People In the Interest of M.W., a Child ( 2022 )

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
July 7, 2022
2022COA72No. 21CA1768, People in Interest of M.W. — Juvenile Court —
Dependency and Neglect — Adjudication — Disposition —
Treatment Plan — SOMB Evaluation
As a matter of first impression, a division of the court of
appeals concludes that a juvenile court in a dependency and
neglect case may not require a parent to complete an SOMB
evaluation and treatment if the parent objects and has not been
convicted of a sex offense. The division also concludes that a
parent may appeal the content of an initial dispositional order
contemporaneously with the appeal of an order adjudicating the
child dependent or neglected.
COLORADO COURT OF APPEALS 2022COA72Court of Appeals No. 21CA1768
Mesa County District Court No. 21JV59
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Appellee,
In the Interest of M.W., a Child,
and Concerning D.W.,
Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE SCHUTZ
J. Jones and Welling, JJ., concur
Announced July 7, 2022
Todd M. Starr, County Attorney, Brian Conklin, Assistant County Attorney,
Grand Junction, Colorado, for Appellee
Leigh C. Taylor, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
¶1 Father, D.W., appeals the adjudication of his child, M.W., as
dependent or neglected. Father contends that the juvenile court
erred by prohibiting his out-of-state witnesses from testifying at the
adjudicatory hearing via Webex and by requiring him to complete a
psychosexual evaluation and comply with any resulting treatment
recommendations.
¶2 We conclude that the juvenile court did not abuse its
discretion by prohibiting the remote testimony. We therefore affirm
the adjudication of M.W. as dependent or neglected.
¶3 With regard to father’s challenge of his treatment plan, we
must first determine whether a parent may appeal an initial
dispositional order in a dependency and neglect proceeding prior to
issuance of an order terminating their parental rights. We conclude
that an initial dispositional order is a final and appealable order
when challenged contemporaneously with an appeal of the
adjudication of a child as dependent or neglected.
¶4 Addressing the merits of father’s challenge of the treatment
plan, we hold that the juvenile court erred by requiring father to
complete a Sex Offender Management Board (SOMB) evaluation and
1
comply with all resulting recommendations. Accordingly, we vacate
that portion of the treatment plan.
I. Factual Background and Procedural Setting
¶5 The Mesa County Department of Human Services (the
Department) initiated a dependency and neglect proceeding based
upon allegations that father had sexually assaulted his daughter,
M.W., that M.W. lacked proper parental care, and that M.W.’s
environment was injurious to her health and welfare.
¶6 Father contested the petition, and an adjudicatory hearing
was held before a jury. Father filed a motion requesting that he be
permitted to call two witnesses located in Oregon to testify via
Webex. The juvenile court denied the motion. The jury returned a
verdict finding that M.W. was in an injurious environment and
lacked proper parental care because of father’s actions or failure to
act. Based upon the jury’s verdict and M.W.’s mother’s prior
admission that the child was dependent or neglected, the court
entered an order adjudicating M.W. dependent or neglected as to
both parents.
¶7 Before the dispositional hearing, the Department filed a
proposed treatment plan. Among other things, the plan required
2
father to complete a “[p]sychosexual evaluation” to “[a]ssist in
determining risk for re-offense and need for sex offender therapy if
any.” Father’s success in meeting this treatment objective was to
be evaluated based on whether he “attended all sessions,” was
“open and honest during the evaluation,” completed “all paperwork
required by the evaluation,” and followed “all recommendations of
the completed psychosexual evaluation.”
¶8 Father filed a written objection to the requirement that he
complete a psychosexual evaluation and treatment under standards
set by the SOMB. He argued that such a requirement was not
reasonably calculated to render him a fit parent and violated his
constitutional rights against self-incrimination and to be free from
criminal sanctions absent a criminal conviction. After a contested
hearing, the juvenile court rejected father’s argument and adopted
the treatment plan as proposed because of past and ongoing
concerns regarding father’s inappropriate sexual conduct and the
emotional trauma M.W. was suffering because of her relationship
with father.
3
II. Webex Testimony
¶9 Father contends the juvenile court reversibly erred by
excluding remote testimony via Webex from two witnesses located
in Oregon. We disagree.
A. Additional Facts
¶ 10 Father advised the juvenile court that he intended to call two
witnesses — a relative and a caretaker for M.W. — who knew her
while she resided in Oregon. He expected these witnesses would
testify that M.W. neither referenced any prior abuse by her father in
Colorado nor made any allegation of abuse while both father and
daughter resided in Oregon. The motion also indicated that these
witnesses could testify concerning “family dynamics” but did not
specify the nature of such testimony.
¶ 11 The Department opposed the motion, arguing that it was
undisputed that M.W. did not begin to articulate the alleged abuse
until she returned to Colorado. The Department also noted that the
allegations of sexual abuse were secondary to its case, asserting
that whether the specific allegations of sexual abuse were true or
not, M.W. had expressed a history of trauma with both of her
parents, particularly her father, and no longer wished to live with
4
him. Thus, the Department argued the witnesses’ proffered
testimony had marginal, if any, relevance. The Department also
argued that to the extent the witnesses’ testimony was deemed
relevant, their credibility would be an important consideration for
the jury and that the jury’s assessment of these witnesses’
credibility would be hampered if the court authorized remote
testimony.
B. Standard of Review
¶ 12 We review a juvenile court’s decisions concerning the orderly
administration of a trial for an abuse of discretion. See Makeen v.
Hailey, 2015 COA 181, ¶ 38 (“[C]ourts have broad discretion to
manage trials, and [appellate courts] review these trial management
decisions for an abuse of discretion.”). The juvenile court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair, or if it is based on an erroneous understanding or
application of law. People in Interest of M.V., 2018 COA 163, ¶ 52.
C. Application
¶ 13 Father contends the juvenile court should have allowed the
remote testimony under the Chief Justice Order and local Chief
Judge Order issued to address best practices during the COVID-19
5
pandemic. The cited orders encourage, but do not mandate, that
trial courts authorize remote appearances during the pandemic.
For example, the Chief Justice Order provides that “with the
understanding that some judicial proceedings may require personal
appearances, wherever reasonably feasible, judicial proceedings,
regardless of their nature, should continue to be conducted
remotely.” Office of the Chief Justice, Updated Order Regarding
COVID-19 and Operation of Colorado State Courts (May 5, 2020)
(emphasis added), https://perma.cc/G6VG-XAYD. The Chief Judge
Order contained a similar directive.
¶ 14 Contrary to the Department’s argument, these orders do not
eliminate a juvenile court’s authority and obligation to consider the
particular circumstances of each case before permitting a witness to
testify remotely. C.R.C.P. 43 informs a court’s exercise of that
discretion. The rule provides various criteria to govern the juvenile
court’s consideration:
(A) Whether there is a statutory right to
absentee testimony.
(B) The cost savings to the parties of having
absentee testimony versus the cost of the
witness appearing in person.
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(C) The availability of appropriate equipment at
the court to permit the presentation of
absentee testimony.
(D) The availability of the witness to appear
personally in court.
(E) The relative importance of the issue or
issues for which the witness is offered to
testify.
(F) If credibility of the witness is an issue.
(G) Whether the case is to be tried to the court
or to a jury.
(H) Whether the presentation of absentee
testimony would inhibit the ability to cross
examine the witness.
(I) The efforts of the requesting parties to
obtain the presence of the witness.
C.R.C.P. 43(i)(3).
¶ 15 The juvenile court’s order focused primarily on factors (C) and
(E) through (H). The court observed that the adjudicatory trial was
to a jury and that credibility of the witnesses’ testimony would be a
key issue. The juvenile court found the “lack of outcry testimony”
was only marginally relevant. The court also noted that father had
failed to demonstrate that the testimony concerning family
dynamics was not available from alternative witnesses. Finally, the
court said that it had recently attempted to take Webex testimony
7
from remote witnesses and that “there were technology issues and
problems with the ability to hear.”
¶ 16 While the court did not expressly address the remaining
factors, neither party contended there was a statutory right to
present remote testimony. And father did not present evidence
related to his efforts to procure the personal attendance of the
witnesses at trial. Father’s counsel did state that the Office of
Respondent Parents’ Counsel would not pay the “three thousand to
four thousand dollars to fly two people in for ten minutes of
testimony.”
¶ 17 The decision whether to permit remote testimony is left to the
sound discretion of our trial courts for good reason. Trial judges
are uniquely situated to make the practical assessments envisioned
by Rule 43. They know the capabilities and limitations of their
audiovisual equipment, they are familiar with the central issues in
the case, and they are in a position to evaluate the role credibility
will play in assessing the weight of a given witness’s testimony.
Simply put, trial courts are better positioned than appellate courts
to make the discretionary determination whether to permit remote
testimony. We will not disturb the exercise of that discretion absent
8
a clear abuse. No such abuse occurred here; accordingly, we
conclude that the court did not err by denying father’s motion for
remote testimony.
III. Dispositional Appeals
¶ 18 Father next argues that the juvenile court erred by adopting a
treatment plan that requires him to complete an SOMB
psychosexual evaluation and comply with all recommendations
resulting from the evaluation. Although the parties have not
questioned our jurisdiction to address this issue, we discern a
degree of uncertainty in our case law regarding this threshold
question. Because subject matter jurisdiction is a prerequisite to
our authority to hear a case, it may be raised at any time, by any
party, or by the court on its own initiative. People in Interest of
E.E.A., 854 P.2d 1346, 1350 (Colo. App. 1992).
¶ 19 Generally, we have legal authority to review only final orders or
judgments. C.A.R. 1; see also People in Interest of S.C., 2020 COA
95, ¶ 6. Appeals in dependency and neglect cases are governed by
section 19-1-109, C.R.S. 2021. We review a question of statutory
interpretation de novo. People in Interest of H.T., 2019 COA 72,
¶¶ 12-13.
9
¶ 20 The Children’s Code classifies “[a]n order decreeing a child to
be neglected or dependent” — known as an adjudicatory order — as
a final appealable order. § 19-1-109(2)(c). An adjudicatory order
becomes final for purposes of appeal only “after the entry of the
disposition pursuant to section 19-3-508.” § 19-1-109(2)(c); see
also C.A.R 3.4(a).
¶ 21 At the dispositional hearing, unless immediate termination of
parental rights is contemplated, the court is ordinarily required to
adopt a treatment plan designed to address the issues that gave
rise to the filing of the petition. § 19-3-508(1)(e)(I), C.R.S. 2021; see
also § 19-3-507(1)(a), C.R.S. 2021 (“After making an order of
adjudication, the court shall hear evidence on the question of the
proper disposition best serving the interests of the child and the
public.”).
¶ 22 There is no question that an adjudicatory order is final and
appealable after the entry of an initial dispositional order. § 19-1-
109(2)(c); see also H.T., ¶¶ 22-23. But the question before us is
whether the initial dispositional order is also reviewable
contemporaneously with the appeal of the adjudicatory order.
10
¶ 23 Prior to the General Assembly’s enactment of section 19-1-
109(2)(c), a division of this court held that “following an
adjudication of dependency and neglect, the initial dispositional
order adopting a treatment plan constitutes a ‘decree of disposition’
and renders the adjudication and the initial dispositional order final
for purposes of appeal.” People in the Interest of C.L.S., 934 P.2d
851, 854 (Colo. App. 1996) (emphasis added). After C.L.S., the
General Assembly amended section 19-1-109 to include the present
language providing that an adjudicatory order is appealable after
the entry of a dispositional order. See Ch. 254, sec. 7, § 19-1-
109(2)(c), 1997 Colo. Sess. Laws 1433; see also H.T., ¶ 20
(discussing the statutory change following the decision in C.L.S.).
¶ 24 In H.T., a division of this court applied the current version of
section 19-1-109(2)(c) and held that “adjudicatory orders are final
and appealable but dispositional orders, by themselves, are not.”
H.T., ¶ 22 (emphasis added). In reaching this conclusion, the
division in H.T. clarified that
our holding is not in conflict with C.L.S. We
agree that a party has a right to appeal both
the adjudicatory order and the initial
dispositional order. This is because how the
merits are reached on an adjudicatory order
11
will also affect the merits of the dispositional
order. Our holding simply clarifies that an
initial dispositional order, by itself, is not a
final, appealable order.
Id. at ¶ 26.
¶ 25 We note that the language of section 19-1-109(2)(c) affords an
argument that only the adjudicatory order, but not the dispositional
order, is appealable: “An order decreeing a child to be neglected or
dependent shall be a final and appealable order after the entry of
the disposition . . . .” The statute does not expressly state that both
the adjudicatory and initial dispositional orders are appealable.
But the statute also does not expressly state that only the
adjudicatory order is appealable.
¶ 26 At the time the current language of section 19-1-109(2)(c) was
adopted, there was existing case law from our appellate courts
confirming that both an adjudicatory order and an initial
dispositional order may simultaneously be appealed after a
dispositional order is entered. See, e.g., C.L.S., 934 P.2d at 854.
We presume the General Assembly was mindful of that precedent
when it amended the statute. See Vaughan v. McMinn, 945 P.2d
404, 409 (Colo. 1997) (“The legislature is presumed to be aware of
12
the judicial precedent in an area of law when it legislates in that
area.”). And with that knowledge, the General Assembly elected not
to eliminate the historical right of a parent to appeal the initial
dispositional order along with the adjudicatory order. Given these
circumstances, we will not imply that the General Assembly
intended its silence to eliminate an existing right established by our
case law. See, e.g., People v. Swain, 959 P.2d 426, 430-31 (Colo.
1998) (“[T]he legislature is presumed, by virtue of its action in
amending a previously construed statute without changing the
portion that was construed, to have accepted and ratified the prior
judicial construction.”).
¶ 27 Consistent with these authorities, we hold that a parent may
appeal the content of the initial dispositional order, including
provisions of the treatment plan, simultaneously with an appeal of
an adjudicatory order.
¶ 28 This interpretation of section 19-1-109(2)(c) is consistent with
the core goals of the Children’s Code. The Code aims to “preserve
and strengthen family ties whenever possible.” § 19-1-102(1)(b),
C.R.S. 2021. In addition, the Code directs courts to achieve
permanency on behalf of children under the age of six “as
13
expeditiously as possible.” § 19-3-702(5)(c), C.R.S. 2021; § 19-1-
123, C.R.S. 2021. To this end, the Code also urges “courts to
proceed with all possible speed to a legal determination that will
serve the best interests of the child.” § 19-1-102(1)(c).
¶ 29 Our case law makes clear that a parent may appeal the
requirements of a dispositional order as part of the appeal of a
termination order. See, e.g., People in Interest of L.M., 2018 COA
57M, ¶¶ 37-52. The entry of an initial dispositional order follows an
adjudication. In contrast, a termination order may not follow until
a year or longer after a dependency and neglect case is filed. If a
parent successfully challenges a treatment plan requirement after a
termination order has been entered, the termination is set aside
and the placement and corresponding permanency for the child is
frequently undone. But if parents are afforded the opportunity to
appeal an initial dispositional order at the same time they appeal an
adjudicatory order, any defects in the treatment plan can be
addressed early in the case. Such an outcome benefits the parents,
but, most importantly, it also serves the ultimate interest of the
child in timely achieving permanency. These practical realities
provide additional justification for continuing to recognize a parent’s
14
right to appeal an initial dispositional order contemporaneously
with an adjudicatory order.1
¶ 30 Having determined that the initial dispositional order —
including the content of father’s treatment plan — presents an
appealable issue, we now address the merits of his argument.
IV. Propriety of the Treatment Plan
¶ 31 Father contends that the juvenile court erred by imposing,
over his objection, a criminal requirement — that he submit to a
psychosexual evaluation and comply with all resulting
recommendations based on guidelines developed by the SOMB — in
the absence of him having been convicted of a sex offense. We
agree.
A. Standard of Review
¶ 32 “The trial court has discretion to formulate a treatment plan
reasonably calculated to render the parent fit to provide adequate
parenting to the child within a reasonable time that relates to the
1 Several other states allow appeals of dispositional orders in
dependency and neglect proceedings. See Lindsey M. v. Ariz. Dep’t
of Econ. Sec., 127 P.3d 59, 61 (Ariz. Ct. App. 2006); Ark. R. App.
P.-Civ. 2(c)(3); In re Daniel K., 71 Cal. Rptr. 2d 764 (Ct. App. 1998).
15
child’s needs.” C.L.S., 934 P.2d at 855; see also § 19-1-103(12),
C.R.S. 2021 (defining an “appropriate treatment plan”). An abuse of
discretion occurs when the juvenile court’s actions are manifestly
arbitrary, unreasonable, or unfair, or based on an erroneous
understanding or application of the law. M.V., ¶ 52. We review de
novo a question of law, such as the propriety of applying SOMB’s
standards to a civil proceeding. People v. Williamson, 2021 COA 77,
¶ 11.
B. SOMB Standards
¶ 33 The General Assembly established the SOMB in 1992 to
“protect the public and to work toward the elimination of sexual
offenses,” finding it “necessary to comprehensively evaluate,
identify, treat, manage, and monitor adult sex offenders who are
subject to the supervision of the criminal justice system.” § 16-11.7-
101(1), C.R.S. 2021 (emphasis added). The SOMB is responsible for
establishing “evidence-based standards for the evaluation,
identification, treatment, management, and monitoring of adult sex
offenders . . . who have committed sexual offenses at each stage of
the criminal . . . justice system to prevent offenders from
16
reoffending and enhance the protection of victims and potential
victims.” § 16-11.7-101(2).
¶ 34 The term “sex offender” applies only to those defendants who
have been convicted of one or more of the offenses enumerated in
section 18-1.3-1003(5), C.R.S. 2021. In recent precedent, the
supreme court has coined the term “sex-related offenses” to
describe those categories of criminal offenses that are not included
within the statutorily enumerated offenses labeled as a “sex
offense,” but that nevertheless are predicated upon conduct
involving criminal sexual behavior. See, e.g., People v. Manaois,
2021 CO 49, ¶ 46; People v. Keen, 2021 CO 50, ¶ 3.
¶ 35 In accordance with its statutory mandate, the SOMB adopted
the first Standards and Guidelines for the Assessment, Evaluation,
Treatment and Behavioral Monitoring of Adult Sex Offenders in
1996. Over the years, the Standards have been modified and
updated to reflect various developments in the treatment of sex
offenders as well as legal developments occasioned by legislative
amendments and case law interpreting the underlying statutes and
resulting regulations. The Standards were most recently updated in
April of 2022. Sex Offender Management Board, Standards and
17
Guidelines for the Assessment, Evaluation, Treatment and
Behavioral Monitoring of Adult Sex Offenders,
https://perma.cc/V4N9-A65Y (SOMB Standards).
¶ 36 The SOMB Standards establish procedures that must be used
by those who are licensed by SOMB when evaluating and treating
sex offenders. The initial evaluation that a convicted sex offender
must complete is typically referred to as an offense specific
psychosexual evaluation or simply a psychosexual evaluation.
¶ 37 The requirements of SOMB evaluations and resulting
treatment are extraordinary. The sex offense specific psychosexual
evaluation is intended to identify the most appropriate types of
treatment for the offender and to assess the levels of risk and
specific risk factors that require attention in treatment and
supervision. SOMB Standards § 2.000. The evaluation is
performed using various objective and subjective modalities. Based
on the initial evaluation, a risk assessment and treatment plan are
developed for the sex offender. Offenders are assigned a
Community Supervision Team (CST), which includes, at a
minimum, the offender’s supervising officer, the treatment provider,
the evaluator, the victim representative, and the polygraph
18
examiner. The CST professionals collaborate to make decisions
about the offender. Id. at Definitions. The SOMB Standards
contemplate that after the initial psychosexual evaluation, the sex
offender will be required to complete sex offense specific treatment.
C. The Effect of SOMB Standards on an Offender’s Right to
Remain Silent
¶ 38 The SOMB Standards contemplate that an offender may
“refuse to answer incriminating sexual offense history questions.”
Id. § 6.012(F). In such circumstances, the SOMB Standards
provide that, “[w]hile treatment providers shall not unsuccessfully
discharge an offender from treatment solely for refusing to answer
incriminating questions, a treatment provider may opt to discharge
a client from treatment or not accept a client into treatment if the
provider determines a factor(s) exists that compromises the
therapeutic process.” Id. § 3.160(B)(3)(a)(i). Thus, while a sex
offender’s exercise of the right to remain silent may not serve as the
sole basis for terminating an offender’s therapy, it may be
considered as part of the calculus in deciding whether therapy
should be discontinued.
19
D. SOMB Standards on Offenders’ Contact with Children
¶ 39 The Standards severely restrict the contact a sex offender may
have with anyone under the age of eighteen, including members of
the offender’s own family. As a starting point, the SOMB Standards
provide that all sex offenders will have no contact with anyone
under the age of eighteen. The one exception is an implied
acknowledgment that an offender may have contact with their own
children if a court (or the parole board, as applicable) elects not to
prohibit such contact. Id. § 5.720(A) (five pathways exist for
potential contact with minor children, one of which occurs when the
court or parole board “has not prohibited contact with an offender’s
own non-victim minor child(ren)”).
¶ 40 The SOMB Standards contemplate that an offender may have
“incidental contact” with children, but such permissible contact is
narrowly defined. See id. § 5.715(C) (defining incidental contact).
In all other circumstances, the guidelines prohibit any “non-
incidental” contact with any children unless and until approved by
the CST. Id. In contrast, the SOMB Standards’ definition of
purposeful contact includes such things as face-to-face interaction,
any verbal or non-verbal exchange, and being in the same residence
20
or vehicle as a child. Id. § 5.715(G)(1)-(4), (7). These restrictions
apply to all sex offenders, and to all non-incidental contact with all
children, whether family or not. See, e.g., id. § 5.751 (no offender
may have any non-incidental contact with their grandchildren
unless they meet specific criteria, and even then, such contact must
start out as supervised).
¶ 41 Over the years, there has been substantial litigation in
Colorado and elsewhere concerning the propriety of using these
types of restrictions to manage those who have been convicted of
sex offenses. But the issue presented here is not whether these
types of restrictions may be imposed to restrict the conduct of a
criminal defendant who has been convicted of a sex offense.
Rather, we are faced with the question whether these types of
restrictions may be included in a treatment plan as a condition to
reunification of a parent with their child when the parent has not
agreed to the treatment2 and has not been convicted of a sexual
2 Because we are not required in this case to resolve the question of
whether SOMB assessments and treatment may be included in a
treatment plan with the consent of a parent, we express no opinion
on that issue.
21
offense. To answer that question we must consider the legitimate
purposes and limitations of a treatment plan.
E. Purposes and Parameters of a Treatment Plan
¶ 42 Upon an adjudication of a child as dependent or neglected, the
juvenile court must fashion a treatment plan designed to “preserve
the parent-child legal relationship by assisting the parent in
overcoming the problems that required intervention into the family.”
People in Interest of K.B., 2016 COA 21, ¶ 11. “In determining
whether a treatment plan is appropriate, the court must consider
whether the plan’s objectives adequately address the safety
concerns identified during the assessment of the family.” Id. at
¶ 14. “Thus, the appropriateness of such a plan can only be
measured by examining the likelihood of its success in
accomplishing this purpose.” People in Interest of B.J.D., 626 P.2d
727, 730 (Colo. App. 1981).
¶ 43 Because the purpose of a treatment plan is to address the
material issues that are barriers to reunifying children with their
parents, it is appropriate for a treatment plan to address those
material issues even if the order of adjudication was not necessarily
predicated upon the particular problem the treatment plan seeks to
22
address. See, e.g., C.L.S., 934 P.2d at 856 (“[T]he specific ground
on which the jury [finds] the child to be dependent and neglected
[does] not restrict the juvenile court’s discretion to formulate a
treatment plan in the best interests of the child.”). So, for example,
if the parents were experiencing discord in their relationship that
was interfering with their ability to appropriately parent their
children, the court could order them to complete couples’ therapy
even if their discord did not form the factual basis of the
adjudicatory order.
¶ 44 On the other hand, our case law also makes clear that
dependency and neglect proceedings are not criminal in nature and
are not intended to punish parents, as our supreme court
crystalized decades ago: “In a hearing to determine if a child is
neglected or dependent, there is no fine or confinement to a state
institution nor any other criminal sanctions. These are not criminal
proceedings.” Robinson v. People in Interest of Zollinger, 173 Colo.
113, 118, 476 P.2d 262, 265 (1970); see also People in Interest of
S.N., 2014 CO 64, ¶ 9 (“[A]n adjudication is not meant to punish the
parents.”).
23
¶ 45 With these concepts in mind, we address father’s argument
that the court improperly required him to complete a psychosexual
evaluation and comply with all resulting recommendations.
F. The Propriety of Requiring a Parent to Complete a
Psychosexual Evaluation and Treatment Absent a Conviction
¶ 46 Although father has not been convicted of a sex offense,
serious allegations of sexual impropriety have been made against
him over the years, including the allegations made by M.W. and at
least one other juvenile. Although these allegations have not
resulted in a conviction, the juvenile court found them credible and
was understandably troubled by them.
¶ 47 In deciding to require father to complete a sex offender
evaluation and comply with the resulting recommendations and
treatment, the court said, “I cannot, in this case, particularly, with
the evidence that was presented during the trial . . . not consider or
somehow decide not to address the main issue, certainly that was
discussed in the allegations that [M.W.] has made.” Based on these
concerns, the court found “that it is appropriate to include a
psychosexual evaluation in this case, and it will be ordered.” For
these same reasons, the court denied father’s motion to preclude
24
the court from subjecting him to a psychosexual evaluation and
treatment under the SOMB Standards.
¶ 48 In entering these orders, the juvenile court did not address
any specific SOMB Standards or the constitutional issues raised by
father. Instead, it broadly authorized a psychosexual evaluation
and any recommended treatment using the SOMB Standards.
¶ 49 In People in Interest of L.M., a division of this court addressed
whether it was appropriate to require a parent who had been
accused of committing a sexual offense, but who had not been
criminally convicted, to submit to SOMB treatment. 2018 COA
57M. The father in L.M. was accused of sexually assaulting one of
his two children. Id. at ¶ 2. At an adjudicatory hearing, the
juvenile court found by a preponderance of the evidence that the
father had committed the sexual assault and therefore adjudicated
the children dependent or neglected as to him. Id. The juvenile
court adopted a treatment plan requiring the father to “participate
in a psychosexual evaluation . . . and follow any recommended
offense-specific treatment.” Id. at ¶ 10.
¶ 50 The father was also charged criminally based on the sex
assault allegations, but he was acquitted of those charges at trial.
25
Id. at ¶ 3. In a subsequent termination hearing, the juvenile court
concluded that it could not find by clear and convincing evidence
that the father had assaulted the child. Id. at ¶ 33. Nonetheless,
the juvenile court entered an order terminating his parental rights,
finding that the children continued to experience emotional trauma
incident to the allegations and that termination of the father’s
parental rights was in the children’s best interests. Id. at ¶ 36.
¶ 51 In assessing the juvenile court’s decision to terminate the
father’s parental rights, the division considered the propriety of
requiring him to comply with SOMB Standards as part of his
treatment plan. As a starting point, the division emphasized that “a
key provision of the SOMB procedures is that they are designed for
sex offenders” who have been convicted of a criminal offense. Id. at
¶¶ 41-42 (citing § 16-11.7-102(2)(a), C.R.S. 2017). Consistent with
the statutory predicate of criminal conviction, the division noted
that SOMB evaluations and treatment protocols are built around
the premise of guilt.
¶ 52 The division also noted that SOMB treatment protocols create
significant dilemmas for parents who wish to exercise their
constitutional right to remain silent with respect to matters that
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may incriminate them, or who affirmatively deny the allegations of
sexual abuse.
[T]he record is replete with evidence that no
progress was made toward reunification
because father had not admitted or
acknowledged the abuse. And, father was
adamant that he was not going to admit
molesting or abusing the children . . . .
This component of SOMB treatment — the
requirement that an offender admit to abusing
a child before having contact with the child —
placed father in a no-win situation and was
not reasonably calculated to render him a fit
parent who could meet the children’s needs.
On the one hand, if, as here, father failed to
admit that he had abused L.M., this led to
termination on the basis that father had not
complied with the treatment plan and was
unable to have contact with the children or
work toward reunification with them. On the
other hand, if father had acknowledged that he
had sexually abused L.M., this would also be
evidence of his unfitness . . . .
Id. at ¶¶ 45-46. Given the inherent tensions created by the
application of SOMB Standards to a parent who has been accused,
but not convicted, of committing a sexual offense, the division held
that father’s failure to address the allegations of abuse could not
support termination of his parental rights. Id. at ¶ 50.
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¶ 53 As noted in L.M., the SOMB Standards place a parent in a
dilemma. If they admit sexually abusing their child, they forfeit
their constitutional right to remain silent, potentially face criminal
sanctions, and will likely have their parental rights terminated.
§ 19-3-604(1)(b)(VI), (2)(b), C.R.S. 2021 (a parent is unfit if they
have sexually abused their children, and such conduct may form
the basis of an order terminating parental rights). If they do not
admit the alleged abuse, they will not successfully complete their
treatment plan and therefore face termination of their parental
rights.
¶ 54 In addition, as noted in L.M., ¶¶ 43-46, a psychosexual
evaluation and resulting treatment protocols are not designed to
render a parent fit; instead, they are crafted to treat individuals
convicted of sex-related offenses. Thus, the use of a psychosexual
evaluation and treatment under SOMB Standards does not fulfil the
basic and essential purpose of the treatment plan — to effectively
address the issues that gave rise to the adjudication so that parents
and their children can be safely reunited.
¶ 55 Finally, the very structure of SOMB treatment is inconsistent
with the core purposes of the Children’s Code. One of the central
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objectives of a dependency and neglect action is to safely reunify
children with their parents. The central purpose of the SOMB
Standards is to protect the public generally, irrespective of the
burdens placed on sex offenders or the obstacles that SOMB
treatment poses to offenders’ relationships with their children.
Moreover, the SOMB Standards contemplate a CST, which includes
a probation or parole officer, to evaluate an offender and limit their
contact with children. In contrast, in a dependency and neglect
action the court is in control of whether and when a parent sees
their child. This is not a role that a court can delegate to a CST or
any other person or entity.
¶ 56 For these reasons, we hold that a parent may not be required,
over their objection, to complete an SOMB psychosexual evaluation
or SOMB therapy as a condition of their treatment plan if the
parent has not been convicted of a qualifying sexual offense.
¶ 57 In reaching this conclusion, we acknowledge that in L.M. the
division stated “we do not intend to suggest that a court is
necessarily prohibited from requiring a parent to participate in
psycho-sexual or offense specific evaluations and treatment absent
a criminal conviction. Just the opposite, a juvenile court may
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require such treatment when it is warranted by the record before
the court.” L.M., ¶ 51. In the first instance, we note that the
division cited C.L.S. in support of this conclusion. But C.L.S. did
not address the propriety of requiring an unconvicted parent to
complete sex offender treatment under SOMB protocols. See C.L.S.,
934 P.2d at 855. Instead, the juvenile court in C.L.S. had simply
required that the father complete an evaluation “focusing on sexual
aggression and that any recommendations pursuant to that
evaluation be followed as part of the treatment plan.” Id. at 856.
Thus, the court in C.L.S. did not order sex offender treatment under
the SOMB.3
¶ 58 In addition, we note that, after making the previously quoted
statement concerning “offense specific evaluations and treatment,”
the division in L.M. concluded,
when as here, a parent is acquitted of the
criminal charges related to sexual abuse of his
or her child and the court cannot find that the
abuse occurred by clear and convincing
evidence, the parent’s failure to admit to the
sexual abuse as part of the treatment protocol
3 Indeed, the SOMB Standards were first formulated in 1996, after
the juvenile court in C.L.S. adopted its requirement that the father
complete an evaluation for sexual aggression.
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is insufficient to support termination of
parental rights.
L.M., ¶ 52. Thus, we do not read L.M. to hold that an unconvicted
parent may properly be subjected to SOMB sex offender treatment
as part of the treatment plan. And to the extent that L.M. can be
interpreted as supporting such a conclusion, we respectfully
disagree for the reasons previously articulated. See, e.g., Chavez v.
Chavez, 2020 COA 70, ¶ 13 (a division of the court of appeals is not
bound by the decision of another division).
¶ 59 We also acknowledge, however, that an appropriate treatment
plan can — indeed, often should — include psychological
counseling focused on the problematic behavior of a parent. In
cases involving allegations of sexual misconduct or abuse by a
parent, such treatment can include evaluation of a parent’s sexual
proclivities if they interfere with the parent’s ability to safely parent
their children. To be clear, we do not hold today that a juvenile
court may not require a respondent parent to participate in an
evaluation and obtain treatment or counseling for sexual behavior
that poses a risk to the parent’s children. However, in a situation
like father’s, where the parent has not been convicted of a
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qualifying sex offense and objects to participating in SOMB
treatment, the juvenile court may not require a parent to comply
with an SOMB evaluation or treatment pursuant to the SOMB
Standards.
¶ 60 As previously noted, the juvenile court made findings of fact
grounded in the record to support its conclusion that father needs
appropriate psychological counseling and treatment to address his
allegedly deviant sexual behavior. On remand, the juvenile court is
free to fashion an appropriate order, with the input of additional
expert testimony, if necessary, to address and remediate any such
deviancies, provided it does not order an SOMB evaluation or
treatment.
V. Conclusion
¶ 61 For the above reasons, we affirm the juvenile court’s
adjudicatory order, but we vacate the SOMB evaluation and
compliance portion of the treatment plan and remand for
modification of the treatment plan consistent with this opinion.
JUDGE J. JONES and JUDGE WELLING concur.
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