COLORADO COURT OF APPEALS

Court of Appeals No. 15CA1953 Moffat County District Court No. 13JV34 Honorable Michael A. O’Hara, Judge

The People of the State of Colorado,

Petitioner-Appellee and Cross-Appellant,

In the Interest of L.K., a Child,

and Concerning C.K.,

Respondent-Appellant and Cross-Appellee.

JUDGMENT AFFIRMED AND ORDERS REVERSED

Division II Opinion by JUDGE WEBB Ashby and Harris, JJ., concur

Announced July 14, 2016

Brett Barkey, County Attorney, Rebecca Tyree, Assistant County Attorney, Craig, Colorado, for Petitioner-Appellee and Cross-Appellant

Heather Cannon, Guardian Ad Litem

Salky Law, LLC, Randall P. Salky, Steamboat Springs, Colorado, for Respondent-Appellant and Cross-Appellee ¶1 In this dependency and neglect proceeding, C.K. (father)

appeals from the judgment terminating the parent-child legal

relationship between him and his daughter, L.K. We affirm the

judgment.

¶2 On cross-appeal, the Moffat County Department of Social

Services (MCDSS) challenges the trial court’s order requiring

payment of $400 to father’s attorney, as a discovery sanction, on

the basis that, among other reasons, it violated sovereign immunity.

This question has not been addressed in Colorado. After

considering federal precedent, we conclude that, because this

sanction violated sovereign immunity, it must be set aside.

I. Background

¶3 In August 2013, MCDSS devised a protective plan for L.K.,

then five years old, after her outcry over sexual abuse by father.

MCDSS placed L.K. with M.K. (grandmother), and contact between

father and L.K. was prohibited. In October, after father was seen

contacting L.K. in violation of the protective plan, MCDSS removed

her from grandmother’s home. Then it filed a petition in

dependency and neglect.

1 ¶4 At the first hearing, the court advised father that he was the

focus of a criminal investigation arising from L.K.’s report of abuse;

the offenses being investigated were “serious offenses,” which could

lead to a lengthy prison term; and he should be careful about what

he said because his statements could be available to other people

and could potentially be used against him in a criminal case. The

court also advised him that if L.K. was adjudicated dependent and

neglected, a treatment plan would be adopted for him; if he failed to

comply with it, either MCDSS or L.K.’s guardian ad litem (GAL)

could move to terminate his parental rights; and if the court found

that “sufficient proof” had been presented, his parental rights would

be terminated.

¶5 Father stipulated that L.K. was dependent and neglected

because she lacked proper parental care. The court accepted his

admission and adjudicated L.K. dependent and neglected.

¶6 MCDSS proposed a treatment plan for father that required

him, among other things, to successfully complete sex offender

treatment. Although the plan did not specifically require him to

take a polygraph examination, it did require him to “participate in a

psychosexual evaluation and complete other assessments required

2 by the evaluator” and “complete therapy according to SOMB

standards.”1

¶7 When the court approved the treatment plan, father was not

present — allegedly because MCDSS failed to advise him of a

change in the hearing date — and he was not represented by

counsel.2 The attorney for MCDSS told the court that father

continued to deny having sexual contact with L.K. but had

indicated that he understood MCDSS would be seeking treatment

for alleged improper sexual contact. Counsel also said that she

believed father would say that he was “not in favor” of such

treatment, but she was under the impression that he would be

willing to do it if the court ordered it.

¶8 Later, and still without counsel, father sent a letter to the

court objecting to “taking a lie detector test.” But he did so on the

ground that he understood such tests were “unscientific” and had a

large margin of error. He did not express any fear that a polygraph

1 SOMB refers to the Sex Offender Management Board. § 16-13-902(2), C.R.S. 2015. 2 Initially, father was not eligible for court-appointed counsel based

on his earnings. When the treatment plan was proposed, he had not yet retained private counsel. However, the trial court found that father had “had knowledge and notice” of the hearing.

3 examination might require him to incriminate himself. And

otherwise, he did not contest the treatment plan.

¶9 In January 2014, father retained counsel, who told MCDSS

that father could not complete SOMB-approved treatment because

he refused to admit that he had sexually abused L.K. and no

criminal charges were pending against him. At a later status

hearing, counsel provided this information to the court, and the

caseworker confirmed that SOMB-approved providers would not

treat father under these circumstances.

¶ 10 Father’s retained counsel also requested a protective order

under section 19-3-207, C.R.S. 2015, precluding use of any

statements made during treatment in later criminal proceedings.

The court entered the order. But the court never ruled on father’s

letter objecting to “taking a lie detector test.” Nor did his attorney

ask the court to treat the letter as a motion and rule on it.

¶ 11 In April 2014, father completed a sex offense specific

evaluation by an SOMB-listed evaluator. Noting that father

completely denied any inappropriate sexual behavior, the evaluator

recommended that father take a polygraph examination to

determine the next step. If the results indicated that he was

4 truthful, he would not be viewed as an appropriate candidate for

offense specific treatment. But, if the results showed deception and

he continued to deny inappropriate sexual behavior, he could

participate in a “denier’s intervention” program “for the purpose of

helping him reduce his denial and defensiveness in preparation for

a traditional offense specific treatment program.”

¶ 12 MCDSS proposed that father’s treatment plan be amended to

include the evaluator’s recommendations. This time, he did not

object to any aspect of the amended plan. The court amended the

plan.

¶ 13 After father completed the first polygraph examination in June

2014, efforts were made to find a treatment provider for him. But,

during a hearing on September 17, he told the court that he still

could not find a treatment provider who would work with him.

¶ 14 In October 2014, the court expressed concern that father’s

treatment plan might be “impossible” because he could not find a

provider who was willing to treat him. The court ordered MCDSS to

find a provider for father. MCDSS was not successful.

¶ 15 In January 2015, at the court’s request, father moved to

modify his treatment plan. He requested, among other things, that

5 any reference to SOMB requirements or guidelines be eliminated,

and that the therapy requirement be modified to remove any

reference to denier’s treatment or SOMB offense specific treatment.

The motion did not specifically address completing a polygraph

examination. Following a hearing, the court denied the motion and

ordered father to participate in denier’s treatment.

¶ 16 Father was referred to an SOMB-approved provider for denier’s

treatment in March 2015. The provider tried several approaches to

help him “open up” about his behavior, but nothing worked. Father

met with the provider only four times. And he did not meet with or

attempt to contact the provider after May 15.

¶ 17 Father told MCDSS that he could not pay for the second

polygraph examination that was required as part of denier’s

treatment. After MCDSS agreed to pay for the examination, it was

rescheduled for August. But father was terminated from treatment

on July 20, under SOMB standards that require termination if a

denier continues to be in full denial after ninety days. He never

took the examination.

¶ 18 After denier’s treatment ended, MCDSS moved to terminate

father’s parental rights, citing his failure to comply with his

6 treatment plan. During the three-day termination hearing, father’s

attorney cross-examined witnesses and made arguments on father’s

behalf. However, father chose not to testify and his attorney did not

present any evidence.

¶ 19 Relying on the testimony of the denier’s treatment provider

and other witnesses, the court found, among other things, that

father had been referred for a polygraph examination as part of

denier’s treatment, but he had not appeared for the examination.

The court granted the termination motion, citing father’s failure to

successfully complete treatment designed to address the allegations

of “sexual misbehavior” with L.K. as sufficient evidence that father

was unable or unwilling to provide nurturing and safe parenting to

adequately address her needs.

II. Failure to Take the Polygraph Examination

¶ 20 Father first contends the trial court committed reversible error

by considering the denier’s treatment polygraph examination as

evidence supporting its determination that he failed to successfully

complete his treatment plan. We perceive no error.

7 A. Additional Background

¶ 21 The court allowed MCDSS to present evidence of efforts to

schedule an appointment for a polygraph examination during

denier’s treatment and evidence that father did not keep the

appointment. In granting the termination motion, the court cited

father’s failure to successfully complete treatment designed to

address the allegations of “sexual misbehavior” with L.K. The court

specifically referred to father’s failure to take the second polygraph

examination required by the denier’s treatment program as evidence

of his failure to successfully complete treatment.

B. Preservation and Standard of Review

¶ 22 Father preserved this issue by raising it in his closing

argument at the termination hearing.3 Whether the trial court

improperly considered father’s failure to take the polygraph

examination is reviewed for an abuse of discretion. See People v.

Banks,

, ¶ 96 (holding that the trial court did not

3 However, father’s counsel did not then argue, nor had he argued at any earlier stage of the proceedings, either that father had been coerced into participating in denier’s treatment or that the polygraph examination required by this treatment implicated father’s privilege against self-incrimination. Father does not make either argument on appeal.

8 abuse its discretion in admitting testimony as to whether a

polygraph examination was performed), aff’d in part and rev’d in

part on other grounds sub nom. People v. Tate,

.

C. Law

¶ 23 “Evidence of polygraph test results and the testimony of

polygraph examiners are per se inadmissible in both criminal and

civil trials.” People in Interest of M.M.,

(Colo.

App. 2009). In M.M., which involved termination of parental rights,

the division held that evidence of polygraph examinations should

not have been admitted, and the trial court should not have listened

to or considered the opinions of any experts based in whole or in

part on polygraph results.

.

D. Application

¶ 24 According to father, the question before the trial court was

whether evidence of polygraph examination results could be

considered. Not so. The record shows the question to have been

whether evidence of compliance (or lack thereof) with a polygraph

examination requirement should be admitted and considered, and

for what purpose. Because father never took the polygraph

9 examination required for denier’s treatment, the court had no

results to consider.

¶ 25 Father does not dispute either that his treatment plan

required him to participate in denier’s treatment or that a polygraph

examination is required in denier’s treatment. For these reasons,

the court concluded that it could properly admit evidence of efforts

to schedule an appointment for a polygraph examination during

denier’s treatment and evidence that father did not keep the

appointment. We agree with the court that admitting this evidence

did not violate the prohibition against considering polygraph

results. Based on L.K.’s outcry over sexual abuse by father, the

mandatory participation in sex offender treatment, and the

treatment requirement that he take a polygraph examination,

father’s failure to take the examination was a proper matter for the

court to consider in determining whether he had successfully

completed his treatment plan.

¶ 26 Therefore, we conclude that the court did not err in admitting

evidence of father’s failure to take the polygraph examination

required as part of the denier’s treatment component of his

10 treatment plan and considering this evidence in terminating his

parental rights.

III. The Burden of Proof

¶ 27 Next, father contends the burden was on MCDSS to prove by

clear and convincing evidence that his parental rights should be

terminated, but the trial court erred by unfairly shifting the burden

of proof to him when he decided not to testify in the termination

hearing. Again, we perceive no error.

A. Additional Background

¶ 28 Neither MCDSS nor the GAL attempted to call father to testify

at the hearing. On the second day of the termination hearing, after

MCDSS and the GAL had rested, the court inquired whether father

intended to present any evidence. After consulting with his

attorney and being advised by the court of the consequences of his

decision, father declined to testify or present any other evidence. At

that time, neither father nor his attorney mentioned a concern over

self-incrimination.

¶ 29 Later, the court asked the parties to address in their closing

arguments whether it could draw a negative inference from father’s

failure or refusal to participate in the polygraph examination

11 required by denier’s treatment. The court cited Asplin v. Mueller,

(Colo. App. 1984), as a potentially relevant case, but

it acknowledged that the opinion did not appear to be “on point.”

B. Preservation and Standard of Review

¶ 30 Father preserved the issue of whether the trial court

improperly considered his choice not to testify when his counsel

raised it in his closing argument at the termination hearing.

However, counsel sought to dissuade the court from relying on

Asplin by arguing that an adverse inference could not be drawn

because unlike in that case, father had not declined to testify on

Fifth Amendment grounds.

¶ 31 “The proper burden of proof is a question of law which we

review de novo.” McCallum Family L.L.C. v. Winger,

(Colo. App. 2009).

C. Law

¶ 32 Under the Fifth Amendment to the United States Constitution,

no person “shall be compelled in any criminal case to be a witness

against himself.”4 The Fifth Amendment “also privileges [the

4Article II, section 18 of the Colorado Constitution similarly provides that “[n]o person shall be compelled to testify against

12 individual] not to answer official questions put to him in any other

proceeding, civil or criminal, formal or informal, where the answers

might incriminate him in future criminal proceedings.” Lefkowitz v.

Turley,

(1973). And a witness protected by the

privilege “may rightfully refuse to answer unless and until he is

protected at least against the use of his compelled answers and

evidence derived therefrom in any subsequent criminal case in

which he is a defendant.”

.

¶ 33 Even so, “the Fifth Amendment does not forbid adverse

inferences against parties to civil actions when they refuse to testify

in response to probative evidence offered against them.” Baxter v.

Palmigiano,

(1976); see Sec. & Exch. Comm’n v.

Colello,

, 677 (9th Cir. 1998) (“Parties are free to invoke

the Fifth Amendment in civil cases, but the court is equally free to

draw adverse inferences from their failure of proof.”) (cited with

approval in Steiner v. Minn. Life Ins. Co.,

(Colo.

2004)). And while refusing to testify may be necessary to prevent a

waiver of the privilege, “[c]ourts generally have refused to find a

himself in a criminal case.” Father does not argue that article II, section 18 provides any greater protection than the Fifth Amendment at trial.

13 [F]ifth [A]mendment violation when, as in this case, the refusal to

testify does not automatically lead to sanctions.” Rosenberg v. Bd.

of Educ.,

, 1100 n.11 (Colo. 1985).

¶ 34 In Asplin, a division of this court held that although in a

criminal case instructing the jury that it may draw an inference of

guilt from a defendant’s failure to testify about facts relevant to his

case is reversible error, in a civil case a party’s refusal to answer

questions by asserting the Fifth Amendment privilege against

self-incrimination may be the basis for an inference that the answer

would have been unfavorable to him.

.

D. Application

¶ 35 Father argues, as he did below, that Asplin is inapposite

because he did not assert his privilege against self-incrimination as

a reason for declining to testify at the termination hearing. Instead,

father continues, because he merely chose not to put on evidence,

the court could not draw an adverse inference from this decision.

¶ 36 In closing argument, father’s counsel understandably

addressed whether the trial court could draw an adverse inference.

After all, the court had raised Asplin sua sponte. But by any fair

reading, the record tells us that the trial court did not draw an

14 adverse inference from father’s failure to testify or otherwise put on

evidence. Still, father persists with this argument on appeal.

¶ 37 True enough, in the court’s oral findings, it recognized “[t]he

question about [father] not participating in the second polygraph

examination and whether that can be used to draw an adverse

inference.” But then the court explained that, as with any

respondent parent’s failure to comply with a portion of a treatment

plan:

I would draw an adverse inference from that behavior. [Father] made a decision. And the reason for the decision doesn’t really matter too much. He knew what was required, I’m convinced of that. He knew how to meet the requirement, and I’m convinced of that. He made a decision to stop complying.

¶ 38 In the written “Order Concerning Motion to Terminate Parent

Child Relationship,” the trial court noted only that father had not

testified. Then, and without making any reference to either Asplin

or drawing adverse inferences, the court found — from the

testimony of other witnesses and not disputed by father — that he

did not participate in a polygraph examination as required by the

15 denier’s treatment element of his treatment plan.5 As a result, the

court further found that “father failed to complete the treatment

plan.” The record supports the court’s holding that father’s failure

to successfully complete his denier’s treatment — because he did

not participate in a required polygraph examination — was similar

to holding that a parent’s failure to participate in any other activity

required by the parent’s treatment plan, such as drug testing to

complete substance abuse treatment, resulted in a lack of

compliance with the treatment plan.

¶ 39 Therefore, we conclude that when father failed to present

evidence, the court did not improperly shift the burden of proof,

infringe on father’s privilege against self-incrimination, or draw

impermissible adverse inferences.

IV. Sufficiency of the Evidence

¶ 40 Finally, father contends MCDSS did not prove its case by clear

and convincing evidence. Specifically, he asserts the absence of

5 Although we discern no principled difference between the court’s oral findings and its written order, “when a court makes oral findings and conclusions that differ from its final written rulings, the final written order controls.” Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist.,

(Colo. App. 2011).

16 such evidence that he had sexually abused L.K., which was the

basis for the petition in dependency and neglect. We reject this

contention because the question of father’s wrongdoing was not at

issue in the termination hearing.

A. Additional Background

¶ 41 In terminating father’s parental rights based on his failure to

complete his treatment plan, the court did not make any findings

whether father had sexually abused L.K. And the court specifically

noted in its termination order that whether father in fact sexually

abused L.K. was not an issue for it to decide at the termination

hearing. Instead, the court found that the issue before it was

whether father had complied with his treatment plan. Ultimately,

the court concluded that because father had not completed his

treatment plan, it had not been successful in rehabilitating him.

B. Preservation and Standard of Review

¶ 42 In his closing argument to the trial court, father’s counsel

asserted that MCDSS had failed to present clear and convincing

evidence that father had sexually molested L.K. Counsel also

argued that father should not have been required to participate in

and complete an SOMB-type treatment program, which was

17 “designed for failure” because completion of such treatment was not

possible within a year, as required in an expedited permanency

planning case.

¶ 43 “In determining whether the evidence is sufficient to sustain

an adjudication, we review the record in the light most favorable to

the prevailing party, and we draw every inference fairly deducible

from the evidence in favor of the court’s decision.” People in Interest

of S.G.L.,

(Colo. App. 2009).

C. Law

¶ 44 A child may be adjudicated dependent and neglected if any of

the circumstances set forth in section 19-3-102, C.R.S. 2015, is

admitted or proven to exist. For example, a child may be deemed

dependent and neglected if “[a] parent . . . has subjected him or her

to mistreatment or abuse” as provided in section 19-3-102(1)(a).

But proof of abuse would not be necessary if the child is determined

to be dependent and neglected on other grounds, such as lack of

proper parental care as provided in section 19-3-102(1)(b). And

L.K. had been adjudicated dependent and neglected in November

2013, based on father’s stipulation that she lacked proper parental

care.

18 ¶ 45 A court may terminate parental rights if it determines that the

criteria in section 19-3-604, C.R.S. 2015, have been established by

clear and convincing evidence. And under section 19-3-604(1)(c), a

parent’s failure to comply with or successfully complete an

appropriate treatment plan approved by the court is a factor that

the court may consider in determining whether the criteria for

termination have been established. Such a treatment plan is one

that “sets out a course of action that will ‘help the parent overcome

those difficulties which led to a finding that the child was neglected

[and] dependent.’” E.S.V. v. People,

, ¶ 35 (quoting

People in Interest of C.A.K.,

, 610 (Colo. 1982)).

D. Application

¶ 46 The question before the court at the termination stage was not

whether a factual basis for adjudicating L.K. dependent and

neglected existed. That basis had already been established.

Instead, MCDSS had the burden of proving the criteria for

termination, including, as the court noted, father’s failure to comply

with his treatment plan.

¶ 47 Because MCDSS was not required to prove that father had

sexually abused L.K. to establish that at least one of the

19 termination criteria set forth in section 19-3-604(1)(c) had been

met, and he does not contend that the evidence is otherwise

insufficient, we reject his contention that the evidence was

insufficient to support the judgment.

V. Attorney Fees Sanction

¶ 48 On cross-appeal, MCDSS contends the trial court erred in

assessing attorney fees against it for discovery violations in the

absence of a case management order, a court order mandating

discovery, or a stipulation as to discovery. It further contends the

trial court erred in assessing attorney fees against a governmental

entity, at least without finding a C.R.C.P. 11 violation. Addressing a

novel question in Colorado, we conclude that sovereign immunity

precludes orders assessing attorney fees against a governmental

entity for discovery violations.6

A. Additional Background

¶ 49 Both parties chose to handle discovery in a more formal

manner than is typical of a juvenile court proceeding. Father

propounded formal discovery requests to MCDSS. MCDSS filed a

6We express no opinion on the application of sovereign immunity to a monetary sanction against a governmental entity in any other context.

20 “Certificate of Compliance Pursuant to [C.R.C.P.] 26(a)(1)” to

document each group of documents produced.

¶ 50 On May 9, 2014, father moved to compel discovery, asserting

that although MCDSS had produced sixty-two pages of “alleged

discovery,” those documents did not include anything in several

categories that had been requested several months earlier, and

MCDSS had not responded to an interrogatory submitted at the

same time. He requested an order compelling MCDSS to respond to

his discovery requests as well as sanctions.

¶ 51 Several months later, MCDSS responded to the motion to

compel, explaining that it had not responded earlier because the

attorney for MCDSS believed that the “remainder of discovery”

sought by father had been provided to him on May 13, 2014. Citing

section 13-17-102(8), C.R.S. 2015, which provides that section

13-17-102 “shall not apply to . . . matters brought under the

provisions of the ‘Colorado Children’s Code,’” MCDSS also argued

that attorney fees could not be awarded in juvenile matters. Father

replied, detailing his reasons for dissatisfaction with the response to

his discovery requests and renewing his request for sanctions.

21 ¶ 52 During a later review hearing, the motion to compel was

raised, the trial court asked about sovereign immunity, the parties

presented arguments, and an agreement on how discovery would be

handled going forward was reached. A few weeks later, the court

entered an order granting father’s motion for sanctions. The court

approved the new “open file” policy that MCDSS was adopting, but

it found that a discovery violation had occurred. Adding that “this

is not the first time that this court has heard similar complaints”

about MCDSS, the court ordered MCDSS to pay $400 to father’s

attorney as a sanction under C.R.C.P. 37.

¶ 53 MCDSS moved to vacate the sanction order under C.R.C.P. 59.

The court denied the motion without comment.

B. Preservation and Standard of Review

¶ 54 The same challenges to the attorney fees award that MCDSS

asserts on appeal were addressed in the trial court.

¶ 55 Discovery rulings are within the discretion of the trial court

and will not be disturbed absent an abuse of discretion. People in

Interest of S.G.,

(Colo. App. 2004). The court’s

decision on imposing sanctions under C.R.C.P. 37 is also reviewed

for an abuse of discretion. Winkler v. Shaffer,

. A

22 court abuses its discretion when it misunderstands or misapplies

the law. Reisbeck, LLC v. Levis,

.

¶ 56 Sovereign immunity raises a jurisdictional issue. Springer v.

City & Cty. of Denver,

(Colo. 2000). If the issue

involves a factual dispute, the clearly erroneous standard of review

applies to the trial court’s findings of jurisdictional fact. But where

the facts are undisputed, the appellate court reviews this issue de

novo. Id.; see also Churchill v. Univ. of Colo.,

(Colo.

App. 2010) (collecting cases), aff’d,

.

C. Law

¶ 57 A party may move to compel disclosure and for appropriate

sanctions if another party fails to make a disclosure required by

C.R.C.P. 26(a). C.R.C.P. 37(a)(2)(A). But C.R.C.P. 26, which

governs disclosure and discovery in most civil matters, does not

apply in expedited proceedings “[u]nless otherwise ordered by the

court or stipulated by the parties.” C.R.C.P. 26(a). A motion to

compel is also available if a party fails to respond to formal

discovery, such as by not answering an interrogatory or producing

documents requested by the discovering party. C.R.C.P. 37(a)(2)(B).

But because C.R.C.P. 37 does not contain similar language limiting

23 its application in expedited proceedings, the question remains

whether this rule could apply where Rule 26 did not.

¶ 58 If a motion to compel is granted, or if the requested discovery

is provided after the motion was filed, the court may require the

party whose conduct necessitated the motion, that party’s attorney,

or both to pay to the moving party the reasonable expenses

incurred in making the motion. Even so, attorney fees should not

be awarded if the court finds that either the moving party did not

first make a good faith effort to obtain the discovery without court

action, or the opposing party’s response was substantially justified

or that other circumstances make an award of expenses manifestly

unjust. C.R.C.P. 37(a)(4)(A).

D. Application

1. Availability of Discovery Sanctions

¶ 59 MCDSS argues that the court lacked authority to impose

sanctions under C.R.C.P. 37 in the absence of either an agreement

between the parties to conduct discovery under C.R.C.P. 26 or a

court order mandating discovery and requiring the parties to

conduct it under C.R.C.P. 26. Even if we assume that the trial

court could impose sanctions under C.R.C.P. 37(a)(4)(A) without

24 having first entered an order making Rule 26(b) applicable, because

MCDSS is a governmental entity, our inquiry must address

sovereign immunity.

2. Sovereign Immunity

¶ 60 In 1971, citing the injustice and inequity that often resulted

from the application of the doctrines of sovereign immunity and

governmental immunity, the Colorado Supreme Court abrogated

these doctrines for causes of action arising after June 30, 1972.

Evans v. Bd. of Cty. Comm’rs,

, 99-106,

,

969-72 (1971). The court declared that the situation was “in the

hands of the General Assembly,” which had the authority to restore

sovereign immunity and governmental immunity in whole or in

part, if it wished to do so. Id. at 105, 482 P.2d at 972.

¶ 61 The General Assembly responded by enacting the Colorado

Governmental Immunity Act (CGIA), currently codified at sections

24-10-101 to -120, C.R.S. 2015. With certain exceptions not

applicable here, section 24-10-108, C.R.S. 2015, provides that

“sovereign immunity shall be a bar to any action against a public

entity for injury which lies in tort or could lie in tort regardless of

whether that may be the type of action or the form of relief chosen

25 by a claimant.” Injury is defined as “death, injury to a person,

damage to or loss of property, of whatsoever kind, which, if inflicted

by a private person, would lie in tort or could lie in tort.”

§ 24-10-103(2), C.R.S. 2015.

¶ 62 This definition of injury shows why the CGIA is inapplicable to

discovery sanctions. The “injury” sustained by a party who has

been disadvantaged by another party’s failure to comply with rules

governing discovery is not “death, injury to a person, damage to or

loss of property, of whatsoever kind, which, if inflicted by a private

person, would lie in tort or could lie in tort.” And, although torts

involving litigation have been recognized in Colorado — see, e.g.,

Mintz v. Accident & Injury Med. Specialists, PC,

(Colo. App. 2010) (discussing abuse of process and malicious

prosecution), aff’d,

— we are unaware of any Colorado

authority treating failure to comply with discovery rules as a tort.

¶ 63 For these reasons, we conclude that the CGIA does not apply

to discovery sanctions. But this conclusion only circles back to

Evans, which ended governmental and sovereign immunity. So,

how could immunity still preclude the sanction at issue?

26 ¶ 64 Colorado procedural rules and cases construing those rules

provide some guidance. For example, under C.R.C.P. 54(d):

Except when express provision therefor is made either in a statute of this state or in these rules, reasonable costs shall be allowed as of course to the prevailing party considering any relevant factors which may include the needs and complexity of the case and the amount in controversy. But costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.

(Emphasis added.) In City & County of Broomfield v. Farmers

Reservoir & Irrigation Co.,

(Colo. 2010), our

supreme court noted that this rule serves to “protect the public

treasury, which, in turn, is consistent with the concept that the

government cannot be sued without its consent.” The court further

observed that “[t]he legislature alone has the power to balance the

interests between protecting the public against excessive financial

burdens and allowing individual parties to sue the government.”

.

¶ 65 Still, the specific question before us — whether sovereign

immunity bars an award of attorney fees against a public entity

under C.R.C.P. 37 — remains unresolved in Colorado. Because the

state and federal versions of Rule 37 are substantially similar,

27 federal court decisions provide guidance in construing C.R.C.P. 37.

Garcia v. Schneider Energy Servs., Inc.,

.

¶ 66 To be sure, some federal courts have ordered monetary

sanctions against government attorneys, citing statutory language

or procedural rules as authority for doing so. See, e.g., Chilcutt v.

United States,

(5th Cir. 1993) (affirming order

requiring government attorney to personally reimburse plaintiffs for

attorney fees incurred because of the government’s discovery

abuse). Based on

(2012), a provision of the Equal

Access to Justice Act (EAJA), the Chilcutt court concluded that

Congress intended to subject the government and its attorneys to

Fed. R. Civ. P. 37(b)(2)(E) (now found at Fed. R. Civ. P. 37(b)(2)(C)),

under which the court could order “the recalcitrant party, the

attorney, or both” to pay reasonable expenses, including attorney

fees, to the opposing party for violations of discovery orders.

. The court noted that the EAJA specifically deleted

subsection (f) of Rule 37, which had precluded courts from

imposing discovery sanctions on the United States.

.

¶ 67 At the same time, federal courts have been reluctant to impose

monetary sanctions against a government agency — as opposed to a

28 government attorney — absent language that specifically authorizes

such sanctions. “[A] provision authorizing sanctions does not

automatically waive sovereign immunity, and thus does not apply,

without more, to fee awards against the government.” In re

Graham,

(10th Cir. 1992) (finding no

waiver of sovereign immunity “sufficiently explicit” in the Federal

Rules of Bankruptcy Procedure to justify awarding fees against the

government for, among other things, failure to produce certain

documents).

¶ 68 In other words, “[a] waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in statutory

text,” and will not be implied. Lane v. Pena,

(1996). Thus, although generally “it is unassailable that a court’s

inherent authority includes the power to assess attorneys’ fees or

other monetary fines against either parties or their attorneys,”

absent a waiver of sovereign immunity, that power “does not

encompass the authority to impose monetary sanctions against the

government.” Alexander v. Fed. Bureau of Investigation,

(D.D.C. 2008).

29 ¶ 69 C.R.C.P. 37(a)(4)(A) permits a trial court to order a party, that

party’s attorney, or both to pay the “reasonable expenses” incurred

by an opposing party who has had to file a motion to compel as a

result of the failure of the party or the party’s attorney to make

disclosures or provide discovery as required by the rules governing

discovery. But C.R.C.P. 37 does not expressly authorize an award

against a public entity. Nor are we aware of any Colorado authority

that permits such an award.

¶ 70 Given all this, we conclude that the trial court’s sanctions

order must be set aside.

VI. Conclusion

¶ 71 The judgment terminating the parent-child legal relationship

between father and L.K. is affirmed. The order requiring MCDSS to

pay $400 to father’s attorney, as well as the order denying post-trial

relief to MCDSS, is reversed.

JUDGE ASHBY and JUDGE HARRIS concur.

30