COLORADO COURT OF APPEALS                                           2016COA173


Court of Appeals No. 16CA0685
Arapahoe County District Court No. 16JV53
Honorable Theresa M. Slade, Judge


The People of the State of Colorado,

Petitioner-Appellant,

In the Interest of S.M-L., B.M-M., and R.S., Children,

and Concerning G.S.,

Respondent-Appellant,

and D.S.,

Respondent-Appellee.


            APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED

                                   Division V
                           Opinion by JUDGE FREYRE
                        Román and Lichtenstein, JJ., concur

                          Announced November 17, 2016


Ron Carl, County Attorney, Marilee M. McWilliams, Senior County Attorney,
Aurora, Colorado, for Petitioner-Appellant

Alison A. Bettenberg, Ranee Sharshel, Guardians Ad Litem

The Law Office of Jeffrey J. Timlin, Jeffrey J. Timlin, Denver, Colorado, for
Respondent-Appellant

Oxman & Oxman, P.C., Chad Oxman, Denver, Colorado, for
Respondent-Appellee
¶1    In this dependency and neglect proceeding, we are asked to

 decide an issue of first impression: Is a jury’s finding that a child is

 not dependent or neglected and the court’s denial of a C.R.C.P. 59(e)

 motion asking for adjudication notwithstanding the jury’s verdict a

 final and appealable order? We conclude that it is not, because

 neither C.A.R. 3.4(a) nor the Children’s Code provides a right to

 appeal from such findings.

¶2    In this case, the Arapahoe County Department of Human

 Services (the Department) appeals the denial of its motion for an

 adjudication notwithstanding the verdict after a jury found that

 R.S. was not dependent or neglected as to father (D.S.). Mother

 (G.S.) appeals the order adjudicating S.M-L., B.M-M., and R.S.

 dependent and neglected as to her. We dismiss the Department’s

 appeal and affirm mother’s adjudication.

                              I. Background

¶3    The Department filed a dependency and neglect petition

 regarding sixteen-year-old S.M-L., twelve-year-old B.M-M., and

 eight-year-old R.S. (the children). The petition named D.S. as R.S.’s

 biological father and named G.S. as all of the children’s mother.

 The Department asserted that father had sexually abused his


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 stepdaughter, S.M-L., based on S.M-L.’s credible and consistent

 reports to it and to a forensic interviewer. Consequently, father was

 arrested and criminally charged with sexual abuse. The

 Department stated that father denied the allegations and that

 mother believed S.M-L. was lying about them. Finally, the

 Department noted that it had implemented a safety plan that

 required father to leave the home and to have supervised contact

 with his stepson, B.M-M., and his daughter, R.S. The children

 remained at home with mother.

¶4    Mother and father denied the allegations in the petition and

 each requested a trial. Mother requested a bench trial, and father

 requested a jury trial. The court empaneled a jury for father and

 heard evidence presented to the jury as the fact finder for mother.

 During the jury trial, the State presented evidence from S.M-L., as

 well as the Department’s investigator, the Department’s caseworker,

 the forensic interviewer, mother, and a psychologist.

¶5    S.M-L. testified that she had told mother about the sexual

 abuse and that mother thought she was lying. She confirmed that

 she had told the caseworker and forensic interviewer about the




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 abuse and that her story was true. However, on cross-examination,

 she recanted and said that nothing inappropriate had occurred.

¶6    The Department’s investigator, who was qualified as an expert

 in sexual abuse, child protection, and social work, testified that he

 had met with S.M-L., and that she had confirmed the sexual abuse.

 He said S.M-L.’s description to him was consistent with the forensic

 interview and that she “was very clear about the abuse that

 happened to her.” Thus, nothing caused him concern that S.M-L.

 had been coached. He also said that mother did not believe S.M-L.,

 which raised child protection concerns as to the remaining children.

¶7    The Department’s caseworker, who was qualified as an expert

 in child protection and social work, testified that the Department’s

 main concern was father’s sexual abuse of S.M-L. She opined that

 S.M-L.’s outcry was accurate and that the allegations had not been

 fabricated. She said mother did not believe the allegations, was not

 supportive of S.M-L., and had pressured S.M-L. to say that nothing

 had happened. Finally, the caseworker expressed concerns

 regarding mother’s ability to protect B.M-M. and R.S. given mother’s

 disbelief of S.M-L.’s allegations.




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¶8     The forensic interviewer, who was qualified as an expert in

  forensic interviewing and sexual abuse, testified that she had

  interviewed S.M-L. She confirmed that S.M-L.’s statements were

  spontaneous and that her language was age appropriate. She

  opined that S.M-L. “was [not] making anything up” because she had

  “lot[s] of details that she wouldn’t have had if someone [had]

  coached her or told her what to say.” She said S.M-L. seemed sad

  and upset about not being believed.

¶9     Mother testified that her sister (S.M-L.’s maternal aunt) had

  “put all of these ideas in [S.M-L.’s] head” and that S.M-L. was lying

  about the allegations.

¶ 10   Finally, a psychologist, who was qualified as an expert in

  sexual abuse, testified that there are only a small percentage of

  false outcries in sexual abuse cases. After reviewing the videotape

  of the forensic interview, he opined that S.M-L.’s allegations were

  consistent and spontaneous.

¶ 11   After father presented the testimony of his adult stepchild, the

  trial court instructed the jury to decide whether R.S. was dependent

  or neglected with respect to father. While the jury deliberated about

  father, mother presented the remainder of her case to the court,


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  including testifying a second time. Thus, the court considered more

  evidence as to mother than the jury considered as to father.

¶ 12   Before the jury returned its verdict as to father, the trial court

  made its oral findings regarding mother. The court found that the

  allegations in the petition had been proven by a preponderance of

  the evidence based on S.M.-L.’s testimony. It made extensive

  findings concerning S.M.-L.’s credibility and entered an order

  adjudicating the children dependent and neglected. Shortly

  thereafter, the jury returned its verdict finding that R.S. was not

  dependent or neglected as to father.

¶ 13   The Department moved for an adjudication of father

  notwithstanding the verdict under C.R.C.P. 59. It argued that the

  evidence was “overwhelming” and “so strong” that the jury’s verdict

  was not supported by the record. The trial court denied the motion,

  finding, as a matter of law, there was not insufficient evidence to

  support the jury’s decision. It noted that the jury followed its

  instructions, paid attention throughout the trial, and asked

  appropriate questions. See C.R.C.P. 59(e)(1). The court also noted

  that there were genuine issues of material fact and that it could not

  find the State was entitled to judgment as a matter of law. See


                                     5
  C.R.C.P. 59(e)(2). Accordingly, it entered an order dismissing father

  from the petition.

¶ 14   The Department and mother appeal.

                       II. The Department’s Appeal

¶ 15   After the Department filed its notice of appeal, we issued an

  order to show cause why the appeal should not be dismissed for

  lack of a final, appealable order, noting that we were unaware of

  any authority for the proposition that dismissing a parent from a

  petition based on a jury verdict was a final appealable order. In

  response, the Department cited People in Interest of M.A.L., 37 Colo.

  App. 307, 592 P.2d 415 (1976), in which the county appealed a jury

  verdict not adjudicating the child as dependent or neglected. Based

  on the Department’s response, a motions division of this court

  allowed the Department’s appeal to proceed and for the issue of

  finality to be considered on the merits. Therefore, we now consider

  the Department’s appeal and conclude that a jury’s verdict not

  adjudicating a party is not a proper basis for requesting an

  adjudication notwithstanding the verdict under C.R.C.P. 59(e) and

  that the court’s dismissal of a party from a dependency and neglect

  petition based on a jury’s verdict is not a final appealable order


                                     6
  under our appellate rules or the Children’s Code. Accordingly, we

  dismiss the Department’s appeal.

               A. Standard of Review and Applicable Law

¶ 16   When interpreting a rule or statute, our goal is to determine

  and give effect to the legislature’s intent. See People in Interest of

  C.L.S., 313 P.3d 662, 666 (Colo. App. 2011); see also People v. Zhuk,

  239 P.3d 437, 438 (Colo. 2010) (rules of procedure are interpreted

  consistently with principles of statutory construction). We look to

  the rule or statute’s language and give effect to the words and

  phrases according to their plain and ordinary meanings. Zhuk, 239

  P.3d at 439; C.L.S., 313 P.3d at 666. Words or phrases should not

  be added to a statute or rule, and the inclusion of certain terms in a

  statute or rule implies the exclusion of others. See People in

  Interest of J.J.M., 2013 COA 159, ¶ 7.

¶ 17   Colorado Appellate Rule 3.4(a), which governs appeals in

  dependency or neglect cases, provides that a party may appeal (1)

  orders from dependency or neglect proceedings as permitted by

  section 19-1-109(2)(b) and (c), C.R.S. 2016 (appeals); (2) orders

  allocating parental responsibilities under section 19-1-104(6),

  C.R.S. 2016; (3) final orders entered pursuant to section 19-3-612,


                                      7
  C.R.S. 2016 (reinstatement of the parent-child legal relationship);

  and (4) final orders of permanent legal custody entered pursuant to

  sections 19-3-605 and 19-3-702, C.R.S. 2016.

¶ 18   As relevant here, section 19-1-109(2)(c) provides that an order

  decreeing a child to be neglected or dependent shall be a final and

  appealable order upon the entry of the disposition. Nothing in this

  section refers to the dismissal of a party from the petition based on

  a jury’s verdict finding that a child was not dependent or neglected

  as to that party.

                               B. Analysis

¶ 19   Because neither C.A.R. 3.4(a) nor section 19-1-109(2)(c)

  contains language permitting an appeal from a “no adjudication”

  finding, we conclude that the legislature did not intend for such

  determinations to be final appealable orders. If the legislature had

  intended to permit the direct appeal of a fact finder’s “no

  adjudication” decision, it could have done so by express language.

  See In re Marriage of Hartley, 886 P.2d 665, 673 (Colo. 1994)

  (noting that if the legislature intended the statute to include a

  certain provision, it would have included it in the statute); Adams v.

  Corr. Corp. of Am., 187 P.3d 1190, 1193 (Colo. App. 2008) (“[I]t is


                                     8
  presumed that the General Assembly meant what it clearly said.”).

  Indeed, section 19-1-109(2)(b), which addresses orders regarding

  the termination of parental rights, demonstrates that where the

  legislature intended to permit the appeal of orders denying

  termination, it did so. § 19-1-109(2)(b) (“An order terminating or

  refusing to terminate the legal relationship between a parent or

  parents and one or more of the children of such parent or parents

  on a petition, or between a child and one or both parents of the

  child, shall be a final and appealable order.”) (emphasis added).

¶ 20   In contrast to the express language in section 19-1-109(2)(b)

  permitting the appeal of a refusal to terminate parental rights, the

  legislature chose not to allow the appeal of findings of “no

  adjudication” when it drafted section 19-1-109(2)(c). And we may

  not add language to permit such appeals. See Ruiz v. Hope for

  Children, Inc., 2013 COA 91, ¶ 14; see also People v. Jaramillo, 183

  P.3d 665, 671 (Colo. App. 2008) (stating that courts must respect

  the General Assembly’s choice of language and cannot add words to

  a statute).

¶ 21   We are aware that, on at least one occasion, a division of this

  court entertained the State’s appeal of a jury verdict finding that the


                                     9
  children were not dependent or neglected. M.A.L., 37 Colo. App.

  307, 592 P.2d 415. However, the issue of finality was neither raised

  nor addressed on appeal. See People in Interest of H.R., 883 P.2d

  619, 621 (Colo. App. 1994). Instead, the division concluded that

  the jury, as fact finder, was entitled to resolve the conflicting

  evidence and affirmed the trial court’s denial of the People’s motion

  for directed verdict. Moreover, the Children’s Code was repealed

  and reenacted in 1987, well after M.A.L. was decided. Ch. 138,

  1987 Colo. Sess. Laws 695-823. Hence, we do not view that

  decision as persuasive precedent on the jurisdictional issue

  presented here. See id.

¶ 22   We further note that after the jury determined that R.S. was

  not dependent or neglected as to father, the trial court did not have

  jurisdiction to enter any orders other than dismissal of the petition.

  People in Interest of S.T., 2015 COA 147, ¶ 19 (finding that the court

  lacked jurisdiction to enter any orders except dismissal from the

  petition once it found the allegations in the petition were not

  proven). Thus, the court had no jurisdiction to rule on the

  Department’s motion for adjudication notwithstanding the verdict.

  See id.


                                     10
¶ 23   Accordingly, because a jury’s “no adjudication” verdict is not a

  proper basis for a motion for adjudication notwithstanding the

  verdict and thus, is not a final appealable order under C.A.R. 3.4(a)

  or section 19-1-109(2)(c), we dismiss the Department’s appeal.

                            III. Mother’s Appeal

¶ 24   Mother challenges her adjudication on several grounds. She

  contends that the petition should be dismissed because (1) the

  evidence did not support the trial court’s findings that R.S. was

  dependent and neglected; (2) the findings regarding B.M-M. related

  to events that did not rise to child protection concerns; (3) the court

  engaged in conjecture and speculation in making its findings

  concerning S.M-L.; and (4) the court misinterpreted the term

  “abandoned” in section 19-3-102(1)(a), C.R.S. 2016. We discern no

  reversible error.

               A. Applicable Law and Standard of Review

¶ 25   A child may be adjudicated dependent or neglected if the State

  proves, by a preponderance of the evidence, that one or more of the

  conditions set forth in section 19-3-102 exists. As relevant here,

  subsections 102(1)(a), (b), (c), and (d) provide that a child is

  dependent or neglected if:


                                     11
             (a) A parent, guardian, or legal custodian has
             abandoned the child or has subjected him or
             her to mistreatment or abuse or a parent,
             guardian, or legal custodian has suffered or
             allowed another to mistreat or abuse the child
             without taking lawful means to stop such
             mistreatment or abuse and prevent it from
             reoccurring;
             (b) The child lacks proper parental care
             through the actions or omissions of the parent,
             guardian, or legal custodian;
             (c) The child’s environment is injurious to his
             or her welfare; [or]
             (d) A parent, guardian, or legal custodian fails
             or refuses to provide the child with proper or
             necessary subsistence, education, medical
             care, or any other care necessary for his or her
             health, guidance, or well-being[.]

¶ 26    Both parents are entitled to a determination as to whether the

  facts alleged in the petition have been proven. People in Interest of

  J.G., 2014 COA 182, ¶ 24, rev’d on other grounds, 2016 CO 39. The

  State must present sufficient evidence to persuade the fact finder

  that the child is dependent or neglected with respect to each parent.

  Id.

¶ 27    A trial court’s determinations regarding the sufficiency and

  weight of the evidence and the credibility of the witnesses, as well

  as the inferences and conclusions to be drawn therefrom, are within




                                    12
  its discretion. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.

  1982).

¶ 28   In determining whether the evidence is sufficient to sustain an

  adjudication, an appellate court reviews the record in the light most

  favorable to the prevailing party, and it draws every fair inference

  from the evidence in favor of the trial court’s decision. People in

  Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009). We will not

  disturb the court’s findings and conclusions on review if evidence in

  the record supports them. C.A.K., 652 P.2d at 613.

                               B. Analysis

¶ 29   After hearing the testimony of several witnesses and

  considering the documentary evidence presented, the trial court

  made oral findings and adjudicated the children dependent and

  neglected under section 19-3-102(1)(a)-(d). We note that the court’s

  minute order shows that S.M-L. was adjudicated pursuant to

  section 19-3-102(1)(a) while B.M-M. and R.S. were adjudicated

  pursuant to section 19-3-102(1)(d). Nonetheless, section 19-3-102

  requires proof of only one condition for an adjudication. See

  § 19-3-102.




                                    13
¶ 30   In reaching its conclusions, the trial court found S.M.-L.’s

  allegations of sexual abuse to be more credible than her

  recantation. The court also found that mother had not provided the

  three children with a supportive environment in which they could

  address their mental health needs resulting from S.M-L.’s outcry. It

  further found that mother had actively attempted to get father back

  into the home without a protective plan in place. As to S.M-L.’s

  younger sister, R.S., the court found that mother had not developed

  a way to protect her if the allegations were true.

¶ 31   Initially, we note that we are troubled by the admission of

  plainly inadmissible evidence and the absence of an objection to it.

  This inadmissible evidence includes the testimony of various

  experts who interviewed S.M-L. and testified that they believed her

  allegations were credible, opined that she had not been coached,

  and provided statistics regarding the probability of false allegations.

  The admission of such evidence undermines the fairness of the

  proceedings and has long been regarded as improper. See People v.

  Cernazanu, 2015 COA 122, ¶ 11 (reversible error to allow mother to

  opine on the credibility of daughter’s allegations of sexual abuse);

  People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (“it is clear that


                                    14
  [witnesses] may not offer their direct opinion on a child victim’s

  truthfulness or their opinion on whether children tend to fabricate

  sexual abuse allegations”); People v. Bridges, 2014 COA 65, ¶ 11

  (The jury is not allowed to consider “evidence that a witness was

  telling the truth on a specific occasion because it is solely the jury’s

  responsibility to determine whether a particular witness’s testimony

  or statement is truthful,” and witness may not opine that a child

  was not coached); People v. Eppens, 979 P.2d 14, 17 (Colo. 1999)

  (improper for witness to opine that child was sincere); People v.

  Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (improper for witness to

  testify child was “very believable”); People v. Oliver, 745 P.2d 222,

  225 (Colo. 1987) (witness may not testify he or she personally

  believed the child’s statements); People v. Snook, 745 P.2d 647, 649

  (Colo. 1987) (witness may not testify that children tend not to

  fabricate sexual abuse allegations). The record reveals, however,

  that the trial court did not rely on any of this improperly admitted

  evidence to adjudicate the children as to mother.

¶ 32   The record supports the trial court’s findings. S.M-L. testified

  that father (her stepfather) had sexually abused her and the court

  was in the best position to assess S.M.-L.’s credibility when she


                                     15
  recanted on cross-examination. Given the court’s detailed findings

  about the differences in S.M.-L.’s demeanor between direct and

  cross-examination, we cannot find the court abused its discretion in

  adjudicating the children dependent or neglected based on its

  determination that S.M.-L. was abused.

¶ 33   The evidence also showed that mother did not believe the

  sexual abuse allegations and insisted that S.M-L. was lying.

  Mother testified that she believed S.M-L. was lying and the forensic

  interviewer said S.M-L. was upset about not being believed.

¶ 34   The evidence further revealed that because mother did not

  believe the sexual abuse allegations, the Department was concerned

  about whether she could protect B.M-M. and R.S. In fact, mother

  was not permitted to supervise visits between father and the

  children because the Department did not believe she would pay

  attention to father’s interactions with B.M-M. and R.S. or that she

  could identify grooming behaviors.

¶ 35   Finally, the evidence showed that mother attempted to return

  father to the home by asking to modify the protection order “two or

  three” times. Additionally, the Department’s investigator said that

  S.M-L. felt pressured to move out of the home so that father could


                                   16
  visit more often and that the Department was concerned that

  mother was taking father’s side.

¶ 36   Given the facts that S.M-L. alleged sexual abuse by father,

  that mother disbelieved those allegations, and that mother

  attempted to return father to the home, we discern no error in the

  trial court’s finding that S.M-L. was dependent and neglected under

  section 19-3-102. Similarly, given the Department’s concerns

  about mother’s protective capacity based on her disbelief of the

  sexual abuse allegations, we discern no error in the trial court’s

  finding that B.M-M. and R.S. were dependent and neglected under

  section 19-3-102. See People in Interest of D.L.R., 638 P.2d 39, 41-

  42 (Colo. 1981) (holding that a trial court may adjudicate a child

  dependent or neglected based on prospective harm).

¶ 37   We are not persuaded by mother’s argument that reversal is

  required because the trial court engaged in conjecture and

  speculation. We acknowledge that the court remarked several times

  about the things that S.M-L. “didn’t say” during her testimony.

  However, a court’s remarks or expressions of opinion made during

  or at the end of a proceeding are not necessarily formal factual

  findings prepared as the basis of the judgment. See People in


                                     17
  Interest of O.J.S., 844 P.2d 1230, 1232-33 (Colo. App. 1992), aff’d

  sub nom. D.A.S. v. People, 863 P.2d 291 (Colo. 1993). Based on the

  court’s other findings, we do not consider these remarks to be the

  basis for the judgment.

¶ 38   We also disagree with mother’s contention that reversal is

  required because the trial court interpreted section 19-3-102(1)(a)

  to include “emotional abandonment.” Our review of the court’s

  factual findings does not indicate that it relied on the “abandoned”

  portion of the statute. Rather, the court found that mother had

  either subjected S.M-L. to mistreatment or abuse or had allowed

  another to mistreat or abuse S.M-L. without taking lawful means to

  stop such mistreatment or abuse or to prevent it from reoccurring.

¶ 39   Accordingly, because the evidence supports the trial court’s

  factual findings, we will not disturb them on appeal.

                             IV. Conclusion

¶ 40   The Department’s appeal is dismissed, and the order

  adjudicating mother is affirmed.

       JUDGE ROMÁN and JUDGE LICHTENSTEIN concur.




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