COLORADO COURT OF APPEALS                                       2016COA112


Court of Appeals No. 15CA1953
Moffat County District Court No. 13JV34
Honorable Michael A. O’Hara, Judge


The People of the State of Colorado,

Petitioner-Appellee and Cross-Appellant,

In the Interest of L.K., a Child,

and Concerning C.K.,

Respondent-Appellant and Cross-Appellee.


               JUDGMENT AFFIRMED AND ORDERS REVERSED

                                   Division II
                            Opinion by JUDGE WEBB
                          Ashby and Harris, JJ., concur

                             Announced July 14, 2016


Brett Barkey, County Attorney, Rebecca Tyree, Assistant County Attorney,
Craig, Colorado, for Petitioner-Appellee and Cross-Appellant

Heather Cannon, Guardian Ad Litem

Salky Law, LLC, Randall P. Salky, Steamboat Springs, Colorado, for
Respondent-Appellant and Cross-Appellee
¶1    In this dependency and neglect proceeding, C.K. (father)

 appeals from the judgment terminating the parent-child legal

 relationship between him and his daughter, L.K. We affirm the

 judgment.

¶2    On cross-appeal, the Moffat County Department of Social

 Services (MCDSS) challenges the trial court’s order requiring

 payment of $400 to father’s attorney, as a discovery sanction, on

 the basis that, among other reasons, it violated sovereign immunity.

 This question has not been addressed in Colorado. After

 considering federal precedent, we conclude that, because this

 sanction violated sovereign immunity, it must be set aside.

                            I. Background

¶3    In August 2013, MCDSS devised a protective plan for L.K.,

 then five years old, after her outcry over sexual abuse by father.

 MCDSS placed L.K. with M.K. (grandmother), and contact between

 father and L.K. was prohibited. In October, after father was seen

 contacting L.K. in violation of the protective plan, MCDSS removed

 her from grandmother’s home. Then it filed a petition in

 dependency and neglect.




                                   1
¶4    At the first hearing, the court advised father that he was the

 focus of a criminal investigation arising from L.K.’s report of abuse;

 the offenses being investigated were “serious offenses,” which could

 lead to a lengthy prison term; and he should be careful about what

 he said because his statements could be available to other people

 and could potentially be used against him in a criminal case. The

 court also advised him that if L.K. was adjudicated dependent and

 neglected, a treatment plan would be adopted for him; if he failed to

 comply with it, either MCDSS or L.K.’s guardian ad litem (GAL)

 could move to terminate his parental rights; and if the court found

 that “sufficient proof” had been presented, his parental rights would

 be terminated.

¶5    Father stipulated that L.K. was dependent and neglected

 because she lacked proper parental care. The court accepted his

 admission and adjudicated L.K. dependent and neglected.

¶6    MCDSS proposed a treatment plan for father that required

 him, among other things, to successfully complete sex offender

 treatment. Although the plan did not specifically require him to

 take a polygraph examination, it did require him to “participate in a

 psychosexual evaluation and complete other assessments required


                                   2
 by the evaluator” and “complete therapy according to SOMB

 standards.”1

¶7    When the court approved the treatment plan, father was not

 present — allegedly because MCDSS failed to advise him of a

 change in the hearing date — and he was not represented by

 counsel.2 The attorney for MCDSS told the court that father

 continued to deny having sexual contact with L.K. but had

 indicated that he understood MCDSS would be seeking treatment

 for alleged improper sexual contact. Counsel also said that she

 believed father would say that he was “not in favor” of such

 treatment, but she was under the impression that he would be

 willing to do it if the court ordered it.

¶8    Later, and still without counsel, father sent a letter to the

 court objecting to “taking a lie detector test.” But he did so on the

 ground that he understood such tests were “unscientific” and had a

 large margin of error. He did not express any fear that a polygraph


 1 SOMB refers to the Sex Offender Management Board.
 § 16-13-902(2), C.R.S. 2015.
 2 Initially, father was not eligible for court-appointed counsel based

 on his earnings. When the treatment plan was proposed, he had
 not yet retained private counsel. However, the trial court found
 that father had “had knowledge and notice” of the hearing.

                                      3
  examination might require him to incriminate himself. And

  otherwise, he did not contest the treatment plan.

¶9     In January 2014, father retained counsel, who told MCDSS

  that father could not complete SOMB-approved treatment because

  he refused to admit that he had sexually abused L.K. and no

  criminal charges were pending against him. At a later status

  hearing, counsel provided this information to the court, and the

  caseworker confirmed that SOMB-approved providers would not

  treat father under these circumstances.

¶ 10   Father’s retained counsel also requested a protective order

  under section 19-3-207, C.R.S. 2015, precluding use of any

  statements made during treatment in later criminal proceedings.

  The court entered the order. But the court never ruled on father’s

  letter objecting to “taking a lie detector test.” Nor did his attorney

  ask the court to treat the letter as a motion and rule on it.

¶ 11   In April 2014, father completed a sex offense specific

  evaluation by an SOMB-listed evaluator. Noting that father

  completely denied any inappropriate sexual behavior, the evaluator

  recommended that father take a polygraph examination to

  determine the next step. If the results indicated that he was


                                     4
  truthful, he would not be viewed as an appropriate candidate for

  offense specific treatment. But, if the results showed deception and

  he continued to deny inappropriate sexual behavior, he could

  participate in a “denier’s intervention” program “for the purpose of

  helping him reduce his denial and defensiveness in preparation for

  a traditional offense specific treatment program.”

¶ 12      MCDSS proposed that father’s treatment plan be amended to

  include the evaluator’s recommendations. This time, he did not

  object to any aspect of the amended plan. The court amended the

  plan.

¶ 13      After father completed the first polygraph examination in June

  2014, efforts were made to find a treatment provider for him. But,

  during a hearing on September 17, he told the court that he still

  could not find a treatment provider who would work with him.

¶ 14      In October 2014, the court expressed concern that father’s

  treatment plan might be “impossible” because he could not find a

  provider who was willing to treat him. The court ordered MCDSS to

  find a provider for father. MCDSS was not successful.

¶ 15      In January 2015, at the court’s request, father moved to

  modify his treatment plan. He requested, among other things, that


                                      5
  any reference to SOMB requirements or guidelines be eliminated,

  and that the therapy requirement be modified to remove any

  reference to denier’s treatment or SOMB offense specific treatment.

  The motion did not specifically address completing a polygraph

  examination. Following a hearing, the court denied the motion and

  ordered father to participate in denier’s treatment.

¶ 16   Father was referred to an SOMB-approved provider for denier’s

  treatment in March 2015. The provider tried several approaches to

  help him “open up” about his behavior, but nothing worked. Father

  met with the provider only four times. And he did not meet with or

  attempt to contact the provider after May 15.

¶ 17   Father told MCDSS that he could not pay for the second

  polygraph examination that was required as part of denier’s

  treatment. After MCDSS agreed to pay for the examination, it was

  rescheduled for August. But father was terminated from treatment

  on July 20, under SOMB standards that require termination if a

  denier continues to be in full denial after ninety days. He never

  took the examination.

¶ 18   After denier’s treatment ended, MCDSS moved to terminate

  father’s parental rights, citing his failure to comply with his


                                     6
  treatment plan. During the three-day termination hearing, father’s

  attorney cross-examined witnesses and made arguments on father’s

  behalf. However, father chose not to testify and his attorney did not

  present any evidence.

¶ 19   Relying on the testimony of the denier’s treatment provider

  and other witnesses, the court found, among other things, that

  father had been referred for a polygraph examination as part of

  denier’s treatment, but he had not appeared for the examination.

  The court granted the termination motion, citing father’s failure to

  successfully complete treatment designed to address the allegations

  of “sexual misbehavior” with L.K. as sufficient evidence that father

  was unable or unwilling to provide nurturing and safe parenting to

  adequately address her needs.

             II. Failure to Take the Polygraph Examination

¶ 20   Father first contends the trial court committed reversible error

  by considering the denier’s treatment polygraph examination as

  evidence supporting its determination that he failed to successfully

  complete his treatment plan. We perceive no error.




                                    7
                        A. Additional Background

¶ 21   The court allowed MCDSS to present evidence of efforts to

  schedule an appointment for a polygraph examination during

  denier’s treatment and evidence that father did not keep the

  appointment. In granting the termination motion, the court cited

  father’s failure to successfully complete treatment designed to

  address the allegations of “sexual misbehavior” with L.K. The court

  specifically referred to father’s failure to take the second polygraph

  examination required by the denier’s treatment program as evidence

  of his failure to successfully complete treatment.

                B. Preservation and Standard of Review

¶ 22   Father preserved this issue by raising it in his closing

  argument at the termination hearing.3 Whether the trial court

  improperly considered father’s failure to take the polygraph

  examination is reviewed for an abuse of discretion. See People v.

  Banks, 2012 COA 157, ¶ 96 (holding that the trial court did not


  3 However, father’s counsel did not then argue, nor had he argued
  at any earlier stage of the proceedings, either that father had been
  coerced into participating in denier’s treatment or that the
  polygraph examination required by this treatment implicated
  father’s privilege against self-incrimination. Father does not make
  either argument on appeal.

                                     8
  abuse its discretion in admitting testimony as to whether a

  polygraph examination was performed), aff’d in part and rev’d in

  part on other grounds sub nom. People v. Tate, 2015 CO 42.

                                C. Law

¶ 23   “Evidence of polygraph test results and the testimony of

  polygraph examiners are per se inadmissible in both criminal and

  civil trials.” People in Interest of M.M., 215 P.3d 1237, 1248 (Colo.

  App. 2009). In M.M., which involved termination of parental rights,

  the division held that evidence of polygraph examinations should

  not have been admitted, and the trial court should not have listened

  to or considered the opinions of any experts based in whole or in

  part on polygraph results. Id. at 1250.

                             D. Application

¶ 24   According to father, the question before the trial court was

  whether evidence of polygraph examination results could be

  considered. Not so. The record shows the question to have been

  whether evidence of compliance (or lack thereof) with a polygraph

  examination requirement should be admitted and considered, and

  for what purpose. Because father never took the polygraph




                                     9
  examination required for denier’s treatment, the court had no

  results to consider.

¶ 25   Father does not dispute either that his treatment plan

  required him to participate in denier’s treatment or that a polygraph

  examination is required in denier’s treatment. For these reasons,

  the court concluded that it could properly admit evidence of efforts

  to schedule an appointment for a polygraph examination during

  denier’s treatment and evidence that father did not keep the

  appointment. We agree with the court that admitting this evidence

  did not violate the prohibition against considering polygraph

  results. Based on L.K.’s outcry over sexual abuse by father, the

  mandatory participation in sex offender treatment, and the

  treatment requirement that he take a polygraph examination,

  father’s failure to take the examination was a proper matter for the

  court to consider in determining whether he had successfully

  completed his treatment plan.

¶ 26   Therefore, we conclude that the court did not err in admitting

  evidence of father’s failure to take the polygraph examination

  required as part of the denier’s treatment component of his




                                   10
  treatment plan and considering this evidence in terminating his

  parental rights.

                         III. The Burden of Proof

¶ 27   Next, father contends the burden was on MCDSS to prove by

  clear and convincing evidence that his parental rights should be

  terminated, but the trial court erred by unfairly shifting the burden

  of proof to him when he decided not to testify in the termination

  hearing. Again, we perceive no error.

                        A. Additional Background

¶ 28   Neither MCDSS nor the GAL attempted to call father to testify

  at the hearing. On the second day of the termination hearing, after

  MCDSS and the GAL had rested, the court inquired whether father

  intended to present any evidence. After consulting with his

  attorney and being advised by the court of the consequences of his

  decision, father declined to testify or present any other evidence. At

  that time, neither father nor his attorney mentioned a concern over

  self-incrimination.

¶ 29   Later, the court asked the parties to address in their closing

  arguments whether it could draw a negative inference from father’s

  failure or refusal to participate in the polygraph examination


                                    11
  required by denier’s treatment. The court cited Asplin v. Mueller,

  687 P.2d 1329 (Colo. App. 1984), as a potentially relevant case, but

  it acknowledged that the opinion did not appear to be “on point.”

                B. Preservation and Standard of Review

¶ 30   Father preserved the issue of whether the trial court

  improperly considered his choice not to testify when his counsel

  raised it in his closing argument at the termination hearing.

  However, counsel sought to dissuade the court from relying on

  Asplin by arguing that an adverse inference could not be drawn

  because unlike in that case, father had not declined to testify on

  Fifth Amendment grounds.

¶ 31   “The proper burden of proof is a question of law which we

  review de novo.” McCallum Family L.L.C. v. Winger, 221 P.3d 69, 72

  (Colo. App. 2009).

                                 C. Law

¶ 32   Under the Fifth Amendment to the United States Constitution,

  no person “shall be compelled in any criminal case to be a witness

  against himself.”4 The Fifth Amendment “also privileges [the


  4Article II, section 18 of the Colorado Constitution similarly
  provides that “[n]o person shall be compelled to testify against

                                    12
  individual] not to answer official questions put to him in any other

  proceeding, civil or criminal, formal or informal, where the answers

  might incriminate him in future criminal proceedings.” Lefkowitz v.

  Turley, 414 U.S. 70, 77 (1973). And a witness protected by the

  privilege “may rightfully refuse to answer unless and until he is

  protected at least against the use of his compelled answers and

  evidence derived therefrom in any subsequent criminal case in

  which he is a defendant.” Id. at 78.

¶ 33   Even so, “the Fifth Amendment does not forbid adverse

  inferences against parties to civil actions when they refuse to testify

  in response to probative evidence offered against them.” Baxter v.

  Palmigiano, 425 U.S. 308, 318 (1976); see Sec. & Exch. Comm’n v.

  Colello, 139 F.3d 674, 677 (9th Cir.1998) (“Parties are free to invoke

  the Fifth Amendment in civil cases, but the court is equally free to

  draw adverse inferences from their failure of proof.”) (cited with

  approval in Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 141 (Colo.

  2004)). And while refusing to testify may be necessary to prevent a

  waiver of the privilege, “[c]ourts generally have refused to find a

  himself in a criminal case.” Father does not argue that article II,
  section 18 provides any greater protection than the Fifth
  Amendment at trial.

                                    13
  [F]ifth [A]mendment violation when, as in this case, the refusal to

  testify does not automatically lead to sanctions.” Rosenberg v. Bd.

  of Educ., 710 P.2d 1095, 1100 n.11 (Colo. 1985).

¶ 34   In Asplin, a division of this court held that although in a

  criminal case instructing the jury that it may draw an inference of

  guilt from a defendant’s failure to testify about facts relevant to his

  case is reversible error, in a civil case a party’s refusal to answer

  questions by asserting the Fifth Amendment privilege against

  self-incrimination may be the basis for an inference that the answer

  would have been unfavorable to him. 687 P.2d at 1331-32.

                              D. Application

¶ 35   Father argues, as he did below, that Asplin is inapposite

  because he did not assert his privilege against self-incrimination as

  a reason for declining to testify at the termination hearing. Instead,

  father continues, because he merely chose not to put on evidence,

  the court could not draw an adverse inference from this decision.

¶ 36   In closing argument, father’s counsel understandably

  addressed whether the trial court could draw an adverse inference.

  After all, the court had raised Asplin sua sponte. But by any fair

  reading, the record tells us that the trial court did not draw an


                                     14
  adverse inference from father’s failure to testify or otherwise put on

  evidence. Still, father persists with this argument on appeal.

¶ 37      True enough, in the court’s oral findings, it recognized “[t]he

  question about [father] not participating in the second polygraph

  examination and whether that can be used to draw an adverse

  inference.” But then the court explained that, as with any

  respondent parent’s failure to comply with a portion of a treatment

  plan:

               I would draw an adverse inference from that
               behavior. [Father] made a decision. And the
               reason for the decision doesn’t really matter
               too much. He knew what was required, I’m
               convinced of that. He knew how to meet the
               requirement, and I’m convinced of that. He
               made a decision to stop complying.

¶ 38      In the written “Order Concerning Motion to Terminate Parent

  Child Relationship,” the trial court noted only that father had not

  testified. Then, and without making any reference to either Asplin

  or drawing adverse inferences, the court found — from the

  testimony of other witnesses and not disputed by father — that he

  did not participate in a polygraph examination as required by the




                                       15
  denier’s treatment element of his treatment plan.5 As a result, the

  court further found that “father failed to complete the treatment

  plan.” The record supports the court’s holding that father’s failure

  to successfully complete his denier’s treatment — because he did

  not participate in a required polygraph examination — was similar

  to holding that a parent’s failure to participate in any other activity

  required by the parent’s treatment plan, such as drug testing to

  complete substance abuse treatment, resulted in a lack of

  compliance with the treatment plan.

¶ 39   Therefore, we conclude that when father failed to present

  evidence, the court did not improperly shift the burden of proof,

  infringe on father’s privilege against self-incrimination, or draw

  impermissible adverse inferences.

                     IV. Sufficiency of the Evidence

¶ 40   Finally, father contends MCDSS did not prove its case by clear

  and convincing evidence. Specifically, he asserts the absence of


  5 Although we discern no principled difference between the court’s
  oral findings and its written order, “when a court makes oral
  findings and conclusions that differ from its final written rulings,
  the final written order controls.” Thyssenkrupp Safway, Inc. v.
  Hyland Hills Parks & Recreation Dist., 271 P.3d 587, 589 (Colo. App.
  2011).

                                     16
  such evidence that he had sexually abused L.K., which was the

  basis for the petition in dependency and neglect. We reject this

  contention because the question of father’s wrongdoing was not at

  issue in the termination hearing.

                       A. Additional Background

¶ 41   In terminating father’s parental rights based on his failure to

  complete his treatment plan, the court did not make any findings

  whether father had sexually abused L.K. And the court specifically

  noted in its termination order that whether father in fact sexually

  abused L.K. was not an issue for it to decide at the termination

  hearing. Instead, the court found that the issue before it was

  whether father had complied with his treatment plan. Ultimately,

  the court concluded that because father had not completed his

  treatment plan, it had not been successful in rehabilitating him.

                B. Preservation and Standard of Review

¶ 42   In his closing argument to the trial court, father’s counsel

  asserted that MCDSS had failed to present clear and convincing

  evidence that father had sexually molested L.K. Counsel also

  argued that father should not have been required to participate in

  and complete an SOMB-type treatment program, which was


                                      17
  “designed for failure” because completion of such treatment was not

  possible within a year, as required in an expedited permanency

  planning case.

¶ 43      “In determining whether the evidence is sufficient to sustain

  an adjudication, we review the record in the light most favorable to

  the prevailing party, and we draw every inference fairly deducible

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

  of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).

                                   C. Law

¶ 44      A child may be adjudicated dependent and neglected if any of

  the circumstances set forth in section 19-3-102, C.R.S. 2015, is

  admitted or proven to exist. For example, a child may be deemed

  dependent and neglected if “[a] parent . . . has subjected him or her

  to mistreatment or abuse” as provided in section 19-3-102(1)(a).

  But proof of abuse would not be necessary if the child is determined

  to be dependent and neglected on other grounds, such as lack of

  proper parental care as provided in section 19-3-102(1)(b). And

  L.K. had been adjudicated dependent and neglected in November

  2013, based on father’s stipulation that she lacked proper parental

  care.


                                      18
¶ 45   A court may terminate parental rights if it determines that the

  criteria in section 19-3-604, C.R.S. 2015, have been established by

  clear and convincing evidence. And under section 19-3-604(1)(c), a

  parent’s failure to comply with or successfully complete an

  appropriate treatment plan approved by the court is a factor that

  the court may consider in determining whether the criteria for

  termination have been established. Such a treatment plan is one

  that “sets out a course of action that will ‘help the parent overcome

  those difficulties which led to a finding that the child was neglected

  [and] dependent.’” E.S.V. v. People, 2016 CO 40, ¶ 35 (quoting

  People in Interest of C.A.K., 652 P.2d 603, 610 (Colo. 1982)).

                             D. Application

¶ 46   The question before the court at the termination stage was not

  whether a factual basis for adjudicating L.K. dependent and

  neglected existed. That basis had already been established.

  Instead, MCDSS had the burden of proving the criteria for

  termination, including, as the court noted, father’s failure to comply

  with his treatment plan.

¶ 47   Because MCDSS was not required to prove that father had

  sexually abused L.K. to establish that at least one of the


                                    19
  termination criteria set forth in section 19-3-604(1)(c) had been

  met, and he does not contend that the evidence is otherwise

  insufficient, we reject his contention that the evidence was

  insufficient to support the judgment.

                        V. Attorney Fees Sanction

¶ 48   On cross-appeal, MCDSS contends the trial court erred in

  assessing attorney fees against it for discovery violations in the

  absence of a case management order, a court order mandating

  discovery, or a stipulation as to discovery. It further contends the

  trial court erred in assessing attorney fees against a governmental

  entity, at least without finding a C.R.C.P. 11 violation. Addressing a

  novel question in Colorado, we conclude that sovereign immunity

  precludes orders assessing attorney fees against a governmental

  entity for discovery violations.6

                        A. Additional Background

¶ 49   Both parties chose to handle discovery in a more formal

  manner than is typical of a juvenile court proceeding. Father

  propounded formal discovery requests to MCDSS. MCDSS filed a

  6We express no opinion on the application of sovereign immunity to
  a monetary sanction against a governmental entity in any other
  context.

                                      20
  “Certificate of Compliance Pursuant to [C.R.C.P.] 26(a)(1)” to

  document each group of documents produced.

¶ 50   On May 9, 2014, father moved to compel discovery, asserting

  that although MCDSS had produced sixty-two pages of “alleged

  discovery,” those documents did not include anything in several

  categories that had been requested several months earlier, and

  MCDSS had not responded to an interrogatory submitted at the

  same time. He requested an order compelling MCDSS to respond to

  his discovery requests as well as sanctions.

¶ 51   Several months later, MCDSS responded to the motion to

  compel, explaining that it had not responded earlier because the

  attorney for MCDSS believed that the “remainder of discovery”

  sought by father had been provided to him on May 13, 2014. Citing

  section 13-17-102(8), C.R.S. 2015, which provides that section

  13-17-102 “shall not apply to . . . matters brought under the

  provisions of the ‘Colorado Children’s Code,’” MCDSS also argued

  that attorney fees could not be awarded in juvenile matters. Father

  replied, detailing his reasons for dissatisfaction with the response to

  his discovery requests and renewing his request for sanctions.




                                    21
¶ 52   During a later review hearing, the motion to compel was

  raised, the trial court asked about sovereign immunity, the parties

  presented arguments, and an agreement on how discovery would be

  handled going forward was reached. A few weeks later, the court

  entered an order granting father’s motion for sanctions. The court

  approved the new “open file” policy that MCDSS was adopting, but

  it found that a discovery violation had occurred. Adding that “this

  is not the first time that this court has heard similar complaints”

  about MCDSS, the court ordered MCDSS to pay $400 to father’s

  attorney as a sanction under C.R.C.P. 37.

¶ 53   MCDSS moved to vacate the sanction order under C.R.C.P. 59.

  The court denied the motion without comment.

                B. Preservation and Standard of Review

¶ 54   The same challenges to the attorney fees award that MCDSS

  asserts on appeal were addressed in the trial court.

¶ 55   Discovery rulings are within the discretion of the trial court

  and will not be disturbed absent an abuse of discretion. People in

  Interest of S.G., 91 P.3d 443, 450 (Colo. App. 2004). The court’s

  decision on imposing sanctions under C.R.C.P. 37 is also reviewed

  for an abuse of discretion. Winkler v. Shaffer, 2015 COA 63, ¶ 7. A


                                    22
  court abuses its discretion when it misunderstands or misapplies

  the law. Reisbeck, LLC v. Levis, 2014 COA 167, ¶ 7.

¶ 56   Sovereign immunity raises a jurisdictional issue. Springer v.

  City & Cty. of Denver, 13 P.3d 794, 798 (Colo. 2000). If the issue

  involves a factual dispute, the clearly erroneous standard of review

  applies to the trial court’s findings of jurisdictional fact. But where

  the facts are undisputed, the appellate court reviews this issue de

  novo. Id.; see also Churchill v. Univ. of Colo., 293 P.3d 16, 25 (Colo.

  App. 2010) (collecting cases), aff’d, 2012 CO 54.

                                  C. Law

¶ 57   A party may move to compel disclosure and for appropriate

  sanctions if another party fails to make a disclosure required by

  C.R.C.P. 26(a). C.R.C.P. 37(a)(2)(A). But C.R.C.P. 26, which

  governs disclosure and discovery in most civil matters, does not

  apply in expedited proceedings “[u]nless otherwise ordered by the

  court or stipulated by the parties.” C.R.C.P. 26(a). A motion to

  compel is also available if a party fails to respond to formal

  discovery, such as by not answering an interrogatory or producing

  documents requested by the discovering party. C.R.C.P. 37(a)(2)(B).

  But because C.R.C.P. 37 does not contain similar language limiting


                                    23
  its application in expedited proceedings, the question remains

  whether this rule could apply where Rule 26 did not.

¶ 58   If a motion to compel is granted, or if the requested discovery

  is provided after the motion was filed, the court may require the

  party whose conduct necessitated the motion, that party’s attorney,

  or both to pay to the moving party the reasonable expenses

  incurred in making the motion. Even so, attorney fees should not

  be awarded if the court finds that either the moving party did not

  first make a good faith effort to obtain the discovery without court

  action, or the opposing party’s response was substantially justified

  or that other circumstances make an award of expenses manifestly

  unjust. C.R.C.P. 37(a)(4)(A).

                             D. Application

                 1. Availability of Discovery Sanctions

¶ 59   MCDSS argues that the court lacked authority to impose

  sanctions under C.R.C.P. 37 in the absence of either an agreement

  between the parties to conduct discovery under C.R.C.P. 26 or a

  court order mandating discovery and requiring the parties to

  conduct it under C.R.C.P. 26. Even if we assume that the trial

  court could impose sanctions under C.R.C.P. 37(a)(4)(A) without


                                    24
  having first entered an order making Rule 26(b) applicable, because

  MCDSS is a governmental entity, our inquiry must address

  sovereign immunity.

                          2. Sovereign Immunity

¶ 60   In 1971, citing the injustice and inequity that often resulted

  from the application of the doctrines of sovereign immunity and

  governmental immunity, the Colorado Supreme Court abrogated

  these doctrines for causes of action arising after June 30, 1972.

  Evans v. Bd. of Cty. Comm’rs, 174 Colo. 97, 99-106, 482 P.2d 968,

  969-72 (1971). The court declared that the situation was “in the

  hands of the General Assembly,” which had the authority to restore

  sovereign immunity and governmental immunity in whole or in

  part, if it wished to do so. Id. at 105, 482 P.2d at 972.

¶ 61   The General Assembly responded by enacting the Colorado

  Governmental Immunity Act (CGIA), currently codified at sections

  24-10-101 to -120, C.R.S. 2015. With certain exceptions not

  applicable here, section 24-10-108, C.R.S. 2015, provides that

  “sovereign immunity shall be a bar to any action against a public

  entity for injury which lies in tort or could lie in tort regardless of

  whether that may be the type of action or the form of relief chosen


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  by a claimant.” Injury is defined as “death, injury to a person,

  damage to or loss of property, of whatsoever kind, which, if inflicted

  by a private person, would lie in tort or could lie in tort.”

  § 24-10-103(2), C.R.S. 2015.

¶ 62   This definition of injury shows why the CGIA is inapplicable to

  discovery sanctions. The “injury” sustained by a party who has

  been disadvantaged by another party’s failure to comply with rules

  governing discovery is not “death, injury to a person, damage to or

  loss of property, of whatsoever kind, which, if inflicted by a private

  person, would lie in tort or could lie in tort.” And, although torts

  involving litigation have been recognized in Colorado — see, e.g.,

  Mintz v. Accident & Injury Med. Specialists, PC, 284 P.3d 62, 65-66

  (Colo. App. 2010) (discussing abuse of process and malicious

  prosecution), aff’d, 2012 CO 50 — we are unaware of any Colorado

  authority treating failure to comply with discovery rules as a tort.

¶ 63   For these reasons, we conclude that the CGIA does not apply

  to discovery sanctions. But this conclusion only circles back to

  Evans, which ended governmental and sovereign immunity. So,

  how could immunity still preclude the sanction at issue?




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¶ 64   Colorado procedural rules and cases construing those rules

  provide some guidance. For example, under C.R.C.P. 54(d):

             Except when express provision therefor is
             made either in a statute of this state or in
             these rules, reasonable costs shall be allowed
             as of course to the prevailing party considering
             any relevant factors which may include the
             needs and complexity of the case and the
             amount in controversy. But costs against the
             state of Colorado, its officers or agencies, shall
             be imposed only to the extent permitted by law.

  (Emphasis added.) In City & County of Broomfield v. Farmers

  Reservoir & Irrigation Co., 239 P.3d 1270, 1278-79 (Colo. 2010), our

  supreme court noted that this rule serves to “protect the public

  treasury, which, in turn, is consistent with the concept that the

  government cannot be sued without its consent.” The court further

  observed that “[t]he legislature alone has the power to balance the

  interests between protecting the public against excessive financial

  burdens and allowing individual parties to sue the government.” Id.

  at 1279.

¶ 65   Still, the specific question before us — whether sovereign

  immunity bars an award of attorney fees against a public entity

  under C.R.C.P. 37 — remains unresolved in Colorado. Because the

  state and federal versions of Rule 37 are substantially similar,


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  federal court decisions provide guidance in construing C.R.C.P. 37.

  Garcia v. Schneider Energy Servs., Inc., 2012 CO 62, ¶ 7.

¶ 66   To be sure, some federal courts have ordered monetary

  sanctions against government attorneys, citing statutory language

  or procedural rules as authority for doing so. See, e.g., Chilcutt v.

  United States, 4 F.3d 1313, 1325-27 (5th Cir. 1993) (affirming order

  requiring government attorney to personally reimburse plaintiffs for

  attorney fees incurred because of the government’s discovery

  abuse). Based on 28 U.S.C. § 2412 (2012), a provision of the Equal

  Access to Justice Act (EAJA), the Chilcutt court concluded that

  Congress intended to subject the government and its attorneys to

  Fed. R. Civ. P. 37(b)(2)(E) (now found at Fed. R. Civ. P. 37(b)(2)(C)),

  under which the court could order “the recalcitrant party, the

  attorney, or both” to pay reasonable expenses, including attorney

  fees, to the opposing party for violations of discovery orders. 4 F.3d

  at 1326. The court noted that the EAJA specifically deleted

  subsection (f) of Rule 37, which had precluded courts from

  imposing discovery sanctions on the United States. Id. at 1325-26.

¶ 67   At the same time, federal courts have been reluctant to impose

  monetary sanctions against a government agency — as opposed to a


                                     28
  government attorney — absent language that specifically authorizes

  such sanctions. “[A] provision authorizing sanctions does not

  automatically waive sovereign immunity, and thus does not apply,

  without more, to fee awards against the government.” In re

  Graham, 981 F.2d 1135, 1139-40 (10th Cir. 1992) (finding no

  waiver of sovereign immunity “sufficiently explicit” in the Federal

  Rules of Bankruptcy Procedure to justify awarding fees against the

  government for, among other things, failure to produce certain

  documents).

¶ 68   In other words, “[a] waiver of the Federal Government’s

  sovereign immunity must be unequivocally expressed in statutory

  text,” and will not be implied. Lane v. Pena, 518 U.S. 187, 192

  (1996). Thus, although generally “it is unassailable that a court’s

  inherent authority includes the power to assess attorneys’ fees or

  other monetary fines against either parties or their attorneys,”

  absent a waiver of sovereign immunity, that power “does not

  encompass the authority to impose monetary sanctions against the

  government.” Alexander v. Fed. Bureau of Investigation, 541 F.

  Supp. 2d 274, 301 (D.D.C. 2008).




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¶ 69   C.R.C.P. 37(a)(4)(A) permits a trial court to order a party, that

  party’s attorney, or both to pay the “reasonable expenses” incurred

  by an opposing party who has had to file a motion to compel as a

  result of the failure of the party or the party’s attorney to make

  disclosures or provide discovery as required by the rules governing

  discovery. But C.R.C.P. 37 does not expressly authorize an award

  against a public entity. Nor are we aware of any Colorado authority

  that permits such an award.

¶ 70   Given all this, we conclude that the trial court’s sanctions

  order must be set aside.

                             VI. Conclusion

¶ 71   The judgment terminating the parent-child legal relationship

  between father and L.K. is affirmed. The order requiring MCDSS to

  pay $400 to father’s attorney, as well as the order denying post-trial

  relief to MCDSS, is reversed.

       JUDGE ASHBY and JUDGE HARRIS concur.




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