The Colorado Supreme Court recently announced that it will decide whether a series of missteps led an El Paso County judge to improperly terminate a father’s parental rights, and whether a police officer defendant bears the burden of proving that his warrantless vehicle search was legally justified.

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

In July 2022, the El Paso County Department of Human Services initiated a child neglect case involving three children. The county alleged that the father, identified as R.F., was physically abusive and the mother failed to protect the children. Weeks later, the county placed the children in foster care.

R.F. sought family time with the children, but their legal representative requested that any time together be therapeutic in nature. District Court Judge Robin Chittum ordered therapeutic family time as a result.

After both parents admitted the children were neglected, Chittum adopted a treatment plan for R.F. Although R.F. participated in the required therapy, he never received family time, despite repeated requests for contact with his children.

At a hearing, the children’s caseworker testified that the therapists did not believe the children were ready for contact with R.F., and the older children had said they did not want to see him. Chittum agreed that the county had made “reasonable efforts,” but family time “can only be done when the children are ready.”

The county then filed a motion to terminate R.F.’s legal rights over his children, which Chittum granted after another hearing.

A three-judge Court of Appeals panel reversed her decision after finding multiple flaws with how the case unfolded.

First, the panel determined that Chittum ordered therapeutic family time without holding a hearing as the law requires.

Second, at the time Chittum decided that the county was making reasonable efforts to reunify the family, R.F. had experienced no contact with his children for 1.5 years.

“Nonetheless, at the end of the reasonable efforts hearing, the juvenile court found that the Department had been making reasonable efforts to provide family time services,” wrote Judge Timothy J. Schutz in the panel’s March 5 opinion. On top of Chittum’s unlawful initial order, “the Department was also withholding therapeutic family time sessions without a court order to do so.”

Finally, by the time Chittum terminated R.F.’s parental rights, R.F. had not contacted his children for nearly 2.5 years. The appellate panel noted that, even if the children and their therapists did not want contact, the county had “an ongoing obligation” to provide some level of family time.

“The court’s failure to ensure, and the Department’s failure to provide, adequate family time services at any time during the two and a half years prior to termination substantially restricted father’s statutory right to family time and prevented meaningful progress toward reunification of father with his children,” Schutz concluded.

The Supreme Court will review whether the Court of Appeals correctly identified errors in the underlying proceedings.

The case is People in the Interest of S.K.F.

One night in April 2021, Officer Brendan Daves pulled over Christopher Mosley in Aurora for driving without license plates. Daves ordered Mosley out of the car and patted him down for weapons. Finding none, Daves talked to Mosley and returned to his vehicle to run Mosley’s driver’s license in his computer.

Before letting Mosley and his passenger go, Daves searched their vehicle and found a gun. He then arrested Mosley.

Mosely later sued Daves for an unlawful search under the Colorado Constitution. An Arapahoe County jury agreed that Daves did not have grounds to perform a “protective sweep” of Mosley’s vehicle.

During trial, then-District Court Judge Elizabeth B. Volz decided that Daves’ claim of having a legal justification for the warrantless search amounted to an affirmative defense, meaning Daves admitted to the conduct but was asserting a rationale for avoiding liability. Consequently, Volz instructed the jury that it should side with Daves only if he proved that he lawfully engaged in a protective sweep.

A Court of Appeals panel decided her instruction was appropriate, as Daves’ argument was, “at its core,” an affirmative defense.

“Daves does not deny any element of Mosley’s claim,” wrote Judge Melissa C. Meirink in an October 2025 opinion. “Daves concedes that he searched Mosley’s vehicle without a warrant in his capacity as a peace officer but argues that the protective sweep was justified under the circumstances, thereby excusing him from any liability under the statute.”

She noted that defendants in other civil contexts are required to prove an affirmative defense. Further, in criminal law, the prosecution must prove the lawfulness of a police officer’s warrantless protective sweep.

Daves appealed to the Supreme Court, arguing the ruling created “a previously nonexistent burden of proof on civil police officer defendants.”

“Effectively, the plaintiff in a civil case would not be required to prove anything,” wrote Gillian Fahlsing of the Aurora City Attorney’s Office. “Instead, the defendant — the accused party — would need to prove legal justification as an affirmative defense to avoid liability.”

The Supreme Court will determine which side has the burden of proof on the question of a warrantless vehicle search’s lawfulness.

The case is Daves v. Mosley.