Although trial judges may require parents to receive psychological counseling for their sexual behavior as part of child welfare proceedings, they may not order parents to receive Colorado’s formal sex offender treatment in the absence of a criminal conviction, the Court of Appeals ruled last week.

A three-judge appellate panel explained that the treatment standards of the state’s Sex Offender Management Board are, by law, intended for adults who are subject to the “supervision of the criminal justice system.” A Mesa County judge therefore went too far by ordering a man to comply with the SOMB’s protocols as part of a non-criminal child welfare case.

“To be clear, we do not hold today that a juvenile court may not require a respondent parent to participate in an evaluation and obtain treatment or counseling for sexual behavior that poses a risk to the parent’s children,” wrote Judge Timothy J. Schutz in the July 7 opinion. “However, in a situation like father’s, where the parent has not been convicted of a qualifying sex offense and objects to participating in SOMB treatment, the juvenile court may not require a parent to comply with an SOMB evaluation or treatment pursuant to the SOMB Standards.”

The Mesa County Department of Human Services initiated a dependency and neglect — or welfare — case involving a child identified as M.W. There were allegations her father, D.W. sexually assaulted her and that M.W.’s overall environment was injurious to her health. D.W. contested those allegations, but a jury eventually agreed M.W. lacked proper parental care.

The department proposed a treatment plan requiring D.W. to undergo a psychosexual evaluation that would determine his “risk for re-offense.” Whether D.W. successfully completed the goal would depend upon his attendance, his adherence to any recommendations and being “open and honest during the evaluation.”

D.W. objected to the requirement of engaging in treatment pursuant to SOMB standards. Because the welfare case was not criminal, he argued, there was no reason to impose a criminal sanction. Further, the SOMB guidelines state that denial of sexual misconduct impedes treatment and can lead to its discontinuation, and D.W. countered that he risked self-incrimination if he were required to admit to a crime in order to receive treatment.

District Court Judge Valerie J. Robison overruled D.W.’s objections, saying she was loathe to “not consider or somehow decide not to address the main issue” of alleged child sexual abuse. D.W. then turned to the Court of Appeals.

Schutz, in the panel’s opinion, described the conditions of sex offender evaluations and treatment as “extraordinary.” The evaluation identifies what level of treatment is appropriate, as well as specific risk factors. Offenders have a supervision team that includes their treatment provider, a victim representative and a polygraph examiner. SOMB standards also forbid most types of contact with children. 

While sex offender treatment is meant to protect the public by placing often-heavy restrictions on defendants, treatment plans in child welfare cases seek to preserve parent-child relationships through helping a family reach a stage at which government intervention is not required.

“So, for example, if the parents were experiencing discord in their relationship that was interfering with their ability to appropriately parent their children, the court could order them to complete couples’ therapy,” Schutz wrote.

He acknowledged Robison was troubled by M.W.’s allegations of abuse, but emphasized that dependency and neglect proceedings are not designed to punish parents in a criminal fashion. Absent a criminal conviction, the requirement for D.W. to undergo the state’s sex offender treatment created a dilemma for parents like him.

“If they admit sexually abusing their child, they forfeit their constitutional right to remain silent, potentially face criminal sanctions, and will likely have their parental rights terminated,” Schutz wrote. “If they do not admit the alleged abuse, they will not successfully complete their treatment plan and therefore face termination of their parental rights.”

The appellate panel returned the case to Robison, permitting her to order appropriate psychological counseling and treatment if needed. She may not, however, impose the SOMB’s requirements on D.W.

The Court of Appeals also rejected D.W.’s other claim that Robison should not have prevented two of his witnesses from testifying remotely. Schutz, a former trial judge, explained that judges know best the capabilities of their courtroom audiovisual equipment and the efficacy of remote testimony, and Robison did not clearly abuse her authority in blocking the witnesses from appearing.

The case is People in the Interest of M.W.