People ex rel. S.G.L.
| Citation | 214 P.3d 580 |
| Decision Date | 25 June 2009 |
| Docket Number | No. 08CA2619.,08CA2619. |
| Parties | The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of S.G.L., Child, and Concerning E.L., Respondent-Appellant. |
| Court | Court of Appeals of Colorado |
Bob D. Slough, Montezuma County Attorney, Cortez, Colorado, for Petitioner-Appellee.
Jon Lewis Kelly, P.C., Jon L. Kelly, Dolores, Colorado, for Respondent-Appellant.
Opinion by Judge GABRIEL.
E.L. (father) appeals from the order adjudicating his daughter, S.G.L., dependent and neglected. Father argues that the petition could not be sustained as to him because (1) his actions or omissions did not cause the child to lack proper parental care or render her environment injurious, and (2) the evidence as to him was therefore insufficient to support an adjudication. We agree with father and therefore reverse and remand with instructions to dismiss the petition.
Father and A.W. (mother) are not married and do not live together. It is undisputed that mother was the child's primary caregiver and that father was only minimally involved in the day-to-day duties of raising her. Orders that father pay child support had been previously entered, but there were no orders regarding father's rights to custody or parenting time.
On July 18, 2008, mother was arrested for driving under the influence of alcohol. At the time of mother's arrest, the child was almost three years old. When sheriff's deputies stopped mother's car, they found the child unrestrained in the front seat, between mother, who was driving, and a friend of hers, both of whom were intoxicated. The deputies also found open bottles of alcohol at the child's feet and drug paraphernalia beneath her.
On July 23, 2008, the People filed a dependency and neglect petition, naming both mother and father as respondents. Mother subsequently admitted the allegations of the petition concerning the child's lack of parental care.
Regarding father, the petition alleged that the child lacked proper parental care and that the child's environment was injurious to her welfare because, among other things, on the evening mother was arrested: (1) the sheriff's deputies requested that the department of social services (department) take emergency custody of the child after father failed to arrive for approximately two hours to pick her up; (2) father arrived without proper child restraints in his vehicle; and (3) when informed that the child would be taken into emergency custody, father stated that he "did not care either way." The record does not reveal why the People did not include a no-fault allegation pursuant to section 19-3-102(1)(e), C.R.S.2008, in the petition, or whether father would have admitted such an allegation.
After a hearing and briefing by the parties, the court determined that the People had proved that the child lacked proper parental care through father's actions or omissions and that her environment was injurious to her health. Specifically, the court found that the child lacked, or would in the future lack, proper parental care because father left her in the care of strangers at night for one and one-half to two hours, and because he arrived without the means to transport her, causing the department to take emergency custody of the child. The court concluded that, like the circumstances in People in Interest of T.T., 128 P.3d 328, 331 (Colo.App. 2005), although the precipitating event was based on mother's actions, there were other facts that supported the finding that father did not, and could not, provide the child with parental care.
After considering a pattern jury instruction defining "injurious environment," the court also found that a child's environment could be found to be injurious to his or her health as long as the environment was under the control of one of the child's parents, without a requirement that it be shown to be under the control or subject to change by both parents or even the one who requests a trial on the issue. The court added, "In this way the [pattern] jury instruction applies but the focus of the trial remains on the child's status not the `guilt' or actions of the parent requesting the trial." Applying this interpretation to the present case, the court determined that the People had shown that the child's environment was injurious to her welfare so as to support the adjudication.
Father now appeals.
A child is neglected or dependent if, as pertinent here, "[t]he child lacks proper parental care through the actions or omissions of the parent" or "[t]he child's environment is injurious to his or her welfare." § 19-3-102(1)(b)-(c), C.R.S.2008. "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).
Each parent has the right to a jury determination as to whether the disputed factual averments in a petition are proved. Id. Accordingly, an admission by one parent to all or part of the allegations of a petition "is not necessarily dispositive of allegations disputed by [the] other named [parent]." Id.
If a petition is sustained, the district court may enter an order of adjudication, which is not made "as to" the parents, but relates only to the status of the child as of the date of the adjudication. K.D. v. People, 139 P.3d 695, 699 (Colo.2006); People in Interest of C.M., 116 P.3d 1278, 1283 (Colo.App.2005). Because a dependency and neglect proceeding is preventative 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 D.L.R., 638 P.2d 39, 42 (Colo.1981). Thus, it is not necessary that a child be placed with a parent to determine whether that parent can provide proper care, if such a placement might prove detrimental to a child. Id.
Upon a determination that a child is dependent and neglected, subject to certain exceptions not applicable here, the court must approve an appropriate treatment plan involving the child and each respondent named in the petition and served, unless the court finds that no appropriate treatment plan could be devised as to a particular respondent. Section 19-3-508(1)(e)(I), C.R.S. 2008; People in Interest of D.R.W., 91 P.3d 453, 456 (Colo.App.2004). Because section 19-3-508(1)(e)(I) presupposes an adjudication of the child relative to each parent, however, the court does not have the power to impose a treatment plan on a parent when the child has not been found to be dependent and neglected by that parent. People in Interest of U.S., 121 P.3d 326, 328 (Colo.App.2005).
An adjudication of dependency or neglect must be established by a preponderance of the evidence. People in Interest of A.M.D., 648 P.2d 625, 641 & n. 14 (Colo. 1982); People in Interest of A.E.L., 181 P.3d 1186, 1196 (Colo.App.2008). 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 district court. K.D., 139 P.3d at 702.
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. D.L.R., 638 P.2d at 41; T.T., 128 P.3d at 331. We will not disturb a district court's findings and conclusions if the record supports them, even though reasonable people might arrive at different conclusions based on the same facts. K.D., 139 P.3d at 702; People in Interest of R.L., 32 Colo.App. 29, 31, 505 P.2d 968, 970 (1973). We may, however, set aside a district court's order based on errors of law or findings that do not conform to the statutory criteria. See People in Interest of T.L.B., 148 P.3d 450, 457 (Colo.App.2006) (); People in Interest of T.D., 140 P.3d 205, 215-16 (Colo.App.2006) ().
Father first argues that the evidence was insufficient to sustain a finding that the child lacked parental care or would lack parental care in the future as a result of his actions or omissions. We agree.
Here, the district court found that (1) father was in control of deciding when he should retrieve his daughter but did not take immediate steps to secure her safety and well-being; (2) for whatever reason, he did not retrieve his child for a period of one and one-half to two hours; and (3) he arrived late at night without the means to transport the child, which resulted in the child's being taken into protective custody. The court then concluded that father's actions or omissions deprived the child of proper parental care and showed that he would deprive her of proper parental care in the future.
We conclude that the facts found by the district court are insufficient to support the court's dependency and neglect adjudication based on a lack of proper present or future parental care by father. This was a one-time incident in which father received an unexpected call at 8:30 p.m. to come retrieve the child because mother had been arrested for driving under the influence. Although it took father one and one-half to two hours to arrive, it is undisputed that a series of events occurred that were unknown to father and not within his control, and that may well have contributed to his delay in getting to his child. For example, it is undisputed that ...
To continue reading
Request your trial
- People ex rel. M.V.
-
People v. M.L.
... ... " (emphasis added) (quoting People ex rel. S.B., 742 P.2d 935, 939 (Colo.App.1987) ). Where the statutory grounds for dependency or neglect reference parental conduct, that 370 P.3d 1163 ... ...
-
Shelter Mut. Ins. Co. v. Mid–century Ins. Co.
... ... to provide it; the phrase has been used many times in a wide variety of other statutes.); People ex rel. S.G.L., 214 P.3d 580, 586 (Colo.App.2009) (declining to read into a statute a provision ... ...
- People ex rel. L.K.