People Ex Rel. C.S.

COLORADO COURT OF APPEALS 2017COA96

Court of Appeals No. 16CA1533
Weld County District Court No. 16JV35
Honorable W. Troy Hause, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of C.S., a Child,

and Concerning J.S.,

Respondent-Appellant.

APPEAL DISMISSED

Division VI
Opinion by JUDGE FURMAN
Terry and Carparelli*, JJ., concur

Announced July 13, 2017

Bruce T. Barker, County Attorney, Linda L. Goff, Assistant County Attorney,
Greeley, Colorado, for Petitioner-Appellee

The Gregory Law Firm, LLC, Christopher S.P. Gregory, Fort Collins, Colorado,
for Respondent-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 The Weld County Department of Human Services (Department)

filed a motion with the juvenile court to dismiss a dependency and

neglect petition involving C.S. (child). J.S. (father) agreed to the

dismissal, but he requested that administrative findings of child

abuse made by the Department against him be expunged pursuant

to sections 19-3-313.5(3)(f), C.R.S. 2016, and 19-3-505(6), C.R.S.

2016. The court granted the Department’s motion to dismiss and

denied father’s request. The court also denied father’s motion for

reconsideration.

¶2 Father appeals. We conclude that the orders from which

father seeks to appeal are not final and appealable. We thus

dismiss his appeal for lack of jurisdiction.

I. The Department’s Involvement

¶3 In March 2016, the Department filed a petition in dependency

and neglect based on a report that the child, then four months old,

had suffered injuries that were consistent with being shaken.

When the injuries occurred, B.F. (mother) was at work and father,

an emergency medical technician (EMT), was caring for the child.

Father reported that the child had choked while being fed and had

become unresponsive. Father stated that he called for emergency

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assistance, gave the child blows on the back, and began

cardiopulmonary resuscitation. He denied shaking the child.

¶4 The juvenile court placed the child in mother’s protective

custody and ordered father to have only supervised visits with the

child.

¶5 Father denied the allegations in the petition and requested a

jury trial. In the meantime, mother made a no-fault admission that

the child was without proper care; the court entered a deferred

adjudication as to her.

¶6 The juvenile court scheduled father’s five-day jury trial for

July 2016.

¶7 The parties filed their lists of witnesses and exhibits in June.

Father’s list included several medical experts who were prepared to

testify that the medical records they had reviewed were not

consistent with the theory that father had shaken the child, but

rather suggested that the child’s injuries were the result of natural

causes. He also identified coworkers and others who would testify

to his love for the child, his parenting abilities, his trustworthiness,

and his ability to handle stressful situations. Father filed a number

of motions in limine to prohibit the introduction of some evidence,

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limit the use of other evidence, and place additional restrictions on

the manner in which the Department could present its case.

¶8 The parties appeared before the juvenile court for a combined

pretrial readiness conference as to father and dispositional hearing

as to mother. The Department immediately informed the court that

it had concluded that mother was “perfectly appropriate” and

“adequately protective,” and accordingly, it was recommending that

mother be allowed to “withdraw her plea,” and that the case be

dismissed as to mother and father. The child’s guardian ad litem

(the GAL) concurred.

¶9 Father stated that he would agree to the case being dismissed

“with a rather large caveat.” He requested the court to make it clear

that it was dismissing the case because the Department had stated

or taken the position that it could not proceed with the evidence

that it had. He contended that under section 19-3-505(6), such a

result would obligate the Department to expunge the administrative

findings made during the course of the case. This was important to

father because, as an EMT, an administrative child abuse finding

against him was a “big deal.”

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¶ 10 The court responded that father had the right to an

administrative hearing on the Department’s child abuse finding.

Father argued that an administrative hearing was not the same as

having a jury or even a court hearing because there were “certain

rights and procedures” that would be available in a court

proceeding but not in an administrative proceeding. He also argued

that allowing the Department to make an accusation and “then only

go halfway and leave this up to the administrative courts in Denver

is not due process within [the] sense of what it should be.” He

reiterated that if the court granted the motion to dismiss, it should

do so in a way that would allow the dismissal to be viewed as “some

sort of stipulation” that would permit the court to enter a finding

that the child was not dependent and neglected. In turn, that

finding would require the expungement of the administrative

record.

¶ 11 The Department responded that it was “not required” to

proceed with the case, nor could it be required to stipulate to any

factual findings.

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¶ 12 The court agreed that it could not require the Department to

prosecute the case. The court then dismissed the case, finding that

father could obtain due process through an administrative hearing.

¶ 13 On appeal, father contends that the juvenile court denied him

a fundamentally fair proceeding when it dismissed the dependency

and neglect case without also ensuring the expungement of the

administrative child abuse finding that led to the filing of the

dependency and neglect case.

II. Jurisdiction

¶ 14 We conclude that the court’s dismissal order is not final and

appealable.

¶ 15 The Department contends that neither the juvenile court nor

this court has jurisdiction to grant father the relief that he seeks

because the appeal of an administrative finding of child abuse has

its own administrative process, which includes an appeal to a

district court after an administrative law judge hearing. See Dep’t

of Human Servs. Rules 7-111 to -115, 12 Code Colo. Regs. 2509-2

(providing an administrative appeal process for persons found

responsible for an incident of child abuse or neglect by the

Department); see also § 24-4-106, C.R.S. 2016. We agree and

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conclude that section 19-3-505(6) does not give the juvenile court

authority to order expungement of child abuse and neglect records

and reports, and the court’s order granting the parties’ voluntary

dismissal of the petition in dependency and neglect is not final and

appealable. We thus dismiss father’s appeal.

¶ 16 Whether the legislature has authorized the juvenile court to

entertain a motion to expunge dependency and neglect findings is a

question of statutory interpretation.

¶ 17 Statutory construction presents a question of law that an

appellate court reviews de novo. Spahmer v. Gullette, 113 P.3d 158,

161 (Colo. 2005). In construing a statute, we attempt to give effect

to the intent of the legislature, looking first to the plain language of

the statute. Id.

¶ 18 Section 19-3-505(6) provides as follows:

When the court finds that the allegations of
the petition are not supported by a
preponderance of the evidence, the court shall
order the petition dismissed and the child
discharged from any detention or restriction
previously ordered. His or her parents,
guardian, or legal custodian shall also be
discharged from any restriction or other
previous temporary order. The court shall
inform the respondent that, pursuant to
section 19-3-313.5(3)(f), the department shall

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expunge the records and reports for purposes
related to employment or background checks.

¶ 19 Section 19-3-313.5(3)(f) provides, in pertinent part, as follows:

(3) Notice and appeals process -- rules. On or
before January 1, 2004, the state board, in
consideration of input and recommendations
from the county departments, shall
promulgate rules to establish a process at the
state level by which a person who is found to
be responsible in a confirmed report of child
abuse or neglect filed with the state
department pursuant to section 19-3-307 may
appeal the finding of a confirmed report of
child abuse or neglect to the state department.
At a minimum, the rules established pursuant
to this subsection (3) shall address the
following matters, consistent with federal law:

....

(f) Provisions requiring, and procedures in
place that facilitate, the prompt expungement
of and prevent the release of any information
contained in any records and reports that are
accessible to the general public or are used for
purposes of employment or background checks
in cases determined to be unsubstantiated or
false; except that, the state department and
the county departments of social services may
maintain information concerning
unsubstantiated reports in casework files to
assist in future risk and safety assessments.

¶ 20 We construe section 19-3-505(6) to mean that if a juvenile

court finds that the allegations of a petition in dependency and

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neglect are not supported by a preponderance of the evidence, the

juvenile court is not authorized to enter any judgment, decree, or

order involving the expungement of administrative findings of

dependency and neglect. Instead, the court’s role is limited to

informing the respondent that “pursuant to section 19-3-313.5(3)(f),

the department shall expunge the records and reports for purposes

related to employment or background checks.” § 19-3-505(6).

¶ 21 In any event, in this case the juvenile court did not determine

whether the allegations of the petition are supported by a

preponderance of the evidence. The Department effectively

withdrew the dependency and neglect petition when it asked the

court to dismiss the case; the court granted the dismissal without

making findings of fact or conclusions of law. Thus, the court did

not enter a judgment, decree, or order regarding the merits of the

case.

¶ 22 Generally, we have initial jurisdiction over appeals from final

judgments, decrees, or orders from the juvenile court. § 13-4-102,

C.R.S. 2016. Concerning appeals in dependency or neglect

proceedings, C.A.R. 3.4(a) permits a party to appeal judgments,

decrees, or orders as permitted by section 19-1-109(2)(b) and (c),

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C.R.S. 2016. Section 19-1-109(2)(b) and (c), which also governs

appeals in dependency and neglect cases, permits appeals of the

following orders:

(b) An order terminating or refusing to
terminate the legal relationship between a
parent or parents and one or more of the
children of such parent or parents on a
petition, or between a child and one or both
parents of the child, shall be a final and
appealable order.

(c) An order decreeing a child to be neglected
or dependent shall be a final and appealable
order after the entry of the disposition
pursuant to section 19-3-508.

See also People in Interest of S.M-L., 2016 COA 173, ¶ 15 (cert.

granted Mar. 27, 2017).

¶ 23 Because the juvenile court did not enter a final judgment,

decree, or order, we do not have jurisdiction to hear father’s appeal.

See C.A.R. 3.4(a).

III. Conclusion

¶ 24 Father’s appeal is dismissed.

JUDGE TERRY and JUDGE CARPARELLI concur.

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