Criminal Law—Attorney—Colorado Office of Attorney Regulation Counsel—Evidence—Opening the Door Doctrine—Hearsay—Relevance—Sixth Amendment—Rules of Professional Conduct.

Defendant, a former attorney, was charged with multiple counts of theft related to mishandling client funds. A significant portion of defendant’s trial focused on her ethical obligations under the Colorado Rules of Professional Conduct (Colo. RPC), and the district court admitted evidence concerning the Colorado Office of Attorney Regulation Counsel’s (OARC) case against her. Defendant was convicted of 13 counts of theft.

On appeal, defendant first contended that the district court erred by admitting three OARC complaints into evidence. The prosecution argued that defendant “opened the door” by claiming the complaints weren’t based on her conduct with clients. The opening the door doctrine is limited, and any otherwise inadmissible evidence introduced after one party opens the door must be confined to preventing any unfair prejudice or misleading impression that might otherwise result. Here, certain statements introduced in defendant’s trial went far beyond anything allowed by the opening the door doctrine. The prosecution used the complaints for the truth of the matters asserted therein, and the complaints were inadmissible on hearsay, relevance, and undue prejudice grounds. Further, allowing the hearsay evidence violated defendant’s constitutional right to confrontation. The error in allowing this evidence was not harmless beyond a reasonable doubt.

Defendant also argued that the district court erred by including a jury instruction about an attorney’s ethical obligations in relation to earning fees and handling client funds. The district court gave an instruction that quoted provisions of the Colo. RPC and defined when an attorney “earns” the money a client pays her. The court didn’t tell the jurors how to use the instruction and what its limits were, and the jury indicated it didn’t understand how to apply it. The instruction was at best incomplete.

The judgment was reversed and the case was remanded with directions.

Criminal Law—Lay Witness Testimony—Evidence.

K.H. was 15 years old when he attended a concert with his 35-year-old stepsister Murphy, who allegedly provided K.H. with methamphetamine before the concert. At trial, a deputy testified that based on his training and experience, he believed that K.H.’s body language suggested an affirmative answer when he looked down and away in response to a question about whether Murphy gave him the methamphetamine. The jury found Murphy guilty of distributing methamphetamine and contributing to the delinquency of a minor.         

On appeal, Murphy contended that the trial court erred in permitting the deputy to interpret the meaning of K.H.’s body language because his testimony was inadmissible under CRE 701. Testimony interpreting body language is inadmissible lay testimony. Here, the deputy’s testimony exceeded the bounds of CRE 701 because it provided more than an opinion or inference rationally based on his perception; instead, it interpreted K.H.’s body language based on his training and experience. Further, K.H.’s credibility was a significant issue at trial. Therefore, the admission of this testimony did not constitute harmless error.

Family Law—Stepparent Adoption—Termination of Parental Rights—Subject Matter Jurisdiction.

Mother and father had a child, I.E.H., in 2008. Mother was wounded while serving in the military, and she suffers from post-traumatic stress disorder. In 2013 mother and father stipulated in father’s paternity case that I.E.H. would live with father and mother would spend time with I.E.H. and pay child support to father. The juvenile court adopted the stipulation. Mother never paid any child support. In August 2016, the child’s stepmother filed a petition to adopt the child and to terminate mother’s parental rights. The juvenile court found that mother abandoned I.E.H. and entered a judgment terminating mother’s legal relationship with the child, but did not issue an adoption decree. This appeal was filed before the adoption was finalized.

            As an initial matter, the Court of Appeals considered whether the juvenile court’s order terminating mother’s parental rights in anticipation of the stepparent adoption was final for appellate purposes, even though a final adoption decree had not been issued. CRS § 19-1-109(2)(b) governs appeals from proceedings under the Colorado Children’s Code, including stepparent adoptions, and authorizes the appeal of specified termination orders that would not otherwise be final. The Court held that the order was final, and therefore appealable.

On appeal, mother contended that the juvenile court did not have subject matter jurisdiction to terminate her parental rights because the court order in the paternity case allowed her to resume parental responsibilities when she was ready. A juvenile court has exclusive original jurisdiction in cases involving adoptions and cases involving the termination of parental rights. Here, the juvenile court had continuing jurisdiction over the child via the paternity proceeding.

Mother also contended that the juvenile court did not make sufficient findings to support its decision that she had not provided reasonable support for the child. The record, which includes the fact that mother paid only $125 in the 12 months preceding the filing of the adoption petition, was receiving $1,300 per month in veterans benefits, and did not have any housing expenses for a portion of the time supports the juvenile court’s findings that she did not provide reasonable support for the child and was unlikely to pay child support in the future.

Mother also asserted that there was no record evidence that her failure to pay child support proved that she intended to abandon the child. There is no indication that the juvenile court considered mother’s failure to provide reasonable support as evidence of abandonment. Rather, the court relied on record evidence that mother had not seen or otherwise contacted the child since 2013.

The judgment terminating mother’s parental rights was affirmed.

Corporations—Shareholder Derivative Action—Closely Held Corporation—Civil Theft—Piercing the Corporate Veil—Alter Ego—Dividends and Distributions—Statute of Limitations.

Father assigned his stock in the Liquor Barn, Ltd. (Liquor Barn) to his son Gary, who was the company’s sole director and majority shareholder. The two other Tisch siblings (the Tisch siblings) held nonvoting shares in Liquor Barn. The Tisch siblings filed a complaint against Gary alleging various causes of action related to his fiduciary duties. A jury found that Gary had committed civil theft against the Tisch siblings individually and against Liquor Barn by using the Liquor Barn profits for his private use. It awarded the Tisch siblings treble damages on the civil theft claim. The trial court entered judgment against Gary and Liquor Barn and awarded the Tisch siblings costs and attorney fees.

Gary moved to amend the judgment, arguing that the trial court erred in piercing the corporate veil and that this error would prejudice Liquor Barn’s creditors. He then filed a combined motion for new trial and relief from judgment, arguing that the trial court erred in disqualifying his expert witness and in piercing the corporate veil. The trial court denied the postjudgment motions and awarded the Tisch siblings attorney fees that exceeded the lodestar.

On appeal, Gary contended that the trial court erroneously found that he, as an individual, and the Liquor Barn were “alter egos.” Here, the record shows that Gary comingled his personal and other business funds with the Liquor Barn’s funds, kept inadequate corporate records, routinely disregarded the legal formalities of declaring shareholder distributions and filing taxes related to payments he made to himself, and used corporate funds for noncorporate purposes; and Gary’s position as controlling and sole voting shareholder facilitated his misuse of Liquor Barn’s funds. The record also shows that Gary used the corporate fiction to defeat the Tisch siblings’ rightful claims to distributions, and thus justice requires recognizing the substance of the relationship between Gary and Liquor Barn over the corporate form. Therefore, the court’s finding achieved an equitable result.

Gary next contended that the statute of limitations barred the civil theft and breach of fiduciary duty claims. However, the Tisch siblings were well within the relevant two- and three-year statute of limitations periods for both civil theft and breach of fiduciary duty. Thus, the trial court properly directed a verdict on the statute of limitations defense.

Gary also contended that the Tisch siblings never had a property interest in Liquor Barn’s profits because he never declared a shareholder distribution, and therefore they had no valid civil theft claim against him. He reasoned that because a shareholder is entitled only to a corporation’s profits and not its divisible assets, the Tisch siblings had no standing to assert civil theft. A majority shareholder’s use of corporate profits for personal and other business reasons can be submitted to a fact finder and found to constitute “corporate distributions” available to all shareholders when no formal distribution is declared. A minority shareholder has a proprietary interest in undeclared distributions sufficient to support an individual civil theft claim against the majority shareholder. Whether Gary’s payments to himself and his other entities constituted a “distribution of profits” payable to all shareholders was a factual question for the jury.

Gary further contended that there was insufficient evidence to support the jury’s total damages award. Here, the jury found that Gary took funds for himself and his other companies, which it concluded constituted distributions, and he failed to share 20% of those distributions with the Tisch siblings. This award reasonably reflects the portion of total profits that the jury believed the Tisch siblings should have received as a distribution.

On cross-appeal, the Tisch siblings argued that the court’s cap on expert witness fees was arbitrary. The Tisch siblings are not entitled to relief because they failed to avail themselves of the remedy provided by the trial court, which permitted either side to file to seek relief from the caps.

The Tisch siblings next contended that the trial court should have based the attorney fee award on the treble damages amount rather than on the jury’s verdict and urged the Court of Appeals to adopt a contingent fee multiplier. Here, the trial court considered the contingent nature of the representation when increasing the lodestar amount, and the trial court was not required to give any greater effect to a contingency agreement in setting a reasonable fee or to apply a contingency percentage to a punitive award. The award is supported by the record, and the trial court did not abuse its discretion.

Finally, the Tisch siblings challenged the trial court’s grant of summary judgment to Gary on their declaratory judgment claim. The trial court correctly concluded that this claim was barred by the statute of limitations.

The Tisch siblings requested appellate attorney fees, claiming that Gary’s appeal of the civil theft judgment was frivolous. While Gary’s arguments are not entirely without merit, the Tisch siblings are entitled to reasonable appellate attorney fees under the civil theft statute.

The judgment was affirmed and the case was remanded for the determination of reasonable attorney fees related to the civil theft claim.

Business Organizations—Limited Liability Companies—Judicial Dissolution—In-Kind Distribution.

Paula and Richard Gagne are mother and son. They agreed to a joint business venture in which Paula would buy apartment complexes and Richard would manage them. They created limited liability companies (LLCs) to buy and manage the properties. After years of acrimony, Richard sued, seeking judicial dissolution of the four LLCs and a declaratory judgment as to the parties’ respective rights and obligations concerning the LLCs. Ultimately, the trial court ordered dissolution and an in-kind distribution of assets, with Richard and Paula each receiving two of the apartment buildings.

On appeal, Paula contended that the court erred, both legally and factually, in ordering dissolution of the LLCs. A limited liability company may be dissolved if it is established that it is not reasonably practicable to carry on its business. A party seeking judicial dissolution must establish that the managers and members of the company are unable to pursue the purposes for which the company was formed in a reasonable, sensible, and feasible manner. In determining whether a party seeking judicial dissolution has met this burden, the court must consider seven nonexclusive factors. Here, the record reflects that the district court expressly addressed each of the seven factors and concluded that the factors weighed heavily in favor of dissolution. Therefore, the district court didn’t abuse its discretion in ordering dissolution.

Paula also contended that the district court erred in ordering an in-kind distribution of the LLCs’ assets, rather than ordering the assets sold and the resulting proceeds distributed to the members. Here, the operating agreements don’t bar in-kind distributions, and the process ordered by the court was appropriate. Therefore, the district court didn’t abuse its discretion by ordering an in-kind distribution of the LLCs’ assets.

Next, Paula argued that the district court erred in ordering various adjustments to each member’s side of the ledger. The district court’s adjustments included payments to attorneys and other professionals, salary payments to Paula as manager, rent payments for office space at Paula’s house, various payments for loans and travel expenses, the cost to repair one of the apartment buildings, improper distributions, and payments for vacation properties the LLCs didn’t own. The court also ordered Paula to pay Richard’s attorney fees. Paula’s arguments on this point amount to an invitation to reweigh the evidence, which is not the appellate court’s role.

The judgment was affirmed and the case was remanded for a determination of Richard’s reasonable attorney fees incurred on appeal.

Psychological Parent—Child Support—CRS § 14-10-123.

In 2006, mother and Hill became romantically involved and moved in together. Mother had a 3-month-old son, A.F., whose biological father had been absent since his birth. In 2007, mother gave birth to A.C.H., a daughter fathered by Hill. They all lived together until the couple broke up in 2010. The parties agreed to and followed an equal parenting time schedule with both children.

In 2016, mother sought permission to relocate to Texas and petitioned the district court for an allocation of parental responsibilities with respect to A.C.H. only. Hill asserted he was A.F.’s psychological parent and filed his own case seeking an allocation of parental responsibilities for A.F. The district court consolidated the cases. Among other things, the district court subsequently issued an opinion concluding it could not impose a child support obligation on Hill for the benefit of his psychological child absent a legal parent–child relationship.

Mother argued that as A.F.’s psychological parent, Hill was on equal footing with her as a biological parent and therefore he also has the responsibility to pay child support. The Court of Appeals determined that while neither the statutes nor case law expressly imposes financial obligations on a psychological parent, they do support the proposition that such obligations may be imposed. The Court concluded that the district court has the authority to impose a child support obligation on psychological parents who established themselves as parents (rather than guardians) and sought and received an intended-to-be-permanent allocation of parental responsibilities. The Court noted that it is neither creating a new class of stepparent obligors nor suggesting that the mere existence of a psychological parent–child relationship, on its own, establishes a support obligation under CRS § 14-10-115. Further, the opinion does not mean that A.F.’s biological father, if found, is relieved from his duty to support his child.

The part of the district court’s order holding it was foreclosed from ordering Hill to pay child support was reversed, and the case was remanded to consider Hill’s child support obligation.

Construction Performance Surety Bonds—Conditions Precedent—Balance of the Contract Price—Attorney Fees.

Whiting-Turner Contracting Co. (Whiting-Turner) was the general contractor for an office building construction project (the Project). Whiting-Turner entered into an agreement with Klempco Construction (Klempco) for Klempco’s construction of an anchor system at the Project’s underground parking garage (the Subcontract). Klempco’s work included the installation of sprayed concrete (shotcrete) to support the anchoring system. The Subcontract price was $1,785,783.

Whiting-Turner required Klempco to furnish a performance bond and a payment bond. Klempco obtained the bonds from Guarantee Company of North America USA (GCNA). The bonds specified three conditions precedent that Whiting-Turner would have to satisfy to trigger GCNA’s obligations as surety, one of which was to pay the balance of the contract price in accordance with the Subcontract to GCNA or a contractor selected to perform the Subcontract. The “balance of the contract price” was defined as the total amount payable by Whiting-Turner to Klempco under the Subcontract “after all proper adjustments have been made, . . . reduced by all valid and proper payments made to or on behalf of [Klempco] under the [Subcontract].”

            Klempco immediately fell behind schedule and stopped paying its sub-subcontractors, and directed Whiting-Turner to assume responsibility for the shotcrete installation and to work directly with two of its sub-subcontractors. Whiting-Turner sent Klempco and GCNA a letter declaring Klempco in default. Following a meeting between Whiting-Turner, Klempco, and GCNA, the Subcontract price was reduced by $553,707, which was the price of the shotcrete work to be performed by Whiting-Turner. Klempco then notified Whiting-Turner that it was demobilizing from the Project. Whiting-Turner requested advice from GCNA, but GCNA did not respond.

Whiting-Turner terminated the Subcontract following Klempco’s default. GCNA did not respond to Whiting-Turner’s demands that it honor its obligations under the performance bond. Whiting-Turner provided GCNA with its calculation of the balance of the contract price. The balance was $720,819, but from that it deducted $256,897.90 for its payments to unpaid sub-subcontractors who were liening the Project and $553,707 for the shotcrete work, leaving a negative balance.

            Klempco sued Whiting-Turner for breach of the Subcontract. Whiting-Turner counterclaimed for breach of the Subcontract and filed third-party claims against GCNA for breach of the performance and payment bonds. GCNA asserted that Whiting-Turner failed to comply with a condition precedent of the performance bond by miscalculating the balance of the contract price and consequently failing to pay the correct sum to GCNA. The district court found that Klempco had breached the Subcontract; Whiting-Turner had complied with the condition precedent in the performance bond; and GCNA breached the performance and payment bonds. The district court awarded Whiting-Turner $832,260.24 in damages against Klempco and GCNA jointly and severally. It also awarded attorney fees and costs in the amount of $504,785.27 and $18,990.14 in interest.       

On appeal, GCNA argued that the trial court erred in finding that Whiting-Turner satisfied the condition precedent for the performance bond because it miscalculated the balance of the contract price and did not pay the correct amount to GCNA. Here, (1) no language in the performance bond or the subcontract barred Whiting-Turner from reducing the balance of the contract price by the amount of its post-termination payments to unpaid sub-subcontractors; (2) Whiting-Turner and Klempco agreed to reduce Klempco’s payment for the shotcrete work; and (3) Whiting-Turner correctly subtracted the back charge from the balance of the contract price. The record supported the trial court’s findings that Whiting-Turner satisfied this condition.

GCNA further contended that Whiting-Turner sought the same dollars in three ways. The record does not reflect that the trial court awarded duplicative damages.

Lastly, GCNA contended that the trial court erroneously awarded Whiting-Turner attorney fees under the performance bond or, alternatively, the trial court improperly failed to segregate the fees awardable to Whiting-Turner for its claim against GCNA from the fees attributable to Whiting-Turner’s other claims and defenses. As stated above, Whiting-Turner complied with the performance bond, and the trial court did not abuse its discretion in awarding Whiting-Turner attorney fees under the performance bond. On the latter argument, all the claims in this case arose from a common core of facts. Therefore, the trial court did not err in finding that Whiting-Turner’s fees could not be apportioned, and it correctly held that under the performance bond, GCNA was liable to Whiting-Turner for all of its attorney fees.

The judgment was affirmed.

Easement—Irreparable Harm—Injunctive Relief.

Rinker and Colina-Lee are neighbors on Galena Court, an unpaved roadway in the Soldier Canyon Estates subdivision (the subdivision) in Larimer County. The households on Galena Court entered into the Galena Court Property Owners’ Association Road Maintenance Agreement (the Agreement), which established the Galena Court Property Owners’ Association (the Association) and required the homeowners to pay annual dues to fund the maintenance of Galena Court.

Rinker installed a culvert along the front of his driveway to divert runoff from the land above his home. About a decade later, Brewen reshaped a portion of Galena Court uphill from Rinker’s property and placed recycled asphalt material on Galena Court. Brewen also increased the grade and altered the contour of Galena Court. These changes caused sediment and asphalt particles to run through the culvert and collect on Rinker’s front yard. The Association also changed the shape of the section of Galena Court uphill from Rinker’s property, allegedly exacerbating the asphalt deposits on his yard and increasing the difficulty of accessing his property.

 Rinker complained to the Association. The Association installed a filtration system to protect Rinker’s property from the runoff, but neither that nor filters installed by Rinker solved the problem. Rinker then blocked the culvert to protect his property from further damage. This caused road sediment to flow onto, and to erode, Galena Court. Larimer County demanded Rinker unblock the culvert.

Rinker sued Larimer County and Brewen. Larimer County moved for injunctive relief and an order requiring Rinker to join all property owners in the subdivision as necessary parties. The district court granted the motion, and Rinker amended his complaint to include claims against all the subdivision property owners, including Colina-Lee. Colina-Lee pleaded, as an affirmative defense, that Rinker had breached the Agreement.

Before trial, Larimer County vacated the public right-of-way on Galena Court and Rinker agreed to dismiss his claims against Larimer County and Brewen, who dismissed their counterclaims. As part of the settlement, Rinker agreed to remediate portions of Galena Court that his culvert had damaged. The stipulated judgment, however, would have granted Rinker authority to alter Galena Court without consulting the other owners of property adjoining Galena Court. Rinker requested his claims against the other property owners be dismissed. Colina-Lee objected because the stipulated judgment would give Rinker authority to alter Galena Court without the approval of the remaining Galena Court owners, in violation of the Agreement.

At a pretrial conference, the district court allowed Colina-Lee to assert counterclaims for breach of the Agreement without providing Rinker an opportunity to address this motion to amend. Rinker subsequently moved for reconsideration of the court’s ruling allowing Colina-Lee leave to amend, which was summarily denied. In her counterclaims, Colina-Lee sought an injunction requiring Rinker to comply with the Agreement and open the blocked culvert and a declaratory judgment that, under the Agreement, Rinker had no right to make unilateral changes to Galena Court without the approval of the other owners. A new trial date was set.

Two months before trial, Rinker sought leave to amend his complaint to join the Association as a defendant and to assert claims against it for nuisance and trespass as well as for a declaratory judgment that the Agreement required the Association to maintain Galena Court. The court denied the motion.

Following trial, the court granted the relief requested by Colina-Lee, entering an injunction requiring Rinker to unblock the culvert and a declaratory judgment setting forth the rights under the Agreement.

On appeal, Rinker first argued it was an abuse of discretion for the district court to grant Colina-Lee leave to amend to assert counterclaims because the motion was untimely. Colina-Lee did not unreasonably delay in moving for leave to amend, given the changed posture of the case following Rinker’s settlement with Larimer County and Brewen, which significantly impacted Colina-Lee’s ability to protect her interest in Galena Court. The trial court did not abuse its discretion.

Rinker also argued that granting Colina-Lee leave to amend improperly deprived him of the benefits of his settlement with Brewen and forced him to start over in defending a claim for alleged breach of the agreement. Here, when Larimer County and Brewen settled with Rinker, Colina-Lee needed to protect her interests by asserting her own breach of contract counterclaims. Rinker conceded that Colina-Lee’s counterclaims were substantially similar to Brewen’s breach of contract counterclaim, which Rinker had litigated for months. Any possible prejudice was cured by the trial court’s continuation of the trial date.

Rinker then argued that the district court abused its discretion in not granting his request for leave to amend his complaint. Rinker was not merely moving to amend but sought to join the Association as a new party and to assert new claims against it just two months before trial. Case law supports the district court’s decision that preservation of the trial date warranted denial of Rinker’s motion for leave to amend. The district court did not abuse its discretion in denying Rinker’s motion for leave to amend

Rinker further contended that the injunction was improperly entered because it was overbroad and not based on proper findings as to three elements necessary for a permanent injunction: that (1) irreparable harm would result unless the injunction issued, (2) the threatened injury outweighs the harm to the opposing party, and (3) the injunction would not adversely affect the public interest. Because Colorado courts have not considered whether a court must satisfy the irreparable harm element before enjoining interference with an easement, the Court of Appeals looked to the Restatement (Third) of Property: Servitudes and held that a party seeking an injunction as a remedy for wrongful interference with an easement is not required to prove irreparable harm. As to the remaining two elements, the record reflected that the district court (1) properly balanced the injury that Rinker was causing to Colina-Lee’s interest in Galena Court against the harm that the requested injunction would cause to Rinker and concluded that the benefit of remediating the damage to Galena Court outweighed the harm that Colina-Lee’s injunction would cause to Rinker; and (2) considered whether the public interest supported entry of the injunction when it found that Rinker’s actions had degraded Galena Court so badly that operators of passenger vehicles had difficulty driving on it. Rinker then challenged the scope of the injunction, asserting that it was an abuse of discretion to require him to unblock the culvert rather than just to cease violating the terms of the Agreement. Under Colorado law, the traditional and preferred equitable remedy for a continuing trespass is a mandatory injunction requiring the removal of the encroachment. The district court did not abuse its discretion in ordering Rinker to unblock the culvert.

The judgment was affirmed.

Dependency and Neglect—Attorney–Client Privilege for Expert Report.

Based on a report from neighbors, the Jefferson County Division of Children, Youth, and Families (the Division) removed the children in this case and placed them with their maternal grandfather, where they remained throughout the proceedings. The Division filed a petition in dependency and neglect based on the fact that mother left the 3-year-old twins home alone for over six hours. This family had been involved with child protective services on two prior occasions due to physical abuse and severe injuries to the children.

Before the hearing, mother requested appointment of a child psychology expert to evaluate her parenting time. Because mother was indigent, the court appointed the expert at the state’s expense. Based on the expert’s report, mother elected not to call the expert as a witness, but the guardian ad litem (GAL) requested the expert’s report. The juvenile court ordered the report disclosed and allowed the GAL to call the expert to testify at the termination hearing. The juvenile court adjudicated the children dependent and neglected and adopted treatment plans for the parents. The GAL subsequently filed a motion to terminate the parent–child relationships, and the court terminated mother’s and father’s parental rights.

            On appeal, mother argued that the juvenile court violated her attorney–client privilege when it required disclosure of the expert’s report and admitted the report and the expert’s testimony at the termination hearing. Under CRS § 19-3-610(1), when an indigent parent’s attorney requests appointment of an expert, the attorney–client privilege generally protects communications between the parent and the expert. However, here much of the expert’s report and testimony concerned observations of the children, and thus fell outside the privilege. In addition, the expert advised mother, orally and in writing, that the evaluation and interview would not be considered confidential and were being conducted to inform the juvenile court with respect to the dependency and neglect proceeding, so mother had no expectation of privacy in the evaluation. The juvenile court did not violate mother’s attorney–client privilege when it required disclosure of the expert’s report and admitted the report and the expert’s testimony.

Mother also argued that she reasonably complied with her treatment plan. Here, the record supports the findings that (1) mother was unable to provide nurturing and safe parenting adequate to meet the children’s needs and conditions, and (2) mother’s treatment plan was not successful because she continued to exhibit the same problems addressed in the treatment plan without adequate improvement.

Mother and father argued that the juvenile court erred when it terminated their parental rights without allowing them a reasonable time to comply with their treatment plans. The juvenile court found that mother would need a lot more therapy before it would be safe to return the children to her. Testimony from the children’s therapists indicated that they were suffering from post-traumatic stress disorder, and father’s caseworker indicated that it was not in the children’s best interests to maintain a relationship with father. Further, this case was subject to expedited permanency planning because the children were under 6 years old. The juvenile court did not err.

Lastly, mother and father contended that the juvenile court erred when it found that an allocation of parental responsibilities (APR) to the maternal grandfather was not a viable less drastic alternative to termination of their parental rights. Here, the record supports the juvenile court’s finding that an APR to the grandfather was not a viable less drastic alternative to termination of parental rights.

The judgment was affirmed.

Workers’ Compensation—Maintenance Medical Benefits—Intervening Cause.

Claimant sustained admitted work-related injuries when she fell backward to the ground. Physicians diagnosed a concussion as well as cervical and lumbar strains. Within a few months claimant developed clinical depression related to the work injury. Employer admitted the compensability of the depression treatment.

In October 2015, a physician who performed a division-sponsored independent medical examination placed claimant at maximum medical improvement. Pursuant to a settlement agreement that was approved by an administrative law judge (ALJ), employer paid claimant a lump sum for her permanent partial disability award. In addition, employer agreed to continue paying for maintenance care through authorized providers that was reasonable, necessary, and related to the compensable injury. The primary care that claimant was receiving was psychological. Several months later, employer retained a psychiatrist to examine claimant, and he and several other health care providers concluded claimant had returned to baseline and required no further maintenance care related to the work injury. Employer petitioned to terminate claimant’s maintenance medical benefits. An ALJ agreed that claimant had returned to baseline and that any further treatment was related to claimant’s pre-injury condition, not to her work-related injury. A panel of the Industrial Claim Appeals Office (the Panel) affirmed.

On appeal, claimant argued that because her claim had closed, employer could only modify her maintenance medical benefits by first seeking to reopen the claim. Future maintenance medical benefits are by their nature not yet awarded, so those benefits remain open and are not closed by an otherwise closed final admission of liability. Here, claimant was entitled to receive future ongoing maintenance medical benefits for her depression. The issue was not closed, and reopening was not required to assess the continuation of those benefits. Further, the evidence supports the ALJ’s factual finding that claimant’s continuing need for medical care was no longer work-related. The Panel correctly determined that employer was not required to reopen the claim to challenge claimant’s need for continuing medical care.

Claimant also contended that the Panel improperly attributed her need for continuing treatment to an intervening cause. While the Panel erred by addressing the concept of intervening cause, any error was harmless. Substantial evidence supported the ALJ’s finding that claimant’s continuing need for medical care was not work related.

The order was affirmed.