Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously affirmed a judgment involving COVID-19 protocols and a jury.
Kenneth Garcia appealed jury verdicts finding him guilty of one count of theft from an at-risk person ($500 or more), one count of theft ($20,000-$100,000) and two counts of violating the pawnbroker act.
Dr. Sylvia Kerr, age 78, hired Garcia to fix a fence on her property when she was out of town. When Kerr returned, she found someone burglarized her home, stealing many items of significant value. Kerr questioned Garcia, but he denied knowledge about the missing items. After a police investigation, Garcia was found guilty and sentenced to nine years in prison.
Garcia raised multiple appeals including over the precautions the trial court used due to the COVID-19 pandemic. Garcia contended the court violated his constitutional rights by requiring the jury venire and impaneled jurors to wear masks that covered their noses and mouths and seating the impaneled jury in the courtroom gallery rather than the jury box.
Garcia contended requiring prospective jurors to wear masks during voir dire undermined the parties’ and court’s ability to observe each juror’s demeanor, which prevented the defense from effectively raising challenges for cause and peremptory challenges.
The appeals court found no constitutional error, reasoning a mask covering a juror’s nose and mouth doesn’t make it impossible to assess a juror’s demeanor because demeanor consists of language involving the whole body. It also found that even if prospective jurors’ masks made assessing their demeanor more difficult, both the defense and prosecution were burdened by the challenge.
Garcia also argued that requiring impaneled jurors to wear masks during the trial prevented the defense from assessing jurors’ reactions to make effective strategic decisions. The appeals court rejected the contention citing similar reasons as before.
Garcia finally raised multiple arguments related to the seating arrangement in the courtroom due to COVID-19 where jurors sat in the gallery rather than the jury box. Garcia argued the seating of the impaneled jurors in the gallery during the trial violated his constitutional rights because some of the jurors couldn’t see his face the entire trial. The appeals court found that while multiple arguments, including the Confrontation Clause, reflected that courts should ideally position defendants face-to-face with jurors, courts can make modifications based on public policy and case specifics.
The appeals court affirmed the judgment.
Creekside Endodontics, LLC et al. v. Sullivan
The Colorado Court of Appeals unanimously reversed a judgment and remanded a case involving an anti-strategic lawsuit against public participation case.
Dr. Andrew Stubbs, a licensed dentist, is the owner and sole member of Creekside Endodontics. Kathryn Sullivan was his patient. Stubbs performed root canal treatment on Sullivan but she was dissatisfied with the procedures and expressed her dissatisfaction online.
Eventually Creekside and Stubbs sued Sullivan for libel per se and trade and product disparagement based on the alleged defamatory posts. Sullivan filed a special motion to dismiss, relying on 13-20-1101(3)(a), the anti-SLAPP statute, which the court denied.
The aim of the statute is to minimize the risk of non-meritorious lawsuits being used to silence someone based on their exercise of First Amendment rights. The goal is to balance the constitutional rights of someone to petition or speak freely, among other things, with the rights of persons to file meritorious lawsuits for demonstrable injury.
The appeals court analyzed whether the plaintiffs established a probability they will be able to produce clear and convincing evidence of actual malice at trial. The appeals court concluded Creekside and Stubbs failed to meet the burden.
Because the plaintiffs didn’t have a reasonable likelihood, as a matter of law, of prevailing on the defamation claims, Sullivan was entitled to recover attorney fees and costs, the court added.
The appeals court reversed the judgment of the district court that denied Sullivan’s special motion to dismiss and remanded with instructions to dismiss the complaint and award Sullivan attorney fees and costs.
In a footnote, the appeals court wrote the trade and product disparagement claim rises and falls with the defamation claim and are also subject to dismissal.
In the Interest of A.S.L., a Child
The Colorado Court of Appeals unanimously affirmed a judgment in a dependency and neglect case.
A mother, A.S.V., appealed a juvenile court’s judgment allocating parental responsibilities of the child, A.S.L., to foster parents.
After the Weld County Department of Human Services got a report of domestic violence and drug paraphernalia in the home and A.S.V. allegedly had an overdose, a juvenile court magistrate ordered A.S.L. and a younger half-sibling, who is not part of this appeal, into the department’s emergency temporary custody. The department filed a petition of dependency and neglect, alleging A.S.L.’s environment was injurious to his welfare and he lacked proper parental care.
A.S.V. admitted the allegations and the court adjudicated A.S.L. dependent and neglected. The then 14-year-old A.S.L. was placed in foster care.
The court adopted a treatment plan for A.S.V. that required her to engage in parenting time with A.S.L. Initially the court ordered A.S.V. to participate in supervised parenting time two times per week at a minimum. A couple weeks later, a caseworker testified A.S.V. acted inappropriately and erratically during her parenting time visits, causing A.S.L. to shut down.
The court suspended A.S.V.’s visits pending a completion of detox until she scheduled and participated in mental health and substance abuse evaluations or until she provided two weeks of clean urinalysis tests. Later on, the department informed the court that a provider indicated A.S.V. couldn’t complete a substance abuse evaluation until her mental health concerns were addressed. The department then referred A.S.V. for a psychological evaluation.
A.S.V. then asserted she provided two weeks of negative urinalysis tests and requested to resume parenting time visits. The department replied that A.S.V. just needed to contact her caseworker to reinstate visits. The department, later on, reported A.S.V. didn’t and hadn’t visited the child. Throughout the case, A.S.L. expressed he didn’t want to visit with A.S.V.
Many months after A.S.L. was put in foster care, the foster parents intervened in the case. The department and A.S.L.’s parents entered into a stipulation allocating parental responsibilities to the foster parents. The court, however, continued the APR hearing because the intervenors hadn’t signed the stipulation. At the beginning of a continued hearing, A.S.V. withdrew her agreement to the stipulation and the court went to a contested APR hearing. After that, the court entered an order consistent with the original stipulation granting APR for A.S.L., who was almost 17 at the time, to the foster parents.
A.S.V. appealed, contending the juvenile court failed to make sufficient findings and failed to hold the department to its burden of trying to reasonably reunify the family and avoid out-of-home placement of A.S.L. A.S.V. contended the department didn’t make reasonable efforts because her visitation with A.S.L. was suspended and never reinstated.
The appeals court found A.S.V. correctly asserted the lower court made no specific written or oral findings regarding reasonable efforts at the continued APR hearing. The appeals court disagreed that doing so warranted reversal, adding the failure of the court to make express findings on its own doesn’t establish a failure by the court in ensuring the department made reasonable efforts.
According to court records, the department made reasonable efforts to ensure adequate visitation for A.S.V. including referring her to services she needed to complete in order to meet the court’s requirements so her visitation could be reinstated. The appeals court added that, despite A.S.V.’s assertions on appeal, the record shows A.S.V. didn’t engage in the services.
“The court found that the child’s best interests would be served by allocating primary residential custody to the foster parents and providing for some parenting time for mother. That finding has record support, and we will not disturb it,” wrote Colorado Court of Appeals Judge Ted Tow.
The judgment was affirmed.