2019 COA 46
Colo. Ct. App.2019Background
- Four children were removed after mother left three-year-old twins alone for over six hours in January 2017; children placed with maternal grandfather and adjudicated dependent and neglected.
- Parents had prior child-protection history, including unexplained fractures to one child in 2014 and multiple fractures to twins in 2014; a prior case resulted in supervised visitation for father and a protection order.
- Mother, indigent, had a court-appointed, state-funded child-psychology expert perform a parent-child interactional evaluation; mother chose not to call the expert at trial.
- The guardian ad litem (GAL) sought disclosure of the expert’s report; the juvenile court ordered disclosure and allowed the GAL to call the expert over mother’s attorney-client privilege objection.
- After a three-day termination hearing, the juvenile court terminated both parents’ parental rights; parents appealed, raising privilege and sufficiency/time-to-comply claims.
Issues
| Issue | Mother (plaintiff) Argument | Father (defendant) Argument | Held |
|---|---|---|---|
| Whether attorney-client privilege protected state-paid expert’s report from disclosure | Privilege attached to communications with expert retained by mother’s counsel; report confidential | GAL/State argued report from parent-child interactional assessment falls outside privilege | Court: Privilege did not bar disclosure; D.A.S. controls because evaluation focused on observations of children, attorney knew evaluation would occur, and expert warned evaluation was not confidential |
| Whether mother complied with treatment plan | Mother argued she complied or plan inappropriate due to Division’s efforts | GAL/State argued mother failed to remedy protective concerns and lacked safe parenting | Court: Clear-and-convincing evidence plan unsuccessful; mother failed to address danger posed by father and lacked healthy parental authority |
| Whether mother was denied a reasonable time to comply | Mother argued she needed more time (caseworker suggested ~6 more months) | GAL/State argued expedited permanency and limited progress warranted termination | Court: Ten months of services was reasonable given children’s ages, prior history, and little substantive change; no additional time required |
| Whether father was denied a reasonable time to comply | Father argued visitation barrier (protection order) prevented compliance and relief was imminent | GAL/State argued father made minimal treatment progress, children feared him, therapists advised against visitation | Court: Record supported termination; father had little therapy progress, children reported abuse, visitation not an immediate remedy |
| Whether less-drastic alternative (APR to grandfather) was viable | Parents proposed APR to maternal grandfather instead of termination | GAL/State noted children needed permanence, lack of parental bonding, risk father would reenter despite orders | Court: APR not viable; children needed permanent home, mother likely to allow father contact, grandfather did not trust mother to keep children safe |
Key Cases Cited
- B.B. v. People, 785 P.2d 132 (Colo. 1990) (attorney-client privilege may protect communications with expert retained for parent’s defense)
- D.A.S. v. People, 863 P.2d 291 (Colo. 1993) (attorney-client privilege does not attach to parent-child interactional assessment and expert observations of children)
- Lanari v. People, 827 P.2d 495 (Colo. 1992) (privilege applies only where there is a reasonable expectation of confidentiality)
- People in Interest of A.J., 143 P.3d 1143 (Colo. App. 2006) (partial or substantial compliance may be insufficient to cure parenting deficits)
- People in Interest of D.B-J., 89 P.3d 530 (Colo. App. 2004) (court must consider less-drastic alternatives and give primary weight to child’s needs)