Court Opinions- Feb 12, 2018

People in the Interest of C.W.B., Jr.

In this dependency and neglect case, foster parents intervened in the trial court proceedings under section 19-3-507(5)(a) of the Colorado Revised Statutes and participated in a hearing on the guardian ad litem’s motion to terminate the parent-child legal relationship between the mother and the child. The trial court denied the motion. 


Neither the Montezuma County Department of Social Services  nor the guardian ad litem appealed the trial court’s ruling. Instead, the foster parents appealed, seeking to reverse the trial court’s order. 

The question before the Colorado Supreme Court was whether the foster parents had standing to appeal the trial court’s ruling. The Court of Appeals concluded they did. 

The Supreme Court granted the guardian ad litem’s petition for a writ of certiorari to review the Court of Appeals’ decision and  reversed. 

The Supreme Court held that, although section 19-3-507(5)(a) permits foster parents to intervene in dependency and neglect proceedings following adjudication, the foster parents here did not have a legally protected interest in the outcome of termination proceedings, and section 19-3-507(5)(a) does not automatically confer standing to them to appeal the juvenile court’s order denying the termination motion at issue, where neither the department nor the guardian ad litem sought review of the trial court’s ruling. Because the guardian ad litem is statutorily obligated to advocate for the best interests of the child, including on appeal, there was no need to confer standing on foster parents to represent the best interests of the child on appeal. 

The Supreme Court reversed the judgment of the Court of Appeals and remanded the case with instructions to dismiss the appeal. 

In Re 2015–2016 Jefferson County Grand Jury 

This original proceeding arose from a grand jury investigation of petitioner M.W. and his company, I.I. The state suspected that I.I. was manufacturing and distributing a cigarette product illegally sprayed with synthetic cannabinoids. 

As part of the grand jury investigation, the state issued a subpoena duces tecum to I.I’s attorney, Amy Brimah, ordering her to produce all materials related to any representation by her of I.I. and M.W. The state also requested a hearing, outside the presence of the grand jury and before a judge.

Brimah and M.W. moved to quash the subpoena, arguing that the materials were protected by the attorney–client privilege. The state asserted that the crime–fraud exception to the attorney–client privilege applied. Brimah and M.W. disagreed and countered that the district court judge would at least need to review each document to determine whether to strip any document of its privileged status.

The district court denied Brimah’s and M.W.’s motions. It declined to review the documents individually and ordered Brimah to produce the requested materials. Brimah and M.W. petitioned the Colorado Supreme Court for a rule to show cause. 

The Supreme Court held that a two-step process applies when a party seeks disclosure of attorney–client-privileged documents under the crime–fraud exception. 

First, before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney–client privilege has occurred.” 

Second, the court may strip a communication of privilege only upon a showing of probable cause to believe that the client was committing, or attempting to commit, a crime or fraud and the communication was made in furtherance of the putative crime or fraud. 

Because the state failed to make such a showing in the case, the district court abused its discretion in stripping the documents of privilege.

Brimah and M.W. also argued that the district court should have required the state to disclose the applications and authorizations for the intercepts on which it premised its subpoena under Colorado’s wiretap statute, specifically section 16-15-102(9), of the Colorado Revised Statutes. The Supreme Court reversed the district court on this point as well.

Accordingly, the court made the rule to show cause absolute and remanded the case to the district court for further proceedings consistent with the opinion. 

Smokebrush Foundation v. City of Colorado Springs 

Smokebrush Foundation, Katherine Tudor and Donald Herbert Goede, III owned property on which the non-profit foundation operates a wellness center in the City of Colorado Springs. Smokebrush sued the city, contending that Smokebrush’s property had been contaminated by pollutants from an adjacent property owned by the city. Specifically, Smokebrush asserted a number of tort claims for injuries from airborne asbestos released during demolition activities in 2013 and from the subsurface migration of coal tar pollutants created by historical coal gasification operations on the city’s property.

The city moved to dismiss for lack of jurisdiction, claiming governmental immunity from suit under the Colorado Governmental Immunity Act, sections 24-10-101 to -120 of the Colorado Revised Statutes. Smokebrush responded that the city had waived immunity under section 24-10-106(1)(c) and section 24-10-106(1)(f) of the Colorado Governmental Immunity Act. 

The district court agreed with Smokebrush and denied the city’s motion to dismiss. In a unanimous, published opinion, however, a division of the Court of Appeals reversed and remanded with instructions to grant the City’s motion. 

With respect to Smokebrush’s claims regarding airborne asbestos released during the 2013 demolition activities, the Colorado Supreme Court concluded that the city had not waived immunity under section 24-10-106(1)(c)’s dangerous condition of a public building exception. 

Because the complete and permanent demolition of a building does not come within the plain meaning of the terms “constructing” or “maintaining” a facility, the dangerous condition of a public building exception did not apply. 

With respect to Smokebrush’s claims regarding the coal tar contamination, the Colorado Supreme Court concluded that under the plain language of section 24-10-106(1)(f), the city waived its immunity for such claims. 

Specifically, Smokebrush established that the coal gasification plant that generated the coal tar contamination at issue was a public gas facility and Smokebrush’s claimed injuries from the coal tar contamination resulted from the operation and maintenance of that gas facility.

Accordingly, the Colorado Supreme Court affirmed the portion of the division’s judgment requiring the dismissal of Smokebrush’s asbestos-related claims but reversed the portion of the judgment requiring the dismissal of Smokebrush’s coal tar-related claims. 

Previous articleArtificial Intelligence in Hospitals
Next articlePolsinelli to House Colorado Lawyers Committee

LEAVE A REPLY

Please enter your comment!
Please enter your name here