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.
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
Meinster, Guardian Ad Litem
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.
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.
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
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'
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
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.
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).
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.
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)).
Applicable Law: C.R.C.P. 47 and Relevant Pattern Jury
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
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