Opinion
23CA1441
05-23-2024
The People of the State of Colorado, Appellee, In the Interest of L.R.E., a Child, and Concerning A.C., Appellant.
KOY | DINGBOOM | OATES, LLC, Jeffrey C. Koy, Lauren Dingboom, Jordan Oates, Jordan Ware, Englewood, Colorado, for Appellee Anne E. Parmley, Guardian Ad Litem Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Clear Creek County District Court No. 22JV5 Honorable Catherine J. Cheroutes, Judge
JUDGMENT AFFIRMED
KOY | DINGBOOM | OATES, LLC, Jeffrey C. Koy, Lauren Dingboom, Jordan Oates, Jordan Ware, Englewood, Colorado, for Appellee
Anne E. Parmley, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
OPINION
LIPINSKY, JUDGE
¶ 1 A.C. (mother) appeals the juvenile court's judgment revoking her deferred adjudication and adjudicating L.R.E. (the child) dependent or neglected. We affirm.
I. Background
¶ 2 In November 2022, the Clear Creek County Department of Human Services (the department) received a referral indicating that mother had tested positive for multiple substances, including methamphetamine, amphetamine, and THC, after giving birth to the child. The department filed a petition in dependency or neglect. The juvenile court entered a temporary protective custody order regarding the child, who was removed and placed with kin.
¶ 3 At a hearing conducted on January 30, 2023, mother admitted, through her counsel, that the child was "born affected by alcohol or substance exposure . . . and the newborn child's health or welfare is threatened by substance use." The juvenile court deferred an adjudication of dependency or neglect after finding that a factual basis supported mother's admission and noting that the parties had agreed to a deferral.
¶ 4 The juvenile court ordered mother to comply with a treatment plan "calculated to render [her] fit to provide adequate parenting to the child within a reasonable time." Among other things, the treatment plan required mother to address mental health concerns by completing a psychological evaluation and participate in therapy services; eliminate criminal activity and complete a domestic violence evaluation; engage in visitation services and actively participate in visitations so the child could develop a secure attachment to her; and live a sober lifestyle and complete a substance abuse evaluation.
¶ 5 On June 21, 2023, the department filed a motion to revoke the deferred adjudication and to adjudicate the child dependent or neglected. The department alleged that mother had not complied with the terms of the deferred adjudication or sufficiently engaged in treatment.
¶ 6 At a hearing on the motion conducted on August 1, 2023, the department offered the caseworker's expert report to the juvenile court into evidence. The report addressed the status of mother's compliance with the treatment plan. The caseworker testified to mother's lack of compliance with her treatment plan. Specifically, the caseworker testified that mother failed to establish a sober lifestyle or comply with consistent drug testing (including substance abuse evaluations), provide a safe and nurturing home environment for the child, complete a domestic violence evaluation, engage in therapy as her psychological evaluation recommended, or develop a secure attachment with the child.
¶ 7 Mother did not attend, but was represented by counsel at, the hearing. Counsel for mother did not contest any of the department's evidence or present any evidence. Rather, counsel conceded that mother was "out of compliance [with the treatment plan] at the moment." However, counsel requested that the court defer the adjudication for another six months, arguing that there would be "no harm" in doing so and that mother "has expressed a desire to come back into compliance."
¶ 8 The juvenile court denied counsel's request. It determined that mother had failed to comply with the terms of her deferred adjudication and entered an order adjudicating the child dependent or neglected.
II. Analysis
¶ 9 Mother contends that the department failed to present sufficient evidence to overcome the presumption that she was a fit parent who would act in the best interests of the child. We affirm the judgment because mother failed to preserve her sufficiency of the evidence argument and because no miscarriage of justice would result if we were to decline to review her unpreserved argument on the merits.
A. Relevant Law
¶ 10 The purpose of an adjudicatory hearing is "to determine whether the status of the subject child 'warrants intrusive protective or corrective state intervention into the familial relationship.'" People in Interest of N.G., 2012 COA 131, ¶ 58, 303 P.3d 1207, 1219 (quoting People in Interest of A.H., 271 P.3d 1116, 1120 (Colo.App. 2011)). At the adjudicatory hearing, "the state must establish by a preponderance of the evidence that a child is dependent or neglected." L.L. v. People in Interest of R.W., 10 P.3d 1271, 1275 (Colo. 2000); § 19-3-505(1), C.R.S. 2023. Among other bases, a child is dependent or neglected if the child was "born affected by alcohol or substance exposure, except when taken as prescribed or recommended and monitored by a licensed health care provider, and the newborn child's health or welfare is threatened by substance use." § 19-3-102(1)(g), C.R.S. 2023.
¶ 11 If the juvenile court finds that the allegations in the petition are supported by a preponderance of the evidence, the court may choose to defer the adjudication for up to six months. See § 19-3505(5), (7)(a). "Upon review, the court may continue the case for an additional period not to exceed six months, after which the petition shall either be dismissed or sustained." § 19-3-505(5)(b).
¶ 12 During the deferral period, the parent may "present evidence probative of the current status of the child as to that parent, the continued vitality of any admission to a petition alleging dependency and neglect, or both." N.G., ¶ 26, 303 P.3d at 1214. "[A]t the end of the deferral period, the court should address both the ongoing probative value of any parental admission and the parent's new evidence in findings either adjudicating the child dependent and neglected as to the parent or ordering the petition dismissed and the child returned to parental custody." Id. at ¶ 27, 303 P.3d at 1214.
B. Mother Failed to Preserve the Argument She Raises on Appeal
¶ 13 Mother contends that she "generally preserved the issues she raises on appeal by opposing the entry of adjudication at the conclusion of the adjudicatory hearing." The department and the guardian ad litem respond that mother failed to preserve her sufficiency of the evidence argument because she "admitted she was out of compliance with the conditions of the deferred adjudication" and "omitted any objection to the strength of the [d]epartment's evidence." We agree with the department and the guardian ad litem.
¶ 14 "[L]ike other civil actions, dependency and neglect proceedings are subject to the limitation that except where jurisdiction is implicated, generally appellate courts review only issues presented to and ruled on by the lower court." People in Interest of M.B., 2020 COA 13, ¶ 14, 459 P.3d 766, 769; see also People in Interest of J.G., 2021 COA 47, ¶ 48, 486 P.3d 504, 512 ("We generally do not consider issues that have not been presented to the juvenile court."). "To properly preserve an argument for appeal, the party asserting the argument must present 'the sum and substance of the argument'" to the juvenile court. Gebert v. Sears, Roebuck &Co., 2023 COA 107, ¶ 25, 543 P.3d 409, 415 (quoting Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50, 532 P.3d 776, 788).
¶ 15 We hold that mother failed to preserve her sufficiency of the evidence argument because she did not present in the juvenile court the "sum and substance of the argument" she raises on appeal. See id. (quoting Madalena, ¶ 50, 532 P.3d at 788). At the August 1, 2023, hearing, counsel for mother neither objected to any of the department's evidence nor presented any countervailing evidence. To the contrary, mother's counsel agreed with the department that mother was "out of compliance at the moment."
¶ 16 Moreover, during her cross-examination of the caseworker, mother's counsel focused on whether the child's living conditions would change "if the deferred were to continue on for another six months." And in her closing argument, counsel solely asserted that the court should extend the deferment to allow mother "the chance to become reengaged." Counsel told the juvenile court there would be "no harm in continuing it over for the six months," as the child's kinship placement would not change during that time.
¶ 17 Because counsel did not assert at the hearing that the department had presented insufficient evidence to support a determination that the child was dependent or neglected or bring any perceived deficiencies in the evidence to the juvenile court's attention before entry of the adjudication, mother failed to preserve her argument. We therefore decline to review her argument on the merits.
C. We Need Not Consider Mother's Unpreserved Argument to Avoid a Miscarriage of Justice
¶ 18 Mother argues that, to the extent she "failed to fully preserve the [sufficiency of the evidence] issue," we should "review it anyway to avoid a miscarriage of justice." We disagree.
¶ 19 "[G]iven the constitutional nature of parental rights," we have "recognize[d] a miscarriage of justice exception for review of unpreserved errors" in dependency or neglect proceedings. People in Interest of M.B., ¶ 21, 459 P.3d at 770-71. "This exception to the preservation rule applies to 'those limited situations in which an error by the trial court, not otherwise properly preserved for appeal, should be characterized as . . . one causing a miscarriage of justice.'" People in Interest of E.S., 2021 COA 79, ¶ 14, 494 P.3d 1142, 1145 (quoting People in Interest of A.E., 914 P.2d 534, 539 (Colo.App. 1996)).
¶ 20 A court will review an unpreserved issue under the miscarriage of justice exception if the alleged defect "is of such significance that it . . . negates the validity of the judgment entered." A.E., 914 P.2d at 539. Divisions of this court have applied the exception when a parent was not advised of his right to a hearing before the court terminated his parental rights, see In re R.G.B., 98 P.3d 958, 959 (Colo.App. 2004); when a parent was deprived of a meaningful opportunity to participate in the termination proceeding due to the truncated timeframe in which the department filed its motion for summary judgment and the juvenile court considered the motion, see A.E., 914 P.2d at 539; and when a juvenile court approved a treatment plan without visitation services - in reliance on a "blanket policy" of the department - without considering whether the limitation was needed to protect the children's health and safety, see E.S., ¶¶ 24, 28, 494 P.3d at 114648.
¶ 21 Assuming, without deciding, that the miscarriage of justice exception can apply at the adjudication stage of dependency or neglect proceedings, we conclude that it does not apply under these facts. Although mother complains that the August 1, 2023, hearing was "highly truncated," we are not persuaded that the brevity of the hearing was the result of an alleged defect of such significance that it would "negate[] the validity of the judgment entered." A.E., 914 P.2d at 539. To the extent the hearing was truncated, the narrowed scope of the hearing was largely attributable to mother's failure to attend and the strategic decisions her counsel made throughout the case, and it was not indicative of a fundamentally unfair procedure.
¶ 22 Specifically, mother's counsel admitted at the January 30, 2023, hearing that the child was born substance exposed, never relitigated that issue, agreed with the department that mother was out of compliance with the conditions of the deferred adjudication, and declined to present an argument or evidence to rebut the department's assertions - despite being given the opportunity to do so. Mother does not contend that she lacked notice of the adjudicatory hearing, that she was deprived of a meaningful opportunity to participate in the hearing, or that the juvenile court disregarded her and the child's needs by applying an overbroad blanket policy of the department.
¶ 23 To the extent mother raises a due process argument, we reject it. Mother does not explain how the alleged truncation of the proceedings diminished the effectiveness of her case. See People in Interest of R.J.B., 2021 COA 4, ¶ 32, 482 P.3d 519, 525. Due process was satisfied because mother had "an opportunity to appear through counsel and [was] given an opportunity to present evidence and cross-examine witnesses through deposition or otherwise." A.E., 914 P.2d at 538.
III. Disposition
¶ 24 The judgment is affirmed.
JUDGE FREYRE and JUDGE SCHUTZ concur.