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People in the Interest of M.W.

2022 COA 72. No. 21CA1768.  Juvenile Court—Dependency and Neglect—Remote Testimony—Sex Offender Management Board Evaluation—Appealable Orders.

July 7, 2022

The Mesa County Department of Human Services (Department) filed a dependency and neglect proceeding based on allegations that father had sexually assaulted his daughter M.W., that she lacked proper parental care, and that her environment was injurious to her health and welfare. An adjudicatory hearing was held before a jury. Father filed a motion for permission to call two out-of-state witnesses to testify via Webex. The juvenile court denied the motion. Based on the jury verdict and mother’s admission that M.W. was dependent or neglected, the court entered an order adjudicating M.W. dependent or neglected as to both parents. Before the dispositional hearing, the Department filed a treatment plan requiring father to complete a Sex Offender Management Board (SOMB) evaluation. Father objected, arguing that it was not reasonably calculated to render him a fit parent and violated his constitutional rights against self-incrimination and to be free from criminal sanctions absent a criminal conviction. The juvenile court rejected father’s argument and adopted the treatment plan.

On appeal, father argued that it was reversible error to exclude the remote testimony, citing administrative orders encouraging trial courts to authorize remote appearances during the pandemic. However, a juvenile court has discretion to consider remote testimony under CRCP 43. Here, the court did not abuse its discretion because the proposed testimony was only marginally relevant, father failed to show that testimony concerning family dynamics was not available from other witnesses, and technology issues presented potential problems.

Father also argued that the juvenile court erred by adopting a treatment plan that required him to complete an SOMB psychosexual evaluation and comply with the resulting recommendations. He maintained that the by doing so, the juvenile court imposed a criminal requirement without him having been convicted of a sex offense. As an initial matter, the Court of Appeals held that a parent may appeal the content of the initial dispositional order, including treatment plan provisions, simultaneously with an appeal of an adjudicatory order.

On the merits, dependency and neglect proceedings are not criminal in nature and are not intended to punish parents. SOMB procedures are designed for sex offenders who have been convicted of a criminal offense, and SOMB evaluations and treatment protocols are built around the premise of guilt. The treatment protocols also create significant dilemmas for parents who wish to exercise their constitutional right to remain silent with respect to matters that may incriminate them. Accordingly, the use of a psychosexual evaluation and treatment under SOMB standards does not fulfil the basic and essential purpose of the treatment plan, which is to address the issues that gave rise to the adjudication so parents and their children may be safely reunited. Therefore, a parent may not be required over their objection to complete an SOMB psychosexual evaluation as a condition of their treatment plan if the parent has not been convicted of a qualifying sexual offense. Accordingly, the juvenile court erred.

The adjudicatory order was affirmed. The SOMB evaluation and compliance portion of the treatment plan was vacated and the case was remanded for modification of the treatment plan.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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