Divided appeals court rules child neglect determinations cannot hinge on uncertain effects of drug exposure
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Colorado’s second-highest court ruled on Thursday that a recent change to the state’s child neglect laws requires more than just the possibility an infant exposed to drugs at birth will experience negative health effects in the future.
Prior to 2020, a court could declare a child neglected if, among other things, they tested positive at birth for controlled substances not authorized by a prescription. That year, however, lawmakers enacted a new set of criteria. Now, a child is neglected if they are “born affected by” alcohol or drug exposure and their “health or welfare is threatened” by the substance use.
Interpreting that language for the first time, a three-judge panel for the Court of Appeals decided, 2-1, the government must prove more than the potential that symptoms of the drug exposure will manifest someday.
“We recognize, and do not mean to understate, the devastating effects that may befall a child after being exposed to methamphetamine or other substances during pregnancy,” wrote Judge Matthew D. Grove in the Aug. 8 opinion. “With the General Assembly having decided that mere exposure is no longer enough to justify a child’s adjudication, we may not substitute our judgment for the legislature’s policy decision.”
Judge Terry Fox dissented, believing the new standard for child neglect does account for the possibility that a newborn will be threatened in the future by drug exposure in the womb.
“In my opinion, the addition of the new language,” she wrote, “indicates that the General Assembly intended to shift the focus away from a child’s exposure to alcohol or substances alone and toward a more comprehensive consideration of whether the child’s health or welfare is or will be threatened because of substance use by those in the child’s life.”
Colorado Politics contacted the four lawmakers who sponsored the 2020 change to state law. None immediately responded to questions about whether the majority opinion or Fox’s dissent accurately reflected their intentions.
During the legislative debate over Senate Bill 28, which contained the amended substance exposure language, multiple witnesses spoke about the reasons for modifying the child neglect definition.
“Under current statute, if an infant tests positive at birth,” testified Jade Woodard of Illuminate Colorado, “the birth parent may receive a substantiation of child abuse based on the positive test alone. … The change in the children’s code is intended to decrease fear and stigma that parents would have in sharing they used substances during their pregnancy, to make it that much easier to get engaged and get involved in the services they’ll need long-term.”

DENVER, CO - JANUARY 13: Representatives gather on the floor of the House during the first legislative day of the 73rd General Assembly at the Colorado State Capitol on January 13, 2021 in Denver, Colorado. (Photo By Kathryn Scott)
Kathryn Scott
DENVER, CO – JANUARY 13: Representatives gather on the floor of the House during the first legislative day of the 73rd General Assembly at the Colorado State Capitol on January 13, 2021 in Denver, Colorado. (Photo By Kathryn Scott)
The El Paso County case of a child identified as B.C.B., however, raised the question of how much evidence is necessary to deem a child’s welfare “threatened” by drug exposure.
The county moved to declare B.C.B. neglected after he tested positive for methamphetamine at birth and his mother had a history of substance use. A jury heard evidence from three pediatricians that meth exposure in the womb can impair cognitive and behavioral skills later in a child’s life, but the experts otherwise testified B.C.B. was healthy.
The child’s father moved to end the case in his favor, arguing the county failed to establish B.C.B. suffered negative effects from the mother’s drug use. El Paso County responded that the meth exposure “puts him at risk for later complications that will manifest in the next few years.” District Court Judge Jessica Curtis denied the father’s motion and the jurors deemed B.C.B. neglected — a step that can lead to the termination of the parent-child relationship.
On appeal, B.C.B.’s parents challenged the idea that the evidence supported a finding of neglect. The appellate panel’s majority, noting the county had to prove the meth exposure affected the child, concluded it had not.
Although the pediatricians testified there would be risks later in B.C.B.’s life, “none of the physicians was able to predict whether the child would actually suffer from these effects,” Grove wrote for himself and Judge Grant T. Sullivan.
“An adjudication cannot be premised on conjecture or speculation. Thus,” Grove added, “the child’s adjudication cannot be sustained under the theory that his in utero exposure to methamphetamine increases the risk of adverse developmental consequences to some unknown degree at some unspecified point in the future.”

U.S. District Court Judge R. Brooke Jackson, right, swears in Colorado Court of Appeals Judge Terry Fox in January 2011. Photo courtesy of Marybell Trujillo of BelleImages.
U.S. District Court Judge R. Brooke Jackson, right, swears in Colorado Court of Appeals Judge Terry Fox in January 2011. Photo courtesy of Marybell Trujillo of BelleImages.
Fox took a different view of the current law. The fact that B.C.B. did not have “the more pronounced and immediate signs of distress” was not the end of the road for her.
Under the more restrictive interpretation, “a parent could actively use methamphetamine throughout a pregnancy (and presumably continue to use methamphetamine after the child’s birth),” she wrote, “but if the child was not born prematurely, did not have immediate, detectable growth impairments, or was not experiencing withdrawal symptoms, the child would not be a dependent or neglected child.”
Fox believed the entirety of the evidence established a threat to B.C.B.’s welfare if he were to remain in his mother’s care. Therefore, she would have upheld the jury’s verdict.
The case is People in the Interest of B.C.B.