People ex rel. S.X.M.

271 P.3d 1124, 2011 Colo. App. LEXIS 1520
CourtColorado Court of Appeals
DecidedSeptember 15, 2011
DocketNo. 11CA0398
StatusPublished
Cited by257 cases

This text of 271 P.3d 1124 (People ex rel. S.X.M.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. S.X.M., 271 P.3d 1124, 2011 Colo. App. LEXIS 1520 (Colo. Ct. App. 2011).

Opinion

Opinion by

Judge DAILEY.

In this dependency and neglect proceeding, T.M. (father) appeals from the order adjudicating S.X.M. (child) as a dependent and neglected child. Father contends that [1126]*1126the jury's findings do not support the adjudication and that the trial court deprived him of fundamental fairness by permitting the child to testify at trial via closed-circuit television. We disagree with each of his contentions and therefore affirm.

I. Background

In June 2010, SSX.M., then six years old, was removed from father's care after the Larimer County Department of Human Services (LCDHS) received a report that the child had disclosed that father had had sex with her and that other "inappropriate sexual actions" had taken place between father and the child.

A jury trial to determine whether the child was dependent and neglected was scheduled for February 2011.

Prior to the trial, LCDHS filed a motion in limine requesting that the child be permitted to testify in front of the jury but not in the presence of father. As grounds for this request, LCDHS argued that (1) allowing father to be in the courtroom while the child was present would be a violation of the no-contact order which required father to stay at least 500 feet away from the child, and (2) if the child were to see father in the courtroom, she might be too intimidated and traumatized to testify. Father opposed the motion, arguing that he had a right to confront the witnesses against him and that LCDHS had not provided any factual support for its argument that he should be excluded from the child's presence.

The trial court granted LCDHS's motion, citing testimony that the child exhibited "anxiety and avoidance" when the topic of father arose in therapy, and the representation of the child's guardian ad litem (the GAL) that it was in the child's best interests that she not be required to testify in front of father. However, the court ordered that father should have the opportunity to view the child's testimony via closed-circuit television, and that during the testimony he should have real-time communication with his attorney via cell phone. The court concluded that this procedure would "appropriately balance[ ] his need for effective cross-examination while protecting the child from undue emotional harm."

LCDHS also filed a position statement regarding the jury instructions to be given at trial. Among other things, LCDHS proposed to use the past tense in the two questions to be submitted to the jury:

1. Did the child lack proper parental care through the actions of her father?
2. Was [the child's] environment injurious to her welfare?

LCDHS argued that the past tense was appropriate because the allegations concerning the child's care and environment were intended to refer to the time of the filing of the petition in dependency and neglect. In response, father argued that the present tense should be used because the purpose of a dependency and neglect proceeding is "to address whether [a] parent can properly care for their child, not whether one single act occurred in the past." Father noted that section 19-3-102(1)(b) and (c), C.R.S.2010, use the present tense in providing that a child is neglected or dependent if "[t]he child lacks proper parental care through the actions or omissions of the parent" or "[t] he child's environment is injurious to ... her welfare." He contended that the use of the past tense would confuse the jury.

The present or past tense issue was raised again during the jury instruction conference at the conclusion of the trial. Father pointed out that an adjudication of neglect or depen-deney relates to the status of the child, not the parent. He contended that it would be prejudicial to him to ask the jury to "look backwards alone." The GAL argued that use of the present tense would confuse the jury, because it would encourage the jury to consider whether the child was in an unsafe environment while in foster care, rather than while in father's care.

The court concluded that in a case where the child had been removed from the parent's care, using the past tense would be less confusing than using the present tense. Accordingly, the jury was instructed in Jury Instruction 18 to consider whether the child "lacked" proper parental care through the actions or omissions of father, and whether [1127]*1127her environment "was" injurious to her welfare. The special verdict form was similarly worded.

The child testified according to the procedure established by the court. The jury answered "yes" to both of the questions asked of it, and the child was adjudicated dependent and neglected.

II. Confrontation and Due Process

Father contends that he had a right to confront the child in the courtroom, and by allowing the child to testify at trial via closed-circuit television, the court denied that right and also denied him the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment. We do not agree.

Citing Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), father argues that he had a right to confront the child, and this right should not have been denied in the absence of evidence that the child would be traumatized if required to testify in his presence. Father acknowledges that Craig is a criminal case, and no Colorado case supports the proposition that a party to a noneriminal case has a right to confront an accuser face-to-face. However, he notes that a parent has a right to "fundamentally fair procedures" in a dependency and neglect proceeding, and he argues that in view of the importance of a parent's fundamental liberty interest in the care, custody, and control of his child, his right to "fundamental fairness" includes the right to confront his accuser in court in a dependency and neglect proceeding, even when his accuser is his own child.

To the extent that father argues that the Sixth Amendment right of confrontation should be extended to a parent involved in a dependency and neglect proceeding, we note that this argument has been rejected in Colorado. In People in Interest of C.G., 885 P.2d 355, 357 (Colo.App.1994), another division of this court held that "(aln action for termination of the parent-child legal relationship is a civil action; therefore, neither due process nor other constitutional guarantees confer a right of confrontation on a respondent or require his presence at a termination hearing." Id.; see also People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo.App.1989) (Sixth Amendment right to confrontation applies to criminal cases; there is no similar right in a civil trial).

To the extent that father nonetheless contends that fundamental fairness required that he be allowed to confront the child in court, even if he did not have a right to do so under the Sixth Amendment, we reject his argument. Father has cited no Colorado authority for the proposition that due process requires the extension of the right of confrontation to civil litigants. Moreover, we note that even in a criminal case, the right to confront an adverse witness is not unlimited.

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Cite This Page — Counsel Stack

Bluebook (online)
271 P.3d 1124, 2011 Colo. App. LEXIS 1520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-sxm-coloctapp-2011.