Colorado’s second-highest court on Thursday clarified it does matter whether a child experienced drug exposure in her parents’ custody, rejecting a Montrose County judge’s conclusion that the location was irrelevant to determining whether the infant was neglected.

A child is neglected under Colorado law if, among other things, their “environment is injurious” to their welfare. The state Supreme Court has determined that a parent need not be at fault, just that the environment itself is harmful.

However, a three-judge panel concluded the question of a parent’s fault for a child’s drug exposure is distinct from the question of whether the exposure occurred before or after a child was removed to foster care. It is not the case, wrote Judge Karl L. Schock, that a finding of child neglect can ignore the possibility the foster home was actually the harmful environment.

“(W)e clarify that when a child has been removed from the child’s parents, the relevant environment is the one the child is in — or would be in — while in the custody of the parents,” he wrote in the Aug. 8 opinion.

In the underlying case, a jury decided in December 2022 that five children were not neglected as Montrose County Human Services had alleged. The county returned the children, who were temporarily in foster care, to the parents. 

The children’s mother then allegedly hit the caseworker during the transfer of custody, leading to criminal charges. The county once again removed the children and filed a new child neglect case.

In mid-January 2023, the youngest child, D.H., tested positive for methamphetamine. The exposure occurred sometime in the prior 90 days — 36 of which she spent with her mother and the remaining time she spent at the foster home. The mother and the foster parents subsequently tested negative for meth. The mother’s partner previously tested positive, but he did not live with D.H.

Montrose County moved to declare all five children neglected, alleging D.H.’s positive drug test meant all siblings would be in an injurious environment if returned to their parents.

Based on the evidence submitted, Chief Judge D. Cory Jackson determined it was “more reasonable to infer” D.H.’s meth exposure happened in foster care. However, based on the Supreme Court’s recognition that a parent need not be the one responsible for the harmful environment, he deemed all five children neglected.

It “certainly appears a perverse outcome to enter a judgment of adjudication in the circumstance that a child’s injurious environment may have occurred while in … foster care,” Jackson acknowledged. But he concluded the location of the drug exposure was irrelevant.

The appellate panel agreed with Jackson that it was reasonable to believe D.H.’s meth exposure happened in foster care, but it was also possible the exposure occurred while in the mother’s custody. Therefore, a trial was necessary. Jackson’s reason for resolving the case without one — his belief that the location of the exposure was irrelevant — was incorrect, Schock explained.

“For example, imagine a scenario in which a child is removed from a healthy environment with a parent and placed in a harmful environment in the custody of the (county),” Schock wrote. 

“In that case, far from protecting a child who is otherwise endangered, the state intervention would be the direct cause of the harm. Yet the injurious environment created by the (county) could then be used to justify continuing the harmful state intervention that was unnecessary in the first place,” he elaborated. “That is not how the Children’s Code is supposed to work.”

The Supreme Court’s prior determination that a parent need not be at fault for the harmful environment, the panel noted, was separate from the issue of which environment judges should look at in the first place. The panel concluded a child’s environment with the parents, not the foster home, is the proper one.

Because the panel reversed Jackson’s finding of neglect for D.H., it also overturned his finding for the remaining children.

The case is People in the Interest of C.M. et al.