People v. Abdullahi Salah ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 23, 2022
2022COA134No. 2019CA0180, People v. Salah — Criminal Law —
Sentencing — Probation; Constitutional Law — Right of
Familial Association
A division of the court of appeals holds that a condition of
probation that barred a probationer from contact with children
other than his own did not violate the probationer’s constitutional
right of familial association. The probationer had been convicted of
sexual exploitation of a child and violated the condition of his
probation by residing with his sister and minor nephew. The
probationer did not allege or establish any parental role as to his
nephew, which makes this case different from People v. Cooley,
2020 COA 101, on which the probationer relies.
COLORADO COURT OF APPEALS 2022COA134Court of Appeals No. 19CA0180
Adams County District Court No. 17CR4392
Honorable Roberto Ramirez, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Abdullahi Salah,
Defendant-Appellant.
ORDERS AFFIRMED
Division P
Opinion by JUDGE J. JONES
Martinez* and Graham*, JJ., concur
Announced November 23, 2022
Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John Plimpton, Lead Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2022.
¶1 Defendant, Abdullahi Salah, appeals the trial court’s order
revoking his sentences to sex offender intensive supervision
probation (SOISP) and the court’s order resentencing him to SOISP
with the same conditions. He contends that the two probation
conditions he was found to have violated infringe on his
constitutional right to familial association by prohibiting him from
contacting or living with a minor family member. Salah thus
challenges the revocation of his SOISP sentences based on his
violation of these conditions and the imposition of those same
conditions on his new SOISP sentences.
¶2 Because we conclude that the record doesn’t show that Salah’s
right to familial association was implicated, we affirm the trial
court’s orders revoking his SOISP sentences and re-imposing SOISP
with the same conditions.
I. Background
¶3 The evidence introduced at trial showed that Salah
electronically contacted and communicated with the then-fifteen-
year-old victim and that, on the evening in question, Salah picked
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up the victim from her home, drove her to a park, sexually
assaulted her, and took pictures of her breasts.
¶4 A jury found Salah guilty of second degree kidnapping, sexual
assault, and two counts of sexual exploitation of a child. The trial
court sentenced him to concurrent terms on SOISP. The court said
that, as part of his probation, Salah could not be around children,
but the court also found that he didn’t pose a threat to his own
children. As now relevant, Salah’s probation conditions 3 and 5
prohibited him from contacting or residing with a child under the
age of eighteen, except for “children who [we]re [his] siblings or with
whom [he] ha[d] a parental role (for example, biological children,
adoptive children, or step-children).”
¶5 Salah’s probation officer later filed a complaint to revoke
Salah’s SOISP sentences, alleging, among other things, that he had
violated conditions 3 and 5 by living with his sister and her infant
child. In a “Special Report,” the officer said that, at his probation
intake appointment, Salah “asked if he could have contact with the
children belonging to his children’s mother, but because he d[id]
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not have a parental role with these minors, he was told he could
not.”
¶6 At a revocation hearing, the probation officer testified that she
had told Salah that he could not have contact with children who
weren’t his biological children or children as to whom he had no
“parental rights.” She also said that, after she discovered Salah
living in a residence with his infant nephew during a home visit,
Salah said he thought he could live with family members. She told
him he could have contact only with his own children. On cross-
examination, the probation officer clarified that Salah could have
contact with his minor siblings, his minor children, his adopted
minor children, or “any children for whom he acted as a father
figure.”
¶7 In contesting the revocation complaint, defense counsel
argued, in part, that Salah has a constitutional right to familial
association with his nephew and that conditions 3 and 5 violate this
right. Counsel noted that a federal case held that a court can’t
prohibit a probationer from having contact with his minor biological
children and siblings and asserted that “the underlying rationale [of
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that case] does argue for an extension of that exception to other
familial relationships where the probationer has some sort of
parental like role.”
¶8 Defense counsel claimed that “in this particular community,
in this particular family, Mr. Salah would have had a parent like
role as it related to his young nephew.” Counsel also argued that
the underlying facts of Salah’s conviction didn’t suggest that he
poses a risk to his infant nephew.
¶9 In rejecting Salah’s constitutional challenge to conditions 3
and 5, the trial court considered Salah’s cousin’s testimony
regarding Salah’s family but determined that “there [wa]s no
evidence before this Court that as it relates to [Salah] and his
nephew, that there [wa]s a parental like role.” The court noted that
the applicable federal cases “made it clear that it would have been
[Salah’s] burden to demonstrate the nature of the relationship to
the children in question.”
¶ 10 The trial court then found that Salah had violated conditions 3
and 5, revoked his SOISP sentences, and re-imposed the original
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SOISP sentences with the same conditions, plus a ninety-day jail
sentence.
II. Analysis
¶ 11 On appeal, Salah doesn’t reassert his argument that a
probationer’s constitutional right to familial association should
extend to a minor family member with whom he has a parental role
and that he had such a parental role with his nephew. In fact, he
appears to concede that he doesn’t have a parental role with his
nephew.
¶ 12 Instead, Salah asserts that the trial court failed to make
certain required findings before imposing conditions 3 and 5,
which, he says, infringe on his right to reside with his sister and
nephew. He makes this claim without regard to whether he has any
particular relationship with them and claims this right is implied in
his right of familial association. He relies on People v. Cooley, 2020
COA 101, in which a division of this court concluded that
“conditions of probation that infringe on a defendant’s fundamental
constitutional rights must be supported by a specific finding that (1)
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compelling circumstances require their imposition and (2) less
restrictive means are not available.” Id. at ¶ 36.
¶ 13 But Cooley is distinguishable from this case in two pertinent
ways.
¶ 14 First, the defendant in Cooley was convicted of sexually
assaulting an adult victim, while Salah was convicted of sexually
assaulting a minor. Id. at ¶ 2. “When a defendant has committed a
sex offense against children or other vulnerable victims, general
restrictions on contact with children ordinarily do not involve a
greater deprivation of liberty than reasonably necessary.” United
States v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014).
¶ 15 Second, Cooley involved the imposition of SOISP conditions
that assertedly infringed on the probationer’s right to familial
association with his own children. Cooley, ¶¶ 1, 5, 7. In the
context of a parent-child relationship, the right to familial
association is fundamental and can be infringed only upon a finding
of compelling circumstances. Id. at ¶¶ 22, 25, 28, 30, 36; see also
United States v. Burns, 775 F.3d 1221, 1222-25 (10th Cir. 2014);
United States v. Lonjose, 663 F.3d 1292, 1302-03 (10th Cir. 2011);
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United States v. Smith, 606 F.3d 1270, 1283-84 (10th Cir. 2010);
United States v. Voelker, 489 F.3d 139, 153-55 (3d Cir. 2007);
United States v. Davis, 452 F.3d 991, 994-96 (8th Cir. 2006); United
States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001); United States v.
Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996); People v. Forsythe, 43
P.3d 652, 653-55 (Colo. App. 2001). Indeed, “restrictions on a
defendant’s contact with [their] own children are subject to stricter
scrutiny.” Bear, 769 F.3d at 1229.
¶ 16 But, “[a]lthough the [United States] Supreme Court has . . .
recognized familial rights in persons other than parents, the
parameters of that interest are less well-defined.” United States v.
White, 782 F.3d 1118, 1139 (10th Cir. 2015). While a probation
condition “may only infringe on the parental right to familial
association if there are compelling circumstances, a non-custodial
[individual’s] right to familial association is entitled to less
constitutional protection.” Id. at 1140.
¶ 17 The probationer bears the burden of demonstrating the nature
of his relationship with a family member who isn’t his child. Id.
Upon consideration of the nature of the relationship and “the degree
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to which that relationship resembles a parental one,” the
probationer’s right to familial association should be afforded “a level
of constitutional protection directly proportional to the significance
of that liberty interest.” Id. at 1140-41.
¶ 18 Accordingly, we conclude that Cooley’s requirement of a
“compelling circumstances” finding before imposing a condition that
infringes on a probationer’s right to familial association doesn’t
imply a right to live with family members without regard to the
nature of the relationship. See id. at 1141 (remanding the case for
the district court to enter “specific findings justifying any conditions
of supervised release that infringe on a protected right of familial
association” but requiring “express findings of compelling
circumstances” only “[i]f a parent-like right is impacted”); Bear, 769
F.3d at 1229 (“[S]pecial conditions that interfere with the [parental]
right of familial association can do so only in compelling
circumstances . . . .” (quoting Smith, 606 F.3d at 1284)); Trujillo v.
Bd. of Cnty. Comm’rs, 768 F.2d 1186, 1189 (10th Cir. 1985) (“[T]he
parental relationship may warrant the greatest degree of protection
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and require the state to demonstrate a more compelling interest to
justify an intrusion on that relationship . . . .”).
¶ 19 Melnick v. Raemisch, Civ. A. No. 19-cv-00154, 2021 WL
4133919 (D. Colo. Sept. 10, 2021), is more analogous to this case
than is Cooley. In that case, a parolee filed a federal civil action
challenging the constitutionality of conditions of his release from
prison on his Colorado sentence precluding contact with minor
family members, including his nephew. Id. at *1. In dismissing the
action, the federal district court concluded that the parole
conditions didn’t infringe on the parolee’s right to familial
association because he “ha[d] not alleged any type of parental or
custodial arrangement with his nephew or any other minors in his
family, and d[id] not describe his relationship with them.” Id. at
*11. The court also noted that “a sex offender[’s] contact with
children is generally not authorized absent a close familial
relationship, White, 782 F.3d at 1138-40, and [the parolee] ha[d]
not alleged any facts from which the Court c[ould] infer such a close
familial relationship with the minors.” Id. Finally, the court
determined that “[t]he prohibition on contact with minors furthers
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the legitimate interests of the state in rehabilitation and protecting
the public from sex offenders, particularly, vulnerable minors who
are more at risk”; that the parolee “ha[d] not plausibly pled
allegations from which the Court c[ould] infer that [the parole
conditions] d[id] not serve those interests”; and that, therefore, the
parolee’s “familial interest in associating with his nephew and other
minors in his family [wa]s outweighed by the state’s interest in
protecting health and safety.” Id. (footnote omitted).
¶ 20 United States v. Jenks, 714 F. App’x 894 (10th Cir. 2017), is
also instructive. The defendant challenged a parole condition that
restricted contact with his minor family members. Id. at 896-87,
898. In rejecting this challenge, the court concluded that, “[t]hough
[the defendant] might be able to assert a significant liberty interest
in the care, custody, and control of his own or other children with
whom he has a custodial relationship,” “[h]e d[id] not . . . cite any
authority supporting the idea that he ha[d] a significant liberty
interest in associating with any minor child to whom he is related,
regardless of custodial status or affinity” or that he had “a
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significant liberty interest in familial association with children with
whom he has no custodial relationship.” Id. at 898-99.
¶ 21 Lastly, in United States v. Pacheco-Donelson, 893 F.3d 757(10th Cir. 2018), the defendant argued that a parole condition
infringed on his right to familial association because it precluded
him from associating with his two foster brothers. Id. at 758-59.
The court noted that, even assuming the right to familial
association could apply to foster siblings, “this theory would require
proof, for the constitutional protection of familial relationships
stems from ‘the emotional attachments that derive from the
intimacy of daily association.’” Id. at 760 (quoting Smith v. Org. of
Foster Fams. for Equal. & Reform, 431 U.S. 816, 844 (1977)); see
Smith, 431 U.S. at 844 (while a familial relationship also stems from
a “blood relationship,” such fact is not dispositive). In concluding
that the district court didn’t err by imposing the parole condition,
the court determined that the defendant “provided no evidence of a
close familial relationship between himself and the two foster
brothers.” Pacheco-Donelson, 893 F.3d at 760.
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¶ 22 In light of the above authority and the record, we conclude
that conditions 3 and 5 didn’t infringe on Salah’s right to familial
association. Salah admittedly had no parental or custodial role
with his nephew, and he otherwise failed to demonstrate the nature
of his relationship with his sister and nephew. See White, 782 F.3d
at 1139-41; see also Est. of B.I.C. v. Gillen, 710 F.3d 1168, 1175
(10th Cir. 2013) (When extending the due process right to familial
association to grandparents, “courts often consider whether the
grandparents are ‘custodial figure[s]’ or ‘acting in loco parentis.’”
(quoting Rees v. Off. of Child. & Youth, 744 F. Supp. 2d 434, 451
(W.D. Pa. 2010))); Johnson v. City of Cincinnati, 310 F.3d 484, 501
(6th Cir. 2002) (The plaintiff had a fundamental freedom of
association right to participate in the upbringing of her
grandchildren where she did more than visit and was “an active
participant in the lives and activities of her grandchildren.”).
III. Conclusion
¶ 23 The orders revoking Salah’s SOISP sentences and re-imposing
SOISP sentences are affirmed.
JUSTICE MARTINEZ and JUDGE GRAHAM concur.
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