2019.09.04 Case Law Summary

Below is a summary of a published opinion out of the court of appeals that came out last week about the role of Parent GALs in d/n cases. The opinion is a must read (you can download it here), and Melanie has outlined some specific actions for everyone to be mindful of in cases with GALs based on the opinion.

Also summarized below is a case out of Montana where the court concluded that the department had not made reasonable efforts. It’s a great opinion and a good place to start for ideas about drafting a no reasonable efforts motion. Also summarized below is an unpublished opinion out of the Court of Appeals from May, where the court made some great findings about social work “experts” not being able to testify to drug results. Please email Ruchi Kapoor (rkapoor@coloradoorpc.org) if you want a copy of that opinion.

People in the Interest of T.M.S., 2019COA136 (August 29, 2019)

Mother has an intellectual disability, and at the temporary custody hearing her first RPC requested a GAL. The court granted the request, based on information contained in the petition. Mother’s first attorney withdrew nine months later and mother’s new RPC asked the court to replace mother’s GAL, asserting that mother’s GAL was acting outside her role by advocating against mother’s goal of reunifying with her child. The court denied the attorney’s motion to remove the GAL. Eventually, at the termination hearing, the GAL advocated for the court to terminate mother’s parental rights based on her lack of rehabilitation in the case.

On appeal, the court of appeals concluded first that the role of a parent’s GAL is to assist the parent and protect the parent’s best interests. The court of appeals differentiated the duties of a parent GAL from those that a child’s GAL has, including noting that parents’ GALs should not make recommendations to the court concerning the parent’s welfare. The court also held that a parent’s GAL is not a party to a case and should not participate as such. Rather, parents’ GALs are there to facilitate communication between the parent and counsel and help the parent participate in the proceeding.

Second, the court held that the juvenile court abused its discretion when it denied mother’s motion to dismiss her GAL. The court noted that the GAL improperly participated in the proceeding by advocating for reduced parenting time (among other positions) and undermined mother’s constitutional interests by advocating separately from mother’s counsel, which did not serve mother’s best interests. The court also found that the trial court did not make proper findings to support its appointment of the GAL for mother, and therefore refusing to remove the GAL amounted to an abuse of discretion.

Finally, the court held that the trial court erred by allowing mother’s GAL to give closing argument and improper testimony during the TPR hearing. At the hearing, the GAL described her observations of mother and facts underlying her recommendations. The court of appeals concluded that this information could only be offered through witness testimony and allowing this information into the proceeding violated mother’s right to fundamentally fair procedures. The court also concluded that the GAL’s advocacy for termination of mother’s parental rights during closing argument also violated mother’s fundamental liberty interests.

The court went on to conclude, however, that these errors were harmless because the evidence in the record support the juvenile court’s termination of mother’s parental rights.

Going forward, there are some things to keep in the back of your mind on cases where parent GALs are involved:

• Object to the parent’s GAL submitting motions or making argument to the court as they are not a party to the case.

• Do not request a GAL for your client and object to appointment of a GAL for your client if your client, “though mentally disabled to some degree,

understands the nature and significance of the proceeding, is able to make decisions in her own behalf, and has the ability to communicate with

and act on the advice of counsel.”

• Consider requesting an ORPC social worker before requesting a GAL for your client.

Kudos to ORPC Trial Attorney Genevieve Manco for the incredibly well-preserved record in this case!

People in the Interest of R.J.F., 2019 MT 113

This decision by the Supreme Court of Montana found that the trial court had abused its discretion in finding that the Department made reasonable efforts to reunify Mother with her child. Though this is not a binding case for Colorado, all RPCs should read it. The statutes and caselaw that the opinion is based on are very similar to Colorado’s laws on reasonable efforts. The Montana Supreme Court first makes it clear that, because “a parent’s right to care and custody of a child is a fundamental liberty interest,” the trial court “must adequately address each applicable statutory requirement” before terminating parental rights. The court makes it clear that determining whether the Department made reasonable efforts “is a predicate for finding that the conduct or condition rendering a parent unfit, unwilling, or unable to parent is unlikely to change within a reasonable time.”

R.J.F. involved a mother who lived in North Dakota, 300 miles from where she delivered her baby, at which time she had tested positive for meth and marijuana. The child ended up placed 300 miles from Mother, and the Department provided minimal assistance for Mother to visit the child or engage in substance abuse treatment or testing. After a motion for termination was filed, Mother moved to where the child was located and requested visits, and the caseworker did not set them up. Through her own efforts, Mother was able to engage in services for two months and showed major progress but then relapsed when she returned to North Dakota shortly before the termination was scheduled. She decided to move to California where she had support from her family. The termination trial ended up being continued, and she was able to demonstrate five months of sobriety prior to the termination trial. The Department did not investigate possible family placements or initiate an ICPC. The opinion contains seven pages of facts, and they are worth a read because they show how, even when parents struggle throughout the case, reasonable efforts are still required.

Applying an abuse of discretion standard of review, the Montana Supreme Court decision cites repeatedly to the Montana regulations (similar to our Volume 7) and repeatedly to social science research on the importance of visitation for small children. This portion of the decision is a gold mine of resources for RPCs to argue this issue and to advocate for increased visitation. Here is a gem: “While reasonable efforts do not require herculean efforts, they do require the Department to adhere to its policies and use its best efforts to place a child in close enough proximity to a parent to arrange visitation in sufficient frequency and duration to make it possible for a parent to establish a bond between herself and her child Further, engaging in reasonable efforts requires more than merely suggesting services to a parent and waiting for the parent to then arrange those services for herself.”

Here are some takeaways:

– Read the whole opinion, it is the best thing I have read all year.

– When you are representing a parent who lives far from where the child is placed and visits are not occurring frequently, this is a reasonable

efforts issue. Raise it early and often, and do so in writing.

– When arguing for more frequent visitation, look at the studies cited in the opinion and cite to this opinion as persuasive authority.

People in Interest of A.H. 18CA1484 (May 30, 2019) (unpublished)

This is an unpublished opinion by the Court of Appeals affirming an adjudication but finding the district court erred in allowing the caseworker to testify about positive drug test results. Trial counsel (Robert Wiest) moved to exclude the caseworker’s testimony about a positive drug test for meth and marijuana. The trial court permitted the caseworker to testify about the test results as a basis for her expert opinion.

Citing Dorsey & Whitney LLP v. RegScan, Inc., 2018 COA 21, the court recognized that experts cannot disclose inadmissible facts to the jury unless the court engages in a balancing analysis to determine the probative value of the inadmissible evidence in assisting the jury to evaluate the expert’s opinion outweighs the prejudicial effect. Such an analysis prevents the Department from using the expert “as a mere conduit for otherwise inadmissible information.” Dorsey, ¶ 41. The court erred by permitting the caseworker to testify to the unauthenticated results without doing the balancing analysis required. See People v. Valencia, 257 P.3d 1203, 1206 (Colo. App. 2011).

Though the Court of Appeals ultimately found that the error was harmless because the error did not substantially influence the case’s outcome (caseworker testified to concerns other than substance abuse that were more concerning to her), this is a helpful decision.


– Object to the caseworker testifying to drug test results, particularly in a jury trial. Cite the Dorsey case.

– If the court does engage in a balancing analysis to permit the testimony, make sure you are arguing why admittance of the unauthenticated

drug test result would be prejudicial to your client and to the limited probative value of the drug test results in evaluating the caseworker’s


– There may be a strategic reason to permit the testimony to come in, so this should be a case by case decision.