The Colorado Supreme Court announced on Monday that it will decide whether a judge’s reduction in the amount of time a parent spends with their child amounts to the kind of “restriction” that requires a heightened justification.

At least three of the court’s seven members must agree to hear a case.

The justices also will address how much authority judges have to resentence a defendant on their remaining convictions after they successfully get one conviction overturned on appeal.

The Supreme Court further indicated it may intervene in a pair of ongoing cases in the trial courts. First, it signaled it could decide whether non-residents of Colorado who serve on the board of a Colorado nonprofit can be sued for misconduct in state court.

Second, the court may get involved in a case in northeastern Colorado’s 13th Judicial District. Because it is a child welfare proceeding, the documents and underlying case information are not publicly available. However, the Supreme Court indicated the case pertains to whether the lawyer for a child may be the one who prosecutes a motion to terminate parental rights.

Parenting restriction

Nicholas Dale, who is also the elected district attorney for Las Animas and Huerfano counties, appealed a 2024 order that addressed his request for a modified parenting time schedule with his son. Originally, with the termination of his marriage, Dale was allowed 160 overnight visits a year. However, with changes in his work schedule, he sought to shift the visitation schedule to accommodate his job.

El Paso County District Court Judge William H. Moller originally said he would allow Dale 142 overnight visits under a revised schedule, but his order ended up affording Dale only 115 overnights. Dale then appealed, arguing Moller had restricted his parenting time and, under Colorado law, restrictions require judges to first find the child is endangered.

“The statute neither defines ‘restrict’ nor offers a test to distinguish an order that restricts parenting time from an order that merely modifies a prior order granting parenting time,” wrote Dale, representing himself. But going from “approximately 160 overnights to 115 overnights (a 28.1% reduction in parenting time – roughly 45 overnights per year) amounts to a ‘restriction.'” 

A three-judge Court of Appeals panel acknowledged neither parent in Dale’s case had requested a “reduction of this magnitude.” However, Judge Ted C. Tow III wrote that restrictions in parenting time address how parents interact with their child — for example, limits on location or supervision — and not the number of visitation days alone.

Because Moller did not impose conditions on how Dale exercised his parenting time and instead just reduced the number of overnight visits, “the endangerment standard was inapplicable. Instead, the court was required to consider the best interests of the child, which it did,” Tow concluded.

Dale appealed to the Supreme Court, arguing child endangerment was required in order to impose the “significant” reduction of his parenting time.

“This issue is of the utmost importance statewide (for any parent of minor children) with far reaching application,” he wrote. “Under these circumstances the reduction was substantial, amounted to a restriction, is a clear departure from legislative intent, and an infringement on public policy.”

The Supreme Court will address the Court of Appeals’ conclusions.

The case is In the Marriage of Dale.

New sentencing after appeal?

Octavio Hernandez-Escajeda pleaded guilty in Jefferson County to burglary, assault and a violent crime sentencing enhancer. He could have served a maximum of 32 years on each count — running consecutively — but a judge instead sentenced him to 22 years consecutively for each offense.

Later, Hernandez-Escajeda sought postconviction relief, arguing his sentence violated the prohibition against double jeopardy because the lesser offense of assault was based on identical conduct to the more serious burglary offense.

The Court of Appeals agreed. It returned the case to the trial court with instructions to vacate Hernandez-Escajeda’s conviction for assault and adjust the sentencing document accordingly.

The prosecution, however, sought to do more than the Court of Appeals’ literal directive, and instead asked for Hernandez-Escajeda to be resentenced entirely. At a February 2023 hearing, District Court Judge Russell Klein believed the appellate court’s “explicit directions” prevented him from adjusting the sentence on the remaining burglary conviction.

“Normally when the court gets opinions back from the Court of Appeals,” he observed, “they say what they mean and they mean what they say.”

The prosecution appealed the decision, which left Hernandez-Escajeda serving a single 22-year sentence. A different Court of Appeals panel determined nothing in the prior appellate decision barred Klein from giving Hernandez-Escajeda a new sentence entirely, so it was fair game for him to impose something other than 22 years.

The prior directive “to perform a particular action did not amount to a prohibition on any other action that the district court had the authority to perform on remand, provided that such other action did not conflict with the remand instructions,” wrote then-Judge Anthony J. Navarro.

Hernandez-Escajeda appealed to the Supreme Court, reiterating that the first Court of Appeals panel gave clear instructions for what Klein needed to do, and he followed them.

The Supreme Court agreed to review whether the second appellate decision correctly described trial judges’ resentencing powers after a successful appeal.

The case is Hernandez-Escajeda v. People.

Organizational dispute

Earlier this year, multiple directors of the Boulder County-incorporated USA Cricket sued their counterparts on the board. They sought reinstatement to their positions following their allegedly improper removals, and claimed other instances of misconduct within the athletic organization’s board.

The defendants sought to dismiss the lawsuit, arguing they had insufficient contacts with Colorado and, consequently, state courts had no jurisdiction over them.

In a June 13 order, District Court Judge Michael Kotlarczyk disagreed. He noted Colorado law authorizes lawsuits to remove a nonprofit’s directors, and the defendants would have had notice they could face such litigation in Colorado.

The plaintiffs’ claims are “based on alleged misconduct by those directors that effectively (if not physically) occurred in Colorado. Colorado law will be central to this dispute,” he wrote.

The defendants immediately turned to the Supreme Court, pointing out two other judges reached the opposite conclusion in recent years with previous lawsuits dealing with intra-USA Cricket disputes.

“Contrary to Plaintiffs’ contention, membership in USA Cricket … alone is insufficient to demonstrate any Individual Defendants purposely availed themselves of the privilege of conducting business in Colorado,” wrote Jeffco District Court Judge Tamara S. Russell in 2023.

The Supreme Court ordered the plaintiffs to respond to the defendants’ petition.

The case is Gona et al. v. Balusu et al.