In re S.M-L, 2016 COA 173

Background

Department filed dependency-and-neglect petition alleging father (D.S.) sexually abused stepdaughter S.M-L.; mother (G.S.) disbelieved S.M-L. and tried to reinstate father to the home. Children: S.M-L. (16), B.M-M. (12), R.S. (8).
Mother requested bench trial; father demanded jury. The court heard mother's case; a jury was empaneled solely to decide whether R.S. was dependent/neglected as to father.
The trial court (bench) found the children dependent and neglected as to mother after crediting S.M-L.’s testimony despite her partial recantation; it entered an adjudication as to mother.
The jury returned a verdict that R.S. was not dependent or neglected as to father. The Department moved under C.R.C.P. 59 for adjudication notwithstanding the verdict; the trial court denied the motion and dismissed father from the petition.
The Department appealed the denial of its motion (challenging finality/jurisdiction), and mother appealed her adjudication. The Court of Appeals dismissed the Department’s appeal for lack of a final, appealable order and affirmed mother’s adjudication on the merits.

Issues

Issue	Plaintiff's Argument (Department or State)	Defendant's Argument (Mother or Father)	Held
Whether a jury’s "no adjudication" verdict and denial of a C.R.C.P. 59 motion for adjudication notwithstanding the verdict is a final, appealable order	Department: The jury’s failure to adjudicate a parent should be appealable; relies on prior division decision (M.A.L.)	Respondents: Rule/statute do not provide for appeal from a "no adjudication" finding; trial court’s dismissal is not final	Court: Not final or appealable under C.A.R. 3.4(a) or §19-1-109(2)(c); dismiss appeal
Whether a C.R.C.P. 59 motion for adjudication notwithstanding a jury verdict is a proper vehicle after a jury returns a "no adjudication" verdict	Department: Evidence was overwhelming; motion appropriate to obtain adjudication as matter of law	Respondents: Once jury finds allegations not proven, court lacks jurisdiction to enter adjudication; C.R.C.P. 59 not proper here	Court: C.R.C.P. 59 is not proper basis after jury’s no-adjudication; court lacked jurisdiction beyond dismissal
Whether trial court erred in adjudicating children dependent/neglected as to mother given evidentiary record	Mother: Evidence insufficient; court speculated; misapplied "abandoned" term	Department: Court’s credibility findings and evidence of mother’s disbelief/support of father support adjudication	Court: Affirmed mother’s adjudication—bench credibility findings supported by record; evidence of mother’s disbelief and attempts to return father justified findings
Whether improper expert testimony about a child’s credibility required reversal	Mother: Some experts improperly vouched for child’s truthfulness; reversal required	Department: Court did not rely on that testimony for adjudication	Court: Noted error in admitting such testimony but concluded court did not rely on it and no reversible error shown

Key Cases Cited

People in Interest of M.A.L., 37 Colo. App. 307, 592 P.2d 415 (Colo. App. 1979) (division previously entertained State appeal of jury’s non-adjudication though finality not addressed on appeal)
People in Interest of C.L.S., 313 P.3d 662 (Colo. App. 2011) (rule/statute interpretation principles for Children’s Code)
People v. Zhuk, 239 P.3d 437 (Colo. 2010) (procedural rules interpreted consistent with statutory construction)
In re Marriage of Hartley, 886 P.2d 665 (Colo. 1994) (court will not add words to statute; legislative intent controls)
Adams v. Corr. Corp. of Am., 187 P.3d 1190 (Colo. App. 2008) (presumption that legislature meant what it clearly said)
People v. Jaramillo, 183 P.3d 665 (Colo. App. 2008) (courts must respect statutory language and cannot add terms)
People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982) (trial court’s credibility and weight determinations reviewed for abuse of discretion)
People in Interest of S.G.L., 214 P.3d 580 (Colo. App. 2009) (sufficiency review: view evidence in light most favorable to prevailing party)
People v. Wittrein, 221 P.3d 1076 (Colo. 2009) (prohibition on witnesses opining directly on child victim’s truthfulness)
People v. Eppens, 979 P.2d 14 (Colo. 1999) (witness may not testify that child was sincere)
People v. Gaffney, 769 P.2d 1081 (Colo. 1989) (improper for witness to state child was "very believable")
People v. Oliver, 745 P.2d 222 (Colo. 1987) (witness may not testify to personal belief in child’s statements)
People v. Snook, 745 P.2d 647 (Colo. 1987) (witness may not opine that children tend not to fabricate sexual abuse)
People in Interest of D.L.R., 638 P.2d 39 (Colo. 1981) (adjudication may be based on prospective harm)
People in Interest of O.J.S., 844 P.2d 1230 (Colo. App. 1992) (court’s remarks not always formal findings; context matters)
D.A.S. v. People, 863 P.2d 291 (Colo. 1993) (affirming principles about appellate review of juvenile proceedings)