Peo in Interest of SEH

23CA2023 Peo in Interest of SEH 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2023

Mesa County District Court No. 23JV62

Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.H., E.H., A.H., and V.H., Children,

and Concerning S.K.,

Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE SCHOCK

Welling and Taubman*, JJ., concur

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

Announced July 3, 2024

Todd Starr, County Attorney, Brad Junge, Assistant County Attorney, Grand

Junction, Colorado, for Appellee

Josie L. Burt, Guardian Ad Litem

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for

Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 S.K. (mother) appeals the juvenile court’s judgment

adjudicating her children, S.H., E.H., A.H., and V.H. (the children),

dependent and neglected after a jury trial. We affirm the judgment.

I. Background

¶ 2 The Mesa County Department of Human Services (the

Department) filed a petition in dependency and neglect concerning

the children — then ten, eight, five, and three years old. The

petition alleged that a passing motorist had observed mother and

the children running across the road yelling for help, as mother

carried a machete. The motorist reported that mother said they

were being chased, but the motorist did not see anyone chasing

them. The motorist called law enforcement, who suspected that

mother was experiencing a mental health crisis. The petition also

alleged that one of the children had a severe wound on her leg,

which prompted law enforcement officers to call an ambulance.

¶ 3 The juvenile court held a three-day adjudicatory jury trial.

The jury found, as to all four children, that (1) the children lacked

proper parental care as a result of mother’s acts or failures to act;

(2) the children’s environment was injurious to their welfare;

(3) mother had failed to provide the children with proper or

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necessary subsistence, education, medical care, or any other care

necessary for their health, guidance, or well-being; and (4) the

children were homeless, without proper care, or not domiciled with

mother through no fault of mother. See § 19-3-102(1)(b)-(e), C.R.S.

2023.

¶ 4 The juvenile court adjudicated the children dependent or

neglected and adopted a treatment plan for mother.

II. Applicable Law and Standard of Review

¶ 5 A child may be adjudicated dependent or neglected if the

juvenile court finds, by a preponderance of the evidence, that one or

more of the conditions in section 19-3-102 exists. § 19-3-505(1),

C.R.S. 2023. As relevant to this case, those conditions include:

(1) the child lacks proper parental care through the actions

or omissions of the parent, guardian, or legal custodian;

(2) the child’s environment is injurious to his or her welfare;

(3) a parent, guardian, or legal custodian fails or refuses to

provide the child with proper or necessary subsistence,

education, medical care, or any other care necessary for

his or her health, guidance, or well-being; or

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(4) the child is homeless, without proper care, or not

domiciled with his or her parent, guardian, or legal

custodian through no fault of such parent, guardian, or

legal custodian.

§ 19-3-102(1)(b)-(e).

¶ 6 An adjudication of dependency or neglect relates to the status

of the children as of the date of the adjudication. See K.D. v. People,

139 P.3d 695, 699 (Colo. 2006). That determination may be based

not only on current or past harm but also on prospective harm.

People in Interest of G.E.S., 2016 COA 183, ¶ 15. To determine

whether a child is dependent or neglected based on prospective

harm, the jury must consider whether it is likely or expected that

one or more of the conditions in section 19-3-102 will exist in the

future, “based on the parent’s past conduct and current

circumstances.” People in Interest of S.N., 2014 COA 116, ¶¶ 15-17.

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

adjudication of dependency or neglect, we review the record in the

light most favorable to the prevailing party and draw every inference

fairly deducible from the evidence in favor of the court’s decision.

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

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We may not disturb a jury verdict unless it is clearly erroneous.

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

III. Analysis

¶ 8 Mother contends that the evidence at trial was insufficient to

sustain the adjudication of dependency or neglect. We disagree.

¶ 9 The Department presented evidence that mother was with the

children in the median between a frontage road and the highway,

waving a large knife. The passing motorist, who testified at trial,

explained that she stopped, and mother and the children jumped in

her car yelling that some people “were trying to kill them.” The

motorist did not see anyone else and called 911 for assistance.

¶ 10 The motorist testified that at one point, mother “act[ed] like

she was going to grab [the motorist’s] arm or something,” and that

mother was frantic and “kind of hopping” and “jumping” around in

the passenger’s seat. She also testified that children “ke[pt] telling

mother that they were thirsty,” but that mother did not respond.

¶ 11 The responding officer testified that mother was “very frantic,

very afraid.” He testified that she was “hypervigilant,” “looking all

around,” and that, at times, she said she “was possibly seeing

somebody,” but no one was there. He further testified that the

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children were “very dirty” and “disheveled,” and that one child had a

“significant gash” on her leg that led him to call an ambulance.

¶ 12 Mother told the officer that she and the children had been

staying with a friend but left because of an argument. Either

mother or one of the children informed the officer that they had met

a man the night before and that he had provided mother a tent, in

which they slept. Mother said that the man “would be helping them

out.” Based on mother’s behavior and statements, the officer had

mother transported for a mental health evaluation.

¶ 13 The caseworker testified that mother took no responsibility for

her actions on the night of the incident and instead blamed others.

She refused to take a urinalysis test. Nor did she seek additional

mental health care after the incident. And although she eventually

completed a psychological exam, she told the caseworker she did

not believe it was necessary. Indeed, mother testified at the trial

that she had “no reason to address [her] mental health.”

¶ 14 There was also testimony that, at the time of the adjudicatory

trial, mother did not have stable housing or employment. Before

the incident, mother had lived in a family shelter with the children

for some period of time. But the night before the incident, they had

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stayed in a tent, and the officer testified that it appeared they may

have been living in a storage unit. Mother secured a housing

voucher for a four-bedroom home, but she did not use it because

the children were not currently living with her. By the time of the

trial, mother no longer had the housing voucher.

¶ 15 Based on this and other evidence, a caseworker, who testified

as an expert in child protection and child welfare, opined that the

children lacked proper parental care; would be in an injurious

environment if returned to mother; and were not provided with

proper or necessary care for their health and well-being.

¶ 16 Mother admits that the incident on the roadway was

“concerning,” but she seeks to cabin it to a single night four months

before the adjudicatory trial. She highlights several aspects of her

own testimony, including that (1) she intended to return to the

family shelter where she had lived previously if the children were

returned to her; (2) neither her therapist nor her physician had

recommended specific additional mental health services; and (3) she

was working part-time. She also points out that she had not

missed any family time and that the children had attended school

regularly while in mother’s care. And she minimizes certain aspects

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of the Department’s evidence, including what she calls a “scrape”

(and the officer called a “significant gash”) on one child’s leg and the

children’s hunger on the night of the incident.

¶ 17 But it was for the jury to weigh this evidence against the other

evidence discussed above. See S.G.L., 214 P.3d at 583; People in

Interest of E.S., 49 P.3d 1221, 1226 (Colo. App. 2002). Viewing the

evidence in the light most favorable to the Department and drawing

every fairly deducible inference in favor of the jury’s decision, we

conclude that the record contains sufficient evidence to support the

jury’s finding that the children were dependent and neglected.

IV. Disposition

¶ 18 The judgment is affirmed.

JUDGE WELLING and JUDGE TAUBMAN concur.