Peo in Interest of NKH

Opinion

26CA0399 Peo in Interest of NKH 09-10-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 26CA0399 City and County of Broomfield District Court No. 23JV30005 Honorable Teri L. Vasquez, Judge

The People of the State of Colorado, Appellee, In the Interest of N.K.H. and B.S.H., Children, and Concerning D.D.H., Appellant, and Concerning A.J.H. n/k/a A.J.P., Appellee.

JUDGMENT AFFIRMED, ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE GOMEZ

Grove and Moultrie, JJ., concur

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

Announced September 10, 2026

Nancy D. Rodgers, City and County Attorney, Amy W. Naes, Senior Assistant City and County Attorney, Broomfield, Colorado, for Appellee The People of the State of Colorado

Josi McCauley, Counsel for Youth, Superior, Colorado, for N.K.H. and B.S.H.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant

Steven J. Taylor, Office of Respondent Parents’ Counsel, Ainsley Baum, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellee A.J.P.

¶1 In this dependency and neglect proceeding, D.D.H. (father) appeals the juvenile court’s judgment allocating parental responsibilities for N.K.H. and B.S.H. (the youths) to A.J.P. (mother) and its order modifying child support. We affirm the judgment allocating parental responsibilities. We affirm in part and reverse in part the order modifying child support and remand the case to the juvenile court for further proceedings.

I. Background

¶2 In October 2023, the Broomfield Department of Human Services filed a petition in dependency and neglect regarding the then-eleven and fifteen-year-old youths. The Department alleged that the parents’ contentious relationship and ongoing proceedings in their domestic relations case were significantly impacting the youths’ emotional well-being and mental health.

¶3 In January 2024, father admitted the allegations in the petition. The parties stipulated to defer the adjudication for up to a year as long as father complied with the agreed-upon treatment plan. A year later, the juvenile court revoked father’s deferred adjudication, entered a judgment adjudicating the youths

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dependent or neglected, and adopted an amended treatment plan for father.

¶4 Mother later moved the juvenile court to modify child support, which had been previously ordered by the domestic relations court. Mother also moved the juvenile court to enter an allocation of parental responsibilities (APR) for the youths to her.

¶5 The juvenile court held a contested APR and child support hearing. Then, in February 2026, the court issued an order granting sole physical custody and decision-making authority to mother. The court didn’t grant father any parenting time until further order of the domestic relations court, but it required mother to inform father of any major decisions about the youths. The court certified the judgment back into the domestic relations case.

¶6 Father filed a motion for post-trial relief under C.R.C.P. 59, alleging that the juvenile court made numerous errors in its APR and child support orders. The court denied that motion. This appeal followed.

II. Evidentiary Issues

¶7 Father first contends that the juvenile court abused its discretion by admitting mother’s Exhibit 7 and the youths’ Exhibit 2

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into evidence at the APR hearing. He argues that both exhibits should have been excluded for lack of foundation under CRE 901 and that mother’s Exhibit 7 should have been excluded under CRE 403. We discern no error.

A. Applicable Law and Standard of Review

¶8 Before a court admits evidence, it must be authenticated. CRE 901; People v. N.T.B., 2019 COA 150, ¶ 16. The standard for authentication of a recording is minimal — all that is required is a prima facie showing that the evidence is what its proponent claims. Gonzales v. People, 2020 CO 71, ¶¶ 6, 42. CRE 901 doesn’t prescribe any specific method for authenticating evidence. Gonzales, ¶ 30. Rather, a trial court is vested with broad discretion to consider a variety of foundational circumstances depending on the nature of the proffered evidence. Id. Once the proponent makes this prima facie showing, authenticity becomes a question for the factfinder, and the effect of any defects go to the weight of evidence, not its admissibility. Id. at ¶ 6; N.T.B., ¶ 16.

¶9 We review a juvenile court’s evidentiary rulings for an abuse of discretion. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 32.

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A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair or if it misapplies the law. Id.

B. Mother’s Audio Recording

¶ 10 During the APR hearing, mother testified that in April 2022, she recorded a phone conversation between her and father. She further testified that her proffered Exhibit 7 was a USB drive containing the recording of that phone conversation. She testified that before the hearing, she had listened to the recording to confirm that it was the phone conversation she’d recorded. Father’s counsel then questioned mother about the recording and objected to its admission, arguing that mother hadn’t established its authenticity. The court overruled the objection, crediting mother’s testimony that she’d made the recording and that it was the April 2022 phone conversation she’d had with father.

¶ 11 On appeal, father argues that the juvenile court abused its discretion by admitting Exhibit 7 because there was “not adequate evidence” to show that mother made the recording and because there were “contradictions with [mother’s] prior admission of the [recording] in the domestic relations court.” But father doesn’t explain how either of those things established that Exhibit 7 was

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not what mother claimed it was — a phone conversation between her and father from April 2022. See Gonzales, ¶¶ 6, 42. Moreover, during father’s counsel’s questioning, mother specifically denied that someone else had made the recording or that she’d previously introduced it as evidence in the domestic relations case. Thus, we perceive no abuse of discretion in the court’s determination that mother had established a prima facie showing of authenticity. See id. at ¶ 30. And any questions about the recording’s authenticity thereafter went to the weight of the evidence, which was for the juvenile court, as factfinder, to determine. See id. at ¶ 6; N.T.B., ¶ 16; see also People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010) (the sufficiency, probative effect, and weight of the evidence is a determination for the juvenile court as trier of fact).

¶ 12 Father also argues that the juvenile court abused its discretion by admitting Exhibit 7 because, under CRE 403, its probative value was substantially outweighed by the danger of unfair prejudice and confusion. But father didn’t preserve this argument for appeal. True, he objected to Exhibit 7 on CRE 403 grounds in a motion in limine he filed before the APR hearing. But the court deferred its ruling on that portion of father’s motion, ordering him to raise any

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CRE 403 objections during the hearing. In other words, the court didn’t make a definitive ruling on whether Exhibit 7 was inadmissible under CRE 403. And a definitive ruling on a motion in limine is required for it to serve as the basis for preservation. State Farm Mut. Auto. Ins. Co. v. Goddard, 2021 COA 15, ¶ 73; see also CRE 103(a)(2) (a party need not renew an objection to preserve a claim of error for appeal after the court makes a definitive ruling on the record admitting or excluding evidence).

¶ 13 Moreover, although father objected to the admission of Exhibit 7 during the APR hearing, his objection wasn’t based on CRE 403. Thus, the objection wasn’t sufficient to preserve a CRE 403 argument for appeal. See Am. Fam. Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 325 (Colo. 2009) (to preserve an objection to evidence admitted at trial, a timely and specific objection must appear in the trial court record); People v. Ujaama, 2012 COA 36, ¶ 37 (issues are unpreserved when the grounds raised on appeal are different from those raised below). Accordingly, we decline to address father’s CRE 403 argument. See 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).

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¶ 14 Accordingly, we discern no abuse of discretion in the juvenile court’s admission of mother’s Exhibit 7.

C. The Older Youth’s Video Recording

¶ 15 The older youth testified that in April 2023, he recorded a video on his phone while he was at mother’s house with both parents and his younger sibling. He said that he recorded the video in twenty-minute segments to ensure that the files were small enough to export. He then uploaded the video files into a phone application that allowed him to put the segments together to create one continuous video. He specified that while he used the phone application to combine the shorter segments, he didn’t edit the video in any other way. Finally, he testified that Exhibit 2 was a DVD containing the full video recording. He knew that it was his video recording because he watched the DVD before the hearing, confirmed it was the recording he had made, and then signed the DVD with his initials to identify it at the hearing.

¶ 16 Although it’s somewhat unclear, it seems that father’s counsel showed the youth parts of a different video recording in voir dire. Father’s counsel asked the youth several questions about alleged discrepancies in the dates and file sizes of the video recording he

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showed to the youth and the recording proffered as Exhibit 2. In response, the youth provided explanations for those discrepancies. The juvenile court then overruled father’s authenticity objection, finding that the youth’s testimony established a sufficient foundation and noting that it had “no idea” where the video recording father’s counsel showed the youth had come from.

¶ 17 On appeal, father argues that the youth failed to establish the authenticity of Exhibit 2 because he created the recording with a video editing application and it differed from “previous versions.” But father doesn’t explain how the use of a video editing application or any differences between the proffered DVD and the video he showed the youth during voir dire established that Exhibit 2 was not what the youth claimed it was — a video recording of an incident that occurred in April 2023. See Gonzales, ¶¶ 6, 42. Moreover, the youth was not required to “disprove any possibility of tampering” to establish an adequate foundation. Id. at ¶ 42. And after the court determined that the youth had met the “minimal” burden to establish a prima facie showing of authenticity, the effect of any potential defects went to the weight of evidence, not its admissibility. See id. at ¶ 6; N.T.B., ¶ 16.

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¶ 18 Accordingly, we do not discern an abuse of discretion in the juvenile court’s admission of the youths’ Exhibit 2.

III. Due Process

¶ 19 Father also contends that the juvenile court violated his due process rights by (1) failing to hold a dispositional hearing before it adopted his treatment plan and (2) entering a “de facto termination” of his parental rights without requiring proof of the statutory factors for termination. We address both contentions in turn.

A. Dispositional Hearing

¶ 20 Father argues that we should reverse the APR judgment because the juvenile court entered the initial dispositional order adopting his treatment plan without first holding a dispositional hearing. The Department and the youths assert that father is time- barred from challenging the initial dispositional order because he could’ve challenged it when he appealed the adjudicatory judgment.

¶ 21 It is true that an initial dispositional order adopting a treatment plan constitutes a decree of disposition and renders the adjudicatory judgment and initial dispositional order final for purposes of appeal. People in Interest of C.L.S., 934 P.2d 851, 854 (Colo. App. 1996). Consequently, a parent may appeal the initial

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dispositional order simultaneously with an appeal of the adjudicatory judgment. See People in Interest of M.W., 2022 COA 72, ¶ 27. A parent may also challenge the requirements of a dispositional order — mainly, the appropriateness of their treatment plan — as part of their appeal of the termination judgment. Id. at ¶ 29; see also § 19-3-604(1)(c)(I), C.R.S. 2026 (to terminate a parent’s rights, a court must find, among other things, that an appropriate treatment plan was adopted).

¶ 22 However, we have never determined whether a parent may challenge the requirements of an initial dispositional order in their appeal of an APR judgment. Further, we have never determined whether a parent waives their right to challenge the procedures leading up to the entry of the initial dispositional order when they appeal the adjudicatory judgment (as father did here) but fail to include in their appeal a challenge to those procedures.

¶ 23 Nevertheless, we need not determine if father’s challenge to the initial dispositional order is properly before us because, even if it is, we reject it. In general, a parent may not obtain relief on a due process claim absent a showing of harm or prejudice. People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007). Here, father

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fails to articulate with any specificity how the court’s failure to hold a dispositional hearing before adopting his treatment plan affected the outcome of the APR hearing. Instead, he broadly argues that he “was denied his opportunity to present evidence regarding the treatment plan in court, which in turn substantially impacted the department’s view of his compliance throughout the case, culminating in it supporting [m]other’s APR motion.” But he doesn’t explain what parts of the treatment plan were inappropriate (particularly in light of his testimony at the APR hearing that he had no issues with the portions of his treatment plan requiring him to undergo psychological and domestic violence evaluations), what evidence he would have presented at the dispositional hearing, how that evidence would have resulted in the court adopting a different treatment plan, or how a different treatment plan would have changed the outcome of the APR hearing.

¶ 24 Accordingly, because father fails to sufficiently allege any prejudice, we reject his argument.

B. De Facto Termination

¶ 25 Father also argues that the juvenile court violated his right to fundamentally fair procedures by “effectively ordering the

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termination of [his] parental rights without the protections of a termination hearing” or requiring the Department to prove the statutory factors for termination by clear and convincing evidence. He asserts that the APR order constituted a “de facto termination” because it deprived him of “all of his parental rights” and offered “no opportunity to step back into his role in the family.” We are not persuaded.

¶ 26 To support his argument, father points us to a case from the Michigan Court of Appeals. But that case isn’t binding in Colorado. See People v. Weiss, 133 P.3d 1180, 1187 (Colo. 2006). In Colorado, a termination judgment divests the parent of “all legal rights, powers, privileges, immunities, duties, and obligations” with respect to the child. § 19-3-608(1), C.R.S. 2026. And our supreme court has held that an order awarding custody of a child to another person differs significantly from the total termination of a parent’s rights. See L.L. v. People, 10 P.3d 1271, 1277 (Colo. 2000); see also People in Interest of L.B., 254 P.3d 1203, 1206 (Colo. App. 2011) (noting that a parent’s right to due process is different when the state seeks only to award custody of a child to other persons rather than to terminate parental rights). Even when a parent loses the

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majority of their parenting rights as the result of a custody order, the residual right to petition for modification of that order is sufficient to refute the argument that the order is the functional equivalent of termination. L.L., 10 P.3d at 1277; see also People in Interest of M.G., 128 P.3d 332, 334 (Colo. App. 2005) (when a parent loses custody, they still retain many rights, including the right to petition to regain custody or increase parenting time).

¶ 27 Here, we acknowledge that father wasn’t authorized to engage in parenting time as the result of the APR order, and the juvenile court didn’t articulate a way for him to work toward regaining parenting time or decision-making authority. Nonetheless, the court didn’t divest father of all legal rights with respect to the youths. And nothing in the court’s order prevents father from petitioning in the future to regain custody, increased parenting time, or decision-making authority. See L.L., 10 P.3d at 1277.

¶ 28 Accordingly, we reject father’s assertion that the court entered a “de facto termination” of his parental rights. Consequently, we conclude that the court didn’t violate his due process rights by failing to hold a termination hearing or to require clear and

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convincing proof of the statutory termination factors before granting sole custody to mother.

IV. Child Support

¶ 29 Lastly, father contends that the juvenile court erred by (1) ordering that child support be modified retroactively to April 2024 and (2) miscalculating child support arrears. We agree with the first contention but reject the second.

A. Applicable Law and Standard of Review

¶ 30 The Colorado Children’s Code authorizes a juvenile court to enter an APR and address child support when it maintains jurisdiction in a case involving a dependent or neglected child. § 19-1-104(5)-(6), C.R.S. 2026; People in Interest of E.Q., 2020 COA 118, ¶¶ 10, 18. When the juvenile court determines child support in a dependency and neglect proceeding, it must follow the provisions for establishing child support orders under article 6 of the Children’s Code, which expressly requires the court to follow the provisions of section 14-10-115, C.R.S. 2026. E.Q., ¶¶ 22-23.

¶ 31 Article 6 also provides that a court may modify a child support order only in accordance with the modification provisions set out by section 14-10-122, C.R.S. 2026. See § 19-6-104(4), C.R.S. 2026.

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Ordinarily, a child support modification order is effective as of the date the motion to modify is filed. See §§ 14-10-122(1)(a), (d); In re Marriage of Garrett, 2018 COA 154, ¶ 21. However, child support is calculated, in part, based on the physical care arrangements of the child. See § 14-10-115(1)(b)(III). Thus, when there has been a court-ordered, voluntary, or mutually agreed upon change in the physical care of a child, child support is modified as of the date of the change in care, rather than as of the date the motion to modify is filed. § 14-10-122(5); In re Marriage of Paige, 2012 COA 83, ¶ 7.

¶ 32 We generally review a child support order for an abuse of discretion. In re Marriage of Boettcher, 2019 CO 81, ¶ 12. However, we won’t disturb a court’s factual findings underlying a child support determination unless they are clearly erroneous. See In re Marriage of Connerton, 260 P.3d 62, 66 (Colo. App. 2010). And we review de novo whether the court applied the correct legal standard as provided in the statute when crafting the order. Boettcher, ¶ 12.

B. Retroactive Child Support

¶ 33 In its order modifying child support, the juvenile court determined, based on mother having sole physical custody of the youths, that father’s ongoing child support obligation should be

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modified to $729 per month. The court also found that the modified support order should be retroactive back to April 24, 2024, because that was the date mother gained sole physical custody of the youths “by Court order.” Based on that finding, the court determined that father owed mother $16,038 (twenty-two months of a $729 monthly payment) in retroactive child support.

¶ 34 The court also entered a modified child support order based on the changes in physical care arrangements that occurred prior to April 2024. To that end, it found that the youths lived with father “100% of the time” from May 2023 to April 2024. It determined that when father had sole physical custody, mother’s child support obligation to father was $1,191 per month. As a result, it found that mother owed father $14,292 (twelve months of a $1,191 monthly payment) in retroactive support. The court “offset the retroactive support owed by the parties,” concluding that father owed mother a total of $1,746 ($16,038 minus $14,292) in retroactive child support.

¶ 35 On appeal, father asserts that the record doesn’t support the court’s findings regarding retroactivity of the modified child support order. Specifically, he asserts that no court-ordered change

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resulted in mother having sole physical custody of the youths in April 2024. Thus, he asserts, the court erred by ordering that the modified child support order be retroactive to that date. We agree.

¶ 36 Our review of the record indicates the following:

• In December 2022, the domestic relations court granted father sole physical custody and restricted mother’s parenting time to supervised visits only.

• In April 2023, the parents filed a stipulation in the domestic relations case, agreeing to equal parenting time if mother complied with several conditions. A month later, father filed a notice in the domestic relations case stating that the requirement for mother’s parenting time to be supervised would be reimposed because mother hadn’t complied with the stipulation’s conditions.

• When the dependency and neglect case opened in October 2023, the youths were still residing full-time with father, and mother’s parenting time was restricted to supervised visits only.

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• In January 2024, the juvenile court modified parenting time, ordering a “week-on/week-off” schedule between the parents.

• In April 2024, the youths began refusing to go to father’s house for parenting time. The youths moved the juvenile court to grant mother sole physical custody and limit father’s parenting time to supervised visits only. The court declined to immediately restrict father’s parenting time and, instead, set a hearing on the youths’ motion.

• In August 2024, after a contested hearing, the court granted mother sole physical custody and ordered that father have therapeutic visits only. That order remained in effect at the time of the APR and child support hearing.

¶ 37 Based on those facts, we cannot decipher how the juvenile court found that a “physical change in custody of the [youths] was made by [c]ourt order dated April 24, 2024.” True, the record supports a finding that the youths began refusing to see father at that time. But nothing in the record indicates that this was the result of a court-ordered change in physical care. As best we can tell, the court didn’t order such a change until August 2024, when

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it modified the “week-on/week-off” parenting time schedule and ordered that the youths reside full-time with mother. Thus, we conclude that the court’s finding that a court-ordered change in physical care occurred in April 2024 was clearly erroneous. See People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15 (a trial court’s factual finding is clearly erroneous if it has no record support).

¶ 38 The Department, the youths, and mother nonetheless urge us to affirm the court’s retroactive child support order because they assert that the April 2024 change in physical care was voluntary or mutually agreed upon for purposes of retroactivity under section 14-10-122(5). But the juvenile court didn’t make any findings about whether the April 2024 change in physical care was voluntary or mutually agreed upon, and we cannot make those findings on appeal. See Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51, ¶ 18 (noting that trial courts make factual findings while appellate courts pronounce law); see also People in Interest of J.L., 121 P.3d 315, 318 (Colo. App. 2005) (“[W]e cannot make factual findings of our own.”). Thus, we cannot affirm the retroactive child support order on those grounds.

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¶ 39 Accordingly, we reverse the portion of the juvenile court’s order calculating retroactive child support. On remand, the court shall recalculate retroactive child support, accounting for any court-ordered, voluntary, or mutually agreed upon changes in physical care during the time between the previous child support order and the February 2026 order. See § 14-10-122(5).1 C. Child Support Arrears

¶ 40 In addition to calculating ongoing and retroactive child support, the juvenile court determined that father owed mother $1,896 in child support arrears. That determination was based on a finding that father failed to pay child support under the prior

1 Based on our review of the record, it appears that there was a period of time — seemingly from January 2024 through August 2024 — during which the parents exercised equal parenting time as a result of the juvenile court’s order for a “week-on/week-off” parenting time schedule. However, in the juvenile court’s order modifying child support, it didn’t calculate any child support based on the shared physical custody during that period of time. Rather, the court found that the youths “lived with father 100% of the time from May, 2023 to April 24, 2024” and lived full-time with mother thereafter. Although no party addresses this discrepancy on appeal, we note that the court may need to reconsider its findings related to the youths’ physical care arrangements prior to April 2024 to properly recalculate retroactive child support.

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support order in February, June, and October 2022 and in January, February, and March 2023.

¶ 41 The record supports the juvenile court’s finding. Specifically, mother testified that the previous child support order required father to pay her $316 per month and that all of his payments were deposited into a particular bank account. The court admitted mother’s Exhibits 1-4 into evidence, which were bank statements from that account. A review of those exhibits reveals that there were no deposits of $316 into that account in February, June, or October 2022 or in January, February, or March 2023.

¶ 42 Still, father argues that the court’s finding was not supported by the record because he “presented proof that he paid his child support obligations for [the] months” that the court found he had not. As support, father points us to the bank statements he filed with his response to mother’s motion to modify child support. But he didn’t offer those bank statements as evidence during the hearing and, thus, the court didn’t admit them. Consequently, the court couldn’t consider the bank statements in making its child support arrears determination. See Hartman v. Freedman, 591 P.2d 1318, 1321 (1979) (a trier of fact may look only to testimony or

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exhibits that are admitted as evidence for the facts upon which to base a decision). And we cannot consider them either. See Boulder Plaza Residential, LLC v. Summit Flooring, LLC, 198 P.3d 1217, 1222 (Colo. App. 2008) (an appellate court will not consider evidence that a party failed to introduce at trial).2

¶ 43 Accordingly, we perceive no abuse of discretion in the juvenile court’s order for father to pay mother $1,896 in child support arrears.

V. Disposition

¶ 44 We reverse the portion of the juvenile court’s order in which it calculated and granted retroactive child support. We remand the case for the court to reconsider retroactive child support during the time between the previous child support order and the February

2 We acknowledge that father attached the bank statements to his

motion for relief from judgment pursuant to C.R.C.P. 59. However, father didn’t request a new trial under C.R.C.P. 59(d)(4), which authorizes a new trial based on “[n]ewly discovered evidence.” Nevertheless, to the extent that his motion could be characterized as a motion under subpart (d)(4), we conclude that the juvenile court properly denied it because the bank statements could have — and should have — been produced at the hearing. See Aspen Skiing Co. v. Peer, 804 P.2d 166, 172 (Colo. 1991) (to succeed on a claim of newly discovered evidence under Rule 59(d)(4), a party must establish that the evidence couldn’t have been discovered by the exercise of reasonable diligence and produced at trial).

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2026 order, accounting for any court-ordered, voluntary, or mutually agreed upon changes in physical care of the youths. We otherwise affirm the court’s APR judgment and child support order.

JUDGE GROVE and JUDGE MOULTRIE concur.