In a case centered around when a trial court may terminate a parent’s rights over their child, the Colorado Supreme Court overturned an appellate decision on Monday and reiterated that judges must consider what is in the child’s best interest.

In doing so, the justices rejected the argument that biases of individual judges could affect their beliefs about the best interest of children, thereby harming parents’ constitutional rights. The court instead voiced confidence in the process for terminating parental rights, and that the evidence must be clear and convincing.

The opinion was the first from the newest member of the court, Justice Maria E. Berkenkotter, who joined in January. An appointee of Gov. Jared Polis, Berkenkotter was previously a district court judge and chief judge in Boulder County.

In the case, a child identified as A.M. tested positive for heroin at birth, as did both of her parents. Larimer County District Court Judge Gregory M. Lammons put the parents on a corrective plan, but eventually proceedings began to terminate their parental rights, with the county alleging they had not complied with their treatment.

Lammons leaned in favor of termination, with the child’s aunt adopting her, reasoning that the option would provide certainty and stability for the girl. However, the law required there be “no less drastic alternatives” available. In Lammons’s view, there was one less drastic adoption: an allocation of parental responsibilities, essentially custody, to the aunt, which would not in itself end the parental rights.

On appeal, a three-member appellate panel sent the case back to Lammons for reconsideration of the child’s best interests. He subsequently reversed himself and terminated parental rights, finding it better for A.M. given the “slightly higher probability of permanence.”

A.M.’s father appealed once more, and another Court of Appeals panel, by 2-1, ordered another reversal. The majority, wrote Judge Ted C. Tow III, believed Lammons had decided correctly the first time. If the allocation of parental rights to the aunt would “adequately” serve the child’s needs, “termination must be denied.”

During oral argument to the Supreme Court, an attorney for A.M. noted the father's concern about implicit biases in judicial decision-making, but believed that imposing an undefined standard of adequacy would fail to lessen the subjectivity involved.

"If we were to adopt an adequate-type standard, essentially the juvenile court could be placed in position where, in a particular case, it says, I've got two different options here, and I'm gonna chose the one that is not in the best interest of the child, but it's good enough," observed Justice Carlos A. Samour, Jr. "Even though the parents have been given a chance to complete a treatment plan and have failed, even though they've been found to be unfit."

Berkenkotter, in the Supreme Court’s opinion, explained that trial courts may end parental rights if the parent is unfit and their conduct is unlikely to change within a reasonable time. She called out the appellate panel’s majority for deviating from the prior cases it cited as evidence — cases which approved using the child’s best interest as a metric, and not merely adequacy.

“[I]f a proposed alternative to termination is to be deemed viable, it must not only be adequate, it must be in the child’s best interests. None of these cases suggests,” Berkenkotter wrote, “that ‘best’ means adequate.”

To the father’s argument about judges’ subjective decisions affecting his constitutional rights as a parent, the Supreme Court acknowledged that both parents and children generally have an interest in maintaining the family relationship.

“However, once the trial court is persuaded that the State has established a parent’s lack of fitness, the interests of the child and the parent diverge. At that point, the separate interests of the child outweigh the risk of erroneous termination of the parent-child relationship,” she explained.

The justices reversed the Court of Appeals majority's decision.

Following the ruling, the Office of Respondent Parents' Counsel, the state agency that provides representation to indigent parents, believed the adoption of an "adequacy" standard would have benefitted children from Black and Latino families who are disproportionately represented in the child welfare system and whose cases may suffer from "cultural misunderstanding."

"Termination of parental rights is akin to a civil death penalty as most parents who have lost their children through government intervention would attest," the office wrote. "Yet, Colorado courts continue to permit trial courts to apply amorphous and vague best interests standards that fail to provide adequate protection and introduce bias into the system, disproportionately impacting communities of color and families experiencing poverty."

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

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