## Facts

- Mark Joseph Gabriesheski was charged with sexual assault on a child by one in a position of trust based on his stepdaughter’s allegations.
- A parallel dependency and neglect proceeding was filed in juvenile court; a guardian ad litem (GAL) was appointed to represent the child’s best interests.
- Before the criminal trial, the child recanted.
- The prosecution sought to call:
  - The GAL to testify that the child said it would be easier and would make her mother happy if she claimed she lied and the abuse did not occur; and
  - A social worker from the dependency and neglect case to testify about the mother’s statements describing how she confronted the child, became angry, called her a liar, and obtained the child’s admission that the allegations were made up.
- The defense moved to exclude the GAL’s testimony as attorney–client privileged and confidential, and to exclude the social worker’s testimony under statutory limits tied to dependency and neglect proceedings and under a licensed-professional confidentiality privilege.
- The trial court excluded both witnesses’ testimony; the prosecution stated it could not proceed and the case was dismissed.
- The court of appeals affirmed the exclusions; the prosecution sought review.

## Issues

1. Whether a child’s communications with a court-appointed GAL in a dependency and neglect case are protected by the attorney–client privilege or otherwise barred by a duty of confidentiality in a related criminal prosecution.
2. Whether statutes limiting examination of certain professionals regarding dependency and neglect matters, or the licensed-professional privilege, barred the social worker from testifying about the mother’s statements.
3. Whether the prosecution could appeal the evidentiary rulings after dismissal when it could not proceed (jurisdiction).

## Decision

- The Colorado Supreme Court reversed the court of appeals and remanded for further proceedings.
- The child’s communications with the GAL were not protected by the attorney–client privilege, and the GAL could testify.
- The GAL’s ethical duty of confidentiality did not create an evidentiary privilege barring compelled testimony.
- The social worker’s testimony about the mother’s statements was not barred under the cited dependency-and-neglect testimonial limitation statute or the licensed-professional privilege as applied in this case.
- The Supreme Court did not disturb the court of appeals’ conclusion that the prosecution had appellate jurisdiction to challenge the evidentiary rulings.

## Legal Principles

- A dependency-and-neglect GAL represents a child’s best interests and does not serve as the child’s traditional client-directed attorney for attorney–client privilege purposes.
- Ethical confidentiality obligations under professional conduct rules do not, by themselves, create a testimonial privilege in court.
- Statutory privileges and testimonial limits are construed according to their terms and are not extended to exclude relevant evidence absent a clear statutory basis.
- Professional-privilege statutes do not automatically bar testimony about statements made in the dependency and neglect context; application depends on the statute’s scope and the nature of the communication and relationship.

## Conclusion

The court held that neither the attorney–client privilege nor an ethical confidentiality duty barred the GAL’s testimony, and the relevant statutory protections did not exclude the social worker’s testimony; the evidentiary exclusions and resulting dismissal were reversed and the case was remanded.


People v. Gabriesheski, 262 P.3d 653 (Colo. 2011)