in Interest of A.M

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 13, 2020
2020COA30
No. 19CA1406, People in Interest of A.M. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship
A division of the court of appeals clarifies that when a juvenile
court finds that two options meet the child’s physical, mental, and
emotional needs, including adequately providing for permanency, it
must choose the option short of termination of the parent-child
relationship.
COLORADO COURT OF APPEALS
2020COA30
Court of Appeals No. 19CA1406
Larimer County District Court No. 17JV249
Honorable Gregory M. Lammons, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.M., a Child,
and Concerning T.M.,
Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TOW
Webb, J., concurs
Terry, J., dissents
Announced February 13, 2020
Jeannine S. Haag, County Attorney, Jennifer A. Stewart, Senior County
Attorney, Fort Collins, Colorado, for Appellee
Josi McClauley, Guardian Ad Litem
Steven E. Baum, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
¶1 In this dependency and neglect proceeding, T.M. (father)
appeals the juvenile court’s judgment terminating the parent-child
legal relationship between him and A.M. (the child). We reverse and
remand with directions. In doing so, we clarify that if a juvenile
court determines that an allocation of parental responsibilities
(APR) adequately serves a child’s physical, mental, and emotional
needs, including providing for adequate permanence, it cannot
terminate the parent-child relationship on the basis that
termination of parental rights would be in the child’s best interests.
I. Background
¶2 In June 2017, the Larimer County Department of Human
Services received a report that the newborn child’s umbilical cord
blood had tested positive for opiates. The child’s mother also tested
positive for drugs. Later, at the request of the Department, father
took a sobriety test, which was positive for methamphetamine, THC,
and alcohol. The Department filed a motion for temporary custody,
which a magistrate granted. The Department placed the child with
her paternal aunt. The Department then filed a petition in
dependency and neglect.
1
¶3 Father admitted the petition’s allegations, and a magistrate
adjudicated the child dependent or neglected. The magistrate also
adopted a treatment plan for father, deeming it “both appropriate
and in the best interest of the [c]hild.” The Department later filed a
motion to terminate father’s parental rights.
¶4 After a hearing, the juvenile court found that the parents were
unfit and that they were unlikely to change within a reasonable
time. The court also found that terminating the parents’ rights
would be in the child’s best interests. However, the court
determined that because an APR to paternal aunt was a viable less
drastic alternative, it could not terminate parental rights.
¶5 The Department appealed, contending that the court
misapplied the law when it determined that “any permanency
option . . . was an automatic bar to termination of parental rights.”
In an unpublished opinion, a division of this court agreed with the
Department. That division interpreted the juvenile court’s order as
concluding that because the child’s aunt was willing to accept an
APR, the juvenile court was precluded from terminating the parent-
child relationship, without regard to whether the APR was in the
best interests of the child. The division remanded the matter to the
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juvenile court to determine whether the APR was in the best
interests of the child. People in Interest of A.M., (Colo. App. No.
18CA1091, May 2, 2019) (not published pursuant to C.A.R. 35(e))
(A.M. I).
¶6 On remand, the juvenile court held a case management
conference, but no party offered any additional testimony or any
position regarding the directions on remand. The juvenile court
then issued a new order. In its order on remand, the juvenile court
took issue with the A.M. I division’s interpretation of its original
order, noting that it had made “no such finding” that merely
because the aunt was willing to accept an APR it was required to
take that path. Rather, the juvenile court indicated that by finding
the APR to be viable, it had implicitly found that it was in the child’s
best interest. The juvenile court then found:
In this case, the [c]ourt was presented with two
viable alternatives: 1) permanent placement
with [the child’s aunt]; or, 2) termination with
adoption to [the aunt]. Both of those options
provided safety and stability for A.M. Both
provide appropriate permanence. Neither
would create a feeling of temporariness. Both
would serve A.M.’s physical, mental, and
emotional needs.
3
¶7 The juvenile court explained that it had previously believed
that where “two viable options would serve the [c]hild’s physical,
mental, and emotional needs, then the [c]ourt must choose the less
drastic option.” But it felt that the A.M. I division had directed it to
choose between the two alternatives based on which one was the
best option. Ultimately, the juvenile court concluded that
“termination is better for the child because it provides a slightly
higher probability of permanence. Thus, the [c]ourt finds
termination to be in [the child’s] best interest.”
II. Father’s Contention
¶8 Father contends that the juvenile court erred by terminating
his parental rights when termination provided only “a slightly
higher probability of permanence than an existing less drastic
alternative[,] namely, permanent placement with paternal aunt.”
We agree.
A. Threshold Matters
¶9 The Department and guardian ad litem (GAL) make assertions
that we must address before analyzing father’s claim.
1. Claim Preclusion
4
¶ 10 The Department, in its answer brief, suggests that we should
dismiss father’s contention under the doctrine of claim preclusion,
otherwise known as res judicata. We disagree. Claim preclusion
bars relitigation of matters that were decided in a prior proceeding,
as well as matters that could have been raised in a prior proceeding
but were not. Argus Real Estate, Inc. v. E-470 Pub. Highway Auth.,
109 P.3d 604, 608 (Colo. 2005).
¶ 11 In the first appeal, the A.M. I division concluded that the
juvenile court did not determine whether an APR was in the child’s
best interests when it denied the Department’s request to terminate
father’s parental rights. In this appeal, we understand father’s
contention to be that, having now found that an APR would serve
all of the child’s needs, a less drastic alternative exists in this case,
and that the court erred in nonetheless terminating father’s
parental rights.
¶ 12 Because this claim was not addressed in the first appeal, it is
not precluded.
2. Law of the Case Doctrine
¶ 13 We understand the GAL, in her answer brief, to request that
we dismiss father’s appeal under the law of the case doctrine.
5
Again, we disagree. The law of the case doctrine recognizes that
prior relevant rulings made in the same case are generally to be
followed. In Interest of C.A.B.L., 221 P.3d 433, 438 (Colo. App.
2009). But the doctrine applies to decisions of law, not to
determinations of fact. Fortner v. Cousar, 992 P.2d 697, 700 (Colo.
App. 1999).
¶ 14 To begin, the decision in A.M. I is susceptible of two readings.
On the one hand, the division may have done no more than remand
the matter for a determination yet to be made by the juvenile court
— i.e., whether an APR would serve the child’s best interests.
Alternatively, the decision could be read, as the juvenile court read
it, to suggest that when faced with two viable alternatives that both
meet the statutory threshold of serving the child’s physical, mental,
and emotional needs, the court must select the single best
alternative.
¶ 15 To the extent the decision in A.M. I is limited to the first
interpretation, it did not establish a legal rule regarding whether the
juvenile court has the obligation to choose the best of two viable
options. To the extent the holding in A.M. I can be given this
broader reading, we are not bound by it. See People v. Thomas,
6
2015 COA 17, ¶ 13 n.2 (“[T]he law of the case doctrine does not
bind one division of this court to an earlier decision of another
division, even in the same case.”). Either way, the law of the case
does not preclude our addressing father’s contention.
B. Standard of Review
¶ 16 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, 24-29 (applied specifically to
less drastic alternatives considerations).
¶ 17 Insofar as the question involves the juvenile court’s findings of
fact, the court is the fact finder; it determines the credibility of
witnesses and the probative effect and weight of the evidence.
People in Interest of C.H., 166 P.3d 288, 289-90 (Colo. App. 2007).
It also decides what inferences it will draw from that evidence. Id.
And we may not disturb the court’s findings, including its ultimate
finding to terminate a parent’s parental rights, if the record
supports them. Id.
¶ 18 We review a juvenile court’s legal conclusions de novo when
deciding mixed questions of fact and law. L.M., ¶ 17.
7
C. Law
¶ 19 A juvenile court may terminate parental rights after finding, by
clear and convincing evidence, that (1) the child has been
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 within a
reasonable time. § 19-3-604(1)(c), C.R.S. 2019; People in Interest of
N.A.T., 134 P.3d 535, 537 (Colo. App. 2006). Father does not
challenge the court’s findings that these criteria were met in this
case.
¶ 20 The statutory criteria imply the requirement that the court
consider and eliminate less drastic alternatives before entering a
termination order. People in Interest of M.M., 726 P.2d 1108, 1122-
23 (Colo. 1986).
¶ 21 Termination of parental rights is a decision of paramount
gravity affecting a parent’s fundamental constitutional interest in
the care, custody, and management of his or her child. K.D. v.
People, 139 P.3d 695, 700 (Colo. 2006). The state must exercise
extreme caution in terminating parental rights. Id. Consequently,
8
 a juvenile court must strictly comply with the appropriate
standards for termination. Id. Because the determination of less
drastic alternatives is implied in the statutory criteria for
termination, the court must also strictly comply with the
appropriate standards when determining less drastic alternatives.
¶ 22 As with all other criteria, when considering whether any less
drastic alternatives to termination are viable, the juvenile court
must “give primary consideration to the physical, mental, and
emotional conditions and needs of the child.” § 19-3-604(3); see
also People in Interest of J.L.M., 143 P.3d 1125, 1126-27 (Colo. App.
2006). As relevant in this case, the juvenile court must also
consider whether permanent placement with a relative provides
“adequate permanence” or stability for the child. People in Interest
of T.E.M., 124 P.3d 905, 910-11 (Colo. App. 2005); see People in
Interest of A.R., 2012 COA 195M, ¶ 41.
¶ 23 Case law also provides guidance as to what the court may not
consider in determining whether less drastic alternatives to
termination exist. Importantly, “the parental relationship should
not be terminated simply because the child’s condition thereby
9
might be improved.” People in Interest of E.A., 638 P.2d 278, 285
(Colo. 1981).
¶ 24 Divisions of this court have determined that consideration of
the child’s best interests is applicable to less drastic alternatives
decisions.
• Some divisions, as noted above, have concluded that the
child’s best interests “govern” termination, generally. See
People in Interest of J.M.B., 60 P.3d 790, 793 (Colo. App.
2002); see also People in Interest of Z.M., 2020 COA 3M, ¶ 32
(“If the record supports the court’s findings and conclusions
that no less drastic alternatives existed and that termination
of parental rights was in the child’s best interests,” the court
will not disturb the findings. (citing People in Interest of M.B.,
70 P.3d 618 (Colo. App. 2003), which, however, does not
mention the child’s best interests as part of the termination
decision)).
• Another division concluded that the court must consider the
child’s best interests when considering any placement “short
of termination.” A.R., ¶ 44.
10
• And still another division indicated, specifically, that the
child’s permanent placement with a relative “is dependent” on
the child’s best interests. T.E.M., 124 P.3d at 910.
We do not read these cases to require, however, that the phrase
“best interests of the child” be used as a superlative — that the
juvenile court must glean which of the alternatives that adequately
meet the child’s needs would best do so. Rather, the inquiry must
be whether there is an alternative short of termination that
adequately meets the child’s physical, emotional, and mental health
needs.
D. Analysis
¶ 25 To reiterate, the juvenile court found that both an APR to
paternal aunt and termination of parental rights would adequately
provide for the child’s mental, physical, and emotional conditions
and needs. Because the record supports these findings, we are
bound by them. Nevertheless, in its order on remand, the juvenile
court found that the termination of father’s parental rights was in
the child’s best interest “because it provides a slightly higher
probability of permanence. Thus, the [c]ourt finds termination to be
in [the child’s] best interest.”
11
¶ 26 In our view, the juvenile court’s original understanding of the
law was correct: when both an APR to a relative and termination
would adequately serve the child’s physical, mental, and emotional
needs, termination must be denied. To the extent the division in
A.M. I held otherwise, we respectfully disagree.
¶ 27 This view is consistent with the mandate recognized in People
in Interest of M.M., requiring that before an order terminating the
parent-child relationship may be entered, the court must consider
and reject less drastic alternatives. 726 P.2d at 1123. It also
recognizes the parent’s constitutional interests. See id. at 1122 n.9
(“Requiring a court to give adequate consideration to less drastic
alternatives before entering an order of termination gives due
deference to the constitutional interest of the parent . . . .”).
¶ 28 In this case, the juvenile court determined that both an APR
and termination would serve the child’s physical, mental, and
emotional needs, and would provide appropriate permanence.
Thus, this case is distinguishable from cases such as People in
Interest of S.N-V., where the court found that the child’s need for
permanence could not be met by permanent placement, but rather
could “only be assured by adoption.” 300 P.3d 911, 920 (Colo. App.
12
2011). Simply put, once the juvenile court properly determined that
an APR was a less drastic alternative that would adequately serve
the child’s needs, it could not terminate the parent-child legal
relationship.
III. Conclusion
¶ 29 The judgment is reversed, and the case is remanded for the
juvenile court to enter an order allocating parental responsibilities
to the paternal aunt. However, if on remand the GAL or the
Department asserts that circumstances have changed during the
pendency of this appeal such that an APR to the paternal aunt
would no longer adequately serve the child’s physical, mental, and
emotional needs, including the need for permanence, the court
should afford the parties the opportunity to present further
evidence and enter an appropriate order to ensure those needs are
met.
JUDGE WEBB concurs.
JUDGE TERRY dissents.
13
JUDGE TERRY, dissenting.
¶ 30 I respectfully dissent from the majority’s decision. In my view,
because the district court determined that termination of father’s
parental rights was in the child’s best interest, we must affirm that
decision.
¶ 31 The majority’s opinion properly assigns grave importance to
the constitutional right of parents to parent their children.
Certainly, where an allocation of parental responsibilities (APR) is
available, and where the court finds such an allocation to be in the
child’s best interest, such an allocation should be ordered instead
of termination of the parent’s rights.
¶ 32 But where, as here, the court considered the availability of
such an APR, but still determined that termination of parental
rights would be in the child’s best interest, and that finding is
supported by the record, we must affirm that decision. People in
Interest of J.M.B., 60 P.3d 790, 793 (Colo. App. 2002); cf. People in
Interest of L.M., 2018 COA 57M, ¶ 36 (decision to terminate parental
rights was affirmed where record showed that APR would not serve
child’s best interest).
14
¶ 33 For these reasons, I would affirm the district court’s order
terminating parental rights.
15