23CA1888 Peo in Interest of CA 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1888
Jefferson County District Court No. 23JV30060
Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Appellee,
In the Interest of C.A., B.Al.A., B.An.A., and A.A., Children,
and Concerning D.A.,
Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE DUNN
Yun and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Kimberly Sorrells, County Attorney, Cara J. Sweet, Assistant County Attorney,
Golden, Colorado, for Appellee
Samantha Metsger, Guardian Ad Litem, for C.A., B.Al.A., and B.An.A.
Katherine Karstetter, Counsel for Youth, Denver, Colorado, for A.A.
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
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¶ 1 In this dependency and neglect action, D.A. (mother) appeals
the judgment adjudicating A.A. (the youth) and her siblings, C.A.,
B.Al.A., and B.An.A. (the children), dependent and neglected.
Because the juvenile court did not follow the proper procedure in
adjudicating the youth and the children dependent and neglected,
we reverse and remand for further proceedings.
I. Background
¶ 2 In March 2023, the Jefferson County Division of Children,
Youth and Families filed a petition in dependency and neglect,
alleging that the youth and the children were impacted by
substance abuse and physical abuse in the home.
¶ 3 Mother denied the allegations and requested a jury trial. On
June 13, the morning of trial, the parties notified the juvenile court
that they had reached an agreement to continue the adjudicatory
hearing under section 19-3-505(5), C.R.S. 2023.
¶ 4 Though the parties had purportedly placed the terms of the
deferred-adjudication agreement in writing, the county attorney
explained to the juvenile court that because amendments were
required, the parties would later file a signed, written agreement. In
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lieu of submitting a contemporaneous signed agreement, the county
attorney read the agreement into the record.
¶ 5 As relevant here, the agreement provided that the youth and
the children would return to mother’s care and custody that day
with the understanding that mother would complete a substance
use evaluation and “take randomized, monitored urine analysis
three times per week.” But it further specified that if mother “were
to miss or test positive, then the children would be removed again
from the home.”
¶ 6 The parties also discussed the circumstances under which the
frequency of urine analysis (UA) might be reduced. As part of that
discussion, the county attorney stated that the “indicated UAs . . .
also might be a mouth swab. It’s occasionally requested.” This was
the only mention of mouth swabs during the June 13 hearing.
¶ 7 The juvenile court directed the guardian ad litem (GAL) to
circulate the amended written deferred-adjudication agreement and
then file the signed agreement. The GAL never filed a signed
agreement.
¶ 8 Before accepting the deferred adjudication, the juvenile court
advised mother of her rights but didn’t review the agreement’s
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terms. Mother then entered a no-fault admission that the youth
and the children were dependent and neglected. Finding her
admission to be knowing, voluntary, and intelligent, the court
determined that it would “hold that admission in advance for 120
days and adopt the terms and conditions as stated on the record
today for a deferred adjudication.”
¶ 9 Three days later, mother reported to a testing facility to
provide a UA. The testing facility informed mother that the Division
had requested a mouth swab. Though mother declined to provide a
swab, she completed a monitored UA while at the facility.
¶ 10 Because mother had refused the mouth swab, the Division
moved for temporary custody of the children and the youth. In its
motion, the Division asserted that mother had agreed to sobriety
testing with “either mouth swabs or urine analysis at the
caseworker’s request” and that “[t]he record was made at the time
regarding the importance of mouth swabs given some concern for
the validity and possible tampering with the urine analysis testing.”
At two later hearings, the caseworker similarly explained that the
Division’s tampering concerns were “made in open court” and “put
on the record on June 13.”
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¶ 11 The juvenile court adopted the Division’s proposed protective
custody order without modification. That order stated that mother
had agreed to sobriety monitoring “through either urinalysis or
mouth swabs at the Division’s discretion” and that mouth swabs
“were intentionally included in the court’s previous orders due to
concerns regarding possible tampering.”
¶ 12 The record of the June 13 hearing, however, contains only a
single, somewhat ambiguous reference to mouth swabs that “might
be” “occasionally requested.” Nowhere on the record did the county
attorney outline the Division’s tampering concerns, mention a
conversation with an expert regarding the need for mouth swabs, or
state that the parties had agreed that the Division had discretion to
require mother to provide a mouth swab instead of a UA.
¶ 13 Next, the GAL moved to revoke the deferred adjudication,
alleging that (1) “[a]s on the Court record,” mother “was to submit
sobriety monitoring as a [UA] or a mouth swab” at the Division’s
request; (2) mother was asked to submit a mouth swab three days
after reaching the agreement and refused; and (3) mother’s refusal
to submit a mouth swab “violated the terms and conditions of the
[d]eferred [a]djudication.” Mother objected to the motion and moved
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to amend the agreement’s terms, alleging that she “misunderstood
the statements regarding mouth swabs and believed that mouth
swabs would only be used in the event that she was unable to
provide a UA and not that it would be at the discretion of the
[Division].”
¶ 14 Over a month after the June 13 hearing, and after the GAL
moved to revoke the deferred adjudication, the Division submitted a
proposed written deferred-adjudication order. The proposed order
stated that “the specific terms of the deferred adjudication”
included, in pertinent part, that “the parties may request [mother]
to submit a urinary analysis or a mouth swab for sobriety
monitoring.” The juvenile court adopted the proposed order without
modification.
¶ 15 At the hearing on the motion to revoke the deferred
adjudication — and at the GAL’s specific request — the juvenile
court limited evidence to “[w]hether or not [m]other refused to do a
mouth swab” when she went for sobriety testing and “whether or
not that’s . . . a violation of the deferred that revokes it.” Neither
the Division nor the GAL presented any evidence about the status of
the youth or the children.
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¶ 16 The juvenile court granted the GAL’s motion, found mother’s
motion to amend moot, and adjudicated the youth and the children
dependent and neglected. The court later adopted a treatment plan
for mother.
II. Analysis
¶ 17 Mother contends that the juvenile court erred by revoking the
deferred adjudication when, in her view, the terms of the agreement
regarding the mouth swabs were unclear.
A. The Agreement
¶ 18 Mother and the Division dispute the terms of the deferred-
adjudication agreement and whether mother violated the
agreement’s terms. The problem for us, however, is that the record
from the June 13 hearing leaves unanswered what off-the-record
conversation occurred with respect to mouth swabs. And, as we’ve
explained, no signed deferred-adjudication agreement was filed.
¶ 19 True, the existence and terms of an oral contract are generally
fact questions. Tuscany Custom Homes, LLC v. Westover, 2020 COA
178, ¶ 52; see Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282,
291 n.12 (Colo. 1992). But here, the June 13 record doesn’t have
any information about the parties’ agreement as to mouth swabs.
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Given that, we are unable to defer to the juvenile court’s findings
regarding the agreement’s alleged terms as to mouth swabs. See
People in Interest of I.J.O., 2019 COA 151, ¶ 6 (we defer to the
juvenile court’s factual findings unless they are clearly erroneous
and unsupported by the record).
¶ 20 Without more, we are unable to resolve the parties’ factual
dispute about the terms of the deferred-adjudication agreement
365 P.2d 39, 41 (1961) (giving no consideration on appeal to an off-
the-record conference); cf. People v. Jowell, 199 P.3d 38, 45 (Colo.
App. 2008) (remarking that appellate courts “cannot conduct a
meaningful review on appeal” when the record doesn’t include the
necessary materials).
B. Adjudication
¶ 21 Even so, we are persuaded by the youth’s position — outlined
in her answer brief — that the juvenile court erred by failing to
follow the proper procedures before adjudicating her and the
children dependent and neglected.
¶ 22 We review de novo whether the juvenile court applied the
correct legal standard. I.J.O., ¶ 6.
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¶ 23 The Children’s Code authorizes the state to intervene in
familial relationships to protect a child from abuse, neglect, or
abandonment. People in Interest of N.G., 2012 COA 131, ¶ 18. To
invoke the juvenile court’s jurisdiction, the Division must file a
petition setting forth the facts establishing that the child is
dependent and neglected under section 19-3-102, C.R.S. 2023.
People in Interest of J.W. v. C.O., 2017 CO 105, ¶ 26.
¶ 24 An adjudicatory hearing is then scheduled at which the
Division carries the burden to establish, by a preponderance of the
evidence, that the child is dependent and neglected. See People in
Interest of M.H-K., 2018 COA 178, ¶ 14. A parent may demand a
jury trial at the adjudicatory stage. §§ 19-3-202(2), 19-3-505(1),
C.R.S. 2023. A parent may alternatively waive this right and admit
all or part of the petition, provided that the parent is “fully
advised . . . as to all rights and the possible consequences of a
finding that a child is dependent or neglected.” C.R.J.P. 4.2(a).
¶ 25 If the juvenile court finds that the petition’s allegations are
supported by a preponderance of the evidence, the court shall
sustain the petition and enter an order adjudicating the child
dependent or neglected. § 19-3-505(7)(a). If the allegations are not
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supported by a preponderance of the evidence, the court shall
dismiss the petition. § 19-3-505(6).
¶ 26 If the juvenile court finds the petition’s allegations are
supported, and with the parties’ consent, the court may “continue”
the adjudicatory hearing for up to six months. § 19-3-505(5)(a)-(b).
On review, it may continue the case for an additional six months,
“after which the petition shall either be dismissed or sustained.”
§ 19-3-505(5)(b). This is known as a “deferred adjudication.”
¶ 27 Though the statute doesn’t address what happens if a deferred
adjudication is revoked, see § 19-3-505(5)(a)-(b), a division of this
court concluded that continuation of the adjudicatory hearing
under section 19-3-505(5) “contemplates reconsidering the child’s
status before entering the adjudicatory order,” N.G., ¶ 23. The
“reconsideration should be accompanied by any additional findings
required to address new evidence and the child’s current status.”
Id.; see also K.D. v. People, 139 P.3d 695, 699 (Colo. 2006) (noting
that adjudication relates to the status of the child as of the date of
adjudication). Thus, a parent’s “limited admission” made within the
deferred adjudication does “not provide a sufficient foundation for a
formal adjudication because [the parent was not] afforded an
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opportunity to contest the adjudication.” People in Interest of T.W.,
2022 COA 88M, ¶ 38.
C. The Adjudication Order Didn’t Consider
the Youth and Children’s Current Status
¶ 28 The GAL’s motion to revoke the deferred adjudication alleged
that mother violated the deferred adjudication by refusing a mouth
swab. The motion asked only that the juvenile court revoke the
deferred adjudication. It didn’t request the court to adjudicate the
youth and the children dependent and neglected.
¶ 29 At the hearing on the motion, the parties presented no
evidence about the current status of the youth or the children. The
GAL reiterated that the only issue was whether mother declined to
take a mouth swab when she went for sobriety testing, and both the
GAL and county attorney objected to evidence that might have been
relevant to determining the youth and children’s status at the time
of the hearing.
¶ 30 Beyond that, the record contains no signed deferred-
adjudication agreement, and nothing in the June 13 transcript or
the juvenile court’s deferred adjudication order provides that the
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youth and the children would be adjudicated dependent and
neglected if mother didn’t comply with the agreement.
1
¶ 31 Absent an agreement to the contrary, the juvenile court must
reconsider the child’s status and make the appropriate findings
before adjudicating the child dependent and neglected. N.G., ¶ 23.
Because the juvenile court didn’t do so here, it erred. And this
error was not harmless because adjudicating the youth and the
children dependent and neglected without hearing evidence
regarding their status influenced the outcome of the case, impaired
the basic fairness of the trial, and affected the substantial rights of
both mother and the youth. See People in Interest of C.C., 2022
COA 81, ¶ 20; see also T.W., ¶ 35 (explaining that due process
“includes the right to test the merits of the petition at an
adjudicatory trial”).
¶ 32 Because we reverse the judgment adjudicating the youth and
the children dependent and neglected, we necessarily reverse the
1
Though the agreement included terms for removing the youth and
the children from the home, the procedure and effect of entering
temporary custody orders are different from those for adjudicating
children dependent and neglected. Compare §§ 19-3-403, -405,
C.R.S. 2023 (temporary protective custody), with § 19-3-505, C.R.S.
2023 (adjudicatory hearing).
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related dispositional order. See People in Interest of G.E.S., 2016
COA 183, ¶ 1.
III. Disposition and Instructions
¶ 33 We reverse the adjudicatory judgment and dispositional order
and remand the case to the juvenile court for further proceedings.
On remand, mother must be given the opportunity to assert her
right to an adjudicatory hearing. The court shall not rely on
mother’s previous no-fault admission.
¶ 34 If mother reasserts her right to an adjudicatory hearing, the
juvenile court must hold an evidentiary hearing to address the
current status of the youth and the children and make all required
findings before adjudicating the youth or the children dependent or
neglected.
JUDGE YUN and JUDGE BERNARD concur.
