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Meanwhile, Darla was filing paperwork of her own. At the Jefferson County courthouse, she handwrote a motion requesting an emergency hearing because she'd never received notice of the last one. She referred to the disclosures that had been made in the Denver Juvenile Court case and wrote that Tony is a "danger to the children" and that allowing him unsupervised visits "would be detrimental to their well-being."
On June 5, Martinez denied her motion, saying that it did not comply with the Colorado Rules of Civil Procedure, primarily because she had not sent notice to her ex-husband's attorney. Darla tried to get an attorney to help, but she and Dan didn't have enough money to pay one, and Metro Volunteer Lawyers told them they made too much money to qualify for help. She filed another motion on her own, but was denied again June 12 on similar grounds.
Michele Roche, an attorney at the Rocky Mountain Children's Law Center who works as a child and family investigator (or CFI, the new term for an SA) says it can be hard for parents who have been in juvenile court to understand how the domestic-relations court works. Divorce cases are voluntary. There's no state involvement. Judges and attorneys don't track down addresses. When an individual moves, it's his or her responsibility to notify the court. And because the state is not the moving party in domestic relations, the state also isn't picking up the tab for anything. Parties to a divorce pay for their own lawyers. Excluding a small minority who qualify as indigent, parents must pay for their own CFIs, too. "If you want counseling or supervised visitation, you get your checkbook out," she says. Thus, the children of parents who can't — or don't want to — come up with a $2,000 to $5,000 retainer don't get an advocate in court.
"Justice is expensive," Roche says. "That's so true in family court, and so sad, because who are the losers? The children." But, she adds, the domestic-relations court isn't set up to handle the most "gruesome" family situations in which children are being abused. That's what the juvenile court is for.
Afraid she'd run out of options in the Jefferson County District Court, Darla hoped for an intervention from the Denver Department of Human Services. DDHS, however, explained that there was nothing they could do unless new accusations of abuse or new information about the old case had arisen.
DDHS intake administrator Booker says the department constantly gets referrals from one or both parents party to a divorce proceeding. "It's an everyday occurrence to get one person who just continually calls in allegations of abuse and neglect," she says. "It's an area where I think, generally speaking, all of the counties would attempt to have those discussions happening in the domestic court."
She says a judge can address concerns of abuse by appointing a child and family investigator. Or, if the judge feels there are child-protection issues, make a referral to human services.
Still, referrals stemming from divorce don't only come from the courts handling domestic issues, and when a parent alleges abuse or neglect, the department will investigate. Then, if evidence exists that the child is being abused or neglected or in imminent danger, the caseworker will ask a juvenile court judge to place a hold on the divorce proceeding, giving DDHS custody of the child. "That judge's expectation and most frequent verbal expression back to us is: 'I want to see you in court having filed a D&N petition within the next 72 hours,'" says Booker. "You can't do step one unless you can take step two, so you would need to have evidence that really corroborates the children are in danger."
In June 2005, the agency did have evidence — in the form of Ethan's disclosure to the forensic interviewer — that the children would be in danger if they had unsupervised visits with their father. The D&N case was opened based on that evidence. After a few months, however, the agency and court thought that the case could be resolved informally. "The court can enter an informal adjustment once they feel the questions or concerns [that opened the case] have been addressed and the family has agreed to do certain things," Booker says. "If they do those things, after six months [the case and the agreement] completely go away. It's not a permanent custody arrangement."
Tony's attorney, Gary Gottesfeld, claims that since the juvenile court case was resolved via informal adjustment, neither the agency nor the court felt the children were in danger. "[Darla] has made some serious allegations," Gottesfeld says. "Had anyone felt those were accurate, there never would have been an informal adjustment, which is basically an agreement to resolve somewhat minor problems. Normally, if there are concerns the children might be subject to sexual abuse in the future, there would be much more intensive procedures implemented than an informal adjustment. But even the fact that the informal adjustment was successfully completed would generally dictate that those professionals did not have any concern about the possibility of ongoing sexual abuse."
Barb Shaklee, assistant director of the human services legal section for the Denver city attorney's office, says she wouldn't use Gottesfeld's exact characterization: "Typically, [an informal adjustment] is used for cases in which there's a strong expectation that things can be resolved in six months without court oversight. It's a more workable situation.