April 21, 2019

Colorado Court of Appeals: No Fundamental Fairness Requirement or Sixth Amendment Right for Parent to Confront Child in a Dependency and Neglect Proceeding

The Colorado Court of Appeals issued its opinion in People In the Interest of S.X.M., and Concerning T.M. on September 15, 2011.

Dependency and Neglect—Child Testimony Viewed by Television—Right to Confront and Due Process—Jury Instructions.

In this dependency and neglect proceeding, father appealed from the order adjudicating his child S.X.M. dependent and neglected. The order was affirmed.

In June 2010, S.X.M., then 6 years old, was removed from father’s care after the Larimer County Department of Human Services (LCDHS) received a report that the child had disclosed that father had sex with her and that other inappropriate sexual actions had take place between father and the child. A jury trial was scheduled for February 2011.

Before trial, LCDHS filed a motion in limine requesting that the child be permitted to testify in front of the jury but not in the presence of father. The trial court granted the motion over father’s objection, but ordered that father should have the opportunity to view the child’s testimony via closed-circuit television. The child testified according to this procedure and the jury adjudicated the child dependent and neglected.

On appeal, father contended that he had a right to confront the child in the courtroom, and that the procedure adopted denied him that right and the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment. The Court of Appeals disagreed. Father argued he had a right to confront the child that should not have been denied absent evidence that the child would have been traumatized if required to testify in his presence. His argument regarding his right to confront in a non-criminal case was based on his right to “fundamentally fair procedures” in a dependency and neglect proceeding.

The Court first noted that Colorado has rejected the argument that the Sixth Amendment right of confrontation should be extended to a parent in a dependency and neglect proceeding. The Court then rejected any further contention that fundamental fairness required he be allowed to confront the child in court.

Father argued that because the jury instructions used the past tense and therefore focused the jury’s attention on the child’s status “at some moment in the past when some abuse was alleged to have occurred,” rather than on the child’s status at the time of the hearing, the jury’s findings were not in compliance with CRS § 19-3-102. The Court disagreed. The Court noted that a jury instruction that misleads or confuses a jury amounts to error, but such error is not a ground for reversal unless it prejudices a party’s substantial rights. Review is for abuse of discretion, which is found only when the ruling is manifestly arbitrary, unreasonable, or unfair.

The Court reviewed the statute, which uses the present tense: a child is deemed neglected or dependent if he or she “lacks” proper parental care or if his or her environment “is” injurious to his or her welfare. The trial court noted that the use of the present tense in the jury instructions could cause “massive confusion” if, at the time of the hearing, the jury was informed that the child had been removed from harm and was doing well in foster care. This could lead to the child not being adjudicated dependent and neglected while in his or her parent’s care, which would not be in the best interests of the child and not consistent with the purposes of the Children’s Code. Although the trial court’s instructions were not what the Court considered the best solution to this issue, it concluded that they were not misleading and were not an abuse of discretion.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 15, 2011, can be found here.

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