The People of the State of Colorado, Petitioner-Appellee, In the Interest of A.N-B., I.N-B., I.N-B., and A.N-B., Children, and Concerning D.B. and R.N., Respondents-Appellants.
Jefferson County District Court No. 17JV31 Honorable Ann Gail
G. Wakeman, County Attorney, Sarah L. Oviatt, Assistant
County Attorney, Golden, Colorado, for Petitioner-Appellee
M. Richett, Guardian Ad Litem
Ingelhart Law Office LLC, Kimberly A. Ingelhart, Glenwood
Springs, Colorado, for Respondent-Appellant D.B.
Morgan Law Office, Kris P. Morgan, Colorado Springs,
Colorado, for Respondent-Appellant R.N.
1 Mother, D.B., and father, R.N., appeal the juvenile
court's judgment terminating their parent-child
relationships with A.N-B., I.N-B., I.N-B., and A.N-B. We
2 The family has been involved with child protective services
agencies on two prior occasions. In January 2014, the Adams
County Department of Human Services opened a voluntary case
with the family after one of the boys suffered a fractured
femur while in father's care. The child was then six
months old. The injury was not explained. The case was closed
in June 2014.
3 In September 2014, the same child suffered another
fractured femur and fractured ribs. At the same time, the
other twin was found to have healing fractures to his ribs,
skull, and forearm. The Adams County Department of Human
Services opened a dependency and neglect case. The case was
closed with mother having full custody of the children,
supervised visitation for father, and a permanent protection
order barring father from contact with the boy who had
suffered fractured femurs.
4 In this case, in January 2017, the Jefferson County
Division of Children, Youth, and Families filed a petition in
dependency and neglect after mother left the three-year-old
twins home alone for over six hours. Neighbors reported that
the children were screaming and crying. Police arrived to
find the children locked in a bedroom with no food or water.
The room smelled of urine, and the home was extremely dirty.
The Division removed the children and placed them with their
maternal grandfather, where they remained throughout the
5 The juvenile court adjudicated the children dependent and
neglected. In March 2017, the court adopted treatment plans
for the parents. On August 28, 2017, the guardian ad litem
(GAL) filed a motion to terminate the parent-child
relationships. Over three days in December 2017 and January
2018, the court conducted an evidentiary hearing on the
motion to terminate. In January 2018, the court terminated
both parents' parental rights.
Juvenile Court Did Not Violate Mother's Attorney-Client
6 Mother contends that the juvenile court violated her
attorney-client privilege when it required disclosure of a
report drafted by mother's expert and admitted the report
and the expert's testimony at the termination hearing. We
7 Before the hearing, mother requested appointment of an
expert in child psychology to evaluate her parenting time.
Due to mother's indigency, the expert was appointed at
state expense pursuant to section 19-3-607(1), C.R.S. 2018.
The expert conducted a parent-child interactional evaluation,
which included a clinical interview of mother and direct
observation of mother interacting with each of the four
children. Based on the expert's report, mother elected
not to call the expert as a witness.
8 Just prior to the hearing, the GAL requested that the
expert's report be disclosed to her. Mother objected,
asserting that the report was protected by attorney-client
privilege. The juvenile court ordered the report disclosed
and permitted the GAL to call the expert to testify to the
results of his evaluation at the termination hearing.
Standard of Review
9 We review the juvenile court's resolution of discovery
issues for an abuse of discretion. People in Interest of
A.D.T., 232 P.3d 313, 316 (Colo.App. 2010). We also
review the juvenile court's evidentiary rulings for an
abuse of discretion. People in Interest of M.V.,
2018 COA 163, ¶ 52. A juvenile court abuses its
discretion "when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law."
People in Interest of E.R., 2018 COA 58, ¶
6. The application of the attorney-client privilege
is a question of law we review de novo. People v.
Trammell, 2014 COA 34, ¶ 9. 3. State-Paid Experts
and the Attorney-Client Privilege
10 In 1977, the Colorado legislature enacted the Parent-Child
Legal Relationship Termination Act of 1977. Ch. 248, 1977
Colo. Sess. Laws 1026-1032. In this Act, the legislature
provided that "[a]n indigent parent has the right to
have appointed one expert witness of his own choosing whose
reasonable fees and expenses, subject to the court's
review and approval, shall be paid by the state of Colorado
pursuant to section 19-11-110." Sec. 1, §
19-11-107(1), 1977 Colo. Sess. Laws at 1028. Ten years later,
when the legislature repealed and reenacted the Colorado
Children's Code, this provision was relocated to section
19-3-607, altering only the section reference to the new
section 19-3-610. Ch. 138, sec. 1, § 19-3-607(1), 1987
Colo. Sess. Laws 790. The provision has since been
substantively amended only once, when the legislature
transferred the budgetary review and approval of the
expert's fees and costs from the court to the office of
the respondent parents' counsel. Ch. 216, sec. 1, §
19-3-607(1), 2016 Colo. Sess. Laws 830.
11 When an indigent parent's attorney requests the
appointment of an expert under this provision, the
attorney-client privilege generally protects communications
between the parent and the expert. B.B. v. People,
785 P.2d 132, 138 (Colo. 1990) (interpreting section
19-11-107(1), C.R.S. 1986). However, this privilege "is
not absolute." D.A.S. v. People, 863 P.2d 291,
295 (Colo. 1993). In other words, "under a variety of
circumstances the cloak of confidentiality afforded by the
attorney-client privilege does not extend to particular
communications between an attorney (or his agent) and a
client." Id. For example, the "privilege
applies only to statements made in circumstances giving rise
to a reasonable expectation that the statements will be
treated as confidential." Id. (quoting
Lanari v. People, 827 P.2d 495, 499 (Colo. 1992)).
12 In B.B., the expert was retained to conduct a
disability evaluation of the parent, which included
administering intelligence and personality tests as well as
interviewing the parent. 785 P.2d at 134-35. The People
called the expert to testify in their case-in-chief, over the
parent's objection. Id. The supreme court ruled
that, because the expert was an agent of the parent's
attorney, the attorney-client privilege protected
confidential communications between the parent and the
expert. Id. at 139.
13 Three years later, the supreme court addressed the issue
in a different context. In D.A.S., the supreme court
held that the attorney-client privilege did not attach to the
testimony and report of an expert who conducted a
parent-child interactional assessment. 863 P.2d at 295-96. In
distinguishing B.B., the court focused on several
factors, including that (1) much of the expert's
testimony concerned his observations of the children, not the
parent's statements; (2) the parent's attorney knew,
before the expert's appointment, that the expert would
likely conduct the parent-child interactional evaluation; (3)
there was no request to forego the evaluation; (4) the
children participated in the evaluation of the parent ...