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People ex rel. E. R.

Court of Appeals of Colorado, Division A

April 19, 2018

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.

          Mesa County District Court No. 16JV321 Honorable Valerie J. Robison, Judge

          J. Patrick Coleman, County Attorney, Katherine A. Barnes, Assistant County Attorney, Grand Junction, Colorado, for Petitioner-Appellee

          Martha 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).

         I. Background

         ¶ 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.

         II. Hearsay

         ¶ 4 Mother contends that certain test results to which the child's physician testified were inadmissible hearsay under CRE 803(4). We disagree.

         A. Legal Standards

         ¶ 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.

         ¶ 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 802.

         ¶ 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 (Colo.App. 2008).

         B. Application

         ¶ 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 ...

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