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-ofthe-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. 

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. 
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 

¶ 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 
2 

[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 
3 

“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. 
4 

¶ 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 
5 

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. 
6 

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. 
7 

¶ 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 
8 

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 
9 

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. 
10 

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. 
11 

¶ 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 
12 

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 
13 

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 
14 

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. 
15 

¶ 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 
16 

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 
17 

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) 
18 

(“[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. 
19 

 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. 
20 

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 
21 

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. OfrayCampos, 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). 
22 

¶ 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.” 
23 

¶ 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 CJICiv. 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. 
24 

¶ 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. 
25 

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 
26 

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. 
27 

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 
28 

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 
29 

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. 
30 

¶ 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.
31 

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. 
32 

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). 
33 

¶ 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 
34 

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.