In this decision, the Supreme Court reviews a decision by a divided panel of the Court of Appeals that held a trial court must deny a motion to terminate parental rights that has been proven by clear and convincing evidence if a less drastic alternative to termination exits even though that less drastic alternative is not in the child’s best interests. The Supreme Court reverses the Court of Appeals decision.

A.M. was placed with her paternal aunt at birth and was subsequently adjudicated dependent and neglected. The department filed a motion to terminate parental rights of both parents. Following a two-day termination hearing, the trial court denied the motion to terminate, holding that while termination would serve the child’s best interests, allocation of parental responsibilities (APR) was a less drastic alternative.

The People appealed. In an unpublished decision, the Court of Appeals reversed, holding that the trial court had erroneously concluded it must allocate parental responsibilities even though doing so was not in the child’s best interests; the decision instructed the trial court to determine whether termination or allocation of parental responsibilities was in the child’s best interests.

On remand, the trial court found that APR was “an appropriate and viable option and less drastic than termination” but that termination was “better for the child because it provides a slightly higher probability of permanence.” The trial court terminated parental rights.

The father appealed. The majority of a divided Court of Appeals division held that instead of focusing on the best interests of the child, the trial court was required to determine whether an alternative short of termination “adequately meets the child’s physical, emotional, and mental health needs.” The Court of Appeals went on to hold that if a trial court finds that both APR and termination would adequately serve a child’s needs, the trial court must deny a motion to terminate.

The Supreme Court relies on its previous decisions concerning less drastic alternatives, People in Interest of M.M., 520 P.2d 128 (Colo. 1974), and People in Interest of L.D., 671 P.2d 940 (Colo. 1983), and an analysis of various Court of Appeals decision to conclude that best interests, rather than adequacy, applies to a court’s termination decision. Specifically, the Court holds:

“Primary consideration of the child’s physical, mental, and emotional condition and needs requires more than a mere assessment of adequacy in order to satisfy the overall intent of the Children’s Code. To that end, if a trial court considers a less drastic alternative in connection with its overall evaluation of the statutory criteria for termination and finds that it is in the child’s best interests, it should deny the termination request. Conversely, if a trial court considers a less drastic alternative in connection with its overall consideration of the statutory criteria for termination and finds that termination is in the child’s best interests, it must reject the alternative and order termination.”

Considering the father’s constitutional claims, the Court holds that the adequacy standard is not necessary to satisfy a parent’s due process rights. Once parental unfitness has been established at a termination hearing, the interests of the parent and child diverge and “the separate interests of the child outweigh the risk of erroneous termination of the parent-child relationship.” Due process is satisfied by the trial court’s consideration of the statutory criteria for termination.

The Court also holds that express consideration and elimination of less drastic alternatives, while the better practice, is neither required nor necessary to satisfy a parent’s
due process rights.

Finally, the Court determines that the Court of Appeals failed to apply the clearly erroneous standard of review and improperly substituted its judgment for that of the trial court.

Click here to access the case in Westlaw.