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People ex rel. M.H-K.

Court of Appeals of Colorado, Third Division

December 13, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of M.H-K., a Child, and Concerning S.K. and M.C.H., Respondents-Appellants.

          City and County of Denver Juvenile Court No. 17JV1190 Honorable Laurie A. Clark, Judge

          Kristin M. Bronson, City Attorney, Brian P. Fields, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee

          Barry Meinster, Guardian Ad Litem

          The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for Respondent-Appellant S.K.

          Melanie Jordan, Respondent Parent's Counsel, Denver, Colorado, for Respondent-Appellant M.C.H.

          OPINION

          HARRIS, JUDGE

          ¶ 1 Mother, S.K., and father, M.C.H., appeal the judgment of adjudication that the juvenile court entered after a jury found their infant son, M.H-K., dependent and neglected.

         ¶ 2 The parents raise several contentions of error. We need address only two. We conclude that the juvenile court erred by incorporating the detailed allegations of the petition in dependency and neglect into its statement-of-the-case instruction to the jury and by admitting evidence that mother refused to submit herself and her child to drug testing before the petition had been filed.

         ¶ 3 Because the errors are not harmless, we reverse the judgment and remand the case for a new trial.

         I. Background

         ¶ 4 The child weighed approximately seven pounds at birth, but he lost twelve percent of his birthweight in the next three days. The hospital social worker had concerns that the baby (who was breastfeeding) was not being fed enough, that the parents were not sufficiently "responsive to advice or information that hospital personnel were providing" to them, and that "perhaps substance use was going on." Her "greatest concern," however, was that, while "typical first-time mother[s]" tend to "ask[] a lot of questions and [are] nervous about the care of a baby," she "didn't see evidence of that" with mother. Based on these concerns, the hospital social worker reported the family to the Denver Department of Human Services (the Department). The Department was also informed that mother had refused to allow the hospital to test her or the child for drugs.

         ¶ 5 Around the same time, the Department received a second referral, from an unknown source, stating that mother and father might be using methamphetamine.

         ¶ 6 Upon receipt of the referrals, a caseworker visited the family at their pop-up camper. The child was six days old.

         ¶ 7 The visit went badly. The caseworker asked both parents to submit to drug testing, and she asked mother to stop breastfeeding the child until mother could show that she was not using controlled substances. Both parents refused. The caseworker later described mother's reaction as "escalated" and father's as "escalated," "hostile," and "volatile."

         ¶ 8 The caseworker believed that the child's environment was unsafe because she could not determine whether the parents were using controlled substances and because the parents had been "hostile and volatile" in their interactions with her. As a result, she obtained a "judge's hold" granting the Department custody of the child and immediately removed him from the home.

         ¶ 9 Two days later, the Department filed a petition in dependency and neglect. The petition contained a detailed case history, including a summary of the referrals that prompted the Department's action and a description of the caseworker's encounter with the parents and the removal of the child.

         ¶ 10 At the Department's request, a magistrate ordered the parents to submit to sobriety monitoring. The magistrate ruled that the tests were for safety purposes and their results would not be admissible at the parents' adjudicatory trial.

         ¶ 11 Shortly before the trial, the Department amended the case history portion of the petition. It added information that included the dates the parents had missed court-ordered drug tests and the results of the tests they had taken.[1]

          ¶ 12 At the beginning of the adjudicatory trial, as part of its statement of the case instruction, the juvenile court read the entire amended case history portion of the petition to the venire. Later, the court also admitted evidence that mother had declined requests for drug testing before the Department had even filed the petition.

         ¶ 13 The jury determined that the child was dependent and neglected because his environment was injurious to his welfare, he was lacking proper parental care, and his parents had failed or refused to provide proper or necessary subsistence, education, medical care, or other care. See § 19-3-102(1)(b)-(d), C.R.S. 2018.

         II. Legal Principles Related to Adjudicatory Proceedings

         ¶ 14 Parents have a fundamental liberty interest in the care, custody, and management of their children. People in Interest of J.G., 2016 CO 39, ¶ 20. The purpose of the adjudicative process is to determine whether the factual allegations in a dependency and neglect petition are supported by a preponderance of the evidence so as to warrant intrusive state intervention into the familial relationship. Id. at ¶ 18. Adjudication vests the court with extensive dispositional remedies and opens the door to termination of parental rights. People in Interest of A.M.D., 648 P.2d 625, 639 (Colo. 1982).

         ¶ 15 Thus, "[e]nsuring a fair procedure at the adjudicatory stage is critical." People in Interest of J.W., 2016 COA 125, ¶¶ 20-21, rev'd on other grounds sub nom. People in Interest of J.W. v. C.O., 2017 CO 105, ¶¶ 20-21; see also A.M.D., 648 P.2d at 639. "The importance of the adjudicatory stage is reflected in the fact that a parent has a statutory right to a jury trial on the allegations set forth in the petition in dependency or neglect." J.W., ¶ 22. Of course, the right to have an impartial jury decide a case on the evidence presented at trial is a "substantial right" under C.R.C.P. 61. Canton Oil Corp. v. Dist. Court, 731 P.2d 687, 696 (Colo. 1987).

         III. The Juvenile Court's Statement of the Case Instruction

         ¶ 16 Father contends that the juvenile court committed reversible error when it incorporated the case history portion of the petition into its statement of the case instruction to prospective jurors. We agree. We further conclude that the error requires reversal because it impaired the basic fairness of the trial.

         A. Standard of Review and Preservation

         ¶ 17 A trial court must correctly instruct the jury on applicable law, but it retains substantial discretion over the form and style of jury instructions. Townsend v. People, 252 P.3d 1108, 1111 (Colo. 2011). Accordingly, we review legal conclusions implicit in jury instructions de novo, but review issues of form and style for an abuse of discretion. Id. We conclude, and the parties agree, that the juvenile court's formulation of the statement of the case instruction is an issue of form and style and is therefore reviewed under the abuse of discretion standard. A trial court abuses its discretion when it instructs a jury in a way that is manifestly arbitrary, unreasonable, or unfair, J.G., ¶ 33, or when it misconstrues the law, including a rule of procedure, see People v. Ehrnstein, 2018 CO 40, ¶ 13.

         ¶ 18 Both parents objected to the juvenile court reading the case history portion of the petition to the jury. The Department and the guardian ad litem acknowledge the parents' objection, but they nonetheless contend that the parents invited any error by failing to tender an alternate instruction. That contention misses the mark.

         ¶ 19 The invited error doctrine encapsulates the principle that "a party may not complain on appeal of an error that he has invited or injected into the case[.]" Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002) (quoting People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989)). The doctrine prevents a party from inducing an inappropriate or erroneous ruling and then later seeking to profit from that error. Id.

         ¶ 20 Here, for example, if the parents had requested that the juvenile court read the entire petition as its introductory instruction, they would be barred by the invited error doctrine from complaining on appeal that the court had read the petition. See Zapata, 779 P.2d at 1309. But the parents did not ask the court to read the petition; they asked the court not to read the petition. And the court denied their request. Accordingly, we conclude that the invited error doctrine does not apply and that the parents have preserved the issue for review.

         ¶ 21 In a civil case, a properly preserved objection to an instruction is subject to review for harmless error. Gasteazoro v. Catholic Health Initiatives Colo., 2014 COA 134, ¶ 12. Under this standard, reversal is required only if the error prejudiced a party's substantial rights. McLaughlin v. BNSF Ry. Co., 2012 COA 92, ¶ 32; see also C.R.C.P. 61. "An error affects a substantial right only if 'it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself.'" Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (quoting Banek v. Thomas, 733 P.2d 1171, 1178-79 (Colo. 1986)).

         B. Applicable Law: C.R.C.P. 47 and Relevant Pattern Jury Instructions

         ¶ 22 To facilitate the jury selection process, at the outset of a case the district court must orient prospective jurors to the proceedings and inform them about their duties and service. C.R.C.P. 47. As part of this orientation, the court must explain the nature of the case, in plain and clear language, using either "the parties' [pattern jury instruction]" or "a joint statement of factual information intended to provide a relevant context for the prospective jurors to respond to questions asked of them." C.R.C.P. 47(a)(2)(IV); see also C.R.C.P. 16(g) ("Counsel for the parties shall confer to develop jointly proposed jury instructions and verdict forms to which the parties agree."). Upon request, the court may allow counsel to "present such information through brief non-argumentative statements." C.R.C.P. 47(a)(2)(IV). "The imparted information and instructions should be clear and as neutral as possible." C.R.C.P. 47 cmt.

         ¶ 23 C.R.C.P. 47(a)(2)(IV) directs courts to use CJI-Civ. 2:1 (2018) to effectuate Rule 47. Pattern Instruction 2:1, in turn, instructs that, in dependency and neglect cases, chapter 41's pattern jury instructions apply. See CJI-Civ. 2:1 notes on use 6.

         ¶ 24 Pattern Civil Jury Instruction 41:1, Introductory Remarks to Jury Panel, establishes a model instruction for an introductory statement of the case instruction for the jury panel. See CJI-Civ. 41:1 source and authority (2018). As relevant here, the pattern instruction reads as follows:

The case is based upon a petition that claims: (insert the relevant portions of the petition).
You should understand that these are only claims and that you should not consider the claims as evidence in the case.
The respondent(s) (has) (have) denied the claims made in the petition. The Petitioner has the burden of proving the facts claimed in the petition by a preponderance of the evidence. The purpose of this trial is to determine whether the claims made in the petition are true.

Id. (italics in original).

         ¶ 25 Pattern Civil Jury Instruction 41:4 models a statement of the case instruction that courts may provide after the close of ...


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