25CA0179 Peo in Interest of DHB 08-28-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0179 El Paso County District Court No. 24JV30324 Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Appellee,
In the Interest of D.H.B. and T.A.B., Children,
and Concerning M.M.B.,
Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 28, 2025
Kenneth R. Hodges, County Attorney, Melanie P. Douglas, Contract Attorney, Colorado Springs, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem, for D.H.B.
Josi McCauley, Counsel for Youth, Superior, Colorado, for T.A.B.
Just Law Group LLC, John F. Poor, Denver, Colorado, for Appellant ¶1 In this dependency and neglect action, M.B. (mother) appeals
the judgment entered on a jury’s verdict adjudicating D.H.B. (the
child) and T.A.B. (the youth) dependent or neglected. Mother also
appeals the dispositional order adopting a treatment plan. We
affirm.
I. Background
¶2 The El Paso Department of Human Services (the Department)
filed a petition in dependency or neglect, raising concerns about
mother’s substance dependence and mental health and about
domestic and family violence perpetrated by mother’s boyfriend.
Mother requested an adjudicatory jury trial. After a two-day trial,
the jury returned special verdicts finding that the ten-year-old child
and sixteen-year-old youth were dependent or neglected under
sections 19-3-102(1)(a), (b), (c), and (d), C.R.S. 2025. The court
then adopted a treatment plan requiring that mother address
mental health, alcohol and substance use, domestic and family
violence, and protective parenting skills.
II. Evidence at the Adjudicatory Trial
¶3 Mother contends that the juvenile court erred by (1) admitting
evidence of her lack of cooperation with the Department and failing
1 to cure the error by giving the jury her proposed instruction; and
(2) permitting the youth to testify as a lay witness about her
substance abuse. We disagree.
A. Standard of Review and Relevant Law
¶4 We review evidentiary rulings for an abuse of discretion.
People in Interest of M.V., 2018 COA 163, ¶ 52, overruled on other
grounds by People in Interest of E.A.M. v. D.R.M., 2022 CO 42. A
court abuses its discretion when its ruling is based on an erroneous
understanding or application of the law or is manifestly arbitrary,
unreasonable, or unfair. Id. An error is harmless unless “it can be
said with fair assurance that it substantially influenced the
outcome of the case or impaired the basic fairness of the trial itself.”
Id. at ¶ 66.
B. Mother’s Lack of Cooperation with the Department
¶5 While a parent may voluntarily work with a department to
alleviate any child protection concerns, “a parent need not
cooperate with [a] department’s efforts to investigate the factual
allegations supporting the petition.” People in Interest of G.E.S.,
2016 COA 183, ¶ 14. A parent’s refusal to voluntarily participate in
2 a department’s assessment process may not be used to show that a
child is dependent or neglected. Id. at ¶ 37.
¶6 Mother contends that “the Department essentially invited the
jury to make its decision on adjudication based on mother’s
willingness, pre-adjudication, to cooperate with the Department.”
In particular, mother argues that the juvenile court erred by
allowing the Department to question her about refusing to sign
releases of information and by allowing a caseworker to testify both
about the releases and about mother’s refusal to allow the
Department to see her home. But the juvenile court found that this
evidence rebutted mother’s claim that the Department had not
provided her with appropriate services — essentially, it ruled that
mother had opened the door to this evidence. See Golob v. People,
180 P.3d 1006, 1012 (Colo. 2008) (“The concept of ‘opening the
door’ represents an effort by courts to prevent one party in a
criminal trial from gaining and maintaining an unfair advantage by
the selective presentation of facts that, without being elaborated or
placed in context, create an incorrect or misleading impression.”).
And Mother does not address this basis for the court’s ruling. See
People v. Archer, 2022 COA 71, ¶ 42 (because appellant did not
3 challenge the trial court’s alternative grounds for admitting
evidence, appellate court was “required to conclude” the evidence
was properly admitted).
¶7 Mother also contends that the juvenile court erred by allowing
the Department to question her about whether it had requested
that she undergo urinalysis testing (UAs). But mother denied that
the Department had requested UAs, and a caseworker confirmed
that the Department never asked mother to do UAs, so we fail to see
how this evidence reflected mother’s alleged failure to comply.1
¶8 Moreover, the Department did not argue that mother’s refusal
to cooperate or participate in services indicated that the children
were dependent or neglected. Cf. G.E.S., ¶ 35 (holding it was error
when the department argued to the jury that the child was at risk
because of a parent’s pre-adjudication refusal to cooperate). On the
1 Mother also contends that the juvenile court erred by allowing a
caseworker to testify that mother had not provided documentation of sobriety, allowed the Department to assess her home, or signed releases to allow the Department to make referrals for mental health and substance abuse services. But the court sustained mother’s counsel’s objection to this evidence, and counsel did not request further relief. See People v. Alemayehu, 2021 COA 69, ¶ 101 (declining to review issue when trial court sustained objection and counsel requested no additional relief).
4 contrary, the caseworkers testified repeatedly that mother did not
have to use services provided by the Department or work with the
Department in any capacity pre-adjudication. And during mother’s
testimony, the juvenile court provided the following
contemporaneous limiting instruction, to which mother’s counsel
agreed:
[A] parent prior to an adjudicatory trial is never required to complete services, engage in services. And so I am going to allow some limited questioning on that only to rebut what the issue has been about the lack of visitation or inappropriate visitation and the delays on the visitation. So you’re only to consider it for that limited purpose of further explaining why the Department has or has not expanded mother’s parenting time, but you shall not consider it for purposes of determining the question regarding adjudication in this case because [mother] is not required prior to adjudication to complete any services at all.
Absent evidence to the contrary, which we do not have, we presume
the jury followed the court’s instruction. People v. Ray, 2025 CO
42, ¶ 135.
¶9 Even so, mother contends that the court also should have
given her proposed closing instruction informing the jury that “it
was not permitted to draw any negative inferences from or
5 otherwise rely on Mother’s non-engagement” when adjudicating the
children. Mother argues that the court erred by failing to give the
instruction “given the amount of improper evidence that was
admitted.” But, as discussed, the juvenile court did not admit
improper evidence. And mother does not otherwise explain why
declining to give her proposed closing instruction was an abuse of
discretion, particularly given the court’s contemporaneous limiting
instruction. See People in Interest of S.X.M., 271 P.3d 1124, 1129
(Colo. App. 2011) (“A trial court’s decision to give a particular
instruction, or to reject a party’s tendered instruction, is reviewed
for an abuse of discretion.”).
¶ 10 Thus, we discern no error in the juvenile court’s decisions to
(1) allow the evidence at issue and (2) decline the closing instruction
mother proposed.
C. The Youth’s Testimony About Mother’s Substance Use
¶ 11 To determine whether testimony is lay testimony under CRE
701 or expert testimony under CRE 702, a trial court must look to
the basis for the opinion. Venalonzo v. People, 2017 CO 9, ¶ 2. “If
the witness provides testimony that could be expected to be based
on an ordinary person’s experiences or knowledge, then the witness
6 is offering lay testimony.” Id. “If, on the other hand, the witness
provides testimony that could not be offered without specialized
experiences, knowledge, or training, then the witness is offering
expert testimony.” Id. A lay witness may express an opinion as to
whether a person was under the influence of drugs or alcohol as
long as a proper foundation has been laid. People v. Russell, 2014
COA 21M, ¶ 23, aff’d, 2017 CO 3, ¶ 23.
¶ 12 The youth first testified that he was “pretty sure” that mother
was using “crystal meth.” Mother’s counsel objected, and the
Department agreed to lay further foundation. Upon further
questioning, the youth testified that mother had a “clear pipe with
little capsules of crystals” and that she would go into the bathroom
with it “and would come out with this rubbery type of smell.”
¶ 13 The youth also testified that he had seen mother use alcohol.
Mother’s counsel objected again. The court overruled the objection,
but provided the following limiting instruction:
[L]et me just make it clear, ladies and gentlemen of the jury, currently [the youth] is not a forensic chemist. He is not an expert. He is testifying about what he believes a substance is. The jury will decide how much weight, if any, to give to that testimony.
7 ¶ 14 The youth went on to describe the cans of alcohol he observed
mother drinking from and her behavior when she was drinking from
the cans. The majority of the youth’s testimony focused on the
frequency and impact of mother’s drinking, including her drinking
while driving. And on cross-examination, the child admitted that
he had never before shared concerns about mother’s use of “crystal
meth.”
¶ 15 We discern no reversible error by the juvenile court in
admitting the youth’s testimony. Mother does not contend, and the
record does not suggest, that the youth’s opinion about what drug
mother was using in his home was based on any specialized
training or education. On the contrary, the youth testified based on
his observation of the substance in mother’s possession. And, to
the extent that the jury may have been confused, the court’s
limiting instruction made clear that the youth was not an expert
and the jury should not consider his testimony about drugs or
alcohol in the home to be expert testimony.
III. Sufficiency of the Evidence
¶ 16 Mother next contends that, although “[t]here was evidence
during the adjudication trial that, prior to the [youth and child’s]
8 removal, mother consumed alcohol, may have used other
substances, and was in a relationship that was characterized by
domestic violence . . . , by the time of the adjudication trial, mother
had largely resolved these concerns.” We disagree.
A. Standard of Review and Applicable Law
¶ 17 In determining whether the evidence is sufficient to sustain an
adjudication of dependency or neglect, 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 jury’s
decision. People in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App.
2009); see also People in Interest of T.T., 128 P.3d 328, 331 (Colo.
App. 2005). We will not reverse the jury’s verdict just because
reasonable people might arrive at different conclusions based on the
same facts. S.G.L., 214 P.3d at 583.
¶ 18 The purpose of an adjudicatory trial is to determine whether
the child is dependent or neglected under section 19-3-102 and
whether that status warrants governmental intervention. People in
Interest of N.G., 2012 COA 131, ¶ 39; see also K.D. v. People, 139
P.3d 695, 699 (Colo. 2006) (noting that the adjudication is not
made as to the parents but relates only to the child’s status). As
9 relevant here, a child or youth is dependent or neglected when (1) a
parent has subjected the child or youth to mistreatment or abuse,
or suffered or allowed another to mistreat or abuse the child or
youth without taking lawful means to stop the mistreatment or
abuse and prevent it from recurring; (2) the child or youth lacks
proper parental care through the actions or omissions of the parent;
(3) the child or youth’s environment is injurious to their welfare; or
(4) a parent fails or refuses to provide the child or youth with care
necessary for their health, guidance, or well-being.
§ 19-3-102(1)(a)-(d). Section 19-3-102 requires proof of only one
such condition for an adjudication. See People in Interest of S.M-L.,
2016 COA 173, ¶ 29, aff'd on other grounds sub nom. People in
Interest of R.S. v. G.S., 2018 CO 31. 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. S.G.L., 214 P.3d at 583.
¶ 19 An adjudication of dependency or neglect must be established
by a preponderance of the evidence. People in Interest of A.E.L., 181
P.3d 1186, 1196 (Colo. App. 2008). The credibility of the witnesses
and the sufficiency, probative effect, and weight of the evidence, as
10 well as the inferences and conclusions to be drawn therefrom, are
matters within the jury’s province. People in Interest of E.S., 49
P.3d 1221, 1226 (Colo. App. 2002); see K.D., 139 P.3d at 702.
B. Analysis
¶ 20 Mother insists that the evidence was insufficient to support an
adjudication because “the two major justifications for the
Department’s involvement — mother’s alleged substance use and
domestically violent relationship — were no longer ongoing child
protection concerns by the time of the adjudication trial.” This is
because, mother contends, she stopped drinking and ended the
domestically violent relationship.
¶ 21 At the trial, mother testified that she “absolutely recognize[d]”
that she had a problem with drinking alcohol. She testified that her
last drink was the week before the adjudicatory trial and that she
didn’t bring open containers of alcohol with her when she drove
“anymore.” But she also testified that she was drinking and using
substances more in the last three months, and that substance
abuse had “been a problem for many years.” The youth, the child,
and mother’s adult daughter all testified extensively about mother’s
long-term alcohol use and its impact on her ability to care for the
11 child and the youth. Given this record, the jury could have fairly
deduced that one week of sobriety was not sufficient to resolve the
concerns related to mother’s drinking and substance dependence.
¶ 22 Mother also told the jury that she “was in an abusive
relationship, and that was not okay.” Mother testified that her
former boyfriend hit her and that she “believe[d] something
happened” between the boyfriend and the child but did not “see this
as child abuse.” Mother testified that she broke up with the
boyfriend a few months before the adjudicatory trial and was not
intending to resume the relationship. But the caseworker, an
expert in child protection and child welfare, opined that mother did
not appear able to recognize the signs of an abusive relationship, a
necessary skill to keep her, the youth, and the child out of similar
situations in the future.
¶ 23 Mother also testified that, at the time of the adjudicatory trial,
she had “a lot of people over” at her home, though she knew this
was in violation of her lease. She testified that she did not know
the last name of one of these individuals and that she had “nothing
to do with” a person who was seen drinking alcohol at her home
while the youth was there. Mother refused to answer other
12 questions about the people staying in the home. The youth, who
met some of these individuals, testified that he did not know them
and would not feel safe returning to mother’s home. The
caseworker testified that she was concerned that mother may not
know who was in her home and that mother was not acting as a
protective parent because these individuals could cause her to lose
her housing. The caseworker testified that, with these other adults
living in the home, “it sounds like [the youth and the child] have no
place to return home to.”
¶ 24 The jury also heard from the child, who testified that mother
was “not acting normal” at the family time held the week before the
adjudicatory trial. The child testified that he did not feel safe at the
family time session and would not feel safe returning to mother’s
home based on her demeanor during family time. While the child
agreed that mother was “doing a little bit better,” he did not feel
that she was better to the point where he would be comfortable
returning to her care.
¶ 25 From the above-described evidence, the jury could reasonably
infer that the youth and the child were each dependent or neglected
under one or more of the statutory criteria presented. See
13 § 19-3-102(1)(a)-(d). Accordingly, we will not disturb the jury’s
verdict.
IV. Dispositional Orders
¶ 26 Finally, Mother contends that the juvenile court erred by
“ordering a boilerplate, highly intrusive treatment plan.” We
discern no error.
¶ 27 “The trial court has discretion to formulate a treatment plan
reasonably calculated to render the parent fit to provide adequate
parenting to the child within a reasonable time and that relates to
the child’s needs.” People in Interest of C.L.S., 934 P.2d 851, 855
(Colo. App. 1996); see also § 19-1-103(12), C.R.S. 2025 (defining an
“appropriate treatment plan”). Again, a court abuses its discretion
when its ruling is based on an erroneous understanding or
application of the law or is manifestly arbitrary, unreasonable, or
unfair. M.V., ¶ 52.
¶ 28 Upon an adjudication of a child as dependent or neglected, the
juvenile court must fashion a treatment plan designed to “preserve
the parent-child legal relationship by assisting the parent in
overcoming the problems that required intervention into the family.”
14 People in Interest of K.B., 2016 COA 21, ¶ 11. “In determining
whether a treatment plan is appropriate, the court must consider
whether the plan’s objectives adequately address the safety
concerns identified during the assessment of the family.” Id. at
¶ 14. Because the purpose of a treatment plan is to address the
material issues that are barriers to reunifying children with their
parents, it is appropriate for a treatment plan to address those
issues even if the adjudication was not necessarily predicated upon
them. C.L.S., 934 P.2d at 856.
¶ 29 Mother contends that the treatment plan was inappropriate
because it “required mother to interact regularly with the
department and its contracted providers” despite mother’s “deep
distrust” of the Department. At the dispositional hearing, the
juvenile court acknowledged mother’s objection to the Department
being involved with her family. Nonetheless, the court found that
mother’s cooperation with the department was “a necessary part of
a successful treatment plan” and “in the children’s best interest.”
Even so, the court ordered that mother could locate her own
providers to meet the requirements of the treatment plan and did
15 not need to go through the Department or use providers the
Department chose. The court also ordered that, if mother wanted
to work with a mental health provider who could not provide a
psychological evaluation, the court would likely amend the
treatment plan to conform to mother’s chosen provider. We discern
no abuse of the court’s discretion in these orders.
¶ 30 Mother also contends that the child protection concerns that
led to the Department’s involvement “had been entirely or nearly
resolved by the time of the adjudication trial,” rendering the
treatment plan unnecessary. But the record belies these
assertions, as more fully addressed above. The juvenile court found
that the youth, the child, and mother’s adult daughter all provided
credible testimony detailing their concerns with mother’s mental
health, alcohol consumption, relationships involving domestic
violence, and lack of protective parenting. To address these ongoing
child protection concerns, the court adopted a treatment plan
requiring mother to complete assessments for substance
dependence, mental health, domestic violence, and family violence.
Because the record supports the need to address these child
protection concerns, we discern no abuse of the court’s discretion in
16 ordering mother to complete assessments to determine what, if any,
treatment might be necessary to remedy them. See K.B., ¶ 11.2
¶ 31 Mother also claims that the court adopted a “boilerplate,
highly intrusive treatment plan that was neither tailored to the
family’s specific needs nor reasonably calculated to lead to a
successful family reunification.” But mother does not develop this
claim beyond her bald assertion. We therefore decline to address it
further. See People in Interest of D.B-J., 89 P.3d 530, 531 (Colo.
App. 2004) (where an appellant does not identify supporting facts,
make specific arguments, or set forth specific authorities to support
a contention, the contention will not be addressed); see also Cikraji
v. Snowberger, 2015 COA 66, ¶ 10 (an appellate court is not
required to “comb the record” for facts supporting a party’s
argument that are not cited in the briefs).
2 At the dispositional hearing, mother did not object to the
remaining treatment plan objectives requiring her to establish and maintain self-sufficiency, participate in family time, and attend life skills and a nurturing parenting program. Mother does not specifically challenge these components of the plan on appeal either. As a result, we do not address them.
17 V. Disposition
¶ 32 We affirm the judgment adjudicating the child and the youth
dependent or neglected and the dispositional order adopting the
treatment plan for mother.
JUDGE DUNN and JUDGE SCHOCK concur.