Colorado Court of Appeals, 2024

Peo in Interest of JMS

Colorado Court of Appeals · Decided August 22, 2024

Opinion

23CA2238 Peo in Interest of JMS 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2238

Adams County District Court No. 23JV30080

Honorable Emily Lieberman, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Ju.M.S., a Child,

and Concerning Jo.M.S.,

Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE JOHNSON

Graham* and Hawthorne*, JJ., concur

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

Announced August 22, 2024

Heidi Miller, County Attorney, Lisa Vigil, Assistant County Attorney,

Westminster, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, 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.

¶ 1 In this dependency and neglect proceeding, Jo.M.S. (father)

appeals the juvenile court’s judgment adjudicating Ju.M.S. (the

child) dependent and neglected as to him following a jury trial. We

affirm.

I. Background

¶ 2 The Adams County Department of Human Services (the

Department) filed a petition in dependency or neglect regarding the

then-two-year-old child. The petition alleged that father had

punched mother in a car while the child was present. The petition

further alleged that mother got out of the car and called law

enforcement while father drove off with the child.

¶ 3 The Department later learned that the child had been placed

with paternal aunt. But the petition indicated that paternal aunt

was unable to secure permission via a power of attorney from the

parents so that the child could obtain needed medical care. And

the petition alleged that father had called paternal aunt threatening

her if she did not return the child to him.

¶ 4 After an adjudicatory trial, the jury found that (1) the child

lacked proper parental care through the actions or omissions of

father, and (2) the child’s environment was injurious to her welfare.

See § 19-3-102(1)(b), (c), C.R.S. 2024. Father appeals.

II. Standard of Review

¶ 5 Both contentions raised by father require us to review the

juvenile court’s evidentiary rulings. We review a juvenile court’s

evidentiary rulings for an abuse of discretion. M.A.W. v. People in

Interest of A.L.W., 2020 CO 11, ¶ 32. A court abuses its discretion

when its ruling is manifestly arbitrary, unreasonable, or unfair, or

when it misapplies the law. Id.

¶ 6 To the extent father claims that he was denied the opportunity

to present a defense, we review procedural due process claims de

novo. People in Interest of C.J., 2017 COA 157, ¶ 25.

III. Child’s Placement with Family

¶ 7 Father contends that the juvenile court erred because (1) it did

not allow him to present evidence that he arranged for family to

care for the child, and (2) the child would be safe if returned to him.

We disagree with both contentions.

A. Applicable Law

¶ 8 To be admissible, evidence must be relevant. CRE 402. Under

CRE 401, evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.”

¶ 9 Adjudications “are not made as to the parents but, rather,

relate only to the status of the child as of the date of the

adjudication.” K.D. v. People, 139 P.3d 695, 699 (Colo. 2006)

(quoting People in Interest of S.B., 742 P.2d 935, 939 (Colo. App.

1987)). A child is not dependent and neglected if the parent has

made appropriate arrangements for the child’s care by a person

who has a genuine interest in the child’s welfare. See Diernfeld v.

People, 323 P.2d 628, 631 (Colo. 1958).

B. Analysis

¶ 10 We are not convinced that father was unable to present

evidence about the child’s placement with paternal aunt. And we

are also not persuaded by his argument about the child’s safety if

returned to him because he would continue to have paternal aunt

care for the child.

1. Placement with Paternal Aunt

¶ 11 The juvenile court allowed the jury to hear about the parents’

decision to place the child with relatives. The caseworker testified

that he attempted to contact both parents after receiving a referral

from law enforcement about a domestic violence incident that had

occurred in front of the child between mother and father. But the

caseworker was unable to reach the parents. The caseworker also

testified that he eventually received a call from paternal aunt, who

told him that mother had been arrested at a hotel, father had fled,

and law enforcement had allowed mother to call the paternal aunt

to pick up the child. Thereafter, the caseworker met with paternal

aunt and other relatives, and the relatives appeared to be

appropriately caring for the child. And the caseworker had asked

mother to sign a form that would assure that paternal aunt was

able to get the child necessary medical care for an infected wound,

but mother did not return the paperwork.

¶ 12 Father takes this argument a step further, though, and asserts

that the juvenile court erred because it also prevented him from

arguing or testifying about how, if the child were returned to him,

she would not lack proper parental care or be in an injurious

environment. This is because he would have signed a “power of

attorney” so that paternal aunt could continue to care for the child.

Neither at trial nor on appeal does father argue that he personally

made arrangements for his family to care for the child. Regardless,

the record belies father’s position.

¶ 13 The caseworker testified that he did not talk to father about

signing a power of attorney form because the caseworker could not

locate father. Once the caseworker was able to get in touch with

father, the caseworker had only one in-person meeting with him,

during which the caseworker could not discuss the child’s situation

because father told the caseworker he was “having a hard time,”

“needed to step out,” and “felt like he was going to make a poor

choice.”

¶ 14 And at the hearing, father testified that he was aware that

paternal aunt was caring for the child, and that he was grateful to

the relatives.

¶ 15 Accordingly, the jury heard evidence about how paternal aunt

came to care for the child. The jury was free to consider this

evidence and accord it the weight it felt appropriate. See People in

Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009) (“The

credibility of the witnesses and the sufficiency, probative effect, and

weight of the evidence, as well as the inferences and conclusions to

be drawn therefrom, are within the discretion of the [fact finder].”).

2. Father’s Future Plans

¶ 16 Father also argues that the juvenile court erred because it did

not allow evidence or argument that he intended to continue to

allow paternal aunt to care for the child for the foreseeable future.

He asserts that his “preferred theory of defense” was to inform the

jury that Department involvement was not necessary and that “the

problem” was being addressed “in other ways” (i.e., by arranging for

relatives to care for the child).

¶ 17 But evidence that father was willing to allow paternal aunt to

continue to care for the child if the petition was dismissed had no

relevance to whether the child was dependent or neglected at the

time of the trial. See People in Interest of C.T., 746 P.2d 56, 58

(Colo. App. 1987) (evidence showing that a father’s relatives were

willing to care for his child during his incarceration did not create a

genuine issue of material fact about the child’s current status as

dependent and neglected).

¶ 18 To the extent that father argues he was disadvantaged

because the Department was able to present evidence about what

would happen post-adjudication, but he could not, we disagree.

The juvenile court informed the jury, in response to objections

made by the Department and father, that it was not to base its

decision on what may or may not happen to the child as a result of

the verdict.

¶ 19 For example, when the caseworker testified that he was

concerned about mother’s lack of contact with him because “we

couldn’t have a conversation about steps moving forward to support

the family and the child,” the court sustained father’s objection and

told the jury to disregard the caseworker’s testimony. See People in

Interest of A.W., 2015 COA 144M, ¶ 27 (“[A]bsent evidence to the

contrary, we presume that a jury follows a [juvenile] court’s

instructions.” (quoting Qwest Servs. Corp. v. Blood, 252 P.3d 1071,

1088 (Colo. 2011))).

¶ 20 Father also argues that the juvenile court violated his due

process rights because it prevented him from presenting evidence of

his “preferred defense” — i.e. the child was not in an injurious

environment because the child was placed with his sister — when it

declined to give the following jury instruction:

[Father] asserts that Court involvement with

social services is not necessary. [Father]

asserts that he would have agreed and

continues to agree to have his daughter . . .

stay with his sister until he is released from

custody and finds stability. He asserts that

this is a family matter, and he has large family

support, and that the matter can be handled

with a power of attorney giving custody to

[father’s] sister, without involvement from the

government.

In other words, father asserts that he was unable to present a

defense that would have instructed the jury to dismiss the petition

because he was willing to sign a power of attorney, the child was in

the paternal aunt’s care, and thus the Department’s intervention

was unnecessary.

¶ 21 “To protect the parental liberty interest, due process requires

the state to provide fundamentally fair procedures to a parent in a

dependency and neglect proceeding.” C.J., ¶ 27. “The fundamental

requisites of due process are notice and the opportunity to be

heard.” Id. (quoting Hendricks v. Indus. Claim Appeals Off., 809

P.2d 1076, 1077 (Colo. App. 1990)). Consequently, if the juvenile

court prevented father from presenting a viable defense, father’s

due process rights might have been violated.

¶ 22 To be sure, it is a viable defense for a parent to claim that, at

the time of adjudication, a department’s intervention is improper

because the child is not in an injurious environment, nor lacks

proper parental care. But such a defense hinges on whether the

parent seeks to introduce evidence that supports the assertion that

such conditions are satisfied at the time of adjudication, and not

based on speculative acts or circumstances that may take place in

the future.

¶ 23 Specifically, father asserts that he should have been allowed to

present evidence that he would allow paternal aunt to continue her

care of the child after adjudication to counter the Department’s

theory of “prospective harm.” But as discussed above, father had

not signed the power of attorney at the time of adjudication. And

the caseworker testified that father had previously threatened to

pick up the child from the paternal aunt. Thus, the evidence father

wanted to present as part of his defense was speculative because

such acts may or may not take place in the future. And whether or

not a child is dependent or neglected is based on circumstances

that exist at the time of adjudication.

¶ 24 Therefore, under these circumstances, we are not persuaded

that the juvenile court violated father’s due process rights. Cf.

People v. Villa, 240 P.3d 343, 353 (Colo. App. 2009) (“[T]here is no

constitutional right to introduce irrelevant . . . evidence.”); People v.

Harris, 43 P.3d 221, 227 (Colo. 2002) (due process requires only

that the accused be permitted to introduce relevant and admissible

evidence); see also State v. Bergquist, 2019 VT 17, ¶ 53 (“Where a

trial court acts within its discretion to exclude evidence, there is no

due process violation.”); In re J.S., 217 Cal. Rptr. 3d 91, 99 (Ct.

App. 2017) (noting that the due process right to present evidence is

limited to relevant evidence of significant probative value to the

issues before the court). Thus, we discern no basis for reversal of

the juvenile court’s judgment.

IV. Hearsay Evidence

¶ 25 Father also argues that the juvenile court erred when it

allowed a police officer and the caseworker to testify about

statements mother made. We agree that these statements were

inadmissible hearsay. But ample other evidence supported the

jury’s verdict; therefore, we conclude that any error was harmless.

A. Applicable Law

¶ 26 “‘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). A statement

offered against a party that is the party’s own statement is not

hearsay. CRE 801(d)(2).

¶ 27 Generally, error in a civil case is harmless if it does not affect a

substantial right of a party. C.R.C.P. 61; People in Interest of R.D.,

2012 COA 35, ¶ 25. An error affects a substantial right if it

substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself. Bly v. Story, 241 P.3d 529, 535

(Colo. 2010).

B. Analysis

¶ 28 Father objected to the police officer’s testimony relaying to the

jury mother’s statements about father’s assault of her. The

Department countered that mother was a party to the dependency

and neglect proceeding and therefore the statements were not

hearsay and were, instead, admissions of a party opponent under

CRE 801(d)(2). The court agreed and allowed the officer to testify

about mother’s statements.

¶ 29 The caseworker also testified about statements that mother

made to him about the assault and that she used

methamphetamine and fentanyl. Father did not object to this

testimony, but we will consider his arguments related to the

caseworker’s testimony as well because he had no reason to

continue to object to mother’s out-of-court statements after the

court decided that they would be admissible under CRE 801(d)(2).

¶ 30 We agree with father that the juvenile court erred when it

determined the statements were not hearsay. Under CRE 801(d)(2),

an out-of-court statement offered against a party is admissible only

if it is the party’s own statement or if one of the other

circumstances set forth in CRE 801(d)(2)(B)-(E) applies. Such

exceptions generally include circumstances when the statements

offered were made by another but on behalf of father. This is not

the case here.

¶ 31 The statements testified to by the police officer and the

caseworker were made by mother, yet they were used against

father, and no showing was made that any of the circumstances set

forth in CRE 801(d)(2)(B)-(E) applied. Because these portions of the

police officer’s and the caseworker’s testimony were based on

inadmissible hearsay, the court erred by admitting them.

¶ 32 Notwithstanding this error, we conclude that it was harmless

because the jury heard substantial admissible evidence to support

its verdict that the child lacked proper parental care and was in an

injurious environment.

¶ 33 For example, the police officer testified about his own

observations of mother’s injuries including that mother had “fresh

blood” coming from her nose, “a few red marks,” and “two large

bumps” on the side of her head. The officer testified that mother

was transported to the hospital, and pictures he took of her injuries

were admitted and published to the jury. See Blevins v. Tihonovich,

728 P.2d 732, 734 (Colo. 1986) (the witness’s testimony was based

on his direct observations and therefore not hearsay).

¶ 34 And father invoked his Fifth Amendment right against self-

incrimination when asked (1) why he was incarcerated; (2) to

explain mother’s injuries in the photographs taken by the police

officer; (3) to describe “what happened when [he was] in the vehicle

with mother and the child” on the date of the incident; and (4)

whether it was safe to have a child in a home where there was

substance use. The court correctly instructed the jury that it may,

but was not required to, draw an inference that the answer to any

question father refused to respond to would have been unfavorable

to him. See Asplin v. Mueller, 687 P.2d 1329, 1332 (Colo. App.

1984) (the fact finder may infer “that the answers would have been

unfavorable and damaging” when a testifying party in a civil case

declines to answer questions on Fifth Amendment grounds).

¶ 35 Accordingly, we conclude that the juvenile court did not

commit reversible error. See C.R.C.P. 61 (“The court at every stage

of the proceeding must disregard any error or defect in the

proceeding which does not affect the substantial rights of the

parties.”); see also People v. Wilson, 2013 COA 75, ¶ 24 (An error is

harmless if, “in light of the entire record, the error did not

substantially influence the verdict or impair the fairness of the

trial.”).

V. Conclusion

¶ 36 We affirm the judgment.

JUDGE GRAHAM and JUDGE HAWTHORNE concur.

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