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People ex rel. A.N-B.

Court of Appeals of Colorado, First Division

March 21, 2019

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 Meinster, Judge

          Ellen G. Wakeman, County Attorney, Sarah L. Oviatt, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee

          Diana M. Richett, Guardian Ad Litem

          Ingelhart Law Office LLC, Kimberly A. Ingelhart, Glenwood Springs, Colorado, for Respondent-Appellant D.B.

          The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for Respondent-Appellant R.N.

          OPINION

          TOW, JUDGE

         ¶ 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 affirm.

         I. Background

         ¶ 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 proceedings.

         ¶ 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.

         II. Analysis

         A. The Juvenile Court Did Not Violate Mother's Attorney-Client Privilege

         ¶ 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 disagree.

         1. Additional Background

         ¶ 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.

         2. 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 ...


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