People ex rel. K.P.

517 P.3d 70

2022 COA 60

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF K.P., L.P., and M.P., Children,

and

Concerning C.P., a/k/a K.A., Appellant,

and

C.P., Appellee.

Court of Appeals No. 21CA0574

Colorado Court of Appeals, Division II.

Announced June 2, 2022

Ronald Carl, County Attorney, Kristi Erickson, Assistant City Attorney, Aurora, Colorado, for Appellee the People of the State of Colorado

Alison A. Bettenberg, Guardian Ad Litem

Ascend Counsel, LLC, Edward Milo Schwab, Denver, Colorado, for Appellant

Sherman & Howard, L.L.C., Richard Bednarski, Colorado Springs, Colorado, for Appellee C.P.

Opinion by JUDGE YUN

¶ 1 The juvenile court found C.P., a/k/a K.A. (K.A.), in contempt for violating permanent civil protection orders barring her from discussing her children's dependency and neglect case with most third parties. At a hearing that occurred several months after it had issued the protection orders, the court entered its judgment of contempt and sentenced K.A. to six months in jail. K.A. now appeals only the contempt judgment, arguing that the protection orders violated her constitutional right to free speech and that insufficient evidence supported the court's judgment of contempt.

¶ 2 This appeal therefore requires us to determine whether K.A., in appealing the contempt judgment, may collaterally attack the lawfulness of the underlying protection orders. We conclude that she may not. Under the collateral bar rule, a party must obey a court order—even an unconstitutional order—unless and until that order is stayed, set aside, or reversed on appeal. With rare exceptions, a party cannot challenge a court order by violating it. This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order.

¶ 3 Because K.A. did not timely appeal the protection orders, and because none of the exceptions to the collateral bar rule apply, we conclude that the rule precludes K.A. from collaterally challenging the lawfulness, and therefore the constitutionality, of the protection orders in an appeal of the contempt judgment. We also reject K.A.’s argument that insufficient evidence supported the contempt judgment. We thus affirm the judgment.

I. Background

¶ 4 This contempt proceeding followed K.A.’s contentious divorce from C.P., the father of their three daughters, K.P., L.P., and M.P., as well as the family's involvement in two dependency and neglect cases.

A. Dependency and Neglect Proceedings

¶ 5 In 2017, the year before the divorce became final, the Arapahoe County Department of Human Services filed a petition in dependency and neglect alleging that the father was sexually abusing the two younger girls. A jury, however, found that the children were not dependent or neglected.

¶ 6 Two years later, the Department filed a second petition, this time asserting that K.A. had coached the oldest daughter into falsely reporting sexual abuse by her father as part of K.A.’s pattern of emotionally abusing the girls. A jury found all three girls dependent and neglected as to K.A., and the juvenile court ordered her to comply with a treatment plan designed to give her "insight into how [her] behaviors alienated and emotionally harmed her children." K.A. appealed the adjudication, but a division of this court affirmed it. People in Interest of K.P. , slip op. at ¶ 1, 2020 WL 1903133 (Colo. App. No. 19CA1161, Feb. 27, 2020) (not published pursuant to C.A.R. 35(e) ).

B. Protection Orders and Termination

¶ 7 Soon after, in April 2020, K.A. posted a "Petition to Protect CHILDREN!" on the website change.org. In this posting, K.A. alleged that, despite her daughters’ disclosure of sexual abuse by their father, protective services, law enforcement, and mental health professionals had all insisted that the girls live with him. The petition included a video of the youngest daughter being interviewed by K.A. and making an outcry of sexual abuse, as well as a video of the oldest daughter's journal entries disclosing sexual abuse by her father—evidence that K.A. had never disclosed to the Department or the police.

¶ 8 In May 2020, the Department moved for a protection order under section 19-1-114(2)(a), C.R.S. 2021. It alleged that K.A.’s posting invaded the children's privacy and showed that "any progress in her treatment plan was feigned" and that she refused to "own[ ] that she coached her children" into making outcries of sexual abuse against their father. The court agreed that K.A. was not acting in the girls’ best interests and granted the protection order (the May protection order). Among other things, the court required K.A. to take down the petition, prohibited her "from posting on social media sites information related to the Minor Children and the allegations of abuse or neglect associated with this case" (including doing so through third parties), and obligated her to provide the Department with the videos attached to the change.org petition. The court warned that her failure to comply with the order could "result in contempt proceedings and up to six months in jail."

¶ 9 But K.A. refused to take down the petition, added copies of the girls’ handwritten notes when the website hosting the video took it down, and continued to post about the allegations on social media, as well as on her own website. As a result of K.A.’s defiance of the May protection order and her failure to engage in her treatment plan, the Department filed two motions: one for a contempt citation against K.A., and another to terminate her parental rights. The juvenile court scheduled a hearing on both matters over two days in late August 2020.

¶ 10 On the first day, the court found beyond a reasonable doubt that K.A. had willfully violated the May protection order. It delayed sentencing her for contempt until after the termination hearing, which was set to continue through the next day. K.A., however, failed to appear (or to have counsel appear on her behalf) the following morning, so the court issued a bench warrant and did not proceed with sentencing. At the end of the hearing, the court terminated K.A.’s parent-child legal relationships with her three daughters. The court also sealed the court records, stating that no party was to release any filing in the case to any third party or ask other people to post anything on the internet regarding the case.

¶ 11 Immediately after the termination hearing, the father moved for a civil protection order in the same case. The juvenile court issued a temporary protection order that same day and scheduled a hearing on a permanent protection order for September 2020. After the hearing, the court entered a permanent civil protection order under section 13-14-106, C.R.S. 2021, restraining K.A. from contacting the three girls or their father, who had custody (the September protection order). The order adds that K.A. is "not to talk to 3rd party about case except for [attorneys] or to use 3rd party to post on internet."

¶ 12 K.A. then filed a C.R.C.P. 59 motion, asking the juvenile court to reconsider the breadth of the September protection order. Specifically, K.A. argued that the order's "language prohibiting her from talking to any third party about th[e] case, other than her attorney," was "excessively broad" and violated her "constitutionally protected rights."

¶ 13 The juvenile court agreed—at least in part. It narrowed the September protection order so that K.A. could communicate about the case with her therapists and doctors, as well as her attorneys (the December protection order). The December protection order says,

Because this Court is certain that more harm will occur from future postings regarding the allegations of sexual abuse in this case, the Court first ORDERS that [K.A.] shall be restrained from posting any information related to the allegations of abuse or neglect which were investigated during this case on any website or social media outlet. This includes posting through a third party, which is subject to the provisions outlined above, as [K.A.] may be held liable for directing any third party to post such information. Further, the Court further ORDERS that [K.A.] shall be restrained from discussing the allegations of abuse or neglect which were investigated during this case or providing any case-related information, including but not limited to any documents within the case file, to any third party who does not have a legal duty of confidentiality to [K.A.] Thus, [K.A.] may discuss this case with her attorneys, therapists, or doctors, but she may not direct these third parties to release or disseminate case-related information to any other third party or to the public.

¶ 14 Though the court recognized K.A.’s First Amendment concerns, it concluded that the December protection order passed constitutional muster. The order, the court explained, was the least intrusive means necessary to serve the government's compelling interests in protecting domestic abuse victims and the privacy of children involved in dependency and neglect proceedings. The court further found that, "based on the history of this case and [K.A.’s] repeated and relentless dissemination of the false allegations of abuse, Father and all three children will undoubtedly suffer great, grave, and certain harm as a result of continued expression."

C. Contempt Proceeding

¶ 15 On December 31, 2020, the father moved for a contempt citation against K.A. He alleged that an article published three days earlier in an online edition of the Colorado Springs Gazette includes details about the dependency and neglect case that K.A. must have shared, either directly with the author or through a third party, in violation of the juvenile court's protection orders.

¶ 16 The article, titled "A sick mom, alone in a cell, on Christmas Eve," does not include anyone's name, but it does include, among other things, (1) K.A.’s experience of having COVID-19 in jail¹ ; (2) K.A.’...