24CA1269 Peo in Interest of JRM 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1269 Adams County District Court No. 21JV106 Honorable Caryn A. Datz, Judge
The People of the State of Colorado,
Appellee,
In the Interest of J.R.M. and L.P-S., Children,
and Concerning D.R.P.,
Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE GRAHAM* Dunn and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Heidi Miller, County Attorney, Conor Hagerty, Assistant County Attorney, Westminster, Colorado, for Appellee
Debra W. Dodd, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this dependency and neglect proceeding, D.R.P. (mother)
appeals the juvenile court’s judgment adjudicating J.R.M. and
L.P-S. (the children) dependent and neglected after a jury trial. We
affirm.
I. Background
¶2 The Adams County Department of Human Services filed a
petition in dependency and neglect, which it later amended,
regarding the children. In 2022, the juvenile court adjudicated the
children dependent and neglected. A division of this court reversed
mother’s adjudication and remanded the case for a new trial. See
People in Interest of J.R.M., 2023 COA 81, ¶ 21.
¶3 The Department filed a second amended petition in
dependency and neglect due to mother’s lack of engagement and
issues related to her sobriety.
¶4 The juvenile court held a four-day adjudicatory jury trial. At
the close of evidence, the jury returned verdicts finding that
(1) mother abandoned J.R.M.; (2) mother mistreated or abused the
children; (3) the children lacked proper parental care as a result of
mother’s acts or failures to act; (4) the children’s environment was
injurious to their welfare; and (5) mother failed or refused to provide
1 the children with proper or necessary subsistence, education,
medical care, or any other care necessary for their health, guidance,
or well-being.
II. Discussion
¶5 On appeal, mother contends that the juvenile court reversibly
erred when it (1) declined to grant a mistrial after an ongoing
caseworker improperly interacted with a juror and twice violated the
court’s evidentiary orders while testifying; and (2) denied her
challenge under Batson v. Kentucky, 476 U.S. 79 (1986). We
disagree with mother’s contentions.
A. Mistrial
1. Applicable Law and Standard of Review
¶6 “A mistrial is a drastic remedy that is warranted only when the
prejudice to the [moving party] is so substantial that its effect on
the jury cannot be remedied by other means.” People v. Cousins,
181 P.3d 365, 373 (Colo. App. 2007) (quoting People v. Dore, 997
P.2d 1214, 1221 (Colo. App. 1999)). A trial court has broad
discretion to grant or deny a motion for a mistrial, and we will not
reverse its decision absent an abuse of that discretion and prejudice
to the moving party. People v. Salas, 2017 COA 63, ¶ 9. “A trial
2 court can better evaluate any adverse effect that improper
testimony might have upon a jury than can a reviewing court.
Thus, absent an abuse of discretion, the trial court’s denial of a
motion for mistrial will not be disturbed on review.” People v. Ned,
923 P.2d 271, 274 (Colo. App. 1996).
¶7 Similarly, a juvenile court “has substantial discretion in
deciding questions concerning the admissibility of evidence and
broad discretion to determine the relevancy of evidence, its
probative value and its prejudicial impact.” E-470 Pub. Highway
Auth. v. 455 Co., 3 P.3d 18, 23 (Colo. 2000). Therefore, we will not
disturb the juvenile court’s ruling absent an abuse of that
discretion. See id.
¶8 A juvenile court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law. People in Interest of A.N-B., 2019 COA 46, ¶ 9.
2. Additional Facts
a. Improper Interaction with a Juror
¶9 On the second day of trial, mother’s counsel told the juvenile
court that an ongoing caseworker and advisory witness had “walked
up to a juror and gave her a box of tissues” and that “[s]he should
3 not be interacting with the jury in that way.” Counsel then moved
for a mistrial.
¶ 10 The juvenile court denied the motion for a mistrial, finding
that the act did not “rise[] to the level of biasing a juror towards the
petitioner to the point where manifest injustice has occurred and
requires a mistrial.” The court instructed the county attorney to
direct the caseworker not to have any interactions with the jury
moving forward.
¶ 11 At a subsequent break in the proceedings, mother’s counsel
indicated that “not only did [the caseworker] provide a tissue box
when we were up at the bench conference, but she’s also been
talking to the jury across the bar prior to this.” Counsel described
it as a “quick interaction.”
¶ 12 When questioned by the juvenile court, the caseworker said
that the juror said to her, “My husband says I sneeze a lot. I have
to stop at three.” And the caseworker responded, “Here you go.”
When the court questioned the juror, the juror said, “We were
talking about sneezing. And I said, ‘I have allergies.’ And then I
made a joke that my husband says when I sneeze that I only get,
like, four sneezes before he stops saying ‘Bless you.’” The juror
4 indicated that she had no further discussion with the caseworker
and that the interaction did not affect her ability to be fair in this
case.
¶ 13 Mother’s counsel renewed the motion for a mistrial. The
juvenile court again denied the motion, finding that what occurred
was “an innocuous exchange that had nothing to do with the
matters of this case or the trial procedures or any of the witness
testimony, and [the juror] has been questioned and has indicated
that it had no influence on her in this proceeding.”
b. Violations of the Juvenile Court’s Evidentiary Orders
¶ 14 Prior to the adjudicatory trial, both parties filed motions and
proffers regarding limitations on evidence. The juvenile court
excluded evidence of mother’s prior cases, including a dependency
and neglect case, with the exception of a single recent criminal case
if mother were to testify. The court also ruled that, with the
exception of the recent criminal case, evidence that mother was
arrested, had outstanding warrants, was on probation, was in jail
or absconded, or was in the Department of Corrections would not
be permitted. The court later modified its order and permitted
testimony regarding the time periods that mother was incarcerated
5 but “without mention of which facility or any specifics regarding the
conviction or sentence, subject to the [c]ourt’s prior ruling regarding
the use of any felony conviction for purposes of impeachment
should [mother] testify.” The court ordered the parties to inform
any potential witness of the orders prior to testifying and to provide
a limiting instruction.
¶ 15 At the beginning of the caseworker’s testimony, the county
attorney asked the caseworker about the child protection concerns
that led to the opening of this case. The caseworker testified that
“the original [referral] was because [L.P-S.] was born in the hospital.
He did not test positive for substance abuse, but there was a record
of that being an issue in [mother’s] past pregnancies.” Mother’s
counsel objected and moved for a mistrial, arguing that this
testimony violated the juvenile court’s order prohibiting evidence of
mother’s prior dependency and neglect case. The court declined to
grant a mistrial, finding that the requested remedy was “extreme”
but that the caseworker’s statement “rises to the level of manifest
injustice.” The court decided to “instruct the jury to disregard the
last answer and strike the answer” and to admonish the county
attorney regarding the expectation that his witnesses understand
6 the court’s pretrial evidentiary rulings. In a subsequent discussion,
the court found that the caseworker “eliciting this information,
unprompted by the question with knowledge of . . . this [c]ourt’s
pretrial ruling for which she was present for, constituted a rather
gratuitous statement that inserted this information improperly
before the jury and in violation of the [c]ourt’s pretrial order.”
¶ 16 Later, the caseworker testified about her contacts with mother
to establish visits with the children. The caseworker indicated that
she first contacted mother while mother was in custody and that
she received notification via text that mother had moved facilities.
The county attorney asked her, “Did that let you know that she was
no longer in jail?” The caseworker responded, “She was no longer
in that jail, correct.” At a bench conference, mother’s counsel
argued that this testimony violated the juvenile court’s pretrial
evidentiary orders and requested a mistrial “because we have a
pattern and record of the violations that seems intentional at this
point.” In the alternative, counsel asked that the caseworker be
struck as a witness. The court elected to excuse the jury for the
night and review the caseworker’s testimony before making a ruling
on the motion for a mistrial or an appropriate sanction.
7 c. The Juvenile Court’s Ruling
¶ 17 The next morning, the juvenile court found that “the most
prejudicial violation to [mother] was the insertion of the reference of
records of [mother’s] prior pregnancies involving substance use as it
did place [mother’s] past conduct directly at issue.” The court also
found that the caseworker’s additional violation involving her
comment that mother “was no longer in that jail” “[did] not
constitute prejudice warranting a mistrial.” However, the court
expressed concern “that the cumulative nature of the violations and
the risk that additional violations of pretrial orders will occur,
despite instructions or admonition of this [c]ourt, is likely.” The
court ruled the caseworker’s testimony struck from the record and
prohibited her from testifying further. The court also included a
cautionary instruction about struck evidence in the written jury
instructions.
3. Analysis
¶ 18 Mother argues that the juvenile court’s striking the
caseworker’s testimony and prohibiting her from testifying further
were insufficient to cure the prejudice to mother from the
caseworker’s interaction with the jury and improper testimony. She
8 asserts that the tissue box incident established a friendly rapport
between the caseworker and the juror, which may have later caused
the juror “to favor or align with the ‘friendly’ side.” She further
claims that the jury may have drawn impermissible character or
propensity evidence under CRE 403 and 404 from the caseworker’s
reference to mother’s past pregnancies involving drug use. Finally,
mother asserts that “by mentioning that [she] was no longer in ‘that
jail,’ the jurors may have drawn the inference that [she] is a
habitual criminal, as well as other similarly impermissible character
or propensity conclusions.”
¶ 19 We conclude that a mistrial was not warranted because the
questioning of the juror, admonishment of the caseworker, curative
instructions, striking of the caseworker’s testimony, and prevention
of further testimony from the caseworker were sufficient to remedy
any prejudice to mother from the caseworker’s actions.
¶ 20 A new trial is required only “where there is a reasonable
possibility that the verdict was tainted by the introduction of
outside . . . influences into the jury deliberations.” Wiser v. People,
732 P.2d 1139, 1143 (Colo. 1987). We conclude that there is no
reasonable possibility that the interaction between the juror and the
9 caseworker had any effect on the verdict. The record demonstrates
that the nature of the interaction was brief and unrelated to the
matters of this case. Moreover, the juvenile court instructed the
county attorney to advise the caseworker that she must no longer
interact with the jurors. And most importantly, the court took the
remedial step of questioning the juror, during which the juror
indicated that the interaction with the caseworker had no impact on
her decision-making in the trial.
¶ 21 Regarding the caseworker’s testimony that violated the
juvenile court’s pretrial evidentiary rulings, when inadmissible
evidence is presented to the jury, “the factors relevant to the
exercise of discretion to declare a mistrial include the nature of the
inadmissible evidence, the weight of admissible evidence of guilt,
and the value of a cautionary instruction.” People v. Vigil, 718 P.2d
496, 505 (Colo. 1986). While the caseworker’s statements were
perhaps improper, we deem improper witness testimony to have
less prejudicial impact when, as here, the reference was fleeting.
Id.; see also Salas, ¶ 18 (the trial court did not abuse its discretion
by denying a motion for a mistrial based on a witness’s remark
10 referring to the defendant’s prior criminality, in part because the
“remark was fleeting [and] minimally prejudicial”).
¶ 22 Moreover, even excluding the caseworker’s testimony, the
admissible evidence supporting the adjudication was substantial,
as testified to by six additional witnesses for the county. These
additional witnesses testified to a lack of prenatal care, a lack of
mother’s resources, mother’s history with substance abuse and
mental health issues, a shooting incident involving mother and
L.P-S., trouble maintaining engagement with mother, and mother’s
lack of contact with J.R.M.
¶ 23 Furthermore, the juvenile court instructed the jury to
disregard the caseworker’s testimony and to not consider it as
evidence in this case, and the court prevented any further
testimony from the caseworker. The jury is presumed to have
followed a curative instruction to disregard improper testimony.
See People v. Pernell, 2014 COA 157, ¶ 44, aff’d on other grounds,
2018 CO 13. Thus, a curative instruction is generally adequate
unless the improper testimony is so prejudicial that, but for the
exposure, the jury might not have ruled against the respondent. Id.
Here, the contested evidence was not so inflammatory in nature
11 that it could not be disregarded by the jury upon proper
instruction. There is also no evidence that the jury did not heed the
curative instruction. People v. Garcia, 2012 COA 79, ¶ 20 (we
assume the jury heeds the court’s curative instructions absent clear
evidence to the contrary).
¶ 24 Accordingly, we conclude that the juvenile court did not abuse
its discretion by denying mother’s motions for a mistrial.
B. Batson Challenge
1. Applicable Law and Standards of Review
¶ 25 The Equal Protection Clause of the Fourteenth Amendment
precludes a juror challenge based on race. Batson, 476 U.S. at 89.
“Purposeful racial discrimination in selection of the venire violates a
defendant’s right to equal protection because it denies him the
protection that a trial by jury is intended to secure.” Id. at 86.
¶ 26 Batson provides a three-step process for evaluating claims of
racial discrimination in jury selection. People v. Johnson, 2024 CO
35, ¶ 17; People v. Austin, 2024 CO 36, ¶ 7. First, the opponent of
a peremptory strike must make a prima facie showing that the
proponent used the strike against a potential juror because of race.
Johnson, ¶ 18. As long as the totality of the relevant circumstances
12 raises an inference of racial motivation, the objecting party has
satisfied their step-one burden. Batson, 476 U.S. at 96; accord
Valdez v. People, 966 P.2d 587, 589 (Colo. 1998); see also People v.
Romero, 2024 CO 62, ¶ 33 (“The step-one standard to determine
whether an objecting party has satisfied the burden of making a
prima facie showing that the challenged peremptory strike is race-
based is ‘easily satisfied.’” (quoting Craig v. Carlson, 161 P.3d 648,
655 (Colo. 2007))).
¶ 27 At step two, the proponent of the strike must offer a
race-neutral explanation for the strike — an explanation based on
something other than the race of the juror. Romero, ¶ 34.
“Importantly, the trial court may not consider the plausibility or
persuasiveness of a stated reason at step two.” Id. at ¶ 35. Rather,
“the court is limited to determining whether the striking party has
advanced a reason that, ‘on its face,’ is race neutral.” Id. (quoting
Austin, ¶ 18).
¶ 28 During step three, the objecting party may rebut the striking
party’s race-neutral explanations. Id. at ¶ 36. The juvenile court’s
task at step three is to “decide[] whether the objecting party has met
its burden of proving purposeful discrimination by weighing ‘“all of
13 the circumstances that bear upon the issue of” purposeful
discrimination.’” Austin, ¶ 21 (quoting People v. Madrid, 2023 CO
12, ¶ 34). The court may consider “the striking party’s demeanor,
the reasonableness of the proffered race-neutral explanations, and
whether the rationales are rooted in accepted trial strategy,”
Madrid, ¶ 34, as well as “the plausibility of the striking party’s non-
discriminatory explanations,” Romero, ¶ 37 (quoting People v.
Beauvais, 2017 CO 34, ¶ 23). “The decisive question at step three
is whether counsel’s race-neutral explanation for a peremptory
challenge should be believed.” People v. Collins, 187 P.3d 1178,
1182 (Colo. App. 2008).
¶ 29 “[T]he ruling at step three, regarding whether the objecting
party has met the burden of establishing purposeful racial
discrimination, is at its core a ‘determination[] of credibility and
demeanor.’” Romero, ¶ 42 (quoting Beauvais, ¶ 21). Such a
determination lies “peculiarly within a trial judge’s province.” Id.
(quoting Beauvais, ¶21). “[I]mplicit demeanor and credibility
findings may suffice.” Id. at ¶ 43.
¶ 30 The ultimate burden of persuasion rests with the opponent of
the strike, Purkett v. Elem, 514 U.S. 765, 767 (1995), and, for a
14 Batson challenge to succeed, the court must “find by a
preponderance of the evidence that one or more potential jurors
were excluded because of race,” Valdez, 966 P.2d at 590.
¶ 31 Different steps of the Batson analysis are subject to separate
standards of review. People v. Ojeda, 2022 CO 7, ¶ 30. We review
steps one and two de novo. Id. At step three, the trial court’s final
determination as to the existence of racial discrimination is an
issue of fact that we review for clear error. Id.; see also Snyder v.
Louisiana, 552 U.S. 472, 477 (2008) (“On appeal, a trial court’s
ruling on the issue of discriminatory intent must be sustained
unless it is clearly erroneous.”); Batson, 476 U.S. at 98 n.21 (“Since
the trial judge’s findings in the context under consideration [at step
three] largely will turn on evaluation of credibility, a reviewing court
ordinarily should give those findings great deference.”).
¶ 32 “[W]hile a trial court must consider all of the evidence bearing
upon the plausibility of a non-discriminatory reason and the
possibility of discriminatory animus, it need not make express
findings about that evidence and how it contributes to the court’s
ultimate ruling.” Beauvais, ¶ 32 (citations omitted). We defer to the
trial court’s step-three ruling “so long as the record (1) reflects that
15 the trial court considered all the relevant circumstances and
(2) supports (including possibly through implicit demeanor and
credibility findings) the trial court’s ruling as to whether the
objecting party proved purposeful racial discrimination by a
preponderance of the evidence.” Romero, ¶ 47.
¶ 33 During voir dire, the county attorney asked prospective Juror
Y.C., “Any ideas as to why there might be a burden of proof of
preponderance of the evidence in these kinds of cases, these
dependency and neglect cases?” Juror Y.C. responded, “I would say
that the evidence it’s a little more complex and the evidence is not
as clear as, I guess, in a criminal case.” Neither party further
engaged with Juror Y.C. during voir dire.
¶ 34 The county attorney later used a peremptory strike to excuse
Juror Y.C. Mother’s counsel raised a Batson challenge, arguing
that
[Juror Y.C.], her last name sounds Hispanic. Her hair is dark. The color of her hair is brown. My client, just for the record, is also a person of color. She has brown hair. She has dark skin. Thus far, the composition of the jury based on the prior challenges is primarily the rest of the jury would primarily be white.
16 And I believe that this is evidence at this point sufficient to raise inference that discrimination has occurred . . . . And so I’m concerned that this is a race-based strike and so I challenge the strike at this time.
¶ 35 The county attorney explained, as his step-two race-neutral
reason, that he did not strike Jury Y.C. on the basis of race but
because Juror Y.C. had made comments on the questionnaire that
the attorney “couldn’t get a read on” and that the attorney “couldn’t
see what [Juror Y.C.] was going to stay for.” The county attorney
also explained that the first peremptory strike he used was for
someone he “assume[d] . . . [was] Hispanic” and clearly “did not
want to be here,” and the second peremptory strike he used was for
a “white male.”
¶ 36 The juvenile court then stated:
As the respondent has made a Batson challenge as to Juror Number 1, [Y.C.], who the best the [c]ourt can tell her last name and her appearance in having dark hair I don’t know that there’s anything else before the [c]ourt to suggest that she is of Hispanic origin.
The first process is first the respondent can make out if there is a prima facie case if there was a juror struck on the basis of race noting that [mother] is Hispanic. Then the opposing party has an opportunity to provide an
17 explanation as to your excusal of that juror. [The county attorney] has indicated that it had nothing to do with the suspected background, race or heritage of [Juror Y.C.] that — I’m quoting — or paraphrasing that he could not get a good read on her; that has not been rebutted by the respondent.
¶ 37 The juvenile court then gave mother a chance to rebut the
county attorney’s proffered reason. Mother’s counsel said, “I don’t
believe that this is a sufficient explanation. There’s no indication to
things that the juror said or reasons other than I can’t get a good
read that would be sufficient for a race neutral reason.”
¶ 38 In the county attorney’s final response, the attorney said, “I
did excuse her more for she seemed unwilling or unwanting to
thoroughly engage. Her responses were rather short, she was
speaking softly. And that is ultimately what gave me pause to keep
her on the jury.”
¶ 39 The juvenile court then denied mother’s Batson challenge,
concluding that “[b]ased on the record before the [c]ourt and the
explanation provided I don’t find that there’s sufficient evidence of
purposeful discrimination in the exercise of the peremptory for
[Juror Y.C.].”
18 3. Analysis
¶ 40 We first conclude that, while the juvenile court did not
specifically find that mother’s counsel made a prima facie showing
under step one, it nevertheless proceeded to steps two and three.
See Romero, ¶ 31. We do note, however, that the better practice is
for the juvenile court to make specific findings regarding step one
when, as is the case here, there appears to be little or no evidence
to support a prima facie showing that the striking party used the
strike against the juror because of race. The color of the juror’s
hair and her surname were the only reasons advanced by the
proponent of the challenge. Even the court commented that,
besides Juror Y.C.’s surname and hair color, “I don’t know that
there’s anything else before the [c]ourt to suggest that she is of
Hispanic origin.” Thus, the court might very well have ended the
matter at step one.
¶ 41 We next conclude that, while the juvenile court also did not
make any specific findings regarding step two, the record
demonstrates that the county attorney offered a race-neutral reason
for excusing Juror Y.C. The burden at step two is not high; the
county attorney needed only to tender a facially race-neutral
19 explanation. See Valdez, 966 P.2d at 591. “Unless a discriminatory
intent is inherent in the [striking party]’s explanation, the reason
offered will be deemed race neutral.” Hernandez v. New York, 500
U.S. 352, 360 (1991). At step two, the court does not consider
whether the explanation is plausible or persuasive. Johnson, ¶ 19.
¶ 42 Here, the county attorney challenged Juror Y.C. because the
attorney “couldn’t get a read on her” and “couldn’t see what she was
going to stay for” and because the juror seemed unwilling to engage,
proffered short responses, and spoke softly. These reasons are not
rooted in Juror Y.C.’s or mother’s race. Therefore, the county
attorney met his step-two burden. See Austin, ¶ 18 (“If the striking
party provides a reason that, on its face, is ‘based on something
other than the race of the juror,’ she has met her step-two burden.”
(quoting Johnson, ¶ 36)).
¶ 43 Regarding step three, the juvenile court relied on “the record
before the [c]ourt and the explanation provided” to find no “evidence
of purposeful discrimination in the exercise of the peremptory for
[Juror Y.C.].” Based on this, we can infer that the court used its
discretion to consider all the relevant circumstances. See Romero,
20 ¶ 47. We further conclude that the record supports the court’s
ultimate ruling at step three.
¶ 44 Recall first that the burden rests with the opponent of the
strike — here, mother — to establish purposeful racial
discrimination by a preponderance of the evidence. Purkett, 514
U.S. at 767; Valdez, 966 P.2d at 590. But the record shows that
mother’s counsel did not rebut, in any way, the county attorney’s
reasons for challenging Juror Y.C. Counsel’s only purported
rebuttal was that he said, “I don’t believe that this is a sufficient
explanation,” and “[t]here’s no indication to things that the juror
said or reasons other than I can’t get a good read that would be
sufficient for a race neutral reason.”
¶ 45 “The demeanor and credibility of the attorney exercising the
peremptory strike frequently constitute the best evidence of whether
the objecting party has established purposeful racial
discrimination.” Romero, ¶ 42. At no point here did the juvenile
court state, or even hint, that it thought the county attorney “was
being disingenuous or untruthful.” Id. at ¶ 62. Implicit in this is
that the court found the county attorney credible and his race-
21 neutral reason sincere. See id. at ¶ 52. And there is nothing in the
record showing that the court clearly erred in so finding.
¶ 46 Based on the lack of rebuttal and the juvenile court’s implicit
finding on credibility and demeanor, it is apparent that the court
was simply not persuaded that mother met her burden to prove
purposeful racial discrimination by a preponderance of the
evidence. And we do not perceive that finding to be clearly
erroneous.
¶ 47 Under these circumstances, we conclude that the juvenile
court properly denied mother’s Batson challenge.
III. Disposition
¶ 48 The judgment is affirmed.
JUDGE DUNN and JUDGE TOW concur.