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 

¶ 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. 
2 

¶ 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 
3 

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.
4 

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 
5 

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 
6 

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 
7 

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. 
8 

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. 
9 

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 
10 

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 
11 

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 
12 

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 

 

4 Article II, section 18 of the Colorado Constitution similarly 

provides that “[n]o person shall be compelled to testify against 
13 

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. 
14 

[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 
15 

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 
16 

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). 
17 

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 
18 

“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. 
19 

¶ 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 
20 

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 

 

6 We express no opinion on the application of sovereign immunity to 

a monetary sanction against a governmental entity in any other 

context. 
21 

“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. 
22 

¶ 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 
23 

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 
24 

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 
25 

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 
26 

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? 
27 

¶ 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, 
28 

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 
29 

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). 
30 

¶ 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.