Peo in Interest of AR

• Court: Colorado Court of Appeals
• Decided: April 17, 2025
• Docket: 24CA1492
• Status: Unpublished

Opinion

24CA1492 Peo in Interest of AR 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1492 Mesa County District Court No. 24JV38 Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.R., a Child,

and Concerning M.K. and J.R.,

Appellants.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE LIPINSKY Johnson and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 17, 2025

Todd M. Starr, County Attorney, Brad Junge, Assistant County Attorney, Grand Junction, Colorado, for Appellee

Josie Burt, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant M.K.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant J.R. ¶1 M.K. (mother) and J.R. (father) appeal the judgment

adjudicating A.R. (the child) dependent or neglected. We affirm.

I. Background

¶2 In May 2024, the Mesa County Department of Human Services

(Department) received a report that mother had used

methamphetamine that morning and that the child, who was only

ten days old, was in her care. An intake caseworker responded to

mother’s home, where she resided with maternal grandfather, but

mother was not there. Maternal grandfather told the intake

caseworker he believed that mother might be at father’s home and

reported that father had a history of substance use.

¶3 During a telephone call with mother, the intake caseworker

asked to see the child. When mother refused, the caseworker

requested an emergency custody order. The caseworker arrived at

father’s residence less than two hours after the court entered the

order. Based on concerns that mother was using substances and

that father had not taken action to protect the child from harm, the

Department removed the child from the parents’ care and assumed

temporary legal custody.

1 ¶4 The Department then filed a petition in dependency or neglect

with respect to both parents. The parents denied the allegations

and asked for a jury trial. The juvenile court held a three-day jury

trial in July 2024. After hearing the evidence, the jury determined

that the Department had proven the allegations by a preponderance

of the evidence. Based on the jury’s verdicts, the court sustained

the petition, entered an adjudication, and adopted treatment plans

for the parents.

II. Sufficiency of the Evidence

¶5 The parents contend that the evidence was insufficient to

support the jury’s verdicts. We disagree.

A. Applicable Law and Standard of Review

¶6 As relevant here, a child is dependent or neglected if (1) the

child “lacks proper parental care through the actions or omissions”

of a parent; (2) the child’s “environment is injurious to his or her

welfare”; or (3) the child is “homeless, without proper care, or not

domiciled with his or her parent . . . through no fault of [the]

parent.” § 19-3-102(1)(b)-(c), (e), C.R.S. 2024. Proper parental care

means the minimum level of care or services and necessities that

are required to prevent any serious threat to the child’s health or

2 welfare. People in Interest of S.X.M., 271 P.3d 1124, 1131 (Colo.

App. 2011) (approving jury instruction containing this language);

CJI-Civ. 41:7 (2024). An injurious environment is a situation that

is “likely harmful” to the child. People in Interest of J.G., 2016 CO

39, ¶ 26, 370 P.3d 1151, 1160. Unlike other provisions in section

19-3-102, a child may be adjudicated under the injurious

environment provision with respect to one parent, even if the other

parent created the injurious environment. See People in Interest of

M.M., 2017 COA 144, ¶ 25, 486 P.3d 1177, 1182.

¶7 An adjudication of dependency or neglect must be based on

existing circumstances and related to the child’s status at the time

of adjudication. People in Interest of A.E.L., 181 P.3d 1186, 1192

(Colo. App. 2008). But that does not mean a juvenile court must

find that the child is receiving improper care at the time of the

hearing. S.X.M., 271 P.3d at 1130. Rather, an adjudication may be

based on past, current, or prospective harm. See People in Interest

of G.E.S., 2016 COA 183, ¶ 15, 409 P.3d 645, 650.

¶8 In considering prospective harm, a court must determine

whether the child will lack proper parental care or the child’s

environment will be injurious, if the child was returned to the

3 parent. S.X.M., 271 P.3d at 1130. Said another way, a juvenile

court may consider whether it is likely or expected that a child will

be dependent or neglected if returned to the parent. People in

Interest of S.N., 2014 COA 116, ¶¶ 15-16, 338 P.3d 508, 512. Such

a determination may be based on the “parent’s past conduct and

current circumstances.” See id. at ¶ 17, 338 P.3d at 512.

¶9 “Whether a child is dependent [or] neglected presents a mixed

question of fact and law because it requires application of

evidentiary facts to the statutory grounds.” M.M., ¶ 17, 486 P.3d at

1181. To establish that a child is dependent or neglected, a

department must prove the allegations in the petition by a

preponderance of the evidence. See § 19-3-505(1), (7)(a), C.R.S.

2024; People in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App.

2009). When determining whether the evidence is sufficient to

sustain an adjudication, we review the evidence in the light most

favorable to the prevailing party and draw every inference fairly

deducible from the evidence in favor of the jury’s verdicts. S.G.L.,

214 P.3d at 583. We will not disturb the jury’s verdicts if the

evidence supports them, even though reasonable people might

4 arrive at different conclusions based on the same facts. Id.; see

also People in Interest of T.T., 128 P.3d 328, 331 (Colo. App. 2005).

B. Analysis

¶ 10 Viewing the evidence in the light most favorable to the

Department and drawing every fairly deducible inference in favor of

the jury’s verdicts, we conclude for three reasons that the record

contains sufficient evidence to support the jury’s determination that

the child was dependent or neglected under subsections

19-3-102(1)(b) and (1)(c). See S.G.L., 214 P.3d at 583.

¶ 11 First, the Department presented sufficient evidence to

establish that, based on the parents’ past substance use and

treatment of other children, the child would lack proper parental

care or his environment would be injurious to his welfare if the

child was returned to the parents. See People in Interest of D.L.R.,

638 P.2d 39, 42 (Colo. 1981) (“[I]t has been held repeatedly that the

trial court may properly consider the treatment accorded other

children in determining whether the child before it is neglected [or]

dependent.”). At the adjudicatory hearing, both parents admitted

that they had a history of substance abuse, and mother specifically

acknowledged that she had used substances during her pregnancy

5 with the child. Mother also testified that she had used substances

during an earlier pregnancy, and father said that he and mother

were together at that time.

¶ 12 Second, the evidence also showed that the child would lack

proper parental care or would be in an injurious environment if

returned to the parents based on the parents’ substance use during

the case. See S.N., ¶ 18, 338 P.3d at 512 (noting that the factfinder

can consider a parent’s “conduct such as drug use” when

evaluating prospective harm). Among other things, the record

shows that mother never completed any of her court-ordered

urinalysis tests and, other than a hair follicle test (which was

positive for substances), father never submitted any drug screens.

See People in Interest of M.H-K., 2018 COA 178, ¶ 69 n.5, 433 P.3d

627, 638 n.5 (noting that a jury can infer a positive result from a

parent’s refusal to comply with court-ordered drug testing). In

addition, a caseworker testified that the parents had admitted to

using substances after the case began, which the parents conceded

at trial.

¶ 13 The Department’s expert witnesses opined that, based on the

parents’ substance use, the child lacked proper parental care and

6 his environment would be injurious if he was returned to the

parents. For example, a caseworker testified that a parent who

uses substances can struggle with providing necessities for a young

child, such as food, clothing, and shelter. She also said that the

child could be exposed to methamphetamine, which can enter the

child’s system if the parents are using it in the home.

¶ 14 Third, the Department submitted sufficient evidence to prove

that the child was dependent or neglected with respect to father

based on mother’s substance use. See M.M., ¶ 25, 486 P.3d at

1182 (noting that the father admitted the children were in an

injurious environment in the mother’s care); T.T., 128 P.3d at 331

(concluding that the child lacked proper parental care with respect

to father, based on evidence that mother used substances during

her pregnancy and father lived with her at that time). For example,

father told the intake caseworker that he knew mother used

substances, but that he did not take any action to protect the child

from her. Father also testified that he knew mother used

substances but did not have any concerns about her substance

use. An expert witness opined that father’s failure to act

demonstrated that he could not protect the child from harm.

7 ¶ 15 We acknowledge that mother completed inpatient treatment

during the case. But mother conceded that she had relapsed after

completing a previous program. Based on this information, a

caseworker opined that, despite mother’s recent compliance with

treatment, she had not sufficiently addressed her substance abuse

issues because of her “pattern” of “being sober for an amount of

time” and “then relapsing.”

¶ 16 Thus, although mother might continue to make sufficient

progress to be reunited with the child, the evidence noted above,

including mother’s potential for relapse, established that the child

would be dependent or neglected if returned to her. We cannot

reweigh the evidence to reach a different result. See S.G.L., 214

P.3d at 583; see also Thomas v. People, 2021 CO 84, ¶ 10, 500 P.3d

1095, 1099 (noting that an appellate court may not “invade the

jury’s province by second-guessing any findings that are supported

by the evidence”).

¶ 17 Nor are we persuaded by the parents’ assertion that the

Department improperly removed the child from the home. Although

evidence related to the child’s removal was relevant at the

adjudication hearing, it was not dispositive of whether the child was

8 dependent or neglected. See People in Interest of M.W., 140 P.3d

231, 233 (Colo. App. 2006) (noting that temporary protective orders

“are interim orders pending a final factual determination of the

allegations set forth in the petition in dependency or neglect”).

Therefore, even if the Department should have acted differently at

the time it removed the child from the home, the evidence was still

sufficient to establish that the child was dependent or neglected.

¶ 18 We also reject the parents’ argument that, because the

Department allowed other children to continue to reside in the

parents’ homes, there was insufficient evidence that the child was

dependent or neglected. Again, although this evidence may have

been relevant to the jury’s determination that the child was

dependent or neglected, it was not dispositive. See T.T., 128 P.3d at

331 (noting that the evidence was sufficient to support the jury’s

verdicts, even though one of the children remained in the mother’s

care); see also People in Interest of J.L.M., 143 P.3d 1125, 1127

(Colo. App. 2006) (noting that the parent-child legal relationship is

“personal between each parent and each child” and a court may

consider “differences between the children”).

9 ¶ 19 Finally, we disagree with the parents’ assertion that the

evidence was insufficient because it did not establish that the child

tested positive for substances at birth. Although the Department

did not establish that the child tested positive at birth, the evidence

indicated that mother (1) admitted to using substances during her

pregnancy and (2) intimated to maternal grandfather that the child

would be born substance exposed. In any event, nothing in section

19-3-102(1)(b) or (c) required the Department to establish that the

child was born substance exposed. Cf. § 19-3-102(1)(g) (saying that

a child is dependent or neglected when, among other things, the

child “is born affected by alcohol or substance exposure”). And the

Department did not base its dependency or neglect petition on

prenatal substance exposure. Rather, the Department alleged that

mother used substances after the child’s birth. In other words, the

Department did not need to prove that the child tested positive for

substance at birth because it did not allege that fact in its petition.

See People in Interest of A.M., 786 P.2d 476, 479 (Colo. App. 1989)

(noting that “[t]he purpose of an adjudicatory hearing is to

determine whether the factual allegations in the dependency [or]

neglect petition are supported by a preponderance of the evidence”).

10 ¶ 20 In sum, we conclude that the evidence was sufficient to

support the jury’s verdicts under section 19-3-102(1)(b) and (c).

Based on this conclusion, we need not consider whether the child

was also dependent or neglected under section 19-3-102(1)(e). See

People in Interest of S.M-L., 2016 COA 173, ¶ 29, 459 P.3d 572, 577

(“[S]ection 19-3-102 requires proof of only one condition for an

adjudication.”), aff’d on other grounds sub nom. People in Interest of

R.S. v. G.S., 2018 CO 31, 416 P.3d 905.

III. Disposition

¶ 21 The judgment is affirmed.

JUDGE JOHNSON and JUDGE MOULTRIE concur.