The Colorado Supreme Court, in an extraordinary move, could not reach agreement on Monday about whether a child’s legal representative has the authority to file a motion to terminate parental rights in a child welfare proceeding.

The 3-3 vote was a product of Justice Melissa Hart’s announced departure from the court in mid-December. She cited family and personal health reasons following an extended and unusual leave of absence. Her vacancy will be filled in February.

The lack of an opinion from an evenly divided court does have precedent, as the court’s database contains multiple occasions throughout its history where one of its seven members did not participate and the remaining justices could not reach a majority. However, the most recent instances last arose in a pair of appeals in 2019.

In the current child neglect proceeding in Morgan County, the underlying facts and filings were sealed from public view. The legal question, however, was whether a counsel for youth — a client-directed attorney for older children created under 2022 legislation — may move to terminate a parent’s legal relationship with their child.

Last June, the Supreme Court concluded in People in the Interest of R.M.P. that only the government can pursue a child neglect case, and a child’s legal representative may not continue to litigate a matter once the county has decided to drop the allegations. Recently, the state’s Court of Appeals extended that logic to rule that the legal representative may not appeal a judge’s decision declining to terminate parental rights if the government has not also moved to appeal.

Judge Katharine E. Lum disagreed with that view, believing that a child’s counsel for youth or related “guardian ad litem” representative was not limited to merely tagging along with the government.

“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.

The Colorado Office of the Child’s Representative and the National Association of Counsel for Children wrote to the Supreme Court, arguing that Colorado lawmakers have deemed children “full parties” with “legally protected interests.” Therefore, they should be able to litigate termination through their legal counsel independently of county departments of human services.

Holding otherwise “would effectively make this class of children reliant on the department to pursue adoption as a permanency option,” they wrote. “And allowing the department to essentially hold the only key to the gate of adoption for any child in a dependency case fails to honor children’s independent interests.”

In its brief Jan. 12 order, the court indicated that Chief Justice Monica M. Márquez and Justices Carlos A. Samour Jr. and Maria E. Berkenkotter would have sided with the mother who argued her child’s counsel for youth could not file a termination motion. Justices Brian D. Boatright, William W. Hood III and Richard L. Gabriel would have turned aside that challenge.

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