Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Supreme Court en banc unanimously reversed a judgment concerning parental rights and due process.
According to court records, E.B. was born with multiple drugs in his bloodstream. After his birth, E.B. was admitted to a neonatal intensive care unit for opiate withdrawal. Given the mother’s admitted heroin use and the father, R.B.’s, appearance at the hospital allegedly under the influence, the Jefferson County Division of Children, Youth and Families began dependency and neglect proceedings taking temporary custody of E.B. Upon admissions from both parents, the court adjudicated E.B. dependent as to both of them.
R.B’s failure in a treatment program led to termination efforts and in October 2020, the division moved to terminate R.B.’s parental rights and the juvenile court set a termination hearing for February 2021. Because of the pandemic, the February termination hearing was held via Webex. R.B.’s counsel entered his appearance at the hearing and informed the court R.B. wasn’t present without further explanation of R.B.’s absence.
During the hearing, the juvenile court questioned whether R.B. attempted to login to it, citing the intermittent presence of a virtual participant with R.B.’s name. R.B.’s counsel explained the unknown participant was E.B.’s paternal grandfather who shared R.B.’s name. After a brief recess, the division’s attorney informed the court that E.B. ‘s grandfather had suggested R.B. was attempting to access the hearing remotely.
The court granted another recces to allow R.B.’s counsel to contact him, but those efforts weren’t successful. The counsel noted R.B. had a wi-fi phone which only functioned when connected to the internet which made contact with R.B. difficult. The counsel then requested to continue R.B.’s portion of the case to give him an opportunity to testify. Instead, the court chose to finish with the first witness and go from there, resuming the hearing.
After the division finished presenting evidence, the court invited R.B.’s counsel to call witnesses beside the father, but the counsel declined. During closing arguments R.B.’s counsel renewed a request for a continuance to allow R.B. to testify. The counsel added E.B.’s paternal grandparents notified him R.B. had attempted to login, but lost service after being asked to leave the gas station where he was using their wi-fi. The court denied the request and concluded R.B. had ample opportunity to prepare to join that day and was represented by counsel throughout. The court terminated R.B.’s parental rights to E.B.
On appeal, R.B. argued the juvenile court violated his due process rights, denying the request for a continuance. The Colorado Court of Appeals concluded the juvenile court abused its discretion, finding that while the child’s best interest and need for permanency are key factors for determining whether to continue a termination hearing, those factors must also be considered in the context of the reason for delay — affording the father his due process right to be heard in a meaningful manner. The appeals court reversed the termination order and remanded for further proceedings.
The division and E.B.’s guardian ad litem petitioned the Colorado Supreme Court for review. They asserted that because R.B. failed to demonstrate how his absence from the termination hearing created actual prejudice, his due process claim should fail. The Supreme Court agreed.
The Colorado Supreme Court reversed the Court of Appeals decision. The Supreme Court determined that even if the R.B.’s due process rights were violated by the denial of the continuance, R.B.’s failure to show actual prejudice stemming from his absence defeated any due process claim. The Supreme Court also vacated the appeals court opinion and remanded the case for further proceedings consistent with the opinion.
The Colorado Supreme Court en banc unanimously affirmed a judgment in a case involving the return of property lawfully seized by the government.
James Woo was arrested in 2016 at Seattle-Tacoma International Airport in with connection with the murder of J.T., who recently ended their three-year affair. Woo’s luggage was seized at the airport and officers recovered more property at his apartment in San Francisco. Woo was later charged with first-degree murder in Colorado state court and was found guilty.
Woo appealed his conviction in 2018 and his attorney filed a motion in trial court asking certain seized hard drives be returned to Woo’s family. The motion alleged the hard drives contained personal and financial information, advised that the prosecution objected to the relief requested unless the hard drives were scrubbed of all explicit images of the victim. Woo was amenable to having the hard drives scrubbed, according to the motion.
The court ordered Woo’s counsel to supplement the motion specifying what items Woo wanted from the hard drives and why they were requested. It also asked Woo’s counsel to indicate in the supplemental filing whether there were concerns regarding information that’s protected by attorney-client privilege. Neither Woo’s counsel or Woo supplemented that motion.
Ten months later, prosecutors filed a response opposing the motion. It appeared the response was prompted by a letter from Woo requesting the hard drives, without the protected images of the victim and additional items seized by authorities. Prosecutors declined to comply even with Woo’s alternative request for scrubbed copies of the hard drives.
Prosecutors said the deleted images could be accessed from the scrubbed copies by someone like Woo with his knowledge of computers. The prosecutors also opposed the motion on the grounds that some of the property sought could have been stolen from Woo’s previous employer and could be needed for post conviction proceedings. Woo didn’t reply.
The next month, Woo brought a pro se civil replevin action against the sheriff’s office and district attorney in the 4th Judicial District. Woo didn’t dispute the defendants lawfully seized the property, but he alleged they were wrongfully detaining it.
Woo alleged certain items collected by law enforcement were his and not used as evidence in the criminal trial and lacked any evidentiary value for future proceedings. Woo also sought an award of damages. The defendants moved to dismiss Woo’s complaint and argued the trial court lacked subject matter jurisdiction.
The defendants also asserted Woo failed to provide notice of the claim within 182 days of discovery of his injury which is required by the Colorado Governmental Immunity Act. The defendants argued they were immune from replevin in detention actions under the CGIA. Woo argued he timely provided the notice and contended if the CGIA precluded the replevin in detention action, he was rendered remediless and the CGIA as applied to him, violated his rights under the due process clauses under the federal and state constitutions.
The district court dismissed the complaint with prejudice, adding it lacked jurisdiction because Woo failed to comply with CGIA’s notice requirement. It noted Woo’s motion for the return of the property should be addressed in the criminal case. Woo appealed and that court affirmed, concluding the CGIA bars any replevin action that seeks both the recovery of property lawfully seized by authorities and an award of damages resulting from that detention.
The appeals court also rejected Woo’s constitutional challenge, arguing he could have sought (as to some of the property, he did seek) the return of the property in the criminal case. The appeals court also held Woo failed to show the CGIA’s bar of the replevin in detention action, including the damages request, rendered the CGIA unconstitutional when applied to him.
Woo argued if the CGIA precluded his replevin action, he is rendered remediless and the CGIA, when it was applied to him, violated his rights under due process clauses of the state and federal constitutions.
The Colorado Supreme Court concluded Woo has a remedy in his criminal case to recover any property lawfully seized, and because the high court further concluded the remedy is constitutionally adequate, the CGIA’s bar of the replevin action doesn’t violate his federal and state constitutional right to procedural due process. The judgment was affirmed.