Court Opinions: Colorado Court of Appeals Opinions for April 14

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Hunter v. SCL Health

Frank and Joan Hunter sued SCL Health-Front Range, Exempla Lutheran Medical Center and nurse Taylor Scism, alleging Frank Hunter was injured by the negligent insertion of a catheter.

In professional negligence cases, the plaintiff must file a certificate of review for each licensed professional named as a party within 60 days of service of the complaint, unless the court determines a longer period is necessary. The certificate of review is meant to show the plaintiff consulted with an expert who concluded the claim is justified.

The Hunters filed a certificate of review that stated they had consulted with a licensed physician. Scism moved to dismiss the case, and the district court agreed, finding the certificate of review was insufficient because the consulting expert was not a nurse and the certificate did not state the physician had a “firm grasp” on the nursing standard of care. The hospital then moved to dismiss, arguing that the Hunters failed to file a sufficient certificate of review. The district court granted the hospital’s motion as well, finding the Hunters’ claims against the hospital are based on the nursing care provided and the court had previously found their certificates of review insufficient.

The Colorado Court of Appeals reversed, finding the lower court misapplied the law by imposing a requirement for the certificate of review to state that the expert is a nurse or has a firm grasp of nursing standards. Statute doesn’t require this, the intermediate court said, so the district court abused its discretion. 

C & C Inv. v. Hummel

A division of the Court of Appeals found that a homeowners association must make a good faith, rather than highly technical, effort to give notice to a homeowner before foreclosing on their property.

Martha Hummel purchased a home in Loveland in 1999. The home was part of an HOA that imposed monthly dues. According to court documents, Hummel’s relationship with the HOA was “uneventful” until 2011, when her mental health started to deteriorate, and she shut herself in her home for several years. During this time, she didn’t shower, take out the garbage or retrieve her mail. She did, however, continue to pay her bills — including mortgage, property taxes and HOA dues — via autopayments.

In 2014, the HOA hired a new management company. Hummel was not aware of the change or that the autopay authorization for her HOA dues was no longer valid. Her HOA account fell into arrears and she didn’t receive letters from the HOA demanding payment because she didn’t check her mail and the post office eventually stopped her service.

In 2017, the HOA’s board voted to begin foreclosure of Hummel’s property based on her failure to pay about $7,000 in HOA dues over the years. The HOA filed suit against Hummel and her mortgage lender for judicial foreclosure but the complaint and summons were returned as “undeliverable.” A process server also made four unsuccessful attempts to personally serve Hummel. The court granted the HOA an extension of time to serve her, but the HOA made no additional efforts to personally serve Hummel.

The HOA later moved to serve Hummel and her lender by publication, and the trial court granted the motion. A notice of foreclosure was published in the Loveland Reporter-Herald, but Hummel didn’t get the paper and couldn’t access it online, so she didn’t receive notice of the foreclosure suit.

In September 2018, the trial court held a hearing on the HOA’s motion for default judgment and decree of foreclosure. Hummel did not attend, and the court found during the hearing that neither Hummel nor her mortgage lender had been personally served. The HOA’s attorney explained that Hummel was “somewhat eccentric” and a “recluse,” and that the HOA would need to ensure other avenues of due process were met in order to proceed with foreclosure.

The trial court expressed concern and told the HOA’s attorney that before considering ordering a sale, the HOA must try again to serve Hummel’s mortgage lender and post a notice on Hummel’s front door.

About a month after the hearing, a new attorney entered an appearance for the HOA and filed an amended motion for default judgment claiming that all named defendants were “duly and properly served.” The amended motion didn’t address the court’s order that notice must be posted on the property. Nevertheless, the court granted the HOA’s motion for default judgment and decree of foreclosure. When granting the motion, the court noted that the HOA didn’t post the summons and complaint on Hummel’s property but found all defendants were properly served. The court didn’t mention its prior order requiring the notice to be posted on the property nor did it vacate that order.

In June 2019, Hummel’s home was sold to C & C Investments in a sheriff’s sale for $19,360. In August 2019, C & C posted a notice to quit on Hummel’s door. She saw the notice and immediately contacted an attorney. Two weeks later, she filed an affidavit with the court saying she had never been properly served and moved to set aside the default judgment on the grounds of fraud.

Following another hearing, the trial court found Hummel had demonstrated excusable neglect for her failure to timely file an answer and there were extraordinary circumstances justifying setting aside the default judgment. After ordering additional briefing, the court also granted Hummel 15 days to file a notice of intent to cure the foreclosure sale. Hummel produced the cure funds and the court issued an order to quiet title in her favor and voided the sheriff’s deed.

C & C appealed the trial court’s order giving Hummel an opportunity to cure the sale. A division of the Colorado Court of Appeals agreed, finding that under state law, an owner may cure a foreclosure sale but must give notice of intent to do so before the sale. However, the division also found that the HOA’s attempts to serve Hummel failed to satisfy due process. The division concluded the trial court lacked adequate jurisdiction and that the default judgment and sheriff’s sale were void ab initio and properly vacated.

People in Interest of J.J.L.

A division of the Colorado Court of Appeals held that a parent’s assertion of Indian heritage on its own is not a “reason to know” the child is an Indian child requiring notice under the Indian Child Welfare Act of 1978. Under the ICWA, when a court knows or has reason to know an Indian child is involved in a termination proceeding, the court must ensure that the party seeking termination gives notice of the proceeding to the relevant tribe. However, the assertion does require the petitioner to exercise due diligence to assist the juvenile court in determining whether there is “reason to know” the child is an Indian child, according to the division.

In this dependency and neglect case, a mother and father appealed the juvenile court’s judgment terminating their parental relationship with their child, J.J.L. The Denver Department of Human Services filed a dependency and neglect petition about two-year-old J.J.L and a younger sibling. According to the department, the mother reported having Cherokee or Navajo heritage but was uncertain about which tribe and whether anyone in her family was an enrolled member. The mother also told the juvenile court during a hearing that she had Cherokee or Navajo heritage.

The court determined this was not reason to know the child is an Indian child but told the mother to complete an ICWA ancestry chart and directed the department to exercise due diligence to gather additional information that would help determine whether there was reason to know the child is an Indian child. The mother filled out the paperwork, indicating she or someone in her family had Indian heritage but that neither she nor J.L.L. was enrolled or eligible for enrollment in a tribe. On the ancestry chart, she identified her tribe as Cherokee but didn’t fill in sections seeking tribal affiliations for her maternal grandparents and great-grandparents.

In December 2020, the department moved to terminate the legal relationship between J.L.L. and his parents and asserted there was no reason to know he is an Indian child. A month later, the department filed a declaration listing additional efforts it had made to determine whether there was reason to know he is an Indian child, including contacting the maternal grandparent and an aunt, who didn’t know of any Native American heritage in the family. Reviewing court records of two earlier dependency and neglect cases against the parents, the department found the previous courts determined the ICWA didn’t apply. The department also declared that a review of a social history record for the mother didn’t indicate any Native American heritage “other than possible Cherokee heritage.” 

At a termination hearing in early 2021, the juvenile court again determined the ICWA didn’t apply. The court terminated the parental rights of both parents.

On appeal, a division of the Court of Appeals concluded, citing another division’s decision earlier this year in People in Interest of A-J.A.B., that simply asserting tribal heritage doesn’t give the court reason to know a child is an Indian child. The division in that case found that the definition of an Indian child doesn’t apply simply based on a parent or child’s ancestry but depends on a “political relationship” to a tribe.

But the division wasn’t convinced, based on the record, that the department satisfied its obligation to exercise due diligence to help the court determine whether there was reason to know J.L.L. is an Indian child. 

While the department declared it did contact family members and review court records, it did not show that it followed up with the mother to find out whether her belief that she had Native American heritage came from her paternal relatives and, if so, if others could confirm the belief. The department’s declaration also didn’t establish whether the family members it did contact had additional information that could assist the court on the matter.

The division remanded the case to the juvenile court with instructions to give the department the option of either gathering more information about the mother’s claims or giving ICWA-compliant notices to the federally recognized Cherokee and Navajo tribes.

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