Peo in Interest of LLM ( 2024 )

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<div>24CA0475 Peo in Interest of LLM 10-03-2024 </div>
<div> </div>
<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 24CA0475 </div>
<div>Douglas County District Court No. 23JV35 </div>
<div>Honorable <span>Randall C. Arp</span>, Judge </div>
<div> </div>
<div> </div>
<div>The People of the State of Colorado, </div>
<div> </div>
<div>Appellee, </div>
<div> </div>
<div>In the Interest of L.L.M., a Child, </div>
<div> </div>
<div>and Concerning A.M., </div>
<div> </div>
<div>Appellant. </div>
<div> </div>
<div> </div>
<div> </div>
<div>JUDGMENT AFFIRMED </div>
<div> </div>
<div>Division VI </div>
<div>Opinion by JUDGE MOULTRIE </div>
<div>Welling <span>and Brown, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 3, 2024 </div>
<div> </div>
<div> </div>
<div>Jeffrey Garcia, County Attorney, <span>Kathryn Cherry<span>, Assistant County Attorney, </span></span>
</div>
<div>Castle Rock, Colorado, for Appellee </div>
<div> </div>
<div>Nicole Savino, Counsel for Youth, Castle Rock, Colorado </div>
<div> </div>
<div>Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant </div>
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<div>1 </div>
<div>¶ 1<span> </span><span>In this dependency and neglect action, A.M. (mother) appeals </span>
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<div>the judgment adjudicating L.L.M. (the youth) dependent and </div>
<div>neglected. We affirm. </div>
<div>I.<span> <span>Background </span></span>
</div>
<div>¶ 2<span> </span><span>The Douglas County Department of Human Services (the </span>
</div>
<div>Department) received a referral about the then-thirteen-year-old </div>
<div>youth based on her disclosure of sexual assault <span>by mother’s </span>
</div>
<div>boyfriend.<span> <span>The Department created two safety plans with mother.</span> </span>
</div>
<div>The Department then filed a petition in dependency and neglect,<span></span> </div>
<div>alleging that mother had allowed the boyfriend into the home in </div>
<div>violation of the Department’s <span>second safety plan.<span> </span>Mother denied the </span>
</div>
<div>allegations in the petition and requested a jury trial. </div>
<div>¶ 3<span> </span><span>The juvenile court conducted a jury trial eight months after </span>
</div>
<div>the Department filed the petition. At the trial, the Department<span></span> </div>
<div>alleged, and the jury found, that (1) the youth lacked proper </div>
<div>parental care as a result of mother’s acts or failures to act and </div>
<div>(2) <span>the youth’s environment </span>was injurious to her welfare. </div>
<div>¶ 4<span> <span>Based on the jury’s verdicts, the juvenile court adjudicated the </span></span>
</div>
<div>youth dependent and neglected.<span> </span>The court then adopted a </div>
<div>treatment plan for mother. </div>
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<div>2 </div>
<div>II.<span> <span>Jury Instructions </span></span>
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<div>¶ 5<span> </span><span>Mother contends that the juvenile court erred by declining to </span>
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<div>give the jury two of her tendered jury instructions.<span> </span>The first, which </div>
<div>the court adopted in part, provided definitions for “injurio<span></span>us </div>
<div>environment.<span>”</span><span> <span>The second was based on the presumption from </span></span>
</div>
<div>Troxel v. Granville<span>, 530 U.S. 57 (2000).<span> </span>We discern no error. </span>
</div>
<div>A.<span> <span>Standard of Review </span></span>
</div>
<div>¶ 6<span> </span><span>A juvenile court must correctly instruct the jury on the law </span>
</div>
<div>applicable to a case, and if the juvenile court meets this <span></span>obligation, </div>
<div>it has broad discretion over the style and form of instru<span></span>ctions. </div>
<div>People in Interest of J.G.<span>, 2016 CO 39, ¶ 33. We review jury </span>
</div>
<div>instructions de novo to determine whether, taken as a whole, <span></span>they </div>
<div>accurately informed the jury of the applicable law. <span>Id. </span>However, we </div>
<div>review a court’s decision to give or not give a particular inst<span></span>ruction </div>
<div>for an abuse of discretion. <span>Id. </span>A ruling on jury instructions is an </div>
<div>abuse of discretion only when the ruling results in a misstat<span></span>ement </div>
<div>of the law or is manifestly arbitrary, unreasonable, or unf<span></span>air. <span>Id.</span> </div>
<div>B.<span> <span>The Injurious Environment Instruction </span></span>
</div>
<div>¶ 7<span> <span>Mother argued that “injurious environment” should be defi<span></span>ned </span></span>
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<div>for the jury.<span> <span>She</span></span> proposed an instruction stating: </div>
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<div>3 </div>
<div>Is there an existence or circumstance that </div>
<div>creates an injurious environment for the </div>
<div>child’s welfare? An injurious environment </div>
<div>exists when the child is in a situation that is </div>
<div>likely harmful. Injurious means adverse, bad </div>
<div>or damaging. Environment means the </div>
<div>circumstances or conditions by which one is </div>
<div>surrounded. A parent does not have to be at </div>
<div>fault to determine an injurious environment. </div>
<div>¶ 8<span> </span><span>The Department objected <span>to part of mother’s proposed </span></span>
</div>
<div>instruction<span>. <span>It</span><span> argued that the last sentence was duplicative </span></span>
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<div>because “[a] parent does not have to be at fault to determin<span></span>e an </div>
<div>injurious environment”<span> appeared in a separate instruction that t<span></span>he </span>
</div>
<div>parties had agreed to give.<span> </span>Mother cited to Merriam-Webster.com </div>
<div>for the <span>portions of her proposed instruction that defined “inj<span></span>urious” </span>
</div>
<div>and <span>“environment.”</span><span> </span>The Department argued that definitions from a </div>
<div>nonlegal dictionary should not be included in jury instructions. </div>
<div>¶ 9<span> </span><span>But the Department agreed that <span>a </span><span>portion of mother’s </span></span>
</div>
<div>proposed instruction <span>—</span> <span>“</span>[a]n injurious environment exists when t<span></span>he </div>
<div>child is in a situation that is likely harmful”<span> </span><span>—</span><span> was taken from case </span>
</div>
<div>law and thus was a correct statement of the law.<span> </span>No party <span></span>objected </div>
<div>to that portion, and <span>it</span> was included in the instructions given to the </div>
<div>jury. </div>
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<div>4 </div>
<div>¶ 10<span> </span><span>Mother did not thereafter object <span>to the juvenile court’s decision </span></span>
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<div>to instruct the jury on the definition of an injurious environm<span></span>ent </div>
<div>using only a portion of her proposed instruction.<span> </span>Nor does she now </div>
<div>contend that the <span>court’s </span>instruction misstated the law. <span>See id.</span> <span></span>And </div>
<div>because the instruction accurately stated the law, <span>see People in </span>
</div>
<div>Interest of J.G.<span>, ¶ 33, we discern no abuse of discretion.</span> </div>
<div>¶ 11<span> </span><span>In any event<span>, </span>the jury returned a verdict that the youth lacked </span>
</div>
<div>proper parental care, and mother does not challenge this f<span></span>inding.<span> </span>
</div>
<div>See People in Interest of S.M-<span>L.</span><span>, 2016 COA 173, ¶ 29, <span>a<span></span>ff’d on other </span></span>
</div>
<div>grounds sub nom. People in Interest of R.S. v. G.S.<span>, 2018 CO 31 </span>
</div>
<div>(noting that section 19-3-102, C.R.S. 2024, only requires proof of </div>
<div>one condition for an adjudication). </div>
<div>C.<span> <span>The <span>Troxel </span>Instruction </span></span>
</div>
<div>¶ 12<span> </span><span>Mother also proposed an instruction stating that the jury </span>
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<div>“<span>must presume all of </span><span>[mother’s]<span> decisions for the Child are in t<span></span>he </span></span>
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<div>Child’s best interest unless the petitioner presents evidence t<span></span>o </div>
<div>overcome that presumption by a preponderance of the evidence.<span>”</span><span> </span>
</div>
<div>Mother cited <span>Troxel </span><span>and</span><span> M.H-<span>K.</span></span> as support for this proposed </div>
<div>instruction. </div>
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<div>5 </div>
<div>¶ 13<span> </span><span>Mother argued that including the instruction was necessary t<span></span>o </span>
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<div>prevent <span>“burden<span>-</span><span>shifting onto mother.”</span></span><span> </span>The Department and youth </div>
<div>objected. The youth argued that the instruction would be c<span></span>onfusing </div>
<div>to the jury.<span> </span>The Department argued that the other instructions </div>
<div>amply established that the Department alone carried the burden of </div>
<div>proof and mother’s instruction was “at best, cumulative, and <span></span>at </div>
<div>wors[t]<span>, misleading.”<span> </span></span>
</div>
<div>¶ 14<span> </span><span>The juvenile court expressed concern that the proposed </span>
</div>
<div>instruction did not “state[] anything different from what’s alrea<span></span>dy </div>
<div>being stated in all the other jury instructions taken together.”<span> <span>The </span></span>
</div>
<div>c<span>ourt found that the proposed instruction was “cumulative [an<span></span>d] </span>
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<div>certainly confusing” and <span>declined to include it. </span>
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<div>¶ 15<span> </span><span>T<span>o address mother’s concern about burden shifting,<span></span> <span>the </span></span></span>
</div>
<div>juvenile court instructed the jury multiple times that the </div>
<div>Department had the burden to prove the allegations.<span> </span>In addition, </div>
<div>before deliberation, the jury received instructions (1) defining </div>
<div>“burden of proof<span>;</span>” (2) stating “the <span>[Department]</span><span>” </span><span>had the burden <span></span>of </span>
</div>
<div>proof with respect to all <span>of</span> its bases for asserting the <span></span>youth was </div>
<div>dependent or neglected<span>; </span>and (3) parsing <span>what “the State” did and </span>
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<div>6 </div>
<div>did not need to prove for the jury to find that the <span></span>youth was in an </div>
<div>injurious environment. </div>
<div>¶ 16<span> </span><span>Given this record, <span>mother’s proposed instruction was </span></span>
</div>
<div>unnecessary to prevent burden-shifting.<span> </span><span>People v. Asberry</span>,<span></span> 172 </div>
<div>P.3d 927, 933 (Colo. App. 2007) (“There is no revers<span></span>ible error if the </div>
<div>jury instructions, read as a whole, adequately inform the <span></span>jury of the </div>
<div>law.<span>”). Notably, m<span>other does not contend that the totality <span></span>of the </span></span>
</div>
<div>instructions as given failed to properly infor<span>m </span>the jury of the </div>
<div>Department’s burden. <span>Therefore, we discern no abuse of discreti<span></span>on. </span>
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<div>See J.G.<span>, ¶ 33. </span>
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<div>III.<span> <span>Hearsay Statements </span></span>
</div>
<div>¶ 17<span> </span><span>Mother next contends that the juvenile court erred by </span>
</div>
<div>admitting hearsay testimony from the intake caseworker. </div>
<div>¶ 18<span> <span>We review a juvenile court’s evidentiary rulings for an abuse <span></span>of </span></span>
</div>
<div>discretion. <span>People in Interest of E.R.</span>, 2018 COA 58, ¶ 6. A court<span></span> </div>
<div>abuses its discretion when its ruling is manifestly arbitrary, </div>
<div>unreasonable, or unfair, or when it misapplies the law. <span>Id. </span>
</div>
<div>¶ 19<span> </span><span>An error in admitting evidence is harmless if it does not affect </span>
</div>
<div>a substantial right of a party.<span> </span>C.R.C.P. 61; <span>People in Interest of C.C.</span><span>, </span>
</div>
<div>2022 COA 81, ¶ 20. An error affects a substantial right only <span></span>if it </div>
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<div>7 </div>
<div>can be said with fair assurance that it substantially influence<span></span>d the </div>
<div>outcome of the case or impaired the basic fairness of <span></span>the trial. <span>C.C.</span><span>, </span>
</div>
<div>¶ <span>20.</span> </div>
<div>¶ 20<span> </span><span>The caseworker testified that the Department received a </span>
</div>
<div>referral “pretty late at night” and that another caseworker </div>
<div>“completed a safety plan with the family” before <span>the testifying </span>
</div>
<div>caseworker was assigned early the next morning.<span> </span>The testifying </div>
<div>caseworker met with the family and wrote a second safety plan<span>, </span>
</div>
<div>which the caseworker testified mother did not follow. </div>
<div>¶ 21<span> </span><span>Mother now contends that the juvenile court erred by <span></span>allowing </span>
</div>
<div>the caseworker to answer the question, <span>“what did th[e</span> first] safety </div>
<div>plan entai<span>l?”</span><span> </span>Mother objected to this question during trial and she </div>
<div>asserts now, as she did at trial, that <span>th</span><span>e caseworker’s </span>statements </div>
<div>about the contents of a safety plan she did not write were hearsay </div>
<div>without an exception. </div>
<div>¶ 22<span> </span><span>Regardless of whether an exception to hearsay may apply, we </span>
</div>
<div>discern no error <span>in the court’s</span> ruling allowing the caseworker to </div>
<div>answer <span>counsel’s question about the contents of the </span>first safety plan </div>
<div>because <span>the caseworker’s answer to </span>the question was cumulative of </div>
<div>other properly admitted evidence.<span> </span><span>See People in Interest of M.V.</span>, </div>
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<div>8 </div>
<div>2018 COA 163, ¶ 67 (an erroneous evidentiary ruling is harmle<span></span>ss if </div>
<div>the inadmissible evidence is cumulative)<span>, </span><span>abrogated on other </span>
</div>
<div>grounds by People in Interest of E.A.M. v. D.R.M.<span>, 2022 CO 42, ¶ 5<span></span>6.<span> </span></span>
</div>
<div>The caseworker testified that <span>“the safety plan asked that [t<span></span>he youth] </span>
</div>
<div>go stay with a friend . . . for the evening, and that her mom wo<span></span>uld </div>
<div>bring her to the Castle Rock Police Department that following </div>
<div>morning for a forensic interview.”<span> <span>This testimony was substantially </span></span>
</div>
<div>similar to testimony that the caseworker had already provided <span>—</span> </div>
<div>without objection from mother <span>—</span> <span>that “we received the referral </span>
</div>
<div>pretty late at night, so we put in a safety plan at the time, having </div>
<div>[the youth] go to a family friend for the evening and, that next </div>
<div>morning, she would be brought into the police department <span></span>to have a </div>
<div>forensic interview completed.”<span> </span>
</div>
<div>¶ 23<span> </span><span>Additionally<span>, <span>we cannot say that <span>the caseworker’s testimony </span></span></span></span>
</div>
<div>about the contents of the first safety plan substantially influenced </div>
<div>the jury’s verdict<span>.<span> </span></span><span>See C.C.<span>, ¶<span> <span>20.</span></span> <span>The caseworker</span></span></span>’s testimony <span>was </span>
</div>
<div>that she met the youth and mother at the police department, where </div>
<div>the youth gave a forensic interview as required by the first safety </div>
<div>plan.<span> <span>Thus, mother’s compliance with the first safety plan </span><span>as </span></span>
</div>
<div>described in the caseworker’s testimony was unrefuted<span>. <span>Instead, it </span></span>
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<div>9 </div>
<div>was <span>mother’s </span>compliance with the second safety plan <span>—</span> which </div>
<div>required mother not to allow her boyfriend into the home <span></span>or allow </div>
<div>him to have contact with the youth <span>—</span> which was at issue during </div>
<div>the trial.<span> </span>Accordingly, the juvenile court did not abuse its </div>
<div>discretion. </div>
<div>IV.<span> </span><span>Disposition </span>
</div>
<div>¶ 24<span> </span><span>We affirm the judgment. </span>
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<div>JUDGE WELLING and JUDGE BROWN concur. </div>
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