People in Interest of B.C.B.
2024 COA 88. No. 23CA1316. Dependency and Neglect—Child Born Affected by Alcohol or Substance Exposure—Adverse Effects of Exposure.
August 8, 2024
The El Paso County Department of Human Services (department) filed a petition in dependency and neglect, alleging, as relevant here, that the child had tested positive for methamphetamine at birth and that the parents had a history of substance abuse. The parents denied the allegations and requested a jury trial. Mother conceded at trial that she used methamphetamine during her pregnancy and that the child tested positive for methamphetamine at birth, but it was undisputed that mother had engaged in substance abuse treatment since this case was brought and that she had not tested positive for alcohol or substances since she gave birth. The parties also stipulated that there was no evidence that father used illegal drugs. Father moved for a directed verdict at the conclusion of the department’s case, arguing that there had been no evidence that the child suffered adverse effects of drug use. The court denied the motion. After the adjudicatory trial, the court gave the jury special verdict forms asking it to determine whether the child was dependent or neglected under CRS § 19-3-102(1)(b), (c), (d), and (g). The jury returned a verdict finding that the child was dependent or neglected under subsection (1)(g) but not the other subparagraphs. Based on the jury’s verdict, the court sustained the petition, entered an adjudication, and adopted treatment plans for both parents.
On appeal, mother contended that there was insufficient evidence to support the child’s adjudication under § 19-3-102(1)(g). Section 19-3-102(1)(g) provides that a child is dependent or neglected if the child “is born affected by alcohol or substance exposure, except when taken as prescribed or recommended and monitored by a licensed health care provider, and the newborn child’s health or welfare is threatened by substance use.” Thus, for the government to obtain an adjudication under subsection (1)(g), it must establish that, at birth, the child was adversely affected by, not simply exposed to, alcohol or substances. Here, while there was evidence that the child might suffer from long-term impacts due to substance exposure, the government did not present evidence sufficient to support a finding by a preponderance of the evidence that the child actually suffered a physical, developmental, or behavioral response to substance exposure. Accordingly, the record evidence is insufficient to support the child’s adjudication as dependent or neglected.
The judgment was reversed and the case was remanded to the juvenile court with instructions to dismiss the petition, vacate all orders with respect to the child, and relinquish its jurisdiction.