Licensed childcare providers accused of abuse or neglect are subject to the same, and not a higher, standard as a parent, the Colorado Court of Appeals has decided.

In July 2016, Amanda Ansel was supervising eight children in her home for her child care business, which the Colorado Department of Human Services had licensed. Several children were in Ansel’s yard playing a game when one boy found a retractable dog leash. When Ansel was not watching, the boy – pretending to be a dog – tied the leash around his neck, climbed onto the roof of the playhouse and slipped off.

The leash’s handle was affixed to a tree branch, causing abrasion marks on the boy. However, he was able to remove the leash and go inside to tell Ansel what happened. She contacted the boy’s father, who transported the boy to the emergency room. The El Paso County Department of Human Services deemed Ansel responsible for institutional neglect through her inadequate supervision. The department also reported its decision to the state’s child abuse registry.

Ansel appealed, arguing the incident did not meet the legal definition of child abuse or neglect. An administrative law judge determined that in actuality, the proper standard of monitoring was that which a “prudent parent” would provide. Ansel met that threshold and therefore did not commit child abuse or neglect.

The state human services department objected, and the department’s office of appeals agreed that the decision should have been based on the rules specific to childcare providers, namely whether she knew the location and activities of all children at all times. A Denver District Court judge upheld the office’s interpretation.

“Here, what is key is that the finding was an institutional neglect finding,” Megan A. Embrey, assistant attorney general, told the appeals judges at oral argument. “Institutional neglect or abuse must have occurred at a licensed childcare facility.”

The Child Protection Act of 1987 created the structure for investigating, confirming and appealing suspected child abuse. The law allows parties to appeal if the Colorado Department of Human Services’ decision is not based on the legal meanings of child abuse or neglect.

The statutory definition of the offense includes any action that threatens a child’s health or welfare and is not, in the case of a childcare provider, what “a prudent parent” would do.

A three-judge panel of the Court of Appeals found that the human services department’s office of appeals believed the “prudent parent” standard really meant “prudent professional.”

“In other words, the Office of Appeals’ interpretation of the ‘prudent parent’ standard requires an entirely different analysis than that presented by the statute’s plain language,” wrote Judge Ted C. Tow III in the Dec. 17 opinion.

At oral argument, Tow asked Embrey whether it was the government’s position that “a reasonably prudent parent wouldn’t allow an 11 year-old some autonomy and not know exactly what and where he is at all times?”

“A parent has an inherent constitutional discretion in how they raise and supervise their child,” she responded. “A childcare provider does not.”

Judge Lino S. Lipinsky de Orlov pressed Embrey on whether the prosecution was arguing for childcare providers to supervise all children at all times. No, Embrey responded, but the recommended amount of time away from Ansel’s supervision would have been “a moment or two,” instead of five minutes.

The judges ultimately did not believe the law held childcare providers to a standard separate from – and higher than – parents because of their licensed status.

“[A] reasonably prudent parent may well engage in conduct that would not necessarily be consistent with every CDHS licensing rule,” wrote Tow in the ruling.

The appellate panel did not weigh in on whether the human services department could take action against her license for failing to comply with regulations. CDHS and an attorney for Ansel both declined to comment on the outcome of the case.

The case is Ansel v. State Department of Human Services.