Divorce at Altitude: A Podcast on Colorado Family Law

The Intersection of Dependency & Neglect Cases with Divorce with Amy Goscha | Episode 85

February 17, 2022 Ryan Kalamaya & Amy Goscha Season 1 Episode 85
Divorce at Altitude: A Podcast on Colorado Family Law
The Intersection of Dependency & Neglect Cases with Divorce with Amy Goscha | Episode 85
Show Notes Transcript

Intersection of D&N cases and Divorce

What is 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 parent, guardian, or legal custodian abandoned the child or subjected them to mistreatment or abuse.

•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, or well-being

•the child is homeless, without proper care

•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

•a parent, guardian, or legal custodian subjected another child to an identifiable pattern of habitual abuse

What are the various roles/players involved in a D&N case?

•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.

•DHS caseworker- DHS caseworkers coordinate services and maintain contact with the family. They also provide the court with written reports (family service plans).

•Guardian ad litem (GAL). The GAL is the lawyer assigned to represent the child’s best interests. The GAL must advocate on behalf of the child’s health, safety, and well-being.

•County attorney - The county attorney (or city attorney of a city and county)6 represents DHS and is responsible for initiating the D&N case. County attorneys work with caseworkers to make recommendations to the court regard­ing the child’s best interests.

•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.

What is involved with the D&N Process?

•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. This hearing must take place within 72 hours after placement outside the home, ex­cluding Saturdays, Sundays, and court holidays

•Adjudicatory hearing. The court decides at the adjudicatory hearing if the child is dependent or neglected.10 If the court adjudicates the child dependent or neglected, it can order the child to remain in DHS custody or the family to remain under DHS supervision. This hearing should be held within 60 to 90 days of the date of service of the petition. If the child is adjudicated, the court then approves a case treatment plan.

•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

Ryan Kalamaya (3s):
Hey everyone. I'm Ryan Kalamaya

Amy Goscha (6s):
And Amy, Goscha

Ryan Kalamaya (8s):
Welcome to Divorce at Altitude. A podcast on Colorado family law

Amy Goscha (13s):
Divorce is not easy. It really sucks. Trust me. I know besides being an experienced divorce attorney, I'm also a divorce client.

Ryan Kalamaya (21s):
You are someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce co parenting and separation in Colorado. Welcome back to another episode of Divorce at Altitude. This is Ryan Kalamaya this week. We are joined by Amy Goscha. Amy, how you doing? Good.

Amy Goscha (46s):
How are you, Ryan? Great

Ryan Kalamaya (47s):
To be back. Yeah, it's been a while we thought it would be good for listeners to hear about your recent Colorado lawyer article about Dependency and neglect and The Intersection with family law. For listeners that don't know what is The Colorado lawyer. We've had a couple of guests on recently who have written articles. So what exactly is the Colorado lawyer?

Amy Goscha (1m 9s):
The Colorado lawyer is a publication that gets sent out to all lawyers in Colorado. So they have various areas where attorneys will write articles. And essentially my article was a featured article for the family law section. So I wrote it on the intersection between Dependency and neglect and family law, because as we know, there's a lot of issues that as family lawyers and clients we have to deal with. And the one that we're going to focus on today is what is Dependency and neglect.

Ryan Kalamaya (1m 39s):
You did that article with one of our superstar, associate attorneys, Elizabeth Rose Hartman. And for listeners, they hear they kind of pre or mid show explanation about our firm. And we do personal injury, criminal offense and family law. But Amy we'll get into this, but, you know, we know, but Listeners, there's a lot of crossover. So family law can result in having, you know, some criminal cases or personal injury. We have a episode with Phil Goldberg to talk about personal injury. And so we were kind of on this run on the, on the overlap, but for people that don't know what is a Dependency and neglect, what does that mean in Colorado?

Amy Goscha (2m 18s):
Yeah. So in Colorado it's cases concerning essentially child abuse and neglect. And so the acronym for it is DNN. So if you hear DNN case, that means Dependency and neglect, and These are civil cases. So these aren't really criminal cases, there could be a criminal law case that's going on as well, concurrently. The best way I can describe it as it is a little bit quasi criminal, because you do as a parent, have to come in and admit or deny certain allegations. So it gets pretty nuanced. It's kind of complicated, especially if we have clients who are going through, you know, divorce or allocation of parental responsibility case, it can be overwhelming, but I wanted to break down kind of what these issues are, you know, and who the players are and how to deal with some of those scenarios.

Ryan Kalamaya (3m 5s):
So if we use our Eric and Melanie's story, there could be, what we're talking about is if there's some sort of incident with, for example, Eric, where he is driving with the kids and using drugs, then theoretically we could have there be a divorce, which, you know, Listeners can or are familiar with, but then you'd also have this DNN, but there could also be a criminal case for Eric. And so this episode in your article is focused on the DNN component. Cause there could be three different branches or legal processes relating to that one particular incident. Right.

Amy Goscha (3m 43s):
Right. And as the family lawyer, if this is happening during, you know, a case where we're, we're representing parties on an allocation of parental responsibility case or a divorce action, you know, the first thing they're going to do is call us. And so, you know, we wanted to give people kind of some information, cause it's super scary going through it. It's, you know, it's just really hard and confusing. So I just thought it would be good for us to kind of break down, you know, what DNN means, but also, you know, what the process looks like and also who the advocates are, who are part of that process.

Ryan Kalamaya (4m 17s):
Well, other than my example of Eric driving while being higher or something else, When is a child dependent or neglected, can you give our listeners some explanation or, or provide some context to what DNN actually means?

Amy Goscha (4m 33s):
So the statute really kind of breaks it down as to what scenarios where a court can find that a child is dependent or neglected. The first one is if the child is abandoned by a parent and I'm going to say parents, because this can also be a guardian or legal custodian of a child. So all of these scenarios can apply to people in those, I guess, capacities, or if a child is subject to mistreatment or abuse, the child can also lack parental control by actions or remissions of a parent. Like an example of that would be, you know, you just have a child who, you know, is under driving age and was just out at midnight and is not getting supervised. You know, like that's kind of out of the control of the parent, the child's in an environment that's dangerous to their wellbeing.

Amy Goscha (5m 19s):
And also for instance, if a parent is not providing, you know, the structure that a child needs, by making sure that they get to school on time, making sure that they're getting their homework done, if they're just not providing kind of those basic necessities. So it's not just always, you know, physical abuse or mental abuse, it can be just not doing the things as a parent. You know, the minimum things that you should do as a parent, you know, for your child, the other things would be, if we see truancy, like our runaway Tal is homeless, the child was born by a parent who used alcohol or substance abuse issues, you know, and the child was born that way. And also if, as a parent, if you subject your child to, you know, habitual abuse, that can be, you know, also I'm sure Ryan, we talked to our clients all the time about, you know, that parent might not be the problem or the abuser, but if that parent is not doing anything to essentially protect the child, that can also result in a DNN case.

Ryan Kalamaya (6m 21s):
Yeah. Back in the day when I was a baby lawyer, I did some DNN work and it's appointed workout would be appointed by the state. And the judges asked for attorneys to volunteer because they just really had a dearth of attorneys that would act as representatives. And we'll talk about who the players are in a DNN action next, but I think it's helpful for listeners to understand the difference. I mean, when we say that they're not providing the structure or the, you know, an environment, I think, you know, some people could listen to that and they say, well, you know, Eric, he lets the kids play too many video games and that's just injurious to them.

Ryan Kalamaya (7m 4s):
And it's really, I think, getting into where Eric has such a bad drug problem, for example, that the kids don't even get bad. I mean, those are the kinds of cases that you see, or Eric might have a new girlfriend and the girlfriend, you know, she hits the children or there's something with somebody else related to the parenting and the Eric just doesn't even let them, or doesn't correct his girlfriend or do anything. And that might be an example that is a little bit more salient because when people hear that, they're like, oh, well, you know, Eric or Melanie, you know, they're thinking about their situation. They might say, well, that's Dependency and neglect it.

Ryan Kalamaya (7m 47s):
Yeah,

Amy Goscha (7m 47s):
Exactly. So this isn't, you know, extreme and it can, we see a lot of times, you know, several of those factors, like someone could have an alcohol or substance abuse problem. And so, you know, they're not waking up on time to get their kids to school. And in one month the kid is missing school 20 days or something like it's extreme. So,

Ryan Kalamaya (8m 8s):
So what, or who are the various people? I referenced that I would be appointed as an attorney or a parent there's, but there's a whole host of different players involved. So can you tell our listeners, what does a DNA case look like in terms of the different people that are involved?

Amy Goscha (8m 26s):
There's various roles that are involved regarding, you know, the parents, the court and the children. And so for parents who are involved in a DNN matter, and again, the caveat is this could be guardians or legal custodians. The parents are called Respondents in the action and they each are entitled to, they can hire their own private counsel, or if they are indigent, they can also be given counsel attorneys to represent them in the action. We also have the department human services, which has involved the family's going to be in contact with the case worker. The case worker is going to provide services and maintain contact with the family and provide updates to the County attorney to the, The court.

Amy Goscha (9m 9s):
We also have a guardian ad litem who in Colorado, that person has to be an attorney. This person is essentially there to look at what is in the best interest of the children. So there's not an attorney client relationship between The GAL and the child, but the jail will usually provide reports to the court as to what's in the best interest of the children. And you also have the county attorney who represents the department of human services. And the County attorney is the person who actually will file the formal DNN case. And that's how it gets in front of the court. And then you'll also have not every time, but a lot of times the Casa worker who doesn't necessarily have to be an attorney, but also who makes recommendations, you know, has contact with the children and provides reports to the court.

Amy Goscha (9m 56s):
So it can be kind of overwhelming because there's all these people, but you know, my experience and, and matters is that every time you're in front of the judge, the judge is looking for an update pretty much from every single one of those people.

Ryan Kalamaya (10m 10s):
Yeah. And my experience was that you'd have two different tables. There's a lot of people, no, in a courtroom, you'd have two different tables and then there'd be the County attorney. Then the caseworker, both of them independently would stand up and give updates. Then you'd have The GAL. And The GAL was the person that really built the County attorney. There could be kind of Alliance between the County attorney, the caseworker and The GAL, but then also The GAL might say, I'm an Alliance with, and they won't, it's not like game of Thrones where they kind of create these formal alliances, but they'll take various positions that say, listen, I think the county is overstating the situation, or they might have a differing opinion as to what happens.

Ryan Kalamaya (10m 55s):
And then you have the parent and there could be two parents where, you know, oftentimes there could be some abuse that is occurring by the father and then the mother also, because she didn't do anything or allowed that abuse to happen. So you frequently will have both parents and it's all based on what did we do? And so the state in essence is kind of injecting itself in the family dynamic, which is a little bit different than a

Amy Goscha (11m 20s):
Divorce. Yeah, exactly.

Ryan Kalamaya (11m 24s):
This episode is brought to you by our law firm. Kalamaya Gosha Amy and I describe our law firm as an innovative and ambitious trial team that pushes the boundaries to discover new frontiers and family law, personal injuries in criminal defense in Colorado. We currently have offices in Aspen, Glenwood Springs, Edwards, Denver, and Boulder. If you want to find out more, visit our website, Kalamaya dot law. Now back to the

Amy Goscha (11m 51s):
Show. And then my experience also is that the judge is really looking to The GAL for information and guidance, you know, like everyone else has input, but The GAL, you know, has a lot of input.

Ryan Kalamaya (12m 4s):
Yeah, indeed and good for people also that we have an episode about the experts involved in a divorce or family law case when there is a custody dispute and there are some similarities, so there's a child legal or representative that can be appointed in a divorce or an APR action. That's similar to a gal where that attorney can represent the legal interests of the children, but, and then you also have kind of a caseworker that is in the household in a DNN case going and investigating, talking with various people. And that's somewhat similar to some of the work that a CFI or a Peary would do in evaluating, but obviously there's, there's different terminology as the law.

Ryan Kalamaya (12m 47s):
We have a lot of acronyms. So, but it just for people to kind of understand what that environment, what those terms mean when they're comparing it to a divorce.

Amy Goscha (12m 59s):
So I think the next thing we wanted to kind of touch on our lifestyle. I wanted to touch on it as just a few of the various procedures related to DNN cases. So in order for like a Deanna and case to start, I think I mentioned that a County attorney actually has to file a petition, a formal petition for DNN. And then essentially if the children are removed, there has to be a preliminary hearing within 72 hours after the DNN petition is filed and the, and the children are removed. And so at that hearing, usually the parents who are both respondents, we'll figure out if they're going to have attorneys. And if they're going to admit or deny to the allegations in the petition, the next kind of step is there's usually an Adjudicatory hearing and that's usually done within 60 to 90 days after the filing of the petition for the DNN case.

Amy Goscha (13m 50s):
What's interesting is, you know, as a respondent parent, you can ask the court to, you can have it by when you can request them to retrial of six. You can also just request for it to be a bench trial, which means in front of a judge or in some counties, you can request it to be done by it like a family law or by a juvenile magistrate. You know? So there's various things that you can request. My experience is usually it's not done by a jury, but you do, you know, as a respondent, parent have the right to do that. And it's limited to six, or if at the preliminary hearing, as a parent, you admit to the allegations and the DNN petition, then you don't go to an Adjudicatory hearing.

Amy Goscha (14m 31s):
You go right to essentially a Permanency plan where the court will issue its orders as to, you know, what needs to happen, you know, in the case, you know, services that should be done through DHS. You know, if the child is placed outside of the care of parents, usually the Permanency plan parenting plan has to be within a year. So there is that timeframe. And then the court will usually hold like periodic reviews to make sure that, you know, the children are doing well in the plan. Parents are doing well in the plan to make sure that there shouldn't be any tweaks that are needed or further, you know, therapy or services. So that's kind of in a nutshell, you know, the process.

Ryan Kalamaya (15m 11s):
So what scenarios Amy, do we see Eric and Melanie or a client, someone going through a divorce or come to us for a family law case and then a DNN case either has started or begins.

Amy Goscha (15m 26s):
Yeah. So the situations is a family lawyer, and I'm sure you've had this Ryan. Usually the context is the client is getting a call from the DHS worker to either have contact with the client or to make arrangements, to have contact with the children. So in those cases, you know, the advice that I always give clients is make sure that you call me If DHS worker, you know, calls you. And then usually I will call the DHS worker to figure out, you know, like, what is the status of the investigation? Is it just an investigation? Is there an open case, you know, like is DHS thinking of referring it to the county attorney to file, you know, an actual DNN matter?

Amy Goscha (16m 9s):
You know, sometimes when the DHS worker contacts, the parents, depending on, or my client, depending on the situation, they might've already had contact with the children because when there's a referral that's been made to DHS, statutorily, the DHS caseworker has to make contact with the child or children within 72 hours of the referral. And they have the ability to do that. You know, at school, they have the ability to make that contact at school. So I think just in general, the best advice is if you're the client contact your family, lawyer for your family or lawyer to figure out what makes sense usually, but the children, you do want to cooperate with DHS to make the children available, but it just depends on what's going on.

Amy Goscha (16m 53s):
You know, if there's a pending criminal case, you know, and there's fifth amendment issues, you know, it, it just can get kind of complicated. So not always. And I know that clients hate hearing us say this, but it really does depend on the situation. That's why, you know, call us another scenario is that the DHS caseworker might request what's called a family meeting. So one thing I didn't really touch on in the process is there's kind of this like formal process of DNN cases. And then there's this kind of informal process. So the informal process is DHS really doesn't want to have to file a formal DNN and action with the court. So sometimes, you know, they'll set up this family meeting to have the parents come to figure out, you know, it's almost like a, it's not a mediation, but I kind of look at it like a mediation they look at, is there a way to resolve the issues in this family?

Amy Goscha (17m 42s):
Are there, you know, services that DHS can extend to the parents or to the children that can really get this family back on track? So if that happens and I've attended family meetings before, and I like to a lot of caseworkers say that that's not typical, but I want to know what's going on in that family meeting. And I want to understand, you know, I want to have part of that resolution. So I think if a caseworker asks to set a family meeting what your family law attorney knows well, because there might be certain circumstances where we want to attend those, to make sure that, you know, we are setting our client and the children up for success. And then I would say the other issue where it comes up is, you know, if parents can't agree on parenting time or decision-making, there might be, you know, a period investigation going on or a CFI investigation going on.

Amy Goscha (18m 32s):
And so you want to make sure that you're getting the records from DHS, which can kind of be timely, or it can take awhile. And also a lot of times it can be redacted, like completely redacted. So there are some circumstances where you have to ask the court for, you know, us as attorneys to review those documents in camera unredacted. And I think also what the court, or what the DHS, what the department of human services can do is they can issue a, like a safety plan. And this safety plan on its own doesn't really have legal. It's not really legally binding. It's just a recommendation, but you can take that safety plan as the family lawyer, you know, and if emotion to restrict parenting time is warranted.

Amy Goscha (19m 16s):
You can use it as an exhibit to say, DHS is involved. They're recommending that one parent not have contact, you know, so there is, you know, an interplay there. And then I think it just, you know, we see a simultaneous DNN case sometimes when a divorce action is happening. And usually if there's an open DNN case, it's going to stop and halt everything. And the domestic relations case until it's completely, you know, like until the Permanency plan has been set in place, and then that's going to be certified, meaning the orders and the DNN case. They're going to be part of the domestic relations case

Ryan Kalamaya (19m 54s):
Look or how it could a scenario that is, could come up. Or I think that helps flesh out or explain what you're referring to Amy is Eric and Melanie get into an argument. One of the children calls the police show up. They then determine that there's just not something that they're going to arrest anyone for, or they could, and it could be the Eric is yelling at one of the children, or it gets into an argument with his 16 year old son. And then the police determined because the children are the ones that called. They have a mandatory reporting or something, you know, it comes up and then DHS gets involved and they come and they talk with the children and the parents.

Ryan Kalamaya (20m 36s):
And then they determine, listen, like we want to provide some support. There's obviously a lot of tension here to meet, do counseling. And they might not necessarily file, or they might be reluctant to file a formal DNN, but they can provide some services counseling or the family could say, listen, Eric, Melanie decided to go through a divorce. We're going to take care of this on our own. Or Eric scan need to get some counseling that might matter. But if Eric tells the DHS worker that he's got a drug problem and he hit the child, then that will trigger be implicated in the D and N action. But it can also matter for the divorce where Melanie and Amy, you represent Melanie, you can file a motion to restrict based on the various admissions or evidence that is gathered in that D H S action.

Ryan Kalamaya (21m 28s):
So it gets really tricky. Mostly when you throw in the criminal element, there can be these different incentives as to disclose various information, or maybe not to. So I think people, they don't understand really how all this can come into play. And a lot of family law attorneys, I think don't understand or really appreciate what can happen if they don't know what they're doing,

Amy Goscha (21m 53s):
Because family law attorneys, like if you're not the attorney who's handling the DNN matter, if you're not the respondent counsel, like I think the more communication that you can have, you know, like, so, you know, what's going on, it's kinda like an appending criminal case. Like there has been times where I sit down and talk, if my client's the victim, I will sit down with the district attorney to figure out, you know, where we're at, when is the disposition, you know, what you know, just to make sure that my client, I know what's going on and how it affects the family law matter. I think the last thing I'll close with that I think is important on terminology is there's kind of an it's called invalid. So I, I kind of view the DNN formal processes. It's kind of the involuntary process because no parent wants to have to combat a DNN case.

Amy Goscha (22m 37s):
And then there is a voluntary process where a lot of times DHS will try to work with parents. And they'll say, this is about to become, you know, a DNN case, you know, like here's what we need to do. So parents can voluntarily, you know, work with DHS, you know? And so as the family law attorney, you have to really determine, like, does it make sense for your client to work with DHS voluntarily?

Ryan Kalamaya (23m 4s):
Well, it's a complex issue. I know that the other part of your article was Liz, his particular interest in the juvenile delinquency or juvenile justice process. We'll have a separate episode for people that want more impro. There are some how episodes about the intersection of restraining orders and criminal cases with parenting. So we'll have links to that in the show notes, but until then, I think that's enough to make someone's head spin. And Amy, thanks again. And congrats on the Colorado lawyer article. That's a big deal. I don't know if many listeners can truly appreciate the amount of work that I know Elizabeth, and you put into it, but also just how difficult it is to have published in the Colorado lawyer.

Ryan Kalamaya (23m 47s):
So kudos you. Oh, thank you, Ryan. I appreciate it, everyone. This is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion, helpful, please tell a friend about this podcast for show notes, additional resources or links mentioned on today's episode. Visit Divorce at Altitude dot com. Follow us on apple podcasts, Spotify, or wherever you listen to in many of our episodes are also posted on YouTube. You can also find Amy and me at Kalamaya dot law or 9 7 8 3 1 5 2 3 6 5 that's K a L a M a Y a.law.