23CA1980 Peo in Interest of LSM 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1980
City and County of Denver Juvenile Court No. 23JV30343
Honorable Pax Moultrie, Judge
The People of the State of Colorado,
Appellee,
In the Interest of L.S.M., a Child,
and Concerning J.A.R.,
Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE FOX
Grove and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Kerry C. Tipper, City Attorney, Amy J. Packer, Assistant City Attorney, Colby
Simpson, Assistant City Attorney Fellow, Denver, Colorado, for Appellee
Josi McCauley, Guardian ad Litem
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant
1
¶ 1 J.A.R. (father) appeals the judgment adjudicating L.S.M. (the
child) dependent and neglected. We affirm.
I. Background
¶ 2 Denver Human Services (the Department) received a referral
with information that the then-sixteen-month-old child was on life
support after ingesting a fentanyl pill. The Department filed a
petition in dependency and neglect, alleging that that the child
needed extensive medical intervention after ingesting fentanyl and
father was responsible for the child at the time of the incident.
¶ 3 The juvenile court granted temporary custody of the child with
the Department, for placement with the maternal grandmother.
¶ 4 Father denied the allegations in the petition. The juvenile
court conducted a bench trial five months after the Department
filed the petition. After the trial, the court found, by a
preponderance of the evidence, that the child had been in an
injurious environment and would continue to be in an injurious
environment without the court’s intervention. The court sustained
the petition and adjudicated the child dependent and neglected.
2
II. Adjudication
¶ 5 Father contends that the juvenile court erred by adjudicating
the child because “it was not shown that father had done anything
to harm the child” and, at the time of the adjudication, the child
was placed with the maternal grandmother with father’s support.
We discern no basis for reversal.
A. Standard of Review and Applicable Law
¶ 6 A child is dependent and neglected if, as pertinent here, “[t]he
child’s environment is injurious to his or her welfare.” § 19-3-
102(1)(c), C.R.S. 2023. An injurious environment occurs “when a
child is in a situation that is likely harmful to that child.” People in
Interest of J.G., 2016 CO 39, ¶ 26.
¶ 7 “The purpose of an adjudicatory hearing is to determine
whether the factual allegations in the dependency and neglect
petition are supported by a preponderance of the evidence, and
whether the status of the subject child or children warrants
intrusive protective or corrective state intervention into the familial
relationship.” People in Interest of A.M., 786 P.2d 476, 479 (Colo.
App. 1989).
3
¶ 8 Because a dependency and neglect proceeding is preventive as
well as remedial, an adjudication may be based not only on current
or past harm but also on prospective harm. People in Interest of
S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).
¶ 9 If the petition is sustained, the juvenile court may enter a
judgment of adjudication, which is not as to the parents but relates
only to the child’s status on the date of the adjudication. K.D. v.
People, 139 P.3d 695, 699 (Colo. 2006). At the adjudication stage,
as elsewhere during a dependency and neglect proceeding, the best
interest of the child is paramount. A.M. v. A.C., 2013 CO 16, ¶ 14.
¶ 10 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 therefrom, are within the discretion of the
juvenile court. K.D., 139 P.3d at 702.
¶ 11 In determining whether the evidence is sufficient to sustain an
adjudication, we review the record in the light most favorable to the
prevailing party, and we draw every inference fairly deducible from
the evidence in favor of the court’s decision. People in Interest of
D.L.R., 638 P.2d 39, 41 (Colo. 1981). We will not disturb a juvenile
court’s findings and conclusions if the record supports them, even
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though reasonable people might arrive at different conclusions
based on the same facts. K.D., 139 P.3d at 702.
B. Analysis
¶ 12 The juvenile court found, by a preponderance of the evidence,
that the child’s environment was injurious to her welfare. In
particular, the court found that there was no dispute that the child
(1) ingested fentanyl; (2) “had a significant injury” as a result; (3)
needed to be intubated after her heart stopped and she was not
breathing; (4) stayed at the pediatric intensive care unit for four or
five days; and (5) required inpatient acute rehabilitation and
ongoing support for regression in motor and speech skills. The
court found that, although it was unclear how the fentanyl came to
be in the home, “any environment where a child can obtain and
ingest fentanyl is an injurious one.”
¶ 13 The juvenile court clarified that it was “not finding that [father]
— that anybody did anything purposefully to hurt [the child].” The
court further found that there was no evidence of malicious intent
and that father cared deeply for the child.
¶ 14 The record supports these findings, and we will not disturb
them or the court’s legal conclusions.
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¶ 15 The hospital social worker testified that she met with father at
the child’s bedside. Father reported to her that he had left the child
in the care of an elderly roommate. Father reportedly expressed
doubt about his roommate’s ability to “keep up with” the child.
Father reportedly suggested to the hospital social worker that the
fentanyl might have been in the home because a former resident
was prescribed fentanyl as part of cancer treatment.
¶ 16 The intake caseworker testified that she observed father’s
interview with law enforcement the day of the incident. In that
interview, father stated that he had found fentanyl in the
community and brought it home to show his roommate before
flushing it down the toilet. The caseworker testified that she
believed the fentanyl may have somehow not successfully been
flushed.
¶ 17 Regardless of how the fentanyl came to be in the home, the
hospital social worker, intake caseworker, and ongoing caseworker
each independently testified that the child had ingested fentanyl
while father was responsible for her care, resulting in serious harm
to the child. The ongoing caseworker summarized, in response to
father’s questions, “somehow [the child] ingested fentanyl, that led
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to a series of very serious medical issues and complications for her.
She ingested that fentanyl while she was in [father’s] care.”
¶ 18 Because of pending criminal charges, father did not testify at
the adjudicatory hearing.
1
He presented no evidence to challenge
the information the Department presented.
¶ 19 Father now argues that there was insufficient evidence to
support the court’s judgment adjudicating the child dependent or
neglected because nothing was presented to demonstrate that he
had purposefully done anything to harm the child. Indeed, the
Department made clear in closing argument that it did “not believe
that [father] acted maliciously or with any intent necessarily to
harm his daughter.”
¶ 20 However, because the adjudication relates to the status of the
child, the Department did not need to demonstrate father’s intent to
show that the child was in an injurious environment. See K.D. 139
P.3d at 699; see also J.G., ¶ 34 (an evaluation of whether an
1
We take judicial notice that the Denver District Court later
accepted father’s guilty plea to child abuse resulting in serious
bodily injury. See § 18-6-401(1)(a), (7)(a)(IV), C.R.S. 2023; see also
People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004) (appellate court
may take judicial notice of the contents of court records in a related
case).
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injurious environment exists focuses on “the existence of an
injurious environment rather than who caused it”).
¶ 21 Finally, father contends that, even if the child was in an
injurious environment at the time of the incident, at the time of
adjudication she was placed “in a safe and stable placement with
the maternal grandmother which was supported by” father. True,
father did not object to the child being placed with the maternal
grandmother at the shelter hearing. However, it was the juvenile
court, and not father, that arranged for the legal placement of the
child with the maternal grandmother. And there was no evidence
that father would have allowed the child to stay in that placement
without the court’s intervention. In fact, the record suggests that
the child had been staying with the maternal grandmother, but
father asked that the child be returned to him the night before the
child ingested the fentanyl.
¶ 22 Thus, while an adjudication must be based on the
circumstances at the time of the adjudication, that does not mean
the court must determine “whether the child is presently receiving
proper care or whether his or her environment is presently
injurious.” People in Interest of S.X.M., 271 P.3d 1124, 1130 (Colo.
8
App. 2011). Here, the juvenile court properly considered “whether
the child ‘will lack’ proper parental care if returned to his or her
parent, and whether his or her environment ‘will be’ injurious to
him or her in that event” despite the child’s placement with the
maternal grandmother at the time of the adjudication. Id.
III. Disposition
¶ 23 The judgment is affirmed.
JUDGE GROVE and JUDGE SULLIVAN concur.
