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People ex re. L.K.

Court of Appeals of Colorado, Second Division

July 14, 2016

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.

         Moffat County District Court No. 13JV34 Honorable Michael A. O'Hara, Judge

          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


          WEBB JUDGE.

         ¶ 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.

         ¶ 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 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 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 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 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 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.

         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, 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.

         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., 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 ...

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