COLORADO COURT OF APPEALS 2016COA173
Court of Appeals No. 16CA0685
Arapahoe County District Court No. 16JV53
Honorable Theresa M. Slade, Judge
The People of the State of Colorado,
Petitioner-Appellant,
In the Interest of S.M-L., B.M-M., and R.S., Children,
and Concerning G.S.,
Respondent-Appellant,
and D.S.,
Respondent-Appellee.
APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED
Division V
Opinion by JUDGE FREYRE
Román and Lichtenstein, JJ., concur
Announced November 17, 2016
Ron Carl, County Attorney, Marilee M. McWilliams, Senior County Attorney,
Aurora, Colorado, for Petitioner-Appellant
Alison A. Bettenberg, Ranee Sharshel, Guardians Ad Litem
The Law Office of Jeffrey J. Timlin, Jeffrey J. Timlin, Denver, Colorado, for
Respondent-Appellant
Oxman & Oxman, P.C., Chad Oxman, Denver, Colorado, for
Respondent-Appellee
¶1 In this dependency and neglect proceeding, we are asked to
decide an issue of first impression: Is a jury’s finding that a child is
not dependent or neglected and the court’s denial of a C.R.C.P. 59(e)
motion asking for adjudication notwithstanding the jury’s verdict a
final and appealable order? We conclude that it is not, because
neither C.A.R. 3.4(a) nor the Children’s Code provides a right to
appeal from such findings.
¶2 In this case, the Arapahoe County Department of Human
Services (the Department) appeals the denial of its motion for an
adjudication notwithstanding the verdict after a jury found that
R.S. was not dependent or neglected as to father (D.S.). Mother
(G.S.) appeals the order adjudicating S.M-L., B.M-M., and R.S.
dependent and neglected as to her. We dismiss the Department’s
appeal and affirm mother’s adjudication.
I. Background
¶3 The Department filed a dependency and neglect petition
regarding sixteen-year-old S.M-L., twelve-year-old B.M-M., and
eight-year-old R.S. (the children). The petition named D.S. as R.S.’s
biological father and named G.S. as all of the children’s mother.
The Department asserted that father had sexually abused his
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stepdaughter, S.M-L., based on S.M-L.’s credible and consistent
reports to it and to a forensic interviewer. Consequently, father was
arrested and criminally charged with sexual abuse. The
Department stated that father denied the allegations and that
mother believed S.M-L. was lying about them. Finally, the
Department noted that it had implemented a safety plan that
required father to leave the home and to have supervised contact
with his stepson, B.M-M., and his daughter, R.S. The children
remained at home with mother.
¶4 Mother and father denied the allegations in the petition and
each requested a trial. Mother requested a bench trial, and father
requested a jury trial. The court empaneled a jury for father and
heard evidence presented to the jury as the fact finder for mother.
During the jury trial, the State presented evidence from S.M-L., as
well as the Department’s investigator, the Department’s caseworker,
the forensic interviewer, mother, and a psychologist.
¶5 S.M-L. testified that she had told mother about the sexual
abuse and that mother thought she was lying. She confirmed that
she had told the caseworker and forensic interviewer about the
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abuse and that her story was true. However, on cross-examination,
she recanted and said that nothing inappropriate had occurred.
¶6 The Department’s investigator, who was qualified as an expert
in sexual abuse, child protection, and social work, testified that he
had met with S.M-L., and that she had confirmed the sexual abuse.
He said S.M-L.’s description to him was consistent with the forensic
interview and that she “was very clear about the abuse that
happened to her.” Thus, nothing caused him concern that S.M-L.
had been coached. He also said that mother did not believe S.M-L.,
which raised child protection concerns as to the remaining children.
¶7 The Department’s caseworker, who was qualified as an expert
in child protection and social work, testified that the Department’s
main concern was father’s sexual abuse of S.M-L. She opined that
S.M-L.’s outcry was accurate and that the allegations had not been
fabricated. She said mother did not believe the allegations, was not
supportive of S.M-L., and had pressured S.M-L. to say that nothing
had happened. Finally, the caseworker expressed concerns
regarding mother’s ability to protect B.M-M. and R.S. given mother’s
disbelief of S.M-L.’s allegations.
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¶8 The forensic interviewer, who was qualified as an expert in
forensic interviewing and sexual abuse, testified that she had
interviewed S.M-L. She confirmed that S.M-L.’s statements were
spontaneous and that her language was age appropriate. She
opined that S.M-L. “was [not] making anything up” because she had
“lot[s] of details that she wouldn’t have had if someone [had]
coached her or told her what to say.” She said S.M-L. seemed sad
and upset about not being believed.
¶9 Mother testified that her sister (S.M-L.’s maternal aunt) had
“put all of these ideas in [S.M-L.’s] head” and that S.M-L. was lying
about the allegations.
¶ 10 Finally, a psychologist, who was qualified as an expert in
sexual abuse, testified that there are only a small percentage of
false outcries in sexual abuse cases. After reviewing the videotape
of the forensic interview, he opined that S.M-L.’s allegations were
consistent and spontaneous.
¶ 11 After father presented the testimony of his adult stepchild, the
trial court instructed the jury to decide whether R.S. was dependent
or neglected with respect to father. While the jury deliberated about
father, mother presented the remainder of her case to the court,
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including testifying a second time. Thus, the court considered more
evidence as to mother than the jury considered as to father.
¶ 12 Before the jury returned its verdict as to father, the trial court
made its oral findings regarding mother. The court found that the
allegations in the petition had been proven by a preponderance of
the evidence based on S.M.-L.’s testimony. It made extensive
findings concerning S.M.-L.’s credibility and entered an order
adjudicating the children dependent and neglected. Shortly
thereafter, the jury returned its verdict finding that R.S. was not
dependent or neglected as to father.
¶ 13 The Department moved for an adjudication of father
notwithstanding the verdict under C.R.C.P. 59. It argued that the
evidence was “overwhelming” and “so strong” that the jury’s verdict
was not supported by the record. The trial court denied the motion,
finding, as a matter of law, there was not insufficient evidence to
support the jury’s decision. It noted that the jury followed its
instructions, paid attention throughout the trial, and asked
appropriate questions. See C.R.C.P. 59(e)(1). The court also noted
that there were genuine issues of material fact and that it could not
find the State was entitled to judgment as a matter of law. See
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C.R.C.P. 59(e)(2). Accordingly, it entered an order dismissing father
from the petition.
¶ 14 The Department and mother appeal.
II. The Department’s Appeal
¶ 15 After the Department filed its notice of appeal, we issued an
order to show cause why the appeal should not be dismissed for
lack of a final, appealable order, noting that we were unaware of
any authority for the proposition that dismissing a parent from a
petition based on a jury verdict was a final appealable order. In
response, the Department cited People in Interest of M.A.L., 37 Colo.
App. 307, 592 P.2d 415 (1976), in which the county appealed a jury
verdict not adjudicating the child as dependent or neglected. Based
on the Department’s response, a motions division of this court
allowed the Department’s appeal to proceed and for the issue of
finality to be considered on the merits. Therefore, we now consider
the Department’s appeal and conclude that a jury’s verdict not
adjudicating a party is not a proper basis for requesting an
adjudication notwithstanding the verdict under C.R.C.P. 59(e) and
that the court’s dismissal of a party from a dependency and neglect
petition based on a jury’s verdict is not a final appealable order
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under our appellate rules or the Children’s Code. Accordingly, we
dismiss the Department’s appeal.
A. Standard of Review and Applicable Law
¶ 16 When interpreting a rule or statute, our goal is to determine
and give effect to the legislature’s intent. See People in Interest of
C.L.S., 313 P.3d 662, 666 (Colo. App. 2011); see also People v. Zhuk,
239 P.3d 437, 438 (Colo. 2010) (rules of procedure are interpreted
consistently with principles of statutory construction). We look to
the rule or statute’s language and give effect to the words and
phrases according to their plain and ordinary meanings. Zhuk, 239
P.3d at 439; C.L.S., 313 P.3d at 666. Words or phrases should not
be added to a statute or rule, and the inclusion of certain terms in a
statute or rule implies the exclusion of others. See People in
Interest of J.J.M., 2013 COA 159, ¶ 7.
¶ 17 Colorado Appellate Rule 3.4(a), which governs appeals in
dependency or neglect cases, provides that a party may appeal (1)
orders from dependency or neglect proceedings as permitted by
section 19-1-109(2)(b) and (c), C.R.S. 2016 (appeals); (2) orders
allocating parental responsibilities under section 19-1-104(6),
C.R.S. 2016; (3) final orders entered pursuant to section 19-3-612,
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C.R.S. 2016 (reinstatement of the parent-child legal relationship);
and (4) final orders of permanent legal custody entered pursuant to
sections 19-3-605 and 19-3-702, C.R.S. 2016.
¶ 18 As relevant here, section 19-1-109(2)(c) provides that an order
decreeing a child to be neglected or dependent shall be a final and
appealable order upon the entry of the disposition. Nothing in this
section refers to the dismissal of a party from the petition based on
a jury’s verdict finding that a child was not dependent or neglected
as to that party.
B. Analysis
¶ 19 Because neither C.A.R. 3.4(a) nor section 19-1-109(2)(c)
contains language permitting an appeal from a “no adjudication”
finding, we conclude that the legislature did not intend for such
determinations to be final appealable orders. If the legislature had
intended to permit the direct appeal of a fact finder’s “no
adjudication” decision, it could have done so by express language.
See In re Marriage of Hartley, 886 P.2d 665, 673 (Colo. 1994)
(noting that if the legislature intended the statute to include a
certain provision, it would have included it in the statute); Adams v.
Corr. Corp. of Am., 187 P.3d 1190, 1193 (Colo. App. 2008) (“[I]t is
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presumed that the General Assembly meant what it clearly said.”).
Indeed, section 19-1-109(2)(b), which addresses orders regarding
the termination of parental rights, demonstrates that where the
legislature intended to permit the appeal of orders denying
termination, it did so. § 19-1-109(2)(b) (“An order terminating or
refusing to terminate the legal relationship between a parent or
parents and one or more of the children of such parent or parents
on a petition, or between a child and one or both parents of the
child, shall be a final and appealable order.”) (emphasis added).
¶ 20 In contrast to the express language in section 19-1-109(2)(b)
permitting the appeal of a refusal to terminate parental rights, the
legislature chose not to allow the appeal of findings of “no
adjudication” when it drafted section 19-1-109(2)(c). And we may
not add language to permit such appeals. See Ruiz v. Hope for
Children, Inc., 2013 COA 91, ¶ 14; see also People v. Jaramillo, 183
P.3d 665, 671 (Colo. App. 2008) (stating that courts must respect
the General Assembly’s choice of language and cannot add words to
a statute).
¶ 21 We are aware that, on at least one occasion, a division of this
court entertained the State’s appeal of a jury verdict finding that the
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children were not dependent or neglected. M.A.L., 37 Colo. App.
307, 592 P.2d 415. However, the issue of finality was neither raised
nor addressed on appeal. See People in Interest of H.R., 883 P.2d
619, 621 (Colo. App. 1994). Instead, the division concluded that
the jury, as fact finder, was entitled to resolve the conflicting
evidence and affirmed the trial court’s denial of the People’s motion
for directed verdict. Moreover, the Children’s Code was repealed
and reenacted in 1987, well after M.A.L. was decided. Ch. 138,
1987 Colo. Sess. Laws 695-823. Hence, we do not view that
decision as persuasive precedent on the jurisdictional issue
presented here. See id.
¶ 22 We further note that after the jury determined that R.S. was
not dependent or neglected as to father, the trial court did not have
jurisdiction to enter any orders other than dismissal of the petition.
People in Interest of S.T., 2015 COA 147, ¶ 19 (finding that the court
lacked jurisdiction to enter any orders except dismissal from the
petition once it found the allegations in the petition were not
proven). Thus, the court had no jurisdiction to rule on the
Department’s motion for adjudication notwithstanding the verdict.
See id.
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¶ 23 Accordingly, because a jury’s “no adjudication” verdict is not a
proper basis for a motion for adjudication notwithstanding the
verdict and thus, is not a final appealable order under C.A.R. 3.4(a)
or section 19-1-109(2)(c), we dismiss the Department’s appeal.
III. Mother’s Appeal
¶ 24 Mother challenges her adjudication on several grounds. She
contends that the petition should be dismissed because (1) the
evidence did not support the trial court’s findings that R.S. was
dependent and neglected; (2) the findings regarding B.M-M. related
to events that did not rise to child protection concerns; (3) the court
engaged in conjecture and speculation in making its findings
concerning S.M-L.; and (4) the court misinterpreted the term
“abandoned” in section 19-3-102(1)(a), C.R.S. 2016. We discern no
reversible error.
A. Applicable Law and Standard of Review
¶ 25 A child may be adjudicated dependent or neglected if the State
proves, by a preponderance of the evidence, that one or more of the
conditions set forth in section 19-3-102 exists. As relevant here,
subsections 102(1)(a), (b), (c), and (d) provide that a child is
dependent or neglected if:
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(a) A parent, guardian, or legal custodian has
abandoned the child or has subjected him or
her to mistreatment or abuse or a parent,
guardian, or legal custodian has suffered or
allowed another to mistreat or abuse the child
without taking lawful means to stop such
mistreatment or abuse and prevent it from
reoccurring;
(b) The child lacks proper parental care
through the actions or omissions of the parent,
guardian, or legal custodian;
(c) The child’s environment is injurious to his
or her welfare; [or]
(d) A parent, guardian, or legal custodian fails
or refuses to provide the child with proper or
necessary subsistence, education, medical
care, or any other care necessary for his or her
health, guidance, or well-being[.]
¶ 26 Both parents are entitled to a determination as to whether the
facts alleged in the petition have been proven. People in Interest of
J.G., 2014 COA 182, ¶ 24, rev’d on other grounds, 2016 CO 39. The
State must present sufficient evidence to persuade the fact finder
that the child is dependent or neglected with respect to each parent.
Id.
¶ 27 A trial court’s determinations regarding the sufficiency and
weight of the evidence and the credibility of the witnesses, as well
as the inferences and conclusions to be drawn therefrom, are within
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its discretion. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.
1982).
¶ 28 In determining whether the evidence is sufficient to sustain an
adjudication, an appellate court reviews the record in the light most
favorable to the prevailing party, and it draws every fair inference
from the evidence in favor of the trial court’s decision. People in
Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009). We will not
disturb the court’s findings and conclusions on review if evidence in
the record supports them. C.A.K., 652 P.2d at 613.
B. Analysis
¶ 29 After hearing the testimony of several witnesses and
considering the documentary evidence presented, the trial court
made oral findings and adjudicated the children dependent and
neglected under section 19-3-102(1)(a)-(d). We note that the court’s
minute order shows that S.M-L. was adjudicated pursuant to
section 19-3-102(1)(a) while B.M-M. and R.S. were adjudicated
pursuant to section 19-3-102(1)(d). Nonetheless, section 19-3-102
requires proof of only one condition for an adjudication. See
§ 19-3-102.
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¶ 30 In reaching its conclusions, the trial court found S.M.-L.’s
allegations of sexual abuse to be more credible than her
recantation. The court also found that mother had not provided the
three children with a supportive environment in which they could
address their mental health needs resulting from S.M-L.’s outcry. It
further found that mother had actively attempted to get father back
into the home without a protective plan in place. As to S.M-L.’s
younger sister, R.S., the court found that mother had not developed
a way to protect her if the allegations were true.
¶ 31 Initially, we note that we are troubled by the admission of
plainly inadmissible evidence and the absence of an objection to it.
This inadmissible evidence includes the testimony of various
experts who interviewed S.M-L. and testified that they believed her
allegations were credible, opined that she had not been coached,
and provided statistics regarding the probability of false allegations.
The admission of such evidence undermines the fairness of the
proceedings and has long been regarded as improper. See People v.
Cernazanu, 2015 COA 122, ¶ 11 (reversible error to allow mother to
opine on the credibility of daughter’s allegations of sexual abuse);
People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (“it is clear that
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[witnesses] may not offer their direct opinion on a child victim’s
truthfulness or their opinion on whether children tend to fabricate
sexual abuse allegations”); People v. Bridges, 2014 COA 65, ¶ 11
(The jury is not allowed to consider “evidence that a witness was
telling the truth on a specific occasion because it is solely the jury’s
responsibility to determine whether a particular witness’s testimony
or statement is truthful,” and witness may not opine that a child
was not coached); People v. Eppens, 979 P.2d 14, 17 (Colo. 1999)
(improper for witness to opine that child was sincere); People v.
Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (improper for witness to
testify child was “very believable”); People v. Oliver, 745 P.2d 222,
225 (Colo. 1987) (witness may not testify he or she personally
believed the child’s statements); People v. Snook, 745 P.2d 647, 649
(Colo. 1987) (witness may not testify that children tend not to
fabricate sexual abuse allegations). The record reveals, however,
that the trial court did not rely on any of this improperly admitted
evidence to adjudicate the children as to mother.
¶ 32 The record supports the trial court’s findings. S.M-L. testified
that father (her stepfather) had sexually abused her and the court
was in the best position to assess S.M.-L.’s credibility when she
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recanted on cross-examination. Given the court’s detailed findings
about the differences in S.M.-L.’s demeanor between direct and
cross-examination, we cannot find the court abused its discretion in
adjudicating the children dependent or neglected based on its
determination that S.M.-L. was abused.
¶ 33 The evidence also showed that mother did not believe the
sexual abuse allegations and insisted that S.M-L. was lying.
Mother testified that she believed S.M-L. was lying and the forensic
interviewer said S.M-L. was upset about not being believed.
¶ 34 The evidence further revealed that because mother did not
believe the sexual abuse allegations, the Department was concerned
about whether she could protect B.M-M. and R.S. In fact, mother
was not permitted to supervise visits between father and the
children because the Department did not believe she would pay
attention to father’s interactions with B.M-M. and R.S. or that she
could identify grooming behaviors.
¶ 35 Finally, the evidence showed that mother attempted to return
father to the home by asking to modify the protection order “two or
three” times. Additionally, the Department’s investigator said that
S.M-L. felt pressured to move out of the home so that father could
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visit more often and that the Department was concerned that
mother was taking father’s side.
¶ 36 Given the facts that S.M-L. alleged sexual abuse by father,
that mother disbelieved those allegations, and that mother
attempted to return father to the home, we discern no error in the
trial court’s finding that S.M-L. was dependent and neglected under
section 19-3-102. Similarly, given the Department’s concerns
about mother’s protective capacity based on her disbelief of the
sexual abuse allegations, we discern no error in the trial court’s
finding that B.M-M. and R.S. were dependent and neglected under
section 19-3-102. See People in Interest of D.L.R., 638 P.2d 39, 41-
42 (Colo. 1981) (holding that a trial court may adjudicate a child
dependent or neglected based on prospective harm).
¶ 37 We are not persuaded by mother’s argument that reversal is
required because the trial court engaged in conjecture and
speculation. We acknowledge that the court remarked several times
about the things that S.M-L. “didn’t say” during her testimony.
However, a court’s remarks or expressions of opinion made during
or at the end of a proceeding are not necessarily formal factual
findings prepared as the basis of the judgment. See People in
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Interest of O.J.S., 844 P.2d 1230, 1232-33 (Colo. App. 1992), aff’d
sub nom. D.A.S. v. People, 863 P.2d 291 (Colo. 1993). Based on the
court’s other findings, we do not consider these remarks to be the
basis for the judgment.
¶ 38 We also disagree with mother’s contention that reversal is
required because the trial court interpreted section 19-3-102(1)(a)
to include “emotional abandonment.” Our review of the court’s
factual findings does not indicate that it relied on the “abandoned”
portion of the statute. Rather, the court found that mother had
either subjected S.M-L. to mistreatment or abuse or had allowed
another to mistreat or abuse S.M-L. without taking lawful means to
stop such mistreatment or abuse or to prevent it from reoccurring.
¶ 39 Accordingly, because the evidence supports the trial court’s
factual findings, we will not disturb them on appeal.
IV. Conclusion
¶ 40 The Department’s appeal is dismissed, and the order
adjudicating mother is affirmed.
JUDGE ROMÁN and JUDGE LICHTENSTEIN concur.
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