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Colorado Court of Appeals Opinions
December 22, 2011

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 08CA1884. People v. Marsh.
Sexual Assault on a Child—Sexual Exploitation of a Child—Evidence—Internet Cache—Possession—Psychologist–Patient Privilege—Waiver—Continuance—Challenge for Cause—C.R.E. 404(a)—Relevance—Lay Opinion Testimony.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty on nine counts: three counts of sexual assault on a child by one in a position of trust, two counts of sexual assault on a child, two counts of sexual assault on a child as part of a pattern of abuse, one count of sexual exploitation of a child, and one count of inducement of child prostitution. The judgment was affirmed.

The charges in this case arose from incidents involving three of defendant’s granddaughters, C.S., E.M., and S.O., whose ages ranged from 9 to 11 years at the time of trial. Each of these granddaughters testified at trial that defendant took her to his basement, where she sat on his lap in front of his computer and viewed pornographic material on his computer, and that defendant sexually assaulted each of them.

Defendant contended there was insufficient evidence to support his conviction for sexual exploitation of a child as a class 4 felony, which requires that a defendant possess more than twenty items of sexually exploitative material. The presence of digital images in an Internet cache, such as the “AOL cache” in this case, can constitute evidence of a previous act of possession. Therefore, there was sufficient evidence to support defendant’s conviction.

Defendant contended that the trial court erred by refusing to allow him to question A.S. about a session she had with a psychologist and denying his request to enter the psychologist’s report of this session into evidence. A.S.’s session with the psychologist was protected by the psychologist–patient privilege. As a general matter, parents can waive privileges held by their minor children. However, the nature of a conflict between the interests of a parent and of his or her child may preclude the parent from waiving the child’s psychologist–patient privilege. Here, based on the nature of the proceedings at issue, A.S.’s mother (defendant’s daughter) lacked authority to waive A.S.’s privilege.

Defendant contended that the trial court erred by refusing to grant his requested continuance. However, defendant did not show that a continuance would prevent any prejudice, and the court found that a continuance would be highly prejudicial to the prosecution. Thus, the trial court’s decision was not arbitrary, unreasonable, or unfair.

Defendant contended that the trial court erred by denying his challenges for cause to jurors M, F, and R. Juror M stated in his juror questionnaire he had an ex-girlfriend who had been sexually assaulted by her stepfather; juror F disclosed to the court that two daughters of a friend were victims of child abuse; and juror R indicated on her juror questionnaire that she had read about the case in the local newspaper. The Court of Appeals found, after inquiring further, that all jurors would abide by the law, remain fair and impartial to both sides, and follow the court’s instructions. Therefore, the trial court acted within its discretion by relying on its own credibility determinations and did not err in denying defendant’s challenges for cause of jurors M, F, and R.

At trial, defendant sought to call two of his other granddaughters to testify that he had not sexually assaulted them. Defendant argued that the trial court erred by ruling that this proffered testimony would be admitted only as C.R.E. 404(a) character evidence and would open the door to the prosecution’s use of defendant’s prior convictions. The trial court did not abuse its discretion in finding that the proffered testimony of the other granddaughters was not relevant to whether defendant assaulted the three victims.

Defendant also challenged the trial court’s limiting of his cross-examination of C.S.’s mother, R.K., and S.O.’s mother, C.O. The trial court did not abuse its discretion in limiting defendant’s cross-examination of R.K. and C.O. as to irrelevant evidence.

Defendant also argued that the trial court erred by allowing two forensic interviewers to offer testimony that constituted expert testimony and improperly vouched for the granddaughters they interviewed. A witness may be qualified as an expert in the area of interviewing techniques, and may testify as to her qualifications, training, and techniques for interviewing children. Here, this was the testimony offered by the forensic interviewers, and neither interviewer vouched for the credibility of the children they interviewed. Therefore, the court did not err by allowing this testimony.

No. 10CA1302. In the Interest of S.N.V., and Concerning C.A.T.C.
Maternity Action—Capacity—Allocation of Parental Responsibilities—Colorado Uniform Parentage Act.

The wife of S.N.V.’s father (wife) appealed the district court’s judgment finding that she lacked capacity to bring an action under the Colorado Uniform Parentage Act (CUPA). The judgment was reversed and the case was remanded.

S.N.V. was born in 2007. It is undisputed that he was conceived through sexual intercourse between his birth mother and respondent N.M.V. (husband). However, however, usband and wife assert that they arranged with birth mother to act as a surrogate, and birth mother asserts that S.N.V.’s conception was the result of her intimate personal relationship with husband.

Birth mother sought an allocation of parental responsibilities under CRS § 14-10-123, and wife filed an action under CUPA to establish that she is S.N.V.’s legal mother. Birth mother moved to dismiss wife’s petition, arguing that wife lacked the capacity to bring an action under CUPA. The court granted birth mother’s motion to dismiss.

Wife contended that the court erred in ruling that she lacked the capacity to bring this action. The Court of Appeals agreed. Wife asserted presumptions of maternity under CRS § 19-4-105 because (1) she was married to husband at the time of S.N.V.’s conception and birth, and (2) she accepted S.N.V. into her home and has held him out to her family and community as her own child. Therefore, wife has the capacity as an “interested party” under CRS § 19-4-122 to bring this action to establish her legal maternity, even though she is not the biological mother.

Wife also argued that biology is not the only factor to consider in determining the mother–child relationship under CUPA. The Court agreed. The Colorado Supreme Court’s interpretation of CUPA also applies to maternity actions. Neither the presumption of legitimacy nor the presumption based on biology is conclusive, and competing claims must be resolved by focusing on the best interests of the child.

No. 10CA1744. Kopec v. Clements, Exec. Dir., Colorado Dep’t of Corrections.
Inmate—Sex Offender—Mental Health Records—Failure to Exhaust Administrative Remedies—Due Process.

Plaintiff Michael Kopec appealed the trial court’s summary judgment in favor of defendants, the executive director of the Colorado Department of Corrections (DOC), the warden of the Fremont Correctional Facility, and the director of the facility’s sex offender and treatment program. The judgment was affirmed.

Kopec, an inmate at the facility, was sentenced to the custody of the DOC based in part on his conviction for indecent exposure. Kopec alleged that when he entered the facility, he was classified as a sex offender; this classification later was removed and then reinstated. After learning that the classification had been reinstated, Kopec requested access to his mental health records, which defendants initially denied. Kopec then commenced this action, alleging that defendants failed to comply with CRS § 24-72-305 by preventing his review of the mental health records; arbitrarily denied him access to those records; and failed to provide him due process when initially classifying and then reclassifying him as a sex offender. The trial court granted defendants’ motion to dismiss because Kopec failed to exhaust his administrative remedies.

Kopec contended that the trial court erred by dismissing his claims for access to mental health records for failure to exhaust administrative remedies. An inmate who seeks access to his or her mental health records first must exhaust all available administrative remedies, as required by CRS § 13-17.5-102.3. Here, although this dispute arose from defendants’ decision to reclassify Kopec as a sex offender, his first two claims alleged only that defendants had improperly denied him access to his mental health records. Such claims do not fall under the classification exception of DOC Reg. 850-04(IV)(A)(5), but are within the “broad range of complaints” subject to the grievance process. Therefore, Kopec was required to complete that process before bringing a civil action to compel access to his mental health records.

Kopec also contended that the trial court erred by dismissing his due process claim because he did not participate in his initial sex offender classification and was not allowed to challenge any subsequent reclassifications. Where the inmate previously was convicted of a sex offense, the DOC need not provide a hearing because such an inmate has received the minimum protections required by due process. Kopec had been convicted of indecent exposure, which is included in the definition of sexual offense. Therefore, Kopec has received the minimum due process protections and he was not entitled to a hearing on his sex offender classifications. Accordingly, the trial court did not err in dismissing Kopec’s due process claim.

No. 10CA2234. Ferguson Enterprises, Inc. v. Keybuild Solutions, Inc.
Mechanics Lien—Foreclosure—Priority—Deed of Trust—Construction.

In this mechanics’ lien foreclosure action involving the priority of liens relative to a deed of trust, defendant Colorado Community Bank (CCB) appealed the summary judgment in favor of the following lien claimants: plaintiff Ferguson Enterprises, Inc. and defendants Keybuild Solutions, Inc., Carpenters Service Inc., Autumn Landscaping, Inc., Premier Glass Solutions, Inc., SC Design, Inc., Systems Plumbing, LLC, and Colorado Counter-Tops, Inc. (collectively, lien claimants). The judgment was reversed and the case was remanded.

Zion Development, LLC (Zion) borrowed money from FlatIron Bank (FlatIron) to become the owner of the real property involved in this action. Zion hired architects to prepare a master plan, and later defaulted on the FlatIron loan and lost the property through a foreclosure action. Thereafter, FlatIron conveyed the property to Water Tower Builders, LLC (Water Tower), which financed the purchase of the property and construction activities through two loans obtained from CCB. Water Tower hired subcontractors to perform work on the property and later defaulted on the loan to CCB and lost the property to a foreclosure sale. The court granted the lien claimants’ motion, which claimed that its mechanics’ lien had priority over CCB’s deed of trust because it was entitled to relate its lien back to the date when work performed by the architects for Zion was filed as a master plan.

CCB contended that the trial court erred in determining that the mechanics’ liens involved here had a priority senior to its deed of trust. Mechanics’ liens are not entitled to priority under CRS § 38-22-103(2) over a pre-existing deed of trust expressly intended to secure a loan for construction if (1) the deed is recorded before attachment of the mechanics’ liens; and (2) the loan proceeds are used for construction purposes. Here, CCB’s recorded deed of trust was expressly intended to secure a loan for construction, and the lien claimants had notice of such deed of trust. Further, CCB presented evidence that it disbursed loan proceeds of $1.6 million for construction purposes. Thus, CCB’s pre-existing deed of trust was entitled to priority over that of the lien claimants.

Lien claimants contended that their liens “attached” as of October 23, 2007, because their work relates back to work performed by the architects for Zion. If the architects did not actually file a lien or if any architects’ lien were junior to FlatIron’s lien on any structure or improvements, the foreclosure would have extinguished it, and the lien claimants could not relate their work back to the master plan filing. Because the record does not provide the facts necessary to determine this issue for summary judgment purposes, the case was remanded to determine whether the relation-back doctrine applies in this case.

No. 10CA2303. People in the Interest of S.N-V., and Concerning B.A.N.
Parental Rights—Termination—Treatment Plan—Waiver—Estoppel—Forfeiture.

Father appealed the judgment terminating the parental relationship with his daughter, S.N-V. The judgment was affirmed.

The Denver Department of Human Services (Department) contended that a parent’s failure to object to the treatment plan constituted a waiver, estoppel, and forfeiture of the parent’s right to seek appellate review of the sufficiency of the evidence supporting the court’s termination findings pursuant to CRS § 19-3-604. However, a respondent parent’s position regarding his or her treatment plan at the time of its adoption, or at any point thereafter before the termination hearing, is not equivalent to, or a substitute for, a juvenile court’s finding at the termination hearing by clear and convincing evidence that the services provided to the respondent parent were appropriate but unsuccessful in rendering him or her a fit parent. Therefore, father had the right to seek appellate review in this matter.

Father argued that the juvenile court erred in finding that he was unfit because the Department did not make reasonable efforts to rehabilitate him. The court ordered the Department to pay for a psychological evaluation of father. The court also authorized a full neuropsychological valuation if necessary. The Department, however, declined to provide father the full neuropsychological evaluation because it could not afford to pay for it. Instead, it paid for the psychological evaluation of father. The psychologist who performed the psychological evaluation of father testified that, based on both father’s cognitive disorder diagnosis and his seizure disorder that had been occurring since he was 9 years old, his treatment plan providing visitations with S.N-V. and therapy to address parenting skills was appropriate. Therefore, the record supports the court’s findings that an appropriate treatment plan had been adopted for father and determined that, despite his recent efforts to comply with his treatment plan, father was unfit and unlikely to become fit within a reasonable period of time.

Father also contended that the juvenile court erred in finding that no less drastic alternative to termination existed. Father’s therapist and caseworker testified that termination of parental rights was appropriate, that no less drastic alternatives existed, and that adoption was in S.N-V.’s best interests. The paternal aunt testified that S.N-V. lived with her and had developed a close relationship with her other children. She also testified that she wanted to adopt S.N-V. Because the record supports the juvenile court’s findings, the court did not err in finding that clear and convincing evidence showed that no less drastic alternative to termination existed.

No. 11CA0239. Hopkins v. Industrial Claim Appeals Office.
Unemployment Benefits—CRS § 8-73-110(3)(a)(I)(B).

In this unemployment benefits case, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was set aside and the case was remanded with directions.

Claimant worked for employer, the Colorado Department of Labor and Employment, from June 1986 to July 31, 2001. Since August 1, 2001, claimant had been receiving a monthly pension payment of approximately $3,000. Claimant returned to work for employer on April 6, 2009 through August 4, 2009. During this period of employment, neither employer nor claimant contributed to claimant's pension plan.

Claimant established an initial claim for unemployment benefits on January 24, 2010, for a weekly benefit amount of $443, which was less than the weekly prorated amount of her pension. Claimant’s base period ran from October 1, 2008 through September 31, 2009. The hearing officer concluded that because employer did not contribute to claimant’s pension during her base period employment, no reduction of her unemployment benefits was required under CRS § 8-73-110(3)(a)(I)(B). The Panel reversed.

The Court of Appeals set aside the Panel’s decision as erroneous as a matter of law. The Colorado Employment Security Act is a part of a cooperative federal–state program administered under the Federal Unemployment Tax Act (FUTA). The offset requirements of CRS § 8-73-110(3)(a)(I)(B) are modeled on the analogous provisions of FUTA. The legislative history indicated this was Congress’ response to a concern over “double-dipping” by retirees who actually had withdrawn from the labor force and were being paid both unemployment and retirement benefits by the same employer.

Here, although employer had contributed to the pension claimant was receiving, employer did not contribute to claimant’s pension during the base period that is the subject of her current claim for unemployment benefits. Therefore, claimant would not be “double-dipping,” because she would not be collecting both unemployment and retirement benefits based on the same period of work. The Panel’s order was set aside and the case was remanded to the Panel with directions to reinstate the hearing officer’s decision that no reduction in claimant’s unemployment benefits was required under CRS § 8-73-110(3)(a)(I)(B).

Colorado Court of Appeals Opinions

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