People ex rel. M.W.
| Docket Number | Court of Appeals No. 21CA1768 |
| Decision Date | 07 July 2022 |
| Citation | 518 P.3d 1132,2022 COA 72 |
| Parties | The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF M.W., a Child, and Concerning D.W., Appellant. |
| Court | Colorado Court of Appeals |
Todd M. Starr, County Attorney, Brian Conklin, Assistant County Attorney, Grand Junction, Colorado, for Appellee
Leigh C. Taylor, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
Opinion by JUDGE SCHUTZ
¶ 1 Father, D.W., appeals the adjudication of his child, M.W., as dependent or neglected. Father contends that the juvenile court erred by prohibiting his out-of-state witnesses from testifying at the adjudicatory hearing via Webex and by requiring him to complete a psychosexual evaluation and comply with any resulting treatment recommendations.
¶ 2 We conclude that the juvenile court did not abuse its discretion by prohibiting the remote testimony. We therefore affirm the adjudication of M.W. as dependent or neglected.
¶ 3 With regard to father's challenge of his treatment plan, we must first determine whether a parent may appeal an initial dispositional order in a dependency and neglect proceeding prior to issuance of an order terminating their parental rights. We conclude that an initial dispositional order is a final and appealable order when challenged contemporaneously with an appeal of the adjudication of a child as dependent or neglected.
¶ 4 Addressing the merits of father's challenge of the treatment plan, we hold that the juvenile court erred by requiring father to complete a Sex Offender Management Board (SOMB) evaluation and comply with all resulting recommendations. Accordingly, we vacate that portion of the treatment plan.
¶ 5 The Mesa County Department of Human Services (the Department) initiated a dependency and neglect proceeding based upon allegations that father had sexually assaulted his daughter, M.W., that M.W. lacked proper parental care, and that M.W.’s environment was injurious to her health and welfare.
¶ 6 Father contested the petition, and an adjudicatory hearing was held before a jury. Father filed a motion requesting that he be permitted to call two witnesses located in Oregon to testify via Webex. The juvenile court denied the motion. The jury returned a verdict finding that M.W. was in an injurious environment and lacked proper parental care because of father's actions or failure to act. Based upon the jury's verdict and M.W.’s mother's prior admission that the child was dependent or neglected, the court entered an order adjudicating M.W. dependent or neglected as to both parents.
¶ 7 Before the dispositional hearing, the Department filed a proposed treatment plan. Among other things, the plan required father to complete a "[p]sychosexual evaluation" to "[a]ssist in determining risk for re-offense and need for sex offender therapy if any." Father's success in meeting this treatment objective was to be evaluated based on whether he "attended all sessions," was "open and honest during the evaluation," completed "all paperwork required by the evaluation," and followed "all recommendations of the completed psychosexual evaluation."
¶ 8 Father filed a written objection to the requirement that he complete a psychosexual evaluation and treatment under standards set by the SOMB. He argued that such a requirement was not reasonably calculated to render him a fit parent and violated his constitutional rights against self-incrimination and to be free from criminal sanctions absent a criminal conviction. After a contested hearing, the juvenile court rejected father's argument and adopted the treatment plan as proposed because of past and ongoing concerns regarding father's inappropriate sexual conduct and the emotional trauma M.W. was suffering because of her relationship with father.
¶ 9 Father contends the juvenile court reversibly erred by excluding remote testimony via Webex from two witnesses located in Oregon. We disagree.
¶ 10 Father advised the juvenile court that he intended to call two witnesses — a relative and a caretaker for M.W. — who knew her while she resided in Oregon. He expected these witnesses would testify that M.W. neither referenced any prior abuse by her father in Colorado nor made any allegation of abuse while both father and daughter resided in Oregon. The motion also indicated that these witnesses could testify concerning "family dynamics" but did not specify the nature of such testimony.
¶ 11 The Department opposed the motion, arguing that it was undisputed that M.W. did not begin to articulate the alleged abuse until she returned to Colorado. The Department also noted that the allegations of sexual abuse were secondary to its case, asserting that whether the specific allegations of sexual abuse were true or not, M.W. had expressed a history of trauma with both of her parents, particularly her father, and no longer wished to live with him. Thus, the Department argued the witnesses’ proffered testimony had marginal, if any, relevance. The Department also argued that to the extent the witnesses’ testimony was deemed relevant, their credibility would be an important consideration for the jury and that the jury's assessment of these witnesses’ credibility would be hampered if the court authorized remote testimony.
¶ 12 We review a juvenile court's decisions concerning the orderly administration of a trial for an abuse of discretion. See Makeen v. Hailey , 2015 COA 181, ¶ 38, 381 P.3d 337 (). The juvenile court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or if it is based on an erroneous understanding or application of law. People in Interest of M.V. , 2018 COA 163, ¶ 52, 432 P.3d 628.
¶ 13 Father contends the juvenile court should have allowed the remote testimony under the Chief Justice Order and local Chief Judge Order issued to address best practices during the COVID-19 pandemic. The cited orders encourage, but do not mandate, that trial courts authorize remote appearances during the pandemic. For example, the Chief Justice Order provides that "with the understanding that some judicial proceedings may require personal appearances, wherever reasonably feasible , judicial proceedings, regardless of their nature, should continue to be conducted remotely." Office of the Chief Justice, Updated Order Regarding COVID-19 and Operation of Colorado State Courts (May 5, 2020) (emphasis added), https://perma.cc/G6VG-XAYD. The Chief Judge Order contained a similar directive.
¶ 14 Contrary to the Department's argument, these orders do not eliminate a juvenile court's authority and obligation to consider the particular circumstances of each case before permitting a witness to testify remotely. C.R.C.P. 43 informs a court's exercise of that discretion. The rule provides various criteria to govern the juvenile court's consideration:
¶ 15 The juvenile court's order focused primarily on factors (C) and (E) through (H). The court observed that the adjudicatory trial was to a jury and that credibility of the witnesses’ testimony would be a key issue. The juvenile court found the "lack of outcry testimony" was only marginally relevant. The court also noted that father had failed to demonstrate that the testimony concerning family dynamics was not available from alternative witnesses. Finally, the court said that it had recently attempted to take Webex testimony from remote witnesses and that "there were technology issues and problems with the ability to hear."
¶ 16 While the court did not expressly address the remaining factors, neither party contended there was a statutory right to present remote testimony. And father did not present evidence related to his efforts to procure the personal attendance of the witnesses at trial. Father's counsel did state that the Office of Respondent Parents’ Counsel would not pay the "three thousand to four thousand dollars to fly two people in for ten minutes of testimony."
¶ 17 The decision whether to permit remote testimony is left to the sound discretion of our trial courts for good reason. Trial judges are uniquely situated to make the practical assessments envisioned by Rule 43. They know the capabilities and limitations of their audiovisual equipment, they are familiar with the central issues in the case, and they are in a position to evaluate the role credibility will play in assessing the weight of a given witness's testimony. Simply put, trial courts are better positioned than appellate courts to make the discretionary determination whether to permit remote testimony. We will not disturb the exercise of that discretion absent a clear abuse. No such abuse occurred here; accordingly, we conclude that the court did not err by denying father's motion for remote testimony.
¶ 18 Father next argues that the juvenile court erred by adopting a treatment...
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