Peo in Interest of LSM

23CA1980 Peo in Interest of LSM 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1980

City and County of Denver Juvenile Court No. 23JV30343

Honorable Pax Moultrie, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.S.M., a Child,

and Concerning J.A.R.,

Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE FOX

Grove and Sullivan, JJ., concur

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

Announced July 18, 2024

Kerry C. Tipper, City Attorney, Amy J. Packer, Assistant City Attorney, Colby

Simpson, Assistant City Attorney Fellow, Denver, Colorado, for Appellee

Josi McCauley, Guardian ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for

Appellant

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¶ 1 J.A.R. (father) appeals the judgment adjudicating L.S.M. (the

child) dependent and neglected. We affirm.

I. Background

¶ 2 Denver Human Services (the Department) received a referral

with information that the then-sixteen-month-old child was on life

support after ingesting a fentanyl pill. The Department filed a

petition in dependency and neglect, alleging that that the child

needed extensive medical intervention after ingesting fentanyl and

father was responsible for the child at the time of the incident.

¶ 3 The juvenile court granted temporary custody of the child with

the Department, for placement with the maternal grandmother.

¶ 4 Father denied the allegations in the petition. The juvenile

court conducted a bench trial five months after the Department

filed the petition. After the trial, the court found, by a

preponderance of the evidence, that the child had been in an

injurious environment and would continue to be in an injurious

environment without the court’s intervention. The court sustained

the petition and adjudicated the child dependent and neglected.

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II. Adjudication

¶ 5 Father contends that the juvenile court erred by adjudicating

the child because “it was not shown that father had done anything

to harm the child” and, at the time of the adjudication, the child

was placed with the maternal grandmother with father’s support.

We discern no basis for reversal.

A. Standard of Review and Applicable Law

¶ 6 A child is dependent and neglected if, as pertinent here, “[t]he

child’s environment is injurious to his or her welfare.” § 19-3-

102(1)(c), C.R.S. 2023. An injurious environment occurs “when a

child is in a situation that is likely harmful to that child.” People in

Interest of J.G., 2016 CO 39, ¶ 26.

¶ 7 “The purpose of an adjudicatory hearing 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 subject child or children warrants

intrusive protective or corrective state intervention into the familial

relationship.” People in Interest of A.M., 786 P.2d 476, 479 (Colo.

App. 1989).

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¶ 8 Because a dependency and neglect proceeding is preventive as

well as remedial, an adjudication may be based not only on current

or past harm but also on prospective harm. People in Interest of

S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).

¶ 9 If the petition is sustained, the juvenile court may enter a

judgment of adjudication, which is not as to the parents but relates

only to the child’s status on the date of the adjudication. K.D. v.

People, 139 P.3d 695, 699 (Colo. 2006). At the adjudication stage,

as elsewhere during a dependency and neglect proceeding, the best

interest of the child is paramount. A.M. v. A.C., 2013 CO 16, ¶ 14.

¶ 10 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 discretion of the

juvenile court. K.D., 139 P.3d at 702.

¶ 11 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 court’s decision. People in Interest of

D.L.R., 638 P.2d 39, 41 (Colo. 1981). We will not disturb a juvenile

court’s findings and conclusions if the record supports them, even

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though reasonable people might arrive at different conclusions

based on the same facts. K.D., 139 P.3d at 702.

B. Analysis

¶ 12 The juvenile court found, by a preponderance of the evidence,

that the child’s environment was injurious to her welfare. In

particular, the court found that there was no dispute that the child

(1) ingested fentanyl; (2) “had a significant injury” as a result; (3)

needed to be intubated after her heart stopped and she was not

breathing; (4) stayed at the pediatric intensive care unit for four or

five days; and (5) required inpatient acute rehabilitation and

ongoing support for regression in motor and speech skills. The

court found that, although it was unclear how the fentanyl came to

be in the home, “any environment where a child can obtain and

ingest fentanyl is an injurious one.”

¶ 13 The juvenile court clarified that it was “not finding that [father]

— that anybody did anything purposefully to hurt [the child].” The

court further found that there was no evidence of malicious intent

and that father cared deeply for the child.

¶ 14 The record supports these findings, and we will not disturb

them or the court’s legal conclusions.

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¶ 15 The hospital social worker testified that she met with father at

the child’s bedside. Father reported to her that he had left the child

in the care of an elderly roommate. Father reportedly expressed

doubt about his roommate’s ability to “keep up with” the child.

Father reportedly suggested to the hospital social worker that the

fentanyl might have been in the home because a former resident

was prescribed fentanyl as part of cancer treatment.

¶ 16 The intake caseworker testified that she observed father’s

interview with law enforcement the day of the incident. In that

interview, father stated that he had found fentanyl in the

community and brought it home to show his roommate before

flushing it down the toilet. The caseworker testified that she

believed the fentanyl may have somehow not successfully been

flushed.

¶ 17 Regardless of how the fentanyl came to be in the home, the

hospital social worker, intake caseworker, and ongoing caseworker

each independently testified that the child had ingested fentanyl

while father was responsible for her care, resulting in serious harm

to the child. The ongoing caseworker summarized, in response to

father’s questions, “somehow [the child] ingested fentanyl, that led

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to a series of very serious medical issues and complications for her.

She ingested that fentanyl while she was in [father’s] care.”

¶ 18 Because of pending criminal charges, father did not testify at

the adjudicatory hearing.

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He presented no evidence to challenge

the information the Department presented.

¶ 19 Father now argues that there was insufficient evidence to

support the court’s judgment adjudicating the child dependent or

neglected because nothing was presented to demonstrate that he

had purposefully done anything to harm the child. Indeed, the

Department made clear in closing argument that it did “not believe

that [father] acted maliciously or with any intent necessarily to

harm his daughter.”

¶ 20 However, because the adjudication relates to the status of the

child, the Department did not need to demonstrate father’s intent to

show that the child was in an injurious environment. See K.D. 139

P.3d at 699; see also J.G., ¶ 34 (an evaluation of whether an

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We take judicial notice that the Denver District Court later

accepted father’s guilty plea to child abuse resulting in serious

bodily injury. See § 18-6-401(1)(a), (7)(a)(IV), C.R.S. 2023; see also

People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004) (appellate court

may take judicial notice of the contents of court records in a related

case).

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injurious environment exists focuses on “the existence of an

injurious environment rather than who caused it”).

¶ 21 Finally, father contends that, even if the child was in an

injurious environment at the time of the incident, at the time of

adjudication she was placed “in a safe and stable placement with

the maternal grandmother which was supported by” father. True,

father did not object to the child being placed with the maternal

grandmother at the shelter hearing. However, it was the juvenile

court, and not father, that arranged for the legal placement of the

child with the maternal grandmother. And there was no evidence

that father would have allowed the child to stay in that placement

without the court’s intervention. In fact, the record suggests that

the child had been staying with the maternal grandmother, but

father asked that the child be returned to him the night before the

child ingested the fentanyl.

¶ 22 Thus, while an adjudication must be based on the

circumstances at the time of the adjudication, that does not mean

the court must determine “whether the child is presently receiving

proper care or whether his or her environment is presently

injurious.” People in Interest of S.X.M., 271 P.3d 1124, 1130 (Colo.

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App. 2011). Here, the juvenile court properly considered “whether

the child ‘will lack’ proper parental care if returned to his or her

parent, and whether his or her environment ‘will be’ injurious to

him or her in that event” despite the child’s placement with the

maternal grandmother at the time of the adjudication. Id.

III. Disposition

¶ 23 The judgment is affirmed.

JUDGE GROVE and JUDGE SULLIVAN concur.