People ex rel. M.M., Jr.

• Decision Date: 16 April 2009
• Docket Number: No. 08CA0119.,08CA0119.
• Citation: 215 P.3d 1237
• Parties: The PEOPLE of the State of Colorado, In the Interest of M.M., JR., and A.M., Children, Upon the Petition of the El Paso County Department of Human Services, Petitioner-Appellee, and Concerning M.M., Respondent-Appellant.
• Court: Colorado Court of Appeals

215 P.3d 1237

The PEOPLE of the State of Colorado, In the Interest of M.M., JR., and A.M., Children Upon the Petition of the El Paso County Department of Human Services, Petitioner-Appellee, and Concerning M.M., Respondent-Appellant.

No. 08CA0119.

Colorado Court of Appeals, Div. III.

April 16, 2009.

Rehearing Denied May 14, 2009.

Nancy J. Walker-Johnson, Guardian Ad Litem.

William H. Louis, County Attorney, Laura C. Rhyne, Deputy County Attorney, Colorado Springs, Colorado, for Petitioner-Appellee.

Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent-Appellant.

Opinion by Judge ROY.

M.M. (father) appeals from the judgment terminating the parent-child legal relationship between him and his son, M.M., Jr., and daughter, A.M. Father contends the trial court erred by improperly admitting the results of two polygraph examinations, which formed the basis of the opinions and decisions of the caseworker and therapists to deny unsupervised visitation and to terminate efforts to reunite the family.

In this case we are required to address the admissibility and use of the results of polygraph examinations in the management of a dependency and neglect action, the termination hearing, and the opinions and recommendations formed by expert witnesses. We vacate the judgment terminating father's parental rights, and remand the case for further proceedings consistent with this opinion.

I. Procedural History

This matter commenced in the trial court on September 16, 2005 by the filing of a petition in dependency and neglect concerning two children, a one-year-old son and a two-year-old daughter. Father admitted the children were dependent and neglected and agreed to the entry of an adjudication, which was initially deferred and ultimately entered on September 22, 2006. Meanwhile, a treatment plan was adopted for both parents on November 1, 2005.

Custody was granted to the Department of Social Services (the department), and the children were initially placed with the maternal grandmother, with father having supervised visitation. Because the maternal grandmother had a health problem, the children were transferred to a foster-adopt home on January 20, 2006, where they remained for the balance of the proceedings.

The department's initial permanency plan contemplated a return of the children to the parents by June 16, 2006, or to a placement within the family by September 16, 2006. In May 2006, the time for returning the children to the family home was extended to December 24, 2006. On May 27, 2006, the caseworker reported that father had completed his alcohol therapy, would complete his anger management program within a few weeks, and was visiting the children three times a week.

The permanency plan as of December 13, 2006 was to return the children to the parents by March 20, 2007, with concurrent planning for placement with relatives by September 20, 2007. The status report dated December 15, 2006 stated that father had completed his substance abuse program and his parenting program, was attending family violence group and individual sessions, and that staffing was due December 19, 2006. The expedited permanency planning guidelines were extended to December 20, 2006.

On March 9, 2007, the department filed a motion supported by an affidavit to further extend the expedited permanency planning guidelines. The "Family Services Plan" attached recited:

[Father] is currently attending the family violence group and individual therapy at The Family Center on[c]e a week. He has been participating in his group. He recently started individual therapy to assist him to understand the material that is being covered in group. [Father] continues to maintain employment.

In a written status report, dated March 14, 2007, a program to re-integrate the children and the parents commenced in early February 2007. The children had supervised visits with the parents three times, twice at home and once in the community. The supervisor reported that the visits had gone well at the home.

Then, day care workers reported that the daughter's behavior changed—she became quieter and more physical with other children. The status report further stated that father had completed substance abuse treatment and a parenting program, was attending family violence group and individual sessions, and was working on his "clarification letter," and that unsupervised visits with the children would have to await completion of that letter. Father was also scheduled for a domestic violence polygraph examination. In March 2007, the daughter made allegations, later proved unfounded, of sexual abuse against her father.

On March 14, 2007, the magistrate extended the permanency planning guidelines to June 30, 2007, for the family, and December 30, 2007, for adoption. She further ordered that any polygraph examinations be filed with the court and sealed.

On May 4, 2007, the department filed a motion to terminate the parent-child legal relationship. The motion stated that despite substantial progress, the treatment plan had failed to rehabilitate the parents and they were unfit. On May 7, 2007, the department filed the report of a polygraph examination administered April 17, 2007, in which father was determined to be deceptive in response to two questions: (1) whether he had stuck any object in the daughter's "butt"; and (2) whether he had placed any object in the daughter's private body parts.

On July 30, 2007, a report of a second polygraph examination, administered to father on July 11, 2007, was filed with the court. The report stated that father was deceptive on questions essentially the same as those asked during the first polygraph examination.

In a status report dated August 1, 2007, the department stated:

[Father] has completed his substance abuse treatment. [Father] has completed his parenting program. [Father] is currently attending the [treatment] at the [Treatment Center]. The report from the facilitator is that [father] is participating in the group and that he has completed and presented his abuse history. He is also attending individual therapy once a week at the [Treatment Center]. [Father] has completed his clarification letter. [Father] had completed the polygraph on April 16, 2007 and he was deceptive. The [Treatment Center] had worked with [father] to process through some old issues that may have caused him to be deceptive and the polygraph was rescheduled. He retook the polygraph after many weeks of counseling and processing on July 11, 2007 and he again was deceptive.

After the second polygraph [the mother] asked [father] to move out of the home.

A Pager report was received by this worker on March 8, 2007 regarding a disclosure [daughter] made regarding her father. The incident was investigated and [daughter] was interviewed at [the Investigative Agency]. The allegation was unfounded.

(Emphasis added.)

It is apparent from the September 18, 2007 status report that father had been removed from the family visitation and had individual supervised visitation once a week, and that his participation in therapy declined.

On August 3, 2007, the court entered an order appointing a Court Appointed Special Advocate (CASA) volunteer. The volunteer filed a court report on September 24, 2007, which, with respect to father, stated:

CASA believes both children would be at a safety risk if placed with [father] due to the following reasons:

1. Two failed polygraphs dated 4/16/07 and 7/11/07 regarding sexual allegations towards his daughter.

2. According to ... [the] group therapist at The Family Center, voice mail dated September 13, 2007, [father] is not actively participating in group therapy.

3. According to ... individual therapist at The Family Center, interview of September 14, 2007, she stated she does not know why [father] failed the two polygraphs. They are working on getting to the bottom of the cause(s).

4. According to [the daughter's therapist], she cannot rule out [father] as the perpetrator of [daughter's] sexual abuse due to two disclosures by [daughter] and two failed polygraphs.

After a termination hearing, in its written order terminating parental rights of both parents, the trial court stated, as to father:

That the Court does find the original treatment program as to [father] had to do with substance abuse and domestic violence. [Father's] treatment was extended over a significant period of time. [Father's] treatment providers testified he did attend treatment and was amenable to treatment, but that [father] has not internalized the treatment by not utilizing coping skills during times of stress and claiming he was abused and not the abuser. The Court utilizes those statements and comments of the treatment providers whose credentials were unchallenged. In taking into consideration the expedited permanency planning guidelines, [father] has not successfully complied with the Treatment Plan and is unfit. [Father's] parental rights should be terminated. The Court did not take into account the allegations of sexual abuse or the polygraph results of [father].

II. The Termination Hearing

The termination hearing commenced November 19, 2007, was completed on December 7, 2007, and was held before the district court.

A. Children's Therapist

The first witness was the individual therapist for the children. She testified that in March 2007 the daughter disclosed to the witness and to her kindergarten teacher that she had been sexually abused by father. Father was then asked to take a "therapeutic polygraph" examination to rule him out as a suspect.

Following an objection by father, the county attorney argued that evidence about the polygraph examination was not offered to prove that father had done anything, but only to show "the therapeutic reasoning for why reunification was not possible in April, 2007, as well as now." Father's objection was overruled. The witness testified that the daughter engaged in some conduct...