People v. H.K.W., Court of Appeals No. 16CA0975

Docket NºCourt of Appeals No. 16CA0975
Citation2017 COA 70
Case DateMay 18, 2017
CourtCourt of Appeals of Colorado

2017 COA 70

The People of the State of Colorado, Petitioner-Appellee,
In the Interest of H.K.W., a Child,
and Concerning J.W. and A.M., Respondents-Appellants,
and
T.K. and J.M., Intervenors-Appellees.

Court of Appeals No. 16CA0975

COLORADO COURT OF APPEALS

May 18, 2017


Weld County District Court No. 15JV278
Honorable Elizabeth B. Strobel, Judge

ORDER

Division II
Opinion by JUDGE DAILEY
J. Jones and Berger, JJ., concur

No Appearance for Petitioner-Appellee

Scott A. Jameson, Guardian Ad Litem

Carrie Ann Lucas, Windsor, Colorado, for Respondent-Appellant J.W.

Hopkins Law, LLC, Laurie L. Strand, James W. Hopkins, Loveland, Colorado, for Respondent-Appellant A.M.

Law Office of Keren C. Weitzel, LLC, Keren C. Weitzel, Longmont, Colorado, for Intervenors-Appellees

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¶ 1 In this dependency and neglect proceeding, J.W. (father) and A.M. (mother) appeal the trial court's judgment allocating parental responsibilities of their daughter, H.K.W. (the child), to J.M. and T.K. (special respondents).

¶ 2 This case involves matters of first impression, to wit: (1) whether a trial court may conduct an in camera interview with a child who is the subject of an allocation of parental responsibilities proceeding arising from a dependency and neglect action; and, if the trial court conducts such an interview, (2) whether the court must cause a record of the interview to be created and then make that record available to the parents.

¶ 3 We conclude that the Children's Code permits a trial court to conduct an in camera interview with a child, and that due process requires that a record of the interview be created and, at least in certain circumstances, be made available upon request to the parents. Because the trial court in this case relied on the in camera interview of the child while denying the parents access to a transcript of that interview, we order that the record on appeal be supplemented with the transcript of the in camera interview. We further order that the parties be allowed to file supplemental briefs

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addressing whether the trial court's findings of fact from the interview are supported by the record. We will issue an opinion addressing the merits of the appeal following the completion of supplemental briefing.

I. Background

¶ 4 The Weld County Department of Human Services (the Department) filed a dependency or neglect petition regarding the six-year-old child based on allegations of father's and mother's substance abuse; that the child had seen mother's boyfriend being kidnapped from the home; that the child had missed a lot of school; and that the family had been involved in two prior dependency and neglect cases because of substance abuse, lack of supervision, and domestic violence. The child was removed from the home and initially placed with father. Three days later, the child was placed with the special respondents. Notably, in the prior dependency and neglect cases, the child also had been placed with the special respondents.

¶ 5 Based on father's and mother's admissions, the trial court adjudicated the child dependent or neglected. The court adopted treatment plans, with which father and mother complied.

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¶ 6 Father, mother, and the special respondents later moved for an allocation of parental responsibilities. At a hearing, the child's guardian ad litem (GAL) moved for an in camera interview with the child.1 None of the parties objected. The trial court agreed to interview the child and told the parties that it would have a record made of the in camera interview and that a transcript of the interview would be sealed unless "the matter is appealed." Again, none of the parties objected.

¶ 7 Shortly thereafter, the trial court conducted an in camera interview with the child. The interview was recorded but not transcribed. None of the parties requested a transcript of the interview.

¶ 8 After a subsequent hearing, the trial court found as follows:

• the child had been the subject of three dependency and neglect cases;

• the child told the court that she wanted to stay with the special respondents;

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• the child's primary attachment and bond was with the special respondents;

• the child needed stability and permanency;

• even though father and mother had complied with their treatment plans, they were unfit;

• father and mother had criminal histories that included domestic violence and child abuse;

• father and mother had not demonstrated sobriety, stability, and ongoing parental consistency "for a decent enough period of time"; and

• father and mother had exposed the child to domestic violence, drug addiction, and a criminal lifestyle, and had neglected the child's needs "for too long."

¶ 9 In making its findings, the trial court relied extensively on the child's statements during the in camera interview. The court then allocated parental responsibilities to the special respondents and set forth a parenting time schedule for father and mother.

¶ 10 Father and mother appealed, and father requested a transcript of the trial court's in camera interview of the child. Although it had

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previously indicated that it would do otherwise, the trial court denied father's motion.2

II. Interviewing the Child and Making
a Record Thereof Available to the Parents

¶ 11 Father and mother contend that the trial court erred by relying on the in camera interview with the child, which was not admitted into evidence, as the basis for its decision to allocate parental responsibilities to the special respondents. In particular, they assert that their due process rights were violated because, without access to the transcript of the interview, they were unable to contest the courts findings or the information on which the court relied in making its findings. We agree in part.

¶ 12 In dependency and neglect proceedings, the trial court has jurisdiction to allocate parental responsibilities between parents and nonparents. §§ 19-1-104(4), (6); 19-3-508(1)(a), C.R.S. 2016; L.A.G. v. People in Interest of A.A.G., 912 P.2d 1385, 1390-91 (Colo. 1996).

¶ 13 Under the Children's Code, the trial court must allocate parental responsibilities based on the best interests of the child and

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the public. § 19-3-507(1)(a), C.R.S. 2016; L.A.G., 912 P.2d at 1391 (In determining custody, "a juvenile court must fashion a custodial remedy that serves the public as well as the best interests of the child."). The court may consider the best interest factors listed in the Uniform Dissolution of Marriage Act (UDMA), section 14-10-124(1.5)(a), C.R.S. 2016, as long as the focus is on the protection and safety of the child and not on the "custodial interests" of the parents. L.A.G., 912 P.2d at 1391-92; People in Interest of M.D., 2014 COA 121, ¶ 12; People in Interest of C.M., 116 P.3d 1278, 1282 (Colo. App. 2005). As now relevant, the court may consider the "wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule." § 14-10-124(1.5)(a)(II).

A. Was the Court Allowed to Interview the Child?

¶ 14 The Children's Code does not contain a provision specifically allowing a court to conduct an in camera interview with a child. However, under section 19-1-106(5), C.R.S. 2016, a child "may be heard separately when deemed necessary" by the court.

¶ 15 In contrast, the UDMA specifically provides that the "court may interview the child in chambers to ascertain the child's wishes

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as to the allocation of parental responsibilities." § 14-10-126(1), C.R.S. 2016.

¶ 16 We have acknowledged that the UDMA procedures are not always useful in accomplishing the goals of the Children's Code. People in Interest of D.C., 851 P.2d 291, 294 (Colo. App. 1993) (a dependency and neglect proceeding concerns different matters and fulfills a different purpose than a UDMA proceeding). However, given that a trial court may consider a child's separately stated wishes when deciding how to allocate parental responsibilities in both a dependency and neglect...

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3 practice notes
  • People ex rel. E.Q., Court of Appeals No. 20CA0089
    • United States
    • Colorado Court of Appeals of Colorado
    • July 30, 2020
    ...when determining child support. Therefore, we must look to other provisions of the Children's Code. See People in Interest of H.K.W. , 2017 COA 70, ¶¶ 14-16, 417 P.3d 875 (looking to the UDMA when the Children's Code did not contain a provision governing conducting an in camera interview wi......
  • People ex rel. S.L., Court of Appeals No. 16CA2238
    • United States
    • Colorado Court of Appeals of Colorado
    • December 28, 2017
    ...and neglect proceeding was recently addressed by a division of this court in a published order. See People in Interest of H.K.W. , 2017 COA 70, 417 P.3d 875. In that order, the division addressed whether such a procedure was proper in the context of determining an allocation of parental res......
  • People v. S.L., Court of Appeals No. 16CA2238
    • United States
    • Colorado Court of Appeals of Colorado
    • December 28, 2017
    ...based upon a number of case-specific considerations. Applying these factors and the principles discussed in People in Interest of H.K.W., 2017 COA 70, the division concludes that the trial court did not abuse its discretion in (1) the decision to conduct an in camera interview of the childr......
3 cases
  • People ex rel. E.Q., Court of Appeals No. 20CA0089
    • United States
    • Colorado Court of Appeals of Colorado
    • July 30, 2020
    ...when determining child support. Therefore, we must look to other provisions of the Children's Code. See People in Interest of H.K.W. , 2017 COA 70, ¶¶ 14-16, 417 P.3d 875 (looking to the UDMA when the Children's Code did not contain a provision governing conducting an in camera interview wi......
  • People ex rel. S.L., Court of Appeals No. 16CA2238
    • United States
    • Colorado Court of Appeals of Colorado
    • December 28, 2017
    ...and neglect proceeding was recently addressed by a division of this court in a published order. See People in Interest of H.K.W. , 2017 COA 70, 417 P.3d 875. In that order, the division addressed whether such a procedure was proper in the context of determining an allocation of parental res......
  • People v. S.L., Court of Appeals No. 16CA2238
    • United States
    • Colorado Court of Appeals of Colorado
    • December 28, 2017
    ...based upon a number of case-specific considerations. Applying these factors and the principles discussed in People in Interest of H.K.W., 2017 COA 70, the division concludes that the trial court did not abuse its discretion in (1) the decision to conduct an in camera interview of the childr......

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