Colorado’s second-highest court was split last week over whether to uphold an Arapahoe County judge’s parenting order, with two appellate judges interpreting the language differently than the parties and the third appellate judge.

In the underlying case, the county filed a child neglect case on behalf of a 4-year-old girl. At an October 2023 hearing, District Court Judge Victoria Klingensmith entered an order governing the mother’s custody, with the intent of forwarding it to Douglas County where a separate domestic relations case was pending.

Kingensmith’s order read, in part, “Prior to any modification of this order, Respondent Mother will comply with the following components of her treatment plan,” listing therapy appointments, acting on provider recommendations and other steps.

The mother, identified as D.E., appealed, arguing Klingensmith’s order improperly limited D.E.’s ability to request modifications of parenting rights and also limited the Douglas County court’s authority to issue changes. Arapahoe County and the child’s legal representative conceded that was the upshot of Klingensmith’s decision.

But by 2-1, a panel of the Court of Appeals believed everyone had read it incorrectly.

The order “doesn’t limit future modifications of parenting time but instead provides a roadmap for mother’s success,” wrote Judge W. Eric Kuhn for himself and Judge Ted C. Tow III.

Kuhn, in the panel’s Sept. 5 opinion, acknowledged the language “could create confusion,” but he did not believe Klingensmith actually limited either D.E. or another judge from pursuing changes to the custody terms.

“Viewed in context, we read the disputed language as expressing the juvenile court’s expectation that mother would comply with specific components of her treatment plan to progress in visitation,” Kuhn elaborated. “In other words, that section provided mother with steps that could help her succeed with her rehabilitation and, potentially, with a modification of the order.”

Judge Daniel M. Taubman, in contrast, agreed with the parties that the language imposed an actual restriction.

“The juvenile court provided that mother ‘will’ comply with five components of her treatment plan ‘prior to any modification’ of its order,” he argued. “The juvenile court’s order thus exceeded the bounds of its authority.”

Taubman added that Klingensmith could not constrain another judge’s authority to make decisions about parental rights in the separate Douglas County case. He would have ordered the deletion of the disputed language in Klingensmith’s decision.

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