September 01, 2016

Colorado Supreme Court Allows Child Dependency Finding without Requiring Finding of Fault by Each Parent

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re J.G., 2016 WL 2997124 (Colo.).

Due process does not require the child welfare agency to prove both parents lack the availability, ability, and willingness to provide reasonable parental care before adjudicating a child dependent. Neither the plain language of the dependency or neglect statute nor case law requires the agency to prove parental fault when adjudicating a child dependent based on an environment injurious to the child’s welfare. The trial court’s jury instructions were therefore consistent with the plain language of the statute, and the court properly allowed the jury to find the children’s environment was injurious to their welfare without first requiring the jury to make findings of parental fault.

The oldest of five children was accused of sexually abusing two younger half-siblings. After the oldest child was moved from the home into a foster home, the four remaining children returned to the family home. The child welfare agency filed dependency and neglect petitions for all five children, naming the mother and the children’s fathers as respondents. 

The mother and father of the oldest child admitted to the allegations, but the mother and fathers of the four younger children denied the allegation for those children and requested a jury trial. At the jury trial, the court gave jury instructions that did not include language about parental fault and did not require jury findings relating to parental fault. The jury found the children’s environment was injurious to their welfare and the court adjudicated the children dependent. 

The mother appealed, arguing that the jury instructions improperly permitted the jurors to find the children were dependent or neglected based on an injurious environment even when at least one parent was available, able, and willing to provide reasonable parental care.

The Colorado appeals court applied the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000), and reversed the decision. Troxel established that “a fit parent has a fundamental right to the care, custody, and control of his or her children, free from state intervention.” By failing to require the jury to make findings as to parental fault, the appellate court found the trial court violated the ruling in Troxel that courts must presume fit parents act in the best interests of their children. The appellate court ruled a child cannot be found dependent if at least one parent is available, able, and willing to provide reasonable parental care. 

On further appeal to the Colorado Supreme Court, the child welfare agency argued the appeals court improperly applied Troxel and unnecessarily increased its burden during the adjudicatory stage of dependency or neglect proceedings. The supreme court found that in requiring a finding that neither parent is available, able, or willing to provide reasonable parental care before the children can be adjudicated dependent or neglected, the court of appeals unnecessarily conflated the statutory dependency criteria with the termination criteria. The adjudication statute does not contain this language, rather the termination statute does. 

The child welfare agency also argued the adjudication statute does not require the jury to make findings of parental fault and the trial court’s jury instructions were consistent with the plain language of the statute’s injurious environment provision. Because the supreme court previously held Troxel also does not require findings of parental fault, it found the trial court properly allowed the jury to find the children’s environment was injurious to their welfare without first requiring the jury to make findings of parental fault. In reinstating the trial court ruling, the supreme court noted that it appeared the adjudication statute goes out of its way to allow for a finding of injurious environment without parental fault.

Two justices dissented, arguing due process demands a fact finder to make findings relating to the acts or omissions of each parent because of the impact a court order will have on a parent’s life and basic parental rights.