People ex rel. A.E.L., 07CA1169.

• Decision Date: 06 March 2008
• Docket Number: No. 07CA1169.,07CA1169.
• Citation: 181 P.3d 1186
• Parties: The PEOPLE of the State of Colorado, In the Interest of A.E.L. and K.C-M., Children, Upon the Petition of the Denver Department of Human Services, Petitioner-Appellee, and Concerning M.E.C., Respondent-Appellant.
• Court: Colorado Court of Appeals

181 P.3d 1186

The PEOPLE of the State of Colorado, In the Interest of A.E.L. and K.C-M., Children Upon the Petition of the Denver Department of Human Services, Petitioner-Appellee, and Concerning M.E.C., Respondent-Appellant.

No. 07CA1169.

Colorado Court of Appeals, Div. II.

March 6, 2008.

David R. Fine, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Lori Weiser, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee.

Jeffrey R. Edelman, P.C., Jeffrey R. Edelman, Parker, Colorado, for Respondent-Appellant.

Opinion by Judge ROTHENBERG.

M.E.C. (mother) appeals from the judgment entered on a jury verdict adjudicating her children, A.E.L. and K.C-M., dependent and neglected. We dismiss the appeal in part and otherwise affirm the judgment.

In March 2007, mother's live-in boyfriend was arrested on an outstanding warrant, and his probation officer requested that the police perform a welfare check of the home because of concerns that drugs were there. During the welfare check, the police found pipes and a powdery substance in the home which were taken to the police station and eventually destroyed. The powdery substance was never tested and could not be positively identified as an illegal substance.

Mother also signed a safety plan, agreeing that her son would remain with her and her daughter would live with her father. However, when it appeared that mother was no longer willing to comply with the safety plan, an emergency protective order was entered granting temporary legal custody of both children to the Denver Department of Human Services, and they were placed with their respective biological fathers. The fathers were later granted temporary custody of the children, with supervision by the department.

In April 2007, a detention hearing was held before a magistrate, who ruled that the emergency removal of the children was justified based on concerns regarding their safety and welfare. On review of the magistrate's order, the juvenile court concluded the issues arising from the detention hearing were moot for two reasons. First, a detention hearing was not required by statute, because the children were placed with a parent and not in a shelter. Second, by the time of the juvenile court's review, a jury trial had been conducted, and the two children had already been adjudicated dependent and neglected as to mother.

In June 2007, the dispositional report was adopted by the juvenile court with modifications.

I.

Mother asserts various procedural errors arising from the March 2007 order awarding temporary legal custody to the department and the April 2007 detention order sustaining the emergency removal of the children. We dismiss this part of her appeal.

Orders entered during the temporary protective or shelter stage of a dependency and neglect proceeding are interim orders pending a final factual determination of the allegations in the dependency or neglect petition. People in Interest of M.W., 140 P.3d 231, 233 (Colo.App.2006). Because they are not final orders subject to appeal, review of such orders may only be sought pursuant to C.A.R. 21. See id.

Thus, we lack jurisdiction to address the issues that mother raises as to the March and April 2007 orders. We dismiss that part of her appeal and only address the issues over which we have jurisdiction, namely, the alleged errors arising from the dependency and neglect adjudication.

II.

Mother next contends the juvenile court erred in denying her motion to suppress evidence of the pipes and the powdery substance found in the home by the police during the welfare check. She asserts that this evidence was very prejudicial because, even though the powdery substance was not tested and positively identified, a police officer was permitted to give his opinion that the substance was methamphetamine. We perceive no error by the juvenile court in denying her motion to suppress.

The exclusionary rule is a judicially created remedy intended to deter illegal police conduct by excluding evidence that is obtained in violation of an accused person's Fourth Amendment rights. The application of the exclusionary rule to dependency and neglect proceedings appears to be an issue of first impression in Colorado, but courts in several other jurisdictions have concluded the exclusionary rule does not apply to dependency and neglect petitions. See, e.g., In re Christopher B., 82 Cal.App.3d 608, 147 Cal.Rptr. 390, 394 (1978) (concluding the potential harm to children in remaining in an unhealthy environment outweighs any deterrent effect that would result from suppressing evidence); In re Corey P., 269 Neb. 925, 697 N.W.2d 647, 655 (2005) (any possible benefits of the exclusionary rule do not justify the costly result in a juvenile proceeding of a possible erroneous conclusion that there has been no abuse or neglect, leaving innocent children in unhealthy or compromising circumstances); State ex rel. Children, Youth & Families Dep't v. Michael T., 143 N.M. 75, 172 P.3d 1287, 1290 (Ct.App.2007) (because the nature of an abuse and neglect proceeding is to protect the interests and well-being of the children, the purposes of the exclusionary rule would not be advanced if the evidence is suppressed); In re Diane P., 110 A.D.2d 354, 494 N.Y.S.2d 881, 884 (1985) (concluding state's interest in protecting and promoting the best interests and safety of children far outweighs the rule's deterrent value); State in Interest of A.R. v. C.R., 982 P.2d 73, 78-79 (Utah 1999) (rejecting argument that child protection proceedings are quasi-criminal in nature and concluding that deterrent effect of the exclusionary rule is far outweighed by the need to provide for the safety and health of children in peril); Marjorie A. Shields, Annotation, Admissibility, in Civil Proceeding, of Evidence Obtained Through Unlawful Search and Seizure, 105 A.L.R.5th 1 (2003) (collecting state cases).

Further, in an employment context, the Colorado Supreme Court set forth a balancing test for applying the exclusionary rule in civil cases. In Ahart v. Colorado Department of Corrections, 964 P.2d 517 (Colo. 1998), an employee of the Department of Corrections (DOC) was suspected of using illegal drugs and ordered to take a drug test. He tested positive for marijuana, and his employment was terminated. He challenged his termination at an administrative hearing, contending there was no reasonable suspicion to justify the drug test, and therefore, the results of the test should be excluded. The ALJ found that the DOC lacked reasonable suspicion to order Ahart to submit to the test, but ruled that "there was no basis for applying the exclusionary rule to exclude the results of the drug tests because the benefits of applying the rule did not outweigh the costs." Id. at 519. The state personnel board reversed the ALJ, concluding the Fourth Amendment exclusionary rule applied to employment termination proceedings.

The Colorado Supreme Court reversed the state board's decision, stating that "whether the exclusionary rule applies in a particular civil case requires weighing the deterrent benefits of applying the rule against the societal cost of excluding relevant evidence." Id. at 520 (citing United States v. Janis, 428 U.S. 433, 453-54, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)). The court in Ahart concluded the state board erred "by holding that the exclusionary rule applied without considering the societal costs of applying the rule, such as the safety-sensitive nature of Ahart['s] ... employment." Ahart, 964 P.2d at 523.

Thus, whether the exclusionary rule applies in a civil case in Colorado requires the trial court to weigh the deterrent benefits of applying the rule against the societal cost of excluding relevant evidence. Id. at 519-20. "There is no `bright line' to determine when the rule should apply, and courts must apply the Janis analytic framework on a case by case basis." Id. at 520. The assessment requires a fact-specific analysis and usually involves two considerations: (1) whether the illegal agency conduct is "inter-sovereign" or "intra-sovereign"; and (2) whether the proceedings may be characterized as "quasi-criminal." Id. Evidence is not suppressed in a civil proceeding by one sovereign merely because law enforcement agents of another sovereign failed to comply with the proscriptions of the Fourth Amendment. People v. Harfmann, 638 P.2d 745, 747 (Colo.1981).

Here, even if we assume the police violated mother's right to be free from unreasonable search and seizure and they were acting as agents of the department, mother was not charged with possession of an unlawful substance. A different entity (the City and County of Denver) was seeking to introduce the evidence at the adjudicatory hearing for a completely difference purpose: to show that mother was not providing the children with a safe and suitable home.

The juvenile court also concluded, and we agree, that a dependency and neglect case is not a quasi-criminal proceeding, and that the societal costs of applying the rule would exceed any deterrent effect that exclusion would have on the department or the police in investigating a child welfare issue. See State in Interest of A.R., 982 P.2d at 78-79. Accordingly, we conclude the juvenile court did not err in denying mother's motion to suppress.

III.

Mother next contends she was denied procedural due process for a number of reasons. We address and reject each of her arguments in turn.

Procedural due process requires that a parent be given notice of the proceedings, an opportunity to be heard, and the assistance of legal counsel. These rights are satisfied if the parent appears through counsel and is given the opportunity to present evidence and cross-examine witnesses. People in Interest of A.E., 914 P.2d 534, 538 (Colo.App.1996); People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo.App.1989).

A.

Mother next contends she was denied due process because the department...