Colorado’s second-highest court ruled on Thursday that the requirement for parents to be present when police interrogate their child in custody means only that the parent must be “physically present,” not “mentally present” as well.

Under the landmark U.S. Supreme Court case Miranda v. Arizona, law enforcement is required to inform a suspect of their rights to remain silent and to consult with an attorney prior to interrogating them in custody. A failure to give a Miranda warning means the prosecution may not be able to use the defendant’s statements as evidence at trial.

Colorado law, in turn, requires that the statements of a juvenile in custody are not to be used as evidence unless a parent, guardian or attorney is also present for the interview and hears the Miranda warning.

But what happens if a parent is present, yet distracted, while the interrogation takes place?

A three-judge panel for the Court of Appeals concluded the law does not require parents to be “attentive” during the interrogation. Such an expectation, wrote Judge Karl L. Schock in the Feb. 13 opinion, “would be unworkable.”

“It is one thing for an interrogating officer to ensure that a parent is physically present. It is quite another to ensure that a parent is paying sufficient attention,” he wrote. “And what degree of attention would be sufficient? What about a parent who scrolls through their phone or sends a text message during the interrogation? What about one who is daydreaming or thinking about other things? How would a court — much less an officer in the moment — make that determination?”

In the underlying case, law enforcement in Adams County apprehended a juvenile identified as L.E.R-N. on suspicion of motor vehicle theft and weapons possession.

An officer handcuffed L.E.R-N. and put him in the back of a police car. L.E.R-N. indicated he wanted to talk to the officer and L.E.R-N.’s mother, who was also present, agreed to allow it. The officer gave the Miranda warning and L.E.R-N. and his mother signed an acknowledgment form.

During the interrogation, the mother tried to make multiple phone calls seeking advice on her son’s behalf. At one point, as the officer asked about the suspected stolen car, L.E.R-N.’s mother spoke on the phone with someone. Only after her son had made statements about the car did the mother announce L.E.R-N. should “remain silent, actually.”

“We’re not talking to him,” she added. The officer terminated the interrogation.

During his subsequent prosecution, L.E.R-N. attempted to exclude his statements as evidence. He argued his mother was not “present” during the interrogation because she was distracted.

District Court Judge Katherine R. Delgado rejected the request. Taking a phone call during the questioning “was probably not the smartest thing to do. But she was present during the questioning,” Delgado said.

The Court of Appeals panel acknowledged that “present” could be used to describe physical proximity or mental attentiveness. But it concluded the legislature did not mean to require anything more than parents be there physically during their child’s in-custody interrogation.

L.E.R-N.’s mother “consented to the interview and remained within feet of the officer, where she could hear him speaking to L.E.R-N. And even while on the phone, she remained sufficiently engaged to stop the questioning after just two questions,” Schock wrote. “Thus, L.E.R-N.’s mother was attentive to some degree, and her presence ultimately, if belatedly, served the statute’s purpose.”

He added that it was unclear how a court would even analyze whether the mother was “attentive enough” under the circumstances.

The case is People in the Interest of L.E.R-N.