Opinion
23CA1733
05-23-2024
The People of the State of Colorado, Appellee, In the Interest of S.C., a Child, and Concerning H.N., Appellant.
Kimberly Sorrells, County Attorney, Claire M. Czajkowski, Assistant County Attorney, Golden, Colorado, for Appellee Jenna L. Mazzucca, Guardian Ad Litem The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Jefferson County District Court No. 23JV30051 Honorable Ann Gail Meinster, Judge
JUDGMENT AFFIRMED
Kimberly Sorrells, County Attorney, Claire M. Czajkowski, Assistant County Attorney, Golden, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant
OPINION
SULLIVAN, JUDGE
¶ 1 H.N. (mother) appeals the judgment entered on a jury's verdict adjudicating her child, S.C., dependent and neglected. We affirm.
I. Background
¶ 2 In March 2023, shortly after S.C. was born, the Jefferson County Division of Children, Youth and Families filed a petition in dependency and neglect alleging (1) S.C. lacked proper parental care through the actions or omissions of her parents; (2) S.C.'s environment was injurious to her welfare; and (3) S.C.'s parents failed or refused to provide her with proper or necessary subsistence, education, or medical care, or any other care necessary for her health, guidance, or well-being. The Division based its concerns on mother's prior child welfare cases, her failure to comply with ongoing treatment, and her history of substance abuse. Both mother and I.C. (father) denied the allegations and requested a jury trial.
¶ 3 The juvenile court granted the Division temporary legal custody of S.C. The court ordered the parents to participate in random sobriety testing and to make reasonable and active efforts to prevent the continued out-of-home placement of S.C. The court allowed family time but only when professionally supervised. The court also ordered testing on S.C.'s umbilical cord to assess whether she was exposed to substances during mother's pregnancy. The umbilical cord testing revealed S.C. was exposed to methamphetamine and amphetamine while mother was pregnant.
¶ 4 The Division maintained custody of S.C. leading up to trial, placing S.C. with her maternal aunt.
¶ 5 Before trial, father stipulated to a deferred adjudication, giving up his right to a jury trial and appeal. Trial proceeded as to mother only.
¶ 6 Because the Division took custody of S.C. immediately following her birth, the testimony focused on the prospective harm that S.C. may suffer if mother received custody. The jury heard testimony from a clinical toxicologist, the caseworker in mother's 2022 dependency and neglect case, and S.C.'s caseworker. Their testimony primarily focused on concerns for S.C., such as concerns over further drug exposure, mother's history of crime and drug use, and mother's two previous dependency and neglect cases.
¶ 7 The court adjudicated S.C. as dependent and neglected based on the jury's findings that S.C. lacks proper parental care as a result of mother's actions or omissions and that S.C.'s environment in mother's care would be injurious to her welfare. See § 19-3-102(1)(b), (c), C.R.S. 2023.
¶ 8 Mother appeals.
II. Analysis
¶ 9 Mother argues the evidence was insufficient to support the jury's verdict because no evidence suggested that her alleged substance abuse impacted S.C. We disagree.
¶ 10 We are bound by a jury's findings and will not disturb them unless clearly erroneous. People v. Interest of T.T., 128 P.3d 328, 331 (Colo.App. 2005) (decided under the prior version of section 19-3-102(1)(g)). "In determining whether a jury verdict is supported by the evidence, the record is viewed in the light most favorable to the prevailing party, and every inference fairly deducible from the evidence is drawn in favor of the judgment." Id.
¶ 11 As relevant here, a child is dependent or neglected when she lacks proper parental care through the actions or omissions of the parent. § 19-3-102(1)(b).
¶ 12 When, as here, a child has not been in a parent's care, the jury must determine whether the child is dependent or neglected based on a prediction of the environment to which the child might be exposed if placed in the parent's care. People in Interest of A.W., 2015 COA 144M, ¶ 22; see also People v. D.A.K., 198 Colo. 11, 15, 596 P.2d 747, 749 (1979) ("[T]he child's situation on the day of the hearing cannot be viewed in a vacuum."). Such prospective harm is enough to support an adjudication of dependency and neglect. People in Interest of D.L.R., 638 P.2d 39, 43 (Colo. 1981); accord People in Interest of S.X.M., 271 P.3d 1124 (Colo.App. 2011) (explaining section 19-3-102(1)(b) "must be interpreted to read that a child is neglected or dependent if the child 'lacks or will lack' proper parental care").
¶ 13 In addition, the jury in a dependency and neglect case may hear evidence regarding prior adjudications and termination proceedings that relate to the respondent parent's other children and decide how those facts might relate to the child in the case at hand. See People in Interest of S.N., 2014 COA 116, ¶ 35.
¶ 14 Applying these standards, we conclude that the evidence was sufficient to prove that, if placed in mother's care, SC would lack proper parental care through mother's actions or omissions. Although mother argues that no evidence demonstrated that her alleged substance use impacted S.C., her argument fails to account for prospective harm to S.C. See People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 12. We conclude the evidence of prospective harm is dispositive.
¶ 15 Regarding lack of proper parental care, the 2022 caseworker testified regarding mother's two previous dependency and neglect cases for her two other children, occurring in 2015 and 2022. Like S.C., both of those children were exposed to methamphetamine while mother was pregnant. The court ultimately awarded permanent custody of both children to other family members.
¶ 16 The 2022 caseworker also testified that mother failed to comply with her previously assigned treatment plan that required her to participate in substance abuse treatment and demonstrate sobriety - for example, by appearing for urinalysis testing (UA). In particular, mother failed to report her pregnancy or consistently submit to UAs, resulting in multiple presumed positives. The caseworker also testified that mother's longest period of documented sobriety was just two weeks and that her last UA - taken in August 2022, early in her pregnancy with S.C. - tested positive for methamphetamine.
The caseworker testified that the Division informed mother that failing to appear for a UA constitutes a positive result.
¶ 17 The caseworker also testified regarding mother's criminal history and her unsuccessful participation in a recovery court program. Specifically, the caseworker explained that mother was charged with kidnapping and burglary in 2015, and that she ultimately pleaded guilty to a lesser charge and to violating a court custody order. As part of her sentence, mother participated in a recovery court program to help her remain sober but was "unsuccessfully terminated" from the program in November 2017 and resentenced to four years in prison. Meanwhile, in July 2017, mother was charged with distributing a controlled substance, pleaded guilty, and was sentenced to four years in prison.
¶ 18 We recognize that the caseworker stated that she did not observe any concerning behavior from mother during family time in the 2022 dependency and neglect case and even praised mother's parenting during those supervised visits. But the jury was free to disregard or place less weight on such testimony. See People in Interest of S.G.L., 214 P.3d 580, 583 (Colo.App. 2009). A reasonable person could find, as the jury did here, that the testimony regarding mother's two previous dependency and neglect cases supported the Division's contention that placing S.C. in mother's care would subject S.C. to prospective harm. The caseworker's testimony regarding mother's history of criminal activity, including illicit drugs, and her unsuccessful participation in the recovery court program provided further support that S.C. would lack proper parental care if placed in mother's care.
¶ 19 Mother points out that the toxicologist testified that the umbilical cord testing did not conclusively demonstrate when S.C. was exposed to illicit substances, in what amount, or that S.C. was impacted by such exposure. But proving effects from past exposure was not necessary for the jury to consider such testimony in determining whether S.C. would lack proper parental care in the future. See T.T., 128 P.3d at 330 (evidence of a parent's prenatal substance abuse is sufficient to establish prospective harm if the child is placed with the parent after birth).
¶ 20 Given all of this, and viewed in the light most favorable to the Division, sufficient evidence supported the jury's finding that S.C., if placed with mother, would lack proper parental care through mother's actions or omissions. § 19-3-102(1)(b). Having so concluded, we need not address whether sufficient evidence also supported the jury's verdict under section 19-3-102(1)(c).
III. Disposition
¶ 21 We affirm the judgment.
JUDGE FOX and JUDGE GROVE concur.