271 P.3d 1124
Colo. Ct. App.2011Background
- In June 2010, S.X.M. was removed from father T.M.’s care after a report the child disclosed sexual abuse by father and other inappropriate actions.
- A jury trial was scheduled for February 2011 to determine if the child was dependent and neglected.
- Before trial, LCDHS moved to allow the child to testify behind closed circuit television (CCTV) but not in father’s presence; father opposed.
- The court granted CCTV for the child’s testimony with real-time attorney contact for father, finding it balanced cross‑examination needs with protection of the child.
- LCDHS proposed jury instructions using past tense regarding lack of proper parental care and injurious environment; father urged present tense.
- The jury found that the child lacked proper parental care and that her environment was injurious, and the child was adjudicated dependent and neglected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do past-tense jury findings support neglect/dependency under §19-3-102(1)(b)-(c)? | Father argues past tense misleads on current status. | LCDHS contends past tense clarifies focus on past harm and basis for adjudication. | No; findings support adjudication. |
| Was the CCTV testifying arrangement a violation of confrontation or due process? | Father asserts denial of right to face the child violates due process. | LCDHS asserts narrow, civil-context limits permit CCTV to protect the child. | Procedure was fundamentally fair and did not violate due process. |
| Did the jury instructions comply with §19-3-102 and sustain ongoing jurisdiction? | Father contends past-tense emphasis misaligns with the statute and hampers jurisdiction. | LCDHS maintains instructions, read as a whole, are correct and not misleading. | Instructions were not misleading; jurisdiction sustained. |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (1990) (recognizes closed-circuit testimony for traumatized child witnesses in certain settings)
- People in Interest of C.G., 885 P.2d 355 (Colo. App. 1994) (civil action; no confrontation right in parental termination context)
- People in Interest of V.M.R., 768 P.2d 1268 (Colo. App. 1989) (Sixth Amendment confrontation limits do not extend to civil proceedings)
- People v. Mosley, 167 P.3d 157 (Colo. App. 2007) (CCTV procedure for traumatized child consistent with confrontation principles)
- In re Hatcher, 443 Mich. 426, 505 N.W.2d 834 (1993) (instructional error vs. lack of jurisdiction distinction clarified)