24CA0475 Peo in Interest of LLM 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0475 Douglas County District Court No. 23JV35 Honorable Randall C. Arp, Judge
The People of the State of Colorado,
Appellee,
In the Interest of L.L.M., a Child,
and Concerning A.M.,
Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE MOULTRIE Welling and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Jeffrey Garcia, County Attorney, Kathryn Cherry, Assistant County Attorney, Castle Rock, Colorado, for Appellee
Nicole Savino, Counsel for Youth, Castle Rock, Colorado
Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant ¶1 In this dependency and neglect action, A.M. (mother) appeals
the judgment adjudicating L.L.M. (the youth) dependent and
neglected. We affirm.
I. Background
¶2 The Douglas County Department of Human Services (the
Department) received a referral about the then-thirteen-year-old
youth based on her disclosure of sexual assault by mother’s
boyfriend. The Department created two safety plans with mother.
The Department then filed a petition in dependency and neglect,
alleging that mother had allowed the boyfriend into the home in
violation of the Department’s second safety plan. Mother denied the
allegations in the petition and requested a jury trial.
¶3 The juvenile court conducted a jury trial eight months after
the Department filed the petition. At the trial, the Department
alleged, and the jury found, that (1) the youth lacked proper
parental care as a result of mother’s acts or failures to act and
(2) the youth’s environment was injurious to her welfare.
¶4 Based on the jury’s verdicts, the juvenile court adjudicated the
youth dependent and neglected. The court then adopted a
treatment plan for mother.
1 II. Jury Instructions
¶5 Mother contends that the juvenile court erred by declining to
give the jury two of her tendered jury instructions. The first, which
the court adopted in part, provided definitions for “injurious
environment.” The second was based on the presumption from
Troxel v. Granville, 530 U.S. 57 (2000). We discern no error.
A. Standard of Review
¶6 A juvenile court must correctly instruct the jury on the law
applicable to a case, and if the juvenile court meets this obligation,
it has broad discretion over the style and form of instructions.
People in Interest of J.G., 2016 CO 39, ¶ 33. We review jury
instructions de novo to determine whether, taken as a whole, they
accurately informed the jury of the applicable law. Id. However, we
review a court’s decision to give or not give a particular instruction
for an abuse of discretion. Id. A ruling on jury instructions is an
abuse of discretion only when the ruling results in a misstatement
of the law or is manifestly arbitrary, unreasonable, or unfair. Id.
B. The Injurious Environment Instruction
¶7 Mother argued that “injurious environment” should be defined
for the jury. She proposed an instruction stating:
2 Is there an existence or circumstance that creates an injurious environment for the child’s welfare? An injurious environment exists when the child is in a situation that is likely harmful. Injurious means adverse, bad or damaging. Environment means the circumstances or conditions by which one is surrounded. A parent does not have to be at fault to determine an injurious environment.
¶8 The Department objected to part of mother’s proposed
instruction. It argued that the last sentence was duplicative
because “[a] parent does not have to be at fault to determine an
injurious environment” appeared in a separate instruction that the
parties had agreed to give. Mother cited to Merriam-Webster.com
for the portions of her proposed instruction that defined “injurious”
and “environment.” The Department argued that definitions from a
nonlegal dictionary should not be included in jury instructions.
¶9 But the Department agreed that a portion of mother’s
proposed instruction — “[a]n injurious environment exists when the
child is in a situation that is likely harmful” — was taken from case
law and thus was a correct statement of the law. No party objected
to that portion, and it was included in the instructions given to the
jury.
3 ¶ 10 Mother did not thereafter object to the juvenile court’s decision
to instruct the jury on the definition of an injurious environment
using only a portion of her proposed instruction. Nor does she now
contend that the court’s instruction misstated the law. See id. And
because the instruction accurately stated the law, see People in
Interest of J.G., ¶ 33, we discern no abuse of discretion.
¶ 11 In any event, the jury returned a verdict that the youth lacked
proper parental care, and mother does not challenge this finding.
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
(noting that section 19-3-102, C.R.S. 2024, only requires proof of
one condition for an adjudication).
C. The Troxel Instruction
¶ 12 Mother also proposed an instruction stating that the jury
“must presume all of [mother’s] decisions for the Child are in the
Child’s best interest unless the petitioner presents evidence to
overcome that presumption by a preponderance of the evidence.”
Mother cited Troxel and M.H-K. as support for this proposed
instruction.
4 ¶ 13 Mother argued that including the instruction was necessary to
prevent “burden-shifting onto mother.” The Department and youth
objected. The youth argued that the instruction would be confusing
to the jury. The Department argued that the other instructions
amply established that the Department alone carried the burden of
proof and mother’s instruction was “at best, cumulative, and at
wors[t], misleading.”
¶ 14 The juvenile court expressed concern that the proposed
instruction did not “state[] anything different from what’s already
being stated in all the other jury instructions taken together.” The
court found that the proposed instruction was “cumulative [and]
certainly confusing” and declined to include it.
¶ 15 To address mother’s concern about burden shifting, the
juvenile court instructed the jury multiple times that the
Department had the burden to prove the allegations. In addition,
before deliberation, the jury received instructions (1) defining
“burden of proof;” (2) stating “the [Department]” had the burden of
proof with respect to all of its bases for asserting the youth was
dependent or neglected; and (3) parsing what “the State” did and
5 did not need to prove for the jury to find that the youth was in an
injurious environment.
¶ 16 Given this record, mother’s proposed instruction was
unnecessary to prevent burden-shifting. People v. Asberry, 172
P.3d 927, 933 (Colo. App. 2007) (“There is no reversible error if the
jury instructions, read as a whole, adequately inform the jury of the
law.”). Notably, mother does not contend that the totality of the
instructions as given failed to properly inform the jury of the
Department’s burden.
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24CA0475 Peo in Interest of LLM 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0475 Douglas County District Court No. 23JV35 Honorable Randall C. Arp, Judge
The People of the State of Colorado,
Appellee,
In the Interest of L.L.M., a Child,
and Concerning A.M.,
Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE MOULTRIE Welling and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Jeffrey Garcia, County Attorney, Kathryn Cherry, Assistant County Attorney, Castle Rock, Colorado, for Appellee
Nicole Savino, Counsel for Youth, Castle Rock, Colorado
Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant ¶1 In this dependency and neglect action, A.M. (mother) appeals
the judgment adjudicating L.L.M. (the youth) dependent and
neglected. We affirm.
I. Background
¶2 The Douglas County Department of Human Services (the
Department) received a referral about the then-thirteen-year-old
youth based on her disclosure of sexual assault by mother’s
boyfriend. The Department created two safety plans with mother.
The Department then filed a petition in dependency and neglect,
alleging that mother had allowed the boyfriend into the home in
violation of the Department’s second safety plan. Mother denied the
allegations in the petition and requested a jury trial.
¶3 The juvenile court conducted a jury trial eight months after
the Department filed the petition. At the trial, the Department
alleged, and the jury found, that (1) the youth lacked proper
parental care as a result of mother’s acts or failures to act and
(2) the youth’s environment was injurious to her welfare.
¶4 Based on the jury’s verdicts, the juvenile court adjudicated the
youth dependent and neglected. The court then adopted a
treatment plan for mother.
1 II. Jury Instructions
¶5 Mother contends that the juvenile court erred by declining to
give the jury two of her tendered jury instructions. The first, which
the court adopted in part, provided definitions for “injurious
environment.” The second was based on the presumption from
Troxel v. Granville, 530 U.S. 57 (2000). We discern no error.
A. Standard of Review
¶6 A juvenile court must correctly instruct the jury on the law
applicable to a case, and if the juvenile court meets this obligation,
it has broad discretion over the style and form of instructions.
People in Interest of J.G., 2016 CO 39, ¶ 33. We review jury
instructions de novo to determine whether, taken as a whole, they
accurately informed the jury of the applicable law. Id. However, we
review a court’s decision to give or not give a particular instruction
for an abuse of discretion. Id. A ruling on jury instructions is an
abuse of discretion only when the ruling results in a misstatement
of the law or is manifestly arbitrary, unreasonable, or unfair. Id.
B. The Injurious Environment Instruction
¶7 Mother argued that “injurious environment” should be defined
for the jury. She proposed an instruction stating:
2 Is there an existence or circumstance that creates an injurious environment for the child’s welfare? An injurious environment exists when the child is in a situation that is likely harmful. Injurious means adverse, bad or damaging. Environment means the circumstances or conditions by which one is surrounded. A parent does not have to be at fault to determine an injurious environment.
¶8 The Department objected to part of mother’s proposed
instruction. It argued that the last sentence was duplicative
because “[a] parent does not have to be at fault to determine an
injurious environment” appeared in a separate instruction that the
parties had agreed to give. Mother cited to Merriam-Webster.com
for the portions of her proposed instruction that defined “injurious”
and “environment.” The Department argued that definitions from a
nonlegal dictionary should not be included in jury instructions.
¶9 But the Department agreed that a portion of mother’s
proposed instruction — “[a]n injurious environment exists when the
child is in a situation that is likely harmful” — was taken from case
law and thus was a correct statement of the law. No party objected
to that portion, and it was included in the instructions given to the
jury.
3 ¶ 10 Mother did not thereafter object to the juvenile court’s decision
to instruct the jury on the definition of an injurious environment
using only a portion of her proposed instruction. Nor does she now
contend that the court’s instruction misstated the law. See id. And
because the instruction accurately stated the law, see People in
Interest of J.G., ¶ 33, we discern no abuse of discretion.
¶ 11 In any event, the jury returned a verdict that the youth lacked
proper parental care, and mother does not challenge this finding.
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
(noting that section 19-3-102, C.R.S. 2024, only requires proof of
one condition for an adjudication).
C. The Troxel Instruction
¶ 12 Mother also proposed an instruction stating that the jury
“must presume all of [mother’s] decisions for the Child are in the
Child’s best interest unless the petitioner presents evidence to
overcome that presumption by a preponderance of the evidence.”
Mother cited Troxel and M.H-K. as support for this proposed
instruction.
4 ¶ 13 Mother argued that including the instruction was necessary to
prevent “burden-shifting onto mother.” The Department and youth
objected. The youth argued that the instruction would be confusing
to the jury. The Department argued that the other instructions
amply established that the Department alone carried the burden of
proof and mother’s instruction was “at best, cumulative, and at
wors[t], misleading.”
¶ 14 The juvenile court expressed concern that the proposed
instruction did not “state[] anything different from what’s already
being stated in all the other jury instructions taken together.” The
court found that the proposed instruction was “cumulative [and]
certainly confusing” and declined to include it.
¶ 15 To address mother’s concern about burden shifting, the
juvenile court instructed the jury multiple times that the
Department had the burden to prove the allegations. In addition,
before deliberation, the jury received instructions (1) defining
“burden of proof;” (2) stating “the [Department]” had the burden of
proof with respect to all of its bases for asserting the youth was
dependent or neglected; and (3) parsing what “the State” did and
5 did not need to prove for the jury to find that the youth was in an
injurious environment.
¶ 16 Given this record, mother’s proposed instruction was
unnecessary to prevent burden-shifting. People v. Asberry, 172
P.3d 927, 933 (Colo. App. 2007) (“There is no reversible error if the
jury instructions, read as a whole, adequately inform the jury of the
law.”). Notably, mother does not contend that the totality of the
instructions as given failed to properly inform the jury of the
Department’s burden. Therefore, we discern no abuse of discretion.
See J.G., ¶ 33.
III. Hearsay Statements
¶ 17 Mother next contends that the juvenile court erred by
admitting hearsay testimony from the intake caseworker.
¶ 18 We review a juvenile court’s evidentiary rulings for an abuse of
discretion. People in Interest of E.R., 2018 COA 58, ¶ 6. A court
abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law. Id.
¶ 19 An error in admitting evidence is harmless if it does not affect
a substantial right of a party. C.R.C.P. 61; People in Interest of C.C.,
2022 COA 81, ¶ 20. An error affects a substantial right only if it
6 can be said with fair assurance that it substantially influenced the
outcome of the case or impaired the basic fairness of the trial. C.C.,
¶ 20.
¶ 20 The caseworker testified that the Department received a
referral “pretty late at night” and that another caseworker
“completed a safety plan with the family” before the testifying
caseworker was assigned early the next morning. The testifying
caseworker met with the family and wrote a second safety plan,
which the caseworker testified mother did not follow.
¶ 21 Mother now contends that the juvenile court erred by allowing
the caseworker to answer the question, “what did th[e first] safety
plan entail?” Mother objected to this question during trial and she
asserts now, as she did at trial, that the caseworker’s statements
about the contents of a safety plan she did not write were hearsay
without an exception.
¶ 22 Regardless of whether an exception to hearsay may apply, we
discern no error in the court’s ruling allowing the caseworker to
answer counsel’s question about the contents of the first safety plan
because the caseworker’s answer to the question was cumulative of
other properly admitted evidence. See People in Interest of M.V.,
7 2018 COA 163, ¶ 67 (an erroneous evidentiary ruling is harmless if
the inadmissible evidence is cumulative), abrogated on other
grounds by People in Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56.
The caseworker testified that “the safety plan asked that [the youth]
go stay with a friend . . . for the evening, and that her mom would
bring her to the Castle Rock Police Department that following
morning for a forensic interview.” This testimony was substantially
similar to testimony that the caseworker had already provided —
without objection from mother — that “we received the referral
pretty late at night, so we put in a safety plan at the time, having
[the youth] go to a family friend for the evening and, that next
morning, she would be brought into the police department to have a
forensic interview completed.”
¶ 23 Additionally, we cannot say that the caseworker’s testimony
about the contents of the first safety plan substantially influenced
the jury’s verdict. See C.C., ¶ 20. The caseworker’s testimony was
that she met the youth and mother at the police department, where
the youth gave a forensic interview as required by the first safety
plan. Thus, mother’s compliance with the first safety plan as
described in the caseworker’s testimony was unrefuted. Instead, it
8 was mother’s compliance with the second safety plan — which
required mother not to allow her boyfriend into the home or allow
him to have contact with the youth — which was at issue during
the trial. Accordingly, the juvenile court did not abuse its
discretion.
IV. Disposition
¶ 24 We affirm the judgment.
JUDGE WELLING and JUDGE BROWN concur.