in Interest of R.J

2019 COA 109

• Court: Colorado Court of Appeals
• Decided: July 18, 2019
• Docket: 18CA1622, People
• Status: Published

Opinion

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 18, 2019

2019COA109

No. 18CA1622, People in Interest of R.J. — Juvenile Court — Dependency and Neglect — Appeals

A division of the court of appeals holds that a parent may

appeal a juvenile court’s order adjudicating a child dependent and

neglected without first seeking district court review of a magistrate’s

subsequent dispositional order. COLORADO COURT OF APPEALS 2019COA109

Court of Appeals No. 18CA1622 Mesa County District Court No. 18JV50 Honorable Thomas W. Ossola, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of R.J., M.J., and A.J., children,

and Concerning G.J.J. and M.S.,

Respondents-Appellants.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE J. JONES Román and Lipinsky, JJ., concur

Announced July 18, 2019

J. Patrick Coleman, Mesa County Attorney, Jeremy Savage, Chief Deputy County Attorney, Grand Junction, Colorado, for Petitioner-Appellee

Tammy Tallant, Guardian Ad Litem

Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for Respondent-Appellant G.J.J.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado, for Respondent-Appellant M.S. ¶1 In this dependency and neglect proceeding, G.J.J. (father) and

M.S. (mother) appeal the district court’s judgment adjudicating

R.J., M.J., and A.J. (children) dependent and neglected. Before

addressing the merits of their appeal, however, we must determine

whether we have jurisdiction. To answer this question, we must

decide whether a parent may appeal an adjudicatory order to this

court without first seeking district court review of a magistrate’s

later dispositional order. We decide that a parent may. Having

confirmed that we have jurisdiction over the appeal, we turn to the

merits of the parents’ challenge to the adjudicatory order, reject

that challenge, and therefore affirm.

I. Background

¶2 The Mesa County Department of Human Services

(Department) filed a petition in dependency or neglect alleging that

the children lacked proper parental care and that their environment

was injurious to their welfare. Both parents denied the allegations

and requested an adjudicatory jury trial. After a three-day trial, the

jury returned a special verdict finding the children dependent and

neglected.

1 ¶3 A magistrate later entered dispositional orders as to both

father and mother that continued out-of-home placement for the

children and adopted treatment plans for both parents. Father

asked for more time to file a petition for review of the magistrate’s

dispositional order with the district court. The district court

granted that request; however, no petition for review appears in the

record.

¶4 Father then filed a request with this court to file his notice of

appeal out of time. Therein, he observes that while C.A.R. 3.4(b)(1)

and section 19-1-109(2)(c), C.R.S. 2018, read in combination,

require a party to file a notice of appeal of an adjudicatory order

and designation of transcripts within twenty-one days after the

entry of the dispositional order, C.R.M. 7(a)(11) requires a party to

seek district court review of a magistrate’s dispositional order before

seeking appellate review in this court. This, he says, creates

uncertainty, and he asks us to decide whether this court has

jurisdiction to review an adjudicatory order when a magistrate later

enters the dispositional order but no one seeks district court review

of that order.

2 ¶5 We ordered the parties to address in their principal briefs the

finality — that is, the appealability — of the adjudicatory order.

Mother then filed a notice of appeal, asked that we accept it out of

time, and also asked that she be allowed to join father’s briefs. We

granted mother’s requests.

II. Finality of the Adjudicatory Order

¶6 Before we can decide the parents’ challenge to the adjudication

of the children as dependent and neglected, we must decide

whether their failure to first seek review of the magistrate’s

dispositional order means that we lack jurisdiction over their

appeal. See People in Interest of J.C., 844 P.2d 1185, 1187 (Colo.

1993). We hold that it does not.

A. Standard of Review and Interpretive Principles

¶7 Whether determining the meaning of a statute or a rule — and

in this case we do both — we review de novo. People in Interest of

L.M., 2018 CO 34, ¶ 13 (statute); In Interest of M.K.D.A.L., 2014

COA 148, ¶ 5 (rule).

¶8 In interpreting a rule, we apply the same principles that we

use when interpreting a statute. Willhite v. Rodriguez-Cera, 2012

CO 29, ¶ 9. Chief among these principles is that we must give

3 effect to the intent of the body that adopted the rule or statute and

apply the construction that best effectuates that intent. People in

Interest of H.T., 2019 COA 72, ¶ 12; see People in Interest of J.D.,

2017 COA 156, ¶ 9 (cert. granted Sept. 17, 2018). To do so, we start

by looking to the language of the rule or statute, giving the words

and phrases used therein their plain and ordinary meanings. H.T.,

¶ 12; M.K.D.A.L., ¶ 5. We should not add words or phrases to a rule

or statute, and, relatedly, we should presume that the inclusion of

certain terms in a rule or statute implies the exclusion of others.

H.T., ¶ 12; People in Interest of J.J.M., 2013 COA 159, ¶ 7. And we

must also presume that the adopting body intended a just and

reasonable result; so we should avoid interpretations leading to

absurd results. Leaffer v. Zarlengo, 44 P.3d 1072, 1078-79 (Colo.

2002); H.T., ¶ 12; People in Interest of J.L.R., 895 P.2d 1151, 1154

(Colo. App. 1995).

B. Statutory Framework

1. The Adjudication and Disposition

¶9 The Children’s Code provides for a bifurcated proceeding in

dependency and neglect actions. E.O. v. People in Interest of C.O.A.,

854 P.2d 797, 800 (Colo. 1993). In the first phase, after a petition

4 in dependency or neglect is filed, the court determines if there are

grounds to adjudicate the child dependent or neglected. If a parent

contests the allegations in the petition, that parent can request a

bench or jury trial in which the petitioner (usually a local

department of human services) must prove the allegations by a

preponderance of the evidence. §§ 19-3-202, 19-3-505, C.R.S.

2018; People in Interest of A.M.D., 648 P.2d 625, 641 (Colo. 1982).

If the department fails to carry its burden, then the juvenile court

should dismiss the case, vacate all orders regarding the child, and

relinquish its jurisdiction. § 19-3-505(6). But if the department

proves the allegations by a preponderance of the evidence, the court

should sustain the petition and adjudicate the child dependent or

neglected. § 19-3-505(7).

¶ 10 If the court sustains the petition, the second phase — the

dispositional phase — kicks in. The purpose of the dispositional

hearing is to devise a proper dispositional order serving the

interests of the child and the public. §§ 19-1-103(43), 19-3-

507(1)(a), C.R.S. 2018. In this phase, the court must address

dispositional alternatives and adopt a treatment plan for the parent.

§ 19-3-507; see People in Interest of C.L.S., 934 P.2d 851, 853 (Colo.

5 App. 1996). A bit more specifically, the court must determine the

child’s legal custody, decide whether an appropriate treatment plan

can be devised to address the concerns that led to the department’s

involvement, and, if so, approve an appropriate treatment plan.

2. Adjudicatory Appeals

¶ 11 C.A.R. 3.4(a), which governs appeals in dependency and

neglect cases, provides that a party may appeal orders from

dependency and neglect proceedings as permitted by section 19-1-

109. In turn, section 19-1-109(1) says that “[a]n appeal as provided

in the introductory portion to section 13-4-102(1), C.R.S. [2018],

may be taken from any order, decree, or judgment.” Subsection

(2)(c) of the same statute provides that “[a]n order decreeing a child

to be neglected or dependent shall be a final and appealable order

after the entry of the disposition pursuant to section 19-3-508.”

C. Analysis

¶ 12 The Department and the guardian ad litem (GAL) argue that

we lack jurisdiction to review the adjudicatory order because

neither parent filed a petition for review of the dispositional order

with the district court in accordance with section 19-1-108(5.5),

C.R.S. 2018. That section says that “[a] petition for review [of a

6 magistrate’s order] is a prerequisite before an appeal may be filed

with the Colorado court of appeals or Colorado supreme court.” Id.

But we conclude that this statute isn’t an impediment to an appeal

of the adjudicatory order.

¶ 13 We begin by noting that the juvenile court has exclusive

original jurisdiction in dependency and neglect proceedings. § 19-

1-104(1)(b), C.R.S. 2018. Unless a party asks for a jury trial, a

magistrate may hear any case or matter under the juvenile court’s

jurisdiction. §§ 13-5-201(3), 19-1-108(1), C.R.S. 2018.

¶ 14 Father and mother are only asking us to review the

adjudicatory order; they don’t ask to review the dispositional order.

As noted, the district court entered the adjudicatory order, whereas

the magistrate entered the dispositional order. The plain language

of section 19-1-109(2)(c) provides that an order decreeing a child to

be dependent or neglected — that is, an adjudicatory order — “shall

be a final and appealable order after the entry of the disposition.”

No language in the statute requires that the dispositional order also

be final. Nor is there any language in the statute requiring district

court review of a dispositional order before a parent may appeal the

adjudicatory order. And section 19-1-108(5.5), on which the

7 Department and the GAL rely, plainly applies to appeals of a

magistrate’s order. To repeat, neither parent appeals the

magistrate’s dispositional order.

¶ 15 True, an adjudicatory order isn’t final until the court enters a

dispositional order. § 19-1-109(2)(c). But no statute or rule says

that an adjudicatory order isn’t final until a district court reviews a

magistrate’s dispositional order. And section 13-4-102(1) says the

court of appeals has “initial jurisdiction over appeals from final

judgments” in civil cases.

¶ 16 Further, requiring judicial review of a dispositional order that

was entered by a magistrate, but that no one challenges, would lead

to an absurd result. The purpose of district court review of a

magistrate’s order is to give the district court “an opportunity to

correct any error that may have been made by the magistrate.”

People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006). If

no one asserts error, requiring the district court to review

dispositional findings as a prerequisite to a parent’s appeal of the

adjudication would unnecessarily expend judicial resources and

thwart the state’s interest in the expeditious resolution of

dependency and neglect proceedings. See § 19-1-102(1.6), C.R.S.

8 2018; People in Interest of A.J., 143 P.3d 1143, 1146 (Colo. App.

2006). 1

¶ 17 For these reasons, we conclude that the adjudicatory order

was a final, appealable order.2

III. Jury Selection

¶ 18 Father and mother argue that the juvenile court’s active

participation in jury selection — by exercising peremptory

challenges allocated to but unused by one of the parties — violated

their due process rights and rendered the jury trial fundamentally

unfair. It may be the court erred by purporting to exercise the

unused peremptory challenges. But even if it did so, we see no

prejudice to the parents.

A. Applicable Law

¶ 19 “Parents have a fundamental liberty interest in the care,

custody, and control of their children.” In re D.I.S., 249 P.3d 775,

1 Despite the lack of any appeal of the dispositional order in these circumstances, were we to reverse the adjudicatory order, the dispositional order, which is predicated on the adjudicatory order, would also fall. 2 Given our resolution of this issue, we need not address the

parents’ arguments regarding magistrate consent.

9 780 (Colo. 2011); accord Troxel v. Granville, 530 U.S. 57, 65 (2000).

When a court decision will effectively eliminate or weaken familial

bonds by terminating parental rights or denying custody, parents

must first receive fundamentally fair procedures. Santosky v.

Kramer, 455 U.S. 745, 753 (1982); D.I.S., 249 P.3d at 781-82.

¶ 20 If a respondent parent denies the allegations in the petition for

dependency and neglect, the respondent, a petitioner, a GAL, or the

court may demand a jury of not more than six. C.R.J.P. 4.3(a).

¶ 21 In dependency and neglect proceedings, “[e]xamination,

selection, and challenges for jurors in such cases shall be as

provided by C.R.C.P. 47, except that the petitioner, all respondents,

and the guardian ad litem shall be entitled to three peremptory

challenges. No more than nine peremptory challenges are

authorized.” C.R.J.P. 4.3(b). This rule supersedes C.R.C.P. 47(h),

which says that each side is entitled to four peremptory challenges.

See C.R.J.P. 1 (“Proceedings [in the juvenile court] are civil in

nature and where not governed by these rules or the procedures set

forth in [the Children’s Code], shall be conducted according to the

Colorado Rules of Civil Procedure.”).

10 ¶ 22 “The purpose of allowing peremptory challenges is to enable a

party to reject certain jurors based upon a subjective perception

that they may be adverse or unsympathetic to his position even

though no basis for a challenge for cause exists.” Fieger v. E. Nat’l

Bank, 710 P.2d 1134, 1136 (Colo. App. 1985). While peremptory

challenges are not constitutionally required, the right to exercise

such challenges is a substantial one. Id. However, “impairment of

the ability to shape a jury is no longer considered a due process

violation, and, more generally, a violation of a substantial right

occurs only where the error has had a substantial impact on the

outcome of the case.” Laura A. Newman, LLC v. Roberts, 2016 CO

9, ¶ 23. And, an error affects a substantial right only if “it can be

said with fair assurance that the error substantially influenced the

outcome of the case or impaired the basic fairness of the trial itself.”

Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (emphasis added)

(citation omitted); see C.R.C.P. 61.

¶ 23 When applying the harmless error standard to an error in jury

selection, “[w]hile the strength of the evidence supporting a verdict

is often an important consideration, so too is the specific nature of

the error in question and the nature of the prejudice or risk of

11 prejudice associated with it.” Johnson v. Schonlaw, 2018 CO 73,

¶ 12 (citing People v. Roman, 2017 CO 70, ¶ 14).

B. Analysis

¶ 24 The juvenile court called nineteen prospective jurors to the

jury box. Initially, the court gave each party — the Department, the

GAL, and the parents together — three peremptory challenges each,

as allowed by C.R.J.P. 4.3(b). But after counsel pointed out that

ten, rather than six, jurors would remain if each party exercised all

their peremptory challenges, the court gave four to each party, in

apparent violation of C.R.J.P. 4.3(b), which, as noted, limits

peremptory challenges to three per party (counting all respondents

as one party) and a total of nine.

¶ 25 Following voir dire, no one challenged any prospective juror for

cause. The parties then began using their peremptory challenges.

During that process, the Department’s counsel asked the court if all

parties were required to use all their peremptory challenges. The

court responded, “What you don’t use, I’ll use . . . . If you waive

and accept I’ll exercise challenges to get down . . . to six.” The

parties, while seemingly surprised, didn’t object to this procedure.

In the end, the Department and the parents each used all of their

12 respective peremptory challenges, but the GAL used only two. This

left nine jurors, one or two more than the six plus one or two

alternates allowed by the rules. See C.R.J.P. 4.3(a); C.R.C.P. 47(b).

¶ 26 The juvenile court then apparently used the GAL’s remaining

challenges to excuse two potential jurors. The court excused a

potential juror who had indicated she was taking medication that

required her to use the bathroom frequently and another man “for

no really good reason other than the fact that he’s recently

participated in a dependency and neglect environment and that

may just be too close.”

¶ 27 Father and mother argue that the court’s actions violated their

due process rights. The Department and GAL counter that father

and mother have failed to show how the court’s actions

substantially impacted the outcome of the jury trial; in essence,

they assert that any error was harmless. Father and mother reply

that it is impossible for them to state with specificity how the jurors

removed by the judge could have affected jury deliberations.

¶ 28 The court may have erred by using the GAL’s peremptory

strikes to excuse two prospective jurors. We say “may” because the

court was required to excuse at least one prospective juror to

13 comply with C.R.J.P. 4.3(a) and C.R.C.P. 47(b). So any error may

have been more semantic than substantive.

¶ 29 In any event, we conclude that any error was harmless, for

four reasons. First, as noted, the court was required to pare down

the jury to six in accordance with C.R.J.P. 4.3(a). Second, the court

explained its reasons for dismissing the jurors, and those reasons

were pragmatic; they didn’t suggest any bias on the court’s part.

Third, neither parent objected contemporaneously to the court’s

dismissal of the two jurors. Lastly, neither parent has articulated

how the court’s actions resulted in a proceeding that was

fundamentally unfair or how they were otherwise prejudiced. In

this respect, we note that they didn’t challenge any of the jurors

who ultimately served on any basis; they have never asserted that

any of these jurors lacked impartiality. 3 And no authority

recognizes a party’s right to a particular mix of impartial jurors.

Washington v. People, 186 P.3d 594, 600 (Colo. 2008) (a defendant

isn’t “entitled to a jury of any particular composition”) (quoting

Taylor v. Louisiana, 419 U.S. 522, 538 (1975)); People v. Vigil, 2015

3 The parents didn’t challenge any prospective juror for cause.

14 COA 88M, ¶ 24 (“[A] defendant is not entitled to have any particular

juror serve in his or her case.”) (cert. granted Mar. 20, 2017).

IV. Conclusion

¶ 30 The judgment is affirmed.

JUDGE ROMÁN and JUDGE LIPINSKY concur.