D.  Special Circumstances

C.R.S. § 19-3-506
The following are two special circumstances in D&N proceedings.

1.  Developmentally Disabled or Mentally Ill Child

Developmentally disabled or mentally ill children must be evaluated. The court should refer any child who appears to be developmentally disabled to the nearest community-centered board for an eligibility determination. The court should order a mental health prescreening to be done within twenty-four hours for children who appear to be mentally ill. The court must review the prescreening within twenty-four hours of receiving it. From this review, the court should determine if commitment procedures are necessary and, if so, hold a hearing. The court may delay D&N proceedings for these evaluations.

People in the Interest of R.E., 729 P.2d 1032 (Colo. App. 1986)
2.  GAL Prosecuting Petition

A GAL may object to DHS’ request not to prosecute the petition. The GAL must then prosecute it.

C.R.S. § 13-25-129(1)
3.  Child Hearsay

Out of court statements made by a child that describe acts of abuse of which the child was the victim or witness may be admissible as an exception to the hearsay rule in civil cases, dependency and neglect cases, and criminal cases. Before this evidence is admitted, the party seeking to introduce the statement must give reasonable notice of his or her intention to introduce it and give the particulars of the statement.

C.R.S. § 13-25-129(1)
The court must find in a hearing conducted outside the presence of the jury that:
  • The time, content and circumstances of the statement provide sufficient safeguards of reliability; and
  • The child either:
    • Testifies at the proceedings; or
    • Is unavailable as a witness, and there is corroborative evidence of the act that is the subject of the statement.
People v. District Court, 776 P.2d 1083 (Colo. 1989)
To determine whether a child’s out-of-court statements are reliable, the court should consider the following factors:
  • Whether the statement was made spontaneously;
  • Whether the statement was made while the child was still upset or in pain from the alleged abuse;
  • Whether the language of the statement was likely to have been used by a child the age of the declarant;
  • Whether the allegation was made in response to a leading question;
  • Whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;
  • Whether any other event occurred between the time of the abuse and the time of the statement that could account for the contents of the statement;
  • Whether more than one person heard the statement; and
  • The general character of the child.
People v. District Court, 776 P.2d 1083 (Colo. 1989)
C.R.S. § 13-90-106(1)(b)(II)
A child is unavailable if he or she is not competent to testify. A child is not competent to testify if he or she is under ten years of age and is not able to describe or relate in language appropriate for a child of that age events or facts relating to the case.

Thomas v. People, 776 P.2d 1083 (Colo. 1990)
C.R.S. § 18-3-413(4)
A child is also unavailable if testifying in open court in front of the criminal defendant would cause long-lasting emotional damage.

Crawford v. Washington, 541 U.S. 36 (2004)
People v. Diefenderfer, 784 P.2d 741 (Colo. 1989)
C.R.S. § 13-25-129(1)(b)(II)








People v. Bowers, 801 P.2d 511 (Colo. 1990)
The child’s unavailability does not prevent the child’s hearsay statement from being admitted if the court finds sufficient corroborating evidence. Corroborating evidence is evidence, direct or circumstantial, that is independent of and supplementary to the child’s hearsay statement and that tends to confirm that the act described in the child’s statement actually occurred. Corroborating factors include:

Testimony from an eyewitness, other than the unavailable child-victim;

Statements of other children who were present when the act was committed against the victim;

Medical or scientific evidence indicating that the child was sexually assaulted;

Expert opinion evidence that the child-victim experienced post-traumatic stress consistent with the perpetration of the offense described by the child;

Other independent evidence, including competent and relevant expert opinion testimony, tending to establish the commission of the act described in the child’s statement.

C.R.S. § 13-25-129(2)
If the statement is admitted at a jury trial, the court must instruct the jury in the final written instructions as follows:

During the proceeding the jury heard evidence repeating a child’s out-of-court statement. It is for the jury to determine the weight and credit to be given the statement. In making the determination, the jury shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.