Peo in Interest of OLF

24CA1511 Peo in Interest of OLF 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1511
El Paso County District Court No. 24JV30461
Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of O.L.F., a Child,

and Concerning R.M.,

Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Schock and Sullivan, JJ., concur

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

Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
¶1 In this dependency and neglect proceeding, R.M. (father)

appeals the judgment adjudicating O.L.F. (the child) dependent or

neglected following a jury trial. We affirm.

I. Background

¶2 In 2020, the El Paso County Department of Human Services

initiated a dependency and neglect proceeding regarding the then-

newborn child based on concerns about the parents’ substance

abuse and domestic violence. Two-and-a-half years later, the

juvenile court entered an allocation of parental responsibilities

(APR) to the child’s mother.1 At that time, the juvenile court found

that father was not fit because he had not complied with his

treatment plan. Thus, the court permitted father to have only

professionally supervised parenting time and required him to

engage in domestic violence and substance use treatment. The

court also approved a step-up plan that allowed father to work

toward unsupervised parenting time by demonstrating ongoing

1 At trial, the juvenile court admitted the prior APR judgment,

marked as People’s Exhibit 2, into evidence. But it is not in the
appellate record. Nonetheless, we take judicial notice of the APR
judgment, dated February 21, 2023, from El Paso County District
Court Case No. 20JV303. See C.R.E. 201.

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sobriety and engaging in substance abuse and domestic violence

treatment not completed during the case. The juvenile court

certified the APR judgment into a domestic relations case and

closed the dependency and neglect case.

¶3 A year-and-a-half later, law enforcement received a report that

mother was brandishing a weapon and responded to her apartment

in the middle of night. When they arrived, the then-four-year-old

child was awake, and mother appeared to be under the influence of

substances. The front door to the apartment was broken off its

hinges, and an unknown male with methamphetamine in his

pocket was inside the apartment. Law enforcement found drug

paraphernalia near the child’s toys; trash scattered throughout the

apartment; and numerous unsecured safety hazards including

nails, screws, razor blades, a knife, and ripped out electrical

outlets.

¶4 An intake caseworker responded to mother’s apartment. After

an initial investigation, the Department determined that it could not

place the child with father because the prior APR judgment did not

allow him any unsupervised parenting time. The caseworker could

not identify any other relatives who were available to take the child,

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so the Department requested a verbal order to remove the child and

place her in foster care. The juvenile court granted the request.

¶5 The Department then filed a petition in dependency and

neglect alleging concerns about the parents’ substance use,

domestic violence, mental health, and past involvement with the

Department. Father denied the allegations and requested an

adjudicatory jury trial. He also chose to represent himself despite

the juvenile court’s offer to appoint counsel and continue the trial.

¶6 After a three-day trial, the jury rendered a verdict finding that

(1) the child lacked proper parental care as a result of father’s acts

or failures to act; (2) the child’s environment was injurious to her

welfare; and (3) father failed or refused to provide proper or

necessary care related to the child’s health, guidance, or well-being.

Based on the jury’s verdict, the court adjudicated the child

dependent or neglected. The court later entered a dispositional

order adopting a treatment plan for father.

II. Statutory Framework and Standard of Review

¶7 The purpose of an adjudicatory jury trial is to determine

whether the factual allegations in the dependency and neglect

petition are supported by a preponderance of the evidence and

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whether the status of the child warrants intrusive protective or

corrective state intervention into the familial relationship. People in

Interest of G.E.S., 2016 COA 183, ¶ 13. A child may be adjudicated

dependent or neglected if the government proves that one or more of

the conditions set forth in section 19-3-102, C.R.S. 2024, exists.

People in Interest of S.M-L., 2016 COA 173, ¶ 25, aff’d on other

grounds sub nom People in Interest of R.S. v. G.S., 2018 CO 31. A

child is dependent or neglected if, as relevant here, “[t]he child lacks

proper parental care through the actions or omissions of the parent,

guardian, or legal custodian;” “[t]he child’s environment is injurious

to his or her welfare;” or “[a] parent, guardian, or legal custodian

fails or refuses to provide the child with proper or necessary

subsistence, education, medical care, or any other care necessary

for his or her health, guidance, or well-being.” § 19-3-102(1)(b)-(d).

III. Prospective Harm

¶8 Father contends that the juvenile court erred by focusing

“solely on prospective harm” in determining that the child was

dependent or neglected. He argues that the “use of prospective

harm as a basis for adjudication, as utilized [in this case], is not

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fundamentally fair because it is not limited in scope.” We discern

no error.

¶9 We note that father’s argument that the juvenile court

improperly “focused solely on prospective harm” is unclear — the

court was not the fact finder, and it adjudicated the child based on

the jury’s verdict. Nonetheless, to the extent father argues that the

court improperly concluded that an adjudication under section 19-

3-102(1) can be based on evidence showing prospective harm, we

review his argument de novo. See People in Interest of E.S., 2021

COA 79, ¶ 11 (a determination of the proper legal standard to be

applied in a case is reviewed de novo). And we reject the argument

because we have repeatedly held that an adjudication can be based

on prospective harm. See e.g. G.E.S., ¶ 15; People in Interest of S.N.,

2014 COA 116, ¶¶ 15-16; People in Interest of S.G.L., 214 P.3d 580,

583 (Colo. App. 2009).

¶ 10 More specifically, when, as here, a child is not in a parent’s

care at the time of removal, the fact finder must determine whether

a child is dependent or neglected based on a prediction of the home

environment to which the child might be exposed if placed in that

parent’s care. See People in Interest of A.W., 2015 COA 144M, ¶ 22.

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In such an instance, the fact finder’s task is to determine whether

the child “will lack” proper parental care if returned to the parent or

whether the child’s environment “will be” injurious to the child in

that event. People in Interest of S.X.M., 271 P.3d 1124, 1130 (Colo.

App. 2011). Such a determination may be based on the “parent’s

past conduct and current circumstances.” S.N., ¶ 17. Thus, it is

not necessary that a child be placed with a parent to determine

whether that parent can provide proper care if such a placement

might prove detrimental to a child. S.G.L., 214 P.3d at 583.

¶ 11 Based on the foregoing, we discern no error in the juvenile

court’s determination that the Department could seek adjudication

based on prospective harm by presenting evidence related to

father’s prior dependency and neglect cases. See A.W., ¶ 26. And

to the extent father argues that the court failed to limit the scope of

such evidence, the record indicates otherwise. Indeed, the court

instructed the jury to consider evidence of father’s past cases only

for the limited purpose of showing whether the child would lack

proper parental care or be in an injurious environment if placed

with him and not for the purpose of showing that he would act in

conformity with his conduct in those cases. See id. at ¶ 27.

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¶ 12 Father also argues that the Department failed to abide by its

own administrative regulations when it removed the child and that

we should “find” that compliance with those regulations, in addition

to one of the statutory conditions under section 19-3-102(1), is

required to adjudicate a child dependent or neglected based on

prospective harm. Although father repeatedly argued to the juvenile

court that the Department should have more thoroughly

investigated him as a placement option at the time of removal, he

never contended that the Department failed to follow its

administrative regulations or that it was required to prove such

compliance under section 19-3-102(1). Consequently, the

argument is not properly before us. See People in Interest of M.B.,

2020 COA 13, ¶ 14 (we review only issues presented to and ruled

on by the lower court).

IV. Sufficiency of the Evidence

¶ 13 Father contends that the Department failed to present

sufficient evidence for the jury to find the child dependent or

neglected. We are not persuaded.

¶ 14 In determining whether the evidence is sufficient to sustain

the adjudication, we review the record in the light most favorable to

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the prevailing party, and we draw every inference fairly deducible

from the evidence in favor of the jury’s decision. See S.G.L., 214

P.3d at 583. The credibility of the witnesses and the sufficiency,

probative effect, and weight of the evidence, as well as the

inferences and conclusions to be drawn therefrom, are within the

purview of the jury. Id. We are bound by a jury’s findings, and we

will not reverse those findings if the record supports them, even if

reasonable people might arrive at different conclusions based on the

same facts. Id.; People in Interest of T.T., 128 P.3d 328, 331 (Colo.

App. 2005).

¶ 15 Here, relying on the jury’s verdict, the juvenile court

adjudicated the child dependent or neglected because (1) the child

lacked proper parental care based on father’s acts or omissions,

section 19-3-102(1)(b); (2) the child’s environment was injurious to

her welfare, section 19-3-102(1)(c); and (3) father failed or refused to

provide proper or necessary subsistence, medical care, or any other

care necessary to the child’s health, guidance or well-being, section

19-3-102(1)(d). The evidence supports the jury’s verdict.

¶ 16 The caseworker from father’s previous case testified that father

did not demonstrate ongoing sobriety or participate in any

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substance abuse or domestic violence treatment during that two-

and-a-half year proceeding. The caseworker also opined that if

father had not done any treatment since the prior case closed, the

Department would have the same concerns about father’s ability to

parent as it did when that case closed.

¶ 17 Next, the current caseworker testified that at the time of

removal, the APR judgment from the prior case prevented the

Department from placing the child with father because it permitted

only supervised parenting time, and the judgment had not been

modified. Although that judgment allowed father to work toward

unsupervised parenting time, the court record did not indicate that

father had complied with the conditions of the step-up plan. By the

time of the adjudicatory trial, father had not provided the

caseworker with any documentation showing that he was sober or

that he had participated in substance abuse and domestic violence

treatment.

¶ 18 True, father testified that in the year-and-a-half between the

two cases, he regularly met with his medication management doctor

and maintained stable housing and employment. But father also

admitted that during that same timeframe, he did not do any

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substance abuse or domestic violence treatment, nor could he show

ongoing sobriety. Moreover, he admitted that the child was in an

injurious environment at the time she was removed from mother’s

care.

¶ 19 Although father argues that the Department presented no

evidence showing that he was unable to care for the child or that he

was at fault for the lack of care she was receiving while with

mother, we disagree. The Department presented evidence showing

that the prior APR judgment limited father to supervised parenting

time unless he could show ongoing sobriety and engage in

treatment. But when the child was removed, he had not shown

ongoing sobriety or engaged in treatment. As the Department

argued, if father had complied with the requirements of the step-up

plan, then he could have been permitted to have unsupervised

parenting time, and the Department could have considered placing

the child with him when she was removed from mother’s care. But,

because no evidence indicated that father complied with the

requirements of the step-up plan, it was reasonable for the jury to

infer that the safety concerns related to father’s substance abuse

and domestic violence still existed at the time of adjudication, and

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thus, that it would likely be unsafe to place the child in his care.

See A.W., ¶ 22; S.G.L., 214 P.3d at 583.

¶ 20 Based on the foregoing, when viewed in the light most

favorable to the Department and the jury’s verdict, the evidence was

sufficient to support the jury’s findings that the child was

dependent or neglected under one or more of the statutory criteria

presented. See § 19-3-102(1)(b)-(d); see also S.M-L., ¶ 29 (section

19-3-102 requires proof of only one statutory condition for

adjudication). Accordingly, we are bound by the jury’s findings and

discern no basis to reverse the judgment. See S.G.L., 214 P.3d at

583.

V. Disposition

¶ 21 The judgment is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.

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