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People ex rel. G.E.S.

Court of Appeals of Colorado, Fourth Division

December 15, 2016

The People of the State of Colorado, Petitioner-Appellee, In the Interest of G.E.S., Child, and Concerning G.S., Respondent-Appellant.

         Arapahoe County District Court No. 15JV1163 Honorable Bonnie McLean, Judge

         JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

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

          Ranee Sharshel, Alison A. Bettenberg, Guardians Ad Litem Pickard & Ross, P.C., Joe Pickard, Justin Ross, Kerry Simpson, Littleton, Colorado, for Respondent-Appellant

          OPINION

          JUDGE J.

         ¶ 1 G.S. (father) appeals the judgment adjudicating his daughter, G.E.S., dependent and neglected and adopting a treatment plan for him. Because we conclude that the district court erred in admitting unduly prejudicial testimony regarding polygraph examinations, we reverse the judgment adjudicating the child dependent and neglected as well as the related dispositional order adopting a treatment plan, and remand the case for a new trial.

         I. Background

         ¶ 2 In May 2015, father's then twelve-year-old stepdaughter, J.O-E., told her therapist that father had made her uncomfortable by talking about inappropriate things and touching her inappropriately. The therapist called the police and the Arapahoe County Department of Human Services (department).

         ¶ 3 An intake caseworker from the department immediately went to meet with the child at the therapist's office, and the child made similar statements to the caseworker. The child then participated in a recorded forensic interview. She said that father had touched both her vaginal area and her breasts and had talked to her about sexual things.

         ¶ 4 Shortly thereafter, however, the child told her mother that her statements about father sexually abusing her were untrue. The child met with a police detective and, in another recorded interview, recanted her prior statements that father had acted inappropriately toward her. The police closed their case.

         ¶ 5 In the meantime, the family voluntarily cooperated with the department and followed the department's recommended safety plan. As part of the plan, father left the family home and had no contact with his infant child (G.E.S.) or any of his three stepchildren. The department also asked him to complete a psychosexual evaluation and disclose the results to the department. Father agreed to do the evaluation and completed it after a few months. The evaluator recommended that father undergo a polygraph examination, but father declined.

         ¶ 6 Although the child had recanted, the department believed the child's original statements about sexual abuse by father. Explaining that father's unwillingness to undergo the recommended polygraph examination prevented the case from moving forward voluntarily, the department filed a dependency and neglect petition as to G.E.S.

         ¶ 7 Father denied the petition's allegations and requested a jury trial. At trial, the department sought to prove that G.E.S. was dependent and neglected because:

. the parent subjected the child to mistreatment or abuse or had suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; . the child lacked proper parental care through the acts or omissions of the parent;
. the child's environment was injurious to her welfare; and
. the parent failed or refused to provide proper or necessary subsistence, education, medical care, or any other care necessary for the child's health, guidance, or well-being. See § 19-3-102(1)(a)-(d), C.R.S. 2016.

         ¶ 8 The department argued that this was a prospective harm case. See People in Interest of D.L.R., 638 P.2d 39, 43 (Colo. 1981) (the statutory grounds for dependency and neglect can be satisfied by showing prospective harm to the child). Its theory was that G.E.S. was at risk in the future because father had sexually abused his stepdaughter and had not cooperated with the department in attempting to assess the safety of the home. See People in Interest of S.N., 2014 COA 116, ¶¶ 16-17 ("[T]o determine whether a child is dependent and neglected based on prospective harm, it must be determined whether it is likely or expected that the child will lack proper parental care through the actions or omissions of the parent . . . . Prospective harm thus requires a prediction of whether, based on the parent's past conduct and current circumstances, it is likely or expected that the parent will fail to provide proper care for the child in the future.") (citation omitted).

         ¶ 9 The court presented the jurors with a special verdict form, which asked the following questions:

Question 1: Did [father] mistreat or abuse [G.E.S.] or tolerate or allow another person to mistreat or abuse [G.E.S.] without taking lawful means to stop such mistreatment or abuse and prevent it from being repeated?
Question 2: Is [G.E.S.] lacking proper parental care as a result of [father]'s acts or failures to act?
Question 3: Is [G.E.S.]'s environment injurious to her welfare as a result of [father]'s acts or failure[s] to acts?
Question 4: Did [father] fail or refuse to provide proper or necessary subsistence, education, medical care or any other care necessary for [G.E.S.]'s health, guidance, or well-being?

         ¶ 10 The jury answered "Yes" to the first three questions but "No" to the fourth.

         ¶ 11 After the jury returned its verdict, the court entered judgment adjudicating G.E.S. dependent and neglected. The court then held a dispositional hearing at which father agreed to the ...


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