A member of Colorado’s second-highest court suggested last week that appellate judges should have more leeway to decide whether trial judges correctly terminate or decline to terminate parents’ legal rights over their children.

At the same time, the three-judge Court of Appeals panel agreed that no specific person has to be identified in order for a trial judge to find that granting custody of a child to a non-parent is a viable alternative to terminating parental rights altogether.

In a case out of Mesa County, the government sought to terminate the parental rights of a mother, identified as A.S. At the time, the child resided with the maternal grandparents, and the child’s grandmother was reluctant to accept permanent custody because dealing with A.S. was “difficult.”

The county argued that terminating A.S.’s rights was proper because custody was not currently available as a less drastic alternative. However, District Court Judge Valerie Robison denied the motion to terminate, finding a custody arrangement was a less drastic alternative to severing A.S.’s parental rights.

Mesa County and the child’s legal representative appealed, arguing the absence of a willing custodian at that moment should have led to the termination, rather than an open-ended custody question.

“There is no way it is in this little 10-year-old’s best interest to have this case floundering out there,” said Todd M. Starr, the Mesa County attorney, during oral arguments.

“The bottom line,” countered attorney John F. Poor for A.S., “is we have a denial of a motion to terminate and a court saying, ‘We may have to leave this case open for a little while because it is not in the child’s best interest to terminate.'”

The appellate panel agreed that there does not need to be a specific custodian identified for a judge to find that giving custody to a non-parent is a superior option to outright termination.

“Indeed, when a court concludes that termination is in a child’s best interests because that child’s needs are best met by the permanency that only termination and adoption can provide,” wrote Judge Sueanna P. Johnson in the Nov. 6 opinion, “the child does not need to be in a potentially adoptive home, nor do we require that a specific adoptive placement be identified or known to the court at the time of termination.”

Judge Craig R. Welling wrote separately to point out a potential inconsistency. He noted the Colorado Supreme Court, in a 2021 decision, advised that a trial judge’s determination about less drastic alternatives is held to the standard of clear error, meaning there is a high bar to overturning the judge’s findings about the facts.

Yet, in a 2022 opinion, the Supreme Court referenced the slightly looser “abuse of discretion” standard for rulings that mix factual and legal issues.

While not explicitly calling on the Supreme Court to clarify how deferential appellate judges should be, Welling suggested the lower hurdle was more appropriate.

“I am concerned that this (clear error) standard may render a juvenile court’s less drastic alternative findings virtually unreviewable, particularly when a court may reject some or all of a witness’s testimony,” he wrote.

Welling also suggested a hybrid approach, with trial judges’ findings about the existence of less drastic alternatives being given wide leeway, but appellate courts more closely scrutinizing whether the judge has properly identified the child’s best interests.

The case is People in the Interest of H.L.B.