Attorney Beth Padilla litigated a case at the Colorado Court of Appeals addressing numerous child welfare issues, including the Indian Child Welfare Act (ICWA).

In the published opinion, the Court of Appeals determined that 1) a foster parent that no longer has the foster children in their care loses standing at the trial court; and 2) a trial court's denial of a tribe's request to transfer jurisdiction to tribal court is a final order based on the collateral order doctrine.

In Colorado, a foster parent may seek to intervene in a child welfare case after having the child in their care for three months. In this case, the children were then moved to a new foster home. The Court of Appeals determined that the original foster family could no longer participate in the proceeding once the children were no longer in their care.

In addition, the Court of Appeals determined that a trial court's denial of a tribe's motion to transfer the case to tribal court was a final order for appellate review. The Court of Appeals applied the collateral order doctrine and explained that "The collateral order doctrine permits — in limited circumstances — appellate review of an interlocutory order despite its non-final nature." 

The full decision can be found here: law.justia.com/cases/colorado/court-of-appeals/2019/18ca1478.html
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Padilla Law, P.C. is excited to announce their new office location in Durango. Effective May 16, 2019, Padilla Law will be located at 1099 Main Avenue, Suite 321, Durango, Colorado 81301. The firm's mailing address will remain P.O. Box 2835, Durango, Colorado 81302.

Please call the firm for an appointment.

Paul Padilla was co-counsel in a case decided by the United States District Court of New Mexico in 2014. The case involved subterranean  trespass and forced pooling in an oil and gas matter. It established subterranean trespass as a case of first impression. Paul successfully litigated the case. The case is published on Westlaw 2014 WL 11512599.

Beth Padilla recently served as Office of the Child's Representative firm faculty for a training at the National Institute for Trial Advocacy (NITA) in Boulder, Colorado.

Padilla Law has exciting updates!

• Beth Padilla recently received the Jim Covino Advocate of the Year Award from the Colorado Office of the Child's Representative. 
  Jim Covino (1946-2010) was a Colorado attorney who dedicated his legal career to the pursuit of justice for those less fortunate in society, including children involved in the court system. He served as a founding member of the OCR Board and played a pivotal role in shaping the organization and GAL practice into what it is today. A highly skilled trial attorney, Jim brought a level of integrity and intensity to the practice of child welfare law that served as an example to others and tremendously benefited clients. This award recognizes an attorney who demonstrates Jim’s example of exceptional advocacy skills, integrity, and compassion in their representation of children.

• Padilla Law is excited to announce the opening of a second office in Mancos, Colorado. Padilla Law is dedicated to serving the legal needs of La Plata and Montezuma Counties. Be sure to call the office for an appointment because the lawyers are working out of two locations. The Mancos office is located at 114 North Main, Mancos, Colorado 81328.

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• For the third year, attorney Beth Padilla was chosen as a Rising Star by Super Lawyers magazine. She was selected to the  2019 Colorado Rising Stars list, an honor reserved for those lawyers who exhibit excellence in practice. Only 2.5% of attorneys in Colorado receive this distinction. 

--Beth Padilla

Often times grandparents serve a critical role in their grandchildren’s lives. Unfortunately, when parents go through a divorce, a grandparent’s ability to continue his or her relationship with the grandchildren can suffer. In Colorado, a grandparent may file a motion to intervene and request grandparent visitation in certain types of cases. Specifically, C.R.S. 19-1-117 allows a grandparent or a great-grandparent to ask the Court for reasonable visitation rights if there has been a child custody case (which can include a divorce or custody case between unmarried parents).
 
If the grandparent decides to seek a Court order for visitation, he will likely need to file a motion to intervene first. If the motion to intervene is granted, the grandparent becomes  a party to the child custody proceeding. Then, the grandparent must file specific documents to request Court ordered visitation.
 
Many grandparents do not want to be a party to his or her child’s divorce case. Sometimes grandparents choose to hire an attorney and try to negotiate grandparent visitation with the parents. If that is successful, the parents can file a notice with the Court indicating they agree to the grandparent visitation.
 
Child custody proceedings and divorces are hard for the entire family. Ensuring grandparents continue to have contact with their grandchildren can be very important to families. 

-- Beth Padilla

Are you caring for a child pursuant to a guardianship? Are you a grandparent who has custody of his grandchildren? Sometimes, families decide that adoption is the best option for children and seek to terminate the parent's parental rights.

In Colorado, an individual may file a motion to terminate a parent’s parental rights under limited circumstances, pursuant to C.R.S. 19-5-203(1)(j). First, it is important to understand that it is against public policy for a parent’s parental rights to be terminated unless some other adult is going to adopt the child. For example, if a mother files a motion to terminate the parental rights of the father, but there is no other adult willing to take the father’s parental rights, the Court is likely to deny the motion.
 
A parent’s parental rights may be terminated if the parent has failed without good cause to provide financial support to the child or has abandoned the child for a year or more. Filing a petition to terminate a parent’s rights on this basis is not a guarantee that the Court will grant the motion and a hearing is required. The person seeking the termination must serve the parent with all of the paperwork and the parent will have an opportunity to tell the Court why his or her rights should not be terminated.
 
If a person is successful in terminating a parent’s parental rights, the person may then seek to adopt the child. Private terminations and adoptions are a complicated part of the law and seeking legal representation can be helpful. 

--Kayla Mahoney, Legal Intern​

​Beginning August 9, 2017, it will be legal to use force in order to rescue animals or people from dangerous cars. However, there are a few things to know in order to be immune from criminal or civil liability.
 
Who is Protected?
CRS 13-21-108.4 protects “at-risk persons” which are at risk adults, at risk adults with an intellectual or developmental disability, at risk elders (people over the age of 70), or at risk juveniles (people with a disability under the age of 18). Dogs and cats are also protected; livestock is explicitly not protected under the new law.
 
Prior to Breaking a Window
First, you must have a reasonable belief that the at-risk person or animal is in “imminent danger of death or suffering serious bodily harm.” Second, you must make a reasonable effort to find the owner or person driving the car. Third, you have to ensure the car is locked and that the only way to enter is by force. Fourth, you have to contact law enforcement (fire department, animal control, or 9-1-1) prior to breaking a window. Make sure to document and report to law enforcement the color, make, model, license plate, and location of the car.
 
Breaking a Window
If you need to use force to rescue, do not use any more force than is necessary. For example, if breaking one window will suffice, don’t break all the windows.
 
After Breaking a Window
You must remain with the person or animal near the vehicle until law enforcement arrives and not interfere with their official duties.
 
If you have to leave before law enforcement arrives, you must (1) place a note on the windshield of the car and include your name and contact information and (2) inform law enforcement that you must leave, include your name and contact information. It is important to note that this applies even if you are leaving to take the person or animal to seek medical help. If that is the case, you must also leave the name and contact information of the place you are taking the injured on the note left on the driver’s windshield and also provide the information to law enforcement.
 
Things to Remember about Rending Emergency Services

• This law does not apply to law enforcement vehicles.
• According the ASPCA, animals shouldn’t be left in cars when the outside temperature is above 70 degrees, even with windows down. However, the Colorado law does not have a minimum or maximum temperature to render emergency services.
• To determine if it is appropriate to use force to render emergency services, you must have a reasonable belief it is necessary. A reasonable belief is one that an average person of sound mind would also have.

 
In Conclusion
Although the new law may provide some protection if an animal is in danger, we do not recommend breaking windows. Utilizing the new law should be an absolute last resort and may not protect a person from being charged with a crime. 

--Paul E. Padilla

On June 20, 2016, the U.S. Supreme Court issued a ruling in Utah v. Strieff that allows the police to use evidence in a criminal case, even when the police collect the evidence unconstitutionally.
 
The general rule is that if the police violate your constitutional rights when collecting evidence, they are not allowed to use that evidence to prosecute you in a criminal case. Although there are exceptions to this rule, it is a right created by the 4th Amendment of the U.S. Constitution. In short, the police cannot benefit from breaking the rules.
 
In Utah v. Strieff, the Supreme Court expanded one of the exceptions to the rule, which will allow the police to use evidence against you, even if the evidence is collected illegally.
 
In this case, the police were watching a house where they thought drugs were being sold. They saw a man walk out of the house and down the street. The police had no evidence that the man had committed any crime. The police stopped the man and demanded his ID. When the man gave the police his ID, they learned that he had an arrest warrant from a completely different crime, so they arrested him. As they arrested him, they discovered methamphetamine in his pocket, which was used against him at trial.
 
When the police first stopped the man, it was an illegal stop because the police did not have any evidence to believe that the man had committed a crime. Before this case, the drugs found in the man’s pocket could not have been used in his prosecution because the police violated his constitutional rights.

But, this case now allows the police to use the evidence in prosecution, even if the original stop was illegal. The Supreme Court expanded a rule called the “attenuation doctrine” so a court will now consider three factors to decide if the police can use the evidence:

1. temporal proximity (timing between the police’s illegal activity and finding the evidence);
2. intervening circumstances (the relationship between the reason for finding the evidence and the illegal activity); and
3. purpose and flagrancy of misconduct (what kind of illegal activity did the police do).

 
This test is very dangerous for ordinary citizens, because it gives the police an incentive to conduct illegal searches with the possibility of finding very bad evidence. 

For example, the police could pull over a car for no reason, with the hope that the driver has an arrest warrant, past due child support, or drugs in the car.  Essentially, it will reward the police for making illegal stops, as long as the illegal activity is minor (stopping you on the street or pulling your car over) and does not relate to the reason for the illegal search (they stop you while driving, but find that you have bail violations for other crimes).

The Court's full decision is below:

-- Beth Padilla
 
Many families are faced with difficult situations where a parent is not able to care for his or her child. In that situation, it is not uncommon for a grandparent, aunt, uncle, or other relative to step in to care for the child until the parent is able to do so. It is important to ensure the caregiver relative has the appropriate legal documentation in place to care for the child. For example, in an informal arrangement, the caregiver may not be able to enroll the child in school or seek routine medical attention for the child.
 
Some caregivers will choose to petition the Court for guardianship. In Colorado, we have three types of guardianship: (1) emergency guardianship, (2) temporary guardianship, and (3) guardianship.
 
The Court may appoint an emergency guardian pursuant to C.R.S. 15-14-204(5) when the normal procedures for appointment of a guardian will “likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor.” An emergency guardianship cannot last for more than sixty (60) days.
 
Another option is for the caregiver to file for temporary guardianship. The Court may appoint a temporary guardian pursuant to C.R.S. 15-14-204(4) “upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor.” A temporary guardianship cannot last for more than six (6) months.
 
The final option would be to seek a full guardianship. A guardianship will last until the child reaches eighteen (18) years of age.
 
There are many considerations when deciding whether to petition the Court for a guardianship. It is important to remember that every situation is different and this brief explanation of guardianship is only one part of a very complex legal situation.