Court Opinions: Colorado Court of Appeals Opinions for July 21

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

Stickle v. Jefferson County

The Colorado Court of Appeals unanimously affirmed a lower court’s ruling involving the Colorado Governmental Immunity Act.

Beverly Stickle fractured her arm in the Jefferson County Courts and Administration building’s north parking structure after losing her balance and falling on a step down from a walkway. Stickle then brought a premises liability claim against the county. The county moved to dismiss claiming it has immunity under the CGIA.

According to the CGIA, a public entity can be immune from liability in claims for injury which lie in tort or could lie in tort, regardless of whether that may be a type of action or a form of relief that’s been chosen by the claimant. That immunity is waived however, if someone gets injured due to dangerous conditions.

The county argued the CGIA’s waiver of immunity for dangerous conditions when considering public buildings, doesn’t apply in this case. The trial court disagreed, denying the motion.

After reviewing many items, including statutory language, the appeals court held that a public parking structure can be a public building under the CGIA and the parking structure in this case does qualify. The appeals court then rejected the county’s argument that the alleged defect wasn’t a dangerous condition and was solely due to the design of the parking structure. 

The county previously argued Stickle could not show the county waived its immunity under the CGIA claiming the parking structure is not a public building and the step down from the walkway was not a dangerous condition under the CGIA, adding the matching color of the walkway and parking surface was a design choice, for which immunity isn’t waived.

The appeals court concluded that the dangerous conditions were at least partially caused by maintenance. The appeals court wrote the same topping material to resurface the walkway, parking surface and curb was connected to maintaining the structure. The appeals court concluded the county waived its immunity, affirmed the lower court’s order and remanded for more proceedings.

In re the Marriage of Thorburn

In this case, the Colorado Court of Appeals affirmed a case involving imminent danger to a child and emergency hearings.

The appeal involves subsections (1)(b)(I) and (4) of Colorado Revised Statutes section 14-10-129. Both of these subsections allow a district court to restrict parenting time so a child can be safe from emotional and physical endangerment. Subsection (1)(b)(I) goes toward an order which imposes or continues a parenting time restriction. Under subsection (4), a district court, on an emergency basis, can restrict parenting time until a hearing can be held within 14 days. The main difference is subsection (1)(b)(I) doesn’t mention imminence and subsection (4) does.

The case centers around James and Danielle Thorburn’s marriage which ended in 2020 and within the dissolution, it was agreed their son, J.C.T., would mainly live with his mother with James Thorburn following a step-up parenting schedule with the goal of equal time in nine months. 

Danielle Thorburn alleged that during one of James Thorburn’s parenting times, their then 32-month-old son, sustained a deep gash on his forehead that required stitches. James Thorburn claimed the injury was an accident. In a written order, the magistrate concluded between August 2019 and January 2021, J.C.T. received five injuries in his father’s care. The magistrate went on to say they would not have happened if James Thorburn properly supervised J.C.T. The magistrate’s order, which was adopted by a district court, put restrictions on James Thorburn’s parenting time.

Eventually, James Thorburn challenged a magistrate’s decision restricting his parenting time. James Thorburn argued the magistrate incorrectly defined “imminent” under subsection (4) which would mean the magistrate didn’t use the appropriate legal standard. 

Meanwhile, Danielle Thorburn, countered arguing even if the magistrate wrongly defined “imminent,” it didn’t matter. Danielle Thorburn argued the motion to restrict parenting time under subsection (4) was simply procedural for an emergency hearing and an immediate parenting time restriction. Danielle Thorburn continued, arguing that at the emergency hearing, the standards under subsection (1)(b)(I) were applicable to all hearings restricting parenting time.

The appeals court affirmed the district court’s order adopting the magistrate’s decision that restricted James Thorburn’s parenting time. The case was remanded for further proceedings on behalf of the mother for appellate attorney fees.

The appeals court wrote that when interpreting the language of (4) and applying it to (1)(b)(I), they concluded under (4) a moving parent doesn’t need to prove at an emergency hearing the child is in imminent danger. It also concluded the district court needs to apply the endangerment standard under (1)(b)(I) to continue a parenting time restriction. The appeals court continued, saying the record substantiates that, when assessing Danielle Thorburn’s motion restricting parenting time, the correct legal standard was applied.

Appeals Court Judge Daniel Taubman dissented. He wrote he agrees with the majority that the main issue in the case is the connection between subsections (1) and (4) of section 14-10-129, C.R.S, over considering what a party must allege and prove at an emergency hearing under the latter’s subsection.

“I disagree with the majority that, when a motion is filed under subsection (4), a moving party must only allege, rather than prove, imminent harm to a child, and I further disagree that imminent harm was sufficiently alleged in this case,” Taubman wrote. “In addition, I think this case raises significant procedural questions, including whether the majority’s statutory analysis was raised before the magistrate and the district court.”

People in Interest of C.C. and R.R.E.G

The Colorado Court of Appeals unanimously reversed and remanded a juvenile court’s ruling concerning a late arrival to court and whether that waives a parent’s right to a jury trial.

The appeals court considered whether a juvenile court erred by changing an adjudicatory trial to a bench trial when the parent’s counsel and guardian ad litem showed up on time, but the parent showed up about 30 minutes late. The appeals court ruled that the parent is not waiving their right to a jury trial by arriving late.

The Denver Human Services Department filed a petition in a dependency and neglect case regarding two children, C.C. and R.R.E.G. The court appointed a guardian ad litem for the mother, C.L.E., who denied the department’s allegations and requested a jury trial. That trial was scheduled for two days with the first day beginning at 1 p.m. The mother’s counsel and the guardian ad litem were at court at the correct time, but the mother had not appeared by 1:10 p.m. and the presiding judge moved the case to a bench trial. That court noted C.L.E. was told to be there at 12:45 p.m. and if she was later than 15 minutes, she would have waived her right to a jury trial.

According to court documents, C.L.E.’s counsel told the judge she was having trouble with her Lyft and there was some sort of detour. C.L.E. did arrive at 1:30 p.m., but the jury was dismissed. A bench trial then ensued and C.L.E’s children were adjudicated dependent and neglected.

On appeal, C.L.E. argued the lower court erred by finding she waived her statutory right to a jury trial by arriving late to the hearing. 

The appeals court agreed with C.L.E. and that although she wasn’t present when the jury trial was supposed to begin, C.L.E. maintains that since her counsel and guardian ad litem were there and she arrived shortly after the trial was converted, she did not waive her right to a jury trial. 

The appeals court concluded that before moving to a bench trial, the juvenile court should have made more inquiries about where the parent was, and if satisfied the parent would appear promptly or they had a good reason for being late, the court could have given them more time to arrive.

The appeals court claims the record doesn’t indicate the court made any such inquiries or accommodations, and the error wasn’t harmless. The judgment adjudicating the children dependent and neglected was reversed and remanded for a new trial.

The appeals court did write they are unaware of any published Colorado appellate decisions addressing whether a parent waives their right to a jury trial at an adjudicatory hearing in a dependency and neglect case, if the counsel is there on time, but the parent is not. 

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