Juvenile Delinquency Issues in Divorce Cases with Elizabeth Hardman | Episode 100

When a child becomes involved in a court case, there are different proceedings followed, other players involved in the system, and separate issues relating to information and safety regarding the child. Cases can become increasingly complicated when you have a juvenile issue going on with a pending family law matter.

Today we welcome to the podcast Elizabeth Hardman, an attorney with our firm. Elizabeth went to law school at DU in Denver and started her law career as a public defender in Northern Colorado. She currently practices adult and juvenile criminal defense, DUI/DWAI defense, and family law. Today we talk about juvenile delinquency and how this issue might come up in a family law context. 

Key Points From This Episode:

• What juvenile delinquency entails and more about what sets apart juvenile court. 
• Who are the players within the juvenile court system?
• More about the involvement of the Department of Human Services (DHS). 
• How courts get status updates on how juveniles are doing during the trial and post-sentencing.
• Elizabeth talks about the court proceedings of a juvenile case; what a family might expect. 
• When a juvenile case may go to a jury trial. 
• Diversions in juvenile cases; what that means and how it differs from jurisdictions. 
• How a juvenile delinquency issue can come up in a family law context.
• Does the child need an independent voice? A question that may arise in these cases.
• Issues related to what information you can get from a juvenile case that goes to a child expert.
• As a family law attorney, who would be the first person to contact in a juvenile case: the juvenile defense attorney. 
• Other situations where you could see where there is an intersection between juvenile cases and family law cases.
• If the child is involved in a juvenile charge, do they have the right to an attorney?
• Attorney-client privilege; how does that work with parents involved?

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

************************************************************************

DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya (4s):
I'm Ryan Kalamaya

Amy Goscha (6s):
And Amy, Goscha

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

Amy Goscha (13s):
The force 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):
Whether you are someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce, toe parenting and separation in Colorado.

Amy Goscha (35s):
Good afternoon, everyone. Welcome back to another episode of Divorce at Altitude I'm Amy Goscha and I have the pleasure of having Elizabeth Hardman, who is an attorney with our firm. Elizabeth, how are you today?

Elizabeth Hardman (48s):
I'm doing well. Thanks. Are you

Amy Goscha (49s):
Good? Can you give me a little bit of background about yourself, you know, in what areas of law that you practice in?

Elizabeth Hardman (56s):
Yeah, definitely. So I went to law school. I do I'm here in Denver, and then after I went to law school, I started out as a public defender in weld county, up in Northern Colorado there, I worked in a county court, so working on misdemeanor criminal cases for about nine months, and then I had the opportunity to switch to juvenile law, which I had always wanted to do. So I spent the rest of my time there in juvenile, which was really great. Then after the public defender's office, I came here to Kalamaya county, a Gosha and have started doing family law as well as criminal defense. So that's kind of brief background.

Elizabeth Hardman (1m 38s):
I also did some for anyone who's heard of problem solving courts and the criminal field. When I was a teen, I had worked as a teen attorney and judge representing other teens and kind of like a diversion program. So that's kind of where I, where I got started.

Amy Goscha (1m 54s):
And I know one thing I always ask you about and you get a lot of questions about is you're originally from Alaska, is that correct?

Elizabeth Hardman (2m 0s):
Yes.

Amy Goscha (2m 2s):
When did you move to Colorado?

Elizabeth Hardman (2m 5s):
I moved to Colorado in 2014 before law school.

Amy Goscha (2m 9s):
Great. So that's kind of how I ended up here. So today we are talking about Juvenile Delinquency and how this, I guess, issue might come up in a family law context. Is that correct?

Elizabeth Hardman (2m 20s):
Yes.

Amy Goscha (2m 22s):
So just tell me what does Juvenile Delinquency entail?

Elizabeth Hardman (2m 26s):
Yeah, so the Juvenile Delinquency cases come up when you have a child who's accused of committing an act that if committed by an adult would be a crime and in Colorado, we're looking at children who are between the ages of 10 and 17. Typically, although there is a Senate or excuse me, a house bill pending right now, I think it's house bill 22, 11 31 that is talking about actually increasing the minimum age to 13. So that's in progress right now, but yeah, juvenile court, it's really, it's simple in nature. That's what the courts say asset traditionally.

Elizabeth Hardman (3m 8s):
But over the years there've been a lot of cases that have kind of recognized it's quasi criminal nature. And so we've seen a lot of protections come about in the juveniles space to kind of balance what's in the best interest of the children and the juvenile case, but also they're taking into consideration kind of the safety and best interests of the community. And if there's a name victim that needs victim,

Amy Goscha (3m 34s):
That gives us a good kind of general overview. Can you tell me about, you know, who are the players or, you know, like within the system, within the Juvenile Delinquency system?

Elizabeth Hardman (3m 44s):
Yeah. So Juvenile Delinquency court is if you were to walk into a courtroom, it almost looks like a mixture between an adult criminal case and probably a DNM case. You have a lot of the traditional players in the adult criminal cases. So you've got the defense attorney who represents the child, stated interests, what they say they want and the case, the district attorney, or the prosecution who represents the state of Colorado and is trying to prosecute. Of course you have the judge, but in juvenile cases you also have a magistrate who usually oversees the proceedings from the outset.

Elizabeth Hardman (4m 27s):
They just can't do the jury retrial if there's going to be a jury trial. So aside from kind of those, those more general, what you'd expect in the courtroom from the adult criminal case, you also have the DHS case worker, possibly DHS. Doesn't always involved in the juvenile case, but if there is a family or a child that particularly needs resources like the families coming in and telling the magistrate, you know, my kiddos running away all the time or is really struggling in school, anything like that, then the judge might say, okay, we need to get DHS involved to figure out what's going on and try to support the family.

Amy Goscha (5m 5s):
You and I wrote a Colorado lawyer article on that was published in February. And it was about the intersection of dependency and neglect cases as well as Juvenile Delinquency. Correct.

Elizabeth Hardman (5m 17s):
Right.

Amy Goscha (5m 18s):
So that's interesting to hear that, you know, department of human services, I guess, would it be a caseworker that could be part of the Juvenile Delinquency court?

Elizabeth Hardman (5m 27s):
Yeah, exactly. Yeah. It's a caseworker. Yeah. So it sounds like, I mean, I don't do DNS, but it sounds like from talking with you and other people, it sounds like their role is quite similar between the DNM and the, the juvenile court. I think probably one difference is in juvenile court, the court might also get DHS involved to perform an out of home placement evaluation. So sometimes if you do have a kiddo who's running away all the time, or maybe mixed up with substance use, DHS will perform an evaluation for kind of a risk level. Almost they'll see what facility a juvenile might be able to go into instead of their home kind of in the interim while the cases pending.

Amy Goscha (6m 13s):
And one question just because I'm thinking about it is within the Juvenile Delinquency feed process. I know that it's different, but I worked in a juvenile center in Nebraska when I was in college. And I would report to the criminal judge about how certain kids were doing, you know, on it. Might've been a diversion program that does not happen similarly in Colorado, where you have people from the Juvenile Delinquency centers who will come into the juvenile court, does that happen? Do you have like How courts get status updates on how juveniles are doing once they're sentenced?

Amy Goscha (6m 54s):
Is that the correct term?

Elizabeth Hardman (6m 55s):
Yeah, what's their sentence, you know, as a defense attorney, I'm not as involved after the sentencing happens, but leading up to that point, it's really a mixture of people, right? You've got the parents in the courtroom. So the judge for the magistrate asks questions from the parents is how, as far as how things are going, the DHS case worker, if one is involved, you also can have Casa volunteers, like what you've referenced for the DNN court. You also have the guardian Enlighta, you have a ton of people who can get involved in the case who report back. And I, I, it's not mentioned in the article, but also what I've seen is when we have kids who are involved in mental health treatment or other, other activities like that, at least the magistrate that I was primarily in front, I really like to have updates when possible, granted, you know, you have to waive a privilege to, to get to that point.

Elizabeth Hardman (7m 51s):
So it just kind of varies, but yeah, there's, there are a lot of resources the magistrate pulls from

Amy Goscha (7m 57s):
Yeah. To get sources of information. Yeah. That makes sense. Well, is there anything else related to kind of the players before we move on to the process?

Elizabeth Hardman (8m 7s):
I think that's pretty good. Pretty good.

Amy Goscha (8m 10s):
Okay. Great. Well, let's give our listeners kind of the lay of the land. You know, if there's a, if they have a child that is involved in a Juvenile Delinquency proceeding, generally, can you talk about how that looks?

Elizabeth Hardman (8m 23s):
Yeah. So there are a couple of different, if I'm doing broad strokes here, some juveniles might get arrested from the outset of the case. If that happens, then they usually go to a detention facility, they'll get screened and their parents will be contacted. And when I say screen, it's kind of asking questions about their schooling or their background, and still kind of assessing risk and what supports are in place for the kiddo. And then first court appearance that that kid would is a detention hearing. And so that's kind of the very first time you're in front of the judge trying to figure out, does it make sense for this child to be released, whether that is to a parent, both parents or relative, or whether, you know, the kid needs to be detained until there's some other placement available for him, her, him, or her.

Elizabeth Hardman (9m 21s):
And I think one thing to note there is when a court's determining whether to release the juvenile, the court has to impose the least restrictive setting. So there's ideally the idea is that there's the, kid's not going to be just being in detention all the time. They're going to hopefully get released because there are a ton of studies that have shown just how detrimental it can be for a kid to, to remain a detention, even for a short period. So for, for other kids who don't get arrested right away, their first court appearance will be an advisement. And so that's where the court will tell the juvenile, you know, here's what the acts, the delinquent acts are that you're facing.

Elizabeth Hardman (10m 1s):
Here's the possible penalty. Also advising the juvenile of their right to an attorney, everything like that. That's also a time when the juvenile might want to request a guardian ad litem to be put on the case, that's in a situation where maybe parents aren't around or are not really involved and they just kind of need that extra support. Yeah. And then after the advisement hearing for more serious juvenile cases, you can have a preliminary hearing. That's pretty rare in juvenile cases, but that focuses on whether or not there's probable cause to move the case forward.

Amy Goscha (10m 41s):
Right.

Elizabeth Hardman (10m 42s):
And then from there, I mean, it's pretty, you know, you have status hearings I've needed and eventually you can have a trial if you want, or, or not. And in juvenile cases, you're usually looking at a bench trial or a trial before the judge or magistrate, depending on the circumstances, most juveniles don't have the ability to have a jury trial. It's, it's quite rare

Amy Goscha (11m 4s):
If they do have an ability to have a jury trial, does it depend like, is it six or 12 or is it just so rare?

Elizabeth Hardman (11m 13s):
It's really rare. And I'm blanking off the top of my head. I want to say it's six, but I think it actually depends on what the basis for them being able to have a jury trial. One of them might actually only be three.

Amy Goscha (11m 27s):
Oh, interesting.

Elizabeth Hardman (11m 28s):
Yeah,

Amy Goscha (11m 29s):
Really interesting. I guess one thing I keep thinking about is, you know, I don't practice criminal defense whatsoever, but we hear the term of our, like a problem-solving court rate within the criminal context. Is there such a thing within the juvenile court

Elizabeth Hardman (11m 48s):
There isn't, as far as the jurisdictions, I am familiar with there's diversion, which can be yet, which can be addressed usually at the initial advisement. Usually the district attorney would come up and say, Hey, I think this kiddo's a good candidate for this. Or the defense attorney might, might bring it up after reading through the case. But yeah, I, I, my understanding is that that's handled kind of differently from jurisdiction to jurisdiction, but yeah, I mean, in Alaska, right, where I grew up, that was the problem solving court was kind of a special diversion program that would make it, so these kids would go into almost be essentially be judged and represented by their peers.

Elizabeth Hardman (12m 31s):
So it was supposed to kind of provide some support that way and also pave the way for people like me who wanted to help.

Amy Goscha (12m 39s):
Right. No, that's great. We've talked a little bit about, you know, just the process and proceedings, let's talk about how can this type of an issue come up in a family law case that you have seen or you've thought about.

Elizabeth Hardman (12m 53s):
Yeah. So I think from the outset, if, you know, I have a case and family are, if anyone has a family law case where they hear about one of the children being in a Juvenile Delinquency proceeding, I think like right away, that should be a red flag to the family law attorney that maybe, you know, maybe there's a need for a CFI or a pre some sort of parenting expert in the family law case. Oftentimes not always, but oftentimes what I've seen in the juvenile world is that the children's behaviors are a product of their home environment. It could be something as simple as them not receiving the attention that they want or need from a parent, or it could be something a lot more serious.

Elizabeth Hardman (13m 42s):
Like you have a parent who has their own really bad substance use issues, or maybe there's abuse in the home, but it's definitely something. I think if, if you, you hear about that, it's something worth investigating. So either, you know, if you need to be protective, you need to pursue some sort of motion to restrict, or if you need to kind of prepare to defend your client against what's coming.

Amy Goscha (14m 6s):
That's what I was thinking. Even when I worked at the juvenile center in Nebraska, I mean, a lot of the kids that I would counsel or talk to, you know, a lot of their truancy issues came from just the, their home environment and issues with it. So when you're talking about a family law case, and you're representing a parent, an allocation of parental responsibilities matter divorce case, and that's happening, I think as the attorney, you have to really think like, what is going on in that home to figure out, like you said, if an expert is needed or to figure out how to get the support that the parent needs, like, do you need to hire, you know, like a parenting coach, do you need to, you know, like you said, are there issues going on with the parents such as substance abuse or whatnot, you know, so that's super important.

Elizabeth Hardman (14m 59s):
You know, I think it also raises the question of, Does the child need an independent boys? Like the CLR, a child's legal representative, because maybe there, they just need someone else to confide in.

Amy Goscha (15m 15s):
Right. Exactly. And we see that come up in our cases, you know, like you see it here and there, it's not as prominent, but you know, I think a family law attorneys sometimes forget that they can request for a CLR on behalf of the children.

Elizabeth Hardman (15m 30s):
Right.

Amy Goscha (15m 31s):
Yeah. One question I have, and maybe you're going to cover this is if there's a pending juvenile case, you know, and you have an expert. Can you talk a little bit about, I guess some of the Issues related to what information you can get from a juvenile case that go to the, that would go to the child expert?

Elizabeth Hardman (15m 52s):
Yeah. It's a tough balancing act with that. Certainly, you know, as a family law attorney, you're representing your client's interests and what they want, but I think it's really important at the same time to really stress to them, to focus on what's in the best interest of their children. There might be a rush to try to get as much information as possible from their tiled or from people like mental health providers. But, and I think that's fair within reason, you obviously want to be informed, but they need to be just cognizant of what's going to cause harm to the children or to the child. So for example, you know, I think it's a good idea to keep up to date with what's going on in the juvenile court.

Elizabeth Hardman (16m 37s):
I definitely think you want to open up interaction between yourself and any of the players in the juvenile court. You can make sure that everything's fluid. And I think you can also to some extent, you know, maybe you can request information or get information regarding what is claimed to have happen. So police reports that kind of information, but I think where you want to be really careful is a parent should not be talking to their child about what happened in the criminal case. It's not necessarily protected or it's not protected. There's very limited circumstance. When the child make us, makes the statement to their parent in front of the, the defense attorney, that's protected, but that's it.

Elizabeth Hardman (17m 24s):
So if it's child and parent are just talking, that makes all of the child's statements subject to disclosure at a trial or to the prosecution, and it can have some really serious ramifications for the child. Another piece is, and I think we see this in Dr. Anyway is trying not to invade the child's mental health sessions too much, because you still want that flow of information from the child to the therapist so they can get the treatment that they need without feeling like it's nothing going to be broadcast or used by one of their parents against the other.

Amy Goscha (18m 1s):
Right. Yeah. We see that a lot with therapists because you want kids to feel like they have a safe space, right,

Elizabeth Hardman (18m 8s):
Right.

Amy Goscha (18m 8s):
About what's going on and for the therapist actually provide the services that's needed to help them. Yeah. That's really interesting. One question I do have is with criminal cases, if like a client is involved, like if there is a criminal case or say that there's been like criminal endangerment charge for children, and sometimes I'll try to talk to the district attorney, you know, on the matter to figure out what's going on with the disposition of the case. There's so many players, it sounds like within the juvenile system, just knowing all of the players as a family law attorney, who should be one of the first people that you contact.

Elizabeth Hardman (18m 48s):
Yeah. That's a good question. I might be biased because I am a criminal defense attorney, but I do think it makes the most sense to talk to the criminal defense or the, the juvenile defense attorney first, just because obviously they're representing the child. There might be some stuff that, that attorney cannot speak to the family law attorney about, but at least the defense attorney can give some general information about, you know, why certain information needs to be protected or what can be disclosed. I think the prosecution is fine as far as if you're, if there's some sort of release or you can get information about police reports, but generally speaking, it's best to try to protect the child's statements or statements surrounding what happened to the fullest extent.

Amy Goscha (19m 38s):
Yeah. And that makes sense. And just to clarify, when I would contact the district attorney, it was mainly when there was a criminal case regarding the other, you know, the other parent.

Elizabeth Hardman (19m 49s):
Oh yeah. Yeah. That makes a lot of sense. I was thinking of the opposite situation, but yeah, that makes a lot of sense. One thing about,

Amy Goscha (19m 57s):
Yeah. Thinking about that, like, you don't really have those two situations because there's two parents and there's only, you know, like those two parents have joint children. So that makes sense why the recommendation would be to protect the statements and to talk to the defense attorney.

Elizabeth Hardman (20m 11s):
Yeah.

Amy Goscha (20m 13s):
Well, what other situations do you see, or could you see where there would be this intersection between juvenile issues in the family, family law cases?

Elizabeth Hardman (20m 23s):
Yeah. I'm thinking, you know, there's obviously in the family law cases, a lot of the decisions that need to be made by the court were agreements entered into between the parties center on the best interest factors under Colorado law. And so those, those I think will come into play a lot when you're looking at the juvenile case. And so it makes sense to try to, I guess, really focus on what the key issues are for the child and the juvenile case, and make sure that you incorporate those concerns into any agreement that you make or make sure that the judge is aware of what's going on in the juvenile case, whether it's a mandatory protection order or some other unique situation that needs to be accounted for in the orders.

Elizabeth Hardman (21m 11s):
I think it's really important to have that continuity between the two court rooms, because otherwise it just causes confusion for everyone involved. You don't want to end up in a situation where a mandatory protection order is getting violated in the juvenile case, because that could result in more charges. That's really important.

Amy Goscha (21m 29s):
One other question I have, that's probably, well, to me, I have this question and probably parents have this question is if their child is involved in a juvenile case or charged, do they have a right to an attorney? Or how does that work?

Elizabeth Hardman (21m 44s):
Yes. Good questions. So the kiddo does have the right to an attorney and it's actually interesting. What I've seen a lot is you have parents who are almost resistant to the idea of getting an attorney, but it's important to remember in this context, like the juvenile is the one who holds that, right? So even in this situation where a parent doesn't want an attorney involved, if the child expresses a desire to have one and the court will appointment appoint one, and because they're children, they usually don't have money to pay for their own attorney unless their parents are willing to help. So they are able to have the public defender's office represent them, which is great.

Amy Goscha (22m 26s):
Yeah, no, that's really important. And then just to touch on this, so I'm clear, does the attorney client, obviously the attorney client privilege is between the juvenile and their defense attorney. How does that work with parents? Does it extend to parents as well? If they're in the, I guess in the conversation and when the juvenile is meeting with the attorney.

Elizabeth Hardman (22m 48s):
Yeah. So it's tricky kind of like I was mentioning before the privilege between the like there's a parent child privilege, and that is very, very narrow to the circumstance where a juvenile is saying something to their parent in front of the defense attorney, but everything else is not protected. And so I do have it as a policy generally where from the outside, I don't have parents in the room when I'm talking to their child about what is going on. It just, I think first it protects the child's statements. But secondly, as people with children probably know, there are times when children, I think can be intimidated or scared about what their parents might think as far as what they did.

Elizabeth Hardman (23m 34s):
So they might not be forthright with me. And that makes my job really hard if I'm working on a set of facts that isn't true. And I don't understand the kid's real exposure.

Amy Goscha (23m 44s):
Right. That makes sense. Well, any, I guess, advice to parents, you know, it sounds like one of the number one things is if their child is involved in a juvenile matter, that they should have their child get an attorney.

Elizabeth Hardman (23m 59s):
Yes. That is, I say that's number one. I think there are. Yeah. I think if your child is being accused of committing some sort of act, don't allow them to talk to the police. There's no need to be rude about it or anything, but you can just plainly say that you're declining to speak to the police until you have an attorney and then get an attorney and go from there. But yeah, I just think it's, it's natural inclination, especially when your parents will want to know exactly what happened to be able to, you know, either address the issue or maybe have the child come forth and, and admit to what happened so that they're taking responsibility.

Elizabeth Hardman (24m 44s):
But I think a lot of parents don't understand how serious juvenile consequences can be. So it's best to just hold off, wait until you can get an attorney and then they can advise further.

Amy Goscha (24m 57s):
Well, great. Thank you, Liz, for this wonderful information. I know it can get complicated when you have a juvenile issue going on with a pending family law matter. So I appreciate your time today.

Elizabeth Hardman (25m 11s):
Thank you for having me.

Amy Goscha (25m 12s):
Yeah. And then just for our listeners, you know, if they had further questions just about, you know, Juvenile Delinquency Issues, how can they reach you?

Elizabeth Hardman (25m 21s):
Yeah. So they can reach me at my email is Elizabeth at Kalamaya dot law. They can also give me a call. My phone number is (970) 775-8955.

Amy Goscha (25m 37s):
Great, well fabulous. Thank you for, for coming on today and we will hopefully see you again as another expert guest on this podcast.

Elizabeth Hardman (25m 46s):
Great. Thank you so much.

Amy Goscha (25m 47s):
I think you,

Ryan Kalamaya (25m 48s):
Hey 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 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.