CourtListener 4849599•in the Interest of R.J.B
Gesamter Gesetzestext
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
Date January 21, 2021
2021COA4
No. 20CA0859, People in the Interest of R.J.B. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship — Appearance by Electronic Means;
Constitutional Law — Due Process
In this dependency and neglect proceeding, mother appeals
the judgment terminating her parent-child legal relationship
following a remote termination hearing via Webex. She claims that
the court should have granted her a continuance so an in-person
hearing could have been held, and the remote hearing didn’t afford
her due process or equal protection of the law.
The division concludes that the court didn’t abuse its
discretion in denying the continuance. The court’s need to conduct
the termination hearing via Webex didn’t establish good cause to
continue the hearing when a judge presiding over a hearing held via
Webex can address any technical difficulties with sound, video feed,
or broadband issues as they arise; any delay in making an objection
can be redressed by the court disregarding improperly admitted
evidence; the court had extensively tested the virtual lobby and
didn’t allow a sequestered witness to hear any of the proceeding;
Webex, as a real-time videoconference platform in which all
participants may view one another, allows the court and all counsel
to observe a witness’s demeanor, determine if the witness is relying
on documents or other information, and view admitted exhibits as
well as other documents that may be used for impeachment; and
the court ensured that an official record of the hearing was made in
the same manner as during an in-person hearing.
The division also rejects mother’s assertions that the remote
hearing procedure failed to afford her due process and equal
protection of the law. The division concludes that the juvenile court
ensured that mother was provided substantially similar and
fundamentally fair procedures as would have been available at an
in-person termination hearing. So conducting the termination
hearing via Webex afforded mother due process. The division didn’t
consider mother’s equal protection claim because it is merely a bald
assertion without argument or development.
COLORADO COURT OF APPEALS 2020COA4
Court of Appeals No. 20CA0859
City and County of Denver Juvenile Court No. 19JV225
Honorable Laurie A. Clark, Judge
The People of the State of Colorado,
Appellee,
In the Interest of R.J.B., a Child,
and Concerning R.B.,
Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE HAWTHORNE*
Bernard, C.J., and Graham*, J., concur
Announced January 21, 2021
Kristin M. Bronson, City Attorney, Amy J. Packer, Assistant City Attorney,
Denver, Colorado, for Appellee
Barry Meinster, Guardian Ad Litem
Ainsley Bochniak, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 In this dependency and neglect proceeding, R.B. (mother)
appeals the juvenile court’s judgment terminating her parent-child
legal relationship with R.J.B. (the child) following a remote
termination hearing conducted via the Webex remote video-
conference platform. Mother claims that (1) the court should have
granted her a continuance so an in-person hearing could have been
held; (2) the remote hearing didn’t afford her due process or equal
protection of the law; and (3) there was a less drastic alternative to
terminating her parental rights.
¶2 We conclude that the court’s need to conduct the termination
hearing via Webex didn’t establish good cause to continue the
hearing. We also reject mother’s assertions that the remote hearing
procedure failed to afford her due process and equal protection of
the law. And, the juvenile court didn’t err in determining that there
was no less drastic alternative to termination. So we affirm the
judgment.
I. The Dependency and Neglect Case
¶3 In late January 2019, the Denver Department of Human
Services learned that mother had been arrested on an outstanding
warrant and the home that the child shared with mother and the
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maternal grandmother was unsanitary and unsafe. Mother also
admitted that she used methamphetamine, marijuana, and alcohol
on a regular basis. And she agreed to place the three-year-old child
in his godmother’s care. But the Department was unable to keep in
contact with mother and it initiated a dependency and neglect case
the next month.
¶4 The juvenile court granted custody of the child to the
Department for continued placement with the godmother. And it
granted a default judgment adjudicating the child dependent and
neglected.
¶5 Mother personally appeared at a hearing while she was
incarcerated in July 2019. At that time, the court set aside the
default judgment and adjudicated the child dependent and
neglected based on mother’s admission. It also adopted a treatment
plan for mother.
¶6 Mother was released from custody less than two months later.
Shortly after that, she stopped all contact with the Department.
And she didn’t personally appear at any further court hearings.
¶7 In March 2020, the Department filed a motion to terminate the
legal relationship between mother and the child. About that same
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time, the judicial department began implementing measures to
mitigate the public health risk posed by the COVID-19 pandemic.
See Office of the Chief Justice, Order Regarding COVID-19 and
Operation of Colorado State Courts (Mar. 16, 2020),
https://perma.cc/85XJ-9WG7. As part of these measures, the
Chief Judge of the Denver Juvenile Court issued a directive that all
hearings — including termination hearings — would be conducted
on an electronic platform such as Webex. See Presiding Judge,
Denver Juvenile Court Order (Mar. 27, 2020),
https://perma.cc/ZX8D-MMNV.
¶8 Shortly before the termination hearing in late-April 2020,
mother filed three motions asking the court to (1) find that an
allocation of parental responsibilities (APR) to the godmother was a
less drastic alternative to termination; (2) enter an APR order; and
(3) continue the termination hearing.
¶9 The court denied mother’s request for a continuance. And,
following a contested termination hearing via Webex, the court
determined that there was no less drastic alternative and
terminated mother’s parental rights.
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II. Continuance
¶ 10 Mother first contends that the juvenile court abused its
discretion by denying her request to continue the termination
hearing because the need to hold the hearing via Webex constituted
good cause. We disagree.
A. The Legal Standard
¶ 11 The Children’s Code directs courts to “proceed with all
possible speed to a legal determination that will serve the best
interests of the child.” § 19-1-102(1)(c), C.R.S. 2020. When ruling
on a motion to continue a termination hearing, the court should
balance the need for orderly and expeditious administration of
justice against the facts underlying the motion and the child’s need
for permanency. C.S. v. People in Interest of I.S., 83 P.3d 627, 638
(Colo. 2004).
¶ 12 Because the child was under the age of six when the
dependency and neglect petition was filed, the expedited
permanency planning (EPP) provisions apply. See §§ 19-1-102(1.6),
19-1-123, C.R.S. 2020. In EPP cases, the court shall not delay or
continue the termination hearing unless good cause is shown and
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the delay is in the child’s best interests. §§ 19-3-104, 19-3-602(1),
C.R.S. 2020.
¶ 13 A motion to continue is addressed to the court’s discretion and
we won’t disturb its ruling on appeal absent a showing of an abuse
of that discretion. C.S., 83 P.3d at 638. A court abuses its
discretion when its ruling is manifestly arbitrary, unfair, or
unreasonable. People in Interest of C.Y., 2018 COA 50, ¶ 13.
B. Analysis
¶ 14 Initially, we note that mother relies on language from the
Denver District Court’s COVID-19 directive. As pertinent here, that
directive provides that all necessary participants in civil proceedings
must appear remotely through telephone or teleconferencing
options, but that any proceeding that the attorneys feel aren’t
capable of remote presentation can be continued at the court’s
discretion. See Chief Judge of the Second Judicial District,
Amended Administrative Order Regarding Court Operations Under
COVID-19 Advisory (Mar. 29, 2020), https://perma.cc/RC3G-
RME8.
¶ 15 But this case was heard in Denver Juvenile Court, which is
constitutionally separate from the Denver District Court. See §§ 13-
5
8-101, 13-8-102, C.R.S. 2020. So, the Denver District Court’s
COVID-19 directive is inapplicable to this proceeding. See § 13-8-
115, C.R.S. 2020 (providing that the juvenile court has power to
make rules for conducting its business to the extent that such rules
don’t conflict with supreme court rules or state laws).
¶ 16 In her motion, mother claimed that conducting the hearing by
Webex would create a fundamentally unfair proceeding because of
difficulties with
hearing other parties;
the video feed cutting in and out or freezing;
the parties’ broadband capabilities;
making contemporaneous objections;
effectuating a sequestration order while a witness waited in a
virtual lobby;
ascertaining whether witnesses were using documents or were
in private communication with counsel or other parties;
using documents to impeach a witness;
offering exhibits;
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allowing the court and counsel to observe a witness’s
demeanor; and
ensuring there was an adequate record of the hearing.
¶ 17 However, as the juvenile court recognized, for several reasons,
these concerns were either unfounded or could be addressed at the
hearing.
¶ 18 First, a judge presiding over a hearing held via Webex can
address any technical difficulties with sound, video feed, or
broadband issues as they arise.
¶ 19 Second, any delay in making an objection can be redressed by
the court disregarding any slight delay in making the objection or
disregarding improperly admitted evidence. Indeed, we presume
that all incompetent evidence is disregarded by the juvenile court.
See People in Interest of M.M., 215 P.3d 1237, 1249-50 (Colo. App.
2009).
¶ 20 Third, the court indicated that the virtual lobby had been
extensively tested and didn’t allow a sequestered witness to hear
any of the proceeding.
¶ 21 Fourth, Webex is a real-time video-conference platform in
which all participants may view one another. See White v. State,
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116 A.3d 520, 541 n.29 (Md. Ct. Spec. App. 2015). As such, it
allows the court and all counsel to observe a witness’s demeanor,
determine if the witness is relying on documents or other
information, and view admitted exhibits as well as other documents
that may be used for impeachment.
¶ 22 And fifth, the court indicated that it would ensure that an
official record of the hearing was made in the same manner as
during an in-person hearing.
¶ 23 Also, mother’s request to continue made no showing that
delaying the hearing was in the child’s best interests. Mother now
claims that continuing the hearing would have served the child’s
best interests because he was in a permanent home and neither she
nor any other party were seeking to move him from that home. But
she didn’t present this argument to the juvenile court.
¶ 24 For these reasons, we conclude that the court didn’t abuse its
discretion in denying mother’s request to continue the termination
hearing.
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III. Termination Hearing by Webex
¶ 25 Mother next contends that the juvenile court violated her right
to due process and equal protection of the law by conducting the
termination hearing via Webex. We aren’t persuaded.
A. Due Process
¶ 26 We review a procedural due process claim de novo. People in
Interest of C.J., 2017 COA 157, ¶ 25. To establish a violation of due
process, one must first establish a constitutionally protected liberty
interest that warrants due process protections. Id.
¶ 27 A parent has a fundamental liberty interest in the care,
custody, and control of his or her child. Troxel v. Granville, 530
U.S. 57, 66 (2000). To protect the parental liberty interest, due
process requires the state to provide fundamentally fair procedures
to a parent facing termination. A.M. v. A.C., 2013 CO 16, ¶ 28; see
also Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). These
procedures must include a parent receiving notice of the hearing,
advice of counsel, and the opportunity to be heard and defend.
People in Interest of Z.P.S., 2016 COA 20, ¶ 40. The opportunity to
be heard must be provided at a meaningful time and in a
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meaningful manner. Patterson v. Cronin, 650 P.2d 531, 537 (Colo.
1982).
¶ 28 Mother was afforded each of these procedures during the
termination proceeding. She received ample notice of the
Department’s intent to seek termination of her parental rights at
the April 2020 hearing. The record also shows that mother was
represented by court-appointed counsel throughout the proceeding
and given a meaningful opportunity to be heard and defend against
the termination motion.
¶ 29 Even before the hearing, counsel filed motions urging the
court to find that an APR to the godmother was a less drastic
alternative to termination. And counsel appeared on mother’s
behalf at the termination hearing. During the hearing, the court
offered counsel the opportunity to (1) give an opening statement; (2)
cross-examine each of the witnesses called by the Department and
guardian ad litem; (3) present additional evidence; and (4) make a
closing argument.
¶ 30 The court also ensured that counsel’s representation of mother
wasn’t hindered by holding the hearing via Webex. Counsel had the
ability to observe each witness’s demeanor by using the video
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platform. The court also used the virtual lobby to ensure that
sequestered witnesses were unable to hear other portions of the
hearing. And, on the few occasions when mother’s counsel or the
court had been unable to hear a question or a witness’s response to
a question, the court asked the reporter to read back that portion of
the record.
¶ 31 At one point, the court indicated that it was having difficulty
hearing mother’s counsel. But it immediately recessed to allow
counsel to appear telephonically. The court could then easily hear
counsel for the remainder of her cross-examination and closing
argument.
¶ 32 Finally, mother claims that she wasn’t given the opportunity to
be heard and personally participate in the termination hearing
because she was struggling with homelessness and lacked access to
resources to appear via Webex. But at no point did mother alert the
court that she faced this problem. Indeed, the court observed that
if mother had indicated that she wanted to personally participate in
the hearing, it would have made accommodations to ensure that
mother was able to do so either by telephone or Webex. And in this
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appeal, mother hasn’t articulated how conducting the hearing via
Webex diminished the effectiveness of her case.
¶ 33 We conclude that the juvenile court ensured that mother was
provided with substantially similar procedures as would have been
available at an in-person termination hearing. So conducting the
termination hearing via Webex afforded mother due process. Cf.
Clarington v. State, No. 3D20-1461, 2020 WL 7050095, at *11, ___
So. 3d ___ (Dist. Ct. App. Fla. Dec. 2, 2020) (holding that
conducting a probation hearing by remote technology does not
violate the defendant’s due process rights).
B. Equal Protection
¶ 34 Mother also contends that holding the termination hearing via
Webex denied her equal protection of the law. The right to equal
protection of the law guarantees that parties who are similarly
situated receive like treatment by the law. But mother doesn’t
explain how she received disparate treatment compared to other
parties who are similarly situated. See People in Interest of M.M.,
726 P.2d 1108, 1117 (Colo. 1986).
¶ 35 In fact, mother’s equal protection claim is merely a bald
assertion without argument or development. So we won’t consider
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it. See Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo.
App. 2010) (a bald legal proposition presented without argument or
development won’t be considered on appeal); see also United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (a party may not merely
mention a possible argument in the most skeletal way, leaving the
court to be mind-readers and do counsel’s work).
IV. Less Drastic Alternative to Termination
¶ 36 Mother contends that the juvenile court erred by determining
that an APR to the child’s godmother wasn’t a less drastic
alternative to termination. Again, we disagree.
A. The Legal Framework
¶ 37 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child was adjudicated
dependent and neglected; (2) the parent hasn’t complied with an
appropriate, court-approved treatment plan or the plan wasn’t
successful; (3) the parent is unfit; and (4) the parent’s conduct or
condition is unlikely to change within a reasonable time. § 19-3-
604(1)(c), C.R.S. 2020; People in Interest of C.H., 166 P.3d 288, 289
(Colo. App. 2007).
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¶ 38 When considering termination under section 19-3-604(1)(c),
the court must also consider and eliminate less drastic alternatives
to termination. M.M., 726 P.2d at 1122. This determination is
implicit in, and thus intertwined with, the statutory criteria for
termination. People in Interest of L.M., 2018 COA 57M, ¶ 24. As a
result, it is influenced by a parent’s fitness to care for his or her
child. Id. at ¶ 27.
¶ 39 And, as with all termination criteria, the court must give
primary consideration to the child’s physical, mental, and emotional
conditions and needs. § 19-3-604(3); L.M., ¶ 29. Thus, for
example, the court may consider whether an ongoing relationship
with the parent would be beneficial or detrimental to the child and
the child’s need for permanency when determining whether there is
a viable alternative to termination. L.M., ¶ 29.
¶ 40 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves
applying the termination statute to evidentiary facts. Id. at ¶ 17;
see also In Interest of Baby A, 2015 CO 72, ¶ 16 (a juvenile court’s
decision to terminate parental rights under section 19-5-105,
C.R.S. 2020, presents mixed questions of fact and law). However,
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we won’t disturb the court’s factual findings if they have record
support. People in Interest of A.J.L., 243 P.3d 244, 250 (Colo.
2010).
B. The Record
¶ 41 The record reveals that the child was thriving in the
godmother’s care. And, as mother points out, the court had
previously determined that this was a permanent home for the
child.
¶ 42 Even so, the record shows that mother hadn’t maintained any
relationship with the child. Although the Department tried to
arrange visits for mother through two different caseworkers as well
as an external agency, mother failed to engage with any of the
professionals. Mother didn’t attend any visits with the child during
the fourteen months the case was open, which negatively impacted
the child. He had initially been upset and showed “a lot of
backtrack in his behavioral outbursts” when scheduled visits didn’t
occur. The caseworker also observed that the child no longer
referred to mother as “mom” and instead called her by her first
name.
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¶ 43 Mother was also unfit to care for the child. She had made no
effort to engage in substance abuse treatment to address her
methamphetamine, alcohol, and marijuana use. And she hadn’t
participated in a mental health evaluation or treatment to address
her bipolar and depression diagnoses.
¶ 44 Also, the godmother testified that she had difficulty
establishing appropriate boundaries with mother. For example,
during a chance encounter in the community, mother became upset
when the godmother would not give her money. The godmother
also explained that mother had gone onto her Facebook page and
copied a picture of the child with other members of the godmother’s
family. Mother had then posted the picture on her own Facebook
page and became belligerent when the godmother asked her to
remove it.
¶ 45 Finally, the record shows that the child needed the
permanency provided by adoption. The godmother explained that
adoption would allow the child to continue in the stable home
environment that she and her family had provided for him. And she
wanted to be able to make key decisions for the child, such as when
he should have contact with mother. The godmother also
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adamantly opposed caring for the child under a custody
arrangement because mother would have the ability to return and
ask the court to take the child away from her care.
¶ 46 The caseworker similarly opined that an APR would not
provide the child with the permanency and stability that he needed.
She explained that it was imperative that the child’s progress made
while in the godmother’s care not be disrupted.
¶ 47 On this record, we discern no error in the juvenile court’s
determination that there was no less drastic alternative to
termination.
V. Conclusion
¶ 48 The judgment is affirmed.
CHIEF JUDGE BERNARD and JUDGE GRAHAM concur.
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