Dependency & Neglect Case

A dependency and neglect (D&N) case is a civil action brought by a county department of human/social services (Department) and concerns whether a child is abused or neglected. The Court must appoint a guardian ad litem (GAL) to represent the best interests of the child throughout the proceedings. In addition, the court must appoint an OCR attorney to act as counsel for the child subject to the D&N proceedings when the child faces contempt citations and/or the court has determined that the child holds his/her own patient-therapist privilege under L.A.N. v. L.M.B., 11 SC 529 (Jan. 22, 2013). The OCR has oversight responsibilities for both roles.

A child is considered to be dependent or neglected when any of the following allegations can be found by the judge, magistrate or a jury to be true:

A parent or guardian abandons, mistreats, or abuses the child;

A parent or guardian allows another person to mistreat or abuse the child or does not take steps to stop the abuse or prevent it from happening again;

The child lacks proper care through the actions or inactions of the parent or guardian;

The child’s environment is unsafe;

A parent or guardian does not provide the child with necessary education, medical care, subsistence, or other care necessary for the child’s health, guidance, or well-being;

The child is homeless or without care through no fault of the parent or guardian;

The child has run away from home or is beyond the control of the parent or guardian;

The child tests positive at birth for a controlled substance;

A parent or guardian has subjected another child to a pattern of habitual abuse;

In a previous case, the child of the parent or guardian was determined to be dependent or neglected based on allegations of sexual or physical abuse;

In a previous case, the parent or guardian’s abuse or neglect caused the death of a child

A GAL is an OCR attorney appointed by the court to represent the child’s best interests.  Representing the “best interests of the child” means that the GAL does not work in the traditional attorney-client role where an attorney advocates on behalf of the client’s expressed wishes; rather, the GAL must advocate on behalf of the child’s health, safety, and well-being.  The GAL is a party to the D&N proceeding and, therefore, is responsible for filing motions and seeking court orders on behalf of the child’s best interests.  The GAL’s advocacy is independent from all other parties to the action and the GAL’s sole allegiance is to the child’s best interests.  The GAL’s advocacy is governed by the child’s interests and needs.

The roles and responsibilities of a GAL are governed by Chief Justice Directive 04-06, the professional standards governing all attorneys, the attorney’s contract with OCR, and OCR practice standards.  GALs must independently and timely investigate the matters to which they are appointed, make recommendations that are in the best interests of the child, and advocate on the child’s behalf. GALs must meet each child in each placement and communicate with the child and other parties throughout the case.

Specifically, the GAL must:

Attend all court hearings and provide accurate and current information directly to the court

Conduct an independent investigation which includes:

  • Personally interviewing the child and observing the child in placement no later than 30 days after the GAL is appointed to the case (unless the child is placed 100 miles outside the jurisdiction of the court);
  • Personally meeting with and observing the child’s interaction with parents, proposed custodians or foster parents including kinship care providers;
  • Reviewing court files and relevant records, reports, and documents;
  • Interviewing the respondent parents, with the consent of the attorney representing the parent;
  • Interviewing other people involved in the child’s life, including: foster parents; caseworkers; CASA volunteers; relatives; and school personnel, therapists and any other professionals called upon to assess and serve the child’s best interests;
  • Confirming that the county department’s investigation has included a search for prospective kinship, placement and/or adoption or potential tribal affiliation, or personally conducting this investigation if these attempts to reunify fail;
  • When appropriate, visiting the home from which the child was removed;
 Continue to perform an ongoing investigation throughout the duration of the case, including meeting with the child in each new home or placement (unless the child is placed 100 miles outside the jurisdiction of the court) and maintaining ongoing communication with the child, foster parents, caseworker, CASA, and other professionals involved to ensure that the child’s best interests are continually met.

While GALs are the child’s legal advocate and parties to D&N cases, community volunteers, known as CASAs, are appointed in 16 of Colorado’s 22 judicial districts by the court to serve as a support to children and their families and provide helpful information to the GAL and court.  CASAs are trained community volunteers who provide the court with information and make recommendations concerning the best interests and safety of the child(ren). To learn more about the role of CASA volunteers or to find out if you have a local CASA program in your area, please consult the Colorado CASA web site.

In March, 2013, the OCR assumed oversight of attorneys providing counsel services for children subject to dependency and neglect proceedings in two situations:  when the child is facing contempt of court or the court has determined that the child holds his/her own patient-therapist privilege under  L.A.N. v. L.M.B., 11 SC 529 (Jan. 22, 2013).   Counsel for children have a traditional attorney-client relationship with the child as opposed to the best interest representation model of a GAL.  OCR attorneys serving as counsel for children are governed by CJD 04-06, professional standards governing all attorneys, the attorney’s contract with OCR, and OCR practice standards.  Counsel for children advise his/her client about the issues pending before the court and advocates according to the child’s wishes.

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