People ex rel. S.M-L.
| Citation | 459 P.3d 572 |
| Decision Date | 17 November 2016 |
| Docket Number | Court of Appeals No. 16CA0685 |
| Parties | The PEOPLE of the State of Colorado, Petitioner-Appellant, IN the INTEREST OF S.M-L., B.M-M., and R.S., Children, and Concerning G.S., Respondent-Appellant, and D.S., Respondent-Appellee. |
| Court | Court of Appeals of Colorado |
Ron Carl, County Attorney, Marilee M. McWilliams, Senior County Attorney, Aurora, Colorado, for Petitioner-Appellant
Alison A. Bettenberg, Ranee Sharshel, Guardians Ad Litem
The Law Office of Jeffrey J. Timlin, Jeffrey J. Timlin, Denver, Colorado, for Respondent-Appellant
Oxman & Oxman, P.C., Chad Oxman, Denver, Colorado, for Respondent-Appellee
Opinion by JUDGE FREYRE
¶ 1 In this dependency and neglect proceeding, we are asked to decide an issue of first impression: Is a jury's finding that a child is not dependent or neglected and the court's denial of a C.R.C.P. 59(e) motion asking for adjudication notwithstanding the jury's verdict a final and appealable order? We conclude that it is not, because neither C.A.R. 3.4(a) nor the Children's Code provides a right to appeal from such findings.
¶ 2 In this case, the Arapahoe County Department of Human Services (the Department) appeals the denial of its motion for an adjudication notwithstanding the verdict after a jury found that R.S. was not dependent or neglected as to father (D.S.). Mother (G.S.) appeals the order adjudicating S.M-L., B.M-M., and R.S. dependent and neglected as to her. We dismiss the Department's appeal and affirm mother's adjudication.
¶ 3 The Department filed a dependency and neglect petition regarding sixteen-year-old S.M-L., twelve-year-old B.M-M., and eight-year-old R.S. (the children). The petition named D.S. as R.S.'s biological father and named G.S. as all of the children's mother. The Department asserted that father had sexually abused his stepdaughter, S.M-L., based on S.M-L.'s credible and consistent reports to it and to a forensic interviewer. Consequently, father was arrested and criminally charged with sexual abuse. The Department stated that father denied the allegations and that mother believed S.M-L. was lying about them. Finally, the Department noted that it had implemented a safety plan that required father to leave the home and to have supervised contact with his stepson, B.M-M., and his daughter, R.S. The children remained at home with mother.
¶ 4 Mother and father denied the allegations in the petition and each requested a trial. Mother requested a bench trial, and father requested a jury trial. The court empaneled a jury for father and heard evidence presented to the jury as the fact finder for mother. During the jury trial, the State presented evidence from S.M-L., as well as the Department's investigator, the Department's caseworker, the forensic interviewer, mother, and a psychologist.
¶ 5 S.M-L. testified that she had told mother about the sexual abuse and that mother thought she was lying. She confirmed that she had told the caseworker and forensic interviewer about the abuse and that her story was true. However, on cross-examination, she recanted and said that nothing inappropriate had occurred.
¶ 6 The Department's investigator, who was qualified as an expert in sexual abuse, child protection, and social work, testified that he had met with S.M-L., and that she had confirmed the sexual abuse. He said S.M-L.'s description to him was consistent with the forensic interview and that she "was very clear about the abuse that happened to her." Thus, nothing caused him concern that S.M-L. had been coached. He also said that mother did not believe S.M-L., which raised child protection concerns as to the remaining children.
¶ 7 The Department's caseworker, who was qualified as an expert in child protection and social work, testified that the Department's main concern was father's sexual abuse of S.M-L. She opined that S.M-L.'s outcry was accurate and that the allegations had not been fabricated. She said mother did not believe the allegations, was not supportive of S.M-L., and had pressured S.M-L. to say that nothing had happened. Finally, the caseworker expressed concerns regarding mother's ability to protect B.M-M. and R.S. given mother's disbelief of S.M-L.'s allegations.
¶ 8 The forensic interviewer, who was qualified as an expert in forensic interviewing and sexual abuse, testified that she had interviewed S.M-L. She confirmed that S.M-L.'s statements were spontaneous and that her language was age appropriate. She opined that S.M-L. "was [not] making anything up" because she had "lot[s] of details that she wouldn't have had if someone [had] coached her or told her what to say." She said S.M-L. seemed sad and upset about not being believed.
¶ 9 Mother testified that her sister (S.M-L.'s maternal aunt) had "put all of these ideas in [S.M-L.'s] head" and that S.M-L. was lying about the allegations.
¶ 10 Finally, a psychologist, who was qualified as an expert in sexual abuse, testified that there are only a small percentage of false outcries in sexual abuse cases. After reviewing the videotape of the forensic interview, he opined that S.M-L.'s allegations were consistent and spontaneous.
¶ 11 After father presented the testimony of his adult stepchild, the trial court instructed the jury to decide whether R.S. was dependent or neglected with respect to father. While the jury deliberated about father, mother presented the remainder of her case to the court, including testifying a second time. Thus, the court considered more evidence as to mother than the jury considered as to father.
¶ 12 Before the jury returned its verdict as to father, the trial court made its oral findings regarding mother. The court found that the allegations in the petition had been proven by a preponderance of the evidence based on S.M.-L.'s testimony. It made extensive findings concerning S.M.-L.'s credibility and entered an order adjudicating the children dependent and neglected. Shortly thereafter, the jury returned its verdict finding that R.S. was not dependent or neglected as to father.
¶ 13 The Department moved for an adjudication of father notwithstanding the verdict under C.R.C.P. 59. It argued that the evidence was "overwhelming" and "so strong" that the jury's verdict was not supported by the record. The trial court denied the motion, finding, as a matter of law, there was not insufficient evidence to support the jury's decision. It noted that the jury followed its instructions, paid attention throughout the trial, and asked appropriate questions. See C.R.C.P. 59(e)(1). The court also noted that there were genuine issues of material fact and that it could not find the State was entitled to judgment as a matter of law. See C.R.C.P. 59(e)(2). Accordingly, it entered an order dismissing father from the petition.
¶ 14 The Department and mother appeal.
¶ 15 After the Department filed its notice of appeal, we issued an order to show cause why the appeal should not be dismissed for lack of a final, appealable order, noting that we were unaware of any authority for the proposition that dismissing a parent from a petition based on a jury verdict was a final appealable order. In response, the Department cited People in Interest of M.A.L., 37 Colo.App. 307, 592 P.2d 415 (1976), in which the county appealed a jury verdict not adjudicating the child as dependent or neglected. Based on the Department's response, a motions division of this court allowed the Department's appeal to proceed and for the issue of finality to be considered on the merits. Therefore, we now consider the Department's appeal and conclude that a jury's verdict not adjudicating a party is not a proper basis for requesting an adjudication notwithstanding the verdict under C.R.C.P. 59(e) and that the court's dismissal of a party from a dependency and neglect petition based on a jury's verdict is not a final appealable order under our appellate rules or the Children's Code. Accordingly, we dismiss the Department's appeal.
¶ 16 When interpreting a rule or statute, our goal is to determine and give effect to the legislature's intent. See People in Interest of C.L.S. , 313 P.3d 662, 666 (Colo. App. 2011) ; see also People v. Zhuk , 239 P.3d 437, 438 (Colo. 2010) (). We look to the rule or statute's language and give effect to the words and phrases according to their plain and ordinary meanings. Zhuk , 239 P.3d at 439 ; C.L.S. , 313 P.3d at 666. Words or phrases should not be added to a statute or rule, and the inclusion of certain terms in a statute or rule implies the exclusion of others. See People in Interest of J.J.M. , 2013 COA 159, ¶ 7, 318 P.3d 559.
¶ 17 Colorado Appellate Rule 3.4(a), which governs appeals in dependency or neglect cases, provides that a party may appeal (1) orders from dependency or neglect proceedings as permitted by section 19–1–109(2)(b) and (c), C.R.S. 2016 (appeals); (2) orders allocating parental responsibilities under section 19–1–104(6), C.R.S. 2016; (3) final orders entered pursuant to section 19–3–612, C.R.S. 2016 (); and (4) final orders of permanent legal custody entered pursuant to sections 19–3–605 and 19–3–702, C.R.S. 2016.
¶ 18 As relevant here, section 19–1–109(2)(c) provides that an order decreeing a child to be neglected or dependent shall be a final and appealable order upon the entry of the disposition. Nothing in this section refers to the dismissal of a party from the petition based on a jury's verdict finding that a child was not dependent or neglected as to that party.
¶ 19 Because neither C.A.R. 3.4(a) nor section 19–1–109(2)(c) contains language permitting an appeal from a "no adjudication" finding, we conclude that the legislature did not intend for such determinations to be final appealable orders. If the legislature had...
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