A three-judge panel of the Colorado Court of Appeals has requested the state Supreme Court provide clear guidance for the review of child custody cases, after it noticed two conflicting directives from the high court.

“Uncertainty regarding our role in reviewing juvenile court orders in these all-too-frequent cases potentially delays much needed permanency. We respectfully urge the supreme court to provide clarity,” wrote Judge Anthony J. Navarro in the Nov. 5 opinion.

The case in question involved the Adams County Human Services Department, which became concerned in June 2017 about neglect or abuse of two children, identified as A.A. and E.A., due to parental drug use and domestic violence in the home. The mother and father also reportedly disregarded the children’s basic and educational needs. 

Eventually, a juvenile court judge terminated the parental rights of both adults.

As much as possible, the goal of Colorado law is to maintain relationships between parents and minor children. When the state attempts to end parental custody, it must reasonably try to rehabilitate parents and reunite families following an out-of-home placement. 

If a court receives clear evidence that a parent has not complied with a treatment plan or that the individual is unfit as a parent and unlikely to change their conduct, it may end parental rights. 

However, the appeals panel noted two seemingly conflicting rulings from the Supreme Court about how it should treat the findings of a juvenile court. In a 1982 decision, the justices directed appellate judges to reverse a termination of parental rights only if the lower court’s findings were “so erroneous” as to have no factual support.

More than 30 years later, the Supreme Court issued a 2014 decision suggesting that reviewing a decision to terminate was not “purely a factual question,” but involved the underlying facts and the legal findings arising from that information.

In other words, the Court of Appeals must wrestle with whether to defer almost entirely to the work of juvenile courts, or to review their conclusions anew. 

“This change, if indeed it is a change, significantly alters this court’s role in reviewing cases involving termination of parental rights,” noted Navarro.

Zaven Saroyan, a Colorado Springs attorney who represented one of the parents in the case of A.A. and E.A., believed appellate judges should be able to take a fresh look at each custody matter.

“The Court of Appeals is to be commended for taking up this question regarding the ongoing conflict in the standards of review,” he said. “In my view, the Colorado appellate courts should be reviewing the ultimate questions made by the district court, such as whether DHS made reasonable efforts to reunite a family, as a conclusion of law.”

In the Adams County case, the panel was able to sidestep the question of which standard to apply because the judges determined the court and the county agency plainly did not tailor visitation policies in a way that promoted rehabilitation and reunification of the family.

Specifically, the magistrate erred by requiring the parents’ two-week sobriety to be a condition of visiting their children, which he reasoned would prevent further harm to A.A. and E.A.

“But the magistrate did not explain how he came to this conclusion,” Navarro explained. “There was no evidence that either parent had attended a visit while intoxicated or that either parent had missed or disrupted a visit due to intoxication.”

Because the mother never showed two consecutive weeks of sobriety, she was unable to visit her children at all. In the father’s case, he did demonstrate clean drug tests and resumed visitation. But the county revoked the contact with one of his children after a report that the father became angry and acted disrespectfully. 

“It is unclear why the Department took this drastic step without making any effort to help father and E.A. repair their relationship or to determine whether any other level of visitation services would meet E.A.’s needs, such as professionally supervised or monitored visitation,” the appeals court decided.

The panel also agreed the county did not provide funding or referrals for substance abuse treatment for the father that would enable his rehabilitation.

In sending the case back to the juvenile court, the judges reversed the complete cutoff of visitation between parents and children, absent sufficient information suggesting otherwise.