practice for trial courts to do so; and that the court of appeals failed to apply the

correct legal standard and, instead, substituted its judgment for that of the trial court.

Accordingly, the judgment of the court of appeals is reversed. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 20SC187 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 19CA1406

Petitioners:

The People of the State of Colorado,

In the Interest of Minor Child: A.M.

and

A.M., Minor Child,

v.

Respondent:

T.M.

Judgment Reversed en banc February 16, 2021

Attorneys for Petitioner the People of the State of Colorado: Larimer County Attorney Office Jeannine S. Haag, County Attorney Jennifer A. Stewart, Senior County Attorney David P. Ayraud, Senior County Attorney Fort Collins, Colorado Attorney for Petitioner A.M.: Josi McCauley, Guardian ad litem Fort Collins, Colorado

Attorneys for Respondent: Blain Myhre, LLC Blain Myhre Englewood, Colorado

A.E. Bochniak Law, LLC Steven E. Baum Denver, Colorado

Attorney for Amicus Curiae Office of Respondent Parents’ Counsel: Christine Van Gaasbeek Denver, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

2 ¶1 We review a decision of a divided panel of the court of appeals holding that

a trial court must deny a motion to terminate parental rights that has been proven

by clear and convincing evidence if a less drastic alternative to termination exists

even though it is not in the child’s best interests.

¶2 We also review whether a trial court must make express findings regarding

less drastic alternatives to termination, and whether the panel majority substituted

its judgment for the factual findings of the trial court.1 We hold that the panel

departed from well-established jurisprudence regarding the best interests of the

child standard in termination cases; that a trial court is not required to make

express less drastic alternative findings, though it is certainly the better practice to

do so; and that the majority substituted its judgment for that of the trial court. We

therefore reverse the judgment of the court of appeals.

1 We granted certiorari to consider the following issues: 1. Whether a trial court is required to make a specific finding considering and eliminating less drastic alternatives before ordering termination of the parent-child legal relationship, and if so, whether the trial court must do so using the best interests of the child standard or the adequacy standard.

2. Whether the Court of Appeals acted discordantly with applicable decisions of the Court when it failed to properly apply the clearly erroneous standard of review, substituting the trial court’s factual findings with its own judgment, and reversed the trial court’s termination decree. 3 I. Facts and Procedural History

¶3 A.M. was placed with her Father’s stepsister (“Aunt”) after A.M. tested

positive for heroin at birth and after both of A.M.’s parents tested positive for

illegal drugs. The trial court subsequently adjudicated A.M. dependent and

neglected as to both parents and adopted appropriate treatment plans.

¶4 The People ultimately filed a motion to terminate the rights of both parents,

alleging that they had not complied with their treatment plans, that no

modifications to the plans could be made to enable them to regain parental fitness,

that no less drastic alternatives to termination existed, and that termination of the

parent-child legal relationship was in A.M.’s best interests.

¶5 Following a two-day termination hearing, the trial court found:

It would be in the best interest of the Child for the Court to terminate the Respondents’ parental rights so that the Child would be available for adoption by her [A]unt S.A. Termination and adoption would provide certainly [sic] and stability in the short, medium and long term. It would give the Child the best chance of growing up in a supportive, loving and safe environment for the duration of her childhood.

However, in order the [sic] terminate a parent’s rights, the Court must find that there are no less drastic alternatives short of termination. The Court cannot make that finding in this case.

¶6 The trial court denied the People’s motion, holding that “the best interest of

the child would be served by termination; however, permanent custody is a less

drastic alternative.”

4 ¶7 The People appealed, arguing that the trial court erred in holding that “any

permanency option . . . was an automatic bar to termination of parental rights.” In

an unpublished opinion, a division of the court of appeals reversed the trial court’s

judgment, holding that it erroneously concluded that it must award permanent

custody even though that was not in the child’s best interests. People in Interest of

A.M., No. 18CA1091, ¶ 17 (May 2, 2019) (“A.M. I”). The division remanded the

case to the trial court with directions to resolve whether the less drastic alternative

of permanent custody to Aunt was in the child’s best interests or whether, as the

court’s findings indicated, termination was in A.M.’s best interests.

¶8 On remand, the trial court found that “permanent custody was an

appropriate and viable option and less drastic than termination; however,

termination is better for the child because it provides a slightly higher probability

of permanence.” The trial court, accordingly, terminated Father’s and Mother’s

parental rights.

¶9 Father appealed the trial court’s termination order. A divided panel of the

court of appeals reversed. The majority held that instead of focusing on the best

interests of the child, as the division in the first appeal ordered, the trial court was

required to determine “whether there is an alternative short of termination that

adequately meets the child’s physical, emotional, and mental health needs.” People

in Interest of A.M.,

, __ P.3d __ (“A.M. II”).

5 ¶10 The majority concluded that “when both an [allocation of parental

responsibilities (“APR”)] to a relative and termination would adequately serve the

child’s physical, mental, and emotional needs, termination must be denied.” Id. at

¶ 26 (emphasis added). It viewed this outcome as mandated by our decision in

People in Interest of M.M.,

(Colo. 1986). It read M.M. as

“requiring that before an order terminating the parent-child relationship may be

entered, the court must consider and reject less drastic alternatives.” A.M. II, ¶ 27.

¶11 In her dissent, Judge Terry observed that she would have affirmed because

there was support in the record for the trial court’s factual findings and

determination that termination was in A.M.’s best interests. People in Interest of

A.M.,

, __ P.3d __ (Terry, J., dissenting).

¶12 We granted certiorari and now reverse the judgment of the court of appeals.

II. Analysis

¶13 We begin by outlining the appropriate standard of review. Next, we detail

the law concerning termination of parental rights, less drastic alternatives, and

constitutional considerations in termination cases. We then apply the relevant law

and hold that the court of appeals’ adoption of an adequacy standard is at odds

with our prior rulings regarding the best interests of the child standard in

termination cases—a standard that does not run afoul of parents’ due process

rights. We further hold that consideration of less drastic alternatives is implicit in

6 the statutory criteria for termination; that due process does not require such

findings be made explicit; and that the court of appeals failed to apply the correct

legal standard and, instead, substituted its judgment for that of the trial court.

¶14 Accordingly, we reverse the judgment of the court of appeals.

A. Standard of Review

¶15 Where resolution of an issue necessitates application of the termination

statute to evidentiary facts, it presents a mixed question of fact and law. See People

in Interest of S.N. v. S.N.,

,

. The credibility of the

witnesses; the sufficiency, probative value, and weight of the evidence; and the

inferences and conclusions to be drawn from the evidence are within the discretion

of the trial court. People in Interest of A.J.L.,

, 249–50 (Colo. 2010). Thus,

a trial court’s factual findings and conclusions will be set aside only where they

are “so clearly erroneous as to find no support in the record.” Id. at 250 (quoting

People in Interest of C.A.K.,

, 613 (Colo. 1982)).

¶16 “Whether the court of appeals applied the correct legal standard to a case

under review is a matter of law” to be reviewed de novo. Id. at 249.

B. Termination of Parental Rights

¶17 Parents have a constitutionally protected liberty interest in the care, custody,

and management of their children. Santosky v. Kramer,

(1982);

Troxel v. Granville,

(2000); In Interest of Baby A,

, ¶ 20,

7

, 201 (citing Stanley v. Illinois,

(1972)). Children also

have an interest in the continuation of their family relationship and in preventing

the erroneous termination of the parent-child legal relationship. Santosky,

.

¶18 The procedure by which the parent-child relationship is terminated must

satisfy due process.

at 753–54 (intervening in “[t]he fundamental liberty

interest of natural parents in the care, custody, and management of their child”

requires “fundamentally fair procedures”). Due process requires that a parent be

provided with notice of the allegations in the termination motion, the opportunity

to be heard, the opportunity to have counsel if indigent, and the opportunity to

call witnesses and engage in cross examination. See People in Interest of M.B.,

(Colo. App. 2003). Due process further requires that the criteria

for termination of parental rights be established by clear and convincing evidence.

Santosky, 455 U.S. at 769–70.

¶19 Thus, a trial court may terminate parental rights only if it finds, by clear and

convincing evidence, that (1) the child was 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 in a reasonable time. § 19-3-604(1)(c),

C.R.S. (2020); E.S.V. v. People,

,

; People in

8 Interest of C.H.,

, 289 (Colo. App. 2007). Implicit in these criteria is the

requirement that the trial court consider and eliminate less drastic alternatives.

M.M.,

.2

¶20 These criteria require the trial court to give primary consideration to the

child’s physical, mental, and emotional needs. § 19-3-604(3); People in Interest of

J.M.B.,

(Colo. App. 2002). “[The] primary and controlling issue in

termination proceedings, even though parental rights are at stake, is the

determination of what will best serve the interests and welfare of the child.”

K.D. v. People,

(Colo. 2006) (citing People in Interest of M.M.,

(Colo. 1974)); see also § 19-3-604(3) (“In considering the

2 The requirement that the trial court consider and eliminate less drastic alternatives arose in our cases decided before the adoption of specific statutory criteria for termination. These cases recognized that the significance of the parent-child relationship was such that certain conditions must be satisfied before an order of termination could be properly entered, including an express consideration of less drastic alternatives and a specific elimination of these alternatives. People in Interest of E.A.,

(Colo. 1982); People in Interest of C.S.,

(Colo. 1980). In 1977, when the legislature enacted section 19-11-105, 8B C.R.S. (1986), and adopted specific criteria to be applied in termination proceedings, it did not specifically refer to less drastic alternatives. We reasoned in M.M., that although section 19-11-105 did not require a trial court to make an express finding that less drastic alternatives were considered and eliminated, a trial court’s consideration and elimination of less drastic alternatives was implicit in the newly adopted legislative criteria. M.M.,

. 9 termination of the parent–child legal relationship, the court shall give primary

consideration to the physical, mental, and emotional conditions and needs of the

child.”).

C. Application

1. Adequacy Versus Best Interests of the Child

¶21 A majority of the division concluded that the phrase “best interests of the

child” is not required to be used as a superlative. A.M. II, ¶ 24. Instead, the

majority held that “the inquiry must be whether there is an alternative short of

termination that adequately meets the child’s physical, emotional, and mental

health needs.”

That is, “when both an APR to a relative and termination would

adequately serve the child’s physical, mental, and emotional needs, termination

must be denied.” Id. at ¶ 26 (emphasis added). The majority viewed this outcome

as mandated by M.M.,

, which it read as “requiring that before an

order terminating the parent-child relationship may be entered, the court must

consider and reject less drastic alternatives.” A.M. II, ¶ 27.

¶22 In reaching this conclusion, the majority acknowledged that various

divisions of the court of appeals have concluded that consideration of the child’s

best interests is applicable to less drastic alternative decisions. Id. at ¶ 24. In J.M.B.,

for instance, the division concluded that the child’s best interests “govern”

termination, generally.

. That division further held that permanent

10 placement with a family member is dependent on the child’s best interests, as is

the determination whether to order permanent placement as an alternative to

termination.

¶23 In People in Interest of Z.M.,

, ¶ 32,

, 335, a division

held that if the record supports the trial court’s findings 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. Still another division concluded

that the trial court must consider the child’s best interests when considering any

placement short of termination. People in Interest of A.R.,

, ¶ 41,

.

¶24 Even the case the majority relies on in support of its adequacy standard,

People in Interest of T.E.M.,

, 910 (Colo. App. 2005), concluded that the

child’s permanent placement with a relative “is dependent” on the child’s best

interests, A.M. II, ¶ 24.

¶25 The primacy of the best interests standard in connection with the overall

termination decision was also reflected in the opinion of the division following the

first appeal in this case. A.M. I, ¶ 10 (quoting J.M.B.,

). It stated that

a “less drastic alternative analysis considers whether any placement, short of

termination, would be in the child’s best interest.”

at ¶ 9 (quoting A.R., ¶ 44,

). That division added, “Furthermore, ‘the best interests of the

11 child govern any termination decision, and the court may find that long-term

foster care is not a viable option when the child needs the permanency that only

adoption can provide.’”

at ¶ 10 (quoting J.M.B.,

).

¶26 That is, “the trial court must also consider whether the less drastic

alternative itself is in the child’s best interests.”

at ¶ 15 (citing People in Interest

of S.T.,

, 1056 (Colo. App. 1983)). Many other divisions have reached

similar conclusions about the primacy of the best interests of the child standard in

termination cases.3

¶27 While these divisions use slightly varying terms to describe the interplay

between a trial court’s consideration of less drastic alternatives and the child’s best

interests, these divisions are uniform in recognizing that if a proposed alternative

to termination is to be deemed viable, it must not only be adequate, it must be in

the child’s best interests. None of these cases suggests that the child’s best interests

is not a superlative or that “best” means adequate.

3 Cases concluding that long-term or permanent placement may not be appropriate when it does not provide adequate permanence or otherwise meet the child’s best interests include, but are certainly not limited to: People in Interest of S.N-V.,

, 920 (Colo. App. 2011); People in Interest of D.P.,

, 356 (Colo. App. 2007); People in Interest of J.L.M.,

, 1126–27 (Colo. App. 2006); People in Interest of D.B-J.,

, 532 (Colo. App. 2004); M.B.,

; People in Interest of E.I.C.,

(Colo. App. 1998); S.T., 678 P.2d at 1056. 12 ¶28 This approach is also consistent with this court’s opinions regarding the

consideration of less drastic alternatives. For instance, in People in Interest of L.D.,

, 945 (Colo. 1983), we held that, in deciding whether less drastic

alternatives exist, a trial court may recognize differences between the parents, as

well as differences between the children, and then base its termination decisions

upon the best interests of the children.

¶29 True, in M.M., we explained that the trial court must consider and reject less

drastic alternatives.

. But, we affirmed the trial court’s termination

order because, among other things, there was evidence in the record that

supported its finding that “permanent foster care would not be in the minor child’s

best interests, nor would it serve any purpose.”

at 1123–24.

¶30 In contrast, the new “adequacy” standard that the court of appeals

introduced in this case is at odds with the division’s decision in A.M. I, the

decisions of many other divisions, and this court’s holdings concerning the

significance and operation of the best interests of the child standard in termination

cases. While we have held that a trial court must consider and reject less drastic

alternatives to termination as part of its overall consideration of the statutory

criteria for termination, M.M.,

; People in the Interest of E.A.,

(Colo. 1981), the court of appeals’ reliance on M.M. is misplaced.

13 M.M. did not adopt an adequacy standard or suggest that the trial court may give

less than primary consideration to the best interests and welfare of the child.

¶31 Primary consideration of the child’s physical, mental, and emotional

condition and needs requires more than a mere assessment of adequacy in order

to satisfy the overall intent of the Children’s Code.

¶32 To that end, if a trial court considers a less drastic alternative in connection

with its overall evaluation of the statutory criteria for termination and finds that it

is in the child’s best interests, it should deny the termination request. Conversely,

if a trial court considers a less drastic alternative in connection with its overall

consideration of the statutory criteria for termination and finds that termination is

in the child’s best interests, it must reject the alternative and order termination.

2. Constitutional Considerations ¶33 Our consideration of this matter does not end there. Father argues that this

court should affirm the judgment of the court of appeals and prohibit termination

unless no other adequate less drastic alternative is available in order to protect

parents’ fundamental liberty interest in the care of their children. He contends

that the best interests of the child standard fails to adequately protect parents’

fundamental constitutional rights. Father further asserts that there is no legitimate

state interest in termination here, where all of A.M.’s needs are met by the less

drastic alternative of placement with Aunt.

14 ¶34 Father argues that a best interests standard is relatively subjective and is

subject to greater risk of influence from the implicit biases, whims, and lay

judgments of individual judges. The fundamental constitutional rights of parents

should not rest, he asserts, on the individual, subjective views of a single

decisionmaker of what is “best,” when an appropriate, adequate less drastic

alternative that fully protects the child is available.

¶35 Father is correct that the purpose of dependency or neglect proceedings is

not to deprive parents of their right to raise their children, but rather to preserve

the family and protect the children. And a parent has a constitutionally protected

liberty interest in the care, custody, and management of his or her child. Santosky,

. Children also have an interest in the continuation of their family

relationship and in preventing the erroneous termination of the parent-child legal

relationship.

.

¶36 As a result, “until the State proves parental unfitness, the child and his

parents share a vital interest in preventing erroneous termination of their natural

relationship.”

However, once the trial court is persuaded that the State has

established a parent’s lack of fitness, the interests of the child and the parent

diverge. See

at 760–61. At that point, the separate interests of the child

outweigh the risk of erroneous termination of the parent-child relationship. See

People in Interest of A.M.D.,

, 637–38 (Colo. 1982). The Children’s Code

15 does not support the conclusion that “a parent-child relationship should be

continued when it has been shown by clear and convincing evidence that . . . the

parent is unfit, an appropriate treatment plan has been tried without success, and

the conduct or condition of the parent is unlikely to change within a reasonable

time.”

¶37 Thus, the consideration and elimination of a less drastic alternative to

termination on the ground that termination best serves the child’s interests, where

the statutory criteria for termination are otherwise established by clear and

convincing evidence, satisfies due process. To that end, if a trial court, in

connection with its overall consideration of the statutory criteria for termination,

finds that a less drastic alternative is available and is in the child’s best interests,

termination should be denied. Conversely, if the trial court finds that termination,

not the less drastic alternative, is in the child’s best interests, it must reject the

alternative and order termination.

¶38 To the extent that the division majority suggests that its adequacy standard

was necessary to satisfy due process, that conclusion was in error. Finally, with

respect to Father’s argument that a trial court’s consideration of what is best for a

child is somehow more subjective than an assessment of what is adequate, we find

the argument unavailing.

16 3. Express Findings Regarding Less Drastic Alternatives

¶39 We turn next to Father’s argument that express consideration and

elimination of less drastic alternatives is necessary to protect parents’ due process

rights. Father contends that trial courts should have to make an explicit finding

that no less drastic alternative exists prior to terminating parental rights. He

asserts that such a finding is necessary to ensure that termination is a last resort.

He observes that parents who have substance abuse issues may not have them

forever and “may become clean in the future, enabling them to again be able to

properly care for and parent their children.”

¶40 This court has previously held that, while a trial court must consider and

eliminate less drastic alternatives, it is not required to make express findings in

this regard. M.M.,

. This is because consideration and elimination

of less drastic alternatives is implicit in the statutory criteria for termination.

C.S. v. People,

(Colo. 2004); M.M.,

.

¶41 That is, adherence to the statutory criteria for termination requires a trial

court to consider less drastic alternatives and to reject those alternatives as

unavailing before entering an order of termination. C.S., 83 P.3d at 640–41. As

long as the trial court’s findings conform to the statutory criteria for termination

and are adequately supported by evidence in the record, a reviewing court may

17 reasonably presume that, in the absence of any indication in the record to the

contrary, the trial court considered and eliminated less drastic alternatives.

¶42 It is, as we have observed in the past, the better practice for a trial court to

make express findings regarding less drastic alternatives—as the trial court did

here—but we will not require the trial court to do so.

¶43 With respect to Father’s constitutional argument, we conclude that, because

the consideration and elimination of less drastic alternatives is implicit in the

statutory criteria for termination, due process is satisfied so long as the trial court

considers the statutory criteria for termination in light of the appropriate standard

of proof, even if it does not make explicit findings regarding less drastic

alternatives.

4. Whether the Division Majority Failed to Properly Apply the Clearly Erroneous Standard of Review

¶44 Next, we consider whether the majority failed to properly apply the clearly

erroneous standard of review and, instead, substituted its judgment for that of the

trial court.

¶45 During the termination hearing, Aunt testified that adoption was best for

A.M., that she preferred adoption over permanent custody, that she would

provide A.M. with a stable home, and that she was open to communications with

Father and Mother. The caseworker testified that permanent placement was not

18 an appropriate option for the child given the fear and anxiety that the parents’

ability to request a major modification would cause.

¶46 In its first order, the trial court found that Father was unfit to parent and

unfit to even visit A.M. because he was usually under the influence of substances.

The court further found that parental visitation or parenting time would not be

appropriate for many years. It determined that Father had not complied with his

treatment plan, was unfit, and his condition was unlikely to change in a reasonable

time. The court then denied the People’s motion, holding that “the best interest of

the child would be served by termination; however, permanent custody is a less

drastic alternative.”

¶47 Following the remand order, the parties did not present any further

evidence. The trial court then made additional, detailed factual findings regarding

less drastic alternatives and A.M.’s best interests and, based on those factual

findings, terminated Mother’s and Father’s parental rights.

¶48 Father has not challenged the propriety of the trial court’s factual findings

regarding compliance with his treatment plan, fitness, or likelihood of change in

his condition or conduct. Here, the trial court’s determinations regarding

permanent placement and its determination that termination was in the child’s

best interests were factual findings entitled to deference, unless unsupported by

the record. A.J.L., 243 P.3d at 250.

19 ¶49 The trial court considered the availability of an APR, and still determined

that termination of parental rights would be in the child’s best interests. Those

findings are supported by the record. The court of appeals, as the dissent noted,

A.M. II, ¶ 32 (Terry, J., dissenting), was accordingly bound to affirm the decision

of the trial court. J.M.B.,

; cf. People in Interest of L.M.,

,

¶ 36,

(decision to terminate parental rights was affirmed where

the record showed that APR would not serve child’s best interests).

¶50 Because we conclude that the panel majority applied the incorrect legal

standard and substituted its judgment for that of the trial court, we reverse the

judgment of the court of appeals.

III. Conclusion

¶51 For the foregoing reasons, we reverse the judgment of the court of appeals.

20