People in Interest of BJD ( 1981 )

BERMAN, Judge,

concurring in part and dissenting in part.

I agree with the result reached by the majority. However, I disagree with and dissent from part A of the majority opinion dealing with the burden of proof required in proceedings to terminate parental rights. As I have stated previously, I am of the firm opinion that, in such proceedings, the Colorado and United States Constitutions require the proof to be judged according to the clear and convincing evidence standard. People in the Interest of C. A. K., Colo.App. (1980) (ann’d December 31) (Berman, J., specially concurring). See also my dissent in People in the Interest of J. L. W. (Colo. App. # 79CA0322, October 9, 1980) (not selected for official publication) (cert. denied February 2, 1981). Denial of certiora-ri, of course, does not imply approval of an opinion. Menefee v. City & County of Denver, 190 Colo. 163, 544 P.2d 382 (1976).

This court explicitly recognized the appropriate standard of proof when it held, in People in the Interest of S. S. T., 38 Colo.App. 110, 553 P.2d 82 (1976), that “the power of the state to sever the ties between parent and child should be exercised with extreme care and only when the evidence clearly establishes the necessity of so doing.” (emphasis added) This is no more than a different way of saying “clear and convincing,” or that the “evidence must- establish that the truth of the contention to be proved is ‘highly probable.’ ” Page v. Clark, 197 Colo. 306, 592 P.2d 792 fn. 3 (1979); or of “convincing clarity,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) as cited in Di-Leo v. Kolthow, Colo., 613 P.2d 318 (1980). I would adhere to the rule established in People in the Interest of S. S. T., supra.