People in the Interest of A.N-B , 440 P.3d 1272 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 21, 2019
2019COA46
No. 18CA0417, People in the Interest of A.N-B. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Relationship — Expert Testimony; Attorneys and Clients
— Attorney-Client Privilege
A division of the court of appeals concludes that when an
indigent party in a dependency and neglect case is provided with an
expert at state expense, the attorney-client privilege does not attach
to the expert’s report regarding a parent-child interactional
assessment. In so doing, the division concludes that the holding in
D.A.S. v. People, 863 P.2d 291 (Colo. 1993), was not affected by
recent legislation transferring the authority for budgetary review
and approval of a state-paid expert from the court to the office of
respondent parents’ counsel.
COLORADO COURT OF APPEALS 2019COA46
Court of Appeals No. 18CA0417
Jefferson County District Court No. 17JV31
Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of A.N-B., I.N-B., I.N-B., and A.N-B., Children,
and Concerning D.B. and R.N.,
Respondents-Appellants.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TOW
Taubman and Berger, JJ., concur
Announced March 21, 2019
Ellen G. Wakeman, County Attorney, Sarah L. Oviatt, Assistant County
Attorney, Golden, Colorado, for Petitioner-Appellee
Diana M. Richett, Guardian Ad Litem
Ingelhart Law Office LLC, Kimberly A. Ingelhart, Glenwood Springs, Colorado,
for Respondent-Appellant D.B.
The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for
Respondent-Appellant R.N.
¶1 Mother, D.B., and father, R.N., appeal the juvenile court’s
judgment terminating their parent-child relationships with A.N-B.,
I.N-B., I.N-B., and A.N-B. We affirm.
I. Background
¶2 The family has been involved with child protective services
agencies on two prior occasions. In January 2014, the Adams
County Department of Human Services opened a voluntary case
with the family after one of the boys suffered a fractured femur
while in father’s care. The child was then six months old. The
injury was not explained. The case was closed in June 2014.
¶3 In September 2014, the same child suffered another fractured
femur and fractured ribs. At the same time, the other twin was
found to have healing fractures to his ribs, skull, and forearm. The
Adams County Department of Human Services opened a
dependency and neglect case. The case was closed with mother
having full custody of the children, supervised visitation for father,
and a permanent protection order barring father from contact with
the boy who had suffered fractured femurs.
¶4 In this case, in January 2017, the Jefferson County Division of
Children, Youth, and Families filed a petition in dependency and
1
neglect after mother left the three-year-old twins home alone for
over six hours. Neighbors reported that the children were
screaming and crying. Police arrived to find the children locked in a
bedroom with no food or water. The room smelled of urine, and the
home was extremely dirty. The Division removed the children and
placed them with their maternal grandfather, where they remained
throughout the proceedings.
¶5 The juvenile court adjudicated the children dependent and
neglected. In March 2017, the court adopted treatment plans for
the parents. On August 28, 2017, the guardian ad litem (GAL) filed
a motion to terminate the parent-child relationships. Over three
days in December 2017 and January 2018, the court conducted an
evidentiary hearing on the motion to terminate. In January 2018,
the court terminated both parents’ parental rights.
II. Analysis
A. The Juvenile Court Did Not Violate
Mother’s Attorney-Client Privilege
¶6 Mother contends that the juvenile court violated her
attorney-client privilege when it required disclosure of a report
2
drafted by mother’s expert and admitted the report and the expert’s
testimony at the termination hearing. We disagree.
1. Additional Background
¶7 Before the hearing, mother requested appointment of an
expert in child psychology to evaluate her parenting time. Due to
mother’s indigency, the expert was appointed at state expense
pursuant to section 19-3-607(1), C.R.S. 2018. The expert
conducted a parent-child interactional evaluation, which included a
clinical interview of mother and direct observation of mother
interacting with each of the four children. Based on the expert’s
report, mother elected not to call the expert as a witness.
¶8 Just prior to the hearing, the GAL requested that the expert’s
report be disclosed to her. Mother objected, asserting that the
report was protected by attorney-client privilege. The juvenile court
ordered the report disclosed and permitted the GAL to call the
expert to testify to the results of his evaluation at the termination
hearing.
2. Standard of Review
¶9 We review the juvenile court’s resolution of discovery issues for
an abuse of discretion. People in Interest of A.D.T., 232 P.3d 313,
3
316 (Colo. App. 2010). We also review the juvenile court’s
evidentiary rulings for an abuse of discretion. People in Interest of
M.V., 2018 COA 163, ¶ 52. A juvenile court abuses its discretion
“when its decision is manifestly arbitrary, unreasonable, or unfair,
or when it misapplies the law.” People in Interest of E.R., 2018 COA
58, ¶ 6. The application of the attorney-client privilege is a question
of law we review de novo. People v. Trammell, 2014 COA 34, ¶ 9.
3. State-Paid Experts and the Attorney-Client Privilege
¶ 10 In 1977, the Colorado legislature enacted the Parent-Child
Legal Relationship Termination Act of 1977. Ch. 248, 1977 Colo.
Sess. Laws 1026-1032. In this Act, the legislature provided that
“[a]n indigent parent has the right to have appointed one expert
witness of his own choosing whose reasonable fees and expenses,
subject to the court’s review and approval, shall be paid by the state
of Colorado pursuant to section 19-11-110.” Sec. 1, § 19-11-107(1),
1977 Colo. Sess. Laws at 1028. Ten years later, when the
legislature repealed and reenacted the Colorado Children’s Code,
this provision was relocated to section 19-3-607, altering only the
section reference to the new section 19-3-610. Ch. 138, sec. 1,
§ 19-3-607(1), 1987 Colo. Sess. Laws 790. The provision has since
4
been substantively amended only once, when the legislature
transferred the budgetary review and approval of the expert’s fees
and costs from the court to the office of the respondent parents’
counsel. Ch. 216, sec. 1, § 19-3-607(1), 2016 Colo. Sess. Laws 830.
¶ 11 When an indigent parent’s attorney requests the appointment
of an expert under this provision, the attorney-client privilege
generally protects communications between the parent and the
expert. B.B. v. People, 785 P.2d 132, 138 (Colo. 1990) (interpreting
section 19-11-107(1), C.R.S. 1986). However, this privilege “is not
absolute.” D.A.S. v. People, 863 P.2d 291, 295 (Colo. 1993). In
other words, “under a variety of circumstances the cloak of
confidentiality afforded by the attorney-client privilege does not
extend to particular communications between an attorney (or his
agent) and a client.” Id. For example, the “privilege applies only to
statements made in circumstances giving rise to a reasonable
expectation that the statements will be treated as confidential.” Id.(quoting Lanari v. People, 827 P.2d 495, 499 (Colo. 1992)).
¶ 12 In B.B., the expert was retained to conduct a disability
evaluation of the parent, which included administering intelligence
and personality tests as well as interviewing the parent. 785 P.2d
5at 134-35. The People called the expert to testify in their case-in-
chief, over the parent’s objection. Id. The supreme court ruled
that, because the expert was an agent of the parent’s attorney, the
attorney-client privilege protected confidential communications
between the parent and the expert. Id. at 139.
¶ 13 Three years later, the supreme court addressed the issue in a
different context. In D.A.S., the supreme court held that the
attorney-client privilege did not attach to the testimony and report
of an expert who conducted a parent-child interactional
assessment. 863 P.2d at 295-96. In distinguishing B.B., the court
focused on several factors, including that (1) much of the expert’s
testimony concerned his observations of the children, not the
parent’s statements; (2) the parent’s attorney knew, before the
expert’s appointment, that the expert would likely conduct the
parent-child interactional evaluation; (3) there was no request to
forego the evaluation; (4) the children participated in the evaluation
of the parent and themselves; (5) the children’s participation was
not necessary to make the evaluation possible; and (6) the expert’s
report had been given to opposing counsel before trial. Id. at 296.
4. Application
6
¶ 14 The facts of this case are far more similar to those in D.A.S.
than to those in B.B. Mother hired an expert in child psychology to
evaluate her parenting ability through a parent-child interactional
evaluation. After reviewing the expert’s report, mother decided not
to call him as a witness.
¶ 15 However, the GAL moved to compel disclosure of the expert’s
report. The juvenile court found that D.A.S. was dispositive of the
issue and granted the motion. At the termination hearing, the
juvenile court admitted the expert’s report and testimony over
mother’s objection.
¶ 16 With regard to the parent-child interactional evaluation, much
of the expert’s testimony concerned his observations of the children
and, thus, did not fall within the scope of the privilege. See id. at
294 (attorney-client privilege protects communications between
parent and expert, not expert’s observations and conclusions
regarding children). In addition, the expert testified regarding the
clinical interview he conducted with mother. However, he testified
that this interview was integral to the parent-child interactional
evaluation.
7
¶ 17 Mother’s attorney requested the evaluation of mother’s
parenting skills and asked that the children participate. Thus,
mother’s attorney knew the expert would conduct the evaluation,
desired it to occur, and requested the children’s participation.
¶ 18 True, the expert’s report was not disclosed to opposing counsel
until the court granted the GAL’s request to do so. This fact is
different than D.A.S., where it appears the expert himself provided a
copy of his report to all counsel. However, under the statute in
effect at the time, the GAL in D.A.S. was likely entitled to the report
without having to request it. 1
¶ 19 Finally, and in our view most significantly, the expert advised
mother, both orally and in writing, that the evaluation and interview
would not be considered confidential and were being conducted to
inform the juvenile court with respect to the dependency and
neglect proceeding. Thus, mother had no expectation of privacy in
the results of the evaluation or the clinical interview. See Lanari,
1 The statute in effect at the time (as well as the current statute)
required any report from a court-ordered evaluation to be provided
to counsel prior to the hearing. § 19-3-607(2), C.R.S. 1990.
Because the court appointed the expert, the expert’s report was
essentially court-ordered. See People in Interest of D.A.S., 863 P.2d
291, 295 (Colo. 1993).
8
827 P.2d at 499. Indeed, even B.B. acknowledged that the privilege
only attaches to confidential communications. 785 P.2d at 139.
¶ 20 Mother urges us to follow the reasoning of the dissent in
D.A.S. We, of course, cannot do so, as we are bound by the
supreme court’s majority opinion. In re Estate of Ramstetter, 2016
COA 81, ¶ 40.
¶ 21 Mother also argues that the law has changed since the
decision in D.A.S. But as noted, the only statutory change that has
occurred is the shift in responsibility for the approval of experts to
the office of the respondent parents’ counsel. In other words, a
parent is now able to retain an expert without a court order. One
(perhaps unintended) result of this change is that fewer expert
reports will be court-ordered, and therefore fewer will automatically
be subject to disclosure under section 19-3-607(2), C.R.S. 2018.
Nevertheless, because the juvenile court did not order disclosure
pursuant to section 19-3-607(2), this statutory change does not
alter our analysis.
¶ 22 Thus, we conclude that the juvenile court did not violate
mother’s attorney-client privilege when it required disclosure of the
expert’s report and admitted the report and the expert’s testimony.
9
B. The Juvenile Court Properly Terminated
Mother’s Parental Rights
¶ 23 A court may terminate parental rights if it finds by clear and
convincing evidence that (1) the parent has not complied with an
appropriate, court-approved treatment plan or the plan was
unsuccessful; (2) the parent is unfit; and (3) the parent’s conduct or
condition is unlikely to change within a reasonable time.
§ 19-3-604(1)(c).
¶ 24 “The credibility of the witnesses and the sufficiency, probative
effect, and weight of the evidence, as well as the inferences and
conclusions to be drawn from it, are within the discretion of the
trial court.” People in Interest of D.B-J., 89 P.3d 530, 532 (Colo.
App. 2004). We will uphold the juvenile court’s findings and
conclusions unless they are so clearly erroneous as to find no
support in the record. People in Interest of C.A.K., 652 P.2d 603,
613 (Colo. 1982).
1. Mother Did Not Successfully Comply
with Her Treatment Plan
¶ 25 As an initial matter, we reject mother’s contention that the
lack of reasonable efforts by the Division rendered her treatment
plan inappropriate. Mother’s argument conflates two distinct
10
issues: (1) the appropriateness of the treatment plan and (2)
whether the Department made reasonable efforts to rehabilitate the
parent. Before a court may terminate a parent-child relationship, it
must find that
(1) the parent has not reasonably complied
with an appropriate treatment plan, the plan
has been unsuccessful, or the court had
previously found that an appropriate plan
could not be devised; (2) the parent is unfit;
and (3) the parent’s conduct or condition is
unlikely to change within a reasonable time.
People in Interest of L.M., 2018 CO 34, ¶ 27.
¶ 26 “In determining unfitness, conduct, or condition,” the juvenile
court must also consider whether the Division made reasonable
efforts to rehabilitate mother. § 19-3-604(2)(h). But the question of
reasonable efforts is not related to the appropriateness of the
treatment plan. Instead, the appropriateness of a treatment plan is
measured in light of facts existing at the time of the plan’s approval.
People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App. 2005).
Thus, the Division’s later efforts to implement the plan have no
bearing on whether or not the plan was appropriate.
¶ 27 The GAL asserts that we should not address mother’s
contention that she reasonably complied with her treatment plan
11
because she did not raise the issue in the juvenile court. Divisions
of this court have split on the question of whether a parent must
specifically preserve issues by raising specific arguments related to
each of the statutory criteria, or if failing to do so results in a waiver
of appellate review as to the criteria not challenged. Compare
People in Interest of S.N-V., 300 P.3d 911, 916 (Colo. App. 2011)
(holding that a parent’s failure to object to services does not bar
appellate review of a reasonable efforts finding), with People in
Interest of D.P., 160 P.3d 351, 355-56 (Colo. App. 2007) (declining
to review reasonable efforts finding because parent failed to object
in the trial court to the services provided). We need not pick sides
in this case because even if we assume mother preserved her claim,
we discern no error.
¶ 28 The parent is responsible for assuring compliance with and
success of the treatment plan. People in Interest of R.J.A., 994 P.2d
470, 472 (Colo. App. 1999). “[P]artial compliance, or even
substantial compliance, may not be sufficient to correct or improve
the parent’s conduct or condition.” People in Interest of A.J., 143
P.3d 1143, 1151 (Colo. App. 2006).
12
¶ 29 When, as here, a dependency and neglect proceeding involves
a child under the age of six, a court cannot find that a treatment
plan has been successful if the parent exhibits the same problems
addressed in the treatment plan without adequate progress,
including improvement in the relationship with the child, and is
unable or unwilling to provide nurturing and safe parenting
sufficiently adequate to meet the child’s physical, emotional, and
mental health needs and conditions. § 19-3-604(1)(c)(I).
¶ 30 The juvenile court found that mother had not resolved the
protective concerns addressed in her treatment plan. In particular,
mother still did not recognize the danger that father posed to the
children. The caseworker testified that mother continued to
steadfastly refuse to consider the possibility that father had abused
the children despite the children’s severe injuries and their reports
of physical abuse. See People in Interest of C.T.S., 140 P.3d 332,
334 (Colo. App. 2006) (a parent who chooses to remain in a
relationship with someone who poses a threat to the child’s welfare
may be deemed unfit if such conduct prevents the parent from
providing adequate protection).
13
¶ 31 The court also found that mother did not have a healthy
relationship with the children. The child psychologist testified that
mother struggled to manage the children and they did not see her
as having authority. The caseworker testified that mother had not
progressed beyond therapeutic visits when she visited all four
children together, and still had supervised visitation when she
visited with the two boys or the two girls separately. The
caseworker was concerned that the children would regress if they
returned to mother’s care at that time.
¶ 32 Thus, the record supports the juvenile court’s finding that
mother’s treatment plan was not successful because she continued
to exhibit the same problems addressed in the treatment plan
without adequate improvement. Further, she was unable to provide
nurturing and safe parenting adequate to meet the children’s
physical, emotional, and mental health needs and conditions.
§ 19-3-604(1)(c)(I).
2. Mother Was Not Entitled to More Time
to Comply with Her Treatment Plan
¶ 33 Mother contends that the juvenile court erred when it
terminated her parental rights without affording her a reasonable
14
time to comply with her treatment plan. See People in Interest of
D.Y., 176 P.3d 874, 876 (Colo. App. 2007) (a parent must be given a
reasonable time to comply with an appropriate treatment plan
before parental rights can be terminated). We perceive no error.
¶ 34 Mother received services for approximately ten months after
the court approved her treatment plan. Cf. People in Interest of
T.S.B., 757 P.2d 1112, 1113 (Colo. App. 1988) (nine months from
adoption of treatment plan to termination was reasonable); People
in Interest of R.B.S., 717 P.2d 1004, 1006 (Colo. App. 1986) (same).
It was mother’s responsibility to use those services to get the help
she needed to comply with her treatment plan. People in Interest of
J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011). In this context, “[a]
reasonable time is not an indefinite time, and it must be determined
by considering the physical, mental, and emotional conditions and
needs of the child.” A.J., 143 P.3d at 1152. Courts may also
consider the parent’s social history, the chronic or long-term nature
of the parent’s conduct or condition, and whether any change has
occurred during the pendency of the dependency and neglect
proceeding. Id.
15
¶ 35 The psychologist noted that this was the second time the
family had been involved in a dependency and neglect proceeding.
He testified that episodes of such involvement were extremely rare
in the general population, so multiple episodes in one family
presented a notable risk factor. He opined that a parent’s history
and ability to respond to intervention over time were the best
predictors of the parent’s future behavior. He observed that,
despite considerable intervention, mother still did not recognize her
parenting deficits. Thus, the psychologist concluded that it would
be very difficult for mother to make substantive changes.
¶ 36 The caseworker testified that mother needed at least an
additional six months of therapy. In addition, the caseworker saw a
significant protection concern in mother’s ongoing, covert contact
with father despite having completed a treatment plan in a prior
dependency and neglect case that required her commitment to keep
father away from the children.
¶ 37 The juvenile court found that, although mother had made
genuine efforts, she did not understand the danger father posed to
the children or the effects of domestic violence on the children. The
court found that mother would need a lot more therapy before it
16
would be safe to return the children to her. The court noted that
the case was subject to the expedited permanency planning
guidelines because the children were under six years old. See
§§ 19-1-102(1.6), 19-1-123, 19-3-702(2.5), 19-3-703, C.R.S. 2018.
¶ 38 Thus, we conclude that the juvenile court did not err when it
terminated mother’s parental rights without affording her more time
to comply with her treatment plan.
C. Father Was Not Entitled to More Time
to Comply with His Treatment Plan
¶ 39 Father contends that the juvenile court erred when it
terminated his parental rights without affording him a reasonable
time to comply with his treatment plan. We perceive no error.
¶ 40 The determination of a reasonable period to comply with a
treatment plan is necessarily fact-specific, and what constitutes a
reasonable time may vary from case to case. D.Y., 176 P.3d at 876.
¶ 41 The Division argues that father failed to preserve this issue
because, though it was mentioned in father’s opening statement, it
was not addressed at all in his closing argument. As we discussed
above in relation to mother’s preservation, we again need not decide
17
whether father preserved this claim because even if we assume he
did, we discern no error.
¶ 42 Father asserts that (1) the only component of his treatment
plan with which he was not in compliance was visitation; (2) he
could not comply with the visitation provisions due to a criminal
protection order; (3) the GAL had fought his attempts to modify the
protection order; (4) a hearing on the protection order was set for
two weeks after the termination hearing; and (5) thus, it was
possible he would soon be able to begin visitation.
¶ 43 But evidence at the termination hearing contradicted father’s
assertion that visitation could begin almost immediately and was
the only barrier to successful completion of his treatment plan.
¶ 44 Father testified that he had no idea how each of the boys had
sustained injuries that included fractured bones. He did not believe
the children were afraid of him.
¶ 45 In contrast, the boys’ therapist testified that the boy who had
suffered two fractured femurs reported that father had squeezed his
leg and twisted it, which hurt a lot. He said that father hurt him
and locked him in his room. The therapist said both boys talked
about father spanking them, hurting them, and being mean. She
18
testified that both boys had post-traumatic stress disorder and were
hypervigilant and fearful.
¶ 46 The elder girl’s therapist testified that the girl described
witnessing ongoing domestic violence between her parents. The girl
reported that father hit her and her brothers, and that it was scary
when mother and father fought. The therapist had diagnosed the
girl with post-traumatic stress disorder.
¶ 47 The caseworker testified that the children’s therapists had
recommended against beginning visitation with father due to the
children’s continued disclosure of physical abuse and their fear of
him. She also testified that father had completed only four to six
sessions of dialectical behavioral therapy out of twenty-six. He had
made very little progress on his treatment plan. He had not taken
ownership or acceptance of his negative impact on the children
when they were in his care. The caseworker opined that it was not
in the children’s best interests to maintain a relationship with
father.
¶ 48 Thus, we conclude that the record supports the juvenile
court’s decision to terminate father’s parental rights without
affording him additional time to comply with his treatment plan.
19
D. Less Drastic Alternatives
¶ 49 Mother and father contend that the juvenile court erred when
it found that an allocation of parental responsibilities (APR) to the
maternal grandfather was not a viable less drastic alternative to
termination of their parental rights. We disagree.
¶ 50 A juvenile court must consider and eliminate less drastic
alternatives before entering an order of termination. D.B-J., 89 P.3d
at 531. In doing so, the court must give primary consideration to
the child’s physical, mental, and emotional conditions and needs.
D.P., 160 P.3d at 356; see also § 19-3-604(3). The court may
consider whether an ongoing relationship with the parent would
benefit the child. See People in Interest of L.M., 2018 COA 57M,
¶ 29; People in Interest of J.L.M., 143 P.3d 1125, 1127 (Colo. App.
2006). Long-term placement with a relative is not a viable less
drastic alternative if the child needs a stable, permanent home that
can be assured only by adoption. People in Interest of M.B., 70 P.3d
618, 627 (Colo. App. 2003).
¶ 51 We must accept the juvenile court’s determination that no less
drastic alternative to termination was available unless the finding is
20
so clearly erroneous as to find no support in the record. People in
Interest of C.Z., 2015 COA 87, ¶ 64.
¶ 52 The juvenile court found that an ongoing relationship with the
parents would not benefit the children. The children had no
relationship with father, whom they had not seen in over a year.
And there was no evidence of a healthy attachment bond between
mother and the children, who did not see mother as a caregiver or
someone who would keep them safe. The court found that the
children needed to know that they were in a permanent home and
their father could not get to them. Testimony by the caseworker
and the psychologist supports these findings.
¶ 53 Other evidence at the termination hearing supported the
juvenile court’s finding that mother would likely violate the
conditions of an APR by allowing father to have contact with the
children. The caseworker testified that mother had been diagnosed
with a dependent personality disorder, which led her to stay in
unhealthy relationships to avoid being alone. Mother testified that,
despite the protection order in place after the prior dependency and
neglect proceeding, she had habitually called father to help with the
21
boys when she became frustrated because they behaved better
when he was there.
¶ 54 The grandfather testified he did not trust mother to keep
father away from the children. He said protection orders had failed
to protect the children and that adoption would make sure that line
was never crossed again.
¶ 55 We therefore conclude that the record supports the juvenile
court’s finding that an APR to the grandfather was not a viable less
drastic alternative to termination of parental rights.
III. Conclusion
¶ 56 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE BERGER concur.
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