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People v. Zoller.

2023 COA 117. No. 22CA1612. Mandatory Protection Order—Modification Request—Due Process Clause—Fundamental Right to Parental Association.

December 7, 2023

Zoller was arrested in connection with a domestic disturbance involving his wife H.Z. and minor daughter E.Z. He was charged with (1) first-degree assaultintent to disfigure; (2) second-degree assaultstrangulation; and (3) misdemeanor child abuseno injury. Zoller entered a plea under North Carolina v. Alford, 400 U.S. 25, 37 (1970), to (1) an additional charge of second-degree assault—serious bodily injury and (2) the child abuse charge in exchange for dismissal of the remaining counts. Zoller was sentenced to five years in the custody of the Department of Corrections, concurrent with a 364-day jail sentence, followed by a mandatory three-year parole period. The district court also entered a mandatory protection order (MPO) under CRS § 18-1-1001(1) protecting H.Z. and E.Z. from Zoller. The MPO included a provision specifically prohibiting Zoller from contacting or directly or indirectly communicating with E.Z. “until final disposition or further order of the court.” Zoller was released from prison after serving less than two years of his sentence. About three months later, he moved to modify the MPO to allow contact with E.Z. The district court held a hearing and ruled that due to the extraordinary case circumstances, the MPO would remain in place through the conclusion of Zoller’s parole.

On appeal, Zoller contended that the district court erred by failing to make the specific findings required to maintain the no-contact order because it infringed on his fundamental constitutional right to parental association. The court of appeals concluded that the procedural protections that apply when probation conditions infringe on a fundamental constitutional right should also apply in the context of a challenged MPO. The court held that when a criminal defendant moves to modify an MPO that infringes on the constitutional right to parental association, the district court may not deny the motion without first finding that (1) the infringement is justified by compelling circumstances, and (2) the purpose of the infringement cannot be accomplished by less restrictive means. Here, the court erred by not specifically finding that the purpose of the infringement on Zoller’s right to parental association could not be accomplished by less restrictive means.

Zoller also argued that the district court should make specific findings pursuant to CRS § 14-10-129 (modification of parenting time) and People v. Brockelman, 933 P.2d 1315, 1319 (Colo. 1997) (describing factors to consider before imposing geographic conditions on a probationer). However, § 14-10-129 does not govern the operation or modification of MPOs under § 18-1-1001, so it would be inappropriate for the court to make findings under that statute in this case. Further, the Brockelman factors are inapplicable in the MPO context.

Zoller also contended that the record lacks the necessary evidence for the district court to sustain the no-contact order. Because this is the first Colorado case to require a finding that the purpose of the no-contact order cannot be achieved by less restrictive means, the court did not decide this issue. Instead, it ordered that the district court may, in its discretion, hold an additional evidentiary hearing on remand to address this issue.

The order was reversed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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