The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
DECEMBER 13, 2018
2018COA178
No. 17CA2126, People in Interest of M.H-K. — Juvenile Court —
Dependency and Neglect — Civil Jury Instructions —
Introductory Remarks to Jury Panel
In this dependency and neglect proceeding, a division of the
court of appeals holds that the juvenile court erred by incorporating
the entire petition in dependency and neglect into its statement-of-
the-case instruction under CJI-Civ. 41:1. The statement of the case
instruction should be a short, non-argumentative summary of the
Department’s claims. But the juvenile court’s instruction recited
the history of the case from the perspective of the Department,
including prejudicial inferences, references to inadmissible
evidence, and allegations that were not proven at trial. Because the
error was not harmless, the division reverses the judgment of
adjudication and remands for a new trial.
Additionally, because the issue may arise on remand, the
division holds that the juvenile court also erred in admitting
evidence of mother’s refusal to submit herself and the child to
voluntary drug testing before the Department filed its petition.
COLORADO COURT OF APPEALS 2018COA178
Court of Appeals No. 17CA2126
City and County of Denver Juvenile Court No. 17JV1190
Honorable Laurie A. Clark, Judge
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.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE HARRIS
Webb and Welling, JJ., concur
Announced December 13, 2018
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.
¶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
1
[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
2
“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
———————————————————————
1 According to the amended petition, mother submitted to urinalysis
the day after the Department removed the child from the home.
The test results were negative for all substances.
3
¶ 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
4
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.
5
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.
6
¶ 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
7
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
8
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.
9
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 evidence.
It reads, in relevant part as follows:
The petitioner claims that (name of child) is
dependent and neglected because: (insert those
allegations from the petition on which sufficient
evidence has been introduced and which if
established would constitute a legal basis for
determining that the child is dependent and
neglected).
The respondent(s), (name[s]), (has) (have)
denied these claims.
The guardian ad litem, (name), claims (insert
appropriate description of the guardian’s
position).
These are the issues you are to determine, but
are not to be considered by you as evidence in
the case (except for those facts which have
been admitted or agreed to).
CJI-Civ. 41:4 (2018) (italics in original).
C. The Juvenile Court Erred in Instructing the Jury2
1. The Juvenile Court’s Instruction
———————————————————————
2 Neither the Department nor the guardian ad litem argues that the
instruction was proper.
10
¶ 26 The parties did not submit a jointly prepared CJI-Civ. 41:1
instruction or joint statement of factual information for the court to
include in its introductory remarks to prospective jurors. In
accordance with CJI-Civ. 41:1, the court began with an
introduction of the parties and an explanation regarding their role
in the case. From there, the pattern instruction directs the court to
explain that “[t]he case is based upon a petition that claims (insert
the relevant portions of the petition).” CJI-Civ. 41:1 (2018). Rather
than inserting the statutory grounds for the petition, with some
limited factual explanation of those grounds, the court announced,
“[t]he case is based on a Petition, and I’m going to read you the
contents of that Petition.”
¶ 27 The court then recited the entire 900-word amended case
history — a portion of the petition identified as “[t]he facts, based on
information and belief, which bring said children [sic] within the
jurisdiction of the [c]ourt.” The Department was not identified as
the declarant, although some statements were attributed to the
caseworker.
¶ 28 By doing so, the court read a play-by-play account of the
Department’s interactions with the family in the days and weeks
11
after the child’s birth. It recounted in detail the caseworker’s
description of the parents’ conduct when she contacted the family
six days after the child’s birth, including statements that the
parents were “volatile,” “escalated,” and “aggressive.” The court
recited allegations that the parents were “uncooperative” and had
refused drug testing; mother had dark, fresh bruises on the insides
of her arms; mother had refused to stop breastfeeding pending a
drug test that would verify she did not have marijuana in her
system; the parents had refused a safety plan to ensure a sober
caregiver for the child; the caseworker had called the police because
she was “in fear of the family fleeing with the child”; the Department
had obtained a judge’s hold; and the Department had been granted
custody of the child.
¶ 29 The case history the court read also contained specific
information about drug testing: dates when the parents agreed or
refused to submit to testing, the number of tests they missed or
completed, and the test results. The descriptions included
creatinine levels and statements that the Department had
“determined” that mother’s dilute urine samples — which, by
12
definition, do not establish the presence of a controlled substance
— were positive for controlled substances.
¶ 30 The court also read an unattributed assertion that mother had
“admitted knowing that [father] was using methamphetamine while
caring for the[] child, but fail[ed] to recognize the impact on the
child when [father] [was] under the influence of substances.”
¶ 31 The court then instructed the prospective jurors as follows:
“You should understand that these are only claims, and you should
not consider the claims as evidence in this case. [Mother] and
[father] have denied the claims in the [p]etition.”
¶ 32 The court’s instruction did not explain the reason for the
instruction in the first place — to inform the jury that it had to
determine whether the Department had proved a statutory basis for
finding the child dependent and neglected. The court’s instruction
did not mention the term “dependent and neglected” or any
statutory basis for such a finding. To the contrary, the petition
listed every possible statutory ground for adjudication under
section 19-3-102(1), including some that could not possibly have
applied to this case. See, e.g., § 19-3-102(1)(f) (child beyond control
of parent); § 19-3-102(1)(g) (child tests positive at birth for
13
controlled substance). Consequently, to what extent this
information would have helped the prospective jurors understand
the issues before them is at best debatable.
2. The Instruction Was Not a Proper CJI-Civ. 41:1 Introductory
Statement of the Case Instruction
¶ 33 As we have said, the purpose of the introductory statement of
the case instruction is simply to orient the jury to the nature of the
case as a way of facilitating the jury selection process. The juvenile
court’s instruction departed from this limited purpose.
¶ 34 Contrary to the directives of C.R.C.P. 47(a)(2)(IV), the juvenile
court’s introductory instruction did not derive from a jointly
prepared statement or consensus of the parties. It did not
constitute “brief, non-argumentative statements” by counsel. And it
did not otherwise impart the essential information about the case in
a “neutral” manner.
¶ 35 Instead, the court’s instruction amounted to a judicially
endorsed opening statement on behalf of the Department. Even
more troubling, the court did not couch the assertions in terms of
what the evidence would show and did not limit the assertions to
evidence the Department was prepared to present.
14
¶ 36 The juvenile court’s instruction reflects a procedure long
recognized as problematic.
In historic practice, the issues were often
stated in an instruction which elaborately
informed the jury of the allegations of the
parties, using the legal verbosity of the
pleadings. One frequent objective of a lengthy
pleading was to enlist the office of the trial
judge in arguing the case to the jury, in the
guise of an issue instruction based on such
pleading. It is not good practice, and may be
reversible error, for a judge to read complex
pleadings to the jury.
6 Am. Jur. Trials 923, § 12, Westlaw (database updated Nov. 2018)
(emphasis added).
¶ 37 That CJI-Civ. 41:1 was not intended to serve as one party’s
court-sponsored theory of the case instruction is confirmed by other
pattern instructions designed to implement the objectives of Rule
47. CJI-Civ. 2:1, for example, explains that the statement of the
case instruction should use “simple language” to “briefly” describe
the parties’ positions, stating only “the essential elements of the
claim[s]” and defenses. Similarly, COLJI-Crim. B:01 (2017), which
is derived from Crim. P. 24(a)(2)(v) (the counterpart to C.R.C.P. 47),
directs the court to summarize the charges set forth in the
information, complaint, or indictment. That instruction makes
15
clear the court should read only a short statement of the elements
of the offense, rather than a detailed exposition of the
circumstances surrounding the defendant’s alleged commission,
and the police investigation, of the crime. But here, the juvenile
court chose the latter, impermissible approach, reading the
functional equivalent of an arrest warrant affidavit to the jury. See,
e.g., Reid v. Pyle, 51 P.3d 1064, 1069 (Colo. App. 2002) (affidavit of
probable cause for the defendant’s arrest was not admissible in civil
trial); see also Lamar v. State, 578 So. 2d 1382, 1389 (Ala. Crim.
App. 1991) (affidavits in support of arrest warrants are generally
inadmissible at trial).
¶ 38 Thus, the juvenile court’s instruction was not a proper
implementation of introductory remarks to the jury panel in
keeping with CJI-Civ. 41:1.
3. The Instruction Was Not a Proper CJI-Civ. 41:4 Statement of
the Case
¶ 39 Although the parties discussed the proposed instruction in the
context of CJI-Civ. 41:4, we are not convinced that CJI-Civ. 41:4
applies at the introductory stage of the proceedings. Instead, the
direction to “insert those allegations . . . on which sufficient
16
evidence has been introduced” indicates that the court should give
instruction CJI-Civ. 41:4 after the close of evidence.
¶ 40 Regardless, the instruction here did not follow the format of
CJI-Civ. 41:4, which is similar in relevant part to CJI-Civ. 41:1.
¶ 41 Many of the allegations in the petition were not ultimately
supported by evidence presented at trial. For example, the
Department presented no evidence of numerous facts that allegedly
prompted the caseworker’s concerns — that father admitted using
marijuana, that both parents “cussed” and pointed fingers
aggressively at the caseworker, that the caseworker feared the
family would flee with the child, or that the parents began packing
their belongings after she called the police. And no evidence, other
than paternal grandfather’s speculation, supported the allegation
that father was under the influence of methamphetamine while
caring for the child or that mother knew of this conduct and
disregarded the associated risks. See People v. Rios, 2014 COA 90,
¶ 23 (there was no reason for the court to instruct the jury on
information that was never introduced into evidence); see also
Barnhisel v. People, 141 Colo. 243, 246, 347 P.2d 915, 917 (1959)
17
(“[A]n instruction . . . is erroneous if it implies or assumes the
existence of evidence not in the record.”).
¶ 42 Further, the directions for CJI-Civ. 41:4 limit the content of
the instruction to “those allegations . . . which if established would
constitute a legal basis for determining that the child is dependent
and neglected.” Several of the allegations in the petition do not
establish any of the legal bases for adjudication under section 19-3-
102. These allegations include, for example, the following:
Mother refused to submit to drug testing for herself and the
child on a voluntary basis. (This evidence was also
inadmissible. See infra Part IV.)
The Department obtained a “judge’s hold” prior to
adjudication.
The Department was granted custody of the child prior to
adjudication.
The maternal grandmother did not feel comfortable having
the parents in her home while she was at work, and she
could not guarantee the child would be safe.
The parents agreed to reside with the maternal grandfather
temporarily to ensure a sober caregiver.
18
The results of mother’s court-ordered drug tests included
certain creatinine levels that indicated dilute urine samples,
which the Department “determined to be positive.”
¶ 43 Thus, the instruction was not a proper CJI-Civ. 41:4
statement of the case.
D. The Court’s Error Warrants Reversal3
¶ 44 We conclude that the juvenile court’s instruction was not
harmless because it impaired the basic fairness of the trial in a way
that likely influenced the outcome of the case. See C.R.C.P. 61;
Canton Oil Corp., 731 P.2d at 696.
¶ 45 The instruction was presented in language suggestive of a
factual report. People v. Williams, 916 P.2d 624, 627-28 (Colo. App.
1996) (The court has a duty to “insure that its instructions are
couched in neutral terms to avoid any implication that it regards
certain facts to be established.”). For example, rather than telling
the jury that the caseworker perceived the parents as volatile and
threatening, the court told the jury that “[b]oth parents became very
———————————————————————
3 Neither the Department nor the guardian ad litem argues that any
error in giving the instruction was harmless.
19
escalated and uncooperative” with the caseworker, “as evidenced by
cussing and pointing fingers aggressively at” her.
¶ 46 The instruction also suggested that certain innocuous and
lawful conduct was in fact suspicious. The court told the jury that
“[t]he parents were also very volatile, not allowing the [Department]
caseworker to view their items left outside of the vehicle.” The jury
also heard that the caseworker called the police based on her
concern that the parents would “flee[] with the child,” and that
“[w]hile waiting for the police to arrive, [father] began packing up
their belongings into their truck/camper.”
¶ 47 Because the court’s instruction included allegations that were
never supported by any evidence, the instruction encouraged the
jurors to assume that unadmitted evidence supported the
Department’s position. Cf. Domingo-Gomez v. People, 125 P.3d
1043, 1052 (Colo. 2005) (government counsel should not intimate
that he or she has personal knowledge of evidence unknown to the
jury).
¶ 48 As well, the instruction included inadmissible allegations,
including that mother had declined voluntary drug testing of herself
and her child, which was requested by unidentified hospital staff for
20
unstated reasons, and that mother had refused when the
caseworker asked her — without authority — to stop breastfeeding
immediately and take a drug test.
¶ 49 In addition, and to make matters worse, a written copy of the
instruction was included in the juror notebooks. Thus, the jurors
were able to review the improper remarks and unsupported
allegations during deliberations. Cf. Settle v. People, 180 Colo. 262,
264, 504 P.2d 680, 680-81 (1972) (court must use caution so jury
does not give undue weight to evidence it views during
deliberations).
¶ 50 We also note that delivering such information in the form of a
jury instruction magnified its potential prejudice because the court
holds a position of great authority. Accord United States v. Ofray-
Campos, 534 F.3d 1, 25 (1st Cir. 2008) (The prejudice of extrinsic
information was greater because it “was supplied by the trial judge,
and thus stamped with the imprimatur of the court, rather than by
comparatively less authoritative sources, such as prosecutorial
comment.”); see also Rios, ¶ 35 (trial court’s instruction, as opposed
to prosecutor’s passing reference, improperly emphasized irrelevant
evidence).
21
¶ 51 True, the court followed its lengthy recitation of the
Department’s allegations with a disclaimer that the allegations were
not evidence. But we cannot conclude that the disclaimer
neutralized the prejudicial effect of the improper instruction.
¶ 52 We note that at least some prospective jurors did not appear to
understand the import of the disclaimer.
¶ 53 Prospective Juror M, for example, told the judge that she
considered the allegations to be evidence that the parents had
committed the acts described in the instruction. When pressed by
the judge, who twice tried to explain that the instruction contained
allegations, not evidence, Juror M replied, “Well, you’re talking
about drug tests, so are those all hypothetical things that you were
saying?”
¶ 54 Prospective Juror W believed the court’s instruction
incorporated a police report. When father’s lawyer asked the juror
how he had already determined that the child was in an injurious
environment, Juror W responded, “Sure. I mean, covering
everything we spoke about before, just the police report of how all
the action went down, I think that in and of itself has created a
pretty harmful environment, especially for a young kid.”
22
¶ 55 And Juror W acknowledged that, based on “the volume of
allegations,” there was “sort of already a strike against” father.
¶ 56 To be clear, our determination that the court’s error was not
harmless does not hinge on the jurors’ comments.4 Nevertheless,
the prospective jurors’ statements provide additional evidence that
the juvenile court’s instruction confused the jury and prejudiced
the parents.
¶ 57 In sum, we conclude that the juvenile court erred when it read
detailed allegations from the petition, some of which were
unsupported by evidence at trial or relied on inadmissible and
unduly prejudicial evidence. We further conclude that the court
abused its discretion because its instructional ruling was manifestly
unfair and a misapplication of C.R.C.P. 47, as implemented by CJI-
Civ. 41:1 and 41:4. And we determine that the error was not
harmless because it impaired the basic fairness of the trial itself.
Thus, we reverse the judgment and remand the case for a new
adjudicatory trial.
———————————————————————
4 After the juvenile court denied challenges for cause to these three
jurors, the parents’ counsel exercised peremptory strikes.
23
¶ 58 We recognize that mother does not join father in raising this
issue on appeal. But adjudications of dependency and neglect
relate only to children and are not made “as to” the status of
parents. J.G., ¶ 38; cf. People in Interest of T.R.W., 759 P.2d 768,
771 (Colo. App. 1988) (no-fault admission of noncustodial parent
does not support adjudication of dependency and neglect when fact
finder determines otherwise). The error in this case affected the
basic fairness of the adjudicatory trial, and the improper remarks
related as much to mother as to father. So, our analysis and
disposition apply equally to both parents.
IV. Mother’s Refusal to Voluntarily Submit to Drug Testing
¶ 59 Mother contends that the juvenile court erred when it
admitted evidence that she refused to agree to drug testing for
herself and the child before the Department filed the petition in
dependency and neglect. Because we have already concluded that
the parents are entitled to a new trial, we need not decide whether
this error provides an independent ground for reversal.
Nevertheless, we elect to address the issue because it may arise on
remand. See Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112,
1118 (Colo. 1990). We agree with mother.
24
A. Standard of Review
¶ 60 The Department concedes preservation. We review the
juvenile court’s evidentiary rulings for an abuse of discretion.
People in Interest of E.R., 2018 COA 58, ¶ 6. A trial court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair, or when it misapplies the law. Id.
B. Drug Testing of Mother and the Child at the Hospital
¶ 61 Mother contends that the juvenile court erred when it
admitted evidence that she refused to voluntarily submit to drug
testing of herself and the child at the hospital.
1. Circumstances Surrounding Mother’s Refusal to Voluntary
Submit to Drug Testing
¶ 62 The record does not reveal why hospital personnel requested
the tests. Testimony at trial established that the child exhibited
none of the symptoms of prenatal drug exposure described by the
various expert witnesses. Rather, he was born full term at an
average birth weight of six pounds, fourteen ounces. He showed no
signs of withdrawal at birth: there was no evidence that he had
reflux, extreme tremors, or extreme startle reflexes, and he did not
25
cry inconsolably. Further, the Department did not offer any
evidence that the test was medically necessary to treat the child.
¶ 63 Nor did the Department offer any evidence that mother was
under the influence of controlled substances when she gave birth.
The record suggests that mother had reported regular use of
marijuana at a prenatal visit when she was sixteen weeks pregnant.
But no evidence links this report to the request for the drug tests or
to the Department’s initiation of its investigation.
¶ 64 At the adjudicatory trial, a pediatric nurse who treated the
child after he was removed from mother’s custody repeatedly
referenced mother’s refusal to allow the hospital to drug test the
child. The caseworker testified that mother’s refusal to consent to
drug testing of the child was “very concerning” because “why would
you refuse something that’s going to be negative?” She interpreted
mother’s refusal to mean “there was something going on. There was
usage going on.”
¶ 65 Mother contends that evidence of her refusal to consent to the
drug testing is irrelevant and therefore inadmissible, as she had no
obligation to submit to testing or otherwise cooperate with the
hospital or the Department.
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2. Evidence of Mother’s Refusal Was Not Relevant
¶ 66 Only relevant evidence is admissible at trial. CRE 402.
Evidence is relevant if it has any tendency to make the existence of
any fact that is of consequence more probable or less probable than
it would be without the evidence. CRE 401.
¶ 67 The Department and the guardian ad litem argue that
mother’s refusal to consent to drug testing was relevant because it
allowed the jurors to conclude that the results would have been
positive for controlled substances and that mother wished to
prevent the Department from assessing the child’s safety. And,
once the jury determined that mother had exposed the child to
drugs, it could find that the child was dependent and neglected.
This argument falters at the first step because the mere fact of
mother’s refusal does not reasonably lead to the conclusion that the
test results would have been positive.
¶ 68 A person’s refusal to perform a particular act has probative
value only if the person has a duty to perform the act or it would
have otherwise “been natural under the circumstances” for the
person to take the action. United States v. Hale, 422 U.S. 171, 176
(1975). For example, in most circumstances, a person’s “silence is
27
so ambiguous that it is of little probative force.” Id. But where the
“normal reaction” is to speak out in response to a statement,
“silence may have some probative value.” People v. Quintana, 665
P.2d 605, 610 (Colo. 1983); see also Asplin v. Mueller, 687 P.2d
1329, 1332 (Colo. App. 1984) (party’s refusal to testify in civil case
in response to probative evidence against him, and with knowledge
of the consequences of his decision, gives rise to a reasonable
inference that his testimony would be harmful to his position in the
litigation). Similarly, the failure to assert a fact under
circumstances in which it would have been natural to assert it has
been construed to be the equivalent of a statement of the
nonexistence of the fact. Quintana, 665 P.2d at 610.
¶ 69 In other words, when the refusal to perform the act is
objectively unreasonable, the jury can reasonably infer that the
person has refused to perform the act because performance would
be detrimental to his or her interests.5 Under those circumstances,
———————————————————————
5 Based on the foregoing analysis, we reject father’s argument that
evidence of his missed drug tests was irrelevant and inadmissible.
Once the magistrate entered an order requiring the parents to
submit to drug testing, father’s refusal to comply with the order was
relevant. His noncompliance was objectively unreasonable, and the
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the conclusion inferred is “supported by a ‘logical and convincing
connection’” to the fact proved. See People v. Perez, 2016 CO 12,
¶ 25 (citation omitted).
¶ 70 But when the refusal to perform the act may be attributable to
a variety of innocent circumstances that are completely unrelated to
the inferred conclusion the proponent seeks to educe, the fact of
refusal is too ambiguous to be relevant and is therefore
inadmissible. See Quintana, 665 P.2d at 611.
¶ 71 Here, there was no evidence presented regarding the
circumstances of the hospital’s request to test. For all the jury
knew, hospital personnel had requested that mother submit to drug
testing because the hospital routinely tests certain patients or
because a new intern wanted to practice performing a drug test on
a newborn baby. And without knowing those reasons, the jury
could not decide whether they were sufficient to overcome mother’s
“deep-rooted expectations of privacy” in her bodily fluids. People v.
Barry, 2015 COA 4, ¶ 22 (citation omitted).
jury could have reasonably inferred that he refused to comply
because the results would have been detrimental to his interests.
29
¶ 72 To be sure, we can conceive of some situations in which the
“normal reaction” of a parent would be to consent to drug testing of
a newborn baby. If the newborn baby was in medical distress and,
in an effort to rule out drug exposure as a possible cause of the
baby’s condition, a doctor requested the parent’s consent to perform
a drug test, the parent’s refusal would have some probative force,
as reasonably suggesting that the parent’s strong interest in
avoiding a drug test trumped the safety of the child.
¶ 73 In this case, though, the jury had no way to evaluate the
objective reasonableness of mother’s refusal to consent. Therefore,
any conclusion that mother had refused to consent for a nefarious,
rather than an innocent, reason would have been based on
complete speculation. See People in Interest of R.D.S., 183 Colo. 89,
95, 514 P.2d 772, 775 (1973) (inferences may not be based on mere
speculation or conjecture).
¶ 74 Importantly, mother was entitled to a presumption that her
refusal to consent was objectively reasonable. Before adjudication,
parents enjoy the constitutional presumption that fit parents make
decisions that are in their children’s best interests. People in
Interest of N.G., 2012 COA 131, ¶ 2.
30
That some parents “may at times be acting
against the interests of their children”
. . . creates a basis for caution, but is hardly a
reason to discard wholesale those pages of
human experience that teach that parents
generally do act in the child’s best interests.
The statist notion that governmental power
should supersede parental authority in all
cases because some parents abuse and neglect
children is repugnant to American tradition.
Parham v. J.R., 442 U.S. 584, 602-03 (1979) (some citations
omitted) (quoting Bartley v. Kremens, 402 F. Supp. 1039, 1047-48
(E.D. Pa. 1975)); accord Ch. 240, sec. 1, § 25-4-910, 2014 Colo.
Sess. Laws 886-87 (Although a “parent’s decision to refuse
vaccination for their child carries risk for their child and the
community at large,” including approximately a twenty-five-fold risk
of contracting pertussis, parents may refuse vaccination for their
children based on personal belief.).
¶ 75 For these reasons, we conclude that mother’s refusal to
consent to voluntary drug testing is so lacking in probative value as
to be inadmissible. Thus, the juvenile court abused its discretion
when it admitted this evidence.
31
B. Mother’s Refusal to Stop Breastfeeding Pending a Drug Test
¶ 76 Mother contends that the juvenile court abused its discretion
when it admitted evidence that she refused the caseworker’s
request to stop breastfeeding pending a drug test. We agree.
¶ 77 During her initial contact with the family, the caseworker
asked mother to stop breastfeeding the child immediately and take
a drug test to show that she was not using controlled substances.
Mother refused. She told the caseworker that breastfeeding
provided nutrition that the child needed.
¶ 78 The Department cannot require a parent to submit to drug
testing without a court order. See People in Interest of G.E.S., 2016
COA 183, ¶ 14 (before adjudication, parents may work with
department voluntarily or court may issue orders for protection of
the child); see also § 19-1-104(3)(a), C.R.S. 2018 (court may enter
temporary orders for child’s protection upon hearing after prior
notice to parent); accord People v. Diaz, 53 P.3d 1171, 1177 (Colo.
2002) (the Fourth Amendment and article II, section 7 of the
Colorado Constitution prohibit obtaining samples of bodily fluids
through a warrantless search and seizure unless an exception to
the warrant requirement applies).
32
¶ 79 Parents may agree to work with the Department on a
voluntary basis to address child welfare concerns. G.E.S., ¶ 14.
But even after the filing of a petition in dependency and neglect,
parents need not assist the Department to prove that their child is
dependent and neglected. Id.
¶ 80 When mother refused the caseworker’s request to stop
breastfeeding pending a drug test, the Department had not yet filed
a petition in dependency and neglect, and the court had entered no
orders. Mother retained her rights as a presumptively fit parent to
make decisions in the best interests of her child — including the
decision to breastfeed. See N.G., ¶ 2. Accordingly, mother was also
within her rights to refuse to stop breastfeeding until she had
completed a drug test.
¶ 81 Evidence that mother exercised her right to refuse drug testing
on the morning of the child’s removal had no probative value in
light of the evidence that the child and mother were drug tested
later that afternoon and the next morning, respectively, and the
results of those tests were negative for all controlled substances.
See People v. Rath, 44 P.3d 1033, 1041 (Colo. 2002) (in balancing
probative value against prejudicial effect, court assesses probative
33
value of evidence in context of other evidence in the case). In other
words, if evidence of mother’s refusal to stop breastfeeding pending
a drug test was supposed to give rise to an inference that mother
was then using drugs, other evidence negated that inference.
¶ 82 We therefore conclude that the juvenile court abused its
discretion when it admitted evidence that mother refused the
caseworker’s request that she stop breastfeeding pending a drug
test.
V. Remaining Issues
¶ 83 “An adjudication of dependency or neglect must be based on
existing circumstances and relate to the status of the child at the
time of adjudication.” People in Interest of A.E.L., 181 P.3d 1186,
1192 (Colo. App. 2008). We cannot determine whether the parents’
remaining issues will arise at a new adjudicatory trial on remand
because the child’s and the parents’ circumstances will have
evolved. As a result, we decline to address these contentions.
VI. Conclusion
¶ 84 The judgment is reversed, and the case is remanded for a new
trial.
JUDGE WEBB and JUDGE WELLING concur.
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in Interest of M.H-K
Court: Colorado Court of Appeals
Date filed: 2018-12-13
Citations: 2018 COA 178, 433 P.3d 627
Copy CitationsCombined Opinion