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People ex rel. S.M-L.

Court of Appeals of Colorado, Fifth Division

November 17, 2016

The People of the State of Colorado, Petitioner-Appellant, In the Interest of S.M-L., B.M-M., and R.S., Children, and Concerning G.S., Respondent-Appellant, and D.S., Respondent-Appellee.

         Arapahoe County District Court No. 16JV53 Honorable Theresa M. Slade, Judge


          Ron Carl, County Attorney, Marilee M. McWilliams, Senior County Attorney, Aurora, Colorado, for Petitioner-Appellant

          Alison A. Bettenberg, Ranee Sharshel, Guardians Ad Litem The Law Office of Jeffrey J. Timlin, Jeffrey J. Timlin, Denver, Colorado, for Respondent-Appellant Oxman & Oxman, P.C., Chad Oxman, Denver, Colorado, for Respondent-Appellee


          FREYRE, JUDGE

         ¶ 1 In this dependency and neglect proceeding, we are asked to decide an issue of first impression: Is a jury's finding that a child is not dependent or neglected and the court's denial of a C.R.C.P. 59(e) motion asking for adjudication notwithstanding the jury's verdict a final and appealable order? We conclude that it is not, because neither C.A.R. 3.4(a) nor the Children's Code provides a right to appeal from such findings.

         ¶ 2 In this case, the Arapahoe County Department of Human Services (the Department) appeals the denial of its motion for an adjudication notwithstanding the verdict after a jury found that R.S. was not dependent or neglected as to father (D.S.). Mother (G.S.) appeals the order adjudicating S.M-L., B.M-M., and R.S. dependent and neglected as to her. We dismiss the Department's appeal and affirm mother's adjudication.

         I. Background

         ¶ 3 The Department filed a dependency and neglect petition regarding sixteen-year-old S.M-L., twelve-year-old B.M-M., and eight-year-old R.S. (the children). The petition named D.S. as R.S.'s biological father and named G.S. as all of the children's mother. The Department asserted that father had sexually abused his stepdaughter, S.M-L., based on S.M-L.'s credible and consistent reports to it and to a forensic interviewer. Consequently, father was arrested and criminally charged with sexual abuse. The Department stated that father denied the allegations and that mother believed S.M-L. was lying about them. Finally, the Department noted that it had implemented a safety plan that required father to leave the home and to have supervised contact with his stepson, B.M-M., and his daughter, R.S. The children remained at home with mother.

         ¶ 4 Mother and father denied the allegations in the petition and each requested a trial. Mother requested a bench trial, and father requested a jury trial. The court empaneled a jury for father and heard evidence presented to the jury as the fact finder for mother. During the jury trial, the State presented evidence from S.M-L., as well as the Department's investigator, the Department's caseworker, the forensic interviewer, mother, and a psychologist.

         ¶ 5 S.M-L. testified that she had told mother about the sexual abuse and that mother thought she was lying. She confirmed that she had told the caseworker and forensic interviewer about the abuse and that her story was true. However, on cross-examination, she recanted and said that nothing inappropriate had occurred.

         ¶ 6 The Department's investigator, who was qualified as an expert in sexual abuse, child protection, and social work, testified that he had met with S.M-L., and that she had confirmed the sexual abuse. He said S.M-L.'s description to him was consistent with the forensic interview and that she "was very clear about the abuse that happened to her." Thus, nothing caused him concern that S.M-L. had been coached. He also said that mother did not believe S.M-L., which raised child protection concerns as to the remaining children.

         ¶ 7 The Department's caseworker, who was qualified as an expert in child protection and social work, testified that the Department's main concern was father's sexual abuse of S.M-L. She opined that S.M-L.'s outcry was accurate and that the allegations had not been fabricated. She said mother did not believe the allegations, was not supportive of S.M-L., and had pressured S.M-L. to say that nothing had happened. Finally, the caseworker expressed concerns regarding mother's ability to protect B.M-M. and R.S. given mother's disbelief of S.M-L.'s allegations.

         ¶ 8 The forensic interviewer, who was qualified as an expert in forensic interviewing and sexual abuse, testified that she had interviewed S.M-L. She confirmed that S.M-L.'s statements were spontaneous and that her language was age appropriate. She opined that S.M-L. "was [not] making anything up" because she had "lot[s] of details that she wouldn't have had if someone [had] coached her or told her what to say." She said S.M-L. seemed sad and upset about not being believed.

         ¶ 9 Mother testified that her sister (S.M-L.'s maternal aunt) had "put all of these ideas in [S.M-L.'s] head" and that S.M-L. was lying about the allegations.

         ¶ 10 Finally, a psychologist, who was qualified as an expert in sexual abuse, testified that there are only a small percentage of false outcries in sexual abuse cases. After reviewing the videotape of the forensic interview, he opined that S.M-L.'s allegations were consistent and spontaneous.

         ¶ 11 After father presented the testimony of his adult stepchild, the trial court instructed the jury to decide whether R.S. was dependent or neglected with respect to father. While the jury deliberated about father, mother presented the remainder of her case to the court, including testifying a second time. ...

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