Peo in Interest of AG

24CA0868 Peo in Interest of AG 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0868
Logan County District Court No. 21JV20
Honorable Stephanie M.G. Gagliano, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.G. and J.G., Children,

and Concerning R.D.G., II,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Alan Samber, County Attorney, Kimberlee R. Keleher, Assistant County
Attorney, Sterling, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for
Appellant
¶1 In this dependency and neglect action, R.D.G. II (father)

appeals the judgment terminating his parent-child legal

relationships with J.G. and A.G. (the children). We affirm.

I. Background

¶2 The Logan County Department of Human Services (the

Department) received multiple referrals concerning the children and

their older brother.1 Two caseworkers went to the family home,

where E.G. (mother), father, and the children all reported domestic

violence in the home. The caseworkers told the family that they

would come back to the home to offer services. The Department

prepared a safety plan to present to the family to address the

concerns about the children’s safety. However, when the

caseworker returned, the older brother was at the home alone, and

didn’t know where the rest of the family had gone or when they

would be back. The Department monitored the situation for several

weeks, trying to reach father without success. The Department

obtained temporary custody of the children and then filed a petition

1 The children’s older brother was dismissed from the dependency

and neglect action when he turned eighteen years old and is not a
party to this appeal.

1
in dependency and neglect, alleging that the children were impacted

by domestic violence and educational neglect. The children were

located in and removed from Texas, where father remained

throughout the action.

¶3 The juvenile court adjudicated the children dependent and

neglected and adopted treatment plans for both parents. The

Department later moved to terminate both parents’ parental rights.

While the motion was pending, father was arrested for domestic

violence, and mother and father separated. The juvenile court

entered a civil protective order prohibiting father from contacting

mother and restricting father’s contact with the children to family

time supervised by the Department. The juvenile court bifurcated

all hearings after the protective order was entered.

¶4 Two years and seven months after the petition was filed, the

juvenile court terminated father’s parental rights following a four-

day contested hearing.

2
II. Jurisdiction Under the Uniform Child-custody Jurisdiction
and Enforcement Act (UCCJEA)

¶5 Father contends that the juvenile court erred by concluding

that it had jurisdiction to terminate his parental rights. We discern

no error.

A. Standard of Review and Applicable Law

¶6 We review de novo whether the juvenile court had subject

matter jurisdiction under the UCCJEA. People in Interest of S.A.G.,

2021 CO 38, ¶ 21. However, we review the factual findings

underpinning the court’s determination of jurisdiction for clear

error and we won’t disturb them unless they lack any support in

the record. Id.

¶7 The UCCJEA “establishes a comprehensive framework that a

Colorado court must follow to determine whether it may exercise

jurisdiction in a child-custody matter or whether it must defer to a

court of another state.” People in Interest of M.M.V., 2020 COA 94,

¶ 17.

¶8 A court has jurisdiction to make an initial child-custody

determination if, as relevant here, the state is the child’s home

state. § 14-13-201(1)(a), C.R.S. 2024. Colorado is a child’s home

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state when the child has lived in Colorado “for at least one hundred

eighty-two consecutive days immediately before the commencement

of a child-custody proceeding,” including any “period of temporary

absence.” § 14-13-102(7)(a), C.R.S. 2024.

B. Additional Background

¶9 At the first shelter hearing, the children’s location was

unknown. The Department reported that the older brother had

been left at the home with family’s belongings and “it [didn’t] appear

as if they’re intending to move or relocate.” The juvenile court

found that Colorado had home-state jurisdiction because the

children “have lived in the State of Colorado for over two years,

although they are currently out of the state temporarily.”

(Emphasis added.) The juvenile court emphasized that, although

there was an emergency situation that justified taking temporary

custody of the children, the court wasn’t exercising emergency

jurisdiction.

¶ 10 The children were located in Texas with the assistance of

Texas law enforcement and placed in foster care in Colorado.

¶ 11 Father contested Colorado’s jurisdiction throughout the

proceedings. The juvenile court held a second shelter hearing at

4
father’s request three months after the first shelter hearing. At that

hearing, father asserted that “emergency jurisdiction is an issue

today,” even though the court was not exercising emergency

jurisdiction. Father asserted that the court should hold hearings to

confer with courts in Texas (where the children were removed) and

Kansas (where there were custody orders for the older brother). At

the conclusion of the shelter hearing, the court made oral remarks

that home-state jurisdiction couldn’t be asserted at that time, an

emergency situation existed, and the “court will maintain temporary

emergency jurisdiction.” The court then issued a brief written order

stating that “ongoing jurisdiction is taken under advisement

pending additional hearing and/or consultation with Kansas and

Texas.”

¶ 12 The juvenile court then held a series of conferences with

judicial officials from Texas and Kansas. The juvenile court issued

a single order for all three children finding “that Colorado has

exclusive continuing jurisdiction.” The court “follow[ed] the

analysis of judges within Colorado, Kansas and Texas” who agreed

that Colorado is the children’s home state.

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C. Analysis

¶ 13 Father contends that the juvenile court erred by asserting

emergency jurisdiction. But the juvenile court was clear that it

wasn’t asserting emergency jurisdiction at the first shelter hearing

when the initial child-custody determination was made. And,

although the court made oral remarks after the second shelter

hearing regarding emergency jurisdiction, those remarks weren’t

formally adopted by the court in its written order following the

hearing. See People in Interest of O.J.S., 844 P.2d 1230, 1233 (Colo.

App. 1992) (“[T]he court has the authority to supplement and

modify the opinions it expressed in its oral remarks until the date

judgment formally enters.”), aff’d sub nom., D.A.S. v. People, 863

P.2d 291 (Colo. 1993). The court based its final determination of

jurisdiction on an analysis that Colorado had, and maintained,

home-state jurisdiction — not emergency jurisdiction. Thus, we

reject father’s premise that the court asserted emergency

jurisdiction.

¶ 14 Father next asserts that Colorado couldn’t be the children’s

home state because the children were removed from Texas and

therefore were not in Colorado “immediately before the start of the

6
proceeding.” Rather than dispute the juvenile court’s initial finding

that the children were outside Colorado as part of a temporary

absence, father appears to simply ignore the statutory guideline

that directs Colorado to retain home-state jurisdiction when a child

is absent from the state for a “period of temporary absence.” See §

14-13-102(7)(a). We won’t follow him down that path.

¶ 15 The record supports the court’s finding that, at the time the

juvenile court granted temporary custody of the children to the

Department, the children had been in the state of Colorado for more

than the required one hundred eighty-two days including a

temporary absence. Father testified that the family had been living

in Colorado for more than six years before the first shelter hearing.

The intake caseworker testified that the family never alluded to

leaving the state when he met with them at their home. Instead,

when the caseworker told father that he would be returning “[father]

said that [he] would appreciate it” and seemed receptive to enrolling

the children in school in Colorado. When the caseworker returned,

the older brother reported he thought father “wouldn’t have left him

by himself indefinitely without telling him goodbye.” The children’s

other brother who lived next door testified that he didn’t know that

7
father and the children were planning to leave or where they went.

Father was unclear in his communication with the adult brother

about where the family was going, and at one point father indicated

that the family was somewhere in Oklahoma.

¶ 16 At different times during the dependency and neglect action

father testified both that he “wanted to move back to [Colorado]

from the very start” and that he intended to permanently stay in

Texas. At the second shelter hearing, father testified that his car

was registered in Colorado, he maintained a bank account in

Colorado, and the billing address for his cell phone and insurance

were the family’s home address in Colorado. At the termination

hearing, father testified that he maintained employment in Colorado

until several weeks after the family first left the state.

¶ 17 Given this record, the juvenile court properly asserted home-

state jurisdiction at the first shelter hearing and maintained that

jurisdiction throughout the proceedings. See S.A.G., ¶ 39 n.3 (“[I]n

Colorado, a motion to terminate parental rights after a child has

been adjudicated dependent and neglected is a request for a

remedy, not the start of a second proceeding.”). To the extent that

the court erred by making other jurisdictional findings between its

8
first assertion of home-state jurisdiction and its final jurisdictional

orders, any error was harmless, as nothing about those subsequent

findings undermines the propriety of the court’s initial finding of

home-state jurisdiction.

III. Expert Testimony

¶ 18 Father next contends that the juvenile court erred by allowing

the caseworker to testify as an expert and, as part of that

testimony, opine that his parenting time was harmful to the

children. We disagree.

A. Standard of Review and Applicable Law

¶ 19 Father claims that the caseworker’s testimony infringed on his

due process rights and should be reviewed de novo. However, it is

well settled that the resolution of discovery issues, including the

sufficiency of disclosures and the admission of expert testimony,

are subject to review for an abuse of the juvenile court’s discretion.

People in Interest of S.L., 2017 COA 160, ¶ 67; People in Interest of

A.N-B., 2019 COA 46, ¶ 9. An abuse of discretion occurs only when

the juvenile court’s decision is manifestly arbitrary, unreasonable,

or unfair, or when it misapplies the law. Id. When a court admits

or excludes evidence, any error in its ruling is harmless unless it

9
affects a substantial right of the party. CRE 103(a)(1); see People v.

Quillen, 2023 COA 22M, ¶ 14.

B. Expert Testimony

¶ 20 Under C.R.C.P. 26(a)(2), a party must disclose to other parties

any person who may be called to present expert evidence at trial

and must also identify the person’s fields of expertise. If the

witness is a “retained expert,” defined as one “who is retained or

specially employed to provide expert testimony, or whose duties as

an employee of the party regularly involve giving expert testimony,”

the disclosure must be made by a written report as required under

C.R.C.P. 26(a)(2)(B)(I). If, on the other hand, the expert witness is

not a “retained expert,” the disclosure may be made in a written

report as required under C.R.C.P. 26(a)(2)(B)(II). For the purposes

of C.R.C.P. 26(a)(2), non-retained experts include “occupational

experts, such as treating physicians, police officers, or others who

might testify as experts but whose opinions are formed as part of

their normal occupational duties.” Gall v. Jamison, 44 P.3d 233,

234 n.2 (Colo. 2002); C.R.C.P. 26 cmt. 8.

¶ 21 At the time of the termination hearing, the disclosure and

discovery rules set forth in C.R.C.P. 26 could apply to dependency

10
and neglect actions when ordered by the juvenile court. C.R.C.P.

26(a); People in Interest of K.T., 129 P.3d 1080, 1082 (Colo. App.

2005).2 Here, the juvenile court maintained a standing case

management order requiring parties to comply with the “automatic

disclosure requirements” in C.R.C.P. 16.2(e) for domestic relations

cases, which includes Rule 16.2(e)(3), which in turn incorporates

C.R.C.P. 26(a)(2)(B)’s expert disclosure requirements. As discussed

below, Rule 26(a)(2)(B) contains different disclosure requirements

for “retained experts” verses “other experts.” Moreover, the case

management order prohibited the filing of “narrative case

summaries, case histories, and investigative reports, termination

hearing reports, and adjudication hearing reports, prepared by

caseworkers . . . except upon motion and order of the court” and

provided that “[u]nsolicited reports of caseworkers prepared for the

apparent purpose of advocating . . . termination of parental rights

are highly discouraged.”

2 After the termination hearing in this case, Juvenile Procedure

Rule 4.6 took effect. Rule 4.6 now broadly governs disclosure and
discovery in dependency and neglect actions.

11
¶ 22 In anticipation of the termination hearing, the Department

disclosed several caseworkers as expert witnesses. In accordance

with the plain language of the case management order, the

Department didn’t file any “termination hearing reports . . .

prepared by the caseworkers.” The first day of the termination

hearing, father filed a motion in limine asserting, as relevant here,

that “because the department employee’s duties, listed as expert

witnesses, involves giving expert testimony, they are required to

provide a report.” Father asked the court to “strike or disqualify all

the experts” as a sanction.

¶ 23 When the Department asked the court to recognize the

casework supervisor as an expert, father conducted an extensive

voir dire. In response to father’s questions whether “testifying as an

expert [was] a regular duty” in her position, the casework

supervisor responded that testifying wasn’t “regular,” although she

was aware that being called to testify “could happen.” She

estimated that over the course of sixteen years, she had been called

to testify as an expert less than once per quarter. Father also asked

questions, in counsel’s terms, “trying to identify what is child

welfare. If she’s an expert in child welfare . . . I’m not sure exactly

12
what that means.” The county attorney referenced the witness

disclosures and argued that the statements listed there related to

permanency, the appropriateness of the treatment plan, and the

likelihood that a parent would change in a reasonable period of time

were included in the proposed “broad child welfare” qualification.

Father agreed that the caseworker “could probably talk to

permanency” but disagreed that an expert opinion on that subject

was necessary or appropriate.

¶ 24 After voir dire, father objected to the casework supervisor

being qualified as an expert in child welfare, citing both “the term”

child welfare and the content of the expected testimony, which

father argued “relate[d] to the case and her experience in the case,

not necessarily an opinion that might help the court.”

¶ 25 Over father’s objection, the juvenile court recognized the

casework supervisor “as an expert based on her education, training,

and experience in the areas of addressing child safety, the

development of treatment plans, incorporating services, and in

assessing permanency for children.”

¶ 26 Father first contends that the juvenile court erred by

recognizing the casework supervisor as an expert when no report

13
was provided under C.R.C.P. 26(a)(2)(B)(I). The Department and

GAL contend that this objection wasn’t preserved. In a general

discussion of father’s motion in limine, the court and parties

referenced determinations by the court in other cases that

employees of the Department weren’t experts retained for the

purposes of litigation. Father didn’t include this issue in his

extensive objection during the termination hearing when

qualification of the casework supervisor was being sought. See

People v. Salas, 2017 COA 63, ¶ 29 (While “[w]e do not require that

parties use ‘talismanic language’ to preserve particular arguments

for appeal, . . . the trial court must be presented with an adequate

opportunity to make findings of fact and conclusions of law on any

issue before we will review it.”). Thus, it’s doubtful that the

contention father advances on appeal was preserved in the juvenile

court. See People in Interest of M.B., 2020 COA 13, ¶ 14

(“[G]enerally appellate courts review only issues presented to and

ruled on by the lower court.”) (citations omitted).

¶ 27 In any event, even if father’s objection was properly preserved,

the casework supervisor’s testimony during voir dire made clear

that providing expert testimony wasn’t a regular duty of her

14
employment with the Department. Cf. C.R.C.P. 26(a)(2)(B)(I)

(defining a retained expert as someone “whose duties as an

employee of the party regularly involve giving expert testimony”).

Thus, because she wasn’t a retained expert, the requirements of

C.R.C.P. 26(a)(2)(B)(I) didn’t apply to the pretrial disclosure of her

testimony.

¶ 28 Father also contends that the casework supervisor’s “area of

expertise [was] expanded by the court” and, as a result, she was

permitted to opine that family time with father was harmful to the

children. But the record reflects that the casework supervisor’s

area of expertise was modified as a direct result of father’s

suggestion that “child welfare” was undefined and too nebulous. If

anything, the court narrowed the area of expertise to specific topics

within child welfare. Given these circumstances, we discern no

error in the juvenile court’s recognition of the casework supervisor

as an expert in “the areas of addressing child safety, the

development of treatment plans, incorporating services, and in

assessing permanency for children.”

15
IV. Records from Kansas

¶ 29 Father next contends that the juvenile court erred by

admitting a summary of his history with the Kansas Department for

Children and Families. The summary included reports of domestic

violence between father and the mother of his adult children. But

father doesn’t assert, and our review of the court’s judgment doesn’t

suggest, that the juvenile court relied on the records from Kansas in

any way. See C.R.C.P. 61 (noting that an appellate court may

disregard any error “which does not affect the substantial rights of

the parties”); see also People in Interest of M.V., 2018 COA 163, ¶ 66

(“An error affects a substantial right if it can be said with fair

assurance that it substantially influenced the outcome of the case

or impaired the basic fairness of the trial itself.”) overruled on other

grounds by People in Interest of E.A.M. v. D.R.M., 2022 CO 42. True,

the Department asserted that the Kansas records were relevant to

the court’s determination of father’s fitness under the Children’s

Code. See § 19-3-604(2)(c), C.R.S. 2024 (“In determining unfitness .

. . the court shall consider, but not be limited to . . . [a] [h]istory of

violent behavior[.]”). But even if the court erred by admitting and

considering the Kansas records for this purpose, any error was

16
harmless because the information in the Kansas records was

cumulative. See M.V., ¶ 67 (noting that an erroneous evidentiary

ruling is harmless if the inadmissible evidence is cumulative).

¶ 30 At the termination hearing, mother testified at length about

father’s violence towards her, the children, and the family’s

animals. Mother testified that father’s violence towards her had

been going on for at least ten years. Mother described a number of

violent incidents in detail, including a time father slammed her into

a wall and strangled her until A.G. said, “you killed my mom.”

Father himself testified that he “did resort to physical violence” and

that he was “unable to restrain [him]self on multiple occasions.”

Father recounted what he called “the choking incident,” and

testified that A.G. said, “stop killing my mom.” Father testified that

mother went to the hospital twice because of injuries sustained

during altercations with him.

¶ 31 In addition to testimony taken at the termination hearing, the

juvenile court was aware of circumstances surrounding the

temporary protective order that it entered six months before the

termination hearing. The police report detailing the domestic

17
violence incident that prompted the request for the protective order

was also admitted at the termination hearing.

¶ 32 The juvenile court found that father had a history of violent

behavior as relevant under section 19-3-604(2)(c). There is ample

record support for this finding without considering the Kansas

records that father now contends were admitted in error. Thus, any

erroneous admission of the Kansas records was clearly harmless.

V. Less Drastic Alternative

¶ 33 Father’s next contention is that the juvenile court erred by

finding there was no less drastic alternative because it was “not

necessary to terminate [father’s] parental rights when mother was

maintaining hers.” The juvenile court didn’t err in this regard.

¶ 34 Before terminating parental rights under section

19-3-604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108, 1122

(Colo. 1986). In considering less drastic alternatives, a court must

give primary consideration to the child’s physical, mental, and

emotional conditions and needs. § 19-3-604(3). A juvenile court

may consider and weigh various factors in determining the viability

of a less drastic alternative, including whether an ongoing

18
relationship with the parent would be beneficial or detrimental to

the child. People in Interest of B.H., 2021 CO 39, ¶ 81.

¶ 35 Here, the juvenile court found “it is not routine that only one

parent’s rights are terminated; however, these parents are in very

different circumstances” from each other. The court found it could

“point to no benefit of maintaining the [children’s] relationship with

father that is not outweighed by its termination regardless of

mother’s status.” The court found that “in these unique

circumstances, it is in the best interests of the children to terminate

the parent-child legal relationships between father and each child.

. . . [T]here is no less drastic alternative to termination of father’s

parental rights when given primary consideration to the physical,

mental, and emotional conditions and needs of these children.”

¶ 36 The record supports these findings.

¶ 37 Father’s interactions with the children during family time had

deteriorated. Over the two and a half years the action was open,

father came to Colorado for family time only eight times, despite

findings by the juvenile court that in-person family time was better

for the children given their special needs. Father had inappropriate

conversations with the children during family time, especially after

19
his separation from mother. The caseworker testified that there

was no benefit to father “remain[ing] in the picture.” The casework

supervisor opined that ongoing contact with father would be

“detrimental” to the children.

¶ 38 The record supports that father would be unlikely to comply

with allocation of parental rights (APR) orders. The caseworker

testified that father hadn’t complied with rules for safe and

appropriate family time at any point during the case and was

unlikely to follow court orders around family time in the future.

The psychologist who conducted the parent-child interactional

assessment with the family opined that father would not “be easy to

coparent with” and that he would have concerns about the

children’s safety if the court ordered an APR and father maintained

his parental rights. The casework supervisor opined that she didn’t

“believe [father would] follow court orders and [she didn’t] feel like it

would be a safe setting for any of them to have an [APR] in place.”

¶ 39 Most importantly, the children needed permanency that only

termination of father’s parental rights could provide. The casework

supervisor and the psychologist both opined that keeping the action

open was impacting the children; the psychologist described A.G. as

20
being “highly aware and highly anxious and agitated and asking for

help” to not be in the middle of the action. The psychologist

testified that both children had “significant needs” and that J.G.

was “essentially non-verbal.” The casework supervisor opined that

nothing short of termination would provide permanency because

the children would continue to be “put in the middle” by father.

The caseworker testified that “these children need permanency.

And at this point, their father has not been able to provide a safe

and stable environment.”

¶ 40 Parental rights are personal between each parent and each

child. People in Interest of J.L.M., 143 P.3d 1125, 1127 (Colo. App.

2006). “[I]n deciding whether to terminate or whether less drastic

alternatives exist, a trial court may recognize differences between

the parents . . . and base its decision upon the best interests of the

children.” Id. Here, there is ample support in the record for the

juvenile court’s determinations that father and mother were

differently situated, and that termination of father’s parental rights

was in the children’s best interests.

21
VI. Continuance

¶ 41 Finally, father contends that the juvenile court erred by

denying his motion for a continuance for more time to depose

mother. Again, we disagree.

¶ 42 Motions for continuance are left to the sound discretion of the

juvenile court, and its rulings will not be disturbed on appeal

absent a clear abuse of that discretion. People in Interest of A.J.,

143 P.3d 1143, 1150 (Colo. App. 2006). The court must balance

the need for an orderly and expeditious administration of justice

against the facts underlying the motion, considering the children’s

need for permanency. Id. When, as here, the action is subject to

expedited permanency planning guidelines, a juvenile court “shall

not grant a delay unless good cause is shown and unless the court

finds that the best interests of the child will be served by granting a

delay.” § 19-3-602(1), C.R.S. 2024.

¶ 43 Father requested and received a continuance of four months

before the termination hearing was held so that he could conduct a

deposition of mother. At the start of the termination hearing,

father’s counsel requested a second continuance because

“scheduling became very difficult.” Although father conceded that

22
the content of mother’s testimony “won’t necessarily be [a]

surprise,” he asserted that a deposition was necessary to challenge

mother’s credibility. Both the Department and guardian ad litem

objected to a continuance, asserting that the children needed

permanency as soon as possible.

¶ 44 The juvenile court denied father’s second request for a

continuance. The court found that mother’s testimony wouldn’t be

a surprise because her “change in position was made clear after”

the domestic violence incident that resulted in the civil protective

order and the bifurcation of hearings. The court noted that the

termination motion was filed nearly a year before and that father

had enough time to prepare. Given the circumstances, the court’s

determination was not manifestly arbitrary, unreasonable, or

unfair, nor did it misapply the law. We therefore discern no abuse

of discretion in the court’s denial of father’s request for an

additional continuance.

VII. Ineffective Assistance of Counsel

¶ 45 In the alternative, father asserts that he received ineffective

assistance of counsel because the deposition of mother didn’t occur

before the termination hearing. This claim also fails.

23
¶ 46 To successfully make an ineffective assistance of counsel

claim, a parent must show: (1) counsel’s performance was outside

the wide range of professionally competent assistance, and (2) the

parent was prejudiced by counsel’s errors. A.R. v. D.R., 2020 CO

10, ¶ 48; People in Interest of C.H., 166 P.3d 288, 291-92 (Colo.

App. 2007).

¶ 47 But father doesn’t assert, and the record doesn’t suggest, that

the failure to complete the deposition before the termination

hearing was due to counsel’s deficient performance. To the

contrary, statements made by the other parties revealed that

father’s counsel had attempted, multiple times, to schedule the

requested deposition. Father’s counsel reported that the attorneys

“tried in good faith to try and get that hammered down,” but not all

parties were available for the dates that had been cleared with

mother. Because there is no assertion or indication that father’s

counsel’s “performance was outside the wide range of professionally

competent assistance,” father’s ineffective assistance claim must

fail.

VIII. Disposition

¶ 48 The judgment is affirmed.

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JUDGE BROWN and JUDGE MOULTRIE concur.

25