Peo in Interest of KGGV

Opinion

26CA0213 Peo in Interest of KGGV 09-03-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 26CA213 El Paso County District Court No. 25JV30117 Honorable Lin Billings Vela, Judge

The People of the State of Colorado, Appellee, In the Interest of K.G.G.V., a Child, and Concerning K.V., Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE J. JONES Dunn and Navarro*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 3, 2026

Kenny Hodges, County Attorney, Melanie E. Gavisk, Senior County Attorney, Colorado Springs, Colorado, for Appellee

Jennifer Darby, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, 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. 2026.

¶1 In this dependency and neglect proceeding, K.V. (father) appeals the judgment adjudicating K.G.G.V. (the child) dependent or neglected. We affirm.

I. Background

¶2 The El Paso County Department of Human Services filed a petition in dependency and neglect based on concerns about, among other things, father’s substance use. Father was arrested around the same time, and the child was placed in foster care. The parties agreed to return the child to father’s care on certain conditions, including that father obtain housing and agree to take weekly drug tests. The child was returned to father’s care.

¶3 Father denied the allegations in the petition and requested an adjudicatory jury trial.

¶4 Days before the trial, the Department filed an amended petition claiming, as relevant here, that father had decided to leave a motel where he and the child had been staying without finding a new place for them to stay. Father testified at the trial that he was in the process of booking different accommodations when the caseworker arrived at the motel for a visit, but the caseworker “just didn’t allow [him] to speak.” For her part, the caseworker testified

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that she had asked father whether he knew of anywhere for him and the child to stay but father said that he didn’t. Before the family left the motel property, the caseworker removed the child from father’s care based on several child protection concerns.

¶5 Following the trial, the jury rendered a verdict finding that (1) the child lacked proper parental care through father’s acts or omissions; (2) the child’s environment was injurious to his welfare; and (3) father failed or refused to provide the child with necessary subsistence, education, or care necessary for his health, guidance, or well-being. The court adjudicated the child dependent or neglected based on the verdict and later adopted a treatment plan for father.

II. Appellate Jurisdiction

¶6 As a threshold matter, we address the Department’s argument that we lack jurisdiction over father’s appeal because it is untimely and “there appears to be no good cause” to accept the late appeal. A motions division of this court granted father’s motion for leave to file his notice of appeal outside of the twenty-one-day deadline and accepted the notice as timely. We don’t see any reason to part ways with the division.

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¶7 An order adjudicating a child dependent or neglected is final and appealable after the issuance of a dispositional order. § 19-1- 109(1)(c), C.R.S. 2026. A party must appeal the adjudication within twenty-one days after entry of the dispositional order. See C.A.R. 3.4(b)(1). “The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review.” People in Interest of C.B., 2019 COA 168, ¶ 20. However, an appellate court may, upon motion and for good cause shown, enlarge the time for filing after the expiration of a deadline. See C.A.R. 26(c); People in Interest of A.J., 143 P.3d 1143, 1146 (Colo. App. 2006).

¶8 The juvenile court issued the written dispositional order on December 29, 2025, and, thus, the deadline for father’s notice of appeal was January 20, 2026. See C.A.R. 3.4(b)(1); C.A.R. 26(a)-(b). Father filed his motion and notice of appeal on January 28, 2026. After the Department’s response, this court deferred ruling on the issue for lack of factual development and ordered father to file a reply. Father asserted in his reply that trial counsel sent the signed dispositional order to appellate counsel the same date that appellate counsel filed the notice of appeal. The motions division subsequently granted father’s motion.

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¶9 The Department argues that father has essentially and improperly taken a contrary position to a tack he took in the juvenile court. It claims that, on one hand, father’s assertions about when trial counsel provided the dispositional order “could amount to” an allegation of ineffective assistance of trial counsel. But on the other hand, father’s more recent filing in the juvenile court noted that father had said in a hearing that he “felt his [trial] counsel had been effective.” See People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004) (“A court may take judicial notice of the contents of court records in a related proceeding.”).

¶ 10 As best we can tell, the Department advances a judicial estoppel argument. Under that doctrine, “[w]hen ‘a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.’” 23 LTD v. Herman, 2019 COA 113, ¶ 62 (quoting New Hampshire v. Maine, 532 U.S. 742, 749 (2001)). But father — who doesn’t claim ineffective assistance of counsel on appeal — hasn’t advanced a position contrary to one on which he had previously prevailed in the juvenile court. See 23 LTD, ¶¶ 62-63; see also Estate of Burford v.

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Burford, 935 P.2d 943, 948 (Colo. 1997) (judicial estoppel requires that “the two positions must be totally inconsistent — that is, the truth of one position must necessarily preclude the truth of the other”).

¶ 11 Accordingly, we reject the Department’s argument and therefore don’t disturb the motions division’s acceptance of father’s appeal as timely based on its implied finding of good cause. Satisfied that we have jurisdiction, we address father’s appeal.

III. Jury Instructions

¶ 12 Father’s sole contention is that the juvenile court abused its discretion by refusing to give two of his counsel’s proposed instructions to the jury. The first concerned the presumption that a fit parent makes decisions that are in his child’s best interests. See Troxel v. Granville, 530 U.S. 57, 68-69 (2000). The second would have told the jury that it must determine whether the child was dependent or neglected “as of today’s date.”

A. Standard of Review

¶ 13 A juvenile court must correctly instruct the jury on the law applicable to a case. People in Interest of J.G., 2016 CO 39, ¶ 33. But, so long as a court meets this obligation, it has broad discretion

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over the style and form of the instructions. Id. We review jury instructions de novo to determine whether they, taken as a whole, accurately informed the jury of the pertinent law. Id. But we review a court’s decision to give or not give a particular instruction for an abuse of discretion. Id. A court abuses its discretion in this context “only when the ruling results in a misstatement of the law or is manifestly arbitrary, unreasonable, or unfair.” Id.

B. Fitness Instruction

¶ 14 Father’s attorney proposed instructing the jury that it “must presume all of [father’s] decisions are for the child’s best interest unless the [Department] presents evidence to overcome by [sic] a preponderance of the evidence” (fitness instruction). Father asserts that this instruction was an accurate statement of the law and would have provided the jury with necessary context about his rights.

¶ 15 The juvenile court rejected this proposed instruction and the other proffered instruction at issue on appeal because it reasoned that their inclusion would have made the instructions confusing, unnecessarily lengthy, and overly burdensome for the jury. And the

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court concluded that its final instructions sufficiently informed the jury of the applicable law.

¶ 16 We will assume that the fitness instruction was an accurate statement of the law, at least to some extent.1 After all, “[b]efore adjudication, parents enjoy the constitutional presumption that fit parents make decisions that are in their children’s best interests.” People in Interest of M.H-K., 2018 COA 178, ¶ 74; see Troxel, 530 U.S. at 68. And a department overcomes this Troxel presumption when it proves, by a preponderance of the evidence, that the allegations in the petition meet one of the statutory bases for adjudication. See People in Interest of N.G., 2012 COA 131, ¶¶ 31 33; see also § 19-3-102, C.R.S. 2026 (enumerating the criteria upon which a child may adjudicated dependent or neglected).

¶ 17 But giving this instruction was unnecessary. On the whole, the juvenile court correctly informed the jury of the applicable law. It instructed the jury that the Department had the burden to prove the claims in its petition by a preponderance of the evidence, see §

1 We are skeptical that the fitness instruction was fully an accurate

statement of the law given the inclusion of the word “all” therein. Even so, it was unnecessary.

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19-3-505(7)(a), C.R.S. 2026, and informed the jury of the relevant statutory bases for adjudication. Given that, the jury didn’t need to be informed of the Troxel presumption itself to render a verdict based on the pertinent law and burden of proof. Cf. J.G., ¶ 24 (Colorado’s dependency statutes inherently satisfy Troxel’s requirements in part because when the state proves one of the section 19-3-102 criteria, it has proven a “special factor” justifying its intervention in the family (quoting Troxel, 530 U.S. at 68)). And in light of the court’s instructions, further informing the jury regarding the Department’s burden would have been duplicative. Thus, the court didn’t abuse its discretion by refusing to give the fitness instruction. See J.G., ¶ 33.2

2 Father theorizes that the court’s failure to give the fitness

instruction caused the jury to give his testimony about his decisionmaking preceding the child’s second removal less weight than the caseworker’s testimony about the events on this date. Father raises this particular argument for the first time on appeal, but even assuming he preserved it, we wouldn’t be convinced. He seemingly — and mistakenly — assumes that Troxel v. Granville, 530 U.S. 57 (2000), requires a factfinder give a fit parent’s testimony grater weight than it gives to that of non-parent witnesses. Cf. People in Interest of J.G., 2016 CO 39, ¶¶ 24-25 (explaining how Colorado’s dependency and neglect statutes satisfy Troxel’s requirements). Contrary to that assumption, the credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence, and the

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C. Currently Dependent or Neglected Instruction

¶ 18 Father’s attorney also proposed instructing the jury that it “must determine if the child is currently dependent and neglected as of today’s date.” Father contends that this instruction would have provided necessary context about the child’s status and that omitting it left the jury to “only consider past circumstances and speculate about future occurrences.”

¶ 19 While father correctly notes that an adjudication relates to a child’s status at the time of adjudication, see People in Interest of A.E.L., 181 P.3d 1186, 1192 (Colo. App. 2008), it is well settled that an adjudication may be based on past, current, or prospective harm, see People in Interest of G.E.S., 2016 COA 183, ¶ 15; see also People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 12 (the present tense in section 19-3-102 includes the future tense); People in Interest of S.X.M., 271 P.3d 1124, 1130 (Colo. App. 2011) (“The use of the present tense in jury instructions concerning parental care

conclusions and inferences to be drawn from it, are within the factfinder’s discretion. See People in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009). The jury, as the factfinder in this case, was appropriately instructed that it was the sole arbiter of witness credibility and of the weight to be given in testimony. See id.

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and the child’s environment could cause massive confusion if . . . the jury was informed that the child has been removed from harm and is doing well in foster care.” (citation modified)).

¶ 20 Because the jury heard testimony that the child had been removed, the court properly instructed it that (1) a finding of dependency or neglect may be based on prospective or past harm; (2) father need not currently have custody for it to make such a finding; and (3) the use of the present tense in the instructions includes the future tense. We conclude, and father doesn’t dispute, that the court properly informed the jury of the applicable legal principles. See G.E.S., ¶ 15; S.X.M., 271 P.3d at 1130.

¶ 21 The juvenile court rejected the proposed instruction in part because it would have confused the jury. It didn’t want the instructions to “tempt” the jury to refrain from adjudicating on the basis that the child “is doing fine now.” See S.X.M., 271 P.3d at 1130. We agree with that reasoning. Thus, even assuming that father’s proffered instruction was a correct statement of the law, the court didn’t abuse its discretion by refusing to give it under these circumstances. See J.G., ¶ 33.

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¶ 22 Moreover, the jury was instructed that it should not “guess or speculate about a fact” and that its findings must be based on “probabilities, not possibilities.” Cf. N.G., ¶ 65 (suggesting that a court’s finding of prospective harm was impermissibly “based on mere speculation concerning future possibilities” where the division’s review of the record revealed no evidence that the child would be unable to establish a healthy relationship with the parent if given the opportunity).

¶ 23 Because the juvenile court’s instructions as a whole accurately informed the jury of the law, and the court didn’t abuse its discretion by refusing to give the jury these two proposed instructions, we discern no error. See J.G., ¶ 33. Given that, we also reject father’s conclusory assertion that the court denied him a fundamentally fair proceeding by refusing to give his proffered instructions.

IV. Disposition

¶ 24 The judgment is affirmed.

JUDGE DUNN and JUDGE NAVARRO concur.