October 23, 2017

Colorado Court of Appeals: Unavailability of Transcript of Child’s In Camera Interview Violated Parents’ Due Process Rights

The Colorado Court of Appeals issued its opinion in People in Interest of H.K.W. on Thursday, May 18, 2017.

Dependency and Neglect—In Camera Interview of Child—Record of In Camera Interview.

The Weld County Department of Human Services (the Department) filed a dependency or neglect petition regarding 6-year-old H.K.W. The child was initially removed from the home and placed with father, and three days later with special respondents. In a prior dependency and neglect case, the child had also been placed with special respondents.

The trial court adjudicated the child dependent or neglected. Father and mother complied with the court ordered treatment plans. Father, mother, and special respondents later moved for an allocation of parental responsibilities. The child’s guardian ad litem (GAL) moved for an in camera interview with the child. None of the parties objected. The court agreed to interview the child and told the parties it would have a record made that would be sealed unless the matter was appealed. There were no objections.

The interview with the child was recorded but not transcribed, and none of the parties requested a transcript. At a subsequent hearing, the court allocated parental responsibilities to special respondents and set forth a parenting time schedule for mother and father. In making its findings, the court relied extensively on the child’s statements during the in camera interview. Father and mother appealed, and father requested a transcript of the interview. The trial court denied father’s request.

On appeal, father and mother argued that the trial court erred by relying on the in camera interview with the child, which was not admitted into evidence, as the basis for its allocation of parental responsibilities decision. They asserted their due process rights were violated because without access to the interview transcript, they were unable to contest the court’s findings or the information on which it relied.

Although the Children’s Code does not specifically allow a court to conduct an in camera interview with a child, C.R.S. § 19-1-106(5) provides that a child “may be heard separately when deemed necessary” by the court. The Uniform Dissolution of Marriage Act (UDMA) provides that the “court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities.” Read together, the court of appeals concluded that a trial court is permitted to conduct an in camera interview with a child to determine a child’s best interests and how to allocate parental responsibilities within a dependency and neglect proceeding.

The Children’s Code does not address whether a record of an in camera interview with a child must be made. The UDMA requires the trial court to make a record of the interview, which must be part of the case record. The court concluded that, unless waived by the parties, a record of the interview must be made. Further, the record must be made available, upon request, in situations when a parent needs (1) to determine whether the court’s findings, insofar as they relied on facts from the interview, are supported by the record, or (2) an opportunity to contest information supplied by the child during the interview and relied on by the court.

In this case, the parents requested access to a transcript only after they filed a notice of appeal. By not requesting access earlier, they waived their right to access the transcript to rebut information presented during the interview, but they did not waive their right to access the transcript for the purpose of contesting the bases for the court’s findings related to the interview. Thus, the trial court erred in not ordering the transcript to be made and made part of the record on appeal.

The trial court was ordered to have the in camera interview transcribed and transmitted, as a suppressed document, to the court as a supplement to the record on appeal. Following supplemental briefing, the court will issue an opinion addressing the merits of the appeal.

Summary provided courtesy of The Colorado Lawyer.

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