Peo in Interest of TK

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 24CA1607
• Status: Unpublished

Opinion

24CA1607 Peo in Interest of TK 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1607 Delta County District Court No. 23JV30006 Honorable Steven L. Schultz, Judge

The People of the State of Colorado,

Appellee,

In the Interest of T.K., a Child,

and Concerning R.K.,

Appellant.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE LUM Fox and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

John F. Baier, County Attorney, Jodie L. Behrmann, Assistant County Attorney, Mark Franklin, Assistant County Attorney, Adriana Hartley, Assistant County Attorney, Delta, Colorado, for Appellee

Alison A. Bettenberg, Counsel for Youth, Centennial, Colorado, for T.K.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect action, R.K. (father) appeals

the judgment entered on a jury’s verdict adjudicating T.K. (the

youth) dependent and neglected. We affirm.

I. Background

¶2 The Delta County Department of Human Services filed a

petition in dependency and neglect, alleging concerns about sexual

abuse, the condition of the home, a lack of supervision, and the

need for supportive services for the youth, who had been diagnosed

with learning disabilities and autism spectrum disorder.

¶3 Father denied the allegations in the petition and requested an

adjudicatory jury trial. Before the trial, the Department moved

for — and the juvenile court granted — summary judgment on the

ground that the youth’s environment was injurious to her welfare

under section 19-3-102(1)(c), C.R.S. 2024. Father appealed, and a

division of this court reversed the adjudication and remanded the

case for a trial, noting that, while the undisputed facts about the

condition of father’s home “could support a jury finding of injurious

environment . . . summary judgment is appropriate only if that is

the sole inference a reasonable fact finder could draw.” People in

1 Interest of J.A.K. & T.K., (Colo. App. No. 23CA1377, Feb. 8, 2024)

(not published pursuant to C.A.R. 35(e)).

¶4 On remand, the juvenile court presided over a four-day

adjudicatory jury trial. After the conclusion of evidence, the jury

returned special verdicts finding that the youth was dependent or

neglected under subsections 19-3-102(1)(a), (b), (c), (d), and (e).

II. Adjudication

¶5 Father contends “the juvenile court erred when it focused

solely on prospective harm in determining the [youth] was

dependent and neglected because at the time of the adjudication

hearing [father] was a fit parent.” But the juvenile court did not

determine that the youth was dependent or neglected; the jury did.

And because the adjudication was based on the special verdict

returned by the jury, there were not specific findings of fact and no

indication that the youth’s adjudication was based on prospective

harm as father claims.

¶6 We therefore read father’s contention that he was a fit parent

at the time of the adjudicatory jury trial as a challenge to the

sufficiency of the evidence. The youth and Department contend,

2 and we agree, that there was sufficient evidence to support the

jury’s verdict and the youth’s subsequent adjudication.

A. Applicable Law and Standard of Review

¶7 The purpose of an adjudicatory hearing is to determine the

child’s status as dependent or neglected under section 19-3-102

and whether that status warrants intervention by the government.

People in Interest of N.G., 2012 COA 131, ¶ 39.

¶8 An adjudication may not enter without proof, by a

preponderance of the evidence, that the child is dependent and

neglected. People in Interest of J.G., 2016 CO 39, ¶¶ 15, 53. The

preponderance of the evidence standard allows for some uncertainty

in the determination of dispositive facts. See People in Interest of

A.M.D., 648 P.2d 625, 634 (Colo. 1982).

¶9 As relevant here, a youth is dependent or neglected when (1) a

parent has subjected the youth to mistreatment or abuse or has

allowed another to mistreat or abuse the youth; (2) the youth lacks

proper parental care through the actions or omissions of the parent;

(3) the youth’s environment is injurious to her welfare; (4) a parent

fails or refuses to provide the youth with proper or necessary care;

or (5) the youth is without proper care through no fault of the

3 parent. § 19-3-102 (1)(a)-(e). “[S]ection 19-3-102 requires proof of

only one condition for an adjudication.” 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.

¶ 10 In determining whether the evidence is sufficient to sustain an

adjudication of dependency or neglect based on a jury’s verdict, 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. People in Interest of S.G.L., 214 P.3d

580, 583 (Colo. App. 2009). “The credibility of the witnesses and

the sufficiency, probative effect, and weight of the evidence, as well

as the inferences and conclusions to be drawn therefrom,” are

within the purview of the jury. Id. We will not disturb the jury’s

findings if the record supports them, even if “reasonable people

might arrive at different conclusions based on the same facts.” Id.;

People in Interest of T.T., 128 P.3d 328, 331 (Colo. App. 2005).

B. Analysis

¶ 11 At the adjudicatory jury trial, the Department presented

evidence that the youth was vulnerable because of her

developmental disabilities. The youth had an individualized

4 learning plan at school for autism and learning disabilities in math,

reading, and writing. The youth also received occupational therapy

and speech language therapy support. The youth’s placement

testified that she required specific instruction for basic tasks,

including small steps, repetition, and cueing.

¶ 12 In contrast, father testified he believed that the youth had a

good understanding of what was dangerous, that she was capable

of making decisions on her own behalf, and that he had “no reason

to think that [the youth] needs professional help in anything.”

¶ 13 The Department presented further evidence that father did not

understand or meet the youth’s individual needs. The ongoing

caseworker expressed concern that father had unrealistic

expectations of the youth, including that she would be responsible

for maintaining her hygiene and the condition of father’s home

without support. A representative from the youth’s school testified

that, while father attended school meetings over the years, his focus

during meetings was on his needs rather than the youth’s. A family

time supervisor testified that, after the youth was removed from

father’s home, father did not engage with the youth or provide

direction to her during supervised family time.

5 ¶ 14 The Department also presented evidence that, while she was

in father’s care, the youth came to school unkempt, often with feces

on her body and wearing clothes and shoes that were too small or

not appropriate for the weather. After attempts to address the

youth’s hygiene with father did not result in any change, the school

instituted a “personal care plan” which allowed them to provide the

youth with showers, change her clothing, and comb her hair at

school. Under the plan, the school provided the youth with

necessities such as clothing, shoes, hairbrushes, shampoo,

conditioner, body wash, and deodorant.

¶ 15 The jury also heard evidence that the youth was exposed to

sexual misconduct in father’s home. Father testified he knew the

youth and her older brother were “inquisitive and push boundaries”

and that he had more than one conversation with them about

appropriate behavior. Additionally, Father said there were several

investigations into sexual misconduct between the siblings involving

the Department, his church community, and law enforcement.

Father testified that both the youth and her brother disclosed they

touched each other inappropriately during those investigations, but

because their stories conflicted and because father never saw the

6 behavior himself, he did not believe that the youth had been

victimized. Finally, father told the jury that, while he believed that

“touching out of curiosity” was “inappropriate,” he viewed those

experiences as “educational” and not as harmful to the youth.

¶ 16 Father also testified about the Department’s involvement with

his other children. The juvenile court then took judicial notice of

two prior dependency and neglect cases involving those children,

explaining to the jury that father’s parental rights were terminated

as to two children and that the youth’s brother was adjudicated

dependent and neglected.

¶ 17 From the above-described evidence, the jury could reasonably

infer that the youth was dependent or neglected in father’s care

under one or more of the statutory criteria presented. See § 19-3-

102(1)(a)-(e). Accordingly, we will not disturb the jury’s verdict.

C. Prospective Harm

¶ 18 To the extent father contends that prospective harm was not

an appropriate basis for adjudication, we decline to address this

issue because father did not preserve it. An issue is unpreserved

for review when, “among other things, (1) no objection or request

was made in the trial court; or (2) an objection or request was made

7 in the trial court, but on grounds different from those raised on

appeal or on unspecific grounds which would not have alerted the

trial court to the issue of which the defendant now seeks review.”

People v. Ujaama, 2012 COA 36, ¶ 37 (citations omitted).

¶ 19 Father was given ample opportunity to raise this issue in the

juvenile court and failed to do so. The parties explicitly discussed

prospective harm outside the presence of the jury without objection

from father. While father objected to the court taking judicial notice

of the adjudications of father’s other children and the termination of

father’s parental rights as to two children, father objected on the

ground that evidence of prior cases would be prejudicial, not that

the Department should be barred from presenting evidence relevant

to prospective harm. Furthermore, father did not object to jury

instructions pertaining to prospective harm, including that the jury

was permitted to (1) find that the youth would lack proper care even

when father did not have custody at the time of the adjudication; (2)

consider the treatment of father’s other children; and (3) find, based

on father’s past conduct, that the youth was likely to be harmed in

father’s care.

¶ 20 Therefore, this contention is not properly before us.

8 III. Disposition

¶ 21 The judgment is affirmed.

JUDGE FOX and JUDGE GOMEZ concur.