Colorado’s second-highest court has reversed a Delta County judge’s finding of child neglect, partly because it was unclear whether two children who lived in a tent met the definition of homeless.

Being homeless is one of the conditions in Colorado law under which a court can deem a child dependent or neglected, a finding that can eventually lead to the termination of a parent’s legal rights over their children. In the case of a 12-year-old and 14-year-old who were living in a tent outside a Delta County home, a trial judge believed that scenario amounted to homelessness.

“But we do not agree that the children were homeless as a matter of law,” wrote Judge Ted C. Tow III for a panel of the Court of Appeals, “especially considering that it was located on private property and they were allowed to stay there with the property owner’s permission.”

The three-judge panel for the appeals court discovered there was no definition of homelessness under the child neglect law or in prior court decisions.

The case before the appeals court arose in October of last year, when Delta County assumed temporary custody of the two children who were living in a tent in front of a home. The mother requested a jury trial, but the county moved for summary judgment, which enables a judge to decide if a child is neglected without a trial if the facts dictate a clear outcome under the law.

The county asserted the children were homeless pursuant to the state’s dependency and neglect law. The government submitted statements from a caseworker claiming the mother had admitted she was homeless, as well as the caseworker’s multiple observations of the family living in the tent. A supervisor added the mother had previously testified to being evicted and living in a tent on a friend’s property.

In response, the mother disputed that the children lived in the tent with her, arguing they had “their own space” in the house on the property.

District Court Judge Steven L. Schultz sided with Delta County, finding it clear the family was without a “proper home of their own.” Even if the children were sleeping inside the house, he added, homelessness exists when there is a lack of a “stable home.”

“Staying in a tent in someone’s front yard for an extended period of weeks or months does qualify as being homeless, even if the children get to sleep inside an adjacent residence,” Schultz concluded in deeming the children neglected.

The Court of Appeals panel disagreed with Schultz’s initial view that the facts clearly supported a finding of homelessness. Primarily, it was disputed whether the mother had been evicted and continued to live in the tent. The observations of tent living were based on statements from the mother months before, and the appellate judges could not definitively conclude she still resided in the tent.

Moreover, Tow added in the Oct. 6 opinion, there was no guidance from Colorado’s appellate courts about the meaning of “homeless.” 

“While the juvenile court seemed to suggest that the meaning of homelessness depended on whether the children had a ‘stable home,’ there is nothing in the Children’s Code to support such a conclusion,” he wrote.

Because a jury could reasonably find the children were not homeless under the law, the panel reversed the trial judge’s finding. The panel did not attempt to define “homeless,” and its opinion was designated as unpublished, meaning it is not intended to set a precedent.

The case is People in the Interest of B.S.P. and J.N.A.