People v. H.K.W.

• Decision Date: 18 May 2017
• Docket Number: Court of Appeals No. 16CA0975
• Citation: 417 P.3d 875
• Parties: 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: Colorado Court of Appeals

417 P.3d 875

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, Division II.

Announced May 18, 2017

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

ORDER

Opinion by JUDGE DAILEY

¶ 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 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.

¶ 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;

• 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 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 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, 338 P.3d 1120 ; 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 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 proceeding and a UDMA proceeding, looking to the UDMA in this instance is helpful. See B.G.'s, Inc. v. Gross , 23 P.3d 691, 694 (Colo. 2001) (consideration of other statutes dealing with the same subject can be useful in deciding questions of statutory interpretation).

¶ 17 Reading sections 19-1-106(5) and 14-10-126 together, we conclude that a trial court is permitted to conduct an in camera interview with a child to determine a child's best interests and how to allocate parental responsibilities within a dependency and neglect proceeding.

¶ 18 Our conclusion in this regard is bolstered by recognizing that permitting an in camera interview with a child would enable the trial court to ascertain the child's custodial preference while (1) lessening the ordeal for the child by eliminating the harm a child might suffer from exposure to the adversarial nature of the proceedings; (2) enhancing the child's ability to be forthcoming; and (3) protecting the child from the "tug and pull of competing custodial interests." Ynclan v. Woodward , 237 P.3d 145, 150-51 (Okla. 2010).

B. Was the Court Required to Create a Record of the Interview?

¶ 19 The Children's Code does not address whether a record of an in camera interview with a child must be made. The UDMA, in contrast, requires the trial court to "cause a record of the interview to be made, and it shall be made part of the record in the case." § 14-10-126(1).

¶ 20 Case law from numerous other jurisdictions parallels the UDMA requirement. See Ex parte Wilson , 450 So.2d 104, 106-07 (Ala. 1984) (due process requires that in camera interview with minor children in custody dispute be recorded); N.D. McN. v. R.J.H. , 979 A.2d 1195, 1201 (D.C. 2009) (due process and state statute require that an in camera interview with the children be recorded); Strain v. Strain , 95 Idaho 904, 523 P.2d 36, 38 (1974) (in camera interview with the children must be recorded to determine if the interview supports the trial court's decision); Hutchinson v. Cobb , 90 A.3d 438, 442 (Me. 2014) (trial court is responsible for recording in camera interviews); In re H.R.C. , ...