June 19, 2018

Colorado Court of Appeals: Parent’s Counsel Not Necessarily Entitled to be Present at In Camera Interview of Children

The Colorado Court of Appeals issued its opinion in People in Interest of S.L. on Thursday, December 28, 2017.

Dependency and Neglect—Due Process—In Camera Review—Ineffective Assistance of Counsel—Disclosures—Expert Witness.

The Rio Blanco County Department of Human Services (Department) became involved with the parents in this case as a result of concerns about the children’s welfare due to the condition of the family home, the parents’ use of methamphetamine, and criminal cases involving the parents. Attempts at voluntary services failed, and on the Department’s petition for dependency and neglect, the district court ultimately terminated the parents’ rights.

On appeal, the parents contended that the Department failed to make reasonable efforts to reunify them with their children. Specifically, the parents contended that the Department did not give them sufficient time to complete the services under their treatment plans and failed to accommodate their drug testing needs. The termination hearing was not held until more than a year after the motion to terminate was filed. For nine months before the motion to terminate was filed, the Department provided numerous services to the parents, including substance abuse therapy, therapeutic visitation supervision, drug abuse monitoring, and a parental capacity evaluation. The Department also provided counseling for the children. Both parents missed drug tests and tested positive during the testing period, and both were arrested for possession of methamphetamine during the pendency of the case. The Department made reasonable accommodations to meet the parents’ needs and the parents had sufficient time to comply with their treatment plans. The record supports the trial court’s findings that termination was appropriate because (1) the court-approved appropriate treatment plan had not been complied with by the parents or had not been successful in rehabilitating them; (2) the parents were unfit; and (3) the conduct or condition of the parents was unlikely to change within a reasonable time.

Father also contended that the trial court’s decision to interview the 9-year-old twin children together in chambers fundamentally and seriously affected the basic fairness and integrity of the proceedings and violated his due process rights. Father also argued that answers the judge gave to the children’s questions during the interview were improper. More than five months before the termination hearing, the court interviewed the children in chambers. The interview was recorded and transcribed, and a copy of the transcript was provided to the parties before the termination hearing. Whether counsel may be present during an in camera interview of a child in a dependency and neglect proceeding is determined on a case-by-case basis and is within the trial court’s discretion. In making this determination, the trial court should consider, among other things, the child’s age and maturity, the nature of the information to be obtained from the child, the relationship between the parents, the child’s relationship with the parents, any potential harm to the child, and ultimately any impact on the court’s ability to obtain information from the child. In addition, in the interests of fairness and to allow for the record to be fully developed, the trial court should allow the parents or trial counsel to submit questions to the child, which the court may ask in its discretion. Further, the interview, regardless of whether counsel is present, must be on the record, and a transcript of the interview must be made available to the parties before a termination hearing. Here, the trial court did not abuse its discretion in the interview procedures that it followed nor in the weight it accorded to the information solicited.

Father next contended that he was provided ineffective assistance of counsel. Although his trial counsel failed to meet discovery and disclosure deadlines for an expert witness, the record fails to demonstrate the necessary prejudice to establish a claim based on ineffective assistance.

Father further contended that the trial court abused its discretion and violated his due process rights in allowing five of the Department’s witnesses to testify as experts despite the Department failing to comply with C.R.C.P. 26(a). Despite inadequacies in the C.R.C.P. 26 disclosures, the bases for the experts’ testimony at the hearing had been disclosed to father. Therefore, the trial court did not abuse its discretion in concluding that father was not prejudiced by the inadequate C.R.C.P. 26(a) disclosures.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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