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Termination of Parental Rights Also Terminates Financial Responsibility in New Mexico

11/19/2013

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-- Paul E. Padilla

This week, the New Mexico Court of Appeals ruled that if a parent’s parental rights are terminated, his or her financial responsibility for the child is also terminated. 

Previously, if the New Mexico Human Services Department terminated a parent’s rights, the parent still had to pay child support to the other parent or the State, if the child was in foster care.

In Colorado, if the Department of Human Services terminates a parent’s rights, the parent no longer has to pay child support.  However, if a parent voluntarily relinquishes his or her rights, they still have to pay child support.  This distinction is to ensure that parents don’t abandon their children simply to avoid financial responsibility.

However, in New Mexico, because the Court of Appeals created a new rule based on the circumstances of a single case, rather than creating a statute that makes a distinction between voluntary and involuntary termination, parents can potentially end their financial responsibility by giving up their parental rights.

Unfortunately, this may incentivize many parents to simply give up their parental rights to avoid paying child support.

The New Mexico Supreme Court may still reverse this decision.  However, until it does, there is no distinction between voluntary and involuntary termination, which may cause significant problems in enforcing child support orders.

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Padilla Law, P.C.: An Intern's Perspective

10/11/2013

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-- Martha Burwell, Pre-Law Intern for Padilla Law, P.C., Summer 2013

Spending the summer working with Beth and Paul Padilla has not only been meaningful, but also extremely interesting, educational, and fun.  On my first day, the Padillas showed me around the office, including the small desk and computer that they had purchased especially for their new intern – or in other words, for me—to use.  Then Beth and I went straight to court for a hearing, and quickly back to the office where I observed a client meeting conducted in Spanish.  This high-paced work would continue for the next 4 months, while I spent about 10 hours a week in the office, in the court room, and even delivering subpoenas.

Since I have an interest in human rights and immigration, and I speak Spanish, about three quarters of my work was done with Beth.  She taught me how to draft letters to clients, and how to put together petitions for immigration clients, by sorting through evidence and creating exhibits.  She also gave me some tools for conducting legal research.  I was invited to sit in on client meetings, which often took place in Spanish, where I observed first hand the complex world of immigration. 

At first, this work which was so new to me seemed a little abstract; however, it was all made real when I met the clients with whom Beth was working.  This was really making an impact on their lives—she was helping them become U.S. citizens. 

Another side of Beth’s work which interested me was her role as Guardian Ad Litem, where she represents the best interests of children.  Beth advocates for children who have few others to speak on their behalf.  Although the hearings could be tough to watch, it was very interesting to see the integral importance of the role Beth plays.

Some of my time was spent with Paul, who also proved to be an adept and enthusiastic teacher.  He invited me to observe in court, and spent time explaining legal concepts, going over the cases he was involved in.  It was particularly interesting to follow one case, in family law, all the way through, and see the results.  He also emphasized to me a very important trait to have as a lawyer: meticulous and detailed organization. 

I experienced another aspect of law with Paul—delivery of subpoenas.  While delivering letters, in person, which order the recipient to testify in court, I saw many faces change to confused, angry, happy, scared, or apathetic.  An interesting job to say the least!

My internship culminated with a VAWA case.  VAWA stands for the Violence Against Women Act, and for women immigrants, it is extremely important.  VAWA states that any woman who has been abused by her U.S. citizen spouse, can petition for herself to become a lawful permanent resident, rather than wait for her spouse to petition on her behalf, as the law normally requires.  This was a heart-wrenching and complicated case, but with Beth’s guidance, I put together the extensive exhibits, with overwhelming evidence in the client’s favor.  I have yet to hear the results of the petition, but I very much hope it is approved and the client can free herself from the cycle of violence. 

Going to law school is an enormous investment.  I have asked myself countless times if this purchase of education is worth 25 years of debt.  Interning at Padilla Law was a chance to really see what being a lawyer means, in a day-to-day sense.  How would my time be spent?  Would I enjoy it?  Would I thrive at it? I am very grateful to Beth and Paul for allowing me the chance to explore this, gaining invaluable insight into what it means to practice law in a small firm – leaving me in a better position to one day embark on my own career in law.

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Attorney Beth Padilla Featured in OCR Quarterly Newsletter

10/7/2013

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Picture
Attorney Beth Padilla was chosen as the first attorney to be featured in the Office of the Child's Representative's quarterly newsletter section entitled, "Meet an OCR Attorney." A portion of the article is re-published below:

"Beth Padilla practices in the Sixth and Twenty-Second Judicial Districts in Colorado. She is licensed to practice law in Colorado and New Mexico.

Q: Why did you choose to practice child welfare law?

A: I studied juvenile and family law in law school and was interested in the subject matter. However, I did not practice child welfare law until I relocated from Denver to Durango, Colorado and opened a firm with my husband, Paul Padilla. I decided to contact OCR on the advice of a mentor and judge. It made sense to me that I might be able to help kids in southwest Colorado because I am bilingual in English and Spanish and have an immigration background.

Q: What has been the most rewarding moment for you while working with
children and families in the dependency and neglect system?


A: One of the first D&N cases I received was a family of three young children. The children were removed from one foster home and placed into another based on allegations of abuse. One of the kids, aged six, was asked by a caseworker who the child would contact if he felt unsafe and he responded that he would call his GAL. I was so excited that he not only remembered me but also would turn to me if he felt unsafe in his new placement.

Q: What drives you to continue in this line of work?

A: I am driven to continue with child welfare because I really think I can
help the kids in these cases. The kids in dependency and neglect cases need an adult they can talk to and that is looking out for them. I try to be that
adult."

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Romney Statements About Amnesty Inaccurate

11/16/2012

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-- Beth A. Padilla

Although I have no desire to discuss politics or the recent election, I feel it is important to discuss the current state of immigration law as it relates to Mitt Romney's statements about "amnesty" and undocumented children in the United States.

President Obama established a program in June of this year called Deferred Action for Childhood Arrivals (or DACA). DACA allows young undocumented individuals to receive work authorization in the U.S. and protection from deportation for a period of two years.  The requirements to qualify for DACA include:
  • You must be between the ages of 15 and 31;
  • You came to the U.S. before the age of 16;
  • You have been in the U.S. for 5 years; and
  • You have no serious criminal activity.

If you qualify for DACA, you must turn yourself in to the Department of Homeland Security and include evidence of the above qualifications in your application for the program.

DACA is not amnesty and it has nothing to do with the DREAM Act. It does not allow anyone to become a resident, a citizen, or to vote in the U.S.

Therefore, it is unclear why Mitt Romney has stated that President Obama gave amnesty to anyone, or that amnesty is now available.  In general, his statements regarding immigration law are wholly inaccurate.

http://www.bbc.co.uk/news/world-us-canada-20344750
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New Immigration Law Could Impact 2 Million Young People

8/15/2012

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A new immigration policy called Deferred Action goes into effect today. The law will allow certain young people protection from deportation for two years and the ability to work legally in the United States. The new law does not allow undocumented young people to stay in the United States forever or allow them to become citizens.

To qualify for Deferred Action you must:

-    Be between the ages of 15 and 31;
-    Have entered the U.S. at least 5 years ago;
-    Have entered the U.S. when you were younger than 16;
-    Have graduated from high school, obtained a GED, or currently be in school,
     or served in the U.S. military;
-    Not have any felony convictions or serious misdemeanors 
     (Note: one DUI is considered a serious misdemeanor); and
-    Have been present in the U.S. on June 15, 2012.

Deferred Action has been misrepresented in the media as a “path to citizenship” or “amnesty.”  This is simply untrue.  Deferred Action requires undocumented young people to turn themselves in to the federal government, pass a background check, and then the government will “defer action” on their deportation case for two years.  

While Deferred Action is an exciting program for many young people that
want to work legally in the U.S. to support their families, it is certainly not
the DREAM Act.  But, Deferred Action is a step in the right direction for undocumented young people.

If you think you may qualify for Deferred Action, please speak with an immigration attorney before beginning the process.



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Preventing Child Abduction And Kidnapping By A Parent

7/27/2012

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For many people going through a divorce or separation, it is a concern that the other parent may take the kids out of the state without permission. Even more alarming is the possibility that they make take the children out of the country.

Believe it or not, it may be considered kidnapping when a parent takes a child out of the state without permission from a court, if there is a divorce or other legal proceeding taking place.

If you have these concerns, you may have legal options to provide safeguards against parental kidnapping. Unfortunately, many parents find themselves in exactly this position when families live near the state border (as many do in Durango), or when one parent is not a citizen of the United States.

In Colorado, the legislature recognized the difficult position that a parent faces when he or she believes the other parent is going to take the kids from Colorado without permission. To address this problem, a parent may seek an Abduction Prevention Order from the court.

If the court believes that your child may be abducted, it can make court orders to protect your child. The court has the power to protect your child from abduction and can order any of the following actions to prevent a kidnapping:
  • Restricting the child’s ability to travel;
  • Prohibiting the parent from taking the child outside Colorado or the U.S.;
  • Prohibiting the parent from taking the child from day care or school; and
  • Requiring that the child’s name be placed in the U.S. Department of State’s Child Passport Issuance Alert Program.

Although these are the major things that a parent can do with a Abduction Prevention Order, there are also many other options that may be available depending on your circumstances.

Although an Abduction Prevention Order may not prevent all child kidnappings, it is a great tool for a parent that believes his or her child may be taken out of the state or country without permission.

When a court enters orders against a parent, it sends a strong message that the minor child is to remain in the state of Colorado.

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To Super-Size, Or Not To Super-Size...The Big Fight Over The Big-Gulp

6/1/2012

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This week, the New York Dept. of Health announced a new measure, sponsored by Mayor Bloomberg, to ban the sale of large sodas and other sugary drinks, 17 ounces or larger. The ban would apply to restaurants and any other establishments that receive health inspections for food service.

Mayor Bloomberg explained that the measure is a direct attack on obesity and its related health issues. Multiple studies released over the last several years indicate that obesity is now the most costly and serious health issue in America, having overtaken other health problems such as smoking and cancer.

Soda consumption is at the forefront of the obesity issue, and I was surprised to learn that a 17-ounce soda contains approximately 27 cubes of sugar and a 51-ounce soda contains approximately 87 cubes. Mayor Bloomberg argues that by limiting the size of sodas and other sugary drinks, consumers will consume less. Additionally, Mayor Bloomberg cites studies that show consumers are less likely to buy two sodas at a time, even if they want more than a 16-ounce drink.

In all honesty, I am very conflicted over this issue. On one hand, I applaud Mayor Bloomberg for taking a proactive stance on a serious and growing national epidemic. But, on the other hand, the idea of the government limiting the amount and type of beverage that comes with a value meal sends shivers down my spine.

I advocate for self accountability and responsibility. I believe everyone must sleep in the bed that they make. But, the deciding factor that I see with this issue is its affect on kids. The ban does not restrict sales in grocery or convenience stores. So, parents are free to buy and keep their houses stocked with whatever they choose.  Also, anyone can go into a corner store and buy any kind of soda or drink that they want. Therefore, the major impact of this ban on fast food restaurants, where many kids order and purchase food on their own.

Because the practical effect of the ban is to limit the negative repercussions of fast food and take-out, and it doesn’t really do more than that, I support the measure.  Although it’s always a slippery slope when creating new regulations and limits imposed by the government, on balance, I think Mayor Bloomberg’s measure does more good than harm and I hope it ultimately gets passed.
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It's All Fun & Games, Until Someone Loses An Eye

5/25/2012

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As the Memorial Day weekend approaches, people throughout Colorado and New Mexico are dusting off their camping gear, filling coolers, and heading out into the mountains, parks, and lakes. With the already-hot weather that the Rocky Mountain region has experienced this spring, it’s an ideal time to get outdoors and enjoy the sun.

However, not wanting to be the wet blanket, a major aspect of the holiday weekend is also the liability associated with thousands of people flooding into the back country, looking to cut loose.

Both Colorado and New Mexico experience huge swells of people looking to get out of the metro areas and partake in the amazing natural resources available. But, those swells of people also create significant risks and hazards.

Recreational businesses like whitewater rafting, horseback riding, and numerous other guided activities see this weekend as a major money-maker (which it is).  And, as the crowds build on the rivers and hiking trails, many of the outdoor businesses scramble to accommodate the increased demand. As a result, safety and common sense sometimes take a back seat to trying to put more people on the river and making more money.

In both states, the legislatures have passed numerous laws that specifically regulate many of the outdoor activities, including equine activities (horses), shooting ranges, whitewater rafting, ballooning, skier safety, and snowmobiling. These laws are in addition to the more broad laws and regulations covering motor vehicles, fishing and hunting, federal and state lands, and business licensing.

While no one wants to quickly review C.R.S. § 33-32-101 et seq., regulating River Outfitters, before they put their friends and family on a whitewater raft, it is important to remember that these laws do exist and they may determine who is liable if an accident does happen.

It is important to have fun and enjoy the holiday, but it is equally important to be careful and be conscientious of those around you.  So, get out of town this weekend, enjoy the sun, and watch out for all those other crazy people trying to do the exact same thing.
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Quick Fixes Lead To Lasting Problems

3/27/2012

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Several years ago, I saw a wonderful sign hanging in a leather repair shop that read as follows:

1) Fast,
2) Good,
3) Cheap.
Pick any two.

The simplicity and brilliance of that sign is undeniable.

Recently, that sign came to mind as a friend and new client discussed a situation he was facing. It suffices to say that my friend turned to an online legal service for general business advice and documentation for a project. After chastising him for not picking up the phone and giving me a call ahead of time, we discussed how I could help.

Although I have seen TV commercials, billboards, and other ads for online legal services, I have never known anyone who used them. I am an advocate of affordable legal services and I don’t think legal advice should require a second mortgage or promise to name your first born after your attorney.  So, I always considered those services to be a good alternative that filled a need for run-of-the-mill legal issues (if there is such a thing).

However, I was shocked to learn that not only are online legal services not very affordable, but they may end up costing you more than if you had gone to an attorney in the first place, because you may need to fix problems that the services create.

After reviewing my friend’s documents, I identified several issues that needed to be fixed. While all of the documents were technically sound (meaning that they were free of typos and did create legal rights), they were filled with things that could develop into critical issues for him down the road. Some of the major issues included:

1) A waiver of legal notices;

2) Relying on and referring to other entities that my friend had no idea who they were, what they did, or that they even existed; and

3) Creating an opportunity for someone to take an ownership interest in the entity without my friend’s approval.

I won’t identify the online service that was used (to avoid the libel claim against me), but I will say that I am now generally leery of online legal services.  My naïveté has faded and, not wanting to sound like a self-promoting attorney, I highly recommend avoiding such online services.  While the click of a mouse may make you feel productive and put your mind at ease today, the ripple effect of the quick fix can be disastrous.

If for nothing else, let my friend’s experience serve as an example that taking the time to understand what you need and how to get it done efficiently and affordably will payoff in the long run.  As my mother always says, “measure twice, cut once.”

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Non-Traditional Solutions for Non-Traditional Couples

3/21/2012

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There is a growing trend –specifically among young adults– where classic social norms and institutions, such as marriage, are not as important as they used to be. In an age where more and more marriages just aren’t “sticking,” and the divorce rate is higher than the success rate, more people are waiting longer to get married, or they are flat-out rejecting the concept of marriage. Additionally, as the issue of homosexual marriage continues to fight its way across the country, more and more young adults are faced with a scary reality: what do I do if something bad happens to me or my significant other?

The traditional concept is that young people fall in love, get married, and go along their way. Through the institution of legal marriage, each spouse is given certain rights to property, to decision-making, and to visitation of the other spouse. But, as more people live together without ever legally establishing a marriage (or are prevented from doing so), those rights are limited.

However, for those living in a non-traditional relationship, there are some easy and important steps that you can take to create important rights and remove the uncertainty of living with someone as an unmarried couple (at least as it relates to legal rights).

There are a handful of useful documents that can be created easily and cost-effectively, and which provide security for you and your significant other. The main documents include: 1) a Designated Beneficiary Agreement, 2) a Durable Medical Power of Attorney, 3) a Living Will, and 4) a Disposition of Last Remains. And, despite the daunting legalistic names, these documents and their purposes are relatively easy to understand.

Designated Beneficiary Agreements
Probably the most useful and easy of these documents, the Designated Beneficiary Agreement allows two people to create legal rights on behalf of each other. Under Colorado law, there is a standard form that allows two people to enter into a contract to give each other rights.  Out of the 16 rights that the document may create, probably the most important include the following:

- The right for hospital visitation;
- The right to participate in health care decisions for the other person; and
- The right to inherit property from the other person without a will.

However, there are several important things to know and understand about the agreement. The most important are:

- Neither party can be married;
- Neither party can be part of another designated beneficiary agreement;
- Any other “superseding legal document” will prevail (meaning a Will or the other legal documents listed in this article will trump the agreement);
- The agreement must be filed with the Clerk and Recorder's Office where at least one of the designated beneficiaries lives; and
- The agreement can be unilaterally undone by either of the people in the agreement.

Durable Medical Powers of Attorney
This is a customized document that will require an attorney’s help to complete. But, the document can be as simple or complex as you need it to be. The general idea of a Durable Medical Power of Attorney is that the document lists one or more people that you trust and who you want to make medical decisions for you, if you are ever injured and are unable to make health care decisions on your own. In the document, you can also include your personal wishes and explain how you want things to be done on your behalf.

Living Wills
Under the Colorado Medical Treatment Decision Act, a person can create a Living Will that tells a hospital or other health care facility what you would like done if you are ever in a terminal or unresponsive condition. This means that if you are ever in an accident or have a disease where the doctors think you will not recover, the document will tell them what you want done. Generally speaking, if doctors decide that you lack “decisional capacity to accept or reject medical or surgical treatment” you have three options: 1) stop life sustaining treatment, 2) continue life sustaining treatment, or 3) continue the treatment for a limited time.

This is similar to the Designated Beneficiary Agreement, because it is a very simple form that can be completed in a matter of minutes. And, you can make the decisions well in advance of any potential accident.

Disposition of Last Remains
Finally, it is a very stressful experience to make decisions, such as funeral arrangements, for loved ones who have passed away. So, in order to simplify the process and to ensure that what you want done is actually carried out, a Disposition of Last Remains is a simple document that explains what you want done, and who you want to do it, once you have passed away. Similar to the Durable Medical Power of Attorney, this is a document that you should have an attorney help you create, but it can be a very simple and cost-effective process. Things you can put in the document include whether you want to be buried or cremated, religious ceremonies, and anything else important to you.

While these documents can be very useful, please remember that not everyone needs all of them. Also, it is a very scary and unpleasant thing to think about potential accidents. But, these documents can make unpleasant situations much more manageable.

So, it is important that if you think any of these documents may be useful to you, you should speak with an attorney or conduct more research on your own to fully understand what to do.
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    Padilla Law, P.C.

    First Draft is a collaborative effort between Beth and Paul Padilla, both equity partners in the firm, and is intended to give you a brief overview of current legal topics and let you know what effects those issues may have in your life.

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