People v. T.K. and J.M

COLORADO COURT OF APPEALS 2017COA70

Court of Appeals No. 16CA0975
Weld County District Court No. 15JV278
Honorable Elizabeth B. Strobel, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of H.K.W., a Child,

and Concerning J.W. and A.M.,

Respondents-Appellants,

and

T.K. and J.M.,

Intervenors-Appellees.

ORDER

Division II
Opinion by JUDGE DAILEY
J. Jones and Berger, JJ., concur

Announced May 18, 2017

No Appearance for Petitioner-Appellee

Scott A. Jameson, Guardian Ad Litem

Carrie Ann Lucas, Windsor, Colorado, for Respondent-Appellant J.W.

Hopkins Law, LLC, Laurie L. Strand, James W. Hopkins, Loveland, Colorado,
for Respondent-Appellant A.M.

Law Office of Keren C. Weitzel, LLC, Keren C. Weitzel, Longmont, Colorado, for
Intervenors-Appellees
¶1 In this dependency and neglect proceeding, J.W. (father) and

A.M. (mother) appeal the trial court’s judgment allocating parental

responsibilities of their daughter, H.K.W. (the child), to J.M. and

T.K. (special respondents).

¶2 This case involves matters of first impression, to wit: (1)

whether a trial court may conduct an in camera interview with a

child who is the subject of an allocation of parental responsibilities

proceeding arising from a dependency and neglect action; and, if

the trial court conducts such an interview, (2) whether the court

must cause a record of the interview to be created and then make

that record available to the parents.

¶3 We conclude that the Children’s Code permits a trial court to

conduct an in camera interview with a child, and that due process

requires that a record of the interview be created and, at least in

certain circumstances, be made available upon request to the

parents. Because the trial court in this case relied on the in camera

interview of the child while denying the parents access to a

transcript of that interview, we order that the record on appeal be

supplemented with the transcript of the in camera interview. We

further order that the parties be allowed to file supplemental briefs

1
 addressing whether the trial court’s findings of fact from the

interview are supported by the record. We will issue an opinion

addressing the merits of the appeal following the completion of

supplemental briefing.

I. Background

¶4 The Weld County Department of Human Services (the

Department) filed a dependency or neglect petition regarding the

six-year-old child based on allegations of father’s and mother’s

substance abuse; that the child had seen mother’s boyfriend being

kidnapped from the home; that the child had missed a lot of school;

and that the family had been involved in two prior dependency and

neglect cases because of substance abuse, lack of supervision, and

domestic violence. The child was removed from the home and

initially placed with father. Three days later, the child was placed

with the special respondents. Notably, in the prior dependency and

neglect cases, the child also had been placed with the special

respondents.

¶5 Based on father’s and mother’s admissions, the trial court

adjudicated the child dependent or neglected. The court adopted

treatment plans, with which father and mother complied.

2
¶6 Father, mother, and the special respondents later moved for

an allocation of parental responsibilities. At a hearing, the child’s

guardian ad litem (GAL) moved for an in camera interview with the

child.1 None of the parties objected. The trial court agreed to

interview the child and told the parties that it would have a record

made of the in camera interview and that a transcript of the

interview would be sealed unless “the matter is appealed.” Again,

none of the parties objected.

¶7 Shortly thereafter, the trial court conducted an in camera

interview with the child. The interview was recorded but not

transcribed. None of the parties requested a transcript of the

interview.

¶8 After a subsequent hearing, the trial court found as follows:

 the child had been the subject of three dependency and

neglect cases;

 the child told the court that she wanted to stay with the

special respondents;

1The GAL filed a written motion to that effect as well after the
hearing.

3
  the child’s primary attachment and bond was with the

special respondents;

 the child needed stability and permanency;

 even though father and mother had complied with their

treatment plans, they were unfit;

 father and mother had criminal histories that included

domestic violence and child abuse;

 father and mother had not demonstrated sobriety,

stability, and ongoing parental consistency “for a decent

enough period of time”; and

 father and mother had exposed the child to domestic

violence, drug addiction, and a criminal lifestyle, and had

neglected the child’s needs “for too long.”

¶9 In making its findings, the trial court relied extensively on the

child’s statements during the in camera interview. The court then

allocated parental responsibilities to the special respondents and

set forth a parenting time schedule for father and mother.

¶ 10 Father and mother appealed, and father requested a transcript

of the trial court’s in camera interview of the child. Although it had

4
 previously indicated that it would do otherwise, the trial court

denied father’s motion.2

II. Interviewing the Child and Making
a Record Thereof Available to the Parents

¶ 11 Father and mother contend that the trial court erred by relying

on the in camera interview with the child, which was not admitted

into evidence, as the basis for its decision to allocate parental

responsibilities to the special respondents. In particular, they

assert that their due process rights were violated because, without

access to the transcript of the interview, they were unable to contest

the courts findings or the information on which the court relied in

making its findings. We agree in part.

¶ 12 In dependency and neglect proceedings, the trial court has

jurisdiction to allocate parental responsibilities between parents

and nonparents. §§ 19-1-104(4), (6); 19-3-508(1)(a), C.R.S. 2016;

L.A.G. v. People in Interest of A.A.G., 912 P.2d 1385, 1390-91 (Colo.

1996).

¶ 13 Under the Children’s Code, the trial court must allocate

parental responsibilities based on the best interests of the child and

2 A single judge of this court also denied a motion for access to the
transcript.

5
 the public. § 19-3-507(1)(a), C.R.S. 2016; L.A.G., 912 P.2d at 1391

(In determining custody, “a juvenile court must fashion a custodial

remedy that serves the public as well as the best interests of the

child.”). The court may consider the best interest factors listed in

the Uniform Dissolution of Marriage Act (UDMA), section

14-10-124(1.5)(a), C.R.S. 2016, as long as the focus is on the

protection and safety of the child and not on the “custodial

interests” of the parents. L.A.G., 912 P.2d at 1391-92; People in

Interest of M.D., 2014 COA 121, ¶ 12; People in Interest of C.M., 116

P.3d 1278, 1282 (Colo. App. 2005). As now relevant, the court may

consider the “wishes of the child if he or she is sufficiently mature

to express reasoned and independent preferences as to the

parenting time schedule.” § 14-10-124(1.5)(a)(II).

A. Was the Court Allowed to Interview the Child?

¶ 14 The Children’s Code does not contain a provision specifically

allowing a court to conduct an in camera interview with a child.

However, under section 19-1-106(5), C.R.S. 2016, a child “may be

heard separately when deemed necessary” by the court.

¶ 15 In contrast, the UDMA specifically provides that the “court

may interview the child in chambers to ascertain the child’s wishes

6
 as to the allocation of parental responsibilities.” § 14-10-126(1),

C.R.S. 2016.

¶ 16 We have acknowledged that the UDMA procedures are not

always useful in accomplishing the goals of the Children’s Code.

People in Interest of D.C., 851 P.2d 291, 294 (Colo. App. 1993) (a

dependency and neglect proceeding concerns different matters and

fulfills a different purpose than a UDMA proceeding). However,

given that a trial court may consider a child’s separately stated

wishes when deciding how to allocate parental responsibilities in

both a dependency and neglect proceeding and a UDMA proceeding,

looking to the UDMA in this instance is helpful. See B.G.’s, Inc. v.

Gross, 23 P.3d 691, 694 (Colo. 2001) (consideration of other

statutes dealing with the same subject can be useful in deciding

questions of statutory interpretation).

¶ 17 Reading sections 19-1-106(5) and 14-10-126 together, we

conclude that a trial court is permitted to conduct an in camera

interview with a child to determine a child’s best interests and how

to allocate parental responsibilities within a dependency and

neglect proceeding.

7
¶ 18 Our conclusion in this regard is bolstered by recognizing that

permitting an in camera interview with a child would enable the

trial court to ascertain the child’s custodial preference while (1)

lessening the ordeal for the child by eliminating the harm a child

might suffer from exposure to the adversarial nature of the

proceedings; (2) enhancing the child’s ability to be forthcoming; and

(3) protecting the child from the “tug and pull of competing

custodial interests.” Ynclan v. Woodward, 237 P.3d 145, 150-51

(Okla. 2010).

B. Was the Court Required to Create a Record of the Interview?

¶ 19 The Children’s Code does not address whether a record of an

in camera interview with a child must be made. The UDMA, in

contrast, requires the trial court to “cause a record of the interview

to be made, and it shall be made part of the record in the case.”

§ 14-10-126(1).

¶ 20 Case law from numerous other jurisdictions parallels the

UDMA requirement. See Ex parte Wilson, 450 So. 2d 104, 106-07

(Ala. 1984) (due process requires that in camera interview with

minor children in custody dispute be recorded); N.D. McN. v. R.J.H.,

979 A.2d 1195, 1201 (D.C. 2009) (due process and state statute

8
 require that an in camera interview with the children be recorded);

Strain v. Strain, 523 P.2d 36, 38 (Idaho 1974) (in camera interview

with the children must be recorded to determine if the interview

supports the trial court’s decision); Hutchinson v. Cobb, 90 A.3d

438, 442 (Me. 2014) (trial court is responsible for recording in

camera interviews); In re H.R.C., 781 N.W.2d 105, 113-14 (Mich. Ct.

App. 2009) (use of unrecorded in camera interviews violates

parents’ due process rights); Robison v. Lanford, 841 So. 2d 1119,

1124-26 (Miss. 2003) (documentation of in camera interview with

children must be made and be part of the record); Williams v. Cole,

590 S.W.2d 908, 911 (Mo. 1979) (error is presumed if a trial court

interviews the children in chambers without making a record);

Donovan v. Donovan, 674 N.E.2d 1252, 1255 (Ohio Ct. App. 1996)

(requiring the trial court to make a record of an in camera interview

with children involved in custody proceedings); Stolarick v. Novak,

584 A.2d 1034, 1038 n.1 (Pa. Super. Ct. 1991) (testimony of in

camera interviews must be transcribed and made part of the

record).

¶ 21 Two compelling reasons exist for requiring that a record be

made of an in camera interview of a child: (1) to ensure record

9
 support for a trial court’s reliance on a child’s testimony during the

in camera interview; and (2) to permit meaningful appellate review

of the evidence relied on by the trial court in determining the child’s

best interests. See Wilson, 450 So. 2d at 106-07; N.D. McN., 979

A.2d at 1201; Strain, 523 P.2d at 38; Hutchinson, 90 A.3d at 442;

H.R.C., 781 N.W.2d at 114; Robison, 841 So. 2d at 1124-26;

Williams, 590 S.W.2d at 911; T.N.-S., 347 P.3d at 1270; Donovan,

674 N.E.2d at 1255; see also Jenkins v. Jenkins, 269 P.2d 908,

910-11 (Cal. Ct. App. 1954) (It would be wise for “the court to make

a record of such interviews with children in custody cases in order

to protect itself against any suspicion of unfairness on the part of

the parent against whom the decision is rendered.”); cf. Kuzara v.

Kuzara, 682 P.2d 1371, 1373 (Mont. 1984) (“[T]he record and the

court’s findings should reflect the child’s wishes” because otherwise

“the interview is an empty exercise.”).

¶ 22 Persuaded by these authorities, we conclude that, unless

waived by the parties, a record of the interview must be made. A

record of the interview was made in this case.

10
 C. Were the Parents Entitled
to Access a Transcript of the Interview?

¶ 23 The next issue before us is whether the trial court must also

allow the record of an in camera interview with a child to be made

available to the parents. Neither the Children’s Code nor section

14-10-126 addresses this issue. Nonetheless, a division of this

court has held that the purpose of making a record of an in camera

interview of a child is “for the benefit of the parties.” In re Marriage

of Armbeck, 33 Colo. App. 260, 261, 518 P.2d 300, 301 (1974).

¶ 24 Many jurisdictions have determined that the record of an in

camera interview with a child in a custody proceeding must be

made available to the parents, at least in certain circumstances.

See N.D. McN., 979 A.2d at 1201; In re Marriage of Hindenburg, 591

N.E.2d 67, 69 (Ill. App. Ct. 1992); Holt v. Chenault, 722 S.W.2d 897,

898-99 (Ky. 1987); Nutwell v. Prince George’s Cty. Dep’t of Soc.

Servs., 318 A.2d 563, 568 (Md. Ct. Spec. App. 1974); Abbott v.

Virusso, 862 N.E.2d 52, 60 (Mass. App. Ct. 2007); Callen v. Gill, 81

A.2d 495, 498 (N.J. 1951); Muraskin v. Muraskin, 336 N.W.2d 332,

335 n.2 (N.D. 1983); Inscoe v. Inscoe, 700 N.E.2d 70, 85 (Ohio Ct.

App. 1997); Hasse v. Hasse, 460 S.E.2d 585, 590 (Va. Ct. App.

11
 1995); Rose v. Rose, 340 S.E.2d 176, 179 (W. Va. 1985); cf. Ynclan,

237 P.3d at 158 (to have access to the transcript of the in camera

interview of the child, the parent must appeal the custody

determination).

¶ 25 The following reasons favor allowing parents access to the

record of the in camera interview with the child:

 The child’s interview is part of a court proceeding. N.D.

McN., 979 A.2d at 1201.

 To the extent that a court relies on the child’s statements

during the interview, a parent is prejudiced by his or her

inability to challenge or rebut the child’s statements or

contest the court’s custody determination. See Holt, 722

S.W.2d at 899; Inscoe, 700 N.E.2d at 85; Rose, 340 S.E.2d

at 179; see also Molloy v. Molloy, 637 N.W.2d 803, 809

(Mich. Ct. App. 2001) (“[I]nformation [from an in camera

interview with the child] detrimental to the parent seeking

custody may influence a judge’s decision without any

guarantees as to its accuracy.”), aff’d in part and vacated in

part, 643 N.W.2d 574 (Mich. 2002).

12
 Due process and fundamental fairness require that a parent

have access to the content of the interview. Bowman

Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281,

288 n.4 (1974) (“A party is entitled, of course, to know the

issues on which decision will turn and to be apprised of the

factual material on which the [decision-maker] relies for

decision so that he may rebut it. Indeed, the Due Process

Clause forbids [a decision-maker] to use evidence in a way

that forecloses an opportunity to offer a contrary

presentation.”); see N.D. McN., 979 A.2d at 1201 (“In order

to have an opportunity for meaningful presentation of

evidence and argument, a litigant must have access, both in

the trial court and on appeal, to the evidence that can be (or

has been) used by the judge in ruling against her.”);

Denningham v. Denningham, 431 A.2d 755, 760 (Md. Ct.

Spec. App. 1981) (“[O]ne of the cornerstones of our system

of justice” is “the right of the parties to be aware of all of the

evidence considered by the trier of fact” and “the

opportunity to challenge and answer that evidence. . . .

However sensitive the material may be, a party has a right

13
 to know what evidence is being considered by the court in

judging his case. A custody case can no more be tried and

decided upon secret ex parte evidence than any other

proceeding.”); In re T.N.-S., 347 P.3d 1263, 1270 (Mont.

2015) (due process requires disclosure of the transcript of

an in camera interview when the trial court relies on the

information from the interview in its decision); Muraskin,

336 N.W.2d at 335 n.2 (“A party to any procedure is entitled

to know what evidence is used or relied upon and has a

right generally to present rebutting evidence or to

cross-examine . . . .”); see also H.R.C., 781 N.W.2d at 114

(Without access to the record of the in camera interview of

the child, a parent has “no opportunity to learn what

testimony was elicited or to counter the information

obtained, and no way of knowing how that information may

have influenced the court’s decision.”).

¶ 26 Making the record of an in camera interview with a child

available “serve[s] to protect a parent’s due process rights to a fair

trial, foster the state’s ultimate goal of protecting the best interests

of the child, and decrease the possibility that child custody

14
 decisions will be based on inaccurate information.” Molloy, 637

N.W.2d at 811.

¶ 27 Persuaded by these authorities, we conclude that a record of

an in camera interview with a child must be made available, upon

request, to parents in certain circumstances. There are, obviously,

reasons why in camera interviews with children are held in the first

place. Children might be intimidated by having to appear in court.

They might also be reluctant to speak freely and honestly to the

court if they knew that the contents of the interview would be made

available to the parents as a matter of course.

¶ 28 Consequently, we limit our holding that the record of an in

camera interview must be made available, upon request, to

situations in which a parent needs (1) to determine whether the

court’s findings, insofar as they relied on facts from the interview,

are supported by the record, or (2) an opportunity to contest

information supplied by the child during the interview and relied on

by the court. In re T.N.-S., 347 P.3d at 1271 (“Due process

considerations may require disclosure in certain instances,

particularly where the district court relies on information from the

interviews in reaching its determination.”).

15
¶ 29 In this case, because the parents were unaware of the content

of the child’s in camera interview, they were unable to address,

challenge, or rebut, either in a post-trial motion or on appeal, the

child’s statements or the trial court’s findings as to the child’s

wishes regarding custodial preference. However, the parents

requested access to a transcript of the in camera interview only

after they had filed their notice of appeal. By not requesting access

earlier (say, in a post-trial, pre-appeal motion), the parents waived

their right to access the transcript for the purpose of rebutting any

information presented during the interview. They did not, though,

waive their right to access the transcript for the purpose of

contesting the bases for the court’s findings related to the interview.

The trial court erred, then, in not ordering the transcript to be made

and made part of the record in this appeal. See Holt, 722 S.W.2d at

899 (The parties were prejudiced by lack of access to the sealed

transcript to “the extent the trial court relied on the child’s

statements.”).

16
 IV. Conclusion

¶ 30 The trial court is ordered to have the in camera interview

transcribed and transmitted, as a suppressed document,3 to this

court as a supplement to the record on appeal. The supplemental

record, properly certified by the trial court, is due 21 days from the

date of this order. Within fourteen days of the filing of the

supplemental record the parents may, if they so choose, file

supplemental briefs, not to exceed 10 pages or 3,500 words,

addressing whether the trial court’s findings of fact from the

interview are supported by the record. The other parties may file

supplemental briefs in response, not to exceed 10 pages or 3,500

words, addressing the same issue within fourteen days of the filing

of the parents’ supplemental brief(s).

JUDGE J. JONES and JUDGE BERGER concur.

3 Court records are not accessible to the public in dependency and
neglect proceedings. Chief Justice Directive 05-01, Public Access to
Court Records, § 4.60(b)(2) (amended October 2016). Suppressed
records are ordinarily accessible only by judges, court staff, parties
to the case, and if represented, their attorneys. Id. at § 3.08.

17