People In the Interest of M.W., a Child

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
July 7, 2022

2022COA72

No. 21CA1768, People in Interest of M.W. — Juvenile Court —
Dependency and Neglect — Adjudication — Disposition —
Treatment Plan — SOMB Evaluation

As a matter of first impression, a division of the court of

appeals concludes that a juvenile court in a dependency and

neglect case may not require a parent to complete an SOMB

evaluation and treatment if the parent objects and has not been

convicted of a sex offense. The division also concludes that a

parent may appeal the content of an initial dispositional order

contemporaneously with the appeal of an order adjudicating the

child dependent or neglected.
COLORADO COURT OF APPEALS 2022COA72

Court of Appeals No. 21CA1768
Mesa County District Court No. 21JV59
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.W., a Child,

and Concerning D.W.,

Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE SCHUTZ
J. Jones and Welling, JJ., concur

Announced July 7, 2022

Todd M. Starr, County Attorney, Brian Conklin, Assistant County Attorney,
Grand Junction, Colorado, for Appellee

Leigh C. Taylor, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
¶1 Father, D.W., appeals the adjudication of his child, M.W., as

dependent or neglected. Father contends that the juvenile court

erred by prohibiting his out-of-state witnesses from testifying at the

adjudicatory hearing via Webex and by requiring him to complete a

psychosexual evaluation and comply with any resulting treatment

recommendations.

¶2 We conclude that the juvenile court did not abuse its

discretion by prohibiting the remote testimony. We therefore affirm

the adjudication of M.W. as dependent or neglected.

¶3 With regard to father’s challenge of his treatment plan, we

must first determine whether a parent may appeal an initial

dispositional order in a dependency and neglect proceeding prior to

issuance of an order terminating their parental rights. We conclude

that an initial dispositional order is a final and appealable order

when challenged contemporaneously with an appeal of the

adjudication of a child as dependent or neglected.

¶4 Addressing the merits of father’s challenge of the treatment

plan, we hold that the juvenile court erred by requiring father to

complete a Sex Offender Management Board (SOMB) evaluation and

1
comply with all resulting recommendations. Accordingly, we vacate

that portion of the treatment plan.

I. Factual Background and Procedural Setting

¶5 The Mesa County Department of Human Services (the

Department) initiated a dependency and neglect proceeding based

upon allegations that father had sexually assaulted his daughter,

M.W., that M.W. lacked proper parental care, and that M.W.’s

environment was injurious to her health and welfare.

¶6 Father contested the petition, and an adjudicatory hearing

was held before a jury. Father filed a motion requesting that he be

permitted to call two witnesses located in Oregon to testify via

Webex. The juvenile court denied the motion. The jury returned a

verdict finding that M.W. was in an injurious environment and

lacked proper parental care because of father’s actions or failure to

act. Based upon the jury’s verdict and M.W.’s mother’s prior

admission that the child was dependent or neglected, the court

entered an order adjudicating M.W. dependent or neglected as to

both parents.

¶7 Before the dispositional hearing, the Department filed a

proposed treatment plan. Among other things, the plan required

2
father to complete a “[p]sychosexual evaluation” to “[a]ssist in

determining risk for re-offense and need for sex offender therapy if

any.” Father’s success in meeting this treatment objective was to

be evaluated based on whether he “attended all sessions,” was

“open and honest during the evaluation,” completed “all paperwork

required by the evaluation,” and followed “all recommendations of

the completed psychosexual evaluation.”

¶8 Father filed a written objection to the requirement that he

complete a psychosexual evaluation and treatment under standards

set by the SOMB. He argued that such a requirement was not

reasonably calculated to render him a fit parent and violated his

constitutional rights against self-incrimination and to be free from

criminal sanctions absent a criminal conviction. After a contested

hearing, the juvenile court rejected father’s argument and adopted

the treatment plan as proposed because of past and ongoing

concerns regarding father’s inappropriate sexual conduct and the

emotional trauma M.W. was suffering because of her relationship

with father.

3
II. Webex Testimony

¶9 Father contends the juvenile court reversibly erred by

excluding remote testimony via Webex from two witnesses located

in Oregon. We disagree.

A. Additional Facts

¶ 10 Father advised the juvenile court that he intended to call two

witnesses — a relative and a caretaker for M.W. — who knew her

while she resided in Oregon. He expected these witnesses would

testify that M.W. neither referenced any prior abuse by her father in

Colorado nor made any allegation of abuse while both father and

daughter resided in Oregon. The motion also indicated that these

witnesses could testify concerning “family dynamics” but did not

specify the nature of such testimony.

¶ 11 The Department opposed the motion, arguing that it was

undisputed that M.W. did not begin to articulate the alleged abuse

until she returned to Colorado. The Department also noted that the

allegations of sexual abuse were secondary to its case, asserting

that whether the specific allegations of sexual abuse were true or

not, M.W. had expressed a history of trauma with both of her

parents, particularly her father, and no longer wished to live with

4
him. Thus, the Department argued the witnesses’ proffered

testimony had marginal, if any, relevance. The Department also

argued that to the extent the witnesses’ testimony was deemed

relevant, their credibility would be an important consideration for

the jury and that the jury’s assessment of these witnesses’

credibility would be hampered if the court authorized remote

testimony.

B. Standard of Review

¶ 12 We review a juvenile court’s decisions concerning the orderly

administration of a trial for an abuse of discretion. See Makeen v.

Hailey, 2015 COA 181, ¶ 38 (“[C]ourts have broad discretion to

manage trials, and [appellate courts] review these trial management

decisions for an abuse of discretion.”). The juvenile court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair, or if it is based on an erroneous understanding or

application of law. People in Interest of M.V., 2018 COA 163, ¶ 52.

C. Application

¶ 13 Father contends the juvenile court should have allowed the

remote testimony under the Chief Justice Order and local Chief

Judge Order issued to address best practices during the COVID-19

5
pandemic. The cited orders encourage, but do not mandate, that

trial courts authorize remote appearances during the pandemic.

For example, the Chief Justice Order provides that “with the

understanding that some judicial proceedings may require personal

appearances, wherever reasonably feasible, judicial proceedings,

regardless of their nature, should continue to be conducted

remotely.” Office of the Chief Justice, Updated Order Regarding

COVID-19 and Operation of Colorado State Courts (May 5, 2020)

(emphasis added), https://perma.cc/G6VG-XAYD. The Chief Judge

Order contained a similar directive.

¶ 14 Contrary to the Department’s argument, these orders do not

eliminate a juvenile court’s authority and obligation to consider the

particular circumstances of each case before permitting a witness to

testify remotely. C.R.C.P. 43 informs a court’s exercise of that

discretion. The rule provides various criteria to govern the juvenile

court’s consideration:

(A) Whether there is a statutory right to
absentee testimony.

(B) The cost savings to the parties of having
absentee testimony versus the cost of the
witness appearing in person.

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(C) The availability of appropriate equipment at
the court to permit the presentation of
absentee testimony.

(D) The availability of the witness to appear
personally in court.

(E) The relative importance of the issue or
issues for which the witness is offered to
testify.

(F) If credibility of the witness is an issue.

(G) Whether the case is to be tried to the court
or to a jury.

(H) Whether the presentation of absentee
testimony would inhibit the ability to cross
examine the witness.

(I) The efforts of the requesting parties to
obtain the presence of the witness.

C.R.C.P. 43(i)(3).

¶ 15 The juvenile court’s order focused primarily on factors (C) and

(E) through (H). The court observed that the adjudicatory trial was

to a jury and that credibility of the witnesses’ testimony would be a

key issue. The juvenile court found the “lack of outcry testimony”

was only marginally relevant. The court also noted that father had

failed to demonstrate that the testimony concerning family

dynamics was not available from alternative witnesses. Finally, the

court said that it had recently attempted to take Webex testimony

7
from remote witnesses and that “there were technology issues and

problems with the ability to hear.”

¶ 16 While the court did not expressly address the remaining

factors, neither party contended there was a statutory right to

present remote testimony. And father did not present evidence

related to his efforts to procure the personal attendance of the

witnesses at trial. Father’s counsel did state that the Office of

Respondent Parents’ Counsel would not pay the “three thousand to

four thousand dollars to fly two people in for ten minutes of

testimony.”

¶ 17 The decision whether to permit remote testimony is left to the

sound discretion of our trial courts for good reason. Trial judges

are uniquely situated to make the practical assessments envisioned

by Rule 43. They know the capabilities and limitations of their

audiovisual equipment, they are familiar with the central issues in

the case, and they are in a position to evaluate the role credibility

will play in assessing the weight of a given witness’s testimony.

Simply put, trial courts are better positioned than appellate courts

to make the discretionary determination whether to permit remote

testimony. We will not disturb the exercise of that discretion absent

8
a clear abuse. No such abuse occurred here; accordingly, we

conclude that the court did not err by denying father’s motion for

remote testimony.

III. Dispositional Appeals

¶ 18 Father next argues that the juvenile court erred by adopting a

treatment plan that requires him to complete an SOMB

psychosexual evaluation and comply with all recommendations

resulting from the evaluation. Although the parties have not

questioned our jurisdiction to address this issue, we discern a

degree of uncertainty in our case law regarding this threshold

question. Because subject matter jurisdiction is a prerequisite to

our authority to hear a case, it may be raised at any time, by any

party, or by the court on its own initiative. People in Interest of

E.E.A., 854 P.2d 1346, 1350 (Colo. App. 1992).

¶ 19 Generally, we have legal authority to review only final orders or

judgments. C.A.R. 1; see also People in Interest of S.C., 2020 COA

95, ¶ 6. Appeals in dependency and neglect cases are governed by

section 19-1-109, C.R.S. 2021. We review a question of statutory

interpretation de novo. People in Interest of H.T., 2019 COA 72,

¶¶ 12-13.

9
¶ 20 The Children’s Code classifies “[a]n order decreeing a child to

be neglected or dependent” — known as an adjudicatory order — as

a final appealable order. § 19-1-109(2)(c). An adjudicatory order

becomes final for purposes of appeal only “after the entry of the

disposition pursuant to section 19-3-508.” § 19-1-109(2)(c); see

also C.A.R 3.4(a).

¶ 21 At the dispositional hearing, unless immediate termination of

parental rights is contemplated, the court is ordinarily required to

adopt a treatment plan designed to address the issues that gave

rise to the filing of the petition. § 19-3-508(1)(e)(I), C.R.S. 2021; see

also § 19-3-507(1)(a), C.R.S. 2021 (“After making an order of

adjudication, the court shall hear evidence on the question of the

proper disposition best serving the interests of the child and the

public.”).

¶ 22 There is no question that an adjudicatory order is final and

appealable after the entry of an initial dispositional order. § 19-1-

109(2)(c); see also H.T., ¶¶ 22-23. But the question before us is

whether the initial dispositional order is also reviewable

contemporaneously with the appeal of the adjudicatory order.

10
¶ 23 Prior to the General Assembly’s enactment of section 19-1-

109(2)(c), a division of this court held that “following an

adjudication of dependency and neglect, the initial dispositional

order adopting a treatment plan constitutes a ‘decree of disposition’

and renders the adjudication and the initial dispositional order final

for purposes of appeal.” People in the Interest of C.L.S., 934 P.2d

851, 854 (Colo. App. 1996) (emphasis added). After C.L.S., the

General Assembly amended section 19-1-109 to include the present

language providing that an adjudicatory order is appealable after

the entry of a dispositional order. See Ch. 254, sec. 7, § 19-1-

109(2)(c), 1997 Colo. Sess. Laws 1433; see also H.T., ¶ 20

(discussing the statutory change following the decision in C.L.S.).

¶ 24 In H.T., a division of this court applied the current version of

section 19-1-109(2)(c) and held that “adjudicatory orders are final

and appealable but dispositional orders, by themselves, are not.”

H.T., ¶ 22 (emphasis added). In reaching this conclusion, the

division in H.T. clarified that

our holding is not in conflict with C.L.S. We
agree that a party has a right to appeal both
the adjudicatory order and the initial
dispositional order. This is because how the
merits are reached on an adjudicatory order

11
will also affect the merits of the dispositional
order. Our holding simply clarifies that an
initial dispositional order, by itself, is not a
final, appealable order.

Id. at ¶ 26.

¶ 25 We note that the language of section 19-1-109(2)(c) affords an

argument that only the adjudicatory order, but not the dispositional

order, is appealable: “An order decreeing a child to be neglected or

dependent shall be a final and appealable order after the entry of

the disposition . . . .” The statute does not expressly state that both

the adjudicatory and initial dispositional orders are appealable.

But the statute also does not expressly state that only the

adjudicatory order is appealable.

¶ 26 At the time the current language of section 19-1-109(2)(c) was

adopted, there was existing case law from our appellate courts

confirming that both an adjudicatory order and an initial

dispositional order may simultaneously be appealed after a

dispositional order is entered. See, e.g., C.L.S., 934 P.2d at 854.

We presume the General Assembly was mindful of that precedent

when it amended the statute. See Vaughan v. McMinn, 945 P.2d

404, 409 (Colo. 1997) (“The legislature is presumed to be aware of

12
the judicial precedent in an area of law when it legislates in that

area.”). And with that knowledge, the General Assembly elected not

to eliminate the historical right of a parent to appeal the initial

dispositional order along with the adjudicatory order. Given these

circumstances, we will not imply that the General Assembly

intended its silence to eliminate an existing right established by our

case law. See, e.g., People v. Swain, 959 P.2d 426, 430-31 (Colo.

1998) (“[T]he legislature is presumed, by virtue of its action in

amending a previously construed statute without changing the

portion that was construed, to have accepted and ratified the prior

judicial construction.”).

¶ 27 Consistent with these authorities, we hold that a parent may

appeal the content of the initial dispositional order, including

provisions of the treatment plan, simultaneously with an appeal of

an adjudicatory order.

¶ 28 This interpretation of section 19-1-109(2)(c) is consistent with

the core goals of the Children’s Code. The Code aims to “preserve

and strengthen family ties whenever possible.” § 19-1-102(1)(b),

C.R.S. 2021. In addition, the Code directs courts to achieve

permanency on behalf of children under the age of six “as

13
expeditiously as possible.” § 19-3-702(5)(c), C.R.S. 2021; § 19-1-

123, C.R.S. 2021. To this end, the Code also urges “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).

¶ 29 Our case law makes clear that a parent may appeal the

requirements of a dispositional order as part of the appeal of a

termination order. See, e.g., People in Interest of L.M., 2018 COA

57M, ¶¶ 37-52. The entry of an initial dispositional order follows an

adjudication. In contrast, a termination order may not follow until

a year or longer after a dependency and neglect case is filed. If a

parent successfully challenges a treatment plan requirement after a

termination order has been entered, the termination is set aside

and the placement and corresponding permanency for the child is

frequently undone. But if parents are afforded the opportunity to

appeal an initial dispositional order at the same time they appeal an

adjudicatory order, any defects in the treatment plan can be

addressed early in the case. Such an outcome benefits the parents,

but, most importantly, it also serves the ultimate interest of the

child in timely achieving permanency. These practical realities

provide additional justification for continuing to recognize a parent’s

14
right to appeal an initial dispositional order contemporaneously

with an adjudicatory order.1

¶ 30 Having determined that the initial dispositional order —

including the content of father’s treatment plan — presents an

appealable issue, we now address the merits of his argument.

IV. Propriety of the Treatment Plan

¶ 31 Father contends that the juvenile court erred by imposing,

over his objection, a criminal requirement — that he submit to a

psychosexual evaluation and comply with all resulting

recommendations based on guidelines developed by the SOMB — in

the absence of him having been convicted of a sex offense. We

agree.

A. Standard of Review

¶ 32 “The trial court has discretion to formulate a treatment plan

reasonably calculated to render the parent fit to provide adequate

parenting to the child within a reasonable time that relates to the

1 Several other states allow appeals of dispositional orders in
dependency and neglect proceedings. See Lindsey M. v. Ariz. Dep’t
of Econ. Sec., 127 P.3d 59, 61 (Ariz. Ct. App. 2006); Ark. R. App.
P.-Civ. 2(c)(3); In re Daniel K., 71 Cal. Rptr. 2d 764 (Ct. App. 1998).

15
child’s needs.” C.L.S., 934 P.2d at 855; see also § 19-1-103(12),

C.R.S. 2021 (defining an “appropriate treatment plan”). An abuse of

discretion occurs when the juvenile court’s actions are manifestly

arbitrary, unreasonable, or unfair, or based on an erroneous

understanding or application of the law. M.V., ¶ 52. We review de

novo a question of law, such as the propriety of applying SOMB’s

standards to a civil proceeding. People v. Williamson, 2021 COA 77,

¶ 11.

B. SOMB Standards

¶ 33 The General Assembly established the SOMB in 1992 to

“protect the public and to work toward the elimination of sexual

offenses,” finding it “necessary to comprehensively evaluate,

identify, treat, manage, and monitor adult sex offenders who are

subject to the supervision of the criminal justice system.” § 16-11.7-

101(1), C.R.S. 2021 (emphasis added). The SOMB is responsible for

establishing “evidence-based standards for the evaluation,

identification, treatment, management, and monitoring of adult sex

offenders . . . who have committed sexual offenses at each stage of

the criminal . . . justice system to prevent offenders from

16
reoffending and enhance the protection of victims and potential

victims.” § 16-11.7-101(2).

¶ 34 The term “sex offender” applies only to those defendants who

have been convicted of one or more of the offenses enumerated in

section 18-1.3-1003(5), C.R.S. 2021. In recent precedent, the

supreme court has coined the term “sex-related offenses” to

describe those categories of criminal offenses that are not included

within the statutorily enumerated offenses labeled as a “sex

offense,” but that nevertheless are predicated upon conduct

involving criminal sexual behavior. See, e.g., People v. Manaois,

2021 CO 49, ¶ 46; People v. Keen, 2021 CO 50, ¶ 3.

¶ 35 In accordance with its statutory mandate, the SOMB adopted

the first Standards and Guidelines for the Assessment, Evaluation,

Treatment and Behavioral Monitoring of Adult Sex Offenders in

1996. Over the years, the Standards have been modified and

updated to reflect various developments in the treatment of sex

offenders as well as legal developments occasioned by legislative

amendments and case law interpreting the underlying statutes and

resulting regulations. The Standards were most recently updated in

April of 2022. Sex Offender Management Board, Standards and

17
Guidelines for the Assessment, Evaluation, Treatment and

Behavioral Monitoring of Adult Sex Offenders,

https://perma.cc/V4N9-A65Y (SOMB Standards).

¶ 36 The SOMB Standards establish procedures that must be used

by those who are licensed by SOMB when evaluating and treating

sex offenders. The initial evaluation that a convicted sex offender

must complete is typically referred to as an offense specific

psychosexual evaluation or simply a psychosexual evaluation.

¶ 37 The requirements of SOMB evaluations and resulting

treatment are extraordinary. The sex offense specific psychosexual

evaluation is intended to identify the most appropriate types of

treatment for the offender and to assess the levels of risk and

specific risk factors that require attention in treatment and

supervision. SOMB Standards § 2.000. The evaluation is

performed using various objective and subjective modalities. Based

on the initial evaluation, a risk assessment and treatment plan are

developed for the sex offender. Offenders are assigned a

Community Supervision Team (CST), which includes, at a

minimum, the offender’s supervising officer, the treatment provider,

the evaluator, the victim representative, and the polygraph

18
examiner. The CST professionals collaborate to make decisions

about the offender. Id. at Definitions. The SOMB Standards

contemplate that after the initial psychosexual evaluation, the sex

offender will be required to complete sex offense specific treatment.

C. The Effect of SOMB Standards on an Offender’s Right to
Remain Silent

¶ 38 The SOMB Standards contemplate that an offender may

“refuse to answer incriminating sexual offense history questions.”

Id. § 6.012(F). In such circumstances, the SOMB Standards

provide that, “[w]hile treatment providers shall not unsuccessfully

discharge an offender from treatment solely for refusing to answer

incriminating questions, a treatment provider may opt to discharge

a client from treatment or not accept a client into treatment if the

provider determines a factor(s) exists that compromises the

therapeutic process.” Id. § 3.160(B)(3)(a)(i). Thus, while a sex

offender’s exercise of the right to remain silent may not serve as the

sole basis for terminating an offender’s therapy, it may be

considered as part of the calculus in deciding whether therapy

should be discontinued.

19
D. SOMB Standards on Offenders’ Contact with Children

¶ 39 The Standards severely restrict the contact a sex offender may

have with anyone under the age of eighteen, including members of

the offender’s own family. As a starting point, the SOMB Standards

provide that all sex offenders will have no contact with anyone

under the age of eighteen. The one exception is an implied

acknowledgment that an offender may have contact with their own

children if a court (or the parole board, as applicable) elects not to

prohibit such contact. Id. § 5.720(A) (five pathways exist for

potential contact with minor children, one of which occurs when the

court or parole board “has not prohibited contact with an offender’s

own non-victim minor child(ren)”).

¶ 40 The SOMB Standards contemplate that an offender may have

“incidental contact” with children, but such permissible contact is

narrowly defined. See id. § 5.715(C) (defining incidental contact).

In all other circumstances, the guidelines prohibit any “non-

incidental” contact with any children unless and until approved by

the CST. Id. In contrast, the SOMB Standards’ definition of

purposeful contact includes such things as face-to-face interaction,

any verbal or non-verbal exchange, and being in the same residence

20
or vehicle as a child. Id. § 5.715(G)(1)-(4), (7). These restrictions

apply to all sex offenders, and to all non-incidental contact with all

children, whether family or not. See, e.g., id. § 5.751 (no offender

may have any non-incidental contact with their grandchildren

unless they meet specific criteria, and even then, such contact must

start out as supervised).

¶ 41 Over the years, there has been substantial litigation in

Colorado and elsewhere concerning the propriety of using these

types of restrictions to manage those who have been convicted of

sex offenses. But the issue presented here is not whether these

types of restrictions may be imposed to restrict the conduct of a

criminal defendant who has been convicted of a sex offense.

Rather, we are faced with the question whether these types of

restrictions may be included in a treatment plan as a condition to

reunification of a parent with their child when the parent has not

agreed to the treatment2 and has not been convicted of a sexual

2 Because we are not required in this case to resolve the question of
whether SOMB assessments and treatment may be included in a
treatment plan with the consent of a parent, we express no opinion
on that issue.

21
offense. To answer that question we must consider the legitimate

purposes and limitations of a treatment plan.

E. Purposes and Parameters of a Treatment Plan

¶ 42 Upon an adjudication of a child as dependent or neglected, the

juvenile court must fashion a treatment plan designed to “preserve

the parent-child legal relationship by assisting the parent in

overcoming the problems that required intervention into the family.”

People in Interest of K.B., 2016 COA 21, ¶ 11. “In determining

whether a treatment plan is appropriate, the court must consider

whether the plan’s objectives adequately address the safety

concerns identified during the assessment of the family.” Id. at

¶ 14. “Thus, the appropriateness of such a plan can only be

measured by examining the likelihood of its success in

accomplishing this purpose.” People in Interest of B.J.D., 626 P.2d

727, 730 (Colo. App. 1981).

¶ 43 Because the purpose of a treatment plan is to address the

material issues that are barriers to reunifying children with their

parents, it is appropriate for a treatment plan to address those

material issues even if the order of adjudication was not necessarily

predicated upon the particular problem the treatment plan seeks to

22
address. See, e.g., C.L.S., 934 P.2d at 856 (“[T]he specific ground

on which the jury [finds] the child to be dependent and neglected

[does] not restrict the juvenile court’s discretion to formulate a

treatment plan in the best interests of the child.”). So, for example,

if the parents were experiencing discord in their relationship that

was interfering with their ability to appropriately parent their

children, the court could order them to complete couples’ therapy

even if their discord did not form the factual basis of the

adjudicatory order.

¶ 44 On the other hand, our case law also makes clear that

dependency and neglect proceedings are not criminal in nature and

are not intended to punish parents, as our supreme court

crystalized decades ago: “In a hearing to determine if a child is

neglected or dependent, there is no fine or confinement to a state

institution nor any other criminal sanctions. These are not criminal

proceedings.” Robinson v. People in Interest of Zollinger, 173 Colo.

113, 118, 476 P.2d 262, 265 (1970); see also People in Interest of

S.N., 2014 CO 64, ¶ 9 (“[A]n adjudication is not meant to punish the

parents.”).

23
¶ 45 With these concepts in mind, we address father’s argument

that the court improperly required him to complete a psychosexual

evaluation and comply with all resulting recommendations.

F. The Propriety of Requiring a Parent to Complete a
Psychosexual Evaluation and Treatment Absent a Conviction

¶ 46 Although father has not been convicted of a sex offense,

serious allegations of sexual impropriety have been made against

him over the years, including the allegations made by M.W. and at

least one other juvenile. Although these allegations have not

resulted in a conviction, the juvenile court found them credible and

was understandably troubled by them.

¶ 47 In deciding to require father to complete a sex offender

evaluation and comply with the resulting recommendations and

treatment, the court said, “I cannot, in this case, particularly, with

the evidence that was presented during the trial . . . not consider or

somehow decide not to address the main issue, certainly that was

discussed in the allegations that [M.W.] has made.” Based on these

concerns, the court found “that it is appropriate to include a

psychosexual evaluation in this case, and it will be ordered.” For

these same reasons, the court denied father’s motion to preclude

24
the court from subjecting him to a psychosexual evaluation and

treatment under the SOMB Standards.

¶ 48 In entering these orders, the juvenile court did not address

any specific SOMB Standards or the constitutional issues raised by

father. Instead, it broadly authorized a psychosexual evaluation

and any recommended treatment using the SOMB Standards.

¶ 49 In People in Interest of L.M., a division of this court addressed

whether it was appropriate to require a parent who had been

accused of committing a sexual offense, but who had not been

criminally convicted, to submit to SOMB treatment. 2018 COA

57M. The father in L.M. was accused of sexually assaulting one of

his two children. Id. at ¶ 2. At an adjudicatory hearing, the

juvenile court found by a preponderance of the evidence that the

father had committed the sexual assault and therefore adjudicated

the children dependent or neglected as to him. Id. The juvenile

court adopted a treatment plan requiring the father to “participate

in a psychosexual evaluation . . . and follow any recommended

offense-specific treatment.” Id. at ¶ 10.

¶ 50 The father was also charged criminally based on the sex

assault allegations, but he was acquitted of those charges at trial.

25
Id. at ¶ 3. In a subsequent termination hearing, the juvenile court

concluded that it could not find by clear and convincing evidence

that the father had assaulted the child. Id. at ¶ 33. Nonetheless,

the juvenile court entered an order terminating his parental rights,

finding that the children continued to experience emotional trauma

incident to the allegations and that termination of the father’s

parental rights was in the children’s best interests. Id. at ¶ 36.

¶ 51 In assessing the juvenile court’s decision to terminate the

father’s parental rights, the division considered the propriety of

requiring him to comply with SOMB Standards as part of his

treatment plan. As a starting point, the division emphasized that “a

key provision of the SOMB procedures is that they are designed for

sex offenders” who have been convicted of a criminal offense. Id. at

¶¶ 41-42 (citing § 16-11.7-102(2)(a), C.R.S. 2017). Consistent with

the statutory predicate of criminal conviction, the division noted

that SOMB evaluations and treatment protocols are built around

the premise of guilt.

¶ 52 The division also noted that SOMB treatment protocols create

significant dilemmas for parents who wish to exercise their

constitutional right to remain silent with respect to matters that

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may incriminate them, or who affirmatively deny the allegations of

sexual abuse.

[T]he record is replete with evidence that no
progress was made toward reunification
because father had not admitted or
acknowledged the abuse. And, father was
adamant that he was not going to admit
molesting or abusing the children . . . .

This component of SOMB treatment — the
requirement that an offender admit to abusing
a child before having contact with the child —
placed father in a no-win situation and was
not reasonably calculated to render him a fit
parent who could meet the children’s needs.
On the one hand, if, as here, father failed to
admit that he had abused L.M., this led to
termination on the basis that father had not
complied with the treatment plan and was
unable to have contact with the children or
work toward reunification with them. On the
other hand, if father had acknowledged that he
had sexually abused L.M., this would also be
evidence of his unfitness . . . .

Id. at ¶¶ 45-46. Given the inherent tensions created by the

application of SOMB Standards to a parent who has been accused,

but not convicted, of committing a sexual offense, the division held

that father’s failure to address the allegations of abuse could not

support termination of his parental rights. Id. at ¶ 50.

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¶ 53 As noted in L.M., the SOMB Standards place a parent in a

dilemma. If they admit sexually abusing their child, they forfeit

their constitutional right to remain silent, potentially face criminal

sanctions, and will likely have their parental rights terminated.

§ 19-3-604(1)(b)(VI), (2)(b), C.R.S. 2021 (a parent is unfit if they

have sexually abused their children, and such conduct may form

the basis of an order terminating parental rights). If they do not

admit the alleged abuse, they will not successfully complete their

treatment plan and therefore face termination of their parental

rights.

¶ 54 In addition, as noted in L.M., ¶¶ 43-46, a psychosexual

evaluation and resulting treatment protocols are not designed to

render a parent fit; instead, they are crafted to treat individuals

convicted of sex-related offenses. Thus, the use of a psychosexual

evaluation and treatment under SOMB Standards does not fulfil the

basic and essential purpose of the treatment plan — to effectively

address the issues that gave rise to the adjudication so that parents

and their children can be safely reunited.

¶ 55 Finally, the very structure of SOMB treatment is inconsistent

with the core purposes of the Children’s Code. One of the central

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objectives of a dependency and neglect action is to safely reunify

children with their parents. The central purpose of the SOMB

Standards is to protect the public generally, irrespective of the

burdens placed on sex offenders or the obstacles that SOMB

treatment poses to offenders’ relationships with their children.

Moreover, the SOMB Standards contemplate a CST, which includes

a probation or parole officer, to evaluate an offender and limit their

contact with children. In contrast, in a dependency and neglect

action the court is in control of whether and when a parent sees

their child. This is not a role that a court can delegate to a CST or

any other person or entity.

¶ 56 For these reasons, we hold that a parent may not be required,

over their objection, to complete an SOMB psychosexual evaluation

or SOMB therapy as a condition of their treatment plan if the

parent has not been convicted of a qualifying sexual offense.

¶ 57 In reaching this conclusion, we acknowledge that in L.M. the

division stated “we do not intend to suggest that a court is

necessarily prohibited from requiring a parent to participate in

psycho-sexual or offense specific evaluations and treatment absent

a criminal conviction. Just the opposite, a juvenile court may

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require such treatment when it is warranted by the record before

the court.” L.M., ¶ 51. In the first instance, we note that the

division cited C.L.S. in support of this conclusion. But C.L.S. did

not address the propriety of requiring an unconvicted parent to

complete sex offender treatment under SOMB protocols. See C.L.S.,

934 P.2d at 855. Instead, the juvenile court in C.L.S. had simply

required that the father complete an evaluation “focusing on sexual

aggression and that any recommendations pursuant to that

evaluation be followed as part of the treatment plan.” Id. at 856.

Thus, the court in C.L.S. did not order sex offender treatment under

the SOMB.3

¶ 58 In addition, we note that, after making the previously quoted

statement concerning “offense specific evaluations and treatment,”

the division in L.M. concluded,

when as here, a parent is acquitted of the
criminal charges related to sexual abuse of his
or her child and the court cannot find that the
abuse occurred by clear and convincing
evidence, the parent’s failure to admit to the
sexual abuse as part of the treatment protocol

3 Indeed, the SOMB Standards were first formulated in 1996, after
the juvenile court in C.L.S. adopted its requirement that the father
complete an evaluation for sexual aggression.

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is insufficient to support termination of
parental rights.

L.M., ¶ 52. Thus, we do not read L.M. to hold that an unconvicted

parent may properly be subjected to SOMB sex offender treatment

as part of the treatment plan. And to the extent that L.M. can be

interpreted as supporting such a conclusion, we respectfully

disagree for the reasons previously articulated. See, e.g., Chavez v.

Chavez, 2020 COA 70, ¶ 13 (a division of the court of appeals is not

bound by the decision of another division).

¶ 59 We also acknowledge, however, that an appropriate treatment

plan can — indeed, often should — include psychological

counseling focused on the problematic behavior of a parent. In

cases involving allegations of sexual misconduct or abuse by a

parent, such treatment can include evaluation of a parent’s sexual

proclivities if they interfere with the parent’s ability to safely parent

their children. To be clear, we do not hold today that a juvenile

court may not require a respondent parent to participate in an

evaluation and obtain treatment or counseling for sexual behavior

that poses a risk to the parent’s children. However, in a situation

like father’s, where the parent has not been convicted of a

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qualifying sex offense and objects to participating in SOMB

treatment, the juvenile court may not require a parent to comply

with an SOMB evaluation or treatment pursuant to the SOMB

Standards.

¶ 60 As previously noted, the juvenile court made findings of fact

grounded in the record to support its conclusion that father needs

appropriate psychological counseling and treatment to address his

allegedly deviant sexual behavior. On remand, the juvenile court is

free to fashion an appropriate order, with the input of additional

expert testimony, if necessary, to address and remediate any such

deviancies, provided it does not order an SOMB evaluation or

treatment.

V. Conclusion

¶ 61 For the above reasons, we affirm the juvenile court’s

adjudicatory order, but we vacate the SOMB evaluation and

compliance portion of the treatment plan and remand for

modification of the treatment plan consistent with this opinion.

JUDGE J. JONES and JUDGE WELLING concur.

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