The Colorado Lawyer / April 2003 / Vol. 32, No. 4 / 63

Colorado Juvenile Court History:

The First Hundred Years

by Laoise King

This The Colorado Lawyer article was written by Laoise King, Denver, an assistant city attorney working in the child welfare practice group of the Denver City Attorney’s Office— (720) 944-3100, laoise.king@dhs.co.denver.co.us.

Colorado juvenile courts have been functioning for more than a century. This article reviews the history and development of juvenile courts in the state.
The year 2003 marks the 100th anniversary

of the Colorado juvenile

court. Colorado, often characterized

as a leader in the development of juvenile

law, created one of two original

“separate” juvenile courts in the country.1

In 1899, the Cook County Juvenile Court

was founded in Chicago; the Colorado

juvenile court was established soon after.

2 There is some controversy among

scholars regarding the actual founding

date of the Colorado juvenile court, but

most agree that it was established on

March 7, 1903.3 On that date, the Colorado

General Assembly officially created

a separate docket, record, and name for

its juvenile court.4

As society’s awareness of children as a

class grew in the late nineteenth and early

twentieth centuries, the creation and

use of juvenile courts allowed communities

to recognize the humanity of children

and their entitlement to justice. Therefore,

the progress of the Colorado legal

community can be tied to such issues as

how the Colorado juvenile court was

founded and developed, who influenced

it, and what it has become.

This article provides a brief overview

of that historical process. In addition to

being one of the first states to create a

juvenile court, Colorado was a leader in

a number of other areas related to juvenile

law.This article addresses the state’s

enactment of mandatory reporting statutes,

recognition of child abuse as an epidemic,

mandating of the appointment of

guardians ad litem to represent the best

interests of children in dependency and

neglect cases, and emphasis on due process

for juveniles.

Before Juvenile Courts

Were Established

Prior to the establishment of juvenile

courts, juvenile offenders generally were

treated by the law in the same manner

as adults.For example, in larger communities,

juveniles convicted of crimes were

sent to reformatories, which essentially

were miniature labor-intensive prisons.5

Juveniles were prosecuted under the general

criminal statutes in adult courts.

They awaited disposition of their cases

in the county jail, where juveniles were

mixed in with the general adult criminal

population.6

School Law

In 1899, Colorado passed its first law

that distinguished juveniles from adults.

Entitled, “An Act to Compel the Elementary

Education of Children in School

Districts of the First and Second Class”

(“School Law”),7 the law was intended

primarily as a compulsory school attendance

law. However, the School Law contained

some of the same features as the

Illinois juvenile court law.The School Law

was enacted two months before the Illinois

law went into effect and a few days

prior to the passage of the Illinois law.8

The School Law9 provided:

Every child between the ages of 8 and

14 years, and every child between the

ages of 14 and 16 years, who cannot

read and write the English language

or not engaged in some regular employment,

who is an habitual truant

from school, who absents itself habitually

from school, or who is in attendance

at any public, private or parochial school and is

incorrigible, vicious

or immoral in conduct, or who habitually

wanders about the streets and public

places during school hours, having no

business or lawful occupation, shall be

deemed a juvenile disorderly person.

. . .”10 (Emphasis added.)

The School Law provided jurisdiction to

county courts over cases arising under it.

On this basis, it can be argued that Colorado’s

School Law actually was the first

law in the country that created a juvenile

court.

Role of Judge Benjamin Barr Lindsey

Denver judge Benjamin Barr Lindsey

often is credited with generating the first

interest in juvenile law in Colorado. Under

the authority of the School Law, Lindsey

held that a child under 16 years of age

who had committed a criminal act would

be charged with improper conduct. He or

she could be prosecuted as a juvenile disorderly

person rather than as a criminal

under the general statutes.11

Lindsey’s commitment to the cause of

children and the law appeared to come

from a sudden realization that the law

should treat children differently from

adults.12 Lindsey first became aware of a

problem when, as a young lawyer, he was

appointed to represent two criminals

charged with burglary. Lindsey went to the

jailhouse to meet with his clients and found

grown men gambling with two 12-yearold

boys. Outraged, Lindsey approached

the guard and demanded to know why his

clients were associating with children.To

his surprise, he was told that his clients

were the two young boys and that the older

men had “real lawyers.”13 Lindsey was

amazed to find that young boys were incarcerated

with men of the “vilest immorality,”

taking lessons in what Lindsey

called the “high school of vice.”14

Thus, Lindsey began to investigate the

conditions of children in Denver.Through

his research, Lindsey discovered that many

hardened criminals had begun their careers

as juvenile offenders. In an attempt

to help children and deter them from lives

of crime, Lindsey searched the Colorado

statutes and discovered the School Law of

1899. Lindsey began holding an informal

juvenile court under the School Law as

early as 1901.15

The School Law considered juvenile disorderly

persons as wards of the state, to be

corrected by the state in its capacity as parens

patriae.16 This phrase meant that the

state was to act as the parent of all children

in its care, working in the child’s best

interests rather than punishing the child

as a criminal.17 On its face, the School Law

applied only to children who violated it by

playing truant. However, Lindsey construed

the School Law to apply to all children

who violated any criminal law.18

Judge Lindsey’s work was heavily dependent

on the voluntary cooperation of

others because there was no mechanism

in the law to mandate the differential

treatment of juveniles.19 Although the

School Law provided the basis by which

Lindsey established his juvenile court, the

legality of his interpretation was somewhat

uncertain. Therefore, its operation

depended almost entirely on the cooperation

of the district attorney and other court

officials.20

In his courtroom, Lindsey was successful

in persuading the district attorney to

prosecute all charges against children under

the School Law.21 Lindsey’s quasi-juvenile

court also relied heavily on the cooperation

of the school board and teachers,

from whom Lindsey requested reports

on his probationers every two weeks.22

Thus, in early 1902, when Lindsey discovered

the existence of the Illinois juvenile

court law, he quickly addressed the need

for more concrete legislation on which to

base his own juvenile court.23

Establishment of Colorado Juvenile Courts

In 1903, with the encouragement of

Judge Lindsey, the Colorado General

Assembly passed “An Act Concerning Delinquent

Children.”24 That act defined delinquent

children as:

. . . any child . . . 16 . . . years of age or

under such age who violates any law of

this state or any city or village ordinance;

or who is incorrigible; or who

knowingly associates with thieves, vicious

or immoral persons; or who is

growing up in idleness or crime, or who

knowingly visits or enters a house of ill repute;

or who knowingly patronizes or

visits any policy shop or place where

any gaming device is, or shall be, operated;

or who patronizes or visits any saloon

or dram shop where intoxicating

liquors are sold; or who patronizes or

visits any public pool room or bucket

shop; or who wanders about the streets

in the night time without being on any

lawful business or occupation; or who

habitually wanders about any railroad

yards or tracks, or jumps or hooks on to

any moving train, or enters any car or

engine without lawful authority, or who

habitually uses vile, obscene, vulgar, profane

or indecent language, or is guilty of

immoral conduct in any public place or

about any school house.25

The legislation further stated that county

courts were to have jurisdiction over such

delinquent children, but that the county

courts should keep separate records and

dockets for juvenile cases.The act also provided

that county courts handling juvenile

cases should be known as the “Juvenile

Court.”26 Pursuant to the act, children under

the age of 14 were prohibited from being

incarcerated in any “common jail” or

“lock-up” under any circumstances.27

It is important to note that this first juvenile

court included only delinquent children

in its jurisdictional mandate. Therefore,

the court heard cases relating to juveniles

who had committed crimes, but not

cases involving other children in need of

state intervention. It was not until 1907

that Colorado expanded the jurisdiction of

the juvenile court to include dependent

and neglected children.28

Creation of Independent Juvenile Court

In 1907, the General Assembly expanded

the role of the juvenile court by establishing

a juvenile court separate from the

county court.29 Under the “Act Establishing

a Juvenile Court . . . ,” the juvenile court

had original jurisdiction in all criminal

cases involving children, as well as cases

involving the disposition, custody, or control

of any child.30 This included statutory

provisions governing delinquency, dependency

and neglect of children; and other

actions concerning any infant, child, or

minor.31

Cases involving the legal duties and responsibilities

of others toward children also

were defined within the scope of the juvenile

court’s jurisdiction.32 County courts

were directed to transfer all pending cases

within the jurisdiction of the juvenile court

to that court on its organization.33 Trial

by jury was authorized in the juvenile

courts.34 Appeals and writs of error on final

judgments were to be directed to the

Colorado Supreme Court.35

In addition to specifying the jurisdiction

of the juvenile court, the General Assembly

included a strongly worded provision

as to the exclusivity of its jurisdiction.36

County courts were prohibited from exercising

jurisdiction over any cases involving

delinquent, dependent, or neglected

children, as well as other matters37 as spec-

ified in the juvenile court’s jurisdictional

statement.38 An exception to the exclusivity

of juvenile court was made for child

custody proceedings, which were part of

divorce and probate actions.39

The new legislation also included a provision

that legislation creating the juvenile

courts was to be liberally construed.

This was done to ensure concurrent jurisdiction

of the juvenile and district courts

in two kinds of criminal cases: (1) those

that alleged crimes committed by minors;

and (2) those that alleged crimes committed

by adults and that involved the person

or the morals of a child or minor.40

On March 20, 1923, the legislature enacted

a new jurisdictional statement for

the juvenile courts.41 This new legislation

gave the juvenile courts coordinate jurisdiction

with the district and county courts

to hear criminal cases relating to juveniles

under the age of 21, as well as anyone

charged with an offense against or involving

the morals of a person under 21 years

of age.42 The court also was vested with exclusive

jurisdiction in cases concerning neglected,

dependent, or delinquent children,

and against persons contributing to those

conditions.Additionally, the juvenile court

maintained exclusive jurisdiction over cases

concerning adoption, custody, or disposition

of children and their protection from

neglect, cruelty, and abuse, as well as proceedings

concerning “feeble-minded children.”

43

On the same date in 1923, the legislature

amended the dependency and neglect

statute. It was revised to include all

children under the age of 18 in the class of

children who could be deemed dependent

and neglected;44 the prior age limit had

been 16 years of age.45

Judge Lindsey Loses Juvenile Court Seat

In 1927, Judge Lindsey lost his seat on

the juvenile court bench after losing a legal

battle over a close election in 1924.46

This was largely due to a concerted effort

by the Ku Klux Klan to unseat Lindsey,

whom they disliked for his humanitarian,

pro-immigrant, and pro-labor leanings.47

When Lindsey was ousted from office, he

removed the records of the juvenile court

and stored them in his home to keep them

from his more punitive successors. One

night, he and his wife, accompanied by

friends and reporters, destroyed the records.

Lindsey recalled the events of the

evening of September 18, 1927:

At Washington Street the procession

was held up—I had forgotten the gasoline

and matches. Dashing back home

and securing these, I resumed my place

in the procession. Piled in the lot, the

papers were sprinkled with gasoline. I

struck a match and dropped it flaming

into the mass and, as I watched the records

of suffering shrivel, blacken and

turn to ashes, I was happy in the knowledge

that the secrets of thousands of humans

whom I had helped were safe forever

from the public gaze or blackmail

use by agents of the Ku Klux Klan.48

This story illustrates Judge Lindsey’s

commitment and passion to the cause of

preventing juvenile offenders from being

stigmatized by their youthful acts.

From Benevolence To Process

Although the jurisdiction of the juvenile

court was expanding, it still remained distinct

in purpose. Similar to other early juvenile

courts around the country, Colorado’s

fledgling courts focused on “saving”

potentially criminal children from becoming

hardened criminals, rather than focusing

on protecting abused and neglected

children. However, this emphasis by

“child-savers” on preventing criminal conduct

applied to both delinquent and dependent

children.49

In a 1926 tribute to the juvenile court,

Denver attorney James Pershing applauded

this philosophy:

What the ordinary court does to reach

a judgment, the Juvenile Court does to

make a diagnosis, when an ordinary

court pronounces judgment, the Juvenile

Court writes a prescription, and applies

its remedies with the aid of all the

social forces which the community is capable

of exerting. . . . Therefore, except

in a general way, there is very little substantive

law, procedure being the essence

of the matter. . . .With respect to

process: to save a child from becoming

a dependent or a delinquent or from continuing

in a career of crime, to end in

maturer [sic] years in public punishment

and disgrace, the Legislature provides

for the salvation of the child, if its parents

or guardian be unable or unwilling

so to do, by bringing it into court without

any process at all, for the purpose of

subjecting it to the State’s guardianship

and protection. . . . The state, as parens

patriae, takes the place of the father who

has failed in his duty, and delegates the

duty of saving the child to the judge of

the Juvenile Court, who adopts such

methods of reformation as he deems best

suited to accomplish his purpose.”50

This philosophy of saving children from a

life of crime, and focusing on benevolence

rather than process, was prevalent around

the country.51 However, in the mid-twentieth

century, Colorado began to move

away from this philosophy and toward a

more process-oriented system.

Changes in the Early 1960s

In 1960, as the population of Colorado

expanded, the Colorado legislature

changed the population requirement for

the establishment of a juvenile court.The

new legislation required juvenile courts in

every county, or city and county, with a population

greater than 250,000.52

In 1962, Denver pediatrician C. Henry

Kempe and his colleagues published the

landmark article, "The Battered Child Syndrome,”

in the Journal of the American

Medical Association.53 In the article,

Kempe publicized his findings that significant

numbers of parents and other caretakers

physically abuse their children,

sometimes even leading to death.

Kempe coined the phrase “Battered

Child Syndrome” to describe a pattern of

child abuse resulting in certain clinical conditions.

He also established a medical and

psychiatric model of the cause of child

abuse.54 The article was especially significant

because it stated, for the first time,

that child abuse was an epidemic rather

than a rare occurrence. In response to the

article, the U.S. Children’s Bureau held a

symposium on child abuse, which produced

recommendations for a model child abuse

reporting law.55 In 1963, Colorado led the

way by enacting one of the nation’s first

mandatory child abuse reporting statutes.

56

In 1964, the Colorado General Assembly

undertook a widespread restructuring

of the court system.As part of this reorganization,

the independent juvenile court

system in the state was abolished in all jurisdictions

except the City and County of

Denver.57 The move toward abolishing

separate juvenile courts around the state

spurred a constitutional amendment,

which created the Denver Juvenile Court.

This court retained jurisdiction over juvenile

matters in the City and County of

Denver.58 However, jurisdiction over pending

cases in all other counties was transferred

to the juvenile division of the district

courts.59

The Case of Gault and the Children’s Code

The year 1967 was pivotal in the juvenile

court system throughout the country.

In the delinquency arena, the U.S. Supreme

Court held that the juvenile court

did not have unlimited parens patriae authority.

60 The Court in In re Gault61 found

that juveniles had the right to notice of

charges, confrontation and cross-examination

of witnesses, and the right to counsel.

62 This case signaled the end of a court

system that focused on benevolence rather

than due process.63

In Colorado, the General Assembly

adopted the Children’s Code in 1967.The

new legislation expanded the jurisdiction

of the juvenile division of the district court

and the jurisdiction of Denver Juvenile

Court. Among other things, the new Children’s

Code allowed for the appointment

of a guardian ad litem (“GAL”) in specific

circumstances.64 Some legal historians believe

that Colorado was the first state to

mandate the appointment of GALs in dependency

and neglect cases.65 The addition

of attorneys to represent the best

interests of children in dependency and

neglect cases also marked the end of unlimited

parens patriae authority of the juvenile

court and the beginning of a more

formalized, albeit more adversarial, process.

Additional Laws Affecting Children

It was not until 1974, with the enactment

of the Child Abuse Prevention and

Treatment Act (“CAPTA”),66 that GALs

were required to be appointed in all dependency

and neglect cases around the

country.67 In 1974, Congress also enacted

the Juvenile Justice and Delinquency Prevention

Act (“JJDPA”).68 The JJDPA required

that status offenders be removed

from secure facilities and that juvenile

offenders be separated from adults in institutional

settings. Both these federal statutes

eventually were incorporated into

Colorado law.69

In 1980, Colorado revised its Children’s

Code to incorporate provisions of the federal

Adoption Assistance and Child Welfare

Act, also known as Public Law 96-

272.70 This legislation mandated states to

make “reasonable efforts” to prevent removal

of a child from a parent’s home, as

well as reasonable efforts to reunify children

with their parents after removal.

Changes rendered by Public Law 96-272

remain in effect today.71

In 1994, the General Assembly enacted

the Expedited Permanency Planning

(“EPP”) program. The EPP legislation requires

specified counties to implement expedited

timelines for establishing permanency

homes for children under 6 years of

age. In EPP cases, children under 6 years

old generally must be placed in a permanent

home within twelve months.72

In 1997, Congress passed the Adoption

and Safe Families Act (“ASFA”),73 which

generated another major revision to the

Colorado Children’s Code.74 ASFA included

provisions for legal representation, state

funding of child welfare and adoption, state

performance requirements, and a general

emphasis on promoting child safety and

timely decision-making on placement issues.

The Colorado Children’s Code subsequently

incorporated these ASFA requirements.

In the delinquency arena, 1997 also

marked a major policy shift. In response

to Denver’s “Summer of Violence,”75 the

legislature revised several portions of the

Children’s Code relating to juvenile offenders.

This revision marked a shift from

the juvenile court’s long-standing focus on

rehabilitating youthful offenders to purposes

of rehabilitation and a focus on public

safety and accountability of juvenile offenders.

76 The new legislation made it easier

for violent juvenile offenders to be tried

as adults77 and included a “three strikes”

mandatory sentence offender provision.78

Conclusion

Colorado continues to be a leader in innovative

practices to best serve delinquent

and dependent children. In recent years,

Colorado’s juvenile courts have pioneered

programs such as the implementation of

court facilitators, dependency court mediation,

and implementation of special family

courts and drug courts.79 Additionally,

the Denver Juvenile Court remains one of

only two separate juvenile courts in the

country.80 On the centennial anniversary

of the creation of their juvenile court, Coloradans

have reason to be proud.

NOTES

1. National Center for State Courts, Denver

Juvenile Court Review (1990) at 3.

2.Ventrell,“From Cause to Profession: The

Development of Children’s Law and Practice,”

32 The Colorado Lawyer 65, 67 (Jan. 2003).

3. Some argue that Colorado’s juvenile court

was established as early as 1899, when a truancy

law created a status for juvenile offenders

separate from adult criminals; others claim that

the court was not established until 1907,when

the General Assembly created a juvenile court

as a court of record completely separate from

the county court.

4. McCarthy and Carr, Juvenile Law and

Its Processes (Charlottesville, VA: Michie Co.,

1989) at 52. See also Act of March 7, 1903, ch.

85, 1903 Sess.Laws 178.

5. Ryerson, The Best Laid Plans: America’s

Juvenile Court Experiment (New York,NY:Hill

and Wang, 1978) at 31.

6. Id.