24CA0088 Peo in Interest of AH 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0088

Larimer County District Court No. 22JV30064

Honorable C. Michelle Brinegar, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.H., III, a Child,

and Concerning A.S.,

Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE SCHUTZ

Freyre and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 15, 2024

William G. Ressue, County Attorney, Kara Clark, Assistant County Attorney,

Fort Collins, Colorado, for Appellee

Josi McCauley, Guardian Ad litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,

Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 In this dependency and neglect proceeding, A.S. (mother)

appeals the juvenile court’s judgment terminating her parent-child

legal relationship with A.H., III (the child). Mother argues that the

juvenile court erred by taking judicial notice of a fact from A.H., II’s

(father’s) criminal case and by allowing hearsay testimony. We

affirm the judgment.

I. Background

¶ 2 In July 2022, the Larimer County Department of Human

Services, Children, Youth and Family (the department) filed a

petition in dependency or neglect regarding the two-month-old

child. The petition alleged that medical personnel had concerns

that the child was not gaining weight, and that mother threatened

to leave the hospital against medical advice. The department also

alleged that father tested positive for methamphetamine, that the

parents had been involved in several domestic violence incidents,

and that protection orders prevented them from having contact with

each other.

¶ 3 Mother stipulated to a deferred adjudication under section 19-

3-505(5), C.R.S. 2023, and the court adopted a treatment plan.

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¶ 4 The department later moved to revoke mother’s deferred

adjudication, arguing that she was not complying with her

treatment plan. Mother did not object, and the juvenile court

adjudicated the child dependent and neglected.

¶ 5 The department then moved to terminate mother’s parental

rights. After a hearing held in December 2023, the juvenile court

granted the motion.

II. Standard of Review

¶ 6 Both contentions raised by mother require us to review the

juvenile court’s evidentiary rulings.

¶ 7 We review a juvenile court’s decision to take judicial notice

and to admit or exclude evidence for an abuse of discretion. Vento

v. Colo. Nat’l Bank, 985 P.2d 48, 52 (Colo. App. 1999); People in

Interest of M.H-K., 2018 COA 178, ¶ 60. A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair, or when it misapplies the law. People in Interest of E.R.,

2018 COA 58, ¶ 6.

¶ 8 An error in the admission of evidence is harmless if it does not

affect a substantial right of a party. CRE 103(a); C.R.C.P. 61. An

error affects a substantial right if it can be said with fair assurance

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that it substantially influenced the outcome of the case or impaired

the basic fairness of the proceedings. People in Interest of R.J.,

2019 COA 109, ¶ 22.

III. Judicial Notice

¶ 9 Mother first argues that the juvenile court erred by taking

judicial notice of an address listed for her in one of father’s criminal

cases. We disagree.

A. Relevant Law

¶ 10 A court may take judicial notice of an adjudicative fact that is

not subject to reasonable dispute because it is “capable of accurate

and ready determination by resort to sources whose accuracy

cannot be questioned.” CRE 201(b)(2). Court records are

recognized as sources whose accuracy cannot be reasonably

questioned; therefore, a court may take judicial notice of its own

file, its factual findings, and legal conclusions. People in Interest of

O.J.S., 844 P.2d 1230, 1233 (Colo. App. 1992), aff’d sub nom. D.A.S.

v. People, 863 P.2d 291 (Colo. 1993). A court may also take judicial

notice of the contents of court records in related proceedings.

People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004).

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¶ 11 “A judicially noticed fact must be one not subject to

reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate

and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” CRE 201(b). “This rule governs

only judicial notice of adjudicative facts.” CRE 201(a) (emphasis

added). Adjudicative facts are “the facts of the particular case, as

distinguished from, among others, facts with relevance to legal

reasoning and the lawmaking process. . . .” Doyle v. People, 2015

CO 10, ¶ 9; see also People in Interest of I.S., 2017 COA 155, ¶ 8

(“By noticing the People’s appendix and the district court’s finding

in it, we recognize the procedural effect of that finding on this

appeal, not any material adjudicative effect it might have on the

case’s merits.”).

¶ 12 “A court shall take judicial notice if requested by a party and

supplied with the necessary information.” CRE 201(d). “However,

“a court may not take judicial notice of facts on the very issue the

parties are litigating.” Mun. Subdistrict N. Colo. Water Conservancy

Dist. v. OXY USA, Inc., 990 P.2d 701, 711 (Colo. 1999). Accordingly,

a court may take notice that a specific document exists within the

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court file, but this “is not the same as accepting the truth of its

contents or accepting a particular interpretation of its meaning.”

One Hour Cleaners v. Ind. Claim Appeals Off., 914 P.2d 501, 505

(Colo. App. 1995) (citing Joslin v. H.A.S. Ins. Brokerage, 184 Cal.

App.3d 369, 228 Cal. Rptr. 878 (1986)).

B. Analysis

¶ 13 The child’s guardian ad litem asked the juvenile court to take

judicial notice of mother’s address listed in one of father’s criminal

cases. Although not articulated, this fact presumably showed that

mother continued a relationship with father despite telling the

department she was no longer having contact with him because of

their ongoing domestic violence incidents.

¶ 14 Mother objected, arguing that the address was not an

“adjudicative fact” but rather “something contained in a criminal

record” and was unreliable. The court overruled the objection and

took notice of the address, however it also stated, “whether it’s

accurate or not, I have no idea.”

¶ 15 Assuming, without deciding, that the juvenile court erred by

taking judicial notice of mother’s listed address in father’s criminal

file, we conclude that any error was harmless. The juvenile court

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noted that the address itself had little evidentiary value because it

did not know if the address was accurate. Moreover, the address

was that of a hotel that mother admitted she had been living in for

the four months leading up to the termination hearing.

¶ 16 On appeal, mother argues that the error prejudiced her

because the court specifically referenced “its judicial notice” to find

that mother was not in compliance with part of her treatment plan.

But the section of the court’s judgment mother references does not

refer to her address, but rather to mother’s efforts to lift the

criminal protection orders in father’s criminal cases.

¶ 17 Mother did not object to the juvenile court taking judicial

notice of her filings to lift the various protection orders from father’s

criminal cases prohibiting contact. Additionally, one of the

Department’s caseworkers testified that she attended hearings in

father’s criminal cases and personally witnessed mother requesting

that the protection orders be lifted.

¶ 18 Accordingly, we conclude that even if the juvenile court did err

by taking judicial notice of any facts from father’s criminal case,

any error was harmless.

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IV. Hearsay

¶ 19 Mother also argues that the juvenile court reversibly erred by

allowing the department’s caseworker to provide hearsay testimony.

We are not persuaded.

A. Relevant Law

¶ 20 Hearsay “is a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Hearsay is generally

not admissible unless an exception applies. See CRE 802.

¶ 21 An expert may rely on facts that are not otherwise admissible

if the facts formed the basis of the expert’s opinion and are of the

type reasonably relied on by experts in that field. CRE 703 (“If of a

type reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or data

need not be admissible in evidence in order for the opinion or

inference to be admitted.”). Thus, expert opinions may be based on

reports and information obtained from others. See People in

Interest of J.E.B., 854 P.2d 1372, 1375-76 (Colo. App. 1993)

(concluding that experts in a termination of parental rights case

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properly relied on “reports and information in the case which

otherwise might have been objectionable hearsay”).

¶ 22 But facts or data that are otherwise inadmissible “shall not be

disclosed to the [factfinder] by the proponent of the opinion or

inference unless the court determines that their probative value . . .

[in assessing] the expert’s opinion substantially outweighs their

prejudicial effect. CRE 703. Thus, if admitted, the inadmissible

facts or data are only admissible for evaluating the weight to be

given the expert’s testimony and may not be considered as

supporting the truth of the inadmissible evidence.

B. Analysis

¶ 23 At the hearing, the caseworker provided the following

testimony that mother contends was hearsay:

• a worker at the hotel where mother lived had seen her

with a person who went by the same name as father;

• the parents continued a relationship because the

caseworker spoke with law enforcement officers who

responded to domestic violence incidents involving

mother and father after the proceeding began;

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• mother’s therapist had concerns that mother was not

honest about her ongoing relationship with father and

could not give a recommendation about how much more

time mother needed to become stable; and

• hospital personnel were concerned that mother wanted

the child to have a gastrostomy tube, which was an

unnecessary procedure.

¶ 24 The court denied mother’s hearsay objections to this

testimony, concluding that the statements were admissible to

explain the caseworker’s actions and to support her opinion that

mother did not comply with her treatment plan and that additional

time to work on the treatment plan would be futile. See id.

¶ 25 On appeal, mother argues that the juvenile court erred

because it relied on the hearsay testimony for the truth of the

matter in its written judgment. We agree that the court found that

mother “had contact with [father] as recently as two weeks prior to

the hearing.” The only source of this information was the

caseworker’s hearsay testimony and, as such, it was error for the

court to rely on this hearsay statement to support the truth of the

assertion. However, the record contains ample evidence

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independent of this hearsay to support the court’s finding that

mother continued her unhealthy and dangerous relationship with

father during this case.

¶ 26 Mother testified that she was not honest with the Department

and denied having a relationship with father even when she was

having contact. She admitted that she did not allow the caseworker

to visit her hotel room earlier than a few weeks before the

termination hearing because she was still having contact with

father. Mother also admitted she needed an additional six months

to comply with her treatment plan and become fit. And both the

caseworker and mother testified that mother had filed motions in

father’s criminal cases in an attempt to modify the no contact

orders.

¶ 27 Mother also asserts that the juvenile court relied on the

hearsay statements from her therapist for their truth, rather than

as the basis of the caseworker’s opinion. When discussing whether

mother had addressed the issues of domestic violence in the home,

the court stated:

When the caseworker finally spoke with

[mother’s] therapist one week before the

hearing, her therapist indicated she has not

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made sufficient progress — she does not have

healthy coping skills and is still working on

her goals to address her domestic violence

related trauma, including setting healthy

boundaries.

¶ 28 It is unclear whether the court relied on this statement to

determine that the therapist’s statements were true, or if it was

simply relaying the caseworker’s testimony. However, even if we

were to assume the court erred, sufficient admissible evidence,

including mother’s own testimony, supports the court’s

determination that mother had not sufficiently addressed the issues

of domestic violence with father. Accordingly, even if this part of

the court’s judgment relied on hearsay evidence for its truth, any

error was harmless. See R.J., ¶ 22.

¶ 29 Lastly, mother takes issue with hearsay testimony related to

her behavior at the hospital when the case first started. But the

court did not terminate mother’s parental rights because she did

not understand the child’s medical needs. The court’s decision

hinged on mother’s continuing relationship with father, and

mother’s lack of meaningful progress with respect to the impact of

domestic violence on her and the child, as well as her failure to

address her mental health concerns. And, as mentioned, mother

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conceded she was not fit to care for the child at the time of the

termination hearing and requested additional time.

¶ 30 Accordingly, the court did not err when it admitted the

hearsay statements about mother’s behavior at the hospital

because it did not consider those statements for their truth.

¶ 31 Based on the foregoing, even if the juvenile court did error by

admitting some hearsay statements for the truth of the matter

asserted, any error was harmless in light of the independent

evidence that mother was unfit, could not be rendered fit within a

reasonable time, and there was no less drastic alternative to

termination given the child’s long term out of home placement and

need for permanency. See § 19-1-902 (1.6), C.R.S. 2023 (“[I]t is

appropriate to provide for an expedited placement procedure to

ensure that children under the age of six years who have been

removed from their homes are placed in permanent homes as

expeditiously as possible.”).

V. Disposition

¶ 32 We affirm the judgment.

JUDGE FREYRE and JUDGE GRAHAM concur.