The People of the State of Colorado, Petitioner-Appellee, In the Interest of E.R., a/k/a E.M., a Child, and Concerning A.M., Respondent-Appellant.
County District Court No. 16JV321 Honorable Valerie J.
Patrick Coleman, County Attorney, Katherine A. Barnes,
Assistant County Attorney, Grand Junction, Colorado, for
Kent, Guardian Ad Litem Debra W. Dodd, P.C., Debra W. Dodd,
Berthoud, Colorado, for Respondent-Appellant
1 In this dependency and neglect proceeding, mother, A.M.,
appeals the trial court's judgment of adjudication and
disposition regarding her child, E.R., a/k/a E.M. We affirm
the adjudication order, reverse the dispositional order, and
remand the case to the trial court to ensure compliance with
the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§§ 1901-1963 (2012).
2 The child was born prematurely and spent six weeks in the
hospital. The Mesa County Department of Human Services
(Department) sought and received emergency custody after the
hospital reported that it could not locate his parents to
take him home. The Department later filed a petition in
dependency and neglect. At a shelter hearing, the court
granted the Department's request to return the child to
his parents' care under the Department's supervision.
3 The court held an adjudicatory trial three months later. As
the sole basis for adjudication, the court found that the
child had tested positive for a schedule II controlled
substance at birth, and that the positive test did not result
from mother's lawful use of prescribed medication.
See § 19-3-102(1)(g), C.R.S. 2017. To support
its finding, the court relied on testimony from a physician
specializing in neonatal care who had cared for the child
immediately after his birth.
4 Mother contends that certain test results to which the
child's physician testified were inadmissible hearsay
under CRE 803(4). We disagree.
5 A child is dependent and neglected if the child tests
positive at birth for a controlled substance. §
19-3-102(1)(a). Whether a child is dependent and neglected
presents a mixed question of fact and law because it requires
application of the statutory grounds to the evidentiary
facts. People in Interest of S.N. v. S.N., 2014 CO
64, ¶ 21.
6 We review a trial court's decision to admit or exclude
evidence for an abuse of discretion. In Interest of
L.B., 2017 COA 5, ¶ 58. A trial court abuses its
discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law.
Id.; Reisbeck, LLC v. Levis, 2014 COA 167,
7 Hearsay is a statement other than one made by the declarant
while testifying at trial that is offered in evidence to
prove the truth of the matter asserted. CRE 801. Hearsay is
not admissible except as provided by statute or rule. CRE
8 CRE 803(4) creates a hearsay exception for "statements
made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment." This provision
thus creates an exception for statements (1) made for
purposes of medical diagnosis or treatment; (2) that describe
medical history, symptoms, or the inception or cause of
symptoms; (3) insofar as they are reasonably pertinent to
diagnosis or treatment. Kelly v. Haralampopoulos,
2014 CO 46, ¶¶ 19-20; King v. People, 785
P.2d 596, 600 (Colo. 1990). "[A] statement made in the
course of procuring medical services, where the declarant
knows that a false statement may cause misdiagnosis or
mistreatment, carries special guarantees of
credibility." White v. Illinois, 502 U.S. 346,
356 (1992). Such a statement carries with it a presumption of
reliability because of a declarant's belief that the
effectiveness of the treatment may depend largely upon the
accuracy of the information provided to the physician.
See People v. Jaramillo, 183 P.3d 665, 669
9 Here, the physician who cared for the child testified that
he was a licensed medical doctor with board certification in
pediatrics and neonatology. The physician had provided
newborn intensive care for twenty-three years. Without