Colorado’s second-highest court ruled on Thursday that even if a child welfare caseworker could have rehabilitated a father by facilitating visitation time and drug treatment while he was incarcerated, the lack of services was excusable because the man likely would not have taken advantage of them anyway.

By 2-1, a three-judge panel of the Court of Appeals determined a Jefferson County judge was justified in terminating the legal relationship between the man identified as T.S. and his infant. Although T.S. argued on appeal the county’s division of family services had not satisfied its legal obligation to make “reasonable efforts” to keep his family together, the majority determined any outreach would not have made a difference while T.S. rotated in and out of jail.

“Keeping the case open and delaying the termination decision, as father requested, based on speculation that he would suddenly be willing to participate in drug or mental health treatment, was not only contrary to the evidence, but it would not have been in the child’s best interests,” wrote Judge Steve Bernard for himself and Judge Lino S. Lipinsky de Orlov in the panel’s Aug. 15 opinion.

Judge Timothy J. Schutz dissented. In his view, the evidence showed T.S. was not as resistant to services as the majority believed, and the proper engagement by T.S.’s caseworker could have made a difference.

The majority’s conclusions “fail to appreciate the realities of mental health and addiction,” Schutz argued. Moreover, Colorado law “does not condition the provision of services on a request from the parent; it requires that the relevant services ‘must be made available and provided’ — an affirmative duty placed on the division.”

The panel broadly agreed on the underlying sequence of events:

• T.S.’s child was born in November 2022 with fentanyl exposure due to the mother’s drug addiction

• Jeffco took custody of the child and initiated child neglect proceedings

• T.S. and the mother had both used fentanyl every day and were homeless, but stated they were willing to participate in drug treatment

• T.S. had previously been incarcerated and gotten sober from his longtime drug addiction, but relapsed

• During the child welfare case, T.S. attended some scheduled visitations with his child and submitted some drug samples that tested positive for substances

• Beginning in March 2023, T.S. was repeatedly arrested for misdemeanors

• Although T.S. continued, while incarcerated, to attend hearings in the child welfare case, he did not participate in visitations or engage in treatment — nor did his caseworker facilitate those services

In September 2023, then-District Court Judge Ann Gail Meinster terminated T.S.’s parental rights after finding the county made reasonable efforts to keep the family together and that termination would be in the child’s best interests. The sole witness was the child welfare caseworker, who testified there was “no ongoing parent-child relationship to preserve in this case.” Meinster agreed, noting T.S. had not engaged in treatment, lacked stability and had no relationship with his child.

On appeal, T.S. largely argued Jeffco’s family services division did not fulfill its legal obligations because the caseworker had not facilitated treatment or child visitations while he was incarcerated.

In rejecting that argument, the panel’s majority recited T.S.’s actions prior to his arrests, in which he failed his drug tests and did not follow through on treatment. T.S. also stopped attending visitations later in the case when he was out of custody.

“Giving father the benefit of the doubt that the division could have offered him effective drug treatment, mental health, and family time services while he was shuttled among several jails,” wrote Bernard, a retired judge who sat on the panel at the chief justice’s assignment, “his conduct throughout this case was not a reliable indicator of whether he would have accepted this assistance.”

Schutz, in dissent, argued T.S. was not as resistant to rehabilitation as the majority made it seem. More fundamentally, he believed Meinster based her termination decision largely on the fact that no parent-child relationship existed between T.S. and the child. However, it was not clear to Schutz whether the lack of relationship was caused, in part, by the caseworker’s failure to provide services to T.S. while incarcerated.

“The threshold question, then, is whether a parent may be found unfit, and the division can be found to have used reasonable efforts, when the division failed to provide the parent with the required services for 40% of the material time,” Schutz wrote. “No party cites a case sanctioning such an outcome, and I am aware of none.”

He noted there is no incarceration exception to the government’s obligation to provide services, while adding that Colorado courts have rejected the idea that a criminal conviction, let alone incarceration, triggers the forfeiture of parental rights.

“And to avoid a de facto termination in such circumstances,” Schutz wrote, “it is paramount that the caseworker do the hard work necessary to communicate with custodians and work creatively to provide visitation, substance abuse, and mental health services for parents.”

New law

In his appeal, T.S. also cited a change lawmakers enacted in 2023 affecting parents who are “continuously incarcerated” for longer than 35 days. In those circumstances, the caseworker shall provide treatment information to the parent “upon knowledge of incarceration.”

The majority opinion noted the law took effect in January 2024, so it did not apply to T.S.’s case. Further, two of T.S.’s three stints in jail were under 35 days.

Schutz criticized the majority’s choice to address the new law, saying it was unnecessary to decide T.S.’s appeal. Although the majority’s interpretation suggested caseworkers, going forward, have no obligation to provide services unless a parent has been incarcerated for longer than 35 days, Schutz warned the result would be to excuse caseworkers of their duties even if they know a parent has been recently jailed.

“I would resolve that ambiguity in favor of requiring action upon the caseworker’s knowledge of incarceration,” he wrote.

Rep. Judy Amabile, D-Boulder, who sponsored the 2023 legislation, acknowledged the bill contained both a 35-day threshold and a provision contingent upon a caseworker’s knowledge of incarceration. But she believed Schutz’s interpretation of her bill was correct.

“Especially for jail, most people aren’t in jail for 35 days,” Amabile said. “They’re in jail for a few days. So, if you can get to them before they leave, then that’s an opportunity for us to intervene and to help people.”

She also agreed with Schutz’s dissent and the need for counties to fulfill their obligations even when the parent in a child welfare case is incarcerated.

“It’s pretty well-known that people don’t know what they need. And it’s incumbent on us to try to get people into care,” Amabile added.

The case is People in the Interest of S.S.