Gilbert M. Roman

In this case, an adult adoptee sought to rescind her 1974 adoption, claiming the decree was void because her birth father had never relinquished his parental rights and the court lacked jurisdiction. The district court denied her motions, and the Colorado Court of Appeals affirmed. The court held that Colorado law does not permit an adoptee to dissolve a valid adoption at will, and any challenge based on jurisdictional defects was barred by the two-year statute of limitations in effect at the time of the adoption. Even allowing for tolling due to minority or delayed discovery, the petitioner waited over thirty years, which exceeded a reasonable time. Requests regarding birth records were not addressed as they had not been ruled on below.

family lawprocedure

The case involved a mother's appeal from a trial court judgment terminating her parental rights to four children in a dependency and neglect proceeding that began after a child's death from chronic abuse and neglect in her home. The children had been placed with their fathers, and the department sought termination partly based on an unfavorable psychological evaluation of the mother. The Colorado Court of Appeals reversed and remanded, concluding that the trial judge should have recused himself because his court clerk's mother was the caseworker, creating an appearance of bias under Colorado statutes and rules on judicial disqualification, even without actual prejudice. The court directed further proceedings to address whether the mother waived the recusal claim, whether she received ineffective assistance of counsel for not raising it timely, and other issues such as the treatment plan and less drastic alternatives to termination.

family lawprocedure

The case involved Paul Wiesner appealing the suspension of his driver's license and classification as a "persistent drunk driver" by the Colorado Department of Revenue following a DUI arrest with conflicting blood alcohol content (BAC) test results of 0.18 and 0.165. The court reversed the district court's affirmation of the Department's order, holding that the statutory presumption of accuracy for the law enforcement's BAC test applied only to the license revocation determination at the 0.08 threshold and not to the higher 0.17 threshold for the "persistent drunk driver" finding. The core reasoning was based on the plain language of the statute, which referred the presumption specifically to the revocation issue and did not extend it to the persistent drunk driver classification, leading to a remand for further factual findings without the improper presumption.

criminal lawprocedure

In People v. Taylor, the defendant was convicted of illegal discharge of a firearm, a class five felony, and third-degree assault after an incident where he allegedly fired a gun during a confrontation at his apartment involving his ex-girlfriend and her friends, resulting in injuries. The trial court refused to instruct the jury on self-defense for the illegal discharge charge, despite the defendant's testimony and arguments that he acted in self-defense. The appellate court reversed the conviction for illegal discharge of a firearm, holding that because the offense requires a knowing mental state and is thus a general intent crime, self-defense is an applicable affirmative defense that the prosecution must disprove, and the failure to instruct on it was reversible error requiring a new trial.

criminal lawguns

In this medical malpractice case, plaintiffs Loretta Jean Day and Richard C. Day sued defendant Bruce Johnson, M.D., alleging negligence in recommending and performing thyroid surgery that resulted in injury to Ms. Day's larynx. The jury returned a verdict for the defendant, and the trial court entered judgment accordingly. Plaintiffs appealed, arguing that the trial court abused its discretion by denying challenges for cause against two jurors and by giving a jury instruction stating that an unsuccessful medical procedure does not necessarily indicate negligence. The appellate court affirmed, holding that the record supported the trial court's rulings on the juror challenges under C.R.C.P. 47(e) because any interest was speculative, and that the instruction accurately reflected Colorado law that an injury alone does not establish negligence without proof of duty and breach.

torts & liabilityhealthcareprocedure

In this juvenile delinquency case, D.W. pleaded guilty to acts that would constitute sexual assault on a child if committed by an adult, after which the trial court ordered him to pay restitution for the victim's family's expenses in selling their home to move away from him, including home repairs, real estate commissions, and some of the father's lost wages. D.W. appealed the restitution order, arguing that the prosecution failed to prove his conduct proximately caused those losses. The Colorado Court of Appeals vacated the portions of the order tied to the house sale, holding that the People did not establish by a preponderance of the evidence that D.W. posed an ongoing and specific threat to the victim, as the protective order had not been violated and no other competent evidence supported the claimed causal link. The court remanded for a modified order limiting lost wages to time spent assisting the victim rather than preparing the house. The decision turned on the statutory definition of restitution, which requires losses to be proximately caused by the offender's conduct.

criminal lawprocedure

In Boles v. Bartruff, an inmate in Colorado Department of Corrections custody challenged his disciplinary conviction for "Abuse of Medication," a Class II violation under the Code of Penal Discipline, after two prescription pills were discovered in his cell; he sought review under C.R.C.P. 106(a)(4), claiming violations of due process at the hearing, insufficient evidence, an invalid cell search, and denial of discovery. The Colorado Court of Appeals affirmed the trial court's judgment upholding the conviction. The court reasoned that inmates in prison disciplinary proceedings enjoy only limited due process rights—advance notice, the ability to call witnesses and present evidence when not unduly hazardous to institutional safety or goals, and a written statement of reasons—and that these do not include unrestricted cross-examination or confrontation of witnesses, which the hearing officer properly limited within her discretion under applicable regulations.

criminal lawcivil rightsprocedure

This case involved the Denver Department of Human Services' petition to terminate the parental rights of P.R.D. (mother) with respect to her daughter N.D.C., after the department took the child into custody due to an unsafe living situation. Mother appealed the termination judgment, arguing that the department failed to provide proper notice to her Oglala Sioux tribe under the Indian Child Welfare Act (ICWA) and that the juvenile court did not follow ICWA's substantive requirements. The Colorado Court of Appeals vacated the termination judgment and remanded the case, holding that the department violated ICWA by not filing copies of the required notices or return receipt cards with the court and that this error was not harmless because the record showed no evidence the tribe had been informed of mother's tribal enrollment or residence on the reservation. The court further concluded that later notices sent by the department were also non-compliant with ICWA procedures, but noted that if on remand the tribe does not intervene or confirm the child's eligibility for enrollment, the juvenile court need not apply ICWA's heightened substantive standards.

family lawcivil rightsfederal power

In Kobobel v. State, Department of Natural Resources, plaintiffs who owned farmland and irrigation wells near the South Platte River sued state water officials in district court after receiving cease-and-desist orders barring them from pumping until a pending water court augmentation plan was decreed; they claimed the orders effected unconstitutional takings of their vested water and property rights under the Colorado and U.S. Constitutions. The trial court dismissed the complaint for lack of subject matter jurisdiction, holding that the claims concerned water matters. The Colorado Court of Appeals affirmed the jurisdictional dismissal, reasoning that the substance of the relief sought turned on the right to use water (a water matter reserved exclusively for the water court under Colorado statutes and precedent) rather than mere ownership of water rights (which district courts may adjudicate), and it vacated the trial court's additional rulings on takings, ripeness, and federal claims as void for lack of jurisdiction.

propertyenvironmentprocedure

In this workers' compensation case, claimant Barbara Cabela sought benefits for a right knee injury she sustained while loading cargo containers for her employer, United Parcel Service. The administrative law judge found the injury compensable based on claimant's testimony that her knee popped and gave out during a work-related pivot, but denied medical benefits for treatment by an orthopedic surgeon on grounds that the surgeon was not an authorized treating physician. The Industrial Claim Appeals Office upheld the order. On review, the court affirmed the compensability determination, concluding it was supported by substantial evidence of a work-related cause despite any preexisting condition, but set aside the denial of medical benefits, holding that the employer's physician's referral to claimant's personal physician occurred in the ordinary course of treatment and created a valid chain of authorized physicians, so the employer bore the risk of any mistaken belief that the injury was noncompensable.

labor & employmentprocedure

In Williams v. State Farm Mutual Automobile Insurance Co., plaintiffs sought additional uninsured motorist benefits under their policy for emotional distress they experienced during a shooting into their vehicle that injured another passenger, after State Farm had already paid the per-person policy limit tied to the victim's injuries. The trial court granted summary judgment for State Farm, and the Court of Appeals affirmed. Although the court determined that the plaintiffs' emotional distress claims were separate and non-derivative rather than dependent on the victim's injuries, it concluded that Colorado's UM statute and related case law do not require insurers to cover purely emotional harm absent physical manifestation or bodily injury, so the policy's limits were not violated.

torts & liability

The case involved the Colorado Securities Commissioner bringing a regulatory action against Equity Edge, LLC and related parties for allegedly selling unregistered securities in the form of Certificates of Debt, failing to provide required disclosures, and having unlicensed investment advisors, in violation of the Colorado Securities Act. The trial court dismissed all claims after finding no fraud, no damages to investors, and that the defendants were not acting as investment advisors. On appeal, the court reversed the dismissal of the registration claim, holding that rescission offers and lack of damages do not excuse the failure to register securities and that the request for injunctive relief must be properly considered, but affirmed the dismissal of the licensing claim because the defendants did not provide compensated investment advice. The case was remanded for further proceedings on the registration claim.

business & regulatory

In People v. Garcia, the prosecution appealed a trial court order dismissing a habitual domestic violence offender count that would have enhanced a misdemeanor third-degree assault charge to a class five felony. The trial court had granted the defendant a preliminary hearing on that count and dismissed it after the prosecution presented no evidence. The appellate court reversed, holding that the habitual offender provision under section 18-6-801(7) is a sentence enhancement statute rather than a substantive offense. Because section 16-5-301(1) grants a right to a preliminary hearing only for certain substantive felonies requiring mandatory sentencing, and the underlying charge here was a misdemeanor, the defendant had no such right. The court therefore directed reinstatement of the count.

criminal lawprocedure

This case involves an appeal in an annulment proceeding between spouses married in February 2006, where the wife successfully petitioned to invalidate the marriage on grounds of her mental incapacity due to medication. The trial court addressed disputed property issues, finding that the wife had not intended to gift the husband $30,000 or a Lexus and holding the husband responsible for the loss of the wife's jewelry left in the marital home. On appeal, the court affirmed the no-gift ruling based on the trial court's assessment of conflicting witness testimony regarding intent. It also upheld the application of bailment principles to the jewelry but vacated the liability determination, remanding for findings on whether the husband was negligent in securing the items. The permanent orders were otherwise affirmed.

family lawproperty

In this paternity action, the People appealed from an order affirming that an attorney's charging lien on personal injury settlement proceeds obtained for the father had priority over a child support judgment for arrearages owed to the mother. The court affirmed the magistrate and trial court, concluding that the law firm properly disbursed only the net proceeds after deducting its fees and costs to the child support enforcement unit. The core reasoning was that a garnishing judgment creditor obtains only the debtor's interest in the funds, which was limited to the net settlement after the attorney's lien attached automatically from the commencement of services, and that child support garnishments do not automatically take priority over such liens under Colorado law absent legislative direction.

family lawprocedure

In this civil case, the plaintiff and defendants, who were co-owners of a business, reached a basic settlement agreement after mediation to resolve their lawsuit and counterclaims, but later disputed the terms of a formal settlement document drafted by defense counsel. The trial court enforced the revised December settlement agreement and awarded attorney fees against the plaintiff and his counsel. On appeal, the court affirmed enforcement of the December agreement, finding it constituted a valid and enforceable contract under Colorado's Dispute Resolution Act because the parties' conduct demonstrated mutual assent to its terms, which superseded the earlier basic agreement. However, the court vacated the attorney fees award and remanded, holding that the trial court failed to make sufficient findings on the basis for the award, its reasonableness, or the joint and several liability of counsel.

business & regulatoryprocedure

This case involves a dispute among members and managers of multiple LLCs formed to hold and develop real estate, where plaintiff Gitlitz alleged that defendant Bellock improperly elected a third manager, thereby diluting Gitlitz's contractual management and control rights under the operating agreements. Plaintiffs sought a preliminary injunction to prevent further managerial actions without their consent, particularly regarding a large potential development contract. The district court denied the injunction after finding no imminent irreparable harm and the existence of an adequate remedy at law. On appeal, the court vacated the denial and remanded, holding that the loss of bargained-for management rights in a business can constitute irreparable harm for which monetary damages are inadequate, and directing the lower court to make findings on that issue under the applicable injunction standards before considering the remaining factors.

business & regulatoryprocedure

The case concerned a dependency and neglect proceeding in which the Morgan County Department of Human Services sought to adjudicate T.C.'s infant son A.C. III as dependent and neglected based on allegations of nonorganic failure to thrive, improper feeding and care, and a prior termination of parental rights involving another child. The trial court granted the department's motion for summary judgment, and the Colorado Court of Appeals affirmed. The court held that a conflict between C.R.C.P. 56(c)'s timing requirements for summary judgment motions and the statutory deadline for adjudicatory hearings under section 19-3-505(3) was resolved in favor of the statute pursuant to C.R.C.P. 81(a), allowing the motion to be filed closer to the hearing. It further concluded that the department met its burden with a physician's affidavit establishing the child's condition and the mother's conduct, while the mother failed to present admissible evidence creating a genuine issue of material fact.

family lawprocedure

This probate case involved nieces who petitioned to vacate a 2004 court order finding their uncle died intestate and appointing a personal representative, claiming one niece never received proper notice of the hearing despite being named as a potential devisee in a 1983 will attached to the petition. The district court denied the petition as time-barred, ruling the niece was not an interested party entitled to notice. The Colorado Court of Appeals vacated the denial and remanded, holding that under C.R.S. § 15-10-401 an interested person includes those named in a known will whose position may be affected, so the trial court must first determine whether actual notice was given before applying the statute of limitations under § 15-12-412. If notice was inadequate, the nieces may proceed to offer the will for probate.

procedurepropertyfamily law

This case concerned a dependency and neglect proceeding in which the Jefferson County Department of Human Services sought to terminate parental rights over a child potentially eligible for enrollment in the Citizen Potawatomi Nation, with the tribe and the child's step-aunt and uncle appealing from adverse rulings. The Colorado Court of Appeals vacated the termination judgment, affirmed the denial of the relatives' motion to intervene without prejudice, and remanded for further proceedings. The court concluded that although initial notice of the dependency proceedings was sufficient, the department failed to provide required notice to the tribe of the motion to terminate parental rights under the Indian Child Welfare Act once it had reason to know of the child's eligibility for tribal enrollment. The relatives' intervention request was untimely under state statute because it was filed after the termination hearing and judgment. Procedural challenges to the appeals were rejected as harmless.

family lawcivil rights