25CA1998 Peo in Interest of KS 05-14-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1998 Montrose County District Court No. 24JV30043 Honorable Valerie J. Robison, Judge Honorable D. Cory Jackson, Judge
The People of the State of Colorado,
Appellee,
In the Interest of K.S., a Child,
and Concerning P.S.,
Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Schock and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 14, 2026
Julie R. Andress, County Attorney, Ryan J. Dunn, Assistant County Attorney, Montrose, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, P.S. (father)
appeals the judgment adjudicating K.S. (the child) dependent or
neglected. We affirm.
I. Background
¶2 In December 2024, the Montrose County Department of
Human Services received a referral regarding the then-newborn
child based on concerns about the parents’ substance use,
domestic violence, and unstable housing. At that time, the child
was in the neonatal intensive care unit being treated for medical
complications associated with his premature birth. After an initial
investigation, the intake caseworker determined that it wouldn’t be
safe for the child to be discharged from the hospital to either
parent. Consequently, the Department filed a petition in
dependency and neglect.
¶3 The juvenile court granted temporary custody of the child to
the Department. When the child was discharged from the hospital,
he was placed with kin — first with father’s brother and later with a
non-relative kin provider.
¶4 For several months, the Department attempted to locate and
serve father with no success. Thus, the juvenile court granted the
1 Department’s request to serve him by publication. Approximately
five months after the case opened, father appeared in court for the
first time. He then denied the allegations in the petition and
requested an adjudicatory jury trial.
¶5 After a three-day trial, the jury rendered a verdict finding that
the child’s environment was injurious to his welfare. Based on the
jury’s verdict, the court adjudicated the child dependent or
neglected.
II. Legal Framework
¶6 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 child 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. 2025, exists.
People in Interest of S.M-L., 2016 COA 173, ¶ 25, aff’d on other
grounds sub nom People in Interest of R.S. v. G.S., 2018 CO 31. As
2 relevant here, a child is dependent or neglected if “[t]he child’s
environment is injurious to his or her welfare.” § 19-3-102(1)(c).
¶7 Adjudication under section 19-3-102(1)(c) doesn’t require proof
of parental fault. People in Interest of J.G., 2016 CO 39, ¶ 40.
Rather, an adjudication may be entered when a child’s environment
is injurious, regardless of the parents’ actions or failures to act. Id.
¶8 Moreover, adjudication under section 19-3-102(1)(c) can be
based on prospective harm. People in Interest of S.N., 2014 COA
116, ¶¶ 15-16; People in Interest of S.G.L., 214 P.3d 580, 583 (Colo.
App. 2009). To determine whether a child is dependent or neglected
based on prospective harm, the fact finder’s task is to determine
whether the child’s environment “will be” injurious to the child if
placed in the parent’s care. S.N., ¶ 16; People in Interest of S.X.M.,
271 P.3d 1124, 1130 (Colo. App. 2011). When a child wasn’t in the
parent’s care at the time of removal, the determination must be
based on a prediction of the home environment to which the child
might be exposed if placed in the parent’s care. See People in
Interest of A.W., 2015 COA 144M, ¶ 22. And that prediction may be
based on the “parent’s past conduct and current circumstances.”
S.N., ¶ 17.
3 III. Evidentiary Issues
¶9 Father first contends that the juvenile court erred by admitting
irrelevant and unfairly prejudicial evidence at the adjudicatory trial.
We aren’t persuaded.
A. Applicable Law and Standard of Review
¶ 10 To be admissible, evidence must be relevant. CRE 402. Under
CRE 401, evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.”
¶ 11 However, relevant evidence may be excluded “if its probative
value is substantially outweighed by the danger of unfair prejudice.”
CRE 403. Unfair prejudice occurs when evidence has a tendency to
suggest a decision on an improper basis. A.W., ¶ 25. In weighing
whether the probative value of evidence is substantially outweighed
by the danger of unfair prejudice, the proffered evidence should be
given its maximal probative weight and its minimal prejudicial
effect. Alhilo v. Kliem, 2016 COA 142, ¶ 9.
¶ 12 We review the juvenile court’s evidentiary rulings for an abuse
of discretion. M.A.W. v. People in Interest of A.L.W., 2020 CO 11,
4 ¶ 32. The court abuses its discretion when it misapplies the law or
when its decision is manifestly arbitrary, unreasonable, or unfair.
Id.
B. Analysis
¶ 13 Father argues that that under CRE 401, 402, and 403, the
court erroneously admitted the following evidence: (1) testimony
from a police officer about a 2023 arrest in which the officer
reportedly found methamphetamine and a pipe in father’s pocket;
(2) testimony and evidence about two drug-related convictions, one
from 2005 and the other from 2013; (3) audio from a 911 call that
was made by one of father’s older children during a recent incident
of alleged domestic violence between father and his estranged wife;
and (4) testimony about the circumstances related to the recent
incident of domestic violence.
1. Testimony About the 2023 Arrest
¶ 14 Father asserts that the juvenile court should have excluded all
testimony related to his 2023 arrest because all of the criminal
charges related to the arrest were dismissed. We decline to address
the argument because father failed to preserve it.
5 ¶ 15 True, father filed a pretrial motion to exclude the police report
related to the 2023 arrest, arguing that the “evidence contained in
[the] report [was] highly prejudicial and not relevant given that the
criminal charges were dismissed” and that the report contained
hearsay. On the first day of trial, however, the Department stated
that it no longer planned to introduce the police report as an
exhibit. Instead, it planned to call the responding officer to testify
about “the situation [and] . . . what he observed” on the day of the
arrest. Father’s counsel then stated that she would make the
“usual objections” to the officer’s testimony. In response, the
juvenile court noted that it “obviously” couldn’t rule on those
objections at that time because it “[didn’t] know what [would] come
up” during the officer’s testimony. Thus, the court directed father’s
counsel to “make those objections during the testimony.”
¶ 16 Nonetheless, except for one objection regarding lack of
foundation, father’s counsel didn’t object to any of the officer’s
testimony. Accordingly, we decline to address father’s argument
that the police officer’s testimony about the 2023 arrest was
irrelevant and unfairly prejudicial. See CRE 103(a); Am. Fam. Mut.
Ins. Co. v. DeWitt, 218 P.3d 318, 325 (Colo. 2009) (to properly
6 preserve an objection to evidence admitted at trial, a timely and
specific objection must appear in the trial court record); see also
People in Interest of M.B., 2020 COA 13, ¶ 14 (in dependency and
neglect cases, appellate courts review only issues presented to and
ruled on by the lower court).
2. Evidence Related to the 2005 and 2013 Convictions
¶ 17 Next, father argues that the juvenile court should have
excluded any evidence of his past drug-related criminal convictions.
Specifically, he argues that the convictions were too old to be
relevant to the child’s status at the time of the trial, and that the
age of the convictions also made the evidence unfairly prejudicial.
We disagree.
¶ 18 To start, we note that it’s unclear whether father preserved
this argument. On the first day of trial, as a preliminary matter,
father’s counsel moved the juvenile court to exclude two of the
Department’s exhibits — the sentencing orders showing father’s
2005 and 2013 convictions — arguing that they were irrelevant and
unfairly prejudicial. The court then asked father’s counsel to clarify
if he was “asking for a ruling on the 2005 and 2013 conviction
records” and counsel affirmed that he was requesting the court to
7 exclude the exhibits. In response, the Department noted that, in
addition to the exhibits, it expected to elicit testimony about father’s
past convictions because the convictions were relevant to his “long
history of substance use.” Father’s counsel replied that she was
“going to object to that testimony” as well.
¶ 19 The juvenile court then ruled that it was “not going to foreclose
the testimony and evidence presented with respect to” the past
convictions. It found that the evidence and testimony was relevant
because the jury could consider father’s past conduct, specifically
his history of substance use, to determine whether prospective
harm existed. The court went on to say that it was “concerned”
about the two exhibits containing confusing information, noting
that they may be admissible “depending on what the evidence is
during the trial.” The court concluded that it wouldn’t
“perfunctorily” admit the exhibits but that “preclusion of the
convictions” shouldn’t occur.
¶ 20 Thereafter, father testified about his past convictions without
objection. But when the Department sought to introduce the
sentencing reports into evidence as exhibits, father objected based
on relevance and unfair prejudice. The court found that the
8 exhibits were relevant and noted that “a significant amount of
testimony” had already been presented about the convictions. But
the court ordered the Department to redact the charges that had
been dismissed, finding that without the redaction, the exhibits
would be unfairly prejudicial and confusing to the jury.
¶ 21 It’s unclear whether the court’s preliminary ruling that
“preclusion of the convictions” shouldn’t occur permitted all
evidence of father’s past convictions or simply denied father’s
request to preemptively exclude that evidence. At any rate, only
after father testified about his past convictions without objection
did he object to the sentencing reports being admitted as evidence.
By that time, however, the jury had already heard about the
convictions.
¶ 22 Thus, even assuming that father preserved his challenges to
the evidence about his past convictions by making the preliminary
request to exclude it, we disagree that the juvenile court abused its
discretion by admitting it. First, as the court found, father’s past
conduct — specifically, his history of substance use — was relevant
to the jury’s consideration of prospective harm and whether the
child would be in an injurious environment if placed in father’s
9 care.1 See A.W., ¶ 22; S.N., ¶¶ 16-18 (a parent’s past conduct,
“such as drug use,” is relevant to prospective harm); see also People
in Interest of D.M.F.D., 2021 COA 95, ¶ 24 (a parent’s convictions
and pending charges may support a determination that a child is
dependent and neglected when there is “a link between the
convictions and pending charges and the factors identified in
section 19-3-102”).
¶ 23 Second, the court repeatedly found that evidence showing that
father had been convicted of two drug-related charges wasn’t
unfairly prejudicial. And while the court didn’t elaborate on its
prejudice finding, father hasn’t developed his appellate argument
related to prejudice. To be sure, although father makes some broad
1 Citing a People in Interest of D.L.R., 638 P.2d 39, 43 (Colo. 1981),
father asserts that his past drug-related convictions and substance use weren’t relevant to prospective harm because a “prospective harm case is one where the fact finder considers the treatment of one or more children in determining whether the child at issue is dependent or neglected.” Father’s argument in this regard is premised on too narrow a reading of D.L.R. While D.L.R. certainly holds that a fact finder may consider a parent’s past treatment of other children in relation to prospective harm, other cases relying on D.L.R. make clear it can also consider a parent’s other past conduct or current circumstances, such as a parent’s history of substance use or domestic violence. See People in Interest of S.N., 2014 COA 116, ¶ 18 (discussing D.L.R. among other cases).
10 assertions that the evidence was unfairly prejudicial to him, he
doesn’t explain in any detail how the danger of the alleged prejudice
substantially outweighed its probative value. See C.A.R. 28(a)(7)(B);
People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004) (an
appellate argument is undeveloped if it’s presented without
supporting facts or specific argument). And development of this
argument is particularly important in light of the juvenile court’s
findings that the evidence related to father’s past substance use
was specifically relevant to the question the jury was required to
answer — whether the child would be in an injurious environment
if placed in father’s care. See Alhilo, ¶ 9; see also People v. Rath, 44
P.3d 1033, 1043 (Colo. 2002) (“Because the balance required by
CRE 403 favors admission, a reviewing court must afford the
evidence the maximum probative value attributable by a reasonable
fact finder and the minimum unfair prejudice to be reasonably
expected.”).
¶ 24 Accordingly, we discern no reversible error by the juvenile
court when it admitted the testimony and evidence related to
father’s past convictions.
11 3. Audio of the 911 Call
¶ 25 Next, father asserts that the audio of a 911 call, made by his
older daughter during a domestic violence incident, was irrelevant
and unfairly prejudicial. We aren’t persuaded.
¶ 26 Prior to trial, the Department moved the court to find that the
911 call was admissible. Father objected, arguing that the audio
was irrelevant because neither mother nor the child were present
during the incident that led to the 911 call. He also argued that
any probative value of the audio was substantially outweighed by
the unfair prejudice of admitting the audio into evidence.2 In a
written order, the court granted the Department’s motion to
introduce the audio of the 911 call, finding that it was relevant
because it was probative of father’s home environment, specifically
whether the child would be exposed to domestic violence if he was
returned to father’s care. It further found that the audio wasn’t
unduly prejudicial.
2 Father also asserted that the audio of the 911 call contained
inadmissible hearsay. But father doesn’t advance this argument on appeal, so we don’t address it.
12 ¶ 27 During trial, father re-asserted his prejudice objection when
the Department sought to introduce the audio of the 911 call. After
listening to the audio, the juvenile court found that the danger of
unfair prejudice didn’t outweigh the probative value of the audio,
“particularly given the timing of it being January 2025.”
¶ 28 We reject father’s argument that the juvenile court abused its
discretion by admitting the audio of the 911 call. First, we agree
with the court’s finding that regardless of whether mother or the
child were present at the time of the incident, the audio was
probative of father’s home environment, specifically that there was
domestic violence in his home, and that was relevant to jury’s
consideration of whether the child would be in an injurious
environment if returned to father. See A.W., ¶ 22; S.N., ¶ 16.
Second, the court implicitly acknowledged some level of prejudice in
relation to the 911 call but still found that the probative value of the
evidence wasn’t substantially outweighed by the danger of that
prejudice. And father doesn’t develop his argument about prejudice
on appeal. Specifically, he doesn’t explain in any detail how the
prejudicial effect of the 911 call substantially outweighed its
probative value, particularly in light of the court’s finding that it
13 was probative of the recent conditions of father’s home
environment. See C.A.R. 28(a)(7)(B); D.B-J., 89 P.3d at 531; Rath,
44 P.3d at 1043.
¶ 29 Therefore, we discern no abuse of discretion in the court’s
decision to admit the 911 call into evidence.
4. Testimony About the Domestic Violence Incident
¶ 30 Finally, father argues that the juvenile court abused its
discretion by allowing several witnesses to testify about the
domestic violence incident in January 2025 — about a month after
the petition was filed. He asserts that the testimony was irrelevant
because the incident involved his wife and older children, not
mother and the child, and because the testimony was unfairly
prejudicial, and thus, inadmissible. We aren’t persuaded that the
juvenile court abused its discretion.
¶ 31 Father filed a pretrial motion to exclude all evidence related to
the January 2025 domestic violence incident, arguing that the
evidence related to the incident was irrelevant and unfairly
prejudicial. The juvenile court denied that motion, finding that
“[e]vidence of an incident of domestic violence[,] despite involving
[f]ather and a third-party[,] is probative of his fitness to parent and
14 whether the child would be in an injurious environment if placed in
his care.” The court further rejected father’s contention of unfair
prejudice, finding that such evidence “does not invite the jury to
make findings based on irrelevant or inadmissible grounds”
because “[w]hether there is domestic violence in the home is itself
the relevant issue.”
¶ 32 We discern no abuse of discretion in the court’s ruling. Like
the 911 call, the evidence related to the January 2025 domestic
violence incident was probative of father’s home environment.
Specifically, evidence that there was domestic violence in his home
within a month after the petition was filed was relevant to jury’s
environment if returned to father. See A.W., ¶ 22; S.N., ¶ 16. And,
again like the 911 call, the probative value of that evidence to the
question of father’s home environment and the risk it may pose to
the child isn’t dependent on whether mother or the child were
present at the time of the incident. Instead, the fact of the domestic
violence incident involving father in his home so close in time to the
adjudicatory hearing was probative of father’s home environment.
See A.W., ¶ 22 (a parent’s prior acts is relevant to predicting the
15 home environment to which a child might be exposed, particularly
when the child hasn’t previously been that parent’s care); S.N., ¶ 17
(holding that a prospective harm determination “requires a
prediction of whether, based on the parent’s past conduct and
current circumstances, it is likely or expected that the parent will
fail to provide proper care for the child in the future”).
¶ 33 Accordingly, we discern no abuse of discretion in the court’s
decision to admit evidence related to the January 2025 domestic
violence incident.
IV. Sufficiency of the Evidence
¶ 34 Father next contends that the Department failed to present
sufficient evidence for the jury to find the child dependent or
neglected. We aren’t persuaded.
A. Applicable Law
¶ 35 In determining whether the evidence is sufficient to sustain an
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 decision. See S.G.L., 214 P.3d at
583; People in Interest of T.T., 128 P.3d 328, 331 (Colo. App. 2005).
The credibility of the witnesses and the probative effect and weight
16 to be accorded the evidence, as well as the inferences and
conclusions to be drawn therefrom, are within the purview of the
jury. S.G.L., 214 P.3d at 583. We are bound by a jury’s findings,
and we won’t reverse those findings if the record supports them,
even if reasonable people might arrive at different conclusions
based on the same evidence. See S.G.L., 214 P.3d at 583; T.T., 128
P.3d at 331.
¶ 36 The juvenile court adjudicated the child dependent or
neglected pursuant to section 19-3-102(1)(c) because the jury found
that the child’s environment was injurious to his welfare. The
evidence admitted at trial supports the jury’s verdict.
¶ 37 The ongoing caseworker, who testified as an expert in child
welfare and case management, opined that it wouldn’t be safe to
return the child to father because the Department had ongoing
concerns about father’s substance use, the domestic violence in
father’s home, and his lack of understanding of the child’s needs.
Moreover, the caseworker opined that she would be “very
concerned” about the child’s safety if he was returned to father
while mother was living in the same home because the Department
17 had significant concerns about mother’s substance use and mental
health, as well as the ongoing domestic violence and “volatility”
between the parents. Ample evidence supported the caseworker’s
opinions.
¶ 38 First, the Department presented evidence of father’s long
history of substance use. Father testified that he became addicted
to methamphetamine as a teenager and had been convicted of drug-
related crimes in 2005 and 2013. Next, a police officer testified that
in 2023, during an arrest, he found methamphetamine and a pipe
in father’s pocket. Further, the intake caseworker testified that
shortly after the child was born, father went to the emergency after
overdosing on what father reported to be caffeine pills. The intake
caseworker was concerned about that incident because the
symptoms that father reported were consistent with
methamphetamine use. And father never provided medical records
showing that he had, in fact, overdosed on caffeine pills, as opposed
to an illegal substance. Finally, although father testified that he
had been sober for several years, the intake caseworker testified
that he wasn’t able to confirm father’s asserted sobriety because,
18 despite the caseworker’s request for father to take a drug test,
father didn’t do so.
¶ 39 Second, the Department presented evidence showing a history
of domestic violence between father and his intimate partners. The
intake caseworker testified that as part of his initial assessment, he
learned that there had been past reports of domestic violence
between father and mother. The ongoing caseworker testified that
mother had disclosed an ongoing pattern of domestic violence
between her and father. Specifically, mother told the caseworker
that, in the past, father had taken her phone and left her stranded
outside of town without food, water, or a way to get help. Although
father denied any domestic violence between him and mother, he
admitted that at one point, he became upset because mother
wanted to spend time with a particular friend, and in response,
mother purposely hit father with her car.
¶ 40 Moreover, a police officer testified that in January 2025, he
responded to a 911 call reporting domestic violence at the home
where father, his estranged wife, and his two older daughters lived.
When the officer arrived, he could hear yelling, but by the time he
went inside the house, father had fled the scene. Father’s wife then
19 showed the officer numerous threatening text messages from
father — for example, father said that he would burn their house
down and that his wife would “be with [him] or with no one.” After
further investigation, the officer filed an arrest warrant for father,
and father was charged with stalking, felony menacing, and
harassment. At the time of the adjudicatory hearing, those charges
were still pending. Although father denied the domestic violence
allegations related to that incident, he admitted that there had been
at least one other incident in which his daughter called the police
because of an argument between him and his wife. Father
acknowledged that his daughters were scared and upset during
those incidents and admitted that it’s “not good for children to be in
that type of situation.”
¶ 41 Third, the Department presented evidence related to father’s
lack of understanding of the child’s needs. The ongoing caseworker
testified that the child had special needs and required a higher level
of care than the average infant. She further testified that the child
became dysregulated very easily, had problems with swallowing and
eating, was very stiff, and was not consistently gaining weight.
Indeed, the child’s kin provider testified that the child needed
20 occupational therapy for his stiffness and feeding issues and that
he needed his caretaker to do specific stretches and exercises with
him every day.
¶ 42 Nonetheless, the ongoing caseworker testified that when she
discussed the child’s special needs with father, he minimized them,
saying that the child “appears to be normal” except for having an
issue with grasping. She also testified that father blamed the
child’s placement provider for his medical issues instead of trying to
learn about them. Indeed, father testified that even when the child
was in the hospital, he “looked like a normal child” and that the
child was “doing fine” when he was placed with father’s brother and
only started having feeding issues when he was placed with his
current kin provider. And father also admitted that he didn’t ask
the medical providers to help him understand the child’s medical
needs or reach out to the caseworker to ask about them.
¶ 43 Finally, the Department presented evidence related to its
concerns about father’s living situation. Specifically, father testified
that he was living with his mother because there was a protection
order preventing him from living at his own house (with his wife and
two daughters). He further testified that mother was living in the
21 home with him. The ongoing caseworker testified that it wouldn’t
be safe for the child to live in a home with mother because she
hadn’t addressed the Department’s concerns about her substance
use and general stability.
¶ 44 Specifically, despite admitting to using methamphetamine
during her pregnancy and after the child was born, mother hadn’t
provided any drug tests during the case. Further, mother hadn’t
engaged in any treatment or services offered by the Department.
And the caseworker from a previous dependency and neglect case
involving mother and her other children, testified that when that
case closed, mother hadn’t mitigated the Department’s concerns
about her ability to parent. Even so, father testified that he
believed mother was in a position to safely parent the child.
Moreover, as noted above, the ongoing caseworker had concerns
about continuing domestic violence between the parents.
¶ 45 In sum, based on the evidence presented at trial, it was
reasonable for the jury to infer that the safety concerns related to
father’s substance use and domestic violence still existed at the
time of adjudication, and thus, that it would likely be unsafe to
place the child in his care. See A.W., ¶ 22 (the prediction of
22 whether it’s likely that a child will be in an injurious environment if
returned to the parent can be based on the parent’s past conduct
and current circumstances). It was also reasonable for the jury to
infer that, regardless of father’s specific conduct, it would likely be
unsafe to place the child in father’s care because of the ongoing
safety concerns about mother and the fact that the parents were
living together. See J.G., ¶ 40 (adjudication under section 19-3-
102(1)(c) does not require proof of parental fault).
¶ 46 Based on the foregoing, when viewed in the light most
favorable to the Department, the evidence was sufficient to support
the jury’s finding that the child was dependent or neglected under
section 19-3-102(1)(c). Accordingly, we are bound by the jury’s
findings and discern no basis to reverse the jury’s verdict. See
S.G.L., 214 P.3d at 583; T.T., 128 P.3d at 331.
V. Disposition
¶ 47 The judgment is affirmed.
JUDGE SCHOCK and JUDGE LUM concur.