author: Opinion by JUDGE WEBB

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee,
    IN the INTEREST OF S.K., a Child, and Concerning C.K. and S.R., Respondents-Appellants.
    Court of Appeals No. 18CA0118
    Colorado Court of Appeals, Division III.
    Announced March 7, 2019
    David Baumgarten, County Attorney, Gunnison, Colorado, for Petitioner-Appellee
    Robert G. Tweedell, Guardian Ad Litem
    Susan C. Baker, Office of Respondent Parents' Counsel, El Prado, New Mexico; James Plumhoff, Guardian Ad Litem, for Respondent-Appellant C.K.
    Pamela K. Streng, Office of Respondent Parents' Counsel, Georgetown, Colorado; Barbara Remmenga, Guardian Ad Litem, for Respondent-Appellant S.R.
   Opinion by JUDGE WEBB

¶ 1 In this dependency and neglect proceeding, S.R. (mother) and C.K. (father) appeal the juvenile court judgment terminating their parent-child legal relationships with S.K. (the child). To resolve the parents' arguments on appeal, we must consider the requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 - 12213 (2018), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2018). The ADA, and in limited circumstances, section 504 require public entities to make reasonable accommodations for qualified individuals with disabilities.

¶ 2 A division of this court has considered this requirement of the ADA in the context of termination because an appropriate treatment plan could not be devised to address the parent's mental impairment. See People in Interest of C.Z. , 2015 COA 87, ¶ 1, 360 P.3d 228. But this case presents a different question under the ADA, which has not yet been addressed in Colorado - How does the requirement to make reasonable accommodations relate to termination based on a disabled parent's lack of success with a treatment plan, unfitness, and unlikelihood of change? We conclude that a juvenile court must consider reasonable accommodations in deciding whether such a parent's treatment plan was appropriate and whether reasonable efforts were made to rehabilitate the parent.

¶ 3 Ultimately, we hold that the juvenile court properly considered reasonable accommodations for the parents' disabilities as part of its conclusions that the parents' treatment plans were appropriate and the Gunnison County Department of Health and Human Services (Department) had made reasonable efforts to rehabilitate them. These conclusions are supported by the record. We also reject the parents' remaining arguments regarding parental fitness, likelihood of change, and a less drastic alternative to termination. Therefore, we affirm the termination judgment.

I. The Dependency and Neglect Case

¶ 4 In June 2016, the Department began receiving reports that the child, then less than three months old, was not gaining weight and the parents were not feeding her often enough. Later that month, the child was admitted to a local hospital for failure to thrive. The next day, the child was transferred to Children's Hospital because she had lost more weight even while being fed every two hours by hospital staff.

¶ 5 The medical team at Children's Hospital believed that the child's failure to thrive was a combination of organic and inorganic reasons. During the child's stay, the medical team observed that the parents

• continued to feed the child only two to three times a day;
• did not spend the night with the child;
• missed the child's occupational therapy appointment;
• placed unsafe items in the child's crib; and
• seemed to have difficulty retaining information regarding the child's care.

Based on these concerns, the Department initiated a dependency and neglect case and took custody of the child.

¶ 6 The parents both stipulated that the child was dependent and neglected because she was without proper care through no fault of their own. In August 2016, the juvenile court adopted treatment plans that required each parent to (1) consistently attend visits with the child; (2) meet with an in-home parenting support provider and learn skills to safely care for the child; (3) sign releases of information; (4) meet the child's needs and provide her with an appropriate living environment; and (5) complete recommended assessments, including neuropsychological and capacity to parent evaluations, to determine appropriate services.

¶ 7 The parents completed the capacity to parent and neuropsychological evaluations in the fall of 2016. An administrative review division, an outside entity that reviewed the Department's work, advised the caseworker to rewrite the treatment plans to include recommendations from the evaluations.

¶ 8 In late May 2017, the Department moved to amend the treatment plans to include more specific language regarding the plans' requirements. The proposed amendments included requirements for the parents to continue working with a parenting coach; comply with recommendations from the capacity to parent evaluator, including mental health treatment; and follow the recommendations of the neuropsychological evaluator, including therapy and inpatient substance abuse treatment for father and dialectical behavior therapy for mother. The Department also asked the court to appoint a guardian ad litem (GAL) for mother and father based on their mental illnesses or developmental disabilities.

¶ 9 A few weeks later, the juvenile court appointed a GAL for each parent and held an evidentiary hearing on the Department's proposal to amend the treatment plans. At the hearing, the parents argued that they were not opposed to having more specifics in the treatment plans, but that because the deadline to have permanency for the child was close and the Department had indicated it would be pursuing termination shortly, it was too late to amend the plans.

¶ 10 The child's GAL also took the position that if the court was going to adopt the amended treatment plans, it would need to extend the permanency deadline. The Department responded that if amending the plans would require an extension of the permanency deadline, it would withdraw the request. In the end, the juvenile court denied the Department's motion to amend the treatment plans and continued the existing plans in place.

¶ 11 The next month, the Department moved to terminate the legal relationships between the child and the parents. Before the start of the termination hearing, mother and father filed a joint motion asking the court to find that the Department had not made reasonable efforts to reunify them with the child, dismiss the termination motion, and amend the treatment plans to provide reasonable accommodations under the ADA. After a four-day hearing, the court rejected the parents' arguments, and in January 2018, terminated their parental rights.

II. Termination of Parental Rights and the ADA

¶ 12 Mother and father challenge the appropriateness of their treatment plans, the efforts that the Department made to reunify them with the child, and the extent of reasonable accommodations required under the ADA. Mother contends the juvenile court erred in concluding that her treatment plan was appropriate and the Department had made reasonable efforts to rehabilitate her in light of the ADA and section 504 of the Rehabilitation Act. Father contends the juvenile court erred in granting termination because the Department failed to make reasonable efforts to provide him with an appropriate treatment plan and reasonable accommodations under the ADA in creating and implementing his treatment plan. We reject these contentions.

A. Termination Criteria

¶ 13 As pertinent here, the juvenile court may terminate parental rights if it finds, by clear and convincing evidence, that (1) the child was adjudicated dependent and neglected; (2) the parent has not complied with an appropriate, court-approved treatment plan or the plan has not been successful; (3) the parent is unfit; and (4) the parent's conduct or condition is unlikely to change in a reasonable time. § 19-3-604(1)(c), C.R.S. 2018; People in Interest of C.H. , 166 P.3d 288, 289 (Colo. App. 2007).

¶ 14 The purpose of a treatment plan is to preserve the parent-child legal relationship by assisting the parent in overcoming the problems that required intervention into the family. People in Interest of K.B. , 2016 COA 21, ¶ 11, 369 P.3d 822. Thus, an appropriate treatment plan is one that is approved by the court and is reasonably calculated to render the parent fit to provide adequate parenting to the child within a reasonable time and that relates to the child's needs. § 19-1-103(10), C.R.S. 2018; People in Interest of M.M. , 726 P.2d 1108, 1123 (Colo. 1986).

¶ 15 In determining parental unfitness and the likelihood that a parent's conduct or condition will change, the court must consider whether reasonable efforts have been unable to rehabilitate the parent. § 19-3-604(2)(h) ; People in Interest of S.N-V. , 300 P.3d 911, 915 (Colo. App. 2011). "Reasonable efforts" means the "exercise of diligence and care" for a child who is in out-of-home placement. § 19-1-103(89).

¶ 16 The reasonable efforts standard is satisfied when services are provided in accordance with section 19-3-208, C.R.S. 2018. § 19-1-103(89). Among other things, the Department must offer screening, assessments, and individual case plans; information and referrals to available public and private assistance resources; and visitation services. § 19-3-208(2)(b)(I), (III)-(IV). If funding is available, it must also provide mental health and substance abuse treatment services. § 19-3-208(2)(d)(IV)-(V).

B. The ADA and Section 504

¶ 17 Title II of the ADA, 42 U.S.C. §§ 12131 - 12134 (2018), prohibits a public entity from discriminating against a qualified individual with disabilities in the provision or operation of public services, programs, or activities. Tennessee v. Lane , 541 U.S. 509, 517, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). Section 504 of the Rehabilitation Act applies the same requirement to entities that receive federal financial assistance. See In re H.C. , 187 A.3d 1254, 1265 (D.C. 2018). It provides that a qualified person with a disability shall not, "solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).

¶ 18 The ADA was enacted not only to remedy discrimination in the form of intentional exclusion, but also to mandate reasonable modifications to existing policies and to otherwise reasonably accommodate individuals with disabilities. 42 U.S.C. § 12101(a)(5) (2018) ; C.Z. , ¶ 12. Consequently, it imposes an affirmative duty on a public entity to make reasonable accommodations for qualified individuals with disabilities. 28 C.F.R. § 35.130(b)(7) (2018) ; C.Z. , ¶ 12.

C. Qualified Individual

¶ 19 Under the ADA, a qualified individual with a disability is an

individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2) (2018).

¶ 20 A disability includes a mental impairment that substantially limits one or more major life activities of the individual. 42 U.S.C. § 12102(1)(A) (2018). A mental impairment, in turn, includes any mental or psychological disorder such as "intellectual disability, organic brain syndrome, emotional or mental illness, and a specific learning disability." 28 C.F.R. § 35.108(b)(1)(ii) (2018).

¶ 21 Whether a parent is a qualified individual with a disability under the ADA requires a case-by-case determination. See Colo. State Bd. of Dental Exam'rs v. Major , 996 P.2d 246, 249 (Colo. App. 1999). While the Department must provide appropriate screening and assessments of a parent, the parent is responsible for disclosing to the Department and the juvenile court information regarding his or her mental impairment or other disability. And the parent should also identify any modifications that he or she believes are necessary to accommodate the disability.

¶ 22 The Department can accommodate, and the juvenile court can address, only disabilities that are known to them. See In re Hicks/Brown , 500 Mich. 79, 893 N.W.2d 637, 640 (2017). In other words, before a public entity can be required under the ADA to provide reasonable accommodations, the entity must know that the individual is disabled, either because that disability is obvious or more likely because that individual, or someone else, has informed the entity of the disability. Id. (citing Robertson v. Las Animas Cty. Sheriff's Dep't , 500 F.3d 1185, 1196 (10th Cir. 2007) ).

¶ 23 In this case, as the juvenile court recognized in its termination order, and the Department did not dispute, each parent has serious intellectual or developmental disabilities. Mother's neuropsychological evaluation showed that she had a low average intelligence quotient (IQ) and a neurodevelopmental or neurocognitive disorder characterized by difficulties with complex attention and language. She also had an unspecified personality disorder with borderline traits. The neuropsychological evaluator diagnosed father with borderline intellectual functioning based on his IQ and possible symptoms of a premorbid anxiety disorder.

¶ 24 The juvenile court concluded that the parents' low IQs and developmental disabilities severely limited their ability to provide appropriate care for the child. And it had previously appointed a GAL for mother and father based on each parent's mental illness or developmental disability. Under these circumstances, the parents' mental impairments were disabilities under the ADA. See C.Z. , ¶ 14 (concluding that borderline intellectual functioning and mental illness diagnoses that impeded the parents' ability to parent the child were disabilities under the ADA).

D. ADA's Application to Treatment Plans and Reasonable Efforts

¶ 25 As past divisions of this court have recognized, the ADA does not restrict a juvenile court's authority to terminate parental rights when the parent, even after reasonable accommodation of a disability, is unable to meet his or her child's needs. Id. at ¶ 17 ; see also People in Interest of T.B. , 12 P.3d 1221, 1223 (Colo. App. 2000). But, while Title II of the ADA is not a defense to termination of parental rights, it applies to the provision of assessments, treatment, and other services that the Department makes available to parents through a dependency and neglect proceeding before termination. C.Z. , ¶¶ 19, 22.

¶ 26 Courts in other jurisdictions have also determined that the requirement to make reasonable accommodations for a parent's disability affects the scope of rehabilitative services offered to the parent.

¶ 27 For example, the Alaska Supreme Court has recognized that family reunification services should be provided in a manner that takes a parent's disability into account. Lucy J. v. State, Dep't of Health & Soc. Servs. , 244 P.3d 1099, 1115 (Alaska 2010). And it concluded that reunification services are contemplated within Title II of the ADA.

Id. at 1116. Thus, it reasoned, whether reunification services reasonably accommodated a parent's disability is included in the question whether reasonable efforts were made to reunite the family. Id.

¶ 28 Similarly, the Massachusetts Supreme Judicial Court determined that the ADA requires a department to accommodate the parent's special needs in providing services before a termination proceeding. In re Adoption of Gregory , 434 Mass. 117, 747 N.E.2d 120, 125-26 (2001). And the Michigan Court of Appeals held that reunification services must comply with the ADA. In re Terry , 240 Mich.App. 14, 610 N.W.2d 563, 570 (2000).

¶ 29 The District of Columbia Court of Appeals also expressed its agreement with the numerous other courts that have held or assumed that the ADA's requirement for public agencies to make reasonable accommodations applies to reunification services provided by states to parents whose children have been removed in neglect proceedings. H.C. , 187 A.3d at 1265. It explained that the requirement of reasonable accommodations was entirely consistent with, and perhaps subsumed within, an agency's general statutory obligation to expend reasonable efforts to make reunification possible. Id.

¶ 30 The United States Departments of Health and Human Services and Justice have also provided guidance on this subject. See U.S. Dep't of Health & Human Servs. & U.S. Dep't of Justice, Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (Aug. 2015), https://perma.cc/AHU2-P29Y (Technical Assistance Document). They explain that individuals with disabilities must be provided opportunities to benefit from or participate in child welfare programs, services, and activities that are equal to those extended to individuals without disabilities. Id. And, to achieve that goal, agencies must make reasonable changes in their practices and services to accommodate the individual needs of a disabled parent. Id. The requirement to make reasonable accommodations extends to programs and activities of private and nonprofit agencies that provide services to children and families on behalf of a child welfare agency. Id.

¶ 31 Consistent with these federal guidelines, section 19-3-100.5(5), C.R.S. 2018, provides, in turn, that reasonable efforts are satisfied when a Department offers services in accordance with section 19-3-208 and "when full consideration has been given to the provisions of section 24-34-805(2)." And section 19-3-208(2)(g) requires that services provided under that section comply with the ADA and its implementing regulations.

¶ 32 Finally, section 19-3-507(1)(c), C.R.S. 2018, which governs dispositional hearings, provides that

[i]f one or both of the parents have a disability, reasonable accommodations and modifications, as set forth in the federal "Americans with Disabilities Act of 1990", 42 U.S.C. sec. 12101 et seq., and its related amendments and implementing regulations, are necessary to ensure the treatment plan components are accessible. If applicable, any identified accommodations and modifications must be listed in the report prepared for the dispositional hearing.

¶ 33 In sum, absent reasonable modifications to the treatment plan and rehabilitative services offered to a disabled parent, a department has failed to perform its duty under the ADA to reasonably accommodate a disability and, in turn, its obligation to make reasonable efforts to rehabilitate the parent. See Hicks/Brown , 893 N.W.2d at 640. And because of this failure, an unmodified plan or rehabilitative service does not satisfy the criteria for terminating parental rights under section 19-3-604(1)(c). See S.N-V. , 300 P.3d at 915 ; see also People in Interest of D.G. , 140 P.3d 299, 304 (Colo. App. 2006) (concluding that the juvenile court erred in finding that the Department had provided appropriate rehabilitative services to a parent and, thus, in terminating parental rights).

¶ 34 For these reasons, when a parent involved in a dependency and neglect proceeding has a disability under the ADA, the Department and the juvenile court must account for and, if possible, make reasonable accommodations for the parent's disability when devising a treatment plan and providing rehabilitative services to the parent. And in deciding whether to terminate parental rights under section 19-3-604(1)(c), a juvenile court should consider whether reasonable accommodations were made for the parent's disability in determining whether the parent's treatment plan was appropriate and reasonable efforts were made to rehabilitate the parent.

¶ 35 What constitutes a reasonable accommodation will be based on an individual assessment. C.Z. , ¶ 25. For example, the Technical Assistance Document explains that many parents, with or without disabilities, may require training to develop appropriate parenting skills. When, as here, a parent has a cognitive or other mental disability and needs help acquiring parenting skills, child welfare agencies may need to provide "enhanced or supplemental training, to increase frequency of training opportunities, or to provide such training in familiar environments conducive to learning" and "incorporate the use of visual modeling or other individualized techniques to ensure equal opportunity to participate in and benefit from the training." Technical Assistance Document 10, 15. Technical Assistance Document 5; see also H.C. , 187 A.3d at 1266.

¶ 36 Even so, in considering whether reasonable accommodations can be made for a parent's disability, the juvenile court's paramount concern must remain the child's health and safety. C.Z. , ¶ 32. In other words, the ADA does not protect a parent who, even by virtue of his or her disability, poses a safety risk to others. Id. Nor does the requirement to make reasonable accommodations lower the standards for parents with disabilities. Technical Assistance Document 5.

¶ 37 Of course, the juvenile court's assessment of what constitutes a reasonable accommodation must take into account the child's best interests and need for permanency. See State in Interest of K.C. , 362 P.3d 1248, 1253 (Utah 2015). For example, the requirement to make reasonable accommodations under the ADA does not force the court indefinitely to extend the time that a parent is given to participate in rehabilitative services. Id. (recognizing that the ADA does not afford a parent the right to extend a reunification plan indefinitely).

¶ 38 As well, the duty to make reasonable accommodations does not require a public entity to make modifications that would fundamentally alter the nature of its services, programs, or activities. C.Z. , ¶ 25 ; see also 28 C.F.R. § 35.130(b)(7). Rather, the ADA requires only accommodations that are reasonable. K.C. , 362 P.3d at 1253 ; see also Pruett v. Arizona , 606 F.Supp.2d 1065, 1079 (D. Ariz. 2009). A modification is reasonable if it is used ordinarily or in the run of cases and will not cause undue hardship. See Nat'l Fed'n of the Blind v. Lamone , 813 F.3d 494, 507 (4th Cir. 2016). Thus, for example, an accommodation may not be reasonable if it would require a prohibitive cost or extraordinary effort on the part of the public entity. Id.

¶ 39 In the end, what constitutes a reasonable accommodation will vary from case to case based on the child's health and safety needs, the nature of the parent's disability, and the available resources.

¶ 40 Having reached this conclusion, we must next determine whether the juvenile court properly determined that the Department had made reasonable accommodations for mother's and father's disabilities.

E. Standard of Review and Application

¶ 41 Whether a juvenile court properly terminated parental rights presents a mixed question of fact and law because it involves application of the termination statute to evidentiary facts. People in Interest of L.M. , 2018 COA 57M, ¶ 17, 433 P.3d 114 (citing People in Interest of S.N. v. S.N. , 2014 CO 64, ¶ 21, 329 P.3d 276 ). The credibility of the witnesses; the sufficiency, probative value, and weight of the evidence; and the inferences and conclusions to be drawn from these evidentiary facts are within the juvenile court's discretion. People in Interest of A.J.L. , 243 P.3d 244, 250 (Colo. 2010). Hence, we will not set aside a juvenile court's factual findings when they have support in the record. Id. at 249-50. However, when deciding mixed questions of fact and law, we review the legal conclusions de novo. L.M. , ¶ 17.

1. The Juvenile Court's Conclusions

¶ 42 The juvenile court considered the many services offered to the parents and concluded that the Department had provided services, including parenting instruction, that reasonably accommodated the parents' limitations. It also determined that the parents' treatment plans were appropriate and that the Department had made reasonable efforts to rehabilitate the parents.

2. The Parents' Treatment Plans

¶ 43 Mother first argues that the juvenile court erred in finding that her plan was appropriate because it did not include a requirement that she attend training to learn how to meet the child's heightened medical needs. The record shows that the child had heightened needs. In the beginning of the case, the child was diagnosed with a variety of medical conditions, including failure to thrive as an infant, severe protein calorie malnutrition, gastroesophageal reflux, umbilical granuloma (a lesion), anisocoria, tongue tie (which could make feeding and weight gain difficult), passive smoke exposure, and a high-risk social situation.

¶ 44 Although the child's conditions had improved, her pediatrician continued to characterize her as a medically complicated child. He explained that the child had multiple medical conditions, including abnormal eye movement (nystagmus ), a developmental delay, delay in growth, and the possibility of a serious metabolic disorder.

¶ 45 While mother's treatment plan did not specifically require her to attend medical training for the child, it did include a provision that required her to be able to safely care for the child by working with an in-home parenting support provider. This provision effectively required mother to participate in a service that would prepare her to care for the child's needs.

¶ 46 Next, mother argues that her treatment plan was inappropriate because it did not require her to engage in couples counseling with father. Mother correctly notes that several witnesses identified concerns about bickering between the parents during visits. Both the court-appointed special advocate (CASA) assigned to the case and a separate CASA who intermittently supervised visits described such behavior. The child's occupational therapist likewise reported that the parents bantered, which she characterized as more explosive than arguing, during her sessions.

¶ 47 True, the parents' expert recommended that they participate in individual and couples therapy geared for adults with learning and mental health needs. However, this recommendation came about as a result of mother's evaluation that was conducted the same month of the termination hearing.

¶ 48 In contrast, the professionals who evaluated the parents earlier in the case believed that mother should engage in therapeutic services. And the record does not show that they or the other treatment professionals working with the parents recommended couples counseling. As a result, mother's argument that the treatment plan was inappropriate because it did not include a requirement that she engage in couples counseling with father falls short. See People in Interest of A.E. , 749 P.2d 450, 452 (Colo. App. 1987) (recognizing that the appropriateness of a treatment plan's requirements must be assessed in light of the realities extant at the time of its adoption).

¶ 49 Finally, mother asserts that the treatment plan was inappropriate because it did not include accommodations for her intellectual disability and was not amended to include individualized treatment after the Department learned of her diagnoses from the neuropsychological evaluator. However, because mother fails to identify what accommodations or individualized treatment should have been incorporated into the plan, we are unable to consider this assertion.

¶ 50 Father asserts that his treatment plan was inappropriate because it did not account for his disabilities. But, like mother in her final assertion, he does not identify what additional components or accommodations should have been included in the plan. As a result, we are also unable to consider father's argument.

¶ 51 For these reasons, we discern no error in the juvenile court's determination that the parents' treatment plans were appropriate. 3. Reasonable Efforts and the Provision of Rehabilitative Services

¶ 52 We first address mother's and father's assertion that the Department did not make efforts to implement the recommendations contained in their capacity to parent and neuropsychological evaluations. Then we conclude that the record does not support this assertion.

¶ 53 The therapist who completed the capacity to parent evaluation recommended that mother and father engage in therapeutic services to treat their mental health issues. Specifically, she believed that mother needed to address her childhood experiences and depression, disordered personality, relationship issues, and poor social skills. The therapist believed that father's therapy should focus on his childhood experiences, feelings of emotional distress, symptoms of anxiety, and sleep disturbances, as well as other feelings regarding losing control and feeling misunderstood. The psychologist who completed the neuropsychological evaluations believed that mother would benefit from dialectical behavior therapy to treat her personality disorder because it would fit within the limits of her neurocognitive deficits.

¶ 54 The record shows that both parents received mental health services. Mother completed a mental health assessment and began seeing a therapist sometime in 2016. The caseworker also tried to coordinate dialectical behavior therapy for mother after receiving the neuropsychological evaluation. However, mother missed the first module that was necessary to start treatment and was unable to participate in the program. Father participated in individual therapy during the case.

¶ 55 In addition to therapeutic services, the psychologist opined that mother's deficits in complex attention and language warranted accommodations. He recommended that her neurocognitive disorder be accommodated by giving her additional time to complete tasks, making sure that she was able to explain a concept in her own words, communicating with her in a written format, and giving repeated instructions.

¶ 56 Many of these accommodations were made during the parenting instruction and coaching provided to the parents. For example, the child's occupational therapist began working with the parents in May 2017 - first for one hour each week and then two hours each week. During each session, the occupational therapist tried to mimic a home environment and worked on skills such as feeding; play that incorporated motor, perceptual, and cognition skills for the child; and a pre-nap routine. The occupational therapist explained that she assessed whether skills or information needed to be repeated for the parents.

¶ 57 The occupational therapist also tried different methods for helping the parents learn developmental skills for the child, including giving them a "help chart" that broke down each month of a child's development; modeling the task that she wanted them to do or the behavior (such as cruising) that she wanted to see from the child; and giving direct feedback when the parents got something right.

¶ 58 Besides working with the child's occupational therapist, the parents also received between two to four hours of parent coaching each week beginning in March 2017. The parenting coach explained that she tried different styles of teaching, including offering instructions or recommendations as well as role modeling how to handle the situation. She would also give the parents handouts with information they could take home, read, and return with a sheet that they had filled out based on the information that they read.

¶ 59 Additionally, the CASA assigned to the case testified that while she was not allowed to coach the parents during visits, she would ask follow-up questions to see if they understood the information that was given to them during visits with the child.

¶ 60 The psychologist explained that father, who had an extensive drug history which included daily methamphetamine use for six to seven years, was taking a large dose of prescribed Xanax and had possibly migrated from one substance to another. Thus, he recommended that father participate in an inpatient substance abuse program. The psychologist also recommended that father receive coordination of care between his mental health therapist, a psychiatrist who was prescribing the Xanax, and his primary care physician.

¶ 61 Father resisted these recommendations. The caseworker testified that father refused her efforts to coordinate care between his mental health provider, his psychiatrist, and his primary care physician. And he would not agree to participate in inpatient treatment. The caseworker further explained that the Center for Mental Health controlled the Department's funding for inpatient treatment and would not provide it unless one of their treatment providers supported the recommendation. Father's psychiatrist was one of the center's treatment providers and did not support the recommendation.

¶ 62 The parents' arguments that the Department offered limited and delayed visitation services and parenting education fare no better. True, the parents were only able to start parenting classes offered through CASA in the month before the termination hearing. Still, supervised visitation services and, later, hands-on parenting instruction were offered throughout the case.

¶ 63 Visitation services began at the Department in July 2016. During these initial visits, the caseworker provided direction - verbal instructions as well as demonstrations - when the parents appeared to have a deficit in their understanding of the child's needs. In early September 2016, visits moved to a CASA office; the next month, visits moved to a different CASA office that was closer to the child's placement. The CASA who supervised visits from October 2016 through February 2017 and then again in July 2017 testified that she provided feedback to the parents during visits. She also knew that the parents had been given a schedule of the child's routine.

¶ 64 The Department initially arranged for the parents to have a one-hour visit twice each week, but later increased the schedule to two four-hour visits each week. The caseworker also arranged for the parents to be present for a surgical procedure for the child that involved a muscle biopsy, EEG, and MRI. Because the procedure occurred in Denver, she gave the parents money for gas and food, rented the parents a hotel room, and supervised them while they spent time with the child both pre- and post-operation.

¶ 65 Recall, the parents received several hours of parent coaching and occupational therapy sessions with the child each week. True, parent coaching was implemented about seven months after the court adopted the treatment plan and the occupational therapy sessions began two months later. Still, the parents had seven and five months, respectively, to engage in these weekly services before the termination hearing.

¶ 66 The record also does not support the parents' assertions that the professionals providing parenting education were unqualified to coach disabled parents and gave them conflicting information. The child's occupational therapist had experience working with individuals with disabilities - she had done volunteer work with the Board for Developmental Disabilities, worked at a school for children with disabilities, and had previously worked with other parents who had developmental disabilities to teach them the skills for managing their child's care.

¶ 67 Although the occupational therapist had not reviewed the parents' evaluations, the caseworker did tell her about some of the evaluators' recommendations. Additionally, the occupational therapist explained that it became apparent to her that modeling behaviors and calling out interaction styles to the parents, as well as giving more education about the child's developmental level, would be helpful. She did both.

¶ 68 The parenting coach conceded that this was the first time she had worked with parents who had intellectual deficits or delays. However, the caseworker asked the parenting coach to make accommodations for the parents such as demonstrating how to properly feed the child. And the parenting coach did so.

¶ 69 The caseworker agreed that the occupational therapist and the parenting coach had different approaches to working with the parents. She noted that the occupational therapist used hands-on demonstration, while the parenting coach would step back, observe, and then integrate instruction and demonstration. And, as the juvenile court recognized, these providers may have given mixed messages about whether to use a bottle or sippy cup with the child. Yet, as the court concluded, the record does not show that these providers otherwise gave conflicting instructions to the parents.

¶ 70 Mother further argues that the Department did not make reasonable accommodations because it only sought to amend the treatment plan and implement the recommendations from her neuropsychological evaluation after it had decided to pursue termination. The caseworker admitted that she had discussed an adoptive home for the child in November 2016. She also acknowledged that the Department had decided to pursue termination of parental rights as early as January 2017. However, the caseworker clarified that the Department did not file for termination for another six months because she found the parenting coach and wanted her opinion. And as the juvenile court concluded, the record did not suggest that the Department had withdrawn services or reduced visits based on its earlier consideration of termination.

¶ 71 Finally, we note that father asserts that the Department failed to provide him with adequate assessments, treatment, and other relevant services to enable him to meet the child's basic needs. Yet, he does not explain why the assessments that the Department provided - the capacity to parent and neuropsychological evaluations - were insufficient or identify other assessments that were needed. And apart from his arguments that have already been addressed, he does not identify other treatment or services that would have accommodated his disability and enabled him to parent the child.

¶ 72 For these reasons, the juvenile court properly concluded that the Department made reasonable efforts to rehabilitate the parents and provided services that reasonably accommodated the parents' disabilities. Thus, we will not disturb its conclusion on appeal.

III. Parental Fitness and Likelihood of Change

¶ 73 Mother contends the juvenile court erred in finding that she was an unfit parent and her conduct or condition was unlikely to change in a reasonable time. The record shows otherwise.

¶ 74 An unfit parent is one whose conduct or condition renders him or her unable or unwilling to give a child reasonable parental care. People in Interest of D.P. , 160 P.3d 351, 353 (Colo. App. 2007). Reasonable parental care requires, at a minimum, that the parent provide nurturing and safe parenting sufficiently adequate to meet the child's physical, emotional, and mental health needs. People in Interest of A.J. , 143 P.3d 1143, 1152 (Colo. App. 2006).

¶ 75 In determining whether a parent can become fit within a reasonable time, the court may consider whether the parent made any changes during the dependency and neglect proceeding, the parent's social history, and the chronic or long-term nature of the parent's conduct or condition. D.P. , 160 P.3d at 353. A reasonable time is not indefinite and must be determined by considering the child's conditions and needs. A.J. , 143 P.3d at 1152.

¶ 76 As mother points out, the occupational therapist agreed that mother had shown improvements in some of the daily routines with the child. The parents' expert witness also observed that mother showed significant changes between her evaluation by another expert a year earlier and the expert's parent-child interactional evaluation in October 2017.

¶ 77 Despite this progress, the parents' expert did not believe that the child could safely be reunited with the parents. The caseworker also agreed that mother had tried during the case, but still believed that mother had not been able to develop a parenting relationship with the child and continued to struggle with empathy for others. Both the caseworker and the CASA who supervised visits described mother treating the child like she was a doll. The caseworker elaborated that while mother loved the child, she was unable to keep her safe, nourish her, and provide her with appropriate stimulation.

¶ 78 Similarly, the parenting coach opined that mother could not safely parent the child. She expressed concern that mother would not be able to keep up with the child's growth and development because it would take too long for mother to learn information and consistently implement it and, by that time, the child's needs would change.

¶ 79 During the pendency of the case, mother received a deferred criminal sentence for child abuse involving bodily injury to another child. Father had also told the parents' expert that he had concerns about the child returning to his home because mother could be short-tempered and impatient. The psychologist who evaluated mother expounded that the traits of mother's borderline personality disorder included a tendency to impulsively get very angry and to have unstable and intense interpersonal relationships.

¶ 80 Mother asserts that the record shows that she could become a fit parent in a reasonable time with coaching geared towards individuals with disabilities. The parents' expert believed that the parents could be successfully reunited with the child if they received additional services. However, the expert estimated that the treatment would take a minimum of six additional months.

¶ 81 In contrast, the caseworker opined that the child needed a permanent home. Because the child was under the age of six when the petition was filed, the expedited permanency planning provisions applied and required that she be placed in a permanent home within twelve months of her initial out-of-home placement. §§ 19-1-102(1.6), 19-1-123, 19-3-703, C.R.S. 2018; People in Interest of M.T. , 121 P.3d 309, 313 (Colo. App. 2005). And the psychologist who evaluated mother opined that mother's personality disorder was a longstanding pattern of personality characteristics and dysfunction that were unlikely to change over time.

¶ 82 Given this record, we discern no error in the juvenile court's conclusions that mother was an unfit parent and her conduct or condition was unlikely to change in a reasonable time.

IV. Less Drastic Alternative to Termination

¶ 83 Finally, father contends placing the child with the paternal grandmother was a viable less drastic alternative to termination. Again, the record does not support him.

¶ 84 When considering termination under section 19-3-604(1)(c), the court must also consider and eliminate less drastic alternatives to termination. M.M. , 726 P.2d at 1122. This determination is implicit in, and thus intertwined with, the statutory criteria for termination. Id. at 1122-23. As a result, the determination is influenced by the parent's fitness to meet his or her child's needs. People in Interest of A.R. , 2012 COA 195M, ¶ 38, 310 P.3d 1007.

¶ 85 But the juvenile court must give primary consideration to the child's physical, mental, and emotional conditions and needs when considering less drastic alternatives to termination. § 19-3-604(3) ; D.P. , 160 P.3d at 356. Thus, placement with a grandparent is not a viable alternative to termination if the grandparent lacks appreciation of the parent's problems or of the child's conditions or needs. People in Interest of D.B-J. , 89 P.3d 530, 531 (Colo. App. 2004).

¶ 86 The record shows that an out-of-state home study of the paternal grandmother resulted in her being denied for placement of the child. The grandmother had a medical condition that would not allow her to care for the child without assistance and she wanted either father or both of the parents to help her care for the child. However, father was unable to adequately feed the child, understand her cues, or attend to her needs. And, as previously discussed, mother was also unable to meet the child's needs.

¶ 87 For these reasons, the record supports the juvenile court's determination that there was no less drastic alternative to termination and we will not disturb it on appeal.

V. Conclusion

¶ 88 The judgment is affirmed.

JUDGE ROMÁN and JUDGE FREYRE concur.

      Although the juvenile court did not make a finding that the Department was a recipient, it has not argued otherwise on appeal.

      If disability status is disputed, the juvenile court should make a finding.

      In April 2018 - about three months after the court issued the termination judgment in this case - the General Assembly enacted legislation concerning family preservation safeguards for parents with disabilities. The legislation created section 24-34-805, C.R.S. 2018. See Ch. 164, sec. 1, § 24-34-805, 2018 Colo. Sess. Laws 1131. Section 24-34-805(2)(a)(III) states that a parent's disability alone must not serve as a basis for denial or restriction of parenting time or parental responsibilities in a dependency and neglect proceeding except when it impacts the child's health or welfare.

      The juvenile court should also make a finding whether reasonable accommodation has occurred.


source: Caselaw Access Project

author: Opinion by JUDGE J. JONES

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Emily Elizabeth COHEN, Defendant-Appellant.
    Court of Appeals No. 15CA0982
    Colorado Court of Appeals, Division V.
    Announced March 21, 2019
    Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE J. JONES

¶1 Defendant, Emily Elizabeth Cohen, a formerly licensed Colorado lawyer, appeals the judgment of conviction entered on jury verdicts finding her guilty of thirteen counts of theft. Among the issues we address is whether defendant opened the door to extensive evidence of the investigations the Colorado Office of Attorney Regulation Counsel (OARC) conducted on her, and the results of those investigations. We conclude that while some evidence of the fact of and basis for the investigations could come in, much of the evidence about the investigations, and OARC's findings, shouldn't have. In so concluding, we reject the People's argument that defendant opened the door to all of the admitted evidence, and discuss the limits of the opening the door doctrine. In the end, we hold that the district court erred in admitting three OARC complaints against defendant, and that the error wasn't harmless. We therefore reverse the judgment of conviction and remand the case for a new trial.

I. Background

¶2 Defendant practiced law in Boulder, specializing in immigration law. The People charged her with fifty-four counts of theft, each relating to her alleged mishandling of client funds. More specifically, the People alleged that defendant took cash payments up front and then didn't do the work she had agreed to do, became difficult or impossible to contact, and didn't provide her clients with refunds.

¶3 The People ultimately tried defendant on twenty-one of the charges. The prosecution called over a dozen witnesses, including several of defendant's former clients, many of whom testified as to their payments, defendant's failure to perform services, and their difficulty getting in touch with her.

¶4 But a significant portion of the eleven-day trial focused on defendant's ethical obligations under the Colorado Rules of Professional Conduct (RPC) and her failure to comply with those obligations. For example, the prosecution presented evidence that defendant spent client payments before earning them and often deposited as yet unearned payments into her personal accounts rather than into her attorney trust (COLTAF) account. OARC employees testified concerning attorneys' ethical obligations under the RPC and that defendant had been under investigation since 2012 for possible ethical violations. The court admitted into evidence letters that defendant had received from OARC informing her of the investigation. Over defense counsel's objections, the court also admitted three of the complaints that OARC had filed against her. And the district court allowed another attorney to testify at some length about her concerns that defendant hadn't behaved honestly and ethically in a variety of ways, none of which related to the handling of client funds.

¶5 The district court instructed the jury on the elements of theft and gave an instruction containing language from one of the Rules of Professional Conduct relating to the handling of client funds. That instruction (Instruction 11) quoted Colo. RPC 1.15A : "A lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in trust accounts[.]" It also included other language, not directly quoting the RPC, explaining that client funds are not the attorney's property until the attorney earns them by "provid[ing] some benefit or service in exchange for the fee...."

¶6 After some deliberation, the jurors asked the court whether they could use the OARC RPC charging decisions to inform their decision-making; whether the OARC's standard for verifying the receipt of money by an attorney was the standard they should apply; whether failure to deposit client funds into a COLTAF account before earning fees constitutes "intent to permanently deprive" (one of the elements of theft); and whether earning fees at a later time can undo a prior COLTAF violation. The jurors also indicated that they were deadlocked on at least one charge. Perhaps without consulting defense counsel (the record isn't clear whether the attorneys were even in the room; defendant claims they weren't), and without defendant present, the court responded to the jurors' questions noted above by merely telling them they had all the evidence they were to consider, they should follow the instructions, and these were issues for them to decide. The court (also apparently without consulting counsel and outside counsel's and defendant's presence) also read the jurors a modified Allen instruction.

¶7 The jury continued deliberating and returned guilty verdicts on thirteen counts. It hung on one and acquitted on the remaining seven.

II. Discussion

¶8 Defendant contends the district court erred by (1) admitting the OARC complaints; (2) including the instruction about an attorney's ethical obligations vis-a-vis earning fees and handling client funds; (3) allowing another immigration attorney to respond at length to a juror's question about defendant's "red flags"; (4) responding to jurors' questions without consulting with her counsel and outside her and her counsel's presence; and (5) giving the jury a modified Allen instruction without consulting her counsel and outside her and her counsel's presence. We agree with defendant that reversal is required based on the court's erroneous admission of the OARC complaints. We also address the jury instruction issue because it's likely to arise again on remand.

A. OARC Complaints

¶9 First, defendant contends that the district court erred by admitting the three OARC complaints into evidence. She argues that the complaints were inadmissible for a number of reasons. We conclude that while certain facts pertaining to the complaints had some relevance to the charges, the complaints themselves are replete with inadmissible hearsay. We also conclude that allowing all this hearsay into evidence violated defendant's Sixth Amendment right to confrontation, and that, on the whole, the danger of unfair prejudice, confusion of the issues, and misleading the jury substantially outweighed the complaints' limited probative value. Because the error in admitting the totality of these complaints wasn't harmless, we must reverse defendant's convictions.

1. Standard of Review

¶10 Ordinarily, we review a district court's evidentiary rulings for an abuse of discretion. Dunlap v. People , 173 P.3d 1054, 1097 (Colo. 2007) ; People v. Clark , 2015 COA 44, ¶ 14, 370 P.3d 197. But to the extent such rulings impact a defendant's rights under the Confrontation Clause, we review challenges to them de novo. Bernal v. People , 44 P.3d 184, 198 (Colo. 2002).

¶11 The People concede that defendant preserved hearsay, Confrontation Clause, and relevance/undue prejudice objections to the complaints. So if we conclude that the court erred in applying the Colorado Rules of Evidence, we must then reverse unless the People show that the error was harmless, meaning that there is no reasonable possibility that it contributed to defendant's convictions. Pernell v. People , 2018 CO 13, ¶ 22, 411 P.3d 669 ; see James v. People , 2018 CO 72, ¶ 18, 426 P.3d 336. If we conclude that the court violated defendant's constitutional right of confrontation, we must reverse unless the People show that the error was harmless beyond a reasonable doubt. Nicholls v. People , 2017 CO 71, ¶ 17, 396 P.3d 675 ; Hagos v. People , 2012 CO 63, ¶ 11, 288 P.3d 116.

2. Applicable Law

¶12 Hearsay - a statement by one other than the declarant while testifying that is offered to prove the truth of the matter asserted - is generally inadmissible. CRE 801(c) ; CRE 802 ; People v. Phillips , 2012 COA 176, ¶ 61, 315 P.3d 136. Such statements are "presumptively unreliable." Blecha v. People , 962 P.2d 931, 937 (Colo. 1998). But a statement isn't hearsay if it's offered for a purpose other than to prove the truth of the matter asserted - for example, to show its effect on the listener. People v. Robinson , 226 P.3d 1145, 1151 (Colo. App. 2009). In such circumstances, the statement may be admissible.

¶13 The Confrontation Clause says that in "all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The United States Supreme Court has held that this clause bars out-of-court testimonial statements unless the declarant is available to be cross-examined or the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Generally, a statement is testimonial if its primary purpose is to establish or prove past events potentially relevant to a later trial. Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; see also Crawford , 541 U.S. at 51-52, 124 S.Ct. 1354.

¶14 Even apart from hearsay and Confrontation Clause limitations, evidence must, of course, be relevant - that is, it must have some tendency to make the existence of a fact of consequence more or less probable. CRE 401 ; CRE 402. But even if evidence is relevant, the court must still exclude it if the danger of unfair prejudice, confusion of the issues, or misleading the jury substantially outweighs that evidence's probative value. CRE 403.

3. The Complaints

¶15 OARC filed its first complaint against defendant in February 2011. That complaint alleged that defendant had failed to disclose information on her application to the Colorado bar, including her maiden name, certain employment history, and past due debts; that she had practiced law without a license; that she had testified falsely that she was licensed in Texas; and that she had filed false affidavits with the Denver County Court.

¶16 During defendant's trial in this case, the prosecutor sought to admit a copy of this complaint. Defense counsel objected based on relevance, hearsay, and confrontation. The court admitted the complaint over these objections but didn't say why.

¶17 OARC filed two more complaints against defendant in 2013 and 2014, respectively. These complaints included information similar to the criminal allegations against defendant (that she had kept clients' money despite doing little or no work on their cases), but discussed former clients not named in the criminal charges for which she was on trial. In total, the second and third complaints alleged seventy-eight RPC violations. But in addition to the information that tracked allegations in this case, the OARC complaints contained other negative allegations against defendant, including that she had incorrectly advised clients on how to qualify for certain visas.

¶18 Defense counsel objected to the admission of the second and third complaints on grounds of prejudice, relevance, CRE 404(b), and confrontation. The prosecutor responded that the complaints were relevant because they addressed "exactly the same kind of client handling issues" as those in the criminal case, and because they showed defendant's mental state. The court then admitted the complaints because they "put the defendant on notice of her obligations, and that definitely impacts the intent element in the pending complaint."

4. Analysis

a. Hearsay

¶19 The complaints are replete with OARC's and defendant's former clients' assertions of unethical conduct; many of the assertions don't have any bearing on whether defendant committed theft. To be sure, the fact that OARC had informed defendant of her ethical obligations concerning handling of client funds bore somewhat on defendant's knowledge and intent, but the lengthy complaints went far beyond those issues. Indeed, the first complaint didn't bear on those issues at all. And contrary to the People's assertion, the prosecution used the complaints for the truth of the matters asserted therein. For example, during cross-examination, the prosecutor asked defendant to confirm aspects of the first complaint (primarily relating to her honesty) and asked whether she agreed that "this is what [OARC] concluded after their investigation ...." During rebuttal closing, the prosecutor argued that the complaints showed that defendant had "committed perjury" before another judge and had in fact been untruthful on several occasions. The prosecutor also argued, by clear implication, that because the allegations in the latter two complaints were similar to those in this case, the jury could see there was truth in the criminal charges.

¶20 We aren't persuaded by the People's contention that the complaints weren't hearsay because they were admitted to show defendant's intent. The first complaint had nothing to do with mishandling client funds. It's true that defendant's receipt of the second and third OARC complaints put her on notice of her ethical obligations, and therefore cast some light on her intent. But the complaints themselves weren't necessary to make that point and, as discussed, weren't actually used to make it. By the time the prosecutor moved to admit each complaint, the jury had already heard testimony from OARC attorneys and defendant herself about the fact and bases of the investigations and establishing that defendant had received the complaints. So admitting the actual complaints added nothing of relevance to the prosecution's theory that defendant knew she was mishandling client funds.

¶21 Nor are we persuaded by the People's argument that the OARC complaints were admissible because defense counsel opened the door to them during opening statements. Otherwise inadmissible evidence can become admissible if the defendant first "opens the door" to it. See Golob v. People , 180 P.3d 1006, 1012 (Colo. 2008) ("When a party opens the door to otherwise inadmissible evidence, his opponent may then inquire into the previously barred matter.").

¶22 Defense counsel had implied during opening that the OARC investigations began because of "an inflammatory letter" sent by defendant's child's father and that the investigator was biased against her. And so, the People say, the complaints could come in. We aren't persuaded.

¶23 The concept of "opening the door" isn't unlimited. It "represents an effort by courts to prevent one party in a criminal trial from gaining and maintaining an unfair advantage by the selective presentation of facts that, without being elaborated or placed in context, create an incorrect or misleading impression." Id. So otherwise inadmissible rebuttal evidence "is permitted 'only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.' " United States v. Martinez , 988 F.2d 685, 702 (7th Cir. 1993) (quoting United States v. Winston , 447 F.2d 1236, 1240 (D.C. Cir. 1971) ); accord, e.g. , State v. Groce , 198 Vt. 74, 111 A.3d 1273, 1277 (2014) ; see generally 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 1:12, at 70-75 (4th ed. 2013) (discussing the necessary "fit" between the initial proof and the proposed counterproof). The opening the door doctrine, therefore, can be used only to prevent prejudice; it can't be used as an excuse to inject prejudice into the case. United States v. Johnson , 502 F.2d 1373, 1376 (7th Cir. 1974) ; United States v. Beno , 324 F.2d 582, 588-89 (2d Cir. 1963) ; State v. Batchelor , 135 Vt. 366, 376 A.2d 737, 740 (1977) (the doctrine isn't a tool for "prosecutorial 'over-kill' "); see Mueller & Kirkpatrick, § 1:12, at 73 (the doctrine is "supposed to prevent prejudice (not to introduce or exacerbate it)"). And in like vein, it doesn't "give an opponent unbridled license to introduce otherwise inadmissible evidence into the trial, nor does it justify receipt of rebuttal evidence merely because it is in the same category of excludable evidence as the evidence previously offered." Martinez , 988 F.2d at 702. "Where the rebuttal evidence does not directly contradict the evidence previously received, or goes beyond the necessity of removing prejudice in the interest of fairness," it shouldn't be admitted. Id. ; accord United States v. Jett , 908 F.3d 252, 271 (7th Cir. 2018) (and noting that "[t]he gist of the doctrine is proportionality and fairness"); see Mueller & Kirkpatrick, § 1:12, at 75 ("The question in each case is not whether initial proof shares some common quality with proof offered in response. Rather, it is whether the latter answers the former, and whether it does so in a reasonable way without sacrifice of other important values.").

¶24 This limited purpose is evident in the supreme court's reasoning in People v. Tenorio , 197 Colo. 137, 590 P.2d 952 (1979). In that case, during cross-examination, defense counsel asked an officer if he had drawn his gun when he approached the defendant. The officer said "yes." On redirect, the prosecutor asked the officer why he had drawn his gun, and the officer explained that the defendant was reported to have a weapon. The court had previously ruled this information inadmissible. The supreme court held that even though the information was otherwise inadmissible, the defense had opened the door to the topic by asking if the officer had drawn his gun. Id. at 145, 590 P.2d at 958. This is because the prosecutor "had a right to explain or rebut any adverse inferences which might have resulted" from that question. Id. at 146, 590 P.2d at 958.

¶25 Similarly, in People v. Davis , 312 P.3d 193 (Colo. App. 2010), aff'd on other grounds , 2013 CO 57, 310 P.3d 58, defense counsel asserted during his opening statement that a prosecution witness only provided helpful information to the police officer after her interview had become confrontational (suggesting that she had been coerced into changing her story). Id. at 196-97. A division of this court held that this opened the door to the officer's response to the prosecutor's question why the officer began questioning the witness in a more confrontational manner. Id. at 197.

¶26 These cases tell us, consistent with the out-of-state authority cited above, that when one party injects a particular issue into a case, the opposing party may introduce otherwise inadmissible evidence only to the extent necessary to "rebut any adverse inferences which might have resulted," Tenorio , 197 Colo. at 146, 590 P.2d at 958, or to correct "an incorrect or misleading impression." Golob , 180 P.3d at 1012.

¶27 In this case, the prosecutor actually discussed the OARC investigations before defense counsel did. But in light of the purpose of the "opening the door" rule, we'll assume that the defense's implicit characterization of the investigations as grounded in bias opened the door to further evidence on the matter.

¶28 Evidence that the complaints existed and evidence of why they were filed was admissible to rebut the implication that OARC had a vendetta against defendant. See id. ; Tenorio , 197 Colo. at 146, 590 P.2d at 958. (And for reasons discussed above, limited testimony about the complaints was admissible to show defendant's knowledge and intent.) Even so, the fact that defense counsel mentioned the OARC investigations and the investigator's supposed bias didn't give the prosecution carte blanche to introduce any and all evidence related to the investigations, including the entire complaints themselves, which contained a great deal of additional irrelevant and prejudicial information as well as OARC's conclusions that defendant had acted unethically. Nor did it give the prosecutor license to argue that the allegations in the complaints - many of which had nothing to do with client funds - were true. And we note that the court didn't do anything to limit the jury's consideration of the complaints to the issues of bias, knowledge, and intent.

¶29 In sum, we conclude that the complaints were, in very large part, inadmissible hearsay. It follows that the court erred in admitting the complaints, or at least in admitting them in their entirety.

b. Confrontation Clause

¶30 A statement is testimonial for Confrontation Clause purposes if it was made under circumstances that would lead an objective witness to believe that the statement would be available for use at a later trial. United States v. Summers , 414 F.3d 1287, 1301-02 (10th Cir. 2005) ; Compan v. People , 121 P.3d 876, 880 (Colo. 2005), overruled on other grounds by Nicholls v. People , 2017 CO 71, 396 P.3d 675.

¶31 The hearsay statements in the complaints by witnesses were testimonial. The declarants volunteered information to OARC knowing that their statements could be used to support an investigation of - and possible sanctions against - defendant. And they could have anticipated that a criminal investigation and criminal charges would result. See Davis , 547 U.S. at 821, 126 S.Ct. 2266 ; People v. Cevallos-Acosta , 140 P.3d 116, 129 (Colo. App. 2005) (the declarant's intent should be considered when determining whether a statement is testimonial). The People don't argue otherwise.

¶32 Only one of the declarants testified at trial. Defendant therefore didn't have an opportunity to question most of them about statements in the complaints. As a result, admitting the complaints in their entirety violated defendant's constitutional right to confrontation.

c. Danger of Unfair Prejudice

¶33 We also conclude that, even if we assume portions of the complaints had some relevance, that relevance was substantially outweighed by the danger of unfair prejudice. As discussed, admitting the complaints themselves wasn't necessary to show defendant's knowledge and intent or to rebut any implication of bias. And they contained a great deal of information about unrelated alleged ethical violations. Perhaps more importantly, the complaints added to the impression, clearly conveyed by the prosecution, that the case was about whether defendant had practiced law in accordance with her ethical obligations. Those ethical obligations, however, didn't set the standard for criminal culpability. As discussed below, the complaints, and much of the other evidence, actually confused the jurors; they didn't know whether a breach of ethical obligations established elements of the theft charges. Though we must assume the maximum probative value and minimum unfair prejudice of the evidence, see People v. Rath , 44 P.3d 1033, 1043 (Colo. 2002), the balance in this case clearly weighs against the admissibility of the complaints (again, at least in their entirety).

d. Harmlessness

¶34 Having determined that the district court erred, we must consider whether the People have shown that the error was harmless beyond a reasonable doubt. They haven't.

¶35 No doubt, there was sufficient admissible evidence that would support the guilty verdicts. But the prosecution spent a considerable amount of time, both during the evidentiary part of the trial and in closing, using the OARC complaints to demonstrate that defendant routinely lied and violated ethical rules. That evidence and argument painted defendant as dishonest and unethical. Indeed, the first complaint, which didn't have anything to do with alleged mismanagement of clients' money, established only that OARC believed defendant had lied repeatedly in unrelated matters.

¶36 The jurors asked a number of questions indicating that the OARC evidence deeply impacted their view of the case; they seemed to think that the ethical standards equated to some of the elements of theft. The trial's focus on the ethical violations no doubt led to their confusion about how to apply the law and reach a verdict.

¶37 True, the jury acquitted defendant of some charges. But, contrary to the People's suggestion, that doesn't preclude the existence of a reasonable possibility that the inadmissible evidence influenced the jury's guilty verdicts. And we conclude that there is such a possibility. We must therefore reverse the judgment.

B. Jury Instructions

¶38 We address defendant's contention regarding the instruction on handling client funds because the issue whether such an instruction is appropriate is likely to arise in the event of a retrial.

¶39 As noted, in addition to the instructions defining the elements of theft, the court gave the jury an instruction - Instruction 11 - quoting provisions of the RPC and defining when an attorney "earns" the money her clients pay her. The court provided no explanation of how the jury was to apply that instruction. And the jury indicated it didn't understand how to apply it: the jurors submitted a question to the court asking whether failure to deposit client funds into a COLTAF account established the intent element of theft. In response, the court merely referred the jury back to the instructions.

¶40 A court must accurately instruct the jury on the law relevant to each issue presented, but it must not give an instruction that misstates the law or "unduly emphasizes some part of the evidence." People v. Ellsworth , 15 P.3d 1111, 1116 (Colo. App. 2000). If the court gives the jury an instruction that contains technical information separate from the elements of the crimes at issue, the court should explain the instruction so that the jury can understand what it means and how to apply it. See Pueblo Bank & Tr. Co. v. McMartin , 31 Colo. App. 546, 549, 506 P.2d 759, 761 (1972) (it was reversible error to include language of a highly technical statute in the jury instructions without sufficient explanation how the jury could properly interpret its meaning and apply it). And, when a jury asks a question, an additional instruction is appropriate unless

(i) the jury may be adequately informed by directing [its] attention to some portion of the original instructions; (ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or (iii) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.

Leonardo v. People , 728 P.2d 1252, 1255 (Colo. 1986).

¶41 The language of Instruction 11 wasn't objectionable. The instruction accurately stated Colorado's ethical rules on how an attorney should handle client funds. And it could have helped the jurors understand the elements "without authorization" and "intent" in the context of the case. But the instruction was, at best, incomplete: the district court didn't tell the jurors how to use the instruction and what its limits were. In not doing so, the court erred.

¶42 The jury's confusion about how to apply Instruction 11 was evident. Even after hearing all the instructions and deliberating, we know that at least one juror was unclear on how a violation of attorney ethical rules would impact the determination of defendant's guilt. At that point, the district court had another opportunity to tell the jury how it could consider defendant's failure to deposit client funds into her COLTAF account. The court should have done so.

¶43 On remand, in the event of a new trial, any instruction along these lines must be accompanied by an explanation of how it bears on the issues that the jury must resolve and must make clear that violations of ethical rules don't, by themselves, prove any of the elements of theft.

III. Conclusion

¶44 We reverse the judgment and remand the case for a new trial. In the event of a new trial, the court should maintain a tight rein on what evidence is introduced and how the jury is instructed so that the trial doesn't again devolve into largely an extended inquiry into defendant's compliance with her ethical obligations.

JUDGE TERRY and JUDGE GROVE concur.

      A COLTAF account is a type of trust account an attorney may use for all fees not yet earned (among other things). See Colo. RPC 1.15B. "COLTAF" stands for Colorado Lawyer Trust Account Foundation.

      A modified Allen instruction is a supplemental jury instruction that the court may provide when the jury indicates that it can't come to unanimous agreement. In essence, it urges jurors to do so without sacrificing their independent judgment. Gibbons v. People , 2014 CO 67, ¶ 1, 328 P.3d 95.

      The supreme court has recently articulated the tests for determining harmlessness beyond a reasonable doubt and harmlessness in identical terms: whether there is a reasonable possibility that the error contributed to the conviction. E.g. , Zoll v. People , 2018 CO 70, ¶ 18, 425 P.3d 1120 (citing Hagos v. People , 2012 CO 63, ¶ 11, 288 P.3d 116 ) (harmless beyond a reasonable doubt); Pernell v. People , 2018 CO 13, ¶ 22, 411 P.3d 669 (harmless). With all due respect, given that the prosecution has the burden under either standard, that can't be right. As a matter of logic, and as the court recognized in Hagos , ¶ 12, reversal must be more difficult to obtain under the harmless error standard than under the harmless beyond a reasonable doubt standard. Perhaps the supreme court should resolve this conundrum.

      The People had charged defendant with theft in relation to three of the clients mentioned in these complaints. But before trial, they had dismissed two of those charges without prejudice. So only one of the allegations in the complaints involved the specific conduct for which defendant was on trial at the time.

      See also People v. Pernell , 2014 COA 157, ¶ 37, 414 P.3d 1 (upholding the admission of a victim's (prior consistent) hearsay statements to rehabilitate her credibility after the defense claimed that she had fabricated her allegations), aff'd on other grounds , 2018 CO 13, 411 P.3d 669.

      Nor have the People shown that the nonconstitutional error was harmless.