Thе People of the State of Colorado, Petitioner-Appellee, In the Interest of R.J., M.J., and A.J., children, and Concerning G.J.J. and M.S., Respondents-Appellants.
No. 18CA1622
COLORADO COURT OF APPEALS
July 18, 2019
2019COA109
Honorable Thomas W. Ossola, Judge
Mesa County District Court No. 18JV50
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convеnience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
July 18, 2019
2019COA109
No. 18CA1622, People in Interest of R.J. — Juvenile Court — Dependency and Neglect — Appeals
A division of the court of appeals holds that a parent may appeal a juvenile court‘s order adjudicating a child dependent and neglected without first seeking district court review of a magistrate‘s subsequent dispositional order.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE J. JONES
Román and Lipinsky, JJ., concur
Announced July 18, 2019
J. Patrick Coleman, Mesa County Attorney, Jeremy Savage, Chief Deputy County Attorney, Grand Junction, Colorado, for Petitioner-Appellee
Tammy Tallant, Guardian Ad Litem
Debra W. Dodd, Office of Respоndent Parents’ Counsel, Berthoud, Colorado, for Respondent-Appellant G.J.J.
Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado, for Respondent-Appellant
¶ 1 In this dependency and neglect proceeding, G.J.J. (father) and M.S. (mother) appeal the district court‘s judgment adjudicating R.J., M.J., and A.J. (children) dependent and nеglected. Before addressing the merits of their appeal, however, we must determine whether we have jurisdiction. To answer this question, we must decide whether a parent may appeal an adjudicatory order to this court without first seeking district court review of a magistrate‘s later dispositional order. We decide that a pаrent may. Having confirmed that we have jurisdiction over the appeal, we turn to the merits of the parents’ challenge to the adjudicatory order, reject that challenge, and therefore affirm.
I. Background
¶ 2 The Mesa County Department of Human Services (Department) filed a petition in dependency or neglect alleging that the сhildren lacked proper parental care and that their environment was injurious to their welfare. Both parents denied the allegations and requested an adjudicatory jury trial. After a three-day trial, the jury returned a special verdict finding the children dependent and neglected.
¶ 3 A magistrate later entered dispositional ordеrs as to both father and mother that continued out-of-home placement for the children and adopted treatment plans for both parents. Father asked for more time to file a petition for review of the magistrate‘s dispositional order with the district court. The district court granted that request; however, no petition for reviеw appears in the record.
¶ 4 Father then filed a request with this court to file his notice of appeal out of time. Therein, he observes that while
¶ 5 We ordered the parties to address in their principal briefs the finality — that is, the appealability — of the adjudicatory order. Mother then filed a notice of appeal, asked that we accept it out of time, and also asked that she be allowed to join father‘s briefs. We granted mother‘s requests.
II. Finality of the Adjudicatory Order
¶ 6 Before we can decide the parents’ challenge to the adjudication of the children as dependent and neglected, we must decide whether their failure to first seek review of the magistrate‘s dispositional order means that we lack jurisdiction over their appeal. See People in Interest of J.C., 844 P.2d 1185, 1187 (Colo. 1993). We hold that it does not.
A. Standard of Review and Interpretive Principles
¶ 7 Whether determining the meaning of a statute or a rule — and in this case we do both — we review de novo. People in Interest of L.M., 2018 CO 34, ¶ 13 (statute); In Interest of M.K.D.A.L., 2014 COA 148, ¶ 5 (rule).
¶ 8 In interpreting a rule, we apply the same principles that we use when interpreting a statute. Willhite v. Rodriguez-Cera, 2012 CO 29, ¶ 9. Chief among these principles is that we must give effect to the intent of the body that adopted the rule or statute and apply the construction thаt best effectuates that intent. People in Interest of H.T., 2019 COA 72, ¶ 12; see People in Interest of J.D., 2017 COA 156, ¶ 9 (cert. granted Sept. 17, 2018). To do so, we start by looking to the language of the rule or statute, giving the words and phrases used therein their plain and ordinary meanings. H.T., ¶ 12; M.K.D.A.L., ¶ 5. We should not add words or phrases to a rule or statute, and, relatedly, we should presume that the inclusion of certain terms in a rule or statute implies the еxclusion of others. H.T., ¶ 12; People in Interest of J.J.M., 2013 COA 159, ¶ 7. And we must also presume that the adopting body intended a just and reasonable result; so we should avoid interpretations leading to absurd results. Leaffer v. Zarlengo, 44 P.3d 1072, 1078-79 (Colo. 2002); H.T., ¶ 12; People in Interest of J.L.R., 895 P.2d 1151, 1154 (Colo. App. 1995).
B. Statutory Framework
1. The Adjudication and Disposition
¶ 9 The Children‘s Code provides for a bifurcated proceeding in dependency and neglect actions. E.O. v. People in Interest of C.O.A., 854 P.2d 797, 800 (Colo. 1993). In the first phase, after a petition in dependency or neglect is filеd, the court determines if there are grounds to adjudicate the child dependent or neglected. If a parent contests the allegations in the petition, that parent can request a bench or jury trial in which the petitioner (usually a local department of human services) must prove the allegations by a preponderаnce of the evidence.
¶ 10 If the court sustains the petition, the second phase — the dispositional phase — kicks in. The purpose of the dispositional hearing is to devise a proper dispositional order serving the interests of the child and the public.
2. Adjudicatory Appeals
¶ 11
C. Analysis
¶ 12 The Department and the guardian ad litem (GAL) argue that we lack jurisdiction to review the adjudicatory order because neither parent filed a petition for review of the dispositional order with the district court in accordance with
¶ 13 We begin by noting that the juvenile court has exclusive original jurisdiction in dependency and neglect proceedings.
¶ 14 Father and mother are only asking us to review the adjudicatory order; they don‘t ask to review the dispositional order. As noted, the district court entered the adjudicatory order, whereas the magistrate entered the dispositional order. The plain language of
¶ 15 True, an adjudicatory order isn‘t final until the court enters a dispositional order.
¶ 16 Further, requiring judicial review of a dispositional order that was entered by a magistrate, but that no one challenges, would lead to an absurd result. The purposе of district court review of a magistrate‘s order is to give the district court “an opportunity to correct any error that may have been made by the magistrate.” People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006). If no one asserts error, requiring the district court to review dispositional findings as a prerequisite to a parent‘s appeal of the adjudication would unnecessarily expend judicial resources and thwart the state‘s interest in the expeditious resolution of dependency and neglect proceedings. See
¶ 17 For these reasons, we conclude that the adjudicatory order was a final, appealable order.2
III. Jury Selection
¶ 18 Father and mother argue that the juvenile court‘s active particiрation in jury selection — by exercising peremptory challenges allocated to but unused by one of the parties — violated their due process rights and rendered the jury trial fundamentally unfair. It may be the court erred by purporting
A. Applicable Law
¶ 19 “Parents have a fundamental liberty interest in the care, custody, and control of their children.” In re D.I.S., 249 P.3d 775, 780 (Colo. 2011); accord Troxel v. Granville, 530 U.S. 57, 65 (2000). When a court decision will effectively eliminate or weaken familial bonds by terminating parental rights or denying custody, parents must first receive fundamentally fair procedures. Santosky v. Kramer, 455 U.S. 745, 753 (1982); D.I.S., 249 P.3d at 781-82.
¶ 20 If a respondent parent denies the allegations in the рetition for dependency and neglect, the respondent, a petitioner, a GAL, or the court may demand a jury of not more than six.
¶ 21 In dependency and neglect proceedings, “[e]xamination, selection, and challenges for jurors in such cases shall be as provided by
¶ 22 “The purpose of allowing peremptory challenges is to enable a party to reject certain jurors based upon a subjective perception that they may be adverse or unsympathetic to his pоsition even though no basis for a challenge for cause exists.” Fieger v. E. Nat‘l Bank, 710 P.2d 1134, 1136 (Colo. App. 1985). While peremptory challenges are not constitutionally required, the right to exercise such challenges is a substantial one. Id. However, “impairment of the ability to shape a jury is no longer considered a due process violation, and, more generally, a violation of a substantial right occurs only where the error has had a substantial impact on the outcome of the case.” Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 23. And, an error affects a substantial right only if “it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself.” Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (emphasis added) (citation omitted); see
¶ 23 When applying the harmless error standard to an error in jury selection, “[w]hile the strength of the evidence supporting a verdict is often an important consideration, so too is the specific nature of the error in question and the nature of the prejudice or risk of prejudice associated with it.” Johnson v. Schonlaw, 2018 CO 73, ¶ 12 (citing People v. Roman, 2017 CO 70, ¶ 14).
B. Analysis
¶ 24 The juvenile court called nineteen prospeсtive jurors to the jury box. Initially, the court gave each party — the Department, the GAL, and the parents together — three peremptory challenges each, as allowed by
¶ 25 Following voir dire, no one challenged any prospective juror for cause. The parties then began using their peremptory сhallenges. During that process, the Department‘s counsel asked the court if all parties were required to use all their peremptory challenges. The court responded, “What you don‘t use, I‘ll use . . . . If you waive and accept I‘ll exercise challenges to get down . . . to six.” The parties, while seemingly surprised, didn‘t object to this proсedure. In the end, the Department and the parents each used all of their respective peremptory challenges, but the GAL used only two. This
¶ 26 The juvenile court then apparently used the GAL‘s remaining challenges to excuse two potential jurors. The court excused a potential juror who had indicated she was taking medication that required her to use the bathroom frequently and another man “for no really good reason other than the fact that he‘s recently participated in a dependency and neglect environment and that may just be too сlose.”
¶ 27 Father and mother argue that the court‘s actions violated their due process rights. The Department and GAL counter that father and mother have failed to show how the court‘s actions substantially impacted the outcome of the jury trial; in essence, they assert that any error was harmless. Father and mother reply that it is impossible for them to state with specificity how the jurors removed by the judge could have affected jury deliberations.
¶ 28 The court may have erred by using the GAL‘s peremptory strikes to excuse two prospective jurors. We say “may” because the court was required to excuse at least one prospective juror to comply with
¶ 29 In any event, we conclude that any error was harmless, for four reasons. First, as noted, the court was required to pare down the jury to six in accordance with
COA 88M, ¶ 24 (“[A] defendant is not entitled to have any particular juror serve in his or her сase.“) (cert. granted Mar. 20, 2017).
IV. Conclusion
¶ 30 The judgment is affirmed.
JUDGE ROMÁN and JUDGE LIPINSKY concur.