PEOPLE EX REL. ES, 01CA0334.

• Decision Date: 09 May 2002
• Docket Number: No. 01CA0334.,01CA0334.
• Citation: 49 P.3d 1221
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of E.S., a Child, and Concerning S.S.K., Respondent-Appellant, and D.K., Special Respondent-Appellant.
• Court: Colorado Court of Appeals

49 P.3d 1221

The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of E.S., a Child,

and Concerning S.S.K., Respondent-Appellant, and

D.K., Special Respondent-Appellant.

No. 01CA0334.

Colorado Court of Appeals, Div. II.

May 9, 2002.

James D. Robinson, County Attorney, Rebecca Wiggins, Assistant County Attorney, Denver, Colorado, for Petitioner-Appellee.

Shari Shink, Guardian Ad Litem.

Jeffrey C. Koy, Guardian Ad Litem.

Ledbetter & Associates, P.C., H.J. Ledbetter, Jr., Englewood, Colorado, for Respondent-Appellant.

Lloyd L. Boyer, P.C., Lloyd L. Boyer, Englewood, Colorado, for Special Respondent-Appellant.

Opinion by Judge JONES.

S.S.K. (mother) and D.K. (stepfather) appeal from a judgment entered upon a jury verdict adjudicating the child, E.S., dependent or neglected. We affirm.

Two weeks after the mother and the stepfather were married, the six-year-old child and the stepfather, a truck driver, went on a twenty-six-day road trip. Upon their return, the child complained of being spanked frequently and had a faded bruise the size of a quarter on her upper thigh, which allegedly had been caused by a belt buckle while she was being spanked. Concerns about the spankings and the stepfather's treatment of the child led to the removal of the child from the home and the filing of a petition in dependency or neglect.

The petition initially named the mother and the stepfather as respondents. Shortly after it was filed, the child's natural father was located. Accordingly, the Department of Human Services filed a motion to amend the petition to name the father as a respondent and the stepfather as a special respondent, which was granted by a magistrate. Thereafter, the stepfather's requests to be reinstated as a respondent were denied by the trial court.

The adjudicatory trial was to a jury. Because the stepfather was not a respondent, he was not allowed to present evidence or to cross-examine witnesses. The mother, however, called the stepfather as a witness and presented a vigorous defense to the allegations of abuse. The jury returned three of four special verdicts against the mother, finding as grounds for dependency and neglect, under § 19-3-102(1), C.R.S.2001, that she had mistreated or abused the child or tolerated or allowed another to mistreat the child without taking lawful means to stop or prevent the mistreatment or abuse; that the child's environment was injurious to her welfare; and that the child was lacking proper parental care as a result of the mother's acts or failure to act. Judgment was entered on the special verdicts, and this appeal followed.

As an initial matter, we note that the mother does not have standing to raise issues regarding the stepfather's party status and that the stepfather lacks standing to raise issues concerning the adjudication of the child vis-a-vis the mother. See People in Interest of A.L.B., 994 P.2d 476 (Colo.App. 1999). Thus, the contentions raised by the parties' joint brief will be addressed only as to the specific party having proper standing.

I.

The stepfather contends that the trial court erred in refusing to allow him to participate as a party in the adjudicatory trial. We find no error.

A.

The stepfather argues that a stepparent has a fundamental liberty interest in the care, custody, and management of the stepchild and, therefore, is entitled to constitutional due process protections, including the right to be heard and to defend against a petition in dependency and neglect. We disagree.

A natural or adoptive parent has a fundamental liberty interest in the care, custody, and management of the child. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); B.B. v. People, 785 P.2d 132 (Colo.1990); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982). However, we have found no authority extending a similar liberty interest to either a stepparent or a family unit created by the natural or adoptive parent and a stepparent, absent substantial evidence that the stepparent stood "in loco parentis" to the child. See, e.g., Ortiz v. Burgos, 807 F.2d 6 (1st Cir.1986)

; In re Maricopa County Juvenile Action, 134 Ariz. 407, 656 P.2d 1268 (Ariz.Ct.App.1982); In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993); Gribble v. Gribble, 583 P.2d 64 (Utah 1978). But see In re Marriage of Smith, 7 P.3d 1012 (Colo.App.1999); People in Interest of P.D., 41 Colo.App. 109, 580 P.2d 836 (1978).

Further, to extend such an interest where, as here, the rights of both of the natural parents are intact could create an untenable conflict by pitting the rights of a stepparent against those of the natural or adoptive parents, which would compromise the welfare of the child. In re Maricopa County Juvenile Action, supra; see Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977)

; People in Interest of A.W.R., 17 P.3d 192 (Colo.App.2000); see also Petition of E.R.S., 779 P.2d 844 (Colo.1989). But see In re Custody of C.C.R.S., 892 P.2d 246 (Colo. 1995)(where natural mother voluntarily relinquished custody of child one day after birth, nonparents granted standing to petition for custody).

Here, the stepfather and the mother had been married only six weeks before the child was removed from the home and the petition in dependency or neglect was filed. Further, the rights of the natural father were extant. Under these circumstances, we decline to extend the constitutional due process protections afforded a natural or adoptive parent to any relationship the stepfather may have had with the child.

Accordingly, the trial court did not err in restricting the stepfather's participation in the adjudicatory trial. Because, as discussed below, the stepfather was allowed to participate in the dispositional stage of the proceedings, we do not address a stepparent's due process rights, if any, at that stage.

B.

The stepfather also argues that, under the Children's Code, a stepparent must be named a respondent and be allowed to participate as a party in a dependency or neglect proceeding. He further argues that the People were bound by stipulation to allow his full participation in the adjudicatory trial. Again, we disagree.

Section 19-3-502(5), C.R.S.2001, provides that "[a]ny parent, guardian, or legal custodian alleged to have abused or neglected a child shall be named a respondent" in a dependency or neglect proceeding. It further provides that the county attorney, the city attorney of a city and county, or the special county attorney may name a stepparent as a respondent if that legal officer determines that it is in the best interest of the child.

In construing a statute, the word "shall" is given a mandatory connotation. See People in Interest of T.L.D., 809 P.2d 1120 (Colo. App.1991)

. Thus, contrary to the stepfather's assertion, a stepparent is not required to be named a respondent in a dependency or neglect proceeding. See § 19-3-502(5), C.R.S.2001. Rather, the county attorney is vested with discretion in deciding whether it is in the best interests of the child to name a stepparent as a respondent.

Under the circumstances here, we perceive no abuse of that discretion. The mother and the stepfather were acquainted for only two and one half months before they were married. The stepfather's relationship with the child arose from his marriage to the child's mother only six weeks before the dependency or neglect proceeding was filed. Therefore, whatever legally protected interest the stepfather or the child may have had in their relationship, if any, was limited. Further, because the allegations of abuse by the stepfather formed the basis of the petition in dependency or neglect, they were fully litigated by the mother without the stepfather's full participation. Thus, under the circumstances here, the child's interests would not have been better served by allowing the stepfather to participate as a party.

Further, as a special respondent, the stepfather was allowed to participate as a party during the dispositional stage of the proceeding. Thus, he was able to contest any protective orders or treatment plan provisions that directly affected him as provided by § 19-3-502(6), C.R.S.2001.

Thus, the trial court did not err in limiting the stepfather's participation in the adjudicatory hearing.

II.

The mother contends that the trial court violated her right to due process and abused its discretion in refusing to allow her expert witness to interview the child. She argues that the refusal was based on an erroneous finding that the interview would be traumatic to the child and that it denied her a meaningful opportunity to be heard. We find no error.

Due process requires that a parent be given notice of the termination proceeding, a meaningful opportunity to be heard and to defend, advice of counsel, and, if indigent, a court-appointed expert witness. Sections 19-1-105(2), 19-3-202(1), 19-3-602(2), 19-3-607(1), C.R.S.2001; People in Interest of A.E., 914 P.2d 534 (Colo.App.1996); People in Interest of M.P., 690 P.2d 1300 (Colo.App. 1984). However, a parent's right to due process is subject to the power of the state to act in the best interests of the child. Section 19-3-604(3), C.R.S.2001; People in Interest of M.H., 855 P.2d 15 (Colo.App.1992). Thus, the statutory right to an expert witness may be limited in scope if necessary because of the physical, mental, or emotional needs of the child. People in Interest of M.H., supra. The extent of any such limitation is within the discretion of the trial court. People in Interest of T.R.W., 759 P.2d 768 (Colo.App. 1988).

Here, several experts interviewed the child about her allegations of abuse. The interviews were either videotaped, audiotaped, or transcribed, and they were provided to the mother's expert witness for review. Despite having access to the interviews, the mother requested that her expert witness be allowed to interview the child...