The Court of Appeals reverses an adjudication and remands the case for a new trial for two reasons.

First, the Court holds that the trial judge committed reversible error by reading the entire amended case history portion of the petition to the jury as part of its statement of the case instructions. The trial court’s reading of the case history did not comply with Colorado Rule of Civil Procedure 47 and departed from Pattern Civil Jury Instruction 41:4. The 900-word case history did not help the jurors understand the issues, “amounted to a judicially endorsed opening statement on behalf of the Department,” and set forth many allegations that remained unsupported by the evidence presented at the trial. Determining that the instruction suggested some of the parents’ lawful conduct was suspicious, included inadmissible allegations, and “encouraged the jurors to assume that unadmitted evidence supported the Department’s position,” the Court of Appeals concludes that this error impaired the basic fairness of the trial and requires reversal.

Additionally, the Court of Appeals agrees with the mother’s contention that the juvenile court erred in admitting evidence of her refusal to agree to drug testing prior to the filing of the petition. Noting that a “refusal to perform a particular act has probative value only if the person has a duty to perform the act or that it would have otherwise ‘been natural under the circumstances’ for the person to take the action,” the Court concludes that the lack of evidence regarding the circumstances surrounding the refusal did not allow the jury to evaluate the objective reasonableness of mother’s refusal to consent to testing. Because any conclusion that the mother’s refusal to consent was for a nefarious reason would be based on mere speculation, the admission of that evidence deprived her of the presumption that her refusal was objectively reasonable. Similarly, the Court concludes that the trial court abused its discretion in admitting evidence of mother’s refusal of the caseworker’s request to stop breastfeeding pending a drug test, as the Department did not have a court order requiring such testing and mother retained her status as a presumptively fit parent when she refused.

December 13, 2018

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