     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 convenience 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
                                                       DECEMBER 13, 2018

                               2018COA178

No. 17CA2126, People in Interest of M.H-K. — Juvenile Court —
Dependency and Neglect — Civil Jury Instructions —
Introductory Remarks to Jury Panel

     In this dependency and neglect proceeding, a division of the

court of appeals holds that the juvenile court erred by incorporating

the entire petition in dependency and neglect into its statement-of-

the-case instruction under CJI-Civ. 41:1. The statement of the case

instruction should be a short, non-argumentative summary of the

Department’s claims. But the juvenile court’s instruction recited

the history of the case from the perspective of the Department,

including prejudicial inferences, references to inadmissible

evidence, and allegations that were not proven at trial. Because the

error was not harmless, the division reverses the judgment of

adjudication and remands for a new trial.
     Additionally, because the issue may arise on remand, the

division holds that the juvenile court also erred in admitting

evidence of mother’s refusal to submit herself and the child to

voluntary drug testing before the Department filed its petition.
COLORADO COURT OF APPEALS                                       2018COA178


Court of Appeals No. 17CA2126
City and County of Denver Juvenile Court No. 17JV1190
Honorable Laurie A. Clark, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of M.H-K., a Child,

and Concerning S.K. and M.C.H.,

Respondents-Appellants.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division III
                          Opinion by JUDGE HARRIS
                         Webb and Welling, JJ., concur

                         Announced December 13, 2018


Kristin M. Bronson, City Attorney, Brian P. Fields, Assistant City Attorney,
Denver, Colorado, for Petitioner-Appellee

Barry Meinster, Guardian Ad Litem

The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for
Respondent-Appellant S.K.

Melanie Jordan, Respondent Parent’s Counsel, Denver, Colorado, for
Respondent-Appellant M.C.H.
¶1    Mother, S.K., and father, M.C.H., appeal the judgment of

 adjudication that the juvenile court entered after a jury found their

 infant son, M.H-K., dependent and neglected.

¶2    The parents raise several contentions of error. We need

 address only two. We conclude that the juvenile court erred by

 incorporating the detailed allegations of the petition in dependency

 and neglect into its statement-of-the-case instruction to the jury

 and by admitting evidence that mother refused to submit herself

 and her child to drug testing before the petition had been filed.

¶3    Because the errors are not harmless, we reverse the judgment

 and remand the case for a new trial.

                           I.    Background

¶4    The child weighed approximately seven pounds at birth, but

 he lost twelve percent of his birthweight in the next three days. The

 hospital social worker had concerns that the baby (who was

 breastfeeding) was not being fed enough, that the parents were not

 sufficiently “responsive to advice or information that hospital

 personnel were providing” to them, and that “perhaps substance

 use was going on.” Her “greatest concern,” however, was that, while

 “typical first-time mother[s]” tend to “ask[] a lot of questions and


                                    1
 [are] nervous about the care of a baby,” she “didn’t see evidence of

 that” with mother. Based on these concerns, the hospital social

 worker reported the family to the Denver Department of Human

 Services (the Department). The Department was also informed that

 mother had refused to allow the hospital to test her or the child for

 drugs.

¶5    Around the same time, the Department received a second

 referral, from an unknown source, stating that mother and father

 might be using methamphetamine.

¶6    Upon receipt of the referrals, a caseworker visited the family at

 their pop-up camper. The child was six days old.

¶7    The visit went badly. The caseworker asked both parents to

 submit to drug testing, and she asked mother to stop breastfeeding

 the child until mother could show that she was not using controlled

 substances. Both parents refused. The caseworker later described

 mother’s reaction as “escalated” and father’s as “escalated,”

 “hostile,” and “volatile.”

¶8    The caseworker believed that the child’s environment was

 unsafe because she could not determine whether the parents were

 using controlled substances and because the parents had been


                                   2
  “hostile and volatile” in their interactions with her. As a result, she

  obtained a “judge’s hold” granting the Department custody of the

  child and immediately removed him from the home.

¶9     Two days later, the Department filed a petition in dependency

  and neglect. The petition contained a detailed case history,

  including a summary of the referrals that prompted the

  Department’s action and a description of the caseworker’s

  encounter with the parents and the removal of the child.

¶ 10   At the Department’s request, a magistrate ordered the parents

  to submit to sobriety monitoring. The magistrate ruled that the

  tests were for safety purposes and their results would not be

  admissible at the parents’ adjudicatory trial.

¶ 11   Shortly before the trial, the Department amended the case

  history portion of the petition. It added information that included

  the dates the parents had missed court-ordered drug tests and the

  results of the tests they had taken.1




                       ———————————————————————
  1 According to the amended petition, mother submitted to urinalysis
  the day after the Department removed the child from the home.
  The test results were negative for all substances.


                                     3
¶ 12   At the beginning of the adjudicatory trial, as part of its

  statement of the case instruction, the juvenile court read the entire

  amended case history portion of the petition to the venire. Later,

  the court also admitted evidence that mother had declined requests

  for drug testing before the Department had even filed the petition.

¶ 13   The jury determined that the child was dependent and

  neglected because his environment was injurious to his welfare, he

  was lacking proper parental care, and his parents had failed or

  refused to provide proper or necessary subsistence, education,

  medical care, or other care. See § 19-3-102(1)(b)-(d), C.R.S. 2018.

       II.   Legal Principles Related to Adjudicatory Proceedings

¶ 14   Parents have a fundamental liberty interest in the care,

  custody, and management of their children. People in Interest of

  J.G., 2016 CO 39, ¶ 20. The purpose of the adjudicative process is

  to determine whether the factual allegations in a dependency and

  neglect petition are supported by a preponderance of the evidence

  so as to warrant intrusive state intervention into the familial

  relationship. Id. at ¶ 18. Adjudication vests the court with

  extensive dispositional remedies and opens the door to termination




                                     4
  of parental rights. People in Interest of A.M.D., 648 P.2d 625, 639

  (Colo. 1982).

¶ 15    Thus, “[e]nsuring a fair procedure at the adjudicatory stage is

  critical.” People in Interest of J.W., 2016 COA 125, ¶¶ 20-21, rev’d

  on other grounds sub nom. People in Interest of J.W. v. C.O., 2017

  CO 105, ¶¶ 20-21; see also A.M.D., 648 P.2d at 639. “The

  importance of the adjudicatory stage is reflected in the fact that a

  parent has a statutory right to a jury trial on the allegations set

  forth in the petition in dependency or neglect.” J.W., ¶ 22. Of

  course, the right to have an impartial jury decide a case on the

  evidence presented at trial is a “substantial right” under C.R.C.P.

  61. Canton Oil Corp. v. Dist. Court, 731 P.2d 687, 696 (Colo. 1987).

       III.   The Juvenile Court’s Statement of the Case Instruction

¶ 16    Father contends that the juvenile court committed reversible

  error when it incorporated the case history portion of the petition

  into its statement of the case instruction to prospective jurors. We

  agree. We further conclude that the error requires reversal because

  it impaired the basic fairness of the trial.




                                      5
               A.    Standard of Review and Preservation

¶ 17   A trial court must correctly instruct the jury on applicable law,

  but it retains substantial discretion over the form and style of jury

  instructions. Townsend v. People, 252 P.3d 1108, 1111 (Colo.

  2011). Accordingly, we review legal conclusions implicit in jury

  instructions de novo, but review issues of form and style for an

  abuse of discretion. Id. We conclude, and the parties agree, that

  the juvenile court’s formulation of the statement of the case

  instruction is an issue of form and style and is therefore reviewed

  under the abuse of discretion standard. A trial court abuses its

  discretion when it instructs a jury in a way that is manifestly

  arbitrary, unreasonable, or unfair, J.G., ¶ 33, or when it

  misconstrues the law, including a rule of procedure, see People v.

  Ehrnstein, 2018 CO 40, ¶ 13.

¶ 18   Both parents objected to the juvenile court reading the case

  history portion of the petition to the jury. The Department and the

  guardian ad litem acknowledge the parents’ objection, but they

  nonetheless contend that the parents invited any error by failing to

  tender an alternate instruction. That contention misses the mark.




                                    6
¶ 19    The invited error doctrine encapsulates the principle that “a

  party may not complain on appeal of an error that he has invited or

  injected into the case[.]” Horton v. Suthers, 43 P.3d 611, 618 (Colo.

  2002) (quoting People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989)).

  The doctrine prevents a party from inducing an inappropriate or

  erroneous ruling and then later seeking to profit from that error.

  Id.

¶ 20    Here, for example, if the parents had requested that the

  juvenile court read the entire petition as its introductory

  instruction, they would be barred by the invited error doctrine from

  complaining on appeal that the court had read the petition. See

  Zapata, 779 P.2d at 1309. But the parents did not ask the court to

  read the petition; they asked the court not to read the petition. And

  the court denied their request. Accordingly, we conclude that the

  invited error doctrine does not apply and that the parents have

  preserved the issue for review.

¶ 21    In a civil case, a properly preserved objection to an instruction

  is subject to review for harmless error. Gasteazoro v. Catholic

  Health Initiatives Colo., 2014 COA 134, ¶ 12. Under this standard,

  reversal is required only if the error prejudiced a party’s substantial


                                     7
  rights. McLaughlin v. BNSF Ry. Co., 2012 COA 92, ¶ 32; see also

  C.R.C.P. 61. “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) (quoting Banek

  v. Thomas, 733 P.2d 1171, 1178-79 (Colo. 1986)).

       B.   Applicable Law: C.R.C.P. 47 and Relevant Pattern Jury
                                Instructions

¶ 22    To facilitate the jury selection process, at the outset of a case

  the district court must orient prospective jurors to the proceedings

  and inform them about their duties and service. C.R.C.P. 47. As

  part of this orientation, the court must explain the nature of the

  case, in plain and clear language, using either “the parties’ [pattern

  jury instruction]” or “a joint statement of factual information

  intended to provide a relevant context for the prospective jurors to

  respond to questions asked of them.” C.R.C.P. 47(a)(2)(IV); see also

  C.R.C.P. 16(g) (“Counsel for the parties shall confer to develop

  jointly proposed jury instructions and verdict forms to which the

  parties agree.”). Upon request, the court may allow counsel to

  “present such information through brief non-argumentative



                                      8
  statements.” C.R.C.P. 47(a)(2)(IV). “The imparted information and

  instructions should be clear and as neutral as possible.” C.R.C.P.

  47 cmt.

¶ 23   C.R.C.P. 47(a)(2)(IV) directs courts to use CJI-Civ. 2:1 (2018) to

  effectuate Rule 47. Pattern Instruction 2:1, in turn, instructs that,

  in dependency and neglect cases, chapter 41’s pattern jury

  instructions apply. See CJI-Civ. 2:1 notes on use 6.

¶ 24   Pattern Civil Jury Instruction 41:1, Introductory Remarks to

  Jury Panel, establishes a model instruction for an introductory

  statement of the case instruction for the jury panel. See CJI-Civ.

  41:1 source and authority (2018). As relevant here, the pattern

  instruction reads as follows:

            The case is based upon a petition that
            claims: (insert the relevant portions of the
            petition).

            You should understand that these are only
            claims and that you should not consider the
            claims as evidence in the case.

            The respondent(s) (has) (have) denied the
            claims made in the petition. The Petitioner
            has the burden of proving the facts claimed in
            the petition by a preponderance of the
            evidence. The purpose of this trial is to
            determine whether the claims made in the
            petition are true.


                                    9
  Id. (italics in original).

¶ 25    Pattern Civil Jury Instruction 41:4 models a statement of the

  case instruction that courts may provide after the close of evidence.

  It reads, in relevant part as follows:

               The petitioner claims that (name of child) is
               dependent and neglected because: (insert those
               allegations from the petition on which sufficient
               evidence has been introduced and which if
               established would constitute a legal basis for
               determining that the child is dependent and
               neglected).

               The respondent(s), (name[s]), (has) (have)
               denied these claims.

               The guardian ad litem, (name), claims (insert
               appropriate description of the guardian’s
               position).

               These are the issues you are to determine, but
               are not to be considered by you as evidence in
               the case (except for those facts which have
               been admitted or agreed to).

  CJI-Civ. 41:4 (2018) (italics in original).

          C.    The Juvenile Court Erred in Instructing the Jury2

                    1.    The Juvenile Court’s Instruction



                      ———————————————————————
  2 Neither the Department nor the guardian ad litem argues that the

  instruction was proper.


                                      10
¶ 26   The parties did not submit a jointly prepared CJI-Civ. 41:1

  instruction or joint statement of factual information for the court to

  include in its introductory remarks to prospective jurors. In

  accordance with CJI-Civ. 41:1, the court began with an

  introduction of the parties and an explanation regarding their role

  in the case. From there, the pattern instruction directs the court to

  explain that “[t]he case is based upon a petition that claims (insert

  the relevant portions of the petition).” CJI-Civ. 41:1 (2018). Rather

  than inserting the statutory grounds for the petition, with some

  limited factual explanation of those grounds, the court announced,

  “[t]he case is based on a Petition, and I’m going to read you the

  contents of that Petition.”

¶ 27   The court then recited the entire 900-word amended case

  history — a portion of the petition identified as “[t]he facts, based on

  information and belief, which bring said children [sic] within the

  jurisdiction of the [c]ourt.” The Department was not identified as

  the declarant, although some statements were attributed to the

  caseworker.

¶ 28   By doing so, the court read a play-by-play account of the

  Department’s interactions with the family in the days and weeks


                                    11
  after the child’s birth. It recounted in detail the caseworker’s

  description of the parents’ conduct when she contacted the family

  six days after the child’s birth, including statements that the

  parents were “volatile,” “escalated,” and “aggressive.” The court

  recited allegations that the parents were “uncooperative” and had

  refused drug testing; mother had dark, fresh bruises on the insides

  of her arms; mother had refused to stop breastfeeding pending a

  drug test that would verify she did not have marijuana in her

  system; the parents had refused a safety plan to ensure a sober

  caregiver for the child; the caseworker had called the police because

  she was “in fear of the family fleeing with the child”; the Department

  had obtained a judge’s hold; and the Department had been granted

  custody of the child.

¶ 29   The case history the court read also contained specific

  information about drug testing: dates when the parents agreed or

  refused to submit to testing, the number of tests they missed or

  completed, and the test results. The descriptions included

  creatinine levels and statements that the Department had

  “determined” that mother’s dilute urine samples — which, by




                                    12
  definition, do not establish the presence of a controlled substance

  — were positive for controlled substances.

¶ 30   The court also read an unattributed assertion that mother had

  “admitted knowing that [father] was using methamphetamine while

  caring for the[] child, but fail[ed] to recognize the impact on the

  child when [father] [was] under the influence of substances.”

¶ 31   The court then instructed the prospective jurors as follows:

  “You should understand that these are only claims, and you should

  not consider the claims as evidence in this case. [Mother] and

  [father] have denied the claims in the [p]etition.”

¶ 32   The court’s instruction did not explain the reason for the

  instruction in the first place — to inform the jury that it had to

  determine whether the Department had proved a statutory basis for

  finding the child dependent and neglected. The court’s instruction

  did not mention the term “dependent and neglected” or any

  statutory basis for such a finding. To the contrary, the petition

  listed every possible statutory ground for adjudication under

  section 19-3-102(1), including some that could not possibly have

  applied to this case. See, e.g., § 19-3-102(1)(f) (child beyond control

  of parent); § 19-3-102(1)(g) (child tests positive at birth for


                                     13
  controlled substance). Consequently, to what extent this

  information would have helped the prospective jurors understand

  the issues before them is at best debatable.

   2.    The Instruction Was Not a Proper CJI-Civ. 41:1 Introductory
                      Statement of the Case Instruction

¶ 33    As we have said, the purpose of the introductory statement of

  the case instruction is simply to orient the jury to the nature of the

  case as a way of facilitating the jury selection process. The juvenile

  court’s instruction departed from this limited purpose.

¶ 34    Contrary to the directives of C.R.C.P. 47(a)(2)(IV), the juvenile

  court’s introductory instruction did not derive from a jointly

  prepared statement or consensus of the parties. It did not

  constitute “brief, non-argumentative statements” by counsel. And it

  did not otherwise impart the essential information about the case in

  a “neutral” manner.

¶ 35    Instead, the court’s instruction amounted to a judicially

  endorsed opening statement on behalf of the Department. Even

  more troubling, the court did not couch the assertions in terms of

  what the evidence would show and did not limit the assertions to

  evidence the Department was prepared to present.



                                     14
¶ 36   The juvenile court’s instruction reflects a procedure long

  recognized as problematic.

             In historic practice, the issues were often
             stated in an instruction which elaborately
             informed the jury of the allegations of the
             parties, using the legal verbosity of the
             pleadings. One frequent objective of a lengthy
             pleading was to enlist the office of the trial
             judge in arguing the case to the jury, in the
             guise of an issue instruction based on such
             pleading. It is not good practice, and may be
             reversible error, for a judge to read complex
             pleadings to the jury.

  6 Am. Jur. Trials 923, § 12, Westlaw (database updated Nov. 2018)

  (emphasis added).

¶ 37   That CJI-Civ. 41:1 was not intended to serve as one party’s

  court-sponsored theory of the case instruction is confirmed by other

  pattern instructions designed to implement the objectives of Rule

  47. CJI-Civ. 2:1, for example, explains that the statement of the

  case instruction should use “simple language” to “briefly” describe

  the parties’ positions, stating only “the essential elements of the

  claim[s]” and defenses. Similarly, COLJI-Crim. B:01 (2017), which

  is derived from Crim. P. 24(a)(2)(v) (the counterpart to C.R.C.P. 47),

  directs the court to summarize the charges set forth in the

  information, complaint, or indictment. That instruction makes


                                    15
  clear the court should read only a short statement of the elements

  of the offense, rather than a detailed exposition of the

  circumstances surrounding the defendant’s alleged commission,

  and the police investigation, of the crime. But here, the juvenile

  court chose the latter, impermissible approach, reading the

  functional equivalent of an arrest warrant affidavit to the jury. See,

  e.g., Reid v. Pyle, 51 P.3d 1064, 1069 (Colo. App. 2002) (affidavit of

  probable cause for the defendant’s arrest was not admissible in civil

  trial); see also Lamar v. State, 578 So. 2d 1382, 1389 (Ala. Crim.

  App. 1991) (affidavits in support of arrest warrants are generally

  inadmissible at trial).

¶ 38    Thus, the juvenile court’s instruction was not a proper

  implementation of introductory remarks to the jury panel in

  keeping with CJI-Civ. 41:1.

   3.    The Instruction Was Not a Proper CJI-Civ. 41:4 Statement of
                                  the Case

¶ 39    Although the parties discussed the proposed instruction in the

  context of CJI-Civ. 41:4, we are not convinced that CJI-Civ. 41:4

  applies at the introductory stage of the proceedings. Instead, the

  direction to “insert those allegations . . . on which sufficient



                                     16
  evidence has been introduced” indicates that the court should give

  instruction CJI-Civ. 41:4 after the close of evidence.

¶ 40   Regardless, the instruction here did not follow the format of

  CJI-Civ. 41:4, which is similar in relevant part to CJI-Civ. 41:1.

¶ 41   Many of the allegations in the petition were not ultimately

  supported by evidence presented at trial. For example, the

  Department presented no evidence of numerous facts that allegedly

  prompted the caseworker’s concerns — that father admitted using

  marijuana, that both parents “cussed” and pointed fingers

  aggressively at the caseworker, that the caseworker feared the

  family would flee with the child, or that the parents began packing

  their belongings after she called the police. And no evidence, other

  than paternal grandfather’s speculation, supported the allegation

  that father was under the influence of methamphetamine while

  caring for the child or that mother knew of this conduct and

  disregarded the associated risks. See People v. Rios, 2014 COA 90,

  ¶ 23 (there was no reason for the court to instruct the jury on

  information that was never introduced into evidence); see also

  Barnhisel v. People, 141 Colo. 243, 246, 347 P.2d 915, 917 (1959)




                                    17
  (“[A]n instruction . . . is erroneous if it implies or assumes the

  existence of evidence not in the record.”).

¶ 42   Further, the directions for CJI-Civ. 41:4 limit the content of

  the instruction to “those allegations . . . which if established would

  constitute a legal basis for determining that the child is dependent

  and neglected.” Several of the allegations in the petition do not

  establish any of the legal bases for adjudication under section 19-3-

  102. These allegations include, for example, the following:

        Mother refused to submit to drug testing for herself and the

          child on a voluntary basis. (This evidence was also

          inadmissible. See infra Part IV.)

        The Department obtained a “judge’s hold” prior to

          adjudication.

        The Department was granted custody of the child prior to

          adjudication.

        The maternal grandmother did not feel comfortable having

          the parents in her home while she was at work, and she

          could not guarantee the child would be safe.

        The parents agreed to reside with the maternal grandfather

          temporarily to ensure a sober caregiver.

                                     18
        The results of mother’s court-ordered drug tests included

          certain creatinine levels that indicated dilute urine samples,

          which the Department “determined to be positive.”

¶ 43   Thus, the instruction was not a proper CJI-Civ. 41:4

  statement of the case.

               D.   The Court’s Error Warrants Reversal3

¶ 44   We conclude that the juvenile court’s instruction was not

  harmless because it impaired the basic fairness of the trial in a way

  that likely influenced the outcome of the case. See C.R.C.P. 61;

  Canton Oil Corp., 731 P.2d at 696.

¶ 45   The instruction was presented in language suggestive of a

  factual report. People v. Williams, 916 P.2d 624, 627-28 (Colo. App.

  1996) (The court has a duty to “insure that its instructions are

  couched in neutral terms to avoid any implication that it regards

  certain facts to be established.”). For example, rather than telling

  the jury that the caseworker perceived the parents as volatile and

  threatening, the court told the jury that “[b]oth parents became very



                         ———————————————————————
  3 Neither the Department nor the guardian ad litem argues that any

  error in giving the instruction was harmless.


                                    19
  escalated and uncooperative” with the caseworker, “as evidenced by

  cussing and pointing fingers aggressively at” her.

¶ 46   The instruction also suggested that certain innocuous and

  lawful conduct was in fact suspicious. The court told the jury that

  “[t]he parents were also very volatile, not allowing the [Department]

  caseworker to view their items left outside of the vehicle.” The jury

  also heard that the caseworker called the police based on her

  concern that the parents would “flee[] with the child,” and that

  “[w]hile waiting for the police to arrive, [father] began packing up

  their belongings into their truck/camper.”

¶ 47   Because the court’s instruction included allegations that were

  never supported by any evidence, the instruction encouraged the

  jurors to assume that unadmitted evidence supported the

  Department’s position. Cf. Domingo-Gomez v. People, 125 P.3d

  1043, 1052 (Colo. 2005) (government counsel should not intimate

  that he or she has personal knowledge of evidence unknown to the

  jury).

¶ 48   As well, the instruction included inadmissible allegations,

  including that mother had declined voluntary drug testing of herself

  and her child, which was requested by unidentified hospital staff for


                                    20
  unstated reasons, and that mother had refused when the

  caseworker asked her — without authority — to stop breastfeeding

  immediately and take a drug test.

¶ 49   In addition, and to make matters worse, a written copy of the

  instruction was included in the juror notebooks. Thus, the jurors

  were able to review the improper remarks and unsupported

  allegations during deliberations. Cf. Settle v. People, 180 Colo. 262,

  264, 504 P.2d 680, 680-81 (1972) (court must use caution so jury

  does not give undue weight to evidence it views during

  deliberations).

¶ 50   We also note that delivering such information in the form of a

  jury instruction magnified its potential prejudice because the court

  holds a position of great authority. Accord United States v. Ofray-

  Campos, 534 F.3d 1, 25 (1st Cir. 2008) (The prejudice of extrinsic

  information was greater because it “was supplied by the trial judge,

  and thus stamped with the imprimatur of the court, rather than by

  comparatively less authoritative sources, such as prosecutorial

  comment.”); see also Rios, ¶ 35 (trial court’s instruction, as opposed

  to prosecutor’s passing reference, improperly emphasized irrelevant

  evidence).


                                    21
¶ 51   True, the court followed its lengthy recitation of the

  Department’s allegations with a disclaimer that the allegations were

  not evidence. But we cannot conclude that the disclaimer

  neutralized the prejudicial effect of the improper instruction.

¶ 52   We note that at least some prospective jurors did not appear to

  understand the import of the disclaimer.

¶ 53   Prospective Juror M, for example, told the judge that she

  considered the allegations to be evidence that the parents had

  committed the acts described in the instruction. When pressed by

  the judge, who twice tried to explain that the instruction contained

  allegations, not evidence, Juror M replied, “Well, you’re talking

  about drug tests, so are those all hypothetical things that you were

  saying?”

¶ 54   Prospective Juror W believed the court’s instruction

  incorporated a police report. When father’s lawyer asked the juror

  how he had already determined that the child was in an injurious

  environment, Juror W responded, “Sure. I mean, covering

  everything we spoke about before, just the police report of how all

  the action went down, I think that in and of itself has created a

  pretty harmful environment, especially for a young kid.”


                                    22
¶ 55   And Juror W acknowledged that, based on “the volume of

  allegations,” there was “sort of already a strike against” father.

¶ 56   To be clear, our determination that the court’s error was not

  harmless does not hinge on the jurors’ comments.4 Nevertheless,

  the prospective jurors’ statements provide additional evidence that

  the juvenile court’s instruction confused the jury and prejudiced

  the parents.

¶ 57   In sum, we conclude that the juvenile court erred when it read

  detailed allegations from the petition, some of which were

  unsupported by evidence at trial or relied on inadmissible and

  unduly prejudicial evidence. We further conclude that the court

  abused its discretion because its instructional ruling was manifestly

  unfair and a misapplication of C.R.C.P. 47, as implemented by CJI-

  Civ. 41:1 and 41:4. And we determine that the error was not

  harmless because it impaired the basic fairness of the trial itself.

  Thus, we reverse the judgment and remand the case for a new

  adjudicatory trial.



                         ———————————————————————
  4 After the juvenile court denied challenges for cause to these three

  jurors, the parents’ counsel exercised peremptory strikes.


                                    23
¶ 58    We recognize that mother does not join father in raising this

  issue on appeal. But adjudications of dependency and neglect

  relate only to children and are not made “as to” the status of

  parents. J.G., ¶ 38; cf. People in Interest of T.R.W., 759 P.2d 768,

  771 (Colo. App. 1988) (no-fault admission of noncustodial parent

  does not support adjudication of dependency and neglect when fact

  finder determines otherwise). The error in this case affected the

  basic fairness of the adjudicatory trial, and the improper remarks

  related as much to mother as to father. So, our analysis and

  disposition apply equally to both parents.

       IV.   Mother’s Refusal to Voluntarily Submit to Drug Testing

¶ 59    Mother contends that the juvenile court erred when it

  admitted evidence that she refused to agree to drug testing for

  herself and the child before the Department filed the petition in

  dependency and neglect. Because we have already concluded that

  the parents are entitled to a new trial, we need not decide whether

  this error provides an independent ground for reversal.

  Nevertheless, we elect to address the issue because it may arise on

  remand. See Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112,

  1118 (Colo. 1990). We agree with mother.


                                    24
                              A.   Standard of Review

¶ 60        The Department concedes preservation. We review the

  juvenile court’s evidentiary rulings for an abuse of discretion.

  People in Interest of E.R., 2018 COA 58, ¶ 6. A trial court abuses its

  discretion when its ruling is manifestly arbitrary, unreasonable, or

  unfair, or when it misapplies the law. Id.

            B.     Drug Testing of Mother and the Child at the Hospital

¶ 61        Mother contends that the juvenile court erred when it

  admitted evidence that she refused to voluntarily submit to drug

  testing of herself and the child at the hospital.

       1.        Circumstances Surrounding Mother’s Refusal to Voluntary
                                 Submit to Drug Testing

¶ 62        The record does not reveal why hospital personnel requested

  the tests. Testimony at trial established that the child exhibited

  none of the symptoms of prenatal drug exposure described by the

  various expert witnesses. Rather, he was born full term at an

  average birth weight of six pounds, fourteen ounces. He showed no

  signs of withdrawal at birth: there was no evidence that he had

  reflux, extreme tremors, or extreme startle reflexes, and he did not




                                         25
  cry inconsolably. Further, the Department did not offer any

  evidence that the test was medically necessary to treat the child.

¶ 63   Nor did the Department offer any evidence that mother was

  under the influence of controlled substances when she gave birth.

  The record suggests that mother had reported regular use of

  marijuana at a prenatal visit when she was sixteen weeks pregnant.

  But no evidence links this report to the request for the drug tests or

  to the Department’s initiation of its investigation.

¶ 64   At the adjudicatory trial, a pediatric nurse who treated the

  child after he was removed from mother’s custody repeatedly

  referenced mother’s refusal to allow the hospital to drug test the

  child. The caseworker testified that mother’s refusal to consent to

  drug testing of the child was “very concerning” because “why would

  you refuse something that’s going to be negative?” She interpreted

  mother’s refusal to mean “there was something going on. There was

  usage going on.”

¶ 65   Mother contends that evidence of her refusal to consent to the

  drug testing is irrelevant and therefore inadmissible, as she had no

  obligation to submit to testing or otherwise cooperate with the

  hospital or the Department.


                                     26
          2.   Evidence of Mother’s Refusal Was Not Relevant

¶ 66   Only relevant evidence is admissible at trial. CRE 402.

  Evidence is relevant if it has any tendency to make the existence of

  any fact that is of consequence more probable or less probable than

  it would be without the evidence. CRE 401.

¶ 67   The Department and the guardian ad litem argue that

  mother’s refusal to consent to drug testing was relevant because it

  allowed the jurors to conclude that the results would have been

  positive for controlled substances and that mother wished to

  prevent the Department from assessing the child’s safety. And,

  once the jury determined that mother had exposed the child to

  drugs, it could find that the child was dependent and neglected.

  This argument falters at the first step because the mere fact of

  mother’s refusal does not reasonably lead to the conclusion that the

  test results would have been positive.

¶ 68   A person’s refusal to perform a particular act has probative

  value only if the person has a duty to perform the act or it would

  have otherwise “been natural under the circumstances” for the

  person to take the action. United States v. Hale, 422 U.S. 171, 176

  (1975). For example, in most circumstances, a person’s “silence is


                                   27
  so ambiguous that it is of little probative force.” Id. But where the

  “normal reaction” is to speak out in response to a statement,

  “silence may have some probative value.” People v. Quintana, 665

  P.2d 605, 610 (Colo. 1983); see also Asplin v. Mueller, 687 P.2d

  1329, 1332 (Colo. App. 1984) (party’s refusal to testify in civil case

  in response to probative evidence against him, and with knowledge

  of the consequences of his decision, gives rise to a reasonable

  inference that his testimony would be harmful to his position in the

  litigation). Similarly, the failure to assert a fact under

  circumstances in which it would have been natural to assert it has

  been construed to be the equivalent of a statement of the

  nonexistence of the fact. Quintana, 665 P.2d at 610.

¶ 69   In other words, when the refusal to perform the act is

  objectively unreasonable, the jury can reasonably infer that the

  person has refused to perform the act because performance would

  be detrimental to his or her interests.5 Under those circumstances,

                       ———————————————————————
  5 Based on the foregoing analysis, we reject father’s argument that
  evidence of his missed drug tests was irrelevant and inadmissible.
  Once the magistrate entered an order requiring the parents to
  submit to drug testing, father’s refusal to comply with the order was
  relevant. His noncompliance was objectively unreasonable, and the


                                     28
  the conclusion inferred is “supported by a ‘logical and convincing

  connection’” to the fact proved. See People v. Perez, 2016 CO 12,

  ¶ 25 (citation omitted).

¶ 70   But when the refusal to perform the act may be attributable to

  a variety of innocent circumstances that are completely unrelated to

  the inferred conclusion the proponent seeks to educe, the fact of

  refusal is too ambiguous to be relevant and is therefore

  inadmissible. See Quintana, 665 P.2d at 611.

¶ 71   Here, there was no evidence presented regarding the

  circumstances of the hospital’s request to test. For all the jury

  knew, hospital personnel had requested that mother submit to drug

  testing because the hospital routinely tests certain patients or

  because a new intern wanted to practice performing a drug test on

  a newborn baby. And without knowing those reasons, the jury

  could not decide whether they were sufficient to overcome mother’s

  “deep-rooted expectations of privacy” in her bodily fluids. People v.

  Barry, 2015 COA 4, ¶ 22 (citation omitted).




  jury could have reasonably inferred that he refused to comply
  because the results would have been detrimental to his interests.


                                    29
¶ 72   To be sure, we can conceive of some situations in which the

  “normal reaction” of a parent would be to consent to drug testing of

  a newborn baby. If the newborn baby was in medical distress and,

  in an effort to rule out drug exposure as a possible cause of the

  baby’s condition, a doctor requested the parent’s consent to perform

  a drug test, the parent’s refusal would have some probative force,

  as reasonably suggesting that the parent’s strong interest in

  avoiding a drug test trumped the safety of the child.

¶ 73   In this case, though, the jury had no way to evaluate the

  objective reasonableness of mother’s refusal to consent. Therefore,

  any conclusion that mother had refused to consent for a nefarious,

  rather than an innocent, reason would have been based on

  complete speculation. See People in Interest of R.D.S., 183 Colo. 89,

  95, 514 P.2d 772, 775 (1973) (inferences may not be based on mere

  speculation or conjecture).

¶ 74   Importantly, mother was entitled to a presumption that her

  refusal to consent was objectively reasonable. Before adjudication,

  parents enjoy the constitutional presumption that fit parents make

  decisions that are in their children’s best interests. People in

  Interest of N.G., 2012 COA 131, ¶ 2.


                                    30
             That some parents “may at times be acting
             against the interests of their children”
             . . . creates a basis for caution, but is hardly a
             reason to discard wholesale those pages of
             human experience that teach that parents
             generally do act in the child’s best interests.
             The statist notion that governmental power
             should supersede parental authority in all
             cases because some parents abuse and neglect
             children is repugnant to American tradition.

  Parham v. J.R., 442 U.S. 584, 602-03 (1979) (some citations

  omitted) (quoting Bartley v. Kremens, 402 F. Supp. 1039, 1047-48

  (E.D. Pa. 1975)); accord Ch. 240, sec. 1, § 25-4-910, 2014 Colo.

  Sess. Laws 886-87 (Although a “parent’s decision to refuse

  vaccination for their child carries risk for their child and the

  community at large,” including approximately a twenty-five-fold risk

  of contracting pertussis, parents may refuse vaccination for their

  children based on personal belief.).

¶ 75   For these reasons, we conclude that mother’s refusal to

  consent to voluntary drug testing is so lacking in probative value as

  to be inadmissible. Thus, the juvenile court abused its discretion

  when it admitted this evidence.




                                     31
   B.    Mother’s Refusal to Stop Breastfeeding Pending a Drug Test

¶ 76    Mother contends that the juvenile court abused its discretion

  when it admitted evidence that she refused the caseworker’s

  request to stop breastfeeding pending a drug test. We agree.

¶ 77    During her initial contact with the family, the caseworker

  asked mother to stop breastfeeding the child immediately and take

  a drug test to show that she was not using controlled substances.

  Mother refused. She told the caseworker that breastfeeding

  provided nutrition that the child needed.

¶ 78    The Department cannot require a parent to submit to drug

  testing without a court order. See People in Interest of G.E.S., 2016

  COA 183, ¶ 14 (before adjudication, parents may work with

  department voluntarily or court may issue orders for protection of

  the child); see also § 19-1-104(3)(a), C.R.S. 2018 (court may enter

  temporary orders for child’s protection upon hearing after prior

  notice to parent); accord People v. Diaz, 53 P.3d 1171, 1177 (Colo.

  2002) (the Fourth Amendment and article II, section 7 of the

  Colorado Constitution prohibit obtaining samples of bodily fluids

  through a warrantless search and seizure unless an exception to

  the warrant requirement applies).


                                    32
¶ 79   Parents may agree to work with the Department on a

  voluntary basis to address child welfare concerns. G.E.S., ¶ 14.

  But even after the filing of a petition in dependency and neglect,

  parents need not assist the Department to prove that their child is

  dependent and neglected. Id.

¶ 80   When mother refused the caseworker’s request to stop

  breastfeeding pending a drug test, the Department had not yet filed

  a petition in dependency and neglect, and the court had entered no

  orders. Mother retained her rights as a presumptively fit parent to

  make decisions in the best interests of her child — including the

  decision to breastfeed. See N.G., ¶ 2. Accordingly, mother was also

  within her rights to refuse to stop breastfeeding until she had

  completed a drug test.

¶ 81   Evidence that mother exercised her right to refuse drug testing

  on the morning of the child’s removal had no probative value in

  light of the evidence that the child and mother were drug tested

  later that afternoon and the next morning, respectively, and the

  results of those tests were negative for all controlled substances.

  See People v. Rath, 44 P.3d 1033, 1041 (Colo. 2002) (in balancing

  probative value against prejudicial effect, court assesses probative


                                    33
  value of evidence in context of other evidence in the case). In other

  words, if evidence of mother’s refusal to stop breastfeeding pending

  a drug test was supposed to give rise to an inference that mother

  was then using drugs, other evidence negated that inference.

¶ 82       We therefore conclude that the juvenile court abused its

  discretion when it admitted evidence that mother refused the

  caseworker’s request that she stop breastfeeding pending a drug

  test.

                            V.     Remaining Issues

¶ 83       “An adjudication of dependency or neglect must be based on

  existing circumstances and relate to the status of the child at the

  time of adjudication.” People in Interest of A.E.L., 181 P.3d 1186,

  1192 (Colo. App. 2008). We cannot determine whether the parents’

  remaining issues will arise at a new adjudicatory trial on remand

  because the child’s and the parents’ circumstances will have

  evolved. As a result, we decline to address these contentions.

                                 VI.   Conclusion

¶ 84       The judgment is reversed, and the case is remanded for a new

  trial.

           JUDGE WEBB and JUDGE WELLING concur.


                                        34
