Peo in Interest of EQB

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 24CA0865
• Status: Unpublished

Opinion

24CA0865 Peo in Interest of EQB 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0865 Mesa County District Court No. 24JV13 Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.Q.B., a Child,

and Concerning M.T.,

Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

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

Josie Burt, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, D.C. (mother)

appeals the judgment adjudicating E.Q.B. (the child) dependent or

neglected. We affirm.

I. Background

¶2 In February 2024, the Mesa County Department of Human

Services received a referral that mother was at the emergency room

with the then-one-year-old child because mother believed the child

had bugs in her stool and thought that meant the child had been

sexually assaulted. But the medical professionals didn’t find

anything to indicate that the child’s stool was irregular or that the

child had been sexually assaulted. And based on mother’s conduct,

hospital staff was concerned that she was either under the

influence of drugs or experiencing psychosis, which rendered her

unable to take care of a child.

¶3 An assessment caseworker responded to the hospital and met

with mother. The caseworker noticed that mother had dilated

pupils, was stuttering and speaking erratically, couldn’t stand or sit

still, and was easily escalated. Mother told the caseworker that she

1 had used methamphetamine in the past but refused to answer

whether she had used any that day. Based on her interactions with

mother, the caseworker was concerned that mother wasn’t sober

and couldn’t care for the child. As a result, the Department

requested emergency protective custody of the child. The juvenile

court granted the request, and the Department placed the child in

foster care.

¶4 The Department then filed a petition in dependency and

neglect alleging concerns about mother’s substance use and mental

health. Mother denied the allegations and requested an

adjudicatory jury trial.

¶5 After a two-day trial, the jury rendered a verdict finding that

(1) the child lacked proper parental care as a result of mother’s acts

or failures to act; (2) the child’s environment was injurious to her

welfare; (3) the child was homeless or without proper care through

no fault of mother; and (4) the child wasn’t living at home with

mother through no fault of mother. Based on the jury’s verdict, the

2 court adjudicated the child dependent or neglected. The court later

entered a dispositional order adopting a treatment plan for mother.

II. Evidence of Mother’s Compliance with Drug Testing

¶6 Mother first contends that the juvenile court erred by allowing

several witnesses to testify that she refused to engage in the

voluntary drug testing that the Department requested prior to the

adjudicatory trial. The Department and guardian ad litem argue

that mother failed to preserve this argument for appeal, and we

agree.

¶7 Mother asserts that she preserved this argument “by raising

constitutional issues and fundamental rights during [her] opening

statement” at the adjudicatory trial. But mother didn’t discuss her

pre-adjudication compliance with voluntary drug testing in her

opening statement. And, although several witnesses testified that

mother refused to provide a urinalysis or hair follicle test in the two

months leading up to trial, mother never objected to any of that

testimony. She also never argued to the juvenile court that the

testimony regarding her refusal to engage in voluntary drug testing

3 was inadmissible. Accordingly, we decline to address this argument

for the first time on appeal. See People in Interest of M.B., 2020

COA 13, ¶ 14 (unless jurisdiction is implicated, appellate courts

generally review only issues presented to and ruled on by the lower

court).

III. Expert Testimony

¶8 Mother next contends that the juvenile court erred when it

permitted the permanency caseworker to testify as an expert in

child protection. We disagree.

A. Applicable Law and Standard of Review

¶9 CRE 702 provides that “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.”

¶ 10 To be admissible under CRE 702, expert testimony must be

both reliable and relevant. Core-Mark Midcontinent, Inc. v. Sonitrol

Corp., 2012 COA 120, ¶ 28. To determine whether testimony meets

these requirements, the court must consider whether: (1) the 4 scientific, technical, or specialized principles underlying the

testimony are reasonably reliable; (2) the expert is qualified to opine

on the matter; (3) the expert testimony will be helpful to the jury;

and (4) the probative value of the evidence is substantially

outweighed by the danger of unfair prejudice. Id.

¶ 11 A court may qualify a witness as an expert under any of the

five factors specified in CRE 702. Gresser v. Banner Health, 2023

COA 108, ¶ 47. The rule doesn’t require a proposed expert to

belong to any particular organization or have any specific

certification. People v. Bornman, 953 P.2d 952, 955 (Colo. App.

1997). When a witness is qualified to provide expert testimony

under one or more of the factors in CRE 702 but lacks certain

additional knowledge or training within their field of expertise, such

deficiency goes to the weight of the expert’s testimony, not its

admissibility. See People v. Lehmkuhl, 117 P.3d 98, 104 (Colo. App.

2004); see also Core-Mark, ¶ 28 (the fact that an expert witness

can’t support their opinion with certainty goes only to the opinion’s

weight, not its admissibility).

5 ¶ 12 The decision to admit expert testimony lies within the juvenile

court’s discretion, and we won’t disturb it absent an abuse of

discretion. People in Interest of M.W., 140 P.3d 231, 233 (Colo. App.

2006). A court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair. People in Interest of T.M.S., 2019

COA 136, ¶ 43.

B. Analysis

¶ 13 Over mother’s objection, the juvenile court found that the

permanency caseworker was qualified as an expert in child

protection based on her background, training, and experience.

Although mother argues that the caseworker didn’t have the

requisite background or knowledge to testify as an expert, the

record indicates otherwise. The caseworker testified that she had

taken child psychology classes and received two bachelor’s degrees,

one in psychology and another in communications. She had been a

permanency caseworker with the Department for two and a half

years. She was certified as a caseworker, which involved

approximately 120 hours of initial training and an additional 80

6 hours of ongoing training. And she had been responsible for

twenty-five permanency cases during her time with the Department.

The caseworker had also testified as an expert in child protection

approximately ten other times before the adjudicatory trial.

¶ 14 We acknowledge, as mother points out, that the caseworker

didn’t have a degree in social work, nor had she published any

papers or conducted any research in the field of social work. But

the juvenile court found that the caseworker was qualified as an

expert in child protection, not social work. And an expert isn’t

required to have performed a scientific or technical analysis for

their testimony to be admissible. See Core-Mark, ¶ 34. Moreover,

although a degree or experience in social work may have bolstered

the caseworker’s qualifications to opine about child protection,

neither was necessary to qualify her as an expert in child

protection. Rather, the lack of these attributes, which were

highlighted during counsel’s voir dire, went to the weight, not the

admissibility, of the caseworker’s expert testimony. See Lehmkuhl,

117 P.3d at 104.

7 ¶ 15 To the extent mother argues that the juvenile court’s failure to

make specific findings, in and of itself, constituted error, we

conclude that this argument is undeveloped. True, the court only

made specific findings regarding the caseworker’s qualifications,

while CRE 702 requires additional findings as to (1) the reliability of

the underlying scientific principles or specialized knowledge upon

which the expert testimony is based; (2) the usefulness of the

testimony to the jury; and (3) whether the probative value of the

evidence substantially outweighs any unfair prejudice. People v.

Shreck, 22 P.3d 68, 79 (Colo. 2001); see also Ruibal v. People, 2018

CO 93, ¶ 12 (the admissibility of all expert testimony is governed by

CRE 702, and the analysis set forth in Shreck applies to testimony

based on both specialized knowledge and scientific processes).

However, a court doesn’t err by admitting expert testimony without

specific findings if (1) “the record not only supports admission of the

contested testimony, but virtually requires it”; or (2) “Colorado has

already properly accepted the basis of the expert’s testimony.”

Kutzly v. People, 2019 CO 55, ¶ 11.

8 ¶ 16 Here, mother doesn’t explain whether, in the absence of the

specific findings, the record nevertheless “virtually require[d]”

admitting the contested testimony or whether Colorado has already

deemed the basis of caseworker’s testimony reliable. Thus, because

mother failed to develop this argument, we decline to address it.

See C.A.R. 28(a)(7)(B); People in Interest of D.B-J., 89 P.3d 530, 531

(Colo. App. 2004) (declining to address an appellate argument

presented without supporting facts, specific argument, or specific

supporting authorities).

¶ 17 We also conclude, contrary to mother’s argument, that the

juvenile court properly admitted the caseworker’s testimony about

the child’s hair follicle results under CRE 703. We recognize that

the court found that the Department’s Exhibit 1, which contained

the child’s hair follicle test results, was inadmissible because the

Department failed to lay a proper foundation for admissibility under

the hearsay exception for business records. But under CRE 703,

information relied upon by a caseworker qualified as an expert is

generally admissible for the limited purpose of explaining the basis

9 of the caseworker’s opinion, as long as the information is of the type

reasonably relied upon by experts in the field. See People in Interest

of M.M., Jr., 215 P.3d 1237, 1250 (Colo. App. 2009). Here, the

caseworker testified that she relied on the child’s hair follicle test

results to form her opinion that the child was in an unsafe

environment and that drug test results are generally relied upon by

experts in her field. Moreover, the court gave a limiting instruction

to the jury, stating that the jury was only to consider the

caseworker’s testimony regarding test results as the basis of her

expert opinion.

¶ 18 Based on the foregoing, we discern no abuse of discretion in

the juvenile court’s decision to qualify the permanency caseworker

as an expert in child protection and admit her expert testimony.

IV. Sufficiency of the Evidence

¶ 19 Mother contends that the Department failed to present

sufficient evidence for the jury to find the child dependent or

neglected. We aren’t persuaded.

10 A. Applicable Law and Standard of Review

¶ 20 The purpose of an adjudicatory jury trial is to determine

whether the factual allegations in the dependency and neglect

petition are supported by a preponderance of the evidence and

whether the status of the subject child or children warrants

intrusive protective or corrective state intervention into the familial

relationship. People in Interest of G.E.S., 2016 COA 183, ¶ 13. A

child may be adjudicated dependent or neglected if the government

proves that one or more of the conditions set forth in section 19-3-

102, C.R.S. 2024, exists. People in Interest of S.M-L., 2016 COA

173, ¶ 25.

¶ 21 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. People in Interest of S.N.

v. S.N., 2014 CO 64, ¶ 21. In determining whether the evidence is

sufficient to sustain the adjudication, 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

11 decision. See People in Interest of S.G.L., 214 P.3d 580, 583 (Colo.

App. 2009). The credibility of the witnesses and the sufficiency,

probative effect, and weight of the evidence, as well as the

inferences and conclusions to be drawn therefrom, are within the

purview of the jury. Id. We are bound by a jury’s findings, and we

will not reverse those findings if the record supports them, even if

reasonable people might arrive at different conclusions based on the

same facts. Id.; People in Interest of T.T., 128 P.3d 328, 331 (Colo.

App. 2005).

¶ 22 As mother acknowledges in her brief, the juvenile court relied

on the jury’s verdict to adjudicate the child dependent or neglected

because (1) the child lacked proper parental care based on mother’s

acts or omissions, section 19-3-102(1)(b); (2) the child’s

environment was injurious to her welfare, section 19-3-102(1)(c);

and (3) through no fault of mother, the child was homeless, without

proper care, or not domiciled with a parent, guardian, or legal

custodian, section 19-3-102(1)(e).

12 ¶ 23 Mother argues that the Department’s evidence was insufficient

to prove that the child lacked proper parental care or was in an

injurious environment. But mother doesn’t argue that the

Department failed to prove that the child was homeless, without

proper care, or not domiciled with mother through no fault of her

own. Thus, because mother doesn’t challenge the evidence

supporting adjudication under section 19-3-102(1)(e), we can affirm

the adjudication judgment regardless of whether the evidence was

sufficient to sustain adjudication under sections 19-3-102(1)(b) and

(c). See S.M-L., ¶ 29 (“section 19-3-102 requires proof of only one

condition for an adjudication”).

¶ 24 But even if we were to consider the merits of mother’s

sufficiency argument, the evidence was sufficient to support the

jury’s findings that the child lacked proper parental care based on

mother’s acts or omissions and that the child’s environment was

injurious to her welfare. Specifically, the assessment caseworker

testified that when she met with mother at the hospital, mother

appeared to be under the influence because her pupils were dilated,

13 she couldn’t sit or stand still, her speech and movements were

erratic, and she was easily escalated. Mother also admitted to the

assessment caseworker that she had used methamphetamine in the

past but refused to answer whether she had used any that day. At

that point, the assessment caseworker didn’t believe that mother

was sober or that the child would be safe if returned to her,

particularly in light of the child’s young age and complete

dependence on a caregiver to meet her needs. Thus, the

assessment caseworker opined that, at the time of removal, the

child lacked proper parental care and would be in an injurious

environment if returned to mother.

¶ 25 Moreover, the family time supervisor testified that although

family time generally went well, mother had become upset and

escalated during at least one incident. Based on that incident, the

family time supervisor was concerned that mother couldn’t regulate

her emotions around the child, which scared the child and created

an unhealthy environment for her.

14 ¶ 26 Last, the permanency caseworker testified that she had

continuing concerns about mother’s sobriety based, at least in part,

on mother’s refusal to engage in any sobriety monitoring and her

ongoing “erratic behaviors.” As a result, the permanency

caseworker opined that mother couldn’t provide proper parental

care for the child. The permanency caseworker also opined that the

child would be in an injurious environment if returned to mother

based, at least in part, on her opinion that the child had been in an

environment in which someone was using methamphetamine.

¶ 27 This evidence, when viewed in the light most favorable to the

Department, was sufficient to support the jury’s findings that the

child lacked proper parental care based on mother’s acts or

omissions and that the child’s environment was injurious to her

welfare. Accordingly, we are bound by the jury’s findings and

discern no basis to reverse the adjudication under sections 19-3-

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

V. Disposition

¶ 28 We affirm the judgment.

15 JUDGE FREYRE and JUDGE SCHOCK concur.