Peo in Interest of LLM

24CA0475 Peo in Interest of LLM 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0475
Douglas County District Court No. 23JV35
Honorable Randall C. Arp, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning A.M.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE MOULTRIE
Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 3, 2024

Jeffrey Garcia, County Attorney, Kathryn Cherry, Assistant County Attorney,
Castle Rock, Colorado, for Appellee

Nicole Savino, Counsel for Youth, Castle Rock, Colorado

Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant
¶1 In this dependency and neglect action, A.M. (mother) appeals

the judgment adjudicating L.L.M. (the youth) dependent and

neglected. We affirm.

I. Background

¶2 The Douglas County Department of Human Services (the

Department) received a referral about the then-thirteen-year-old

youth based on her disclosure of sexual assault by mother’s

boyfriend. The Department created two safety plans with mother.

The Department then filed a petition in dependency and neglect,

alleging that mother had allowed the boyfriend into the home in

violation of the Department’s second safety plan. Mother denied the

allegations in the petition and requested a jury trial.

¶3 The juvenile court conducted a jury trial eight months after

the Department filed the petition. At the trial, the Department

alleged, and the jury found, that (1) the youth lacked proper

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

(2) the youth’s environment was injurious to her welfare.

¶4 Based on the jury’s verdicts, the juvenile court adjudicated the

youth dependent and neglected. The court then adopted a

treatment plan for mother.

1
II. Jury Instructions

¶5 Mother contends that the juvenile court erred by declining to

give the jury two of her tendered jury instructions. The first, which

the court adopted in part, provided definitions for “injurious

environment.” The second was based on the presumption from

Troxel v. Granville, 530 U.S. 57 (2000). We discern no error.

A. Standard of Review

¶6 A juvenile court must correctly instruct the jury on the law

applicable to a case, and if the juvenile court meets this obligation,

it has broad discretion over the style and form of instructions.

People in Interest of J.G., 2016 CO 39, ¶ 33. We review jury

instructions de novo to determine whether, taken as a whole, they

accurately informed the jury of the applicable law. Id. However, we

review a court’s decision to give or not give a particular instruction

for an abuse of discretion. Id. A ruling on jury instructions is an

abuse of discretion only when the ruling results in a misstatement

of the law or is manifestly arbitrary, unreasonable, or unfair. Id.

B. The Injurious Environment Instruction

¶7 Mother argued that “injurious environment” should be defined

for the jury. She proposed an instruction stating:

2
Is there an existence or circumstance that
creates an injurious environment for the
child’s welfare? An injurious environment
exists when the child is in a situation that is
likely harmful. Injurious means adverse, bad
or damaging. Environment means the
circumstances or conditions by which one is
surrounded. A parent does not have to be at
fault to determine an injurious environment.

¶8 The Department objected to part of mother’s proposed

instruction. It argued that the last sentence was duplicative

because “[a] parent does not have to be at fault to determine an

injurious environment” appeared in a separate instruction that the

parties had agreed to give. Mother cited to Merriam-Webster.com

for the portions of her proposed instruction that defined “injurious”

and “environment.” The Department argued that definitions from a

nonlegal dictionary should not be included in jury instructions.

¶9 But the Department agreed that a portion of mother’s

proposed instruction — “[a]n injurious environment exists when the

child is in a situation that is likely harmful” — was taken from case

law and thus was a correct statement of the law. No party objected

to that portion, and it was included in the instructions given to the

jury.

3
¶ 10 Mother did not thereafter object to the juvenile court’s decision

to instruct the jury on the definition of an injurious environment

using only a portion of her proposed instruction. Nor does she now

contend that the court’s instruction misstated the law. See id. And

because the instruction accurately stated the law, see People in

Interest of J.G., ¶ 33, we discern no abuse of discretion.

¶ 11 In any event, the jury returned a verdict that the youth lacked

proper parental care, and mother does not challenge this finding.

See People in Interest of S.M-L., 2016 COA 173, ¶ 29, aff’d on other

grounds sub nom. People in Interest of R.S. v. G.S., 2018 CO 31

(noting that section 19-3-102, C.R.S. 2024, only requires proof of

one condition for an adjudication).

C. The Troxel Instruction

¶ 12 Mother also proposed an instruction stating that the jury

“must presume all of [mother’s] decisions for the Child are in the

Child’s best interest unless the petitioner presents evidence to

overcome that presumption by a preponderance of the evidence.”

Mother cited Troxel and M.H-K. as support for this proposed

instruction.

4
¶ 13 Mother argued that including the instruction was necessary to

prevent “burden-shifting onto mother.” The Department and youth

objected. The youth argued that the instruction would be confusing

to the jury. The Department argued that the other instructions

amply established that the Department alone carried the burden of

proof and mother’s instruction was “at best, cumulative, and at

wors[t], misleading.”

¶ 14 The juvenile court expressed concern that the proposed

instruction did not “state[] anything different from what’s already

being stated in all the other jury instructions taken together.” The

court found that the proposed instruction was “cumulative [and]

certainly confusing” and declined to include it.

¶ 15 To address mother’s concern about burden shifting, the

juvenile court instructed the jury multiple times that the

Department had the burden to prove the allegations. In addition,

before deliberation, the jury received instructions (1) defining

“burden of proof;” (2) stating “the [Department]” had the burden of

proof with respect to all of its bases for asserting the youth was

dependent or neglected; and (3) parsing what “the State” did and

5
did not need to prove for the jury to find that the youth was in an

injurious environment.

¶ 16 Given this record, mother’s proposed instruction was

unnecessary to prevent burden-shifting. People v. Asberry, 172

P.3d 927, 933 (Colo. App. 2007) (“There is no reversible error if the

jury instructions, read as a whole, adequately inform the jury of the

law.”). Notably, mother does not contend that the totality of the

instructions as given failed to properly inform the jury of the

Department’s burden. Therefore, we discern no abuse of discretion.

See J.G., ¶ 33.

III. Hearsay Statements

¶ 17 Mother next contends that the juvenile court erred by

admitting hearsay testimony from the intake caseworker.

¶ 18 We review a juvenile court’s evidentiary rulings for an abuse of

discretion. People in Interest of E.R., 2018 COA 58, ¶ 6. A court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. Id.

¶ 19 An error in admitting evidence is harmless if it does not affect

a substantial right of a party. C.R.C.P. 61; People in Interest of C.C.,

2022 COA 81, ¶ 20. An error affects a substantial right only if it

6
can be said with fair assurance that it substantially influenced the

outcome of the case or impaired the basic fairness of the trial. C.C.,

¶ 20.

¶ 20 The caseworker testified that the Department received a

referral “pretty late at night” and that another caseworker

“completed a safety plan with the family” before the testifying

caseworker was assigned early the next morning. The testifying

caseworker met with the family and wrote a second safety plan,

which the caseworker testified mother did not follow.

¶ 21 Mother now contends that the juvenile court erred by allowing

the caseworker to answer the question, “what did th[e first] safety

plan entail?” Mother objected to this question during trial and she

asserts now, as she did at trial, that the caseworker’s statements

about the contents of a safety plan she did not write were hearsay

without an exception.

¶ 22 Regardless of whether an exception to hearsay may apply, we

discern no error in the court’s ruling allowing the caseworker to

answer counsel’s question about the contents of the first safety plan

because the caseworker’s answer to the question was cumulative of

other properly admitted evidence. See People in Interest of M.V.,

7
2018 COA 163, ¶ 67 (an erroneous evidentiary ruling is harmless if

the inadmissible evidence is cumulative), abrogated on other

grounds by People in Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56.

The caseworker testified that “the safety plan asked that [the youth]

go stay with a friend . . . for the evening, and that her mom would

bring her to the Castle Rock Police Department that following

morning for a forensic interview.” This testimony was substantially

similar to testimony that the caseworker had already provided —

without objection from mother — that “we received the referral

pretty late at night, so we put in a safety plan at the time, having

[the youth] go to a family friend for the evening and, that next

morning, she would be brought into the police department to have a

forensic interview completed.”

¶ 23 Additionally, we cannot say that the caseworker’s testimony

about the contents of the first safety plan substantially influenced

the jury’s verdict. See C.C., ¶ 20. The caseworker’s testimony was

that she met the youth and mother at the police department, where

the youth gave a forensic interview as required by the first safety

plan. Thus, mother’s compliance with the first safety plan as

described in the caseworker’s testimony was unrefuted. Instead, it

8
was mother’s compliance with the second safety plan — which

required mother not to allow her boyfriend into the home or allow

him to have contact with the youth — which was at issue during

the trial. Accordingly, the juvenile court did not abuse its

discretion.

IV. Disposition

¶ 24 We affirm the judgment.

JUDGE WELLING and JUDGE BROWN concur.

9