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.
County District Court No. 13JV34 Honorable Michael A.
Barkey, County Attorney, Rebecca Tyree, Assistant County
Attorney, Craig, Colorado, for Petitioner-Appellee and
Heather Cannon, Guardian Ad Litem.
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
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.
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.
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
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 by the evaluator"
and "complete therapy according to SOMB
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. 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
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
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 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
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 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 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
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
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.
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.
Preservation and Standard of Review
22 Father preserved this issue by raising it in his closing
argument at the termination hearing. 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, 2012 COA 157, ¶ 96
(holding that the trial court did not 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, 2015 CO 42.
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., 215 P.3d 1237, 1248 (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 ...