Peo in Interest of JRM

24CA1269 Peo in Interest of JRM 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1269
Adams County District Court No. 21JV106
Honorable Caryn A. Datz, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.R.M. and L.P-S., Children,

and Concerning D.R.P.,

Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE GRAHAM*
Dunn and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Heidi Miller, County Attorney, Conor Hagerty, Assistant County Attorney,
Westminster, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
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. 2024.
¶1 In this dependency and neglect proceeding, D.R.P. (mother)

appeals the juvenile court’s judgment adjudicating J.R.M. and

L.P-S. (the children) dependent and neglected after a jury trial. We

affirm.

I. Background

¶2 The Adams County Department of Human Services filed a

petition in dependency and neglect, which it later amended,

regarding the children. In 2022, the juvenile court adjudicated the

children dependent and neglected. A division of this court reversed

mother’s adjudication and remanded the case for a new trial. See

People in Interest of J.R.M., 2023 COA 81, ¶ 21.

¶3 The Department filed a second amended petition in

dependency and neglect due to mother’s lack of engagement and

issues related to her sobriety.

¶4 The juvenile court held a four-day adjudicatory jury trial. At

the close of evidence, the jury returned verdicts finding that

(1) mother abandoned J.R.M.; (2) mother mistreated or abused the

children; (3) the children lacked proper parental care as a result of

mother’s acts or failures to act; (4) the children’s environment was

injurious to their welfare; and (5) mother failed or refused to provide

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the children with proper or necessary subsistence, education,

medical care, or any other care necessary for their health, guidance,

or well-being.

II. Discussion

¶5 On appeal, mother contends that the juvenile court reversibly

erred when it (1) declined to grant a mistrial after an ongoing

caseworker improperly interacted with a juror and twice violated the

court’s evidentiary orders while testifying; and (2) denied her

challenge under Batson v. Kentucky, 476 U.S. 79 (1986). We

disagree with mother’s contentions.

A. Mistrial

1. Applicable Law and Standard of Review

¶6 “A mistrial is a drastic remedy that is warranted only when the

prejudice to the [moving party] is so substantial that its effect on

the jury cannot be remedied by other means.” People v. Cousins,

181 P.3d 365, 373 (Colo. App. 2007) (quoting People v. Dore, 997

P.2d 1214, 1221 (Colo. App. 1999)). A trial court has broad

discretion to grant or deny a motion for a mistrial, and we will not

reverse its decision absent an abuse of that discretion and prejudice

to the moving party. People v. Salas, 2017 COA 63, ¶ 9. “A trial

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court can better evaluate any adverse effect that improper

testimony might have upon a jury than can a reviewing court.

Thus, absent an abuse of discretion, the trial court’s denial of a

motion for mistrial will not be disturbed on review.” People v. Ned,

923 P.2d 271, 274 (Colo. App. 1996).

¶7 Similarly, a juvenile court “has substantial discretion in

deciding questions concerning the admissibility of evidence and

broad discretion to determine the relevancy of evidence, its

probative value and its prejudicial impact.” E-470 Pub. Highway

Auth. v. 455 Co., 3 P.3d 18, 23 (Colo. 2000). Therefore, we will not

disturb the juvenile court’s ruling absent an abuse of that

discretion. See id.

¶8 A juvenile court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law. People in Interest of A.N-B., 2019 COA 46, ¶ 9.

2. Additional Facts

a. Improper Interaction with a Juror

¶9 On the second day of trial, mother’s counsel told the juvenile

court that an ongoing caseworker and advisory witness had “walked

up to a juror and gave her a box of tissues” and that “[s]he should

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not be interacting with the jury in that way.” Counsel then moved

for a mistrial.

¶ 10 The juvenile court denied the motion for a mistrial, finding

that the act did not “rise[] to the level of biasing a juror towards the

petitioner to the point where manifest injustice has occurred and

requires a mistrial.” The court instructed the county attorney to

direct the caseworker not to have any interactions with the jury

moving forward.

¶ 11 At a subsequent break in the proceedings, mother’s counsel

indicated that “not only did [the caseworker] provide a tissue box

when we were up at the bench conference, but she’s also been

talking to the jury across the bar prior to this.” Counsel described

it as a “quick interaction.”

¶ 12 When questioned by the juvenile court, the caseworker said

that the juror said to her, “My husband says I sneeze a lot. I have

to stop at three.” And the caseworker responded, “Here you go.”

When the court questioned the juror, the juror said, “We were

talking about sneezing. And I said, ‘I have allergies.’ And then I

made a joke that my husband says when I sneeze that I only get,

like, four sneezes before he stops saying ‘Bless you.’” The juror

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indicated that she had no further discussion with the caseworker

and that the interaction did not affect her ability to be fair in this

case.

¶ 13 Mother’s counsel renewed the motion for a mistrial. The

juvenile court again denied the motion, finding that what occurred

was “an innocuous exchange that had nothing to do with the

matters of this case or the trial procedures or any of the witness

testimony, and [the juror] has been questioned and has indicated

that it had no influence on her in this proceeding.”

b. Violations of the Juvenile Court’s Evidentiary Orders

¶ 14 Prior to the adjudicatory trial, both parties filed motions and

proffers regarding limitations on evidence. The juvenile court

excluded evidence of mother’s prior cases, including a dependency

and neglect case, with the exception of a single recent criminal case

if mother were to testify. The court also ruled that, with the

exception of the recent criminal case, evidence that mother was

arrested, had outstanding warrants, was on probation, was in jail

or absconded, or was in the Department of Corrections would not

be permitted. The court later modified its order and permitted

testimony regarding the time periods that mother was incarcerated

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but “without mention of which facility or any specifics regarding the

conviction or sentence, subject to the [c]ourt’s prior ruling regarding

the use of any felony conviction for purposes of impeachment

should [mother] testify.” The court ordered the parties to inform

any potential witness of the orders prior to testifying and to provide

a limiting instruction.

¶ 15 At the beginning of the caseworker’s testimony, the county

attorney asked the caseworker about the child protection concerns

that led to the opening of this case. The caseworker testified that

“the original [referral] was because [L.P-S.] was born in the hospital.

He did not test positive for substance abuse, but there was a record

of that being an issue in [mother’s] past pregnancies.” Mother’s

counsel objected and moved for a mistrial, arguing that this

testimony violated the juvenile court’s order prohibiting evidence of

mother’s prior dependency and neglect case. The court declined to

grant a mistrial, finding that the requested remedy was “extreme”

but that the caseworker’s statement “rises to the level of manifest

injustice.” The court decided to “instruct the jury to disregard the

last answer and strike the answer” and to admonish the county

attorney regarding the expectation that his witnesses understand

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the court’s pretrial evidentiary rulings. In a subsequent discussion,

the court found that the caseworker “eliciting this information,

unprompted by the question with knowledge of . . . this [c]ourt’s

pretrial ruling for which she was present for, constituted a rather

gratuitous statement that inserted this information improperly

before the jury and in violation of the [c]ourt’s pretrial order.”

¶ 16 Later, the caseworker testified about her contacts with mother

to establish visits with the children. The caseworker indicated that

she first contacted mother while mother was in custody and that

she received notification via text that mother had moved facilities.

The county attorney asked her, “Did that let you know that she was

no longer in jail?” The caseworker responded, “She was no longer

in that jail, correct.” At a bench conference, mother’s counsel

argued that this testimony violated the juvenile court’s pretrial

evidentiary orders and requested a mistrial “because we have a

pattern and record of the violations that seems intentional at this

point.” In the alternative, counsel asked that the caseworker be

struck as a witness. The court elected to excuse the jury for the

night and review the caseworker’s testimony before making a ruling

on the motion for a mistrial or an appropriate sanction.

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c. The Juvenile Court’s Ruling

¶ 17 The next morning, the juvenile court found that “the most

prejudicial violation to [mother] was the insertion of the reference of

records of [mother’s] prior pregnancies involving substance use as it

did place [mother’s] past conduct directly at issue.” The court also

found that the caseworker’s additional violation involving her

comment that mother “was no longer in that jail” “[did] not

constitute prejudice warranting a mistrial.” However, the court

expressed concern “that the cumulative nature of the violations and

the risk that additional violations of pretrial orders will occur,

despite instructions or admonition of this [c]ourt, is likely.” The

court ruled the caseworker’s testimony struck from the record and

prohibited her from testifying further. The court also included a

cautionary instruction about struck evidence in the written jury

instructions.

3. Analysis

¶ 18 Mother argues that the juvenile court’s striking the

caseworker’s testimony and prohibiting her from testifying further

were insufficient to cure the prejudice to mother from the

caseworker’s interaction with the jury and improper testimony. She

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asserts that the tissue box incident established a friendly rapport

between the caseworker and the juror, which may have later caused

the juror “to favor or align with the ‘friendly’ side.” She further

claims that the jury may have drawn impermissible character or

propensity evidence under CRE 403 and 404 from the caseworker’s

reference to mother’s past pregnancies involving drug use. Finally,

mother asserts that “by mentioning that [she] was no longer in ‘that

jail,’ the jurors may have drawn the inference that [she] is a

habitual criminal, as well as other similarly impermissible character

or propensity conclusions.”

¶ 19 We conclude that a mistrial was not warranted because the

questioning of the juror, admonishment of the caseworker, curative

instructions, striking of the caseworker’s testimony, and prevention

of further testimony from the caseworker were sufficient to remedy

any prejudice to mother from the caseworker’s actions.

¶ 20 A new trial is required only “where there is a reasonable

possibility that the verdict was tainted by the introduction of

outside . . . influences into the jury deliberations.” Wiser v. People,

732 P.2d 1139, 1143 (Colo. 1987). We conclude that there is no

reasonable possibility that the interaction between the juror and the

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caseworker had any effect on the verdict. The record demonstrates

that the nature of the interaction was brief and unrelated to the

matters of this case. Moreover, the juvenile court instructed the

county attorney to advise the caseworker that she must no longer

interact with the jurors. And most importantly, the court took the

remedial step of questioning the juror, during which the juror

indicated that the interaction with the caseworker had no impact on

her decision-making in the trial.

¶ 21 Regarding the caseworker’s testimony that violated the

juvenile court’s pretrial evidentiary rulings, when inadmissible

evidence is presented to the jury, “the factors relevant to the

exercise of discretion to declare a mistrial include the nature of the

inadmissible evidence, the weight of admissible evidence of guilt,

and the value of a cautionary instruction.” People v. Vigil, 718 P.2d

496, 505 (Colo. 1986). While the caseworker’s statements were

perhaps improper, we deem improper witness testimony to have

less prejudicial impact when, as here, the reference was fleeting.

Id.; see also Salas, ¶ 18 (the trial court did not abuse its discretion

by denying a motion for a mistrial based on a witness’s remark

10
referring to the defendant’s prior criminality, in part because the

“remark was fleeting [and] minimally prejudicial”).

¶ 22 Moreover, even excluding the caseworker’s testimony, the

admissible evidence supporting the adjudication was substantial,

as testified to by six additional witnesses for the county. These

additional witnesses testified to a lack of prenatal care, a lack of

mother’s resources, mother’s history with substance abuse and

mental health issues, a shooting incident involving mother and

L.P-S., trouble maintaining engagement with mother, and mother’s

lack of contact with J.R.M.

¶ 23 Furthermore, the juvenile court instructed the jury to

disregard the caseworker’s testimony and to not consider it as

evidence in this case, and the court prevented any further

testimony from the caseworker. The jury is presumed to have

followed a curative instruction to disregard improper testimony.

See People v. Pernell, 2014 COA 157, ¶ 44, aff’d on other grounds,

2018 CO 13. Thus, a curative instruction is generally adequate

unless the improper testimony is so prejudicial that, but for the

exposure, the jury might not have ruled against the respondent. Id.

Here, the contested evidence was not so inflammatory in nature

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that it could not be disregarded by the jury upon proper

instruction. There is also no evidence that the jury did not heed the

curative instruction. People v. Garcia, 2012 COA 79, ¶ 20 (we

assume the jury heeds the court’s curative instructions absent clear

evidence to the contrary).

¶ 24 Accordingly, we conclude that the juvenile court did not abuse

its discretion by denying mother’s motions for a mistrial.

B. Batson Challenge

1. Applicable Law and Standards of Review

¶ 25 The Equal Protection Clause of the Fourteenth Amendment

precludes a juror challenge based on race. Batson, 476 U.S. at 89.

“Purposeful racial discrimination in selection of the venire violates a

defendant’s right to equal protection because it denies him the

protection that a trial by jury is intended to secure.” Id. at 86.

¶ 26 Batson provides a three-step process for evaluating claims of

racial discrimination in jury selection. People v. Johnson, 2024 CO

35, ¶ 17; People v. Austin, 2024 CO 36, ¶ 7. First, the opponent of

a peremptory strike must make a prima facie showing that the

proponent used the strike against a potential juror because of race.

Johnson, ¶ 18. As long as the totality of the relevant circumstances

12
raises an inference of racial motivation, the objecting party has

satisfied their step-one burden. Batson, 476 U.S. at 96; accord

Valdez v. People, 966 P.2d 587, 589 (Colo. 1998); see also People v.

Romero, 2024 CO 62, ¶ 33 (“The step-one standard to determine

whether an objecting party has satisfied the burden of making a

prima facie showing that the challenged peremptory strike is race-

based is ‘easily satisfied.’” (quoting Craig v. Carlson, 161 P.3d 648,

655 (Colo. 2007))).

¶ 27 At step two, the proponent of the strike must offer a

race-neutral explanation for the strike — an explanation based on

something other than the race of the juror. Romero, ¶ 34.

“Importantly, the trial court may not consider the plausibility or

persuasiveness of a stated reason at step two.” Id. at ¶ 35. Rather,

“the court is limited to determining whether the striking party has

advanced a reason that, ‘on its face,’ is race neutral.” Id. (quoting

Austin, ¶ 18).

¶ 28 During step three, the objecting party may rebut the striking

party’s race-neutral explanations. Id. at ¶ 36. The juvenile court’s

task at step three is to “decide[] whether the objecting party has met

its burden of proving purposeful discrimination by weighing ‘“all of

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the circumstances that bear upon the issue of” purposeful

discrimination.’” Austin, ¶ 21 (quoting People v. Madrid, 2023 CO

12, ¶ 34). The court may consider “the striking party’s demeanor,

the reasonableness of the proffered race-neutral explanations, and

whether the rationales are rooted in accepted trial strategy,”

Madrid, ¶ 34, as well as “the plausibility of the striking party’s non-

discriminatory explanations,” Romero, ¶ 37 (quoting People v.

Beauvais, 2017 CO 34, ¶ 23). “The decisive question at step three

is whether counsel’s race-neutral explanation for a peremptory

challenge should be believed.” People v. Collins, 187 P.3d 1178,

1182 (Colo. App. 2008).

¶ 29 “[T]he ruling at step three, regarding whether the objecting

party has met the burden of establishing purposeful racial

discrimination, is at its core a ‘determination[] of credibility and

demeanor.’” Romero, ¶ 42 (quoting Beauvais, ¶ 21). Such a

determination lies “peculiarly within a trial judge’s province.” Id.

(quoting Beauvais, ¶21). “[I]mplicit demeanor and credibility

findings may suffice.” Id. at ¶ 43.

¶ 30 The ultimate burden of persuasion rests with the opponent of

the strike, Purkett v. Elem, 514 U.S. 765, 767 (1995), and, for a

14
Batson challenge to succeed, the court must “find by a

preponderance of the evidence that one or more potential jurors

were excluded because of race,” Valdez, 966 P.2d at 590.

¶ 31 Different steps of the Batson analysis are subject to separate

standards of review. People v. Ojeda, 2022 CO 7, ¶ 30. We review

steps one and two de novo. Id. At step three, the trial court’s final

determination as to the existence of racial discrimination is an

issue of fact that we review for clear error. Id.; see also Snyder v.

Louisiana, 552 U.S. 472, 477 (2008) (“On appeal, a trial court’s

ruling on the issue of discriminatory intent must be sustained

unless it is clearly erroneous.”); Batson, 476 U.S. at 98 n.21 (“Since

the trial judge’s findings in the context under consideration [at step

three] largely will turn on evaluation of credibility, a reviewing court

ordinarily should give those findings great deference.”).

¶ 32 “[W]hile a trial court must consider all of the evidence bearing

upon the plausibility of a non-discriminatory reason and the

possibility of discriminatory animus, it need not make express

findings about that evidence and how it contributes to the court’s

ultimate ruling.” Beauvais, ¶ 32 (citations omitted). We defer to the

trial court’s step-three ruling “so long as the record (1) reflects that

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the trial court considered all the relevant circumstances and

(2) supports (including possibly through implicit demeanor and

credibility findings) the trial court’s ruling as to whether the

objecting party proved purposeful racial discrimination by a

preponderance of the evidence.” Romero, ¶ 47.

2. Additional Facts

¶ 33 During voir dire, the county attorney asked prospective Juror

Y.C., “Any ideas as to why there might be a burden of proof of

preponderance of the evidence in these kinds of cases, these

dependency and neglect cases?” Juror Y.C. responded, “I would say

that the evidence it’s a little more complex and the evidence is not

as clear as, I guess, in a criminal case.” Neither party further

engaged with Juror Y.C. during voir dire.

¶ 34 The county attorney later used a peremptory strike to excuse

Juror Y.C. Mother’s counsel raised a Batson challenge, arguing

that

[Juror Y.C.], her last name sounds Hispanic.
Her hair is dark. The color of her hair is
brown. My client, just for the record, is also a
person of color. She has brown hair. She has
dark skin. Thus far, the composition of the
jury based on the prior challenges is primarily
the rest of the jury would primarily be white.

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And I believe that this is evidence at this point
sufficient to raise inference that discrimination
has occurred . . . . And so I’m concerned that
this is a race-based strike and so I challenge
the strike at this time.

¶ 35 The county attorney explained, as his step-two race-neutral

reason, that he did not strike Jury Y.C. on the basis of race but

because Juror Y.C. had made comments on the questionnaire that

the attorney “couldn’t get a read on” and that the attorney “couldn’t

see what [Juror Y.C.] was going to stay for.” The county attorney

also explained that the first peremptory strike he used was for

someone he “assume[d] . . . [was] Hispanic” and clearly “did not

want to be here,” and the second peremptory strike he used was for

a “white male.”

¶ 36 The juvenile court then stated:

As the respondent has made a Batson
challenge as to Juror Number 1, [Y.C.], who
the best the [c]ourt can tell her last name and
her appearance in having dark hair I don’t
know that there’s anything else before the
[c]ourt to suggest that she is of Hispanic
origin.

The first process is first the respondent can
make out if there is a prima facie case if there
was a juror struck on the basis of race noting
that [mother] is Hispanic. Then the opposing
party has an opportunity to provide an

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explanation as to your excusal of that juror.
[The county attorney] has indicated that it had
nothing to do with the suspected background,
race or heritage of [Juror Y.C.] that — I’m
quoting — or paraphrasing that he could not
get a good read on her; that has not been
rebutted by the respondent.

¶ 37 The juvenile court then gave mother a chance to rebut the

county attorney’s proffered reason. Mother’s counsel said, “I don’t

believe that this is a sufficient explanation. There’s no indication to

things that the juror said or reasons other than I can’t get a good

read that would be sufficient for a race neutral reason.”

¶ 38 In the county attorney’s final response, the attorney said, “I

did excuse her more for she seemed unwilling or unwanting to

thoroughly engage. Her responses were rather short, she was

speaking softly. And that is ultimately what gave me pause to keep

her on the jury.”

¶ 39 The juvenile court then denied mother’s Batson challenge,

concluding that “[b]ased on the record before the [c]ourt and the

explanation provided I don’t find that there’s sufficient evidence of

purposeful discrimination in the exercise of the peremptory for

[Juror Y.C.].”

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3. Analysis

¶ 40 We first conclude that, while the juvenile court did not

specifically find that mother’s counsel made a prima facie showing

under step one, it nevertheless proceeded to steps two and three.

See Romero, ¶ 31. We do note, however, that the better practice is

for the juvenile court to make specific findings regarding step one

when, as is the case here, there appears to be little or no evidence

to support a prima facie showing that the striking party used the

strike against the juror because of race. The color of the juror’s

hair and her surname were the only reasons advanced by the

proponent of the challenge. Even the court commented that,

besides Juror Y.C.’s surname and hair color, “I don’t know that

there’s anything else before the [c]ourt to suggest that she is of

Hispanic origin.” Thus, the court might very well have ended the

matter at step one.

¶ 41 We next conclude that, while the juvenile court also did not

make any specific findings regarding step two, the record

demonstrates that the county attorney offered a race-neutral reason

for excusing Juror Y.C. The burden at step two is not high; the

county attorney needed only to tender a facially race-neutral

19
explanation. See Valdez, 966 P.2d at 591. “Unless a discriminatory

intent is inherent in the [striking party]’s explanation, the reason

offered will be deemed race neutral.” Hernandez v. New York, 500

U.S. 352, 360 (1991). At step two, the court does not consider

whether the explanation is plausible or persuasive. Johnson, ¶ 19.

¶ 42 Here, the county attorney challenged Juror Y.C. because the

attorney “couldn’t get a read on her” and “couldn’t see what she was

going to stay for” and because the juror seemed unwilling to engage,

proffered short responses, and spoke softly. These reasons are not

rooted in Juror Y.C.’s or mother’s race. Therefore, the county

attorney met his step-two burden. See Austin, ¶ 18 (“If the striking

party provides a reason that, on its face, is ‘based on something

other than the race of the juror,’ she has met her step-two burden.”

(quoting Johnson, ¶ 36)).

¶ 43 Regarding step three, the juvenile court relied on “the record

before the [c]ourt and the explanation provided” to find no “evidence

of purposeful discrimination in the exercise of the peremptory for

[Juror Y.C.].” Based on this, we can infer that the court used its

discretion to consider all the relevant circumstances. See Romero,

20
¶ 47. We further conclude that the record supports the court’s

ultimate ruling at step three.

¶ 44 Recall first that the burden rests with the opponent of the

strike — here, mother — to establish purposeful racial

discrimination by a preponderance of the evidence. Purkett, 514

U.S. at 767; Valdez, 966 P.2d at 590. But the record shows that

mother’s counsel did not rebut, in any way, the county attorney’s

reasons for challenging Juror Y.C. Counsel’s only purported

rebuttal was that he said, “I don’t believe that this is a sufficient

explanation,” and “[t]here’s no indication to things that the juror

said or reasons other than I can’t get a good read that would be

sufficient for a race neutral reason.”

¶ 45 “The demeanor and credibility of the attorney exercising the

peremptory strike frequently constitute the best evidence of whether

the objecting party has established purposeful racial

discrimination.” Romero, ¶ 42. At no point here did the juvenile

court state, or even hint, that it thought the county attorney “was

being disingenuous or untruthful.” Id. at ¶ 62. Implicit in this is

that the court found the county attorney credible and his race-

21
neutral reason sincere. See id. at ¶ 52. And there is nothing in the

record showing that the court clearly erred in so finding.

¶ 46 Based on the lack of rebuttal and the juvenile court’s implicit

finding on credibility and demeanor, it is apparent that the court

was simply not persuaded that mother met her burden to prove

purposeful racial discrimination by a preponderance of the

evidence. And we do not perceive that finding to be clearly

erroneous.

¶ 47 Under these circumstances, we conclude that the juvenile

court properly denied mother’s Batson challenge.

III. Disposition

¶ 48 The judgment is affirmed.

JUDGE DUNN and JUDGE TOW concur.

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