People v. T.K. and J.M , 417 P.3d 875 ( 2017 )

COLORADO COURT OF APPEALS 2017COA70
Court of Appeals No. 16CA0975
Weld County District Court No. 15JV278
Honorable Elizabeth B. Strobel, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of H.K.W., a Child,
and Concerning J.W. and A.M.,
Respondents-Appellants,
and
T.K. and J.M.,
Intervenors-Appellees.
ORDER
Division II
Opinion by JUDGE DAILEY
J. Jones and Berger, JJ., concur
Announced May 18, 2017
No Appearance for Petitioner-Appellee
Scott A. Jameson, Guardian Ad Litem
Carrie Ann Lucas, Windsor, Colorado, for Respondent-Appellant J.W.
Hopkins Law, LLC, Laurie L. Strand, James W. Hopkins, Loveland, Colorado,
for Respondent-Appellant A.M.
Law Office of Keren C. Weitzel, LLC, Keren C. Weitzel, Longmont, Colorado, for
Intervenors-Appellees
¶1 In this dependency and neglect proceeding, J.W. (father) and
A.M. (mother) appeal the trial court’s judgment allocating parental
responsibilities of their daughter, H.K.W. (the child), to J.M. and
T.K. (special respondents).
¶2 This case involves matters of first impression, to wit: (1)
whether a trial court may conduct an in camera interview with a
child who is the subject of an allocation of parental responsibilities
proceeding arising from a dependency and neglect action; and, if
the trial court conducts such an interview, (2) whether the court
must cause a record of the interview to be created and then make
that record available to the parents.
¶3 We conclude that the Children’s Code permits a trial court to
conduct an in camera interview with a child, and that due process
requires that a record of the interview be created and, at least in
certain circumstances, be made available upon request to the
parents. Because the trial court in this case relied on the in camera
interview of the child while denying the parents access to a
transcript of that interview, we order that the record on appeal be
supplemented with the transcript of the in camera interview. We
further order that the parties be allowed to file supplemental briefs
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addressing whether the trial court’s findings of fact from the
interview are supported by the record. We will issue an opinion
addressing the merits of the appeal following the completion of
supplemental briefing.
I. Background
¶4 The Weld County Department of Human Services (the
Department) filed a dependency or neglect petition regarding the
six-year-old child based on allegations of father’s and mother’s
substance abuse; that the child had seen mother’s boyfriend being
kidnapped from the home; that the child had missed a lot of school;
and that the family had been involved in two prior dependency and
neglect cases because of substance abuse, lack of supervision, and
domestic violence. The child was removed from the home and
initially placed with father. Three days later, the child was placed
with the special respondents. Notably, in the prior dependency and
neglect cases, the child also had been placed with the special
respondents.
¶5 Based on father’s and mother’s admissions, the trial court
adjudicated the child dependent or neglected. The court adopted
treatment plans, with which father and mother complied.
2
¶6 Father, mother, and the special respondents later moved for
an allocation of parental responsibilities. At a hearing, the child’s
guardian ad litem (GAL) moved for an in camera interview with the
child.1 None of the parties objected. The trial court agreed to
interview the child and told the parties that it would have a record
made of the in camera interview and that a transcript of the
interview would be sealed unless “the matter is appealed.” Again,
none of the parties objected.
¶7 Shortly thereafter, the trial court conducted an in camera
interview with the child. The interview was recorded but not
transcribed. None of the parties requested a transcript of the
interview.
¶8 After a subsequent hearing, the trial court found as follows:
 the child had been the subject of three dependency and
neglect cases;
 the child told the court that she wanted to stay with the
special respondents;
1The GAL filed a written motion to that effect as well after the
hearing.
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 the child’s primary attachment and bond was with the
special respondents;
 the child needed stability and permanency;
 even though father and mother had complied with their
treatment plans, they were unfit;
 father and mother had criminal histories that included
domestic violence and child abuse;
 father and mother had not demonstrated sobriety,
stability, and ongoing parental consistency “for a decent
enough period of time”; and
 father and mother had exposed the child to domestic
violence, drug addiction, and a criminal lifestyle, and had
neglected the child’s needs “for too long.”
¶9 In making its findings, the trial court relied extensively on the
child’s statements during the in camera interview. The court then
allocated parental responsibilities to the special respondents and
set forth a parenting time schedule for father and mother.
¶ 10 Father and mother appealed, and father requested a transcript
of the trial court’s in camera interview of the child. Although it had
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previously indicated that it would do otherwise, the trial court
denied father’s motion.2
II. Interviewing the Child and Making
a Record Thereof Available to the Parents
¶ 11 Father and mother contend that the trial court erred by relying
on the in camera interview with the child, which was not admitted
into evidence, as the basis for its decision to allocate parental
responsibilities to the special respondents. In particular, they
assert that their due process rights were violated because, without
access to the transcript of the interview, they were unable to contest
the courts findings or the information on which the court relied in
making its findings. We agree in part.
¶ 12 In dependency and neglect proceedings, the trial court has
jurisdiction to allocate parental responsibilities between parents
and nonparents. §§ 19-1-104(4), (6); 19-3-508(1)(a), C.R.S. 2016;
L.A.G. v. People in Interest of A.A.G., 912 P.2d 1385, 1390-91 (Colo.
1996).
¶ 13 Under the Children’s Code, the trial court must allocate
parental responsibilities based on the best interests of the child and
2 A single judge of this court also denied a motion for access to the
transcript.
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the public. § 19-3-507(1)(a), C.R.S. 2016; L.A.G., 912 P.2d at 1391
(In determining custody, “a juvenile court must fashion a custodial
remedy that serves the public as well as the best interests of the
child.”). The court may consider the best interest factors listed in
the Uniform Dissolution of Marriage Act (UDMA), section
14-10-124(1.5)(a), C.R.S. 2016, as long as the focus is on the
protection and safety of the child and not on the “custodial
interests” of the parents. L.A.G., 912 P.2d at 1391-92; People in
Interest of M.D., 2014 COA 121, ¶ 12; People in Interest of C.M., 116
P.3d 1278, 1282 (Colo. App. 2005). As now relevant, the court may
consider the “wishes of the child if he or she is sufficiently mature
to express reasoned and independent preferences as to the
parenting time schedule.” § 14-10-124(1.5)(a)(II).
A. Was the Court Allowed to Interview the Child?
¶ 14 The Children’s Code does not contain a provision specifically
allowing a court to conduct an in camera interview with a child.
However, under section 19-1-106(5), C.R.S. 2016, a child “may be
heard separately when deemed necessary” by the court.
¶ 15 In contrast, the UDMA specifically provides that the “court
may interview the child in chambers to ascertain the child’s wishes
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as to the allocation of parental responsibilities.” § 14-10-126(1),
C.R.S. 2016.
¶ 16 We have acknowledged that the UDMA procedures are not
always useful in accomplishing the goals of the Children’s Code.
People in Interest of D.C., 851 P.2d 291, 294 (Colo. App. 1993) (a
dependency and neglect proceeding concerns different matters and
fulfills a different purpose than a UDMA proceeding). However,
given that a trial court may consider a child’s separately stated
wishes when deciding how to allocate parental responsibilities in
both a dependency and neglect proceeding and a UDMA proceeding,
looking to the UDMA in this instance is helpful. See B.G.’s, Inc. v.
Gross, 23 P.3d 691, 694 (Colo. 2001) (consideration of other
statutes dealing with the same subject can be useful in deciding
questions of statutory interpretation).
¶ 17 Reading sections 19-1-106(5) and 14-10-126 together, we
conclude that a trial court is permitted to conduct an in camera
interview with a child to determine a child’s best interests and how
to allocate parental responsibilities within a dependency and
neglect proceeding.
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¶ 18 Our conclusion in this regard is bolstered by recognizing that
permitting an in camera interview with a child would enable the
trial court to ascertain the child’s custodial preference while (1)
lessening the ordeal for the child by eliminating the harm a child
might suffer from exposure to the adversarial nature of the
proceedings; (2) enhancing the child’s ability to be forthcoming; and
(3) protecting the child from the “tug and pull of competing
custodial interests.” Ynclan v. Woodward, 237 P.3d 145, 150-51
(Okla. 2010).
B. Was the Court Required to Create a Record of the Interview?
¶ 19 The Children’s Code does not address whether a record of an
in camera interview with a child must be made. The UDMA, in
contrast, requires the trial court to “cause a record of the interview
to be made, and it shall be made part of the record in the case.”
§ 14-10-126(1).
¶ 20 Case law from numerous other jurisdictions parallels the
UDMA requirement. See Ex parte Wilson, 450 So. 2d 104, 106-07
(Ala. 1984) (due process requires that in camera interview with
minor children in custody dispute be recorded); N.D. McN. v. R.J.H.,
979 A.2d 1195, 1201 (D.C. 2009) (due process and state statute
8
require that an in camera interview with the children be recorded);
Strain v. Strain, 523 P.2d 36, 38 (Idaho 1974) (in camera interview
with the children must be recorded to determine if the interview
supports the trial court’s decision); Hutchinson v. Cobb, 90 A.3d
438, 442 (Me. 2014) (trial court is responsible for recording in
camera interviews); In re H.R.C., 781 N.W.2d 105, 113-14 (Mich. Ct.
App. 2009) (use of unrecorded in camera interviews violates
parents’ due process rights); Robison v. Lanford, 841 So. 2d 1119,
1124-26 (Miss. 2003) (documentation of in camera interview with
children must be made and be part of the record); Williams v. Cole,
590 S.W.2d 908, 911 (Mo. 1979) (error is presumed if a trial court
interviews the children in chambers without making a record);
Donovan v. Donovan, 674 N.E.2d 1252, 1255 (Ohio Ct. App. 1996)
(requiring the trial court to make a record of an in camera interview
with children involved in custody proceedings); Stolarick v. Novak,
584 A.2d 1034, 1038 n.1 (Pa. Super. Ct. 1991) (testimony of in
camera interviews must be transcribed and made part of the
record).
¶ 21 Two compelling reasons exist for requiring that a record be
made of an in camera interview of a child: (1) to ensure record
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support for a trial court’s reliance on a child’s testimony during the
in camera interview; and (2) to permit meaningful appellate review
of the evidence relied on by the trial court in determining the child’s
best interests. See Wilson, 450 So. 2d at 106-07; N.D. McN., 979
A.2d at 1201; Strain, 523 P.2d at 38; Hutchinson, 90 A.3d at 442;
H.R.C., 781 N.W.2d at 114; Robison, 841 So. 2d at 1124-26;
Williams, 590 S.W.2d at 911; T.N.-S., 347 P.3d at 1270; Donovan,
674 N.E.2d at 1255; see also Jenkins v. Jenkins, 269 P.2d 908,
910-11 (Cal. Ct. App. 1954) (It would be wise for “the court to make
a record of such interviews with children in custody cases in order
to protect itself against any suspicion of unfairness on the part of
the parent against whom the decision is rendered.”); cf. Kuzara v.
Kuzara, 682 P.2d 1371, 1373 (Mont. 1984) (“[T]he record and the
court’s findings should reflect the child’s wishes” because otherwise
“the interview is an empty exercise.”).
¶ 22 Persuaded by these authorities, we conclude that, unless
waived by the parties, a record of the interview must be made. A
record of the interview was made in this case.
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C. Were the Parents Entitled
to Access a Transcript of the Interview?
¶ 23 The next issue before us is whether the trial court must also
allow the record of an in camera interview with a child to be made
available to the parents. Neither the Children’s Code nor section
14-10-126 addresses this issue. Nonetheless, a division of this
court has held that the purpose of making a record of an in camera
interview of a child is “for the benefit of the parties.” In re Marriage
of Armbeck, 33 Colo. App. 260, 261, 518 P.2d 300, 301 (1974).
¶ 24 Many jurisdictions have determined that the record of an in
camera interview with a child in a custody proceeding must be
made available to the parents, at least in certain circumstances.
See N.D. McN., 979 A.2d at 1201; In re Marriage of Hindenburg, 591
N.E.2d 67, 69 (Ill. App. Ct. 1992); Holt v. Chenault, 722 S.W.2d 897,
898-99 (Ky. 1987); Nutwell v. Prince George’s Cty. Dep’t of Soc.
Servs., 318 A.2d 563, 568 (Md. Ct. Spec. App. 1974); Abbott v.
Virusso, 862 N.E.2d 52, 60 (Mass. App. Ct. 2007); Callen v. Gill, 81
A.2d 495, 498 (N.J. 1951); Muraskin v. Muraskin, 336 N.W.2d 332,
335 n.2 (N.D. 1983); Inscoe v. Inscoe, 700 N.E.2d 70, 85 (Ohio Ct.
App. 1997); Hasse v. Hasse, 460 S.E.2d 585, 590 (Va. Ct. App.
11
1995); Rose v. Rose, 340 S.E.2d 176, 179 (W. Va. 1985); cf. Ynclan,
237 P.3d at 158 (to have access to the transcript of the in camera
interview of the child, the parent must appeal the custody
determination).
¶ 25 The following reasons favor allowing parents access to the
record of the in camera interview with the child:
 The child’s interview is part of a court proceeding. N.D.
McN., 979 A.2d at 1201.
 To the extent that a court relies on the child’s statements
during the interview, a parent is prejudiced by his or her
inability to challenge or rebut the child’s statements or
contest the court’s custody determination. See Holt, 722
S.W.2d at 899; Inscoe, 700 N.E.2d at 85; Rose, 340 S.E.2d
at 179; see also Molloy v. Molloy, 637 N.W.2d 803, 809
(Mich. Ct. App. 2001) (“[I]nformation [from an in camera
interview with the child] detrimental to the parent seeking
custody may influence a judge’s decision without any
guarantees as to its accuracy.”), aff’d in part and vacated in
part, 643 N.W.2d 574 (Mich. 2002).
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 Due process and fundamental fairness require that a parent
have access to the content of the interview. Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281,
288 n.4 (1974) (“A party is entitled, of course, to know the
issues on which decision will turn and to be apprised of the
factual material on which the [decision-maker] relies for
decision so that he may rebut it. Indeed, the Due Process
Clause forbids [a decision-maker] to use evidence in a way
that forecloses an opportunity to offer a contrary
presentation.”); see N.D. McN., 979 A.2d at 1201 (“In order
to have an opportunity for meaningful presentation of
evidence and argument, a litigant must have access, both in
the trial court and on appeal, to the evidence that can be (or
has been) used by the judge in ruling against her.”);
Denningham v. Denningham, 431 A.2d 755, 760 (Md. Ct.
Spec. App. 1981) (“[O]ne of the cornerstones of our system
of justice” is “the right of the parties to be aware of all of the
evidence considered by the trier of fact” and “the
opportunity to challenge and answer that evidence. . . .
However sensitive the material may be, a party has a right
13
to know what evidence is being considered by the court in
judging his case. A custody case can no more be tried and
decided upon secret ex parte evidence than any other
proceeding.”); In re T.N.-S., 347 P.3d 1263, 1270 (Mont.
2015) (due process requires disclosure of the transcript of
an in camera interview when the trial court relies on the
information from the interview in its decision); Muraskin,
336 N.W.2d at 335 n.2 (“A party to any procedure is entitled
to know what evidence is used or relied upon and has a
right generally to present rebutting evidence or to
cross-examine . . . .”); see also H.R.C., 781 N.W.2d at 114
(Without access to the record of the in camera interview of
the child, a parent has “no opportunity to learn what
testimony was elicited or to counter the information
obtained, and no way of knowing how that information may
have influenced the court’s decision.”).
¶ 26 Making the record of an in camera interview with a child
available “serve[s] to protect a parent’s due process rights to a fair
trial, foster the state’s ultimate goal of protecting the best interests
of the child, and decrease the possibility that child custody
14
decisions will be based on inaccurate information.” Molloy, 637
N.W.2d at 811.
¶ 27 Persuaded by these authorities, we conclude that a record of
an in camera interview with a child must be made available, upon
request, to parents in certain circumstances. There are, obviously,
reasons why in camera interviews with children are held in the first
place. Children might be intimidated by having to appear in court.
They might also be reluctant to speak freely and honestly to the
court if they knew that the contents of the interview would be made
available to the parents as a matter of course.
¶ 28 Consequently, we limit our holding that the record of an in
camera interview must be made available, upon request, to
situations in which a parent needs (1) to determine whether the
court’s findings, insofar as they relied on facts from the interview,
are supported by the record, or (2) an opportunity to contest
information supplied by the child during the interview and relied on
by the court. In re T.N.-S., 347 P.3d at 1271 (“Due process
considerations may require disclosure in certain instances,
particularly where the district court relies on information from the
interviews in reaching its determination.”).
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¶ 29 In this case, because the parents were unaware of the content
of the child’s in camera interview, they were unable to address,
challenge, or rebut, either in a post-trial motion or on appeal, the
child’s statements or the trial court’s findings as to the child’s
wishes regarding custodial preference. However, the parents
requested access to a transcript of the in camera interview only
after they had filed their notice of appeal. By not requesting access
earlier (say, in a post-trial, pre-appeal motion), the parents waived
their right to access the transcript for the purpose of rebutting any
information presented during the interview. They did not, though,
waive their right to access the transcript for the purpose of
contesting the bases for the court’s findings related to the interview.
The trial court erred, then, in not ordering the transcript to be made
and made part of the record in this appeal. See Holt, 722 S.W.2d at
899 (The parties were prejudiced by lack of access to the sealed
transcript to “the extent the trial court relied on the child’s
statements.”).
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IV. Conclusion
¶ 30 The trial court is ordered to have the in camera interview
transcribed and transmitted, as a suppressed document,3 to this
court as a supplement to the record on appeal. The supplemental
record, properly certified by the trial court, is due 21 days from the
date of this order. Within fourteen days of the filing of the
supplemental record the parents may, if they so choose, file
supplemental briefs, not to exceed 10 pages or 3,500 words,
addressing whether the trial court’s findings of fact from the
interview are supported by the record. The other parties may file
supplemental briefs in response, not to exceed 10 pages or 3,500
words, addressing the same issue within fourteen days of the filing
of the parents’ supplemental brief(s).
JUDGE J. JONES and JUDGE BERGER concur.
3 Court records are not accessible to the public in dependency and
neglect proceedings. Chief Justice Directive 05-01, Public Access to
Court Records, § 4.60(b)(2) (amended October 2016). Suppressed
records are ordinarily accessible only by judges, court staff, parties
to the case, and if represented, their attorneys. Id. at § 3.08.
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