Peo in Interest of SMJ ( 2024 )

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<div>24CA0436 Peo in Interest of SMJ 10-03-2024<span> <span> </span> </span>
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<div> </div>
<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 24CA0436 </div>
<div>City and County <span>of Denver Juvenile</span> Court No. 23JV30185 </div>
<div>Honorable <span>Elizabeth Strobel</span>, Judge </div>
<div>Honorable Pax Moultrie, 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 S.M.J., C.M.F., and K.F., Child<span>ren</span>, </div>
<div> </div>
<div>and Concerning D.M.B., </div>
<div> </div>
<div>Appellant. </div>
<div> </div>
<div> </div>
<div>JUDGMENT AFFIRMED<span> </span>
</div>
<div> </div>
<div>Division IV </div>
<div>Opinion by JUDGE HARRIS </div>
<div>Yun<span> and <span>Kuhn</span>, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e)<span> </span>
</div>
<div>Announced October 3, 2024 </div>
<div> </div>
<div> </div>
<div>Kerry Tipper<span>, City Attorney, Amy J. Packer, Assistant City Attorney, Denver, </span>
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<div>Colorado, for Appellee </div>
<div> </div>
<div>Jenna Mazzucca, Counsel for Youth, Denver, Colorado, for S.M.J. </div>
<div> </div>
<div>Josi McCauley, Guardian Ad Litem for C.M.F. and K.F. </div>
<div> </div>
<div>Ainsley Bochniak, <span>Office of Respondent Parents’ Counsel, </span>Denver, Colorado, for </div>
<div>Appellant<span> </span>
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<div>1 </div>
<div>¶ 1<span> <span>D.M.B. (mother) appeals the juvenile court’s judgment </span></span>
</div>
<div>adjudicating S.M.J., C.M.F., and K.F. (the children) dependent o<span></span>r </div>
<div>neglected.<span> <span>She contends that the juvenile court erred by (1) finding </span></span>
</div>
<div>that she had voluntarily waived her right to a jury trial;<span></span> and (2) </div>
<div>determining that the children were dependent <span>or</span> neglected. We </div>
<div>disagree and therefore affirm. </div>
<div>I.<span> <span>Waiver of Jury Trial </span></span>
</div>
<div>¶ 2<span> </span><span>In March 2023, Denver Human Services (the Department) filed </span>
</div>
<div>a petition in dependency and neglect<span>. </span>Mother requested, and the </div>
<div>court ordered, an adjudicatory jury trial. </div>
<div>¶ 3<span> </span><span>After granting an initial request for a continuance, the court </span>
</div>
<div>scheduled the jury trial for November 1. On October 30, during <span>a </span>
</div>
<div>hearing that mother attended by Webex, the court agreed to appoint<span></span> </div>
<div>mother a new lawyer. As the court updated new counsel ab<span></span>out the </div>
<div>proceedings, mother was disconnected from the Webex platf<span></span>orm. </div>
<div>The court announced that “we’re going [to] call [mother] bac<span></span>k,” and </div>
<div>“in the meantime,” it set a new trial date<span> of December 13 at 8:00 </span>
</div>
<div>a.m. It is not clear from the transcript if mother was, in fact, </div>
<div>reconnected to the hearing. <span> <span> </span></span>
</div>
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<div>2 </div>
<div>¶ 4<span> </span><span>Mother did not appear at the pretrial conference on Dec<span></span>ember </span>
</div>
<div>11. Her new lawyer informed the court that he had not had any </div>
<div>contact with mother since his appointment. The court decided t<span></span>hat </div>
<div>if mother did not appear for trial on December 13, it would likely </div>
<div>conduct a bench trial the next day. </div>
<div>¶ 5<span> </span><span>Mother did not appear for trial on December 13. <span></span>When the </span>
</div>
<div>court asked counsel, “What’s [mother’s] status?” her lawyer <span>said he </span>
</div>
<div>did not know her status but offered that he was “n<span>ot sure if </span>
</div>
<div>[mother] is aware of the time that we were set for this mo<span></span>rning.” </div>
<div>The court asked for clarification regarding counsel’s comm<span></span>ent about </div>
<div>“the time setting for this morning,” and counsel clarified that<span></span> he </div>
<div>was “not <span>sure if [mother] knew [the </span>trial] was set at 8:00 a.m.” <span></span> <span> </span>
</div>
<div>¶ 6<span> </span><span>In light of the information that mother might not have had </span>
</div>
<div>“notice that the trial started at [8:00 a.m.],” as opposed to 9:<span></span>00 </div>
<div>a.m., the court tried to contact her on two different telephone </div>
<div>numbers and <span>gave “her time to appear.” </span>But at 10:00 a.m.,<span></span> mother </div>
<div>was still not present. The juvenile court found that mother was </div>
<div>“present on October 30th” when new counsel was appointe<span></span>d<span>, she </span>
</div>
<div>had a “spotty history of attendance at court hearings<span>,</span>” and she w<span></span>as </div>
<div>not answering any of the telephone calls from the court. The court </div>
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<div>3 </div>
<div>concluded that <span>“regardless of whether [mother] thought<span></span> [trial] was </span>
</div>
<div>set at 8:00 or 9:00,” she was not present, and she had t<span></span>herefore </div>
<div>waived her right to a jury trial. </div>
<div>¶ 7<span> </span><span>On appeal, mother contends that the court erred by finding <span></span>a </span>
</div>
<div>waiver because the record does not show that she had notic<span></span>e of the </div>
<div>trial date and voluntarily failed to appear. </div>
<div>A.<span> <span>Relevant Law and Standard of Review </span></span>
</div>
<div>¶ 8<span> <span>A parent’s right to a jury trial in dependency and neglect </span></span>
</div>
<div>proceedings is statutory, not constitutional. § 19-3-202(2), <span></span>C.R.S. </div>
<div>2024; <span>People in Interest of C.C.</span>, 2022 COA 81, ¶ 11. Still,<span></span> once a </div>
<div>party demands a jury trial, the right to a trial by jury “may be l<span></span>ost </div>
<div>only for the reasons listed in C.R.C.P. 39(a).” <span>Wright v. Woller<span>, 976 </span></span>
</div>
<div>P.2d 902, 903 (Colo. App. 1999); <span>see also</span> C.R.J.P. 1 (providing t<span></span>hat, </div>
<div>in dependency and neglect cases, the Colorado Rules of Civil </div>
<div>Procedure apply when the Colorado Children’s<span> Code or the Colorad<span></span>o </span>
</div>
<div>Rules of Juvenile Procedure do not address a particular pr<span></span>ocedure). </div>
<div>Under Rule 39(a)(3), a party waives her right to a jury trial if<span></span> she </div>
<div>“fail[s] to appear at trial.” <span> </span>
</div>
<div>¶ 9<span> </span><span>Before the court may find a waiver under Rule 39(a)(3), </span>
</div>
<div>however, it must <span>determine that the parent’s nonappearan<span></span>ce is </span>
</div>
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<div>4 </div>
<div>voluntary. <span>See</span> <span>C.C.</span>, ¶ 12. To that end, the court must inquire </div>
<div>“about the parent’s whereabouts and the circumstances conce<span></span>rning </div>
<div>her absence.”<span> </span><span>Id.</span><span> at ¶ <span>18.</span><span> </span>If the court is satisfied that the parent </span>
</div>
<div>will appear promptly or has a good reason for her tardin<span></span>ess, it </div>
<div>should give the parent additional time to arrive before conve<span></span>rting </div>
<div>the jury trial to a bench trial. <span>Id.</span><span> </span> </div>
<div>¶ 10<span> </span><span>Waiver is ordinarily a mixed question of fact and law: <span></span>we </span>
</div>
<div>accept the trial court’s findings of fact if they are supported by </div>
<div>record evidence, but we assess the legal significance of the <span></span>facts de </div>
<div>novo. <span>See People in Interest of B.H.</span>, 2021 CO 39, ¶ 50 (addressing </div>
<div>waiver of counsel in dependency and neglect proceedings). </div>
<div>B.<span> <span>Analysis </span></span>
</div>
<div>¶ 11<span> </span><span>The question on appeal is whether the record supports the </span>
</div>
<div>juvenile court’s finding that mother voluntarily failed t<span></span>o appear<span> for </span>
</div>
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<div>5 </div>
<div>the scheduled jury trial and thereby waived her right to a j<span></span>ury </div>
<div>under Rule 39(a)(3).</div>
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<div><div>1</div></div>
<div>
<div> <span>We conclude that it does. </span>
</div>
<div>¶ 12<span> </span><span>C<span>ontrary to mother’s assertions, <span>the juvenile court <span>did</span> inquire </span></span></span>
</div>
<div>as to <span>mother’s whereabouts when it asked counsel, “What’s </span>
</div>
<div>[mother’s] status?” In response<span>, <span>counsel did <span>not</span> tell the court that </span></span>
</div>
<div>mother might not have known about the trial setting because she </div>
<div>was not present at the October 30 hearing when the court set <span></span>the </div>
<div>trial date. Rather, counsel explained that mother might not <span></span>have </div>
<div>known that trial was scheduled to begin at 8:00 a.m.<span> </span>The court </div>
<div>understood counsel’s <span>explanation to mean that there was a </span>
</div>
<div>“concern about the time change” from 9:00 a.m. to 8:00 <span></span>a.m.<span>, and </span>
</div>
<div>counsel never suggested that the court’s understanding was </div>
<div>incorrect. And no one disputed the court’s recollection <span></span>that mother </div>
<div>ha<span>d attended the October 30 hearing when the trial date ha<span></span>d been </span>
</div>
<div>continued. </div>
<div> </div>
</div>
<div><div>1</div></div>
<div>
<div> To the extent mother argues, as a factual matter, that she did n<span></span>ot </div>
<div>have notice of the trial, resulting in a due process violation that<span></span> </div>
<div>requires setting aside the adjudication order, she had to raise t<span></span>hat </div>
<div>issue in <span>a </span>C.R.C.P. 60(b) motion filed in the juvenile court<span>. </span><span>See, </span>
</div>
<div>e.g.<span>, </span><span>In re C.L.S.<span>, 252 P.3d 556, 559 (Colo. App. 2011).<span> </span>As an </span></span>
</div>
<div>appellate court, we “don’t (and, indeed, can’t) make findings of fact.” </div>
<div>Carousel Farms Metro. Dist. v. Woodcrest Homes, I<span></span>nc.<span>, 2019 CO 51, </span>
</div>
<div>¶ 19. </div>
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<div>6 </div>
<div>¶ 13<span> </span><span>On this record, we cannot say that the court erred by </span>
</div>
<div>concluding that mother voluntarily failed to appear.<span></span> The </div>
<div>information provided to the court indicated that mother ha<span></span>d notice </div>
<div>of the date of trial but possibly not the start time. The court </div>
<div>therefore determined that mother might have a “good reas<span></span>on for her </div>
<div>tardiness” and gave her “additional time to arrive.” <span>C.C.</span><span>, ¶ 18. But </span>
</div>
<div>an hour after the later start time, mother had not appea<span></span>red. </div>
<div>¶ 14<span> <span>Still, mother says that because her lawyer was present “and </span></span>
</div>
<div>prepared to move forward with the jury trial,” the “parties<span></span>” </div>
<div>demanding a jury trial did not fail to appear. <span>See</span> C.R.C.P. 39(a) </div>
<div>(<span>“When <span>trial by jury has been demanded . . . [t]he t<span></span>rial shall be by </span></span>
</div>
<div>jury . . . unless . . . (3) all parties demanding trial by jury fail <span></span>to </div>
<div>appear at trial.”). Mother’s lawyer was not a “party” to the </div>
<div>adjudication proceeding, though<span>. </span>A <span>“party” is a “litigant” —</span> <span>“[o]ne </span>
</div>
<div>by or against whom a lawsuit is brought.” Black’s L<span>aw Dictionary </span>
</div>
<div>1297 (12th ed. 20<span>19</span>). Nor was <span>mother’s lawyer “prepared t<span></span>o move </span>
</div>
<div>forward with the jury trial” on December 13. At the <span></span>December 11 </div>
<div>pretrial conference, counsel told the court that even if<span></span> mother </div>
<div>appeared for trial, he would need a continuance to confer with <span></span>her, </div>
<div>and the court agreed to reset the trial date should that </div>
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<div>7 </div>
<div>circumstance arise. Thus, we need not decide in this case whethe<span></span>r </div>
<div>a parent waives her right to a jury trial if she voluntarily fails t<span></span>o </div>
<div>appear but her counsel is present and offers to proceed wit<span></span>hout her. </div>
<div>¶ 15<span> </span><span>In sum, the court correctly applied the law, and its </span>
</div>
<div>determination that mother’s nonappearance was voluntary is </div>
<div>supported by the record. Accordingly, we conclude t<span></span>hat the court </div>
<div>did not err by finding that mother waived her right to a ju<span></span>ry trial.</div>
</div>
<div><div>2</div></div>
<div>
<div> </div>
<div>II.<span> <span>Sufficiency of the Evidence </span></span>
</div>
<div>¶ 16<span> </span><span>The evidence presented at the adjudication trial establishe<span></span>d </span>
</div>
<div>the following facts: </div>
<div>•<span> <span>The Department opened a voluntary case in May 2022, </span></span>
</div>
<div>based on reports that the father of the two younger </div>
<div>children (father) had, on multiple occasions, assaulted </div>
<div>mother in front of the children. </div>
<div>•<span> <span>In February 2023, the Department received reports </span></span>
</div>
<div>alleging that the two older children, thirteen-year-old </div>
<div>S.M.J. and six-year-old C.M.F.<span>, </span>were chronically absent </div>
<div> </div>
</div>
<div><div>2</div></div>
<div>
<div> In light of our conclusion, we need not address the guardian ad </div>
<div>litem’s argument that mother was not entitled to a jury trial </div>
<div>because she did not “personally demand[]” one. <span> </span>
</div>
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<div><div>
<div>8 </div>
<div>from school and that mother was using drugs or abusing </div>
<div>alcohol. A month later, the Department learned that t<span></span>he </div>
<div>youngest child, eighteen-month-old K.F., had been found </div>
<div>unattended in the street near mother’s house. <span> </span>
</div>
<div>•<span> <span>In March 2023, the two younger children submitted to </span></span>
</div>
<div>hair follicle testing, the results of which showed that the </div>
<div>children had been exposed to methamphetamine and </div>
<div>cocaine. </div>
<div>•<span> <span>The Department filed a petition in dependency and </span></span>
</div>
<div>neglect in March 2023 and placed the children with </div>
<div>maternal grandparents.<span> </span>S.M.J. had frequent visits with </div>
<div>her father, S.N.<span>J.</span> </div>
<div>•<span> <span>At around the time the petition was filed, mother stopped </span></span>
</div>
<div>cooperating with the Department. </div>
<div>•<span> <span>In April 2023, father was released from prison. He was </span></span>
</div>
<div>subject to a protection order listing mother as the </div>
<div>protected party. </div>
<div>•<span> <span>In May, the caseworker saw mother and father together </span></span>
</div>
<div>at the grandparents’ house. In August, mother <span>was </span>
</div>
</div></div>
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<div><div>
<div>9 </div>
<div>hospitalized after father assaulted her and broke her </div>
<div>ribs. </div>
<div>•<span> <span>During the 2022-23 school year, C.M.F. missed forty-four </span></span>
</div>
<div>days of school. S.M.J., an eighth grader, frequently </div>
<div>missed her morning “core” classes, arriving at school <span></span>in </div>
<div>the afternoon. </div>
<div>•<span> <span>Although the school tried to enlist mother’s help with <span></span>the </span></span>
</div>
<div>truancy issues, mother was <span>un</span>cooperative: she did not </div>
<div>attend school meetings; she became angry at school staff<span></span> </div>
<div>who raised attendance concerns; and, on one occasion, </div>
<div>she came to school “smell[ing] of alcohol and lunged at </div>
<div>[the] safety and security officer.”<span> </span>
</div>
<div>•<span> <span>During the fall 2023 semester, after his placement with </span></span>
</div>
<div>the grandparents, C.M.F.<span>’s attendance improved </span>
</div>
<div>significantly, and he was more social with his peers and </div>
<div>adults.<span> <span>Neither the school social worker nor the </span></span>
</div>
<div>caseworker had information about S.M.J.<span>’s attendance </span>at </div>
<div>high school during that semester. </div>
<div>¶ 17<span> </span><span>The juvenile court found that the Department had proved <span></span>by a </span>
</div>
<div>preponderance of the evidence that all three children lacked p<span></span>roper </div>
</div></div>
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<div><div>
<div>10 </div>
<div>parental care and would be in an injurious environment <span></span>if returned </div>
<div>to mother’s care, and that mother had failed to provide t<span></span>he older </div>
<div>two children with proper or necessary education. Accordingly,<span></span> the </div>
<div>court entered an order adjudicating the children dependent or </div>
<div>neglected. </div>
<div>¶ 18<span> </span><span>On appeal, mother contends that the evidence was insufficient </span>
</div>
<div>to support a determination that the children were dependent or </div>
<div>neglected. </div>
<div>A.<span> <span>Legal Framework and Standard of Review </span></span>
</div>
<div>¶ 19<span> </span><span>A child is dependent and neglected if, as pertinent here, (1) the </span>
</div>
<div>“child lacks <span>[proper parental] care through the actions or omissions </span>
</div>
<div>of the parent”; (2) “[t]he child’s environment is injurious t<span></span>o his or </div>
<div>her welfare”; or (3) “[a] parent<span> . . . fails or refuses to provide the </span>
</div>
<div>child with proper or necessary subsistence, education, medical </div>
<div>care, or any other care necessary for his or her health, guidance, <span>or </span>
</div>
<div>well-<span>being.”</span><span> <span>§ 19-3-102(1)(b), (c), (d), C.R.S. 2024. <span>“The purpose of </span></span></span>
</div>
<div>an adjudicatory hearing is to determine (1) whether the factual </div>
<div>allegations in the dependency and neglect petition are supporte<span></span>d by </div>
<div>a preponderance of the evidence, and (2) whether the status of the </div>
<div>children warrants intrusive protective or corrective state </div>
</div></div>
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<div><div>
<div>11 </div>
<div>intervention into the familial relationship.” <span>People in Interest<span></span> of </span>
</div>
<div>A.<span>H.<span>, <span>271 <span>P.</span><span>3</span><span>d </span>1116, 1120 (Colo. App. 2011). </span></span></span>
</div>
<div>¶ 20<span> </span><span>Because a dependency and neglect proceeding is preventative </span>
</div>
<div>as well as remedial, an adjudication may be based not only <span></span>on </div>
<div>current or past harm but also on prospective harm. <span></span> <span>People in </span>
</div>
<div>Interest of S.G.L.<span>, 214 P.3d 580, 583 (Colo. App. 200<span></span>9). At all stages </span>
</div>
<div>of a dependency and neglect proceeding, including the adjudication </div>
<div>stage, the best interest of the child is paramount. <span>A.M. v. A.C.</span><span>, </span>
</div>
<div>2013 CO 16, ¶ <span>14</span><span>. </span> </div>
<div>¶ 21<span> </span><span>The credibility of the witnesses and the sufficiency, probati<span></span>ve </span>
</div>
<div>effect, and weight of the evidence, as well as the inferences and </div>
<div>conclusions to be drawn therefrom, are matters within the </div>
<div>discretion of the juvenile court. <span>People in Interest of A.M. v. T.M.</span><span>, </span>
</div>
<div>2021 CO 14, ¶ <span>15</span><span>.</span><span> </span>In determining whether the evidence is </div>
<div>sufficient to sustain an adjudication, we review the record in <span></span>the </div>
<div>light most favorable to the prevailing party, and we draw eve<span></span>ry </div>
<div>inference fairly deducible from the evidence in favor of t<span></span>he cou<span>rt’s </span>
</div>
<div>decision. <span>People in Interest of D.M.F.D.</span><span>, </span>2021 COA 95, ¶ <span>13</span>. We </div>
<div>must uphold the <span>court’s findings and conclusions if the rec<span></span>ord </span>
</div>
</div></div>
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<div><div>
<div>12 </div>
<div>supports them, even though reasonable people might arrive at<span></span> </div>
<div>different conclusions based on the same facts. <span>Id<span>.</span></span> </div>
<div>B.<span> <span>Proper Parental Care </span></span>
</div>
<div>¶ 22<span> </span><span>The court determined that the children lacked proper parent<span></span>al </span>
</div>
<div>care because mother had exposed them to drugs, including </div>
<div>methamphetamine. </div>
<div>¶ 23<span> </span><span>Mother argues that the Department failed to prove that mother </span>
</div>
<div>had exposed the children to drugs, <span>noting that mother’s d<span></span>rug tests </span>
</div>
<div>were positive for marijuana and cocaine, while <span>the children’s hair </span>
</div>
<div>follicle tests were positive for marijuana, cocaine, <span>and</span> </div>
<div>methamphetamine. But the fact that mother’s March 2023 test </div>
<div>results were not positive for methamphetamine does <span></span>not mean that </div>
<div>mother did not use methamphetamine in the presence of the </div>
<div>children before March. Nor does it mean that mother did not </div>
<div>otherwise allow the children to be exposed to methamphetamine. </div>
<div>¶ 24<span> </span><span>Next, mother asserts that evidence the children were exposed </span>
</div>
<div>to drugs “at an unknown time” before March 2023 and in<span></span> “an </div>
<div>unknown manner” was insufficient to prove they were depen<span></span>dent </div>
<div>and neglected. The juvenile court, however, found that mother </div>
<div>likely exposed the children to drugs while they were in her care. <span></span> </div>
</div></div>
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<div><div>
<div>13 </div>
<div>That finding is based on the evidence and reasonable inferences </div>
<div>drawn from it, and mother does not explain why the finding is </div>
<div>clearly erroneous. Nor does mother provide any authority for t<span></span>he </div>
<div>proposition that exposing the children to drugs including </div>
<div>methamphetamine and cocaine does not amount to a lack of p<span></span>roper </div>
<div>parental care. We think th<span>e court’s contrary </span>conclusion is </div>
<div>reasonable, so we decline to disturb it on appeal. </div>
<div>¶ 25<span> <span>Finally, that the children’s grandparents were sober caregive<span></span>rs </span></span>
</div>
<div>or that S.M.J. received proper parenting from her father says </div>
<div>nothing about whether mother provided or would provi<span></span>de proper </div>
<div>parental care. </div>
<div>C.<span> <span>Injurious Environment </span></span>
</div>
<div>¶ 26<span> <span>The juvenile court determined that, if returned to mother<span></span>’s </span></span>
</div>
<div>care, the children would be in an injurious environment <span></span>based on </div>
<div>the occurrence of domestic violence. </div>
</div></div>
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<img alt="" src="https://icbg.s3.amazonaws.com/media/MM9/Zgu/MM9ZguMTW/pwsU7Hj38Z0aT83wGmUtrM/47S7PRRijEBs%3D?AWSAccessKeyId=ASIA5PHC3MTPVDRF2KLU&amp;Expires=1728532978&amp;Signature=tFBXaYxwR7K8LC1TPFcr0OfXhyM%3D&amp;x-amz-security-token=IQoJb3JpZ2luX2VjEBIaCXVzLWVhc3QtMSJHMEUCIBIaROkffb84kjSVBnVVnXKa3P43%2BpOpHDWc%2FgXEGv1%2BAiEA3YmZOEuxidbK40yLusjEdfd463J1yJusPh8Ewnaz7joqsgUIaxAAGgw5MjYwNDEyMDM5MzUiDF09PEZw4FnkejO8cCqPBUBBch3cTE%2BT4qe0HGbz9RnNK%2BjMTgOW6QZlYB4%2FrcMhyw%2Fx9b12QsEFdc6%2BuhYcxOusMYWbbjxTZWmyf52ZIVcQ1RJFu74mCRsGaChuCVbpOKeLZMaIs9LhBaJLd%2F41uf74z3BNQ2JFXCZ7aWvgdcDI5rGP1VqdxaC04LSSx99VTOOUSZMDGZ1D8IP%2FlyWuq9ws%2B96mhJpjfCn5GBiPllYOsJ%2BecSVpsod1PwEbr9FYweWx2hB0Ht5LzsU8%2BMw6Ri2HrRfJgISosTl58QAtyMssu32f8GgqkQGRLxtThESeRUD1GCvMitk8%2BfQ1CET7VPJrp48IMOwswtW7P5nxt2MGqMJY%2Fser1w%2B5c9hl4Mt%2FR3dElGQvOtNd6HgpYwTWD6HkxALHhVtpBMcLV5DVrBD2npHzUYaQe0fkw16aQHRSpt27M2Su1ynMxFCeTf7uJlZatr%2BeOd0VHiiWS66NJ63Rh6gT19M%2FCH%2BSycrMA6iVB73b6csvXAVwKO1JKIZ3TOFnAaUh1AU80d3PXKjZJ5uuRyVO25T3Epd9ZigkOeQYsb5Ztu5E9XL6IYZZyoS86tJUpHBcyvIhUD4mVf8%2BQg6yO1azc8AoEd71UaFDA1VSjTD8JBf9FrMNX9S4aBp29sr5EMkQYMzflSN4GRZFTnx%2BElw0vqcfv%2FwOyaVbeIWrq5EXhtxNn8TY1ZDNoylAh4AzMjYqg9tbUOL5oFhTx1V1cEljcNaHuTHeMzZ1KeHlHd0IA4RITvaPLe7%2BQHAc%2F8481OGzSgodKPEDZT5E53IQtQ5HYQcXX3qXkrBstHMeXUAMgY1LyOU4xz9BmEf%2FPraLGuzjMNJBuP6tJ2v9OtAfqAPDWATMXZIRyRHmqIUwxOmcuAY6sQGXhjQ4teBmw%2FmfekoYs5vfAAY6iHvaT7VaQTcvAXymwEKq8hh9KABJLVfyDoc9ykiiNyxibM9sBQ71Wc0TT%2B1%2FM2300lb%2FcuiNTrcHh54kz0R77W0taLCAY1Zrh3LYDp6tGDnk43tw4u5TI0m9Nt6sTAfJ3ORfCPBt98Egy0FN2RsG6OmZG%2FIrOxg0r0oGTXGpOJZ2g8a6kv%2BqkJLcZwGzN7ZorBlf1A1AXDktVKLrPP0%3D"><div>
<div>14 </div>
<div>¶ 27<span> </span><span>According to mother, S.M.J.</span>
</div>
</div>
<div><div>3</div></div>
<div>
<div> <span>is old enough to “self</span><span>-</span><span>protect” </span>
</div>
<div>from exposure to domestic violence, so a home where domestic </div>
<div>violence is occurring <span>—</span> presumably, even the kind that results in </div>
<div>mother’s hospitalization —<span> is not an injurious environment f<span></span>or her. </span>
</div>
<div>Mother does not explain what it means for a teenager to “self<span>-</span>
</div>
<div>protect” from severe domestic violence or point to any evidence t<span></span>hat </div>
<div>S.M.J. <span>engaged in conduct that qualifies as “self</span><span>-</span><span>protective.” The </span>
</div>
<div>only evidence in the record on this subject was that the mere sight<span></span> </div>
<div>of mother and father together at the grandparents’ h<span></span>ouse <span>in May </span>
</div>
<div>2023 made S.M.J. <span>“upset with [m]other.”</span> </div>
<div> </div>
</div>
<div><div>3</div></div>
<div>
<div> S.M.J., who was fourteen years old at the time of the hearing, <span></span>was </div>
<div>represented by counsel. <span>See</span> § 19-3-<span>203(2), C.R.S. 2024 (“Upon t<span></span>he </span>
</div>
<div>filing of a petition [in dependency and neglect], the court shall </div>
<div>appoint counsel for youth for any child . . . who is t<span></span>welve years of </div>
<div>age or older.”). At the beginning of trial, S<span>.M.J.</span>’s lawyer informed </div>
<div>the court that “[S<span>.M.J.] . . . does not believe that she . . . <span></span>should be </span>
</div>
<div>adjudicated dependent or neglected. She did not authorize me t<span></span>o </div>
<div>say anything further on her behalf.” Nonetheless, S<span>.M.J.</span>’s <span>lawyer </span>
</div>
<div>argued at trial that S.M.J. was dependent and neglected, and, on </div>
<div>appeal, appellate counsel for youth filed a brief defending the </div>
<div>judgment as to S.M.<span>J.</span> Without intending to admonish counsel, and </div>
<div>acknowledging that “counsel for youth” is a new position in </div>
<div>Colorado (and that S.M.J. might have reversed position aft<span></span>er trial </div>
<div>and authorized the appellate brief), we note that, subject to </div>
<div>exceptions not applicable here, a lawyer must “abide <span></span>by a client’s </div>
<div>decisions concerning the objectives of representation.” <span></span>R.P.C. </div>
<div>1.2(a); <span>see also</span> <span>R.P.C., Preamble (A lawyer must “zealously ass<span></span>ert[] </span>
</div>
<div>the client’s position under the rules of the adversary <span></span>system.”). <span> <span> </span></span>
</div>
</div>
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<div><div>
<div>15 </div>
<div>¶ 28<span> </span><span>Alternatively, mother contends that the juvenile court erred by </span>
</div>
<div>finding that she would not protect the children from the harm </div>
<div>created by father’s violence. On this point, we pause to emphasize<span>, </span>
</div>
<div>as the juvenile court did, that the person responsible for ending </div>
<div>domestic violence is the perpetrator <span>—</span> in this case, father. </div>
<div>Rebuking mother for not protecting the <span>children from father’s </span>
</div>
<div>victimization of her might seem as if we are shifting the burden.<span></span> </div>
<div>But at the same time, the court had to, and properly <span></span>did, consider </div>
<div>the obvious and substantial harm to the children associate<span></span>d with </div>
<div>domestic violence in the home<span>. </span> And the evidence showed that </div>
<div>mother was not able to sever ties with father, even though a </div>
<div>protection order had been issued and even though, acco<span></span>rding to the </div>
<div>court’s findings, the Department offered her assistance in <span></span>this </div>
<div>regard. (<span>We reject, as unpreserved and therefore waived, mother<span></span>’s </span>
</div>
<div>argument that the court should not have considered the evidence of </div>
<div>father’s August 2023 assault<span> because it was inadmissible hearsay. <span></span> </span>
</div>
<div>See People in Interest of M.B.<span>, 2020 COA 13, ¶ 14.) </span>
</div>
<div>¶ 29<span> </span><span>Finally, mother contends that because she had frequent, </span>
</div>
<div>unsupervised visits with the children, the court erred by finding </div>
<div>that, if returned to mother’s care, <span>they would be in an injurious </span>
</div>
</div></div>
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<div id="pf11" data-page-no="11">
<div><div>
<div>16 </div>
<div>environment. But simply because mother could visit with the </div>
<div>children without endangering them does not necessarily </div>
<div>demonstrate that she could provide safe and nurturing<span></span> parenting as </div>
<div>the primary caregiver. </div>
<div>D.<span> <span>Failure to Provide Education </span></span>
</div>
<div>¶ 30<span> </span><span>The juvenile court determined that mother failed to provide the </span>
</div>
<div>two older children with proper and necessary educati<span></span>on, based on </div>
<div>evidence that the children were chronically absent from scho<span></span>ol </div>
<div>when they were in mother’s care.<span> </span>
</div>
<div>¶ 31<span> </span><span>Mother argues that the court erred because by the time of <span></span>the </span>
</div>
<div>adjudication hearing, the children’s truancy issues had been </div>
<div>resolved. True, but the court could reasonably hav<span></span>e inferred from </div>
<div>the evidence that the children’s attendance improved thanks t<span></span>o the<span> </span>
</div>
<div>maternal grandparents’ supervision, and, if <span>they were returned t<span></span>o </span>
</div>
<div>mother, who had not cooperated in prior efforts to get the children </div>
<div>to school, the truancy issues would likely recur.<span> </span><span>See</span> <span>People in </span>
</div>
<div>Interest of S.X.M.<span>, 271 P.3d 1124, 1130 (Colo. App. 2<span></span>011) (the fact </span>
</div>
<div>finder’s task at the adjudication stage is not to determine wh<span></span>ether </div>
<div>the child is “presently” receiving proper care, but rather whethe<span></span>r the </div>
<div>child “will lack” proper care if returned to the parent).<span></span> <span> </span>
</div>
</div></div>
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<div><div>
<div>17 </div>
<div>¶ 32<span> </span><span>For these reasons, we conclude that the juvenile court did n<span></span>ot </span>
</div>
<div>err by adjudicating the children dependent and neglected. </div>
<div>III.<span> <span>Disposition </span></span>
</div>
<div>¶ 33<span> </span><span>The judgment is affirmed. </span>
</div>
<div>JUDGE YUN and JUDGE KUHN concur. </div>
</div></div>
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