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

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

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

2 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.,

(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.,

(Colo. App.

2009). But the doctrine applies to decisions of law, not to

determinations of fact. Fortner v. Cousar,

(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

, ¶ 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.,

, ¶¶ 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.,

, 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.,

(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.,

, 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,

(Colo. 2006). The state must exercise

extreme caution in terminating parental rights.

Consequently,

8 a juvenile court must strictly comply with the appropriate

standards for termination.

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.,

(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.,

, 910-11 (Colo. App. 2005); see People in

Interest of A.R.,

, ¶ 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.,

(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.,

(Colo. App.

2002); see also People in Interest of Z.M.,

, ¶ 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.,

(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.

. It also

recognizes the parent’s constitutional interests. See

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.”

, 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.,

(Colo. App. 2002); cf. People in

Interest of L.M.,

, ¶ 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