People in re L.K
2016 COA 112
| Colo. Ct. App. | 2016Background
- L.K., age 5, alleged sexual abuse by her father (C.K.); child was adjudicated dependent and neglected after father stipulated she lacked proper parental care.
- Court-approved treatment plan required father to undergo sex-offender evaluation and participate in SOMB "denier" treatment, which included a polygraph as part of the program.
- Father refused to admit abuse, completed one polygraph, was placed in denier treatment, but did not appear for a second polygraph and was discharged for continued denial.
- Moffat County DSS (MCDSS) moved to terminate parental rights for failure to complete the treatment plan; father did not testify at the termination hearing and presented no evidence.
- Trial court terminated parental rights based on father’s failure to successfully complete the treatment plan.
- The trial court also ordered MCDSS to pay $400 in attorney fees to father as a C.R.C.P. 37 sanction for discovery violations; MCDSS cross-appealed, arguing sovereign immunity barred the fee award.
Issues
| Issue | Plaintiff's Argument (MCDSS/People) | Defendant's Argument (Father/C.K.) | Held |
|---|---|---|---|
| Whether the court erred by considering father’s failure to take a required polygraph as evidence of failure to complete treatment | Evidence of failing to comply with a treatment requirement (missed polygraph) is admissible to show noncompliance; no polygraph results were considered | Considering polygraph-related evidence improperly imports inadmissible polygraph results | Held: No error — the court properly considered noncompliance (failure to appear) as evidence of failure to complete the treatment plan; polygraph results were not admitted |
| Whether the court impermissibly shifted burden or drew adverse inference from father’s choice not to testify | MCDSS bore burden to prove termination criteria by clear and convincing evidence; father’s silence does not shift burden | Father argued silence cannot be used against him; feared adverse inference | Held: No error — court did not shift burden; it relied on treatment noncompliance and witness testimony, not an unconstitutional adverse inference from silence |
| Whether evidence was insufficient because MCDSS failed to prove father actually abused L.K. | Termination was based on failure to complete treatment plan, not proof of sexual abuse; prior adjudication already established dependency/neglect | Father argued lack of proof of abuse undermines termination | Held: No error — MCDSS need not re-prove abuse at termination; failure to complete court-ordered treatment satisfied statutory termination criterion |
| Whether sovereign immunity bars award of attorney fees against MCDSS under C.R.C.P. 37 sanctions | Court could impose C.R.C.P. 37 sanctions for discovery violations | MCDSS argued fees against a governmental entity are barred by sovereign immunity absent explicit waiver | Held: Reversed — sovereign immunity precludes monetary sanctions against the governmental entity under these circumstances; $400 fee award vacated |
Key Cases Cited
- People in Interest of M.M., 215 P.3d 1237 (Colo. App. 2009) (polygraph results are per se inadmissible in termination proceedings)
- Asplin v. Mueller, 687 P.2d 1329 (Colo. App. 1984) (civil adverse inference may follow a party’s assertion of the Fifth Amendment)
- Baxter v. Palmigiano, 425 U.S. 308 (1976) (civil courts may draw adverse inferences from a party’s refusal to testify)
- Lefkowitz v. Turley, 414 U.S. 70 (1973) (Fifth Amendment privilege extends to civil proceedings when answers might incriminate in future criminal cases)
- Rosenberg v. Bd. of Educ., 710 P.2d 1095 (Colo. 1985) (Fifth Amendment privilege considerations in civil contexts)
- City & County of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270 (Colo. 2010) (procedural rules limit imposing costs against government absent statutory authorization)
- Chilcutt v. United States, 4 F.3d 1313 (5th Cir. 1993) (federal discussion of monetary sanctions against government attorneys where statute authorizes fees)
- In re Graham, 981 F.2d 1135 (10th Cir. 1992) (no waiver of sovereign immunity to permit fee awards against the government absent explicit authorization)
- Lane v. Pena, 518 U.S. 187 (1996) (waiver of federal sovereign immunity must be unequivocally expressed)
- Alexander v. Fed. Bureau of Investigation, 541 F. Supp. 2d 274 (D.D.C. 2008) (courts’ inherent authority to assess fees does not overcome sovereign immunity absent waiver)
- Mintz v. Accident & Injury Med. Specialists, PC, 284 P.3d 62 (Colo. App. 2010) (recognition of litigation-related torts such as abuse of process and malicious prosecution)