People in Interest of J.L.R., 93CA1809

• Citation: 895 P.2d 1151
• Case Date: April 06, 1995
• Court: Court of Appeals of Colorado

Page 1151

895 P.2d 1151

The PEOPLE of the State of Colorado, Appellee,

In the Interest of J.L.R., a Child,

and Concerning L.R., Respondent-Appellant.

No. 93CA1809.

Colorado Court of Appeals, Div. I.

April 6, 1995.

No appearance for appellee.

Giese & Lake, Marna M. Lake, Grand Junction, for respondent-appellant.

Opinion by Judge METZGER.

L.R., the mother of J.L.R. (mother), an adjudicated juvenile delinquent, appeals the trial court's order requiring her to pay restitution to the victims of her son's delinquent act. We reverse and remand for further proceedings.

J.L.R., a minor, entered into a plea bargain by which he pled guilty to being adjudicated a delinquent by virtue of having committed acts that, if committed by an adult, would constitute accessory to murder in the first degree. At his sentencing hearing, mother was present in person, but was not accompanied by counsel.

After reviewing J.L.R.'s presentence report and hearing statements from members of the victim's family and from J.L.R., the trial court ordered J.L.R. to pay certain restitution amounts and further ordered mother to pay restitution of $3,500 to the victim's father and $3,500 to the victim's mother. Additionally, it ordered her to pay $2,500 to the Mesa County Victim's Compensation Fund.

Shortly thereafter, mother filed a motion for reconsideration and requested a hearing pursuant to the provisions of § 19-2-703(4), C.R.S. (1994 Cum.Supp.) on the payment issues. The trial court denied this motion, noting that: "These were issues at the sentencing hearing and were decided then."

I.

Mother first contends that trial court erred in ordering her to pay restitution without first conducting a hearing to allow her to present evidence on the issue. We agree.

Section 19-2-703(4) provides:

If the court finds ... that personal injury has been caused to a victim as a result of the juvenile's delinquent act, the court shall enter a sentencing order requiring the juvenile to make restitution for actual damages done to persons or property; except that the court shall not order restitution if it finds that monetary payment or payment in kind would cause serious hardship or injustice to the juvenile ... Restitution shall be ordered in a reasonable amount to be paid in a reasonable manner, as determined by the court.

It goes on to provide:

The court may order the parent, guardian, or legal custodian of the juvenile to make restitution pursuant to the terms and conditions set forth in this subsection (4); except that the liability of the parent, guardian or legal custodian of the juvenile under this subsection (4) shall not exceed the damages as set forth in section 13-21-107, C.R.S., for any one delinquent act. If the court finds, after a hearing, that the parent, guardian or legal custodian of the juvenile has made diligent, good faith efforts to prevent or discourage the juvenile from engaging in delinquent activity, the court may absolve the parent of liability for restitution under this subsection (4).

Mother has not provided, and we are unaware of, any authority directly interpreting this requirement that a parent be obligated to pay restitution. However, since the issue of restitution has been the subject of several appellate court decisions in the adult context, and since restitution is required both under the Children's Code and adult sentencing and probation statutes, the principles contained in the cases interpreting adult restitution statutes are helpful to our resolution of the issue here.

Three overriding requirements must be met before a restitution order can be valid.

First, the person who is required to pay restitution must receive adequate notice that the victim or the victim's family claims damages. Second, there must be notice of the amount of restitution requested. See generally People v. Johnson, 780 P.2d 504 (Colo.1989) (discussing necessity for report, usually presentence report, containing this information).

The third factor is perhaps the most important. That is, that the person obligated to pay must be "given the opportunity to controvert the victim's claimed monetary damages." People v. Johnson, supra, at 508.

Here, the presentence report for J.L.R. provided that the damages sought by the victim's family totalled $9,393.97. Attached to the presentence report were receipts for these expenditures, including hospital and ambulance services, mortuary services, cemetery plot, and headstone cost.

However, there is nothing in the record that indicates that mother was advised either in writing or otherwise that she could be required to pay restitution. Although the trial court at J.L.R.'s sentencing hearing asked mother several times if she had anything to say or if she wished to be represented by counsel, there is no indication the trial court advised her of her potential liability.

Consequently, since mother was not given a meaningful opportunity to controvert the victim's family's claimed monetary damages, we conclude that the third factor contained in People v. Johnson has not been met here. Although she received notice of the amount requested, mother did not receive notice of her potential liability nor of her opportunity to challenge the validity of the amounts sought.

Moreover, because § 19-2-703(4) specifically allows a parent of a juvenile delinquent to present evidence concerning efforts made to prevent or minimize the child's delinquency as a means of avoiding payment of restitution either in part or in whole, the concept of notice becomes even more compelling. The record here is devoid of any indication to mother that she could present such evidence.

Accordingly, because the order here...