The People of the State of Colorado, Petitioner-Appellee, In the Interest of J.G., J.P., S.L., and C.L., Children, and Concerning M.L., Respondent-Appellant.
Announced December 31, 2014
Fremont County District Court No. 14JV9 Honorable David M. Thorson, Judge
Rocco F. Meconi, P.C., Rocco F. Meconi, Cañon City, Colorado; Daniel B. Slater, Cañon City, Colorado, for Petitioner-Appellee
Leon J. Dicks, Joanna K. Smith, Guardians Ad Litem Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent-Appellant
¶ 1 In this dependency and neglect proceeding, M.L. (mother) appeals from the decree adjudicating J.G., J.P., S.L., and C.L. (the children) dependent and neglected, and from the subsequent dispositional order. We reverse and remand the case for further proceedings.
¶ 2 We clarify what is meant by the statement that a child is not adjudicated dependent and neglected "as to" a parent, see People in Interest of P.D.S., 669 P.2d 627 (Colo.App. 1983), and People in Interest of T.T., 128 P.3d 328 (Colo.App. 2005); conclude that the jury was properly instructed to consider each child's status without assessing blame or fault on the part of a parent; but further conclude that by not requiring the jury to consider the children's status in relation to each parent, the jury instructions and special verdict form the trial court provided were erroneous.
¶ 3 In January 2014, the Fremont County Department of Human Services (FCDHS) learned that five-year-old S.L. had told her parents that her half-brother, eleven-year-old Jo.G., had touched her inappropriately while she was trying to sleep. Mother and B.L. (father L.) immediately reported the incident to police. Investigation revealed that Jo.G. had also touched the private parts of his full sister, eight-year-old J.P. Jo.G. was criminally charged, and temporarily returned to the family home until an appropriate placement could be found. Jo.G.'s half-brothers, twelve-year-old J.G. and seven-year-old C.L., and the two girls were temporarily placed in the care of family members. When Jo.G. was moved to an offense specific foster home, his four siblings returned to the family home under the protective supervision of FCDHS.
¶ 4 FCDHS then filed a petition in dependency and neglect alleging that all five children were dependent and neglected. Mother admitted that Jo.G. was a dependent and neglected child, later stating that she had done so because she was not able to then meet his needs and she did not believe that she could safely have him in her home with the other four children "until we can figure out what's going on with him." She denied that the other four children were dependent and neglected and requested a jury trial on the issue of their adjudication.
¶ 5 Less than a week after mother's request for an adjudicatory trial, FCDHS moved for summary judgment, arguing in part that the environment in which Jo.G. was able to sexually act out against his sisters was injurious to all of the children and thus sufficient to adjudicate each of them as a dependent and neglected child. Acknowledging that "[i]t may be argued that no injurious environment currently exists because the parents have taken steps to address the issue and since [Jo.G.] is no longer in the home, " FCDHS argued that nevertheless, the "evidence must be considered in the context of the child's history as well as the parent[s'] prior behavior."
¶ 6 As evidence that all four of the children remaining in the home were subject to "conditions and dangers" sufficient to adjudicate them as dependent and neglected children, FCDHS offered the sworn affidavit of one of its caseworkers. The affidavit documented FCDHS's concerns about the family beyond Jo.G.'s conduct and the steps mother and father L. had taken to prevent further incidents. Among other things, the caseworker stated that mother and father L. had a "long standing history" with FCDHS. This history included the parents being the subjects of earlier dependency and neglect proceedings, and two registered sex offenders who were part of father L.'s family and had been allowed to interact with the children. The trial court denied the motion for summary judgment on February 21, 2014, and the adjudicatory trial began three days later.
¶ 7 Before trial, mother moved to exclude all evidence of her prior involvement or contacts with FCDHS not related to the current case and all evidence of unrelated criminal misconduct, including (1) notes and written reports prepared for the current case, including hearsay statements by several people, speculation by the caseworker regarding the thoughts and feelings of other persons, and other irrelevant or prejudicial material; (2) evidence about a 2010 domestic violence charge that was dismissed after she successfully completed a deferred sentence; (3) evidence relating to a 2003 dependency and neglect proceeding that was successfully closed after she completed her treatment plan; and (4) a psychological evaluation that had been performed on her in 2003.
¶ 8 Mother specifically argued that the evidence relating to the domestic violence charge and the 2003 dependency and neglect proceeding was remote in time, and involved facts completely unrelated to the sibling-on-sibling sexual assault that led to the filing of the current proceeding, and that the unfairly prejudicial effect of allowing such evidence would outweigh any potential probative value. FCDHS argued in response that in a dependency and neglect proceeding, evidence of a parent's past behavior is relevant to establish a pattern of abuse or neglect.
¶ 9 At trial, the court ruled that documents showing the "court history" of each of the parents would not be admitted because they contained too much irrelevant information. However, the court allowed FCDHS to introduce evidence relating to the 2003 dependency and neglect proceeding, including mother's psychological evaluation, because such evidence was relevant to show why FCDHS would be reluctant to trust mother to take appropriate action on her own or to accept voluntary services. The court also overruled mother's objection to the admission of "record of contact" notes recorded by the caseworker; overruled her objection to questions concerning the 2010 domestic violence charges against her; and denied her motion for a mistrial based on the admission of the domestic violence evidence.
¶ 10 After two days of testimony, the jury was given instructions and asked to determine whether each of the four children whose status was to be determined lacked proper parental care as a result of one of his or her parents' acts or failures to act; whether each child was homeless, without proper care, or not domiciled with a parent through no fault of such parent; and whether each child's environment was injurious to the child's welfare. The jury found that none of the children lacked proper parental care as a result of a parent's acts or failures to act, and none were homeless, without proper care, or not domiciled with a parent through no fault of such parent. But, because the jury found that each child's environment was injurious to his or her welfare, the court ...