Peo in Interest of CA

23CA1888 Peo in Interest of CA 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1888

Jefferson County District Court No. 23JV30060

Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of C.A., B.Al.A., B.An.A., and A.A., Children,

and Concerning D.A.,

Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE DUNN

Yun and Bernard*, JJ., concur

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

Announced July 18, 2024

Kimberly Sorrells, County Attorney, Cara J. Sweet, Assistant County Attorney,

Golden, Colorado, for Appellee

Samantha Metsger, Guardian Ad Litem, for C.A., B.Al.A., and B.An.A.

Katherine Karstetter, Counsel for Youth, Denver, Colorado, for A.A.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,

Office of Respondent Parents’ Counsel, Denver, 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 In this dependency and neglect action, D.A. (mother) appeals

the judgment adjudicating A.A. (the youth) and her siblings, C.A.,

B.Al.A., and B.An.A. (the children), dependent and neglected.

Because the juvenile court did not follow the proper procedure in

adjudicating the youth and the children dependent and neglected,

we reverse and remand for further proceedings.

I. Background

¶ 2 In March 2023, the Jefferson County Division of Children,

Youth and Families filed a petition in dependency and neglect,

alleging that the youth and the children were impacted by

substance abuse and physical abuse in the home.

¶ 3 Mother denied the allegations and requested a jury trial. On

June 13, the morning of trial, the parties notified the juvenile court

that they had reached an agreement to continue the adjudicatory

hearing under section 19-3-505(5), C.R.S. 2023.

¶ 4 Though the parties had purportedly placed the terms of the

deferred-adjudication agreement in writing, the county attorney

explained to the juvenile court that because amendments were

required, the parties would later file a signed, written agreement. In

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lieu of submitting a contemporaneous signed agreement, the county

attorney read the agreement into the record.

¶ 5 As relevant here, the agreement provided that the youth and

the children would return to mother’s care and custody that day

with the understanding that mother would complete a substance

use evaluation and “take randomized, monitored urine analysis

three times per week.” But it further specified that if mother “were

to miss or test positive, then the children would be removed again

from the home.”

¶ 6 The parties also discussed the circumstances under which the

frequency of urine analysis (UA) might be reduced. As part of that

discussion, the county attorney stated that the “indicated UAs . . .

also might be a mouth swab. It’s occasionally requested.” This was

the only mention of mouth swabs during the June 13 hearing.

¶ 7 The juvenile court directed the guardian ad litem (GAL) to

circulate the amended written deferred-adjudication agreement and

then file the signed agreement. The GAL never filed a signed

agreement.

¶ 8 Before accepting the deferred adjudication, the juvenile court

advised mother of her rights but didn’t review the agreement’s

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terms. Mother then entered a no-fault admission that the youth

and the children were dependent and neglected. Finding her

admission to be knowing, voluntary, and intelligent, the court

determined that it would “hold that admission in advance for 120

days and adopt the terms and conditions as stated on the record

today for a deferred adjudication.”

¶ 9 Three days later, mother reported to a testing facility to

provide a UA. The testing facility informed mother that the Division

had requested a mouth swab. Though mother declined to provide a

swab, she completed a monitored UA while at the facility.

¶ 10 Because mother had refused the mouth swab, the Division

moved for temporary custody of the children and the youth. In its

motion, the Division asserted that mother had agreed to sobriety

testing with “either mouth swabs or urine analysis at the

caseworker’s request” and that “[t]he record was made at the time

regarding the importance of mouth swabs given some concern for

the validity and possible tampering with the urine analysis testing.”

At two later hearings, the caseworker similarly explained that the

Division’s tampering concerns were “made in open court” and “put

on the record on June 13.”

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¶ 11 The juvenile court adopted the Division’s proposed protective

custody order without modification. That order stated that mother

had agreed to sobriety monitoring “through either urinalysis or

mouth swabs at the Division’s discretion” and that mouth swabs

“were intentionally included in the court’s previous orders due to

concerns regarding possible tampering.”

¶ 12 The record of the June 13 hearing, however, contains only a

single, somewhat ambiguous reference to mouth swabs that “might

be” “occasionally requested.” Nowhere on the record did the county

attorney outline the Division’s tampering concerns, mention a

conversation with an expert regarding the need for mouth swabs, or

state that the parties had agreed that the Division had discretion to

require mother to provide a mouth swab instead of a UA.

¶ 13 Next, the GAL moved to revoke the deferred adjudication,

alleging that (1) “[a]s on the Court record,” mother “was to submit

sobriety monitoring as a [UA] or a mouth swab” at the Division’s

request; (2) mother was asked to submit a mouth swab three days

after reaching the agreement and refused; and (3) mother’s refusal

to submit a mouth swab “violated the terms and conditions of the

[d]eferred [a]djudication.” Mother objected to the motion and moved

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to amend the agreement’s terms, alleging that she “misunderstood

the statements regarding mouth swabs and believed that mouth

swabs would only be used in the event that she was unable to

provide a UA and not that it would be at the discretion of the

[Division].”

¶ 14 Over a month after the June 13 hearing, and after the GAL

moved to revoke the deferred adjudication, the Division submitted a

proposed written deferred-adjudication order. The proposed order

stated that “the specific terms of the deferred adjudication”

included, in pertinent part, that “the parties may request [mother]

to submit a urinary analysis or a mouth swab for sobriety

monitoring.” The juvenile court adopted the proposed order without

modification.

¶ 15 At the hearing on the motion to revoke the deferred

adjudication — and at the GAL’s specific request — the juvenile

court limited evidence to “[w]hether or not [m]other refused to do a

mouth swab” when she went for sobriety testing and “whether or

not that’s . . . a violation of the deferred that revokes it.” Neither

the Division nor the GAL presented any evidence about the status of

the youth or the children.

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¶ 16 The juvenile court granted the GAL’s motion, found mother’s

motion to amend moot, and adjudicated the youth and the children

dependent and neglected. The court later adopted a treatment plan

for mother.

II. Analysis

¶ 17 Mother contends that the juvenile court erred by revoking the

deferred adjudication when, in her view, the terms of the agreement

regarding the mouth swabs were unclear.

A. The Agreement

¶ 18 Mother and the Division dispute the terms of the deferred-

adjudication agreement and whether mother violated the

agreement’s terms. The problem for us, however, is that the record

from the June 13 hearing leaves unanswered what off-the-record

conversation occurred with respect to mouth swabs. And, as we’ve

explained, no signed deferred-adjudication agreement was filed.

¶ 19 True, the existence and terms of an oral contract are generally

fact questions. Tuscany Custom Homes, LLC v. Westover, 2020 COA

178, ¶ 52; see Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282,

291 n.12 (Colo. 1992). But here, the June 13 record doesn’t have

any information about the parties’ agreement as to mouth swabs.

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Given that, we are unable to defer to the juvenile court’s findings

regarding the agreement’s alleged terms as to mouth swabs. See

People in Interest of I.J.O., 2019 COA 151, ¶ 6 (we defer to the

juvenile court’s factual findings unless they are clearly erroneous

and unsupported by the record).

¶ 20 Without more, we are unable to resolve the parties’ factual

dispute about the terms of the deferred-adjudication agreement

with respect to mouth swabs. See id.; see also Madrid v. People,

365 P.2d 39, 41 (1961) (giving no consideration on appeal to an off-

the-record conference); cf. People v. Jowell, 199 P.3d 38, 45 (Colo.

App. 2008) (remarking that appellate courts “cannot conduct a

meaningful review on appeal” when the record doesn’t include the

necessary materials).

B. Adjudication

¶ 21 Even so, we are persuaded by the youth’s position — outlined

in her answer brief — that the juvenile court erred by failing to

follow the proper procedures before adjudicating her and the

children dependent and neglected.

¶ 22 We review de novo whether the juvenile court applied the

correct legal standard. I.J.O., ¶ 6.

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¶ 23 The Children’s Code authorizes the state to intervene in

familial relationships to protect a child from abuse, neglect, or

abandonment. People in Interest of N.G., 2012 COA 131, ¶ 18. To

invoke the juvenile court’s jurisdiction, the Division must file a

petition setting forth the facts establishing that the child is

dependent and neglected under section 19-3-102, C.R.S. 2023.

People in Interest of J.W. v. C.O., 2017 CO 105, ¶ 26.

¶ 24 An adjudicatory hearing is then scheduled at which the

Division carries the burden to establish, by a preponderance of the

evidence, that the child is dependent and neglected. See People in

Interest of M.H-K., 2018 COA 178, ¶ 14. A parent may demand a

jury trial at the adjudicatory stage. §§ 19-3-202(2), 19-3-505(1),

C.R.S. 2023. A parent may alternatively waive this right and admit

all or part of the petition, provided that the parent is “fully

advised . . . as to all rights and the possible consequences of a

finding that a child is dependent or neglected.” C.R.J.P. 4.2(a).

¶ 25 If the juvenile court finds that the petition’s allegations are

supported by a preponderance of the evidence, the court shall

sustain the petition and enter an order adjudicating the child

dependent or neglected. § 19-3-505(7)(a). If the allegations are not

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supported by a preponderance of the evidence, the court shall

dismiss the petition. § 19-3-505(6).

¶ 26 If the juvenile court finds the petition’s allegations are

supported, and with the parties’ consent, the court may “continue”

the adjudicatory hearing for up to six months. § 19-3-505(5)(a)-(b).

On review, it may continue the case for an additional six months,

“after which the petition shall either be dismissed or sustained.”

§ 19-3-505(5)(b). This is known as a “deferred adjudication.”

¶ 27 Though the statute doesn’t address what happens if a deferred

adjudication is revoked, see § 19-3-505(5)(a)-(b), a division of this

court concluded that continuation of the adjudicatory hearing

under section 19-3-505(5) “contemplates reconsidering the child’s

status before entering the adjudicatory order,” N.G., ¶ 23. The

“reconsideration should be accompanied by any additional findings

required to address new evidence and the child’s current status.”

Id.; see also K.D. v. People, 139 P.3d 695, 699 (Colo. 2006) (noting

that adjudication relates to the status of the child as of the date of

adjudication). Thus, a parent’s “limited admission” made within the

deferred adjudication does “not provide a sufficient foundation for a

formal adjudication because [the parent was not] afforded an

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opportunity to contest the adjudication.” People in Interest of T.W.,

2022 COA 88M, ¶ 38.

C. The Adjudication Order Didn’t Consider

the Youth and Children’s Current Status

¶ 28 The GAL’s motion to revoke the deferred adjudication alleged

that mother violated the deferred adjudication by refusing a mouth

swab. The motion asked only that the juvenile court revoke the

deferred adjudication. It didn’t request the court to adjudicate the

youth and the children dependent and neglected.

¶ 29 At the hearing on the motion, the parties presented no

evidence about the current status of the youth or the children. The

GAL reiterated that the only issue was whether mother declined to

take a mouth swab when she went for sobriety testing, and both the

GAL and county attorney objected to evidence that might have been

relevant to determining the youth and children’s status at the time

of the hearing.

¶ 30 Beyond that, the record contains no signed deferred-

adjudication agreement, and nothing in the June 13 transcript or

the juvenile court’s deferred adjudication order provides that the

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youth and the children would be adjudicated dependent and

neglected if mother didn’t comply with the agreement.

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¶ 31 Absent an agreement to the contrary, the juvenile court must

reconsider the child’s status and make the appropriate findings

before adjudicating the child dependent and neglected. N.G., ¶ 23.

Because the juvenile court didn’t do so here, it erred. And this

error was not harmless because adjudicating the youth and the

children dependent and neglected without hearing evidence

regarding their status influenced the outcome of the case, impaired

the basic fairness of the trial, and affected the substantial rights of

both mother and the youth. See People in Interest of C.C., 2022

COA 81, ¶ 20; see also T.W., ¶ 35 (explaining that due process

“includes the right to test the merits of the petition at an

adjudicatory trial”).

¶ 32 Because we reverse the judgment adjudicating the youth and

the children dependent and neglected, we necessarily reverse the

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Though the agreement included terms for removing the youth and

the children from the home, the procedure and effect of entering

temporary custody orders are different from those for adjudicating

children dependent and neglected. Compare §§ 19-3-403, -405,

C.R.S. 2023 (temporary protective custody), with § 19-3-505, C.R.S.

2023 (adjudicatory hearing).

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related dispositional order. See People in Interest of G.E.S., 2016

COA 183, ¶ 1.

III. Disposition and Instructions

¶ 33 We reverse the adjudicatory judgment and dispositional order

and remand the case to the juvenile court for further proceedings.

On remand, mother must be given the opportunity to assert her

right to an adjudicatory hearing. The court shall not rely on

mother’s previous no-fault admission.

¶ 34 If mother reasserts her right to an adjudicatory hearing, the

juvenile court must hold an evidentiary hearing to address the

current status of the youth and the children and make all required

findings before adjudicating the youth or the children dependent or

neglected.

JUDGE YUN and JUDGE BERNARD concur.