Colorado’s second-highest court on Thursday determined judges in Montrose and Mesa counties improperly ruled against parents in child welfare cases, with one judge being the subject of two reversals.

Weeks earlier, Montrose County District Court Judge D. Cory Jackson was reversed a third time by the Court of Appeals because he denied a woman’s request for an appointed attorney – to which she was entitled under state law – before terminating the legal relationship between her and her child.

Montrose County Attorney Martha “Marti” Phillips Whitmore did not immediately respond to an email asking about her confidence in Jackson’s handling of welfare cases, which have serious implications for parental rights and the wellbeing of children.

In the first appeal decided last week, Utah authorities contacted Montrose County in June 2019 to report that a mother had abandoned her 8-year-old child in the state before fleeing to Colorado. The child’s father eventually retrieved him and brought him to Colorado, after which Montrose County initiated a child welfare case.

The county moved to declare the child dependent and neglected, a step that can lead to the termination of the parent-child relationship. Subsequently, Jackson terminated the mother’s parental rights.

At the hearing, however, the mother’s lawyer briefly questioned how Colorado had jurisdiction over the case, given that authorities found the child in Utah. The lawyer speculated it “could be sorted out” later by the Court of Appeals.

Case: People in the Interest of R.A.E.

Decided: September 28, 2023

Jurisdiction: Montrose County

Ruling: 3-0

Judges: Neeti V. Pawar (author)

David Furman

Terry Fox

A three-judge panel of the appellate court agreed it was a problem that Jackson never established why he had jurisdiction to terminate the mother’s rights.

“As mother points out, the record contains evidence suggesting that Utah might have been the child’s home state when this case began because mother testified that she lived there with the child from sometime in 2017 to July 2019,” wrote Judge Neeti V. Pawar in the Sept. 28 opinion. “At the time of termination, the relevant question was whether Utah was still the child’s home state.”

The panel reversed Jackson’s termination decision and ordered him to evaluate whether Colorado was the child’s home state and, if not, whether there was any other reason Colorado would have jurisdiction over the child.

The case is People in the Interest of R.A.E.

In the second case out of Montrose County, the government moved to declare a child neglected without a trial following the 1-year-old’s exposure to methamphetamine. The child was in his father’s care at the time, but once the mother became involved, she denied the allegations of neglect.

After considering the evidence, Jackson deemed the child neglected.

Case: People in the Interest of M.L.

Decided: September 28, 2023

Jurisdiction: Montrose County

Ruling: 3-0

Judges: W. Eric Kuhn (author)

Rebecca R. Freyre

David H. Yun

However, a separate three-judge appellate panel took issue with the reliability of the materials submitted, including toxicology results and medical opinions. First, there was no explanation why a recordkeeper in Colorado could properly certify drug testing that happened in a Louisiana laboratory. Second, the medical literature before the court described the effects of methamphetamine on children who had yet to be born, even though the child in question was a toddler.

Finally, a local pediatrician submitted his expert opinion in a statement dated September 2021, before the child was even born. 

The letter failed to establish “any personal knowledge about this child,” wrote Judge W. Eric Kuhn.

The panel reversed Jackson’s decision declaring the child neglected.

“Not only was my client not permitted her statutory right to a jury trial, the Court of Appeals also determined that the district court adjudicated the child dependent and neglected only considering evidence that was inadmissible,” said the mother’s attorney, Kristofr P. Morgan. “This is alarming, and we are grateful that the Court of Appeals has corrected the decision.”

The case is People in the Interest of M.L.

In the last case out of Mesa County, the government alleged a newborn tested positive for amphetamine and methamphetamine at birth. District Court Judge Matthew D. Barrett reviewed the evidence and declared the child neglected without a trial.

The child’s father challenged the idea that the key facts undisputedly showed neglect. Although the father did not contest the presence of drugs at birth, he disputed whether the child was born “affected by” substance exposure, and that the exposure threatened the child’s health or welfare.

Once again, an appellate panel found the government’s evidence did not clearly prove neglect.

“Father’s observations and the treating physicians’ observations of the child were different. The treating physicians observed several withdrawal symptoms; father saw none,” wrote Judge Michael H. Berger.

People in the Interest of V.D.C.

Decided: September 28, 2023

Jurisdiction: Mesa County

Ruling: 3-0

Judges: Michael H. Berger (author)

Gilbert M. Román

Robert D. Hawthorne

Moreover, Mesa County’s evidence did not link the mother’s substance use to either parent’s ability to care for the child.

The panel returned the case for reconsideration of the neglect decision.

The case is People in the Interest of V.D.C.