A member of Colorado’s second-highest court argued on Wednesday that, despite a recent state Supreme Court ruling prohibiting anyone other than the government from pursuing child-welfare cases, a child’s legal representative may still appeal certain decisions.

By 2-1, a three-judge Court of Appeals panel decided it could not review a trial judge’s decision out of Rio Blanco County, declining to terminate the parent-child relationship between two adults and their two children. The “guardian ad litem,” who is the court-appointed representative for the children’s best interests, pursued the appeal without the government.

In dismissing the appeal, Judge Dennis A. Graham pointed to People in the Interest of R.M.P., a Supreme Court decision from June, which held that a minor’s legal representative may not continue to litigate a child neglect case after the government has withdrawn its allegations against the parent.

“This is an intermediate appellate court. We are bound by holdings of the Colorado Supreme Court. We may not parse the plain language of supreme court holdings, even when we think there may be a better, or more correct, rule,” Graham wrote for himself and Judge Michael H. Berger in the Dec. 31 opinion. “If the supreme court spoke too broadly in R.M.P., it is for that court, not this court, to correct that error.”

Judge Katharine E. Lum dissented, believing the Supreme Court’s reasoning did not apply to the Rio Blanco County appeal.

“R.M.P. does not say that a GAL cannot prosecute a motion to terminate parental rights or appeal the denial of a termination motion, and I can find no prior case supporting either principle,” she wrote.

In the R.M.P. case, which the Supreme Court decided by 6-1, the majority was concerned that allowing a child’s representative to litigate neglect allegations dismissed by the government would morph the traditional child welfare proceedings into “a weaponized family court system.”

“Allowing a child (or any non-state party) to override the State’s determination that a petition should be dismissed would be analogous to allowing the victim of a crime to prevent the district attorney from dismissing a criminal case. Colorado law does not confer such a right,” wrote Chief Justice Monica M. Márquez.

During oral arguments in the Rio Blanco County case in October, the Court of Appeals panel questioned why that conclusion should not apply to the guardian ad litem’s sole appeal of a trial judge’s order declining to terminate the parents’ legal rights.

Once a case has moved beyond the initial stage and reaches the ultimate question of termination, the children are “a party to the case. Standing has been conferred because there’s an existing case,” argued Cassie L. Coleman, the children’s guardian ad litem. “And what is more important to the children than who’s their legal parents?”

“What if the state had agreed to appeal this, but on different grounds than the ones the guardian ad litem wanted to raise?” asked Lum. “Would that be permissible?”

What if “we punt this upstairs and let the Supreme Court tell us definitively what they really mean?” added Berger. “We’re not very good at reading the tea leaves from Supreme Court decisions that are not exactly on point.”

“I think that’s exactly where this needs to be resolved. That or the legislature,” responded Coleman.

The panel’s majority concluded that the guardian ad litem cannot appeal in situations where they seek “to take the place of the State.” Because Rio Blanco County had not joined the appeal, the R.M.P. decision barred the children’s representative from proceeding alone.

Lum believed that R.M.P. addressed a different issue than the case at hand. While a child neglect petition is the starting point for “intrusive protective or corrective state intervention into the familial relationship,” Rio Blanco County had already demonstrated the children were neglected, she wrote. Once the case reaches the question of whether to terminate the parents’ legal rights, the Supreme Court has recognized a guardian ad litem’s ability to file such a motion.

“And if a GAL is authorized to file a motion to terminate parental rights,” Lum continued, “I see no basis in the Children’s Code or case law for holding that the GAL should not be authorized to appeal the denial of that motion when the GAL concludes that doing so is in the child’s best interests.”

Although she would not have dismissed the appeal, Lum added that she believed the trial judge’s underlying decision was correct.

The case is People in Interest of N.K.S.