A CERTIFIED COPY OF THE JUVENILE COURT ORDER
IN THE COUNTY WHERE THE CHILD IS PERMANENTLY RESIDENT. SUCH ORDER
SHALL BE TREATED IN THE DISTRICT COURT AS ANY OTHER CUSTODY DECREE
ISSUED IN A CHILD CUSTODY PROCEEDING.
(2) EXCEPT FOR A PROCEEDING COMMENCED
PURSUANT TO PARAGRAPH (d) OF SUBSECTION (1) OF THIS SECTION, notice
of a child custody proceeding shall be given to the child's parent,
guardian, and custodian, who may appear and be heard and may file
a responsive pleading. The court may, upon a showing of good cause,
permit the intervention of other interested parties.
SECTION 2. 193102,
Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended
to read:
193102. Neglected or dependent
child. (1) A child is neglected
or dependent if:
(a) A parent, guardian, or legal custodian
has abandoned the child or has subjected him OR HER to mistreatment
or abuse or a parent, guardian, or legal custodian has 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;
(b) The child lacks proper parental care
through the actions or omissions of the parent, guardian, or legal
custodian;
(c) The child's environment is injurious
to his OR HER welfare;
(d) 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 his OR HER health, guidance, or wellbeing;
(e) The child is homeless, without proper
care, or not domiciled with his OR HER parent, guardian, or legal
custodian through no fault of such parent, guardian, or legal
custodian;
(f) The child has run away from home or
is otherwise beyond the control of his OR HER parent, guardian,
or legal custodian.
SECTION 3. 191104,
Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended
BY THE ADDITION OF A NEW SUBSECTION to read:
191104. Jurisdiction. (6) WHEN
THE JUVENILE COURT MAINTAINS JURISDICTION IN A CASE INVOLVING
A CHILD WHO IS DEPENDENT OR NEGLECTED AND NO CHILD CUSTODY ACTION
CONCERNING THE SAME CHILD IS PENDING IN A DISTRICT COURT IN THIS
STATE, UPON THE PETITION OF A PARTY TO THE DEPENDENCY OR NEGLECT
CASE, THE JUVENILE COURT MAY ENTER AN ORDER AWARDING SOLE OR JOINT
CUSTODY AND ADDRESSING PARENTING TIME AND CHILD SUPPORT MATTERS.
THE PARENT OR PERSON OTHER THAN A PARENT WHO HAS BEEN GRANTED
CUSTODY OF A CHILD PURSUANT TO THE JUVENILE COURT'S ORDER SHALL
FILE A CERTIFIED COPY OF THE ORDER IN THE DISTRICT COURT IN THE
COUNTY WHERE THE CHILD IS PERMANENTLY RESIDENT. SUCH ORDER SHALL
BE TREATED IN THE DISTRICT COURT AS ANY OTHER CUSTODY DECREE ISSUED
IN A CHILD CUSTODY PROCEEDING.
SECTION 4. 191108
(3) and (5), Colorado Revised Statutes, 1986 Repl. Vol., as amended,
are amended to read:
191108. Magistrates
qualifications duties. (3) (a) Magistrates
shall conduct hearings in the manner provided for the hearing
of cases by the court. During the initial advisement of the rights
of any party, the magistrate shall inform the party that, EXCEPT
AS PROVIDED IN THIS SUBSECTION (3), he OR SHE has the right to
a hearing before the judge in the first instance and that he OR
SHE may waive that right but that, by waiving that right, he OR
SHE is bound by the findings and recommendations of the magistrate,
subject to a request for review as provided in subsection (5)
of this section. THE RIGHT TO REQUIRE A HEARING BEFORE A JUDGE
SHALL NOT APPLY TO HEARINGS AT WHICH A CHILD IS ADVISED OF HIS
OR HER RIGHTS PURSUANT TO SECTION 192706, DETENTION
HEARINGS HELD PURSUANT TO SECTIONS 192507 AND 192508,
PRELIMINARY HEARINGS HELD PURSUANT TO SECTION 192705,
AND DETENTION HEARINGS HELD PURSUANT TO SECTION 193403.
(b) IN PROCEEDINGS UNDER ARTICLE 2 OF
THIS TITLE, unless a request is made by a party at the outset
of a hearing that the hearing be held before the judge, such right
where applicable shall be deemed waived. The
right to require a hearing before a judge shall not apply to hearings
at which a child is advised of his rights pursuant to section
192402, detention hearings held pursuant to sections
192203 and 192204, preliminary hearings
held pursuant to section 192404, and detention hearings
held pursuant to section 193403.
(c) IN PROCEEDINGS UNDER ARTICLE 3 OF
THIS TITLE, THE RIGHT TO REQUIRE A HEARING BEFORE A JUDGE SHALL
BE DEEMED WAIVED UNLESS:
(I) A REQUEST IS MADE BY A PARTY THAT
THE HEARING BE HELD BEFORE THE JUDGE AT THE TIME THE MATTER IS
SET FOR HEARING, IF COUNSEL FOR THE PARTY IS PRESENT AT THE TIME
THE MATTER IS SET; OR
(II) A REQUEST IS MADE IN WRITING WITHIN
FIVE DAYS AFTER RECEIPT OF NOTICE OF THE SETTING IF THE MATTER
IS SET FOR HEARING OUTSIDE OF THE PRESENCE OF COUNSEL FOR A REPRESENTED
PARTY OR IF THE MATTER IS SET ON NOTICE.
(5) A request for review shall be filed
within fifteen days FOR PROCEEDINGS UNDER ARTICLE 2 OF THIS TITLE
OR WITHIN FIVE DAYS FOR PROCEEDINGS UNDER ARTICLE 3 OF THIS TITLE
after the parties have received notice of the magistrate's ruling
and shall clearly set forth the grounds relied upon. Such review
shall be solely upon the record of the hearing before the magistrate
and shall be reviewable upon the grounds set forth in rule 59
of the Colorado rules of civil procedure. A petition for review
shall be a prerequisite before an appeal may be filed with the
Colorado court of appeals or Colorado supreme court. The judge
may, on his OR HER own motion, remand a case to another magistrate
after action is taken on a petition for review.
SECTION 5. 193207, Colorado
Revised Statutes, 1986 Repl. Vol., as amended, is amended to read:
193207. Inadmissibility
of certain evidence. (1) Upon
the request of the county attorney, special county attorney, or
the city attorney of a city and county, the court shall set a
hearing to determine the admissibility in a subsequent criminal
proceeding arising from the same episode of information derived
directly from testimony obtained pursuant to compulsory process
in a proceeding under this article. The district attorney of the
judicial district in which the matter is being heard shall be
given five days' written notice of the hearing by the clerk of
the court. Such hearing shall be held in camera, and the district
attorney shall have the right to appear at the hearing and to
object to the entry of the order holding such information inadmissible.
The court shall not enter such an order if the district attorney
presents prima facie evidence that the inadmissibility of such
information would substantially impair his OR HER ability to prosecute
the criminal case. The provisions of this subsection (1) shall
not be construed to prevent any law enforcement officer from independently
producing or obtaining the same or similar facts, information,
or evidence for use in any criminal prosecution.
(2) No professional shall be examined
in any criminal case without the consent of the respondent as
to statements made pursuant to compliance with court treatment
orders, including protective orders, entered under this article;
except that such privilege shall not apply to any discussion of
any future misconduct or of any other past misconduct unrelated
to the allegations involved in the treatment plan. THE ADMISSIBILITY
OF TESTIMONY AS SET FORTH IN THIS SUBSECTION (2) SHALL NOT BE
SUBJECT TO THE HEARING AND NOTICE PROVISIONS OF SUBSECTION (1)
OF THIS SECTION.
(3) NO ADMISSION MADE BY A RESPONDENT
IN OPEN COURT OR BY WRITTEN PLEADING FILED WITH THE COURT TO A
PETITION IN DEPENDENCY OR NEGLECT MAY BE USED AGAINST HIM OR HER
IN ANY CRIMINAL PROSECUTION, EXCEPT FOR PURPOSES OF IMPEACHMENT
OR REBUTTAL.
SECTION 6. 193403
(3.5), Colorado Revised Statutes, 1986 Repl. Vol., as amended,
is amended to read:
193403. Temporary custody
hearing time limits restriction.
(3.5) When temporary custody is placed with the county
department of social services pursuant to this section OR SECTION
193405 OR WHEN AN EMERGENCY PROTECTION ORDER IS ENTERED
PURSUANT TO SECTION 193405, the court shall hold a
hearing WITHIN SEVENTYTWO HOURS AFTER PLACEMENT, EXCLUDING
SATURDAYS, SUNDAYS, AND COURT HOLIDAYS, to determine further custody
of the child OR WHETHER THE EMERGENCY PROTECTION ORDER SHOULD
CONTINUE. within seventytwo
hours, excluding Saturdays, Sundays, and court holidays.
Such a hearing need not be held if a hearing has previously been
held pursuant to subsection (2) of this section.
SECTION 7. 193405,
Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended
to read:
193405. Temporary protective
custody. (1) In addition to
other powers granted to the court for the protection of children,
the court may issue verbal or written temporary protective custody
orders OR EMERGENCY PROTECTION ORDERS, OR BOTH. Each judicial
district shall be responsible for making available a person appointed
by the judge of the juvenile court, who may be the judge, a magistrate,
or any other officer of the court, to be available by telephone
at all times to act with the authorization and authority of the
court to issue such orders.
(2) (a) Such
TEMPORARY PROTECTIVE CUSTODY orders may be requested by the county
department of social services, a law enforcement officer, an administrator
of a hospital in which a child reasonably believed to have been
neglected or abused is being treated, or any physician who has
before him OR HER a child he OR SHE reasonably believes has been
abused or neglected, whether or not additional medical treatment
is required, if such person or department believes that the circumstances
or conditions of the child are such that continuing his
THE CHILD=S
place of residence or in the care and custody of the person responsible
for his
THE CHILD=S
care and custody would present a danger to that child's life or
health in the reasonably foreseeable future.
(b) EMERGENCY PROTECTION ORDERS MAY BE
REQUESTED BY THE COUNTY DEPARTMENT OF SOCIAL SERVICES, A LAW ENFORCEMENT
OFFICER, AN ADMINISTRATOR OF A HOSPITAL IN WHICH A CHILD REASONABLY
BELIEVED TO HAVE BEEN NEGLECTED OR ABUSED IS BEING TREATED, OR
ANY PHYSICIAN WHO HAS BEFORE HIM OR HER A CHILD THE PHYSICIAN
REASONABLY BELIEVES HAS BEEN ABUSED OR NEGLECTED, WHETHER OR NOT
ADDITIONAL MEDICAL TREATMENT IS REQUIRED, IF SUCH PERSON OR DEPARTMENT
BELIEVES THAT THE CHILD IS ABLE TO REMAIN SAFELY IN THE CHILD'S
PLACE OF RESIDENCE OR IN THE CARE AND CUSTODY OF THE PERSON RESPONSIBLE
FOR THE CHILD'S CARE AND CUSTODY ONLY IF CERTAIN EMERGENCY PROTECTION
ORDERS ARE ENTERED. AN EMERGENCY PROTECTION ORDER MAY INCLUDE
BUT IS NOT LIMITED TO:
(I) RESTRAINING A PERSON FROM THREATENING,
MOLESTING, OR INJURING THE CHILD;
(II) RESTRAINING A PERSON FROM INTERFERING
WITH THE SUPERVISION OF THE CHILD; OR
(III) RESTRAINING A PERSON FROM HAVING
CONTACT WITH THE CHILD OR THE CHILD'S RESIDENCE.
(3) The county department of social services
shall be notified of such action immediately by the courtappointed
official in order that child protection proceedings may be initiated.
(4) In any case, such temporary protective
custody OR EMERGENCY PROTECTION shall not exceed seventytwo
hours, excluding Saturdays, Sundays, and court holidays.
SECTION 8. The introductory
portion to 193508 (1) and 193508 (1) (e)
(I) and (4), Colorado Revised Statutes, 1986 Repl. Vol., as amended,
are amended to read:
193508. Neglected or dependent child
disposition. (1) When
a child has been adjudicated to be neglected or dependent, the
court may enter a decree of disposition the same day, but in any
event it shall do so within fortyfive days unless the court
finds that the best interests of the child will be served by granting
a delay. In a county designated pursuant to section 191123,
if the child is under six years of age at the time a petition
is filed in accordance with section 193501 (2), the
court shall enter a decree of disposition within thirty days after
the adjudication and shall not grant a delay unless good cause
is shown and unless the court finds that the best interests of
the child will be served by granting the delay. It is the intent
of the general assembly that the dispositional hearing be held
on the same day as the adjudicatory hearing, whenever possible.
If a delay is granted, the court shall set forth the reasons why
a delay is necessary and the minimum amount of time needed to
resolve the reasons for the delay and shall schedule the hearing
at the earliest possible time following the delay. WHEN THE PROPOSED
DISPOSITION IS TERMINATION OF THE PARENTCHILD LEGAL RELATIONSHIP,
THE HEARING ON TERMINATION SHALL NOT BE HELD ON THE SAME DATE
AS THE ADJUDICATION AND THE TIME LIMITS SET FORTH ABOVE FOR DISPOSITIONAL
HEARINGS SHALL NOT APPLY. WHEN THE PROPOSED DISPOSITION IS TERMINATION
OF THE PARENTCHILD LEGAL RELATIONSHIP, THE COURT MAY CONTINUE
THE DISPOSITIONAL HEARING TO THE EARLIEST AVAILABLE DATE FOR HEARING
IN ACCORDANCE WITH THE PROVISIONS OF PART 6 OF THIS ARTICLE. When
the decree does not terminate the parentchild legal relationship,
the court shall approve an appropriate treatment plan that shall
include but not be limited to one or more of the following provisions
of paragraphs (a) to (d) of this subsection (1):
(e) (I) EXCEPT WHERE THE PROPOSED
DISPOSITION IS TERMINATION OF THE PARENTCHILD LEGAL RELATIONSHIP,
the court shall approve an appropriate treatment plan involving
the child named and each respondent named and served in the action.
However, the court may find that an appropriate treatment plan
cannot be devised as to a particular respondent because the child
has been abandoned as set forth in subsection
(4) of this section SECTION 193604
(1) (a) and the parents cannot be located OR DUE TO THE UNFITNESS
OF THE PARENTS AS SET FORTH IN SECTION 193604 (1)
(b).
(4) When a
child has been adjudicated neglected or dependent because the
child has been abandoned by the child's parent or parents, the
court may enter a decree terminating the parentchild legal
relationship if it finds one of the following:
(a) That the parent or parents
have surrendered physical custody for a period of six months and,
during this period, have not manifested to the child, the court,
or the person having physical custody a firm intention to resume
or obtain physical custody or to make permanent legal arrangements
for the care of the child;
(b) That the identity of the parent
or parents of the child is unknown and has been unknown for a
period of ninety days and that reasonable efforts to identify
and locate the parents in accordance with section 193603
have failed.
SECTION 9. 193603,
Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended
to read:
193603. Notice abandonment.
Before a termination of the parentchild legal relationship
based on abandonment can be ordered, under
any of the criteria set forth in section 193508 (4),
the petitioner shall file, only if the location of a parent remains
unknown, an affidavit stating what efforts have been made to locate
the parent or parents of the child subject to the motion for termination.
Such affidavit shall be filed not later than ten days prior to
the hearing.
SECTION 10. The introductory
portion to 193604 (1) and 193604 (1) (b),
Colorado Revised Statutes, 1986 Repl. Vol., as amended, are amended
to read:
193604. Criteria for termination.
(1) The court may order a termination of the parentchild
legal relationship upon the finding BY CLEAR AND CONVINCING EVIDENCE
of any one of the following:
(b) That the child is adjudicated dependent
or neglected and the court has found
by clear and convincing evidence
FINDS that no appropriate treatment plan can be devised to address
the unfitness of the parent or parents. In making such a determination,
the court shall find one of the following as the basis for unfitness:
(I) Emotional illness, mental illness,
or mental deficiency of the parent of such duration or nature
as to render the parent unlikely within a reasonable time to care
for the ongoing physical, mental, and emotional needs and conditions
of the child;
(II) A single incident resulting in a
gravely disabling injury or disfigurement of the child;
(III) Longterm confinement of the
parent of such duration that the parent is not eligible for parole
for at least six years after the date the child was adjudicated
dependent or neglected or, in a county designated pursuant to
section 191123, if the child is under six years of
age at the time a petition is filed in accordance with section
193501 (2), the longterm confinement of the
parent of such duration that the parent is not eligible for parole
for at least thirtysix months after the date the child was
adjudicated dependent or neglected and the court has found by
clear and convincing evidence that no appropriate treatment plan
can be devised to address the unfitness of the parent or parents;
(IV) Gravely disabling injury or death
of a sibling due to proven parental abuse or neglect.
SECTION 11. Effective
date. This act shall take effect July 1, 1997.
SECTION 12. Safety clause.
The general assembly hereby finds, determines, and declares that
this act is necessary for the immediate preservation of the public
peace, health, and safety.
____________________________ ____________________________
Tom Norton Charles E. Berry
PRESIDENT OF SPEAKER OF THE HOUSE
THE SENATE OF REPRESENTATIVES
____________________________ ____________________________
Joan M. Albi Judith M. Rodrigue
SECRETARY OF CHIEF CLERK OF THE HOUSE
THE SENATE OF REPRESENTATIVES
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE OF COLORADO