In re S.M-L

COLORADO COURT OF APPEALS 2016COA173

Court of Appeals No. 16CA0685
Arapahoe County District Court No. 16JV53
Honorable Theresa M. Slade, Judge

The People of the State of Colorado,

Petitioner-Appellant,

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

and Concerning G.S.,

Respondent-Appellant,

and D.S.,

Respondent-Appellee.

APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Román and Lichtenstein, JJ., concur

Announced November 17, 2016

Ron Carl, County Attorney, Marilee M. McWilliams, Senior County Attorney,
Aurora, Colorado, for Petitioner-Appellant

Alison A. Bettenberg, Ranee Sharshel, Guardians Ad Litem

The Law Office of Jeffrey J. Timlin, Jeffrey J. Timlin, Denver, Colorado, for
Respondent-Appellant

Oxman & Oxman, P.C., Chad Oxman, Denver, Colorado, for
Respondent-Appellee
¶1 In this dependency and neglect proceeding, we are asked to

decide an issue of first impression: Is a jury’s finding that a child is

not dependent or neglected and the court’s denial of a C.R.C.P. 59(e)

motion asking for adjudication notwithstanding the jury’s verdict a

final and appealable order? We conclude that it is not, because

neither C.A.R. 3.4(a) nor the Children’s Code provides a right to

appeal from such findings.

¶2 In this case, the Arapahoe County Department of Human

Services (the Department) appeals the denial of its motion for an

adjudication notwithstanding the verdict after a jury found that

R.S. was not dependent or neglected as to father (D.S.). Mother

(G.S.) appeals the order adjudicating S.M-L., B.M-M., and R.S.

dependent and neglected as to her. We dismiss the Department’s

appeal and affirm mother’s adjudication.

I. Background

¶3 The Department filed a dependency and neglect petition

regarding sixteen-year-old S.M-L., twelve-year-old B.M-M., and

eight-year-old R.S. (the children). The petition named D.S. as R.S.’s

biological father and named G.S. as all of the children’s mother.

The Department asserted that father had sexually abused his

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stepdaughter, S.M-L., based on S.M-L.’s credible and consistent

reports to it and to a forensic interviewer. Consequently, father was

arrested and criminally charged with sexual abuse. The

Department stated that father denied the allegations and that

mother believed S.M-L. was lying about them. Finally, the

Department noted that it had implemented a safety plan that

required father to leave the home and to have supervised contact

with his stepson, B.M-M., and his daughter, R.S. The children

remained at home with mother.

¶4 Mother and father denied the allegations in the petition and

each requested a trial. Mother requested a bench trial, and father

requested a jury trial. The court empaneled a jury for father and

heard evidence presented to the jury as the fact finder for mother.

During the jury trial, the State presented evidence from S.M-L., as

well as the Department’s investigator, the Department’s caseworker,

the forensic interviewer, mother, and a psychologist.

¶5 S.M-L. testified that she had told mother about the sexual

abuse and that mother thought she was lying. She confirmed that

she had told the caseworker and forensic interviewer about the

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abuse and that her story was true. However, on cross-examination,

she recanted and said that nothing inappropriate had occurred.

¶6 The Department’s investigator, who was qualified as an expert

in sexual abuse, child protection, and social work, testified that he

had met with S.M-L., and that she had confirmed the sexual abuse.

He said S.M-L.’s description to him was consistent with the forensic

interview and that she “was very clear about the abuse that

happened to her.” Thus, nothing caused him concern that S.M-L.

had been coached. He also said that mother did not believe S.M-L.,

which raised child protection concerns as to the remaining children.

¶7 The Department’s caseworker, who was qualified as an expert

in child protection and social work, testified that the Department’s

main concern was father’s sexual abuse of S.M-L. She opined that

S.M-L.’s outcry was accurate and that the allegations had not been

fabricated. She said mother did not believe the allegations, was not

supportive of S.M-L., and had pressured S.M-L. to say that nothing

had happened. Finally, the caseworker expressed concerns

regarding mother’s ability to protect B.M-M. and R.S. given mother’s

disbelief of S.M-L.’s allegations.

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¶8 The forensic interviewer, who was qualified as an expert in

forensic interviewing and sexual abuse, testified that she had

interviewed S.M-L. She confirmed that S.M-L.’s statements were

spontaneous and that her language was age appropriate. She

opined that S.M-L. “was [not] making anything up” because she had

“lot[s] of details that she wouldn’t have had if someone [had]

coached her or told her what to say.” She said S.M-L. seemed sad

and upset about not being believed.

¶9 Mother testified that her sister (S.M-L.’s maternal aunt) had

“put all of these ideas in [S.M-L.’s] head” and that S.M-L. was lying

about the allegations.

¶ 10 Finally, a psychologist, who was qualified as an expert in

sexual abuse, testified that there are only a small percentage of

false outcries in sexual abuse cases. After reviewing the videotape

of the forensic interview, he opined that S.M-L.’s allegations were

consistent and spontaneous.

¶ 11 After father presented the testimony of his adult stepchild, the

trial court instructed the jury to decide whether R.S. was dependent

or neglected with respect to father. While the jury deliberated about

father, mother presented the remainder of her case to the court,

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including testifying a second time. Thus, the court considered more

evidence as to mother than the jury considered as to father.

¶ 12 Before the jury returned its verdict as to father, the trial court

made its oral findings regarding mother. The court found that the

allegations in the petition had been proven by a preponderance of

the evidence based on S.M.-L.’s testimony. It made extensive

findings concerning S.M.-L.’s credibility and entered an order

adjudicating the children dependent and neglected. Shortly

thereafter, the jury returned its verdict finding that R.S. was not

dependent or neglected as to father.

¶ 13 The Department moved for an adjudication of father

notwithstanding the verdict under C.R.C.P. 59. It argued that the

evidence was “overwhelming” and “so strong” that the jury’s verdict

was not supported by the record. The trial court denied the motion,

finding, as a matter of law, there was not insufficient evidence to

support the jury’s decision. It noted that the jury followed its

instructions, paid attention throughout the trial, and asked

appropriate questions. See C.R.C.P. 59(e)(1). The court also noted

that there were genuine issues of material fact and that it could not

find the State was entitled to judgment as a matter of law. See

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C.R.C.P. 59(e)(2). Accordingly, it entered an order dismissing father

from the petition.

¶ 14 The Department and mother appeal.

II. The Department’s Appeal

¶ 15 After the Department filed its notice of appeal, we issued an

order to show cause why the appeal should not be dismissed for

lack of a final, appealable order, noting that we were unaware of

any authority for the proposition that dismissing a parent from a

petition based on a jury verdict was a final appealable order. In

response, the Department cited People in Interest of M.A.L., 37 Colo.

App. 307, 592 P.2d 415 (1976), in which the county appealed a jury

verdict not adjudicating the child as dependent or neglected. Based

on the Department’s response, a motions division of this court

allowed the Department’s appeal to proceed and for the issue of

finality to be considered on the merits. Therefore, we now consider

the Department’s appeal and conclude that a jury’s verdict not

adjudicating a party is not a proper basis for requesting an

adjudication notwithstanding the verdict under C.R.C.P. 59(e) and

that the court’s dismissal of a party from a dependency and neglect

petition based on a jury’s verdict is not a final appealable order

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under our appellate rules or the Children’s Code. Accordingly, we

dismiss the Department’s appeal.

A. Standard of Review and Applicable Law

¶ 16 When interpreting a rule or statute, our goal is to determine

and give effect to the legislature’s intent. See People in Interest of

C.L.S., 313 P.3d 662, 666 (Colo. App. 2011); see also People v. Zhuk,

239 P.3d 437, 438 (Colo. 2010) (rules of procedure are interpreted

consistently with principles of statutory construction). We look to

the rule or statute’s language and give effect to the words and

phrases according to their plain and ordinary meanings. Zhuk, 239

P.3d at 439; C.L.S., 313 P.3d at 666. Words or phrases should not

be added to a statute or rule, and the inclusion of certain terms in a

statute or rule implies the exclusion of others. See People in

Interest of J.J.M., 2013 COA 159, ¶ 7.

¶ 17 Colorado Appellate Rule 3.4(a), which governs appeals in

dependency or neglect cases, provides that a party may appeal (1)

orders from dependency or neglect proceedings as permitted by

section 19-1-109(2)(b) and (c), C.R.S. 2016 (appeals); (2) orders

allocating parental responsibilities under section 19-1-104(6),

C.R.S. 2016; (3) final orders entered pursuant to section 19-3-612,

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C.R.S. 2016 (reinstatement of the parent-child legal relationship);

and (4) final orders of permanent legal custody entered pursuant to

sections 19-3-605 and 19-3-702, C.R.S. 2016.

¶ 18 As relevant here, section 19-1-109(2)(c) provides that an order

decreeing a child to be neglected or dependent shall be a final and

appealable order upon the entry of the disposition. Nothing in this

section refers to the dismissal of a party from the petition based on

a jury’s verdict finding that a child was not dependent or neglected

as to that party.

B. Analysis

¶ 19 Because neither C.A.R. 3.4(a) nor section 19-1-109(2)(c)

contains language permitting an appeal from a “no adjudication”

finding, we conclude that the legislature did not intend for such

determinations to be final appealable orders. If the legislature had

intended to permit the direct appeal of a fact finder’s “no

adjudication” decision, it could have done so by express language.

See In re Marriage of Hartley, 886 P.2d 665, 673 (Colo. 1994)

(noting that if the legislature intended the statute to include a

certain provision, it would have included it in the statute); Adams v.

Corr. Corp. of Am., 187 P.3d 1190, 1193 (Colo. App. 2008) (“[I]t is

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presumed that the General Assembly meant what it clearly said.”).

Indeed, section 19-1-109(2)(b), which addresses orders regarding

the termination of parental rights, demonstrates that where the

legislature intended to permit the appeal of orders denying

termination, it did so. § 19-1-109(2)(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.”) (emphasis added).

¶ 20 In contrast to the express language in section 19-1-109(2)(b)

permitting the appeal of a refusal to terminate parental rights, the

legislature chose not to allow the appeal of findings of “no

adjudication” when it drafted section 19-1-109(2)(c). And we may

not add language to permit such appeals. See Ruiz v. Hope for

Children, Inc., 2013 COA 91, ¶ 14; see also People v. Jaramillo, 183

P.3d 665, 671 (Colo. App. 2008) (stating that courts must respect

the General Assembly’s choice of language and cannot add words to

a statute).

¶ 21 We are aware that, on at least one occasion, a division of this

court entertained the State’s appeal of a jury verdict finding that the

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children were not dependent or neglected. M.A.L., 37 Colo. App.

307, 592 P.2d 415. However, the issue of finality was neither raised

nor addressed on appeal. See People in Interest of H.R., 883 P.2d

619, 621 (Colo. App. 1994). Instead, the division concluded that

the jury, as fact finder, was entitled to resolve the conflicting

evidence and affirmed the trial court’s denial of the People’s motion

for directed verdict. Moreover, the Children’s Code was repealed

and reenacted in 1987, well after M.A.L. was decided. Ch. 138,

1987 Colo. Sess. Laws 695-823. Hence, we do not view that

decision as persuasive precedent on the jurisdictional issue

presented here. See id.

¶ 22 We further note that after the jury determined that R.S. was

not dependent or neglected as to father, the trial court did not have

jurisdiction to enter any orders other than dismissal of the petition.

People in Interest of S.T., 2015 COA 147, ¶ 19 (finding that the court

lacked jurisdiction to enter any orders except dismissal from the

petition once it found the allegations in the petition were not

proven). Thus, the court had no jurisdiction to rule on the

Department’s motion for adjudication notwithstanding the verdict.

See id.

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¶ 23 Accordingly, because a jury’s “no adjudication” verdict is not a

proper basis for a motion for adjudication notwithstanding the

verdict and thus, is not a final appealable order under C.A.R. 3.4(a)

or section 19-1-109(2)(c), we dismiss the Department’s appeal.

III. Mother’s Appeal

¶ 24 Mother challenges her adjudication on several grounds. She

contends that the petition should be dismissed because (1) the

evidence did not support the trial court’s findings that R.S. was

dependent and neglected; (2) the findings regarding B.M-M. related

to events that did not rise to child protection concerns; (3) the court

engaged in conjecture and speculation in making its findings

concerning S.M-L.; and (4) the court misinterpreted the term

“abandoned” in section 19-3-102(1)(a), C.R.S. 2016. We discern no

reversible error.

A. Applicable Law and Standard of Review

¶ 25 A child may be adjudicated dependent or neglected if the State

proves, by a preponderance of the evidence, that one or more of the

conditions set forth in section 19-3-102 exists. As relevant here,

subsections 102(1)(a), (b), (c), and (d) provide that a child is

dependent or neglected if:

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(a) A parent, guardian, or legal custodian has
abandoned the child or has subjected him or
her to mistreatment or abuse or a parent,
guardian, or legal custodian has suffered or
allowed another to mistreat or abuse the child
without taking lawful means to stop such
mistreatment or abuse and prevent it from
reoccurring;
(b) The child lacks proper parental care
through the actions or omissions of the parent,
guardian, or legal custodian;
(c) The child’s environment is injurious to his
or her welfare; [or]
(d) 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[.]

¶ 26 Both parents are entitled to a determination as to whether the

facts alleged in the petition have been proven. People in Interest of

J.G., 2014 COA 182, ¶ 24, rev’d on other grounds, 2016 CO 39. The

State must present sufficient evidence to persuade the fact finder

that the child is dependent or neglected with respect to each parent.

Id.

¶ 27 A trial court’s determinations regarding the sufficiency and

weight of the evidence and the credibility of the witnesses, as well

as the inferences and conclusions to be drawn therefrom, are within

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its discretion. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.

1982).

¶ 28 In determining whether the evidence is sufficient to sustain an

adjudication, an appellate court reviews the record in the light most

favorable to the prevailing party, and it draws every fair inference

from the evidence in favor of the trial court’s decision. People in

Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009). We will not

disturb the court’s findings and conclusions on review if evidence in

the record supports them. C.A.K., 652 P.2d at 613.

B. Analysis

¶ 29 After hearing the testimony of several witnesses and

considering the documentary evidence presented, the trial court

made oral findings and adjudicated the children dependent and

neglected under section 19-3-102(1)(a)-(d). We note that the court’s

minute order shows that S.M-L. was adjudicated pursuant to

section 19-3-102(1)(a) while B.M-M. and R.S. were adjudicated

pursuant to section 19-3-102(1)(d). Nonetheless, section 19-3-102

requires proof of only one condition for an adjudication. See

§ 19-3-102.

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¶ 30 In reaching its conclusions, the trial court found S.M.-L.’s

allegations of sexual abuse to be more credible than her

recantation. The court also found that mother had not provided the

three children with a supportive environment in which they could

address their mental health needs resulting from S.M-L.’s outcry. It

further found that mother had actively attempted to get father back

into the home without a protective plan in place. As to S.M-L.’s

younger sister, R.S., the court found that mother had not developed

a way to protect her if the allegations were true.

¶ 31 Initially, we note that we are troubled by the admission of

plainly inadmissible evidence and the absence of an objection to it.

This inadmissible evidence includes the testimony of various

experts who interviewed S.M-L. and testified that they believed her

allegations were credible, opined that she had not been coached,

and provided statistics regarding the probability of false allegations.

The admission of such evidence undermines the fairness of the

proceedings and has long been regarded as improper. See People v.

Cernazanu, 2015 COA 122, ¶ 11 (reversible error to allow mother to

opine on the credibility of daughter’s allegations of sexual abuse);

People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (“it is clear that

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[witnesses] may not offer their direct opinion on a child victim’s

truthfulness or their opinion on whether children tend to fabricate

sexual abuse allegations”); People v. Bridges, 2014 COA 65, ¶ 11

(The jury is not allowed to consider “evidence that a witness was

telling the truth on a specific occasion because it is solely the jury’s

responsibility to determine whether a particular witness’s testimony

or statement is truthful,” and witness may not opine that a child

was not coached); People v. Eppens, 979 P.2d 14, 17 (Colo. 1999)

(improper for witness to opine that child was sincere); People v.

Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (improper for witness to

testify child was “very believable”); People v. Oliver, 745 P.2d 222,

225 (Colo. 1987) (witness may not testify he or she personally

believed the child’s statements); People v. Snook, 745 P.2d 647, 649

(Colo. 1987) (witness may not testify that children tend not to

fabricate sexual abuse allegations). The record reveals, however,

that the trial court did not rely on any of this improperly admitted

evidence to adjudicate the children as to mother.

¶ 32 The record supports the trial court’s findings. S.M-L. testified

that father (her stepfather) had sexually abused her and the court

was in the best position to assess S.M.-L.’s credibility when she

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recanted on cross-examination. Given the court’s detailed findings

about the differences in S.M.-L.’s demeanor between direct and

cross-examination, we cannot find the court abused its discretion in

adjudicating the children dependent or neglected based on its

determination that S.M.-L. was abused.

¶ 33 The evidence also showed that mother did not believe the

sexual abuse allegations and insisted that S.M-L. was lying.

Mother testified that she believed S.M-L. was lying and the forensic

interviewer said S.M-L. was upset about not being believed.

¶ 34 The evidence further revealed that because mother did not

believe the sexual abuse allegations, the Department was concerned

about whether she could protect B.M-M. and R.S. In fact, mother

was not permitted to supervise visits between father and the

children because the Department did not believe she would pay

attention to father’s interactions with B.M-M. and R.S. or that she

could identify grooming behaviors.

¶ 35 Finally, the evidence showed that mother attempted to return

father to the home by asking to modify the protection order “two or

three” times. Additionally, the Department’s investigator said that

S.M-L. felt pressured to move out of the home so that father could

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visit more often and that the Department was concerned that

mother was taking father’s side.

¶ 36 Given the facts that S.M-L. alleged sexual abuse by father,

that mother disbelieved those allegations, and that mother

attempted to return father to the home, we discern no error in the

trial court’s finding that S.M-L. was dependent and neglected under

section 19-3-102. Similarly, given the Department’s concerns

about mother’s protective capacity based on her disbelief of the

sexual abuse allegations, we discern no error in the trial court’s

finding that B.M-M. and R.S. were dependent and neglected under

section 19-3-102. See People in Interest of D.L.R., 638 P.2d 39, 41-

42 (Colo. 1981) (holding that a trial court may adjudicate a child

dependent or neglected based on prospective harm).

¶ 37 We are not persuaded by mother’s argument that reversal is

required because the trial court engaged in conjecture and

speculation. We acknowledge that the court remarked several times

about the things that S.M-L. “didn’t say” during her testimony.

However, a court’s remarks or expressions of opinion made during

or at the end of a proceeding are not necessarily formal factual

findings prepared as the basis of the judgment. See People in

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Interest of O.J.S., 844 P.2d 1230, 1232-33 (Colo. App. 1992), aff’d

sub nom. D.A.S. v. People, 863 P.2d 291 (Colo. 1993). Based on the

court’s other findings, we do not consider these remarks to be the

basis for the judgment.

¶ 38 We also disagree with mother’s contention that reversal is

required because the trial court interpreted section 19-3-102(1)(a)

to include “emotional abandonment.” Our review of the court’s

factual findings does not indicate that it relied on the “abandoned”

portion of the statute. Rather, the court found that mother had

either subjected S.M-L. to mistreatment or abuse or had allowed

another to mistreat or abuse S.M-L. without taking lawful means to

stop such mistreatment or abuse or to prevent it from reoccurring.

¶ 39 Accordingly, because the evidence supports the trial court’s

factual findings, we will not disturb them on appeal.

IV. Conclusion

¶ 40 The Department’s appeal is dismissed, and the order

adjudicating mother is affirmed.

JUDGE ROMÁN and JUDGE LICHTENSTEIN concur.

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