COCODE

19-3-102. Neglected or dependent child.

Statute text

(1) A child is neglected or dependent if:

(a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring;

(b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian;

(d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being;

(e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian;

(f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian;

(g) 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.

(2) A child is neglected or dependent if:

(a) A parent, guardian, or legal custodian has subjected another child or children to an identifiable pattern of habitual abuse; and

(b) Such parent, guardian, or legal custodian has been the respondent in another proceeding under this article in which a court has adjudicated another child to be neglected or dependent based upon allegations of sexual or physical abuse, or a court of competent jurisdiction has determined that such parent's, guardian's, or legal custodian's abuse or neglect has caused the death of another child; and

(c) The pattern of habitual abuse described in paragraph (a) of this subsection (2) and the type of abuse described in the allegations specified in paragraph (b) of this subsection (2) pose a current threat to the child.

History

Source: L. 87: Entire title R&RE, p. 760, 1, effective October 1. L. 97: Entire section amended, p. 516, 2, effective July 1; entire section amended, p. 1433, 8, effective July 1. L. 2005: (1)(g) added, p. 587, 2, effective July 1. L. 2020: (1)(g) amended, (SB 20-028), ch. 186, p. 854, 5, effective June 30.

Annotations

Editor's note: (1) This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-1-103 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

(2) Amendments to this section by Senate Bill 97-218 and Senate Bill 97-71 were harmonized.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Review of Colorado Dependency and Neglect Law", see 11 Colo. Law. 3007 (1982).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Former subsection (1)(c) (formerly 19-1-403 (20)(c)). Subsection (1)(c) is not unconstitutionally vague and overbroad. People in Interest of V.A.E.Y.H.D., 199 Colo. 148, 605 P.2d 916 (1980).

Public policy of state is to provide for neglected and dependent child in a manner that will best serve his or her welfare and the interests of society. In re People in Interest of M.M., 184 Colo. 298, 520 P.2d 128 (1974).

The juvenile court does not have jurisdiction over an unborn child in a dependency and neglect action. The Colorado Children's Code defines a "child" as a person under 18 years of age. When the general assembly amended the definition of child in 1967 and removed the reference to an unborn child, the intent was to change the law and no longer subject an unborn child to the provisions of the Children's Code. Additionally, the remedies that are available in dependency and neglect actions support the conclusion that an unborn child is not subject to the Children's Code. The provisions and remedies in the dependency and neglect statutes all relate to a child who has been born. People ex rel. H., 74 P.3d 494 (Colo. App. 2003).

People ex rel. H., cited above, does not preclude the filing of a petition as to a child born with controlled substances in his or her system. Evidence of a parent's prenatal substance abuse is sufficient to establish there will be mistreatment or abuse if the child is placed with the parent after birth. Upon the birth of the child, such evidence may also support the filing of a petition in dependency or neglect under subsection (1)(a) to (1)(c). People ex rel. T.T., 128 P.3d 328 (Colo. App. 2005).

In order to declare child neglected or dependent as a preliminary to separating him or her from his or her parents or custodians, the evidence must clearly establish its necessity, and state intervention should be limited to instances of neglect and dependency as defined in the Colorado Children's Code. People in Interest of T.H., 197 Colo. 247, 593 P.2d 346 (1979).

Adjudications of neglect or dependency are not made "as to" the parents, but rather relate only to the status of the child. People in Interest of P.D.S., 669 P.2d 627 (Colo. App. 1983); People ex rel. T.T., 128 P.3d 328 (Colo. App. 2005).

A parent's criminal convictions and pending charges cannot support a dependency and neglect determination, unless there is a link between the parent's convictions and pending charges and the factors set forth in this section. People in Interest of D.M.F.D., 2021 COA 95, 497 P.3d 14.

Specific findings required. Vague references to a child's best interests cannot be substituted for the specific findings required by the Colorado Children's Code. C.M. v. People in Interest of J.M., 198 Colo. 436, 601 P.2d 1364 (1979).

In order to declare a child neglected and dependent, a step ordinarily followed by a disposition proceeding separating him or her from his or her parents or custodians, the evidence must clearly establish that such separation is necessary. State intervention should be limited to the instances of neglect and dependency defined in this section. C.M. v. People in Interest of J.M., 198 Colo. 436, 601 P.2d 1364 (1979).

There is no single adamantine signification in the expressions "dependent child" and "neglected child", but the court must naturally look to the general assembly for the meaning intended to be attached to these words. Metzger v. People, 98 Colo. 133, 53 P.2d 1189 (1936).

There is no distinction between findings of dependency and neglect. People in Interest of D.L.E., 645 P.2d 271 (Colo. 1982).

Terms "neglected" or "dependent" are used interchangeably in former subsection (20) (now subsection (1)) and by setting these out in the alternative the general assembly intended that "neglected or dependent child" or "dependent or neglected child" would stand for a single concept. People in Interest of D.L.E., 200 Colo. 244, 614 P.2d 873 (1980).

The dependency provisions make no distinction between illegitimate and legitimate dependent children. The terminology thereof, namely "child", clearly negates such a construction. Ortega v. Portales, 134 Colo. 537, 307 P.2d 193 (1957).

Former 19-1-114 (now 19-3-103) can bar finding of neglect or dependency under subsection (1) of this section. People in Interest of D.L.E., 200 Colo. 244, 614 P.2d 873 (1980).

A "custodian" does not have the right to care, custody, or control of a child within the meaning of subsection (1)(b). A "legal custodian" does have the right to care, custody, or control of a child within the meaning of subsection (1)(b). A "legal custodian" references a different type of relationship to a child than a "custodian". A paid child care provider is considered a "custodian". Thus, subsection (1)(b) is inapplicable in determining whether a paid child care provider's actions constitute child abuse or neglect. Ansel v. State Dept. of Human Servs., 2020 COA 172M, 480 P.3d 758.

The addition of subsection (1)(g) clarified, but did not change, existing law. Subsection (1)(g) was intended to expedite dependency and neglect proceedings, and subsection (1)(g) can be applied to a petition filed as to a child born with controlled substances in his or her system. People ex rel. T.T., 128 P.3d 328 (Colo. App. 2005).

A child whose parents have abandoned it is a dependent or neglected child. In re People in Interest of R.L., 32 Colo. App. 29, 505 P.2d 968 (1973).

As is child subjected to mistreatment. In an action to declare children dependent or neglected, the state must show that the parents subjected, or allowed another to subject, the child to mistreatment or abuse. In re People in Interest of R.K., 31 Colo. App. 459, 505 P.2d 37 (1972).

Where welfare and needs are in peril. Under these provisions of the Colorado Children's Code concerning the determination of neglect and dependency, such determination can be sought only in situations where the immediate needs and welfare of a child are in peril, and consequently they represent situations where the doctrine of parens patriae would be applicable. In re People in Interest of E.F.C., 30 Colo. App. 190, 490 P.2d 706 (1971).

Child not neglected because condition would improve with change of parents. While the state has a legitimate concern in furthering the best interests of the child, a child cannot be deemed "neglected" merely because it is contended that his condition would be improved by changing his parents or custodians. People in Interest of T.H., 197 Colo. 247, 593 P.2d 346 (1979).

Abandonment is primarily a question of intent. It is more often determined by what one does rather than by what he says. Fulton v. Martensen, 129 Colo. 125, 267 P.2d 658 (1954).

Injurious environment allegations against father based solely on mother's conduct were erroneous. Court unwilling to read into subsection (1)(c) a provision allowing for a no-fault adjudication where the dependency and neglect petition is based on allegations of an injurious environment given that the general assembly expressly provided for no-fault adjudication in subsection (1)(e) concerning homelessness and lack of proper care. People ex rel. S.G.L., 214 P.3d 580 (Colo. App. 2009).

Abandoned child receiving care from others may be declared dependent and neglected. When a child has been abandoned by its parents, a court may find that the child is dependent and neglected, notwithstanding the fact that the child may be currently receiving adequate care from other persons. People in Interest of F.M., 44 Colo. App. 142, 609 P.2d 1123 (1980).

No religious freedom right to expose child to ill health. The right to practice religion freely does not include the right or liberty to expose the community or the child to ill health or death. People in Interest of D.L.E., 645 P.2d 271 (Colo. 1982).

And allowing conventional medical treatment not unconstitutional. An interpretation of this section to allow conventional medical treatment does not violate the free exercise of religion clauses of the first amendment of the United States constitution and of 4 of art. II, Colo. Const. People in Interest of D.L.E., 645 P.2d 271 (Colo. 1982).

Child neglected if deprived of care necessary to prevent life-endangering condition. A child who is treated solely by spiritual means is not, for that reason alone, dependent or neglected, but if there is an additional reason, such as where the child is deprived of medical care necessary to prevent a life-endangering condition, the child may be adjudicated dependent and neglected under the statutory scheme. People in Interest of D.L.E., 645 P.2d 271 (Colo. 1982).

At least where a minor suffers from a life-threatening medical condition due to a failure to comply with a program of medical treatment on religious grounds, this section permits a finding of dependency and neglect. People in Interest of D.L.E., 645 P.2d 271 (Colo. 1982).

"For that reason alone" construed. The statutory language, "for that reason alone", allows a finding of dependency and neglect for other "reasons", such as where the child's life is in imminent danger, despite any treatment by spiritual means. People in Interest of D.L.E., 645 P.2d 271 (Colo. 1982).

A child may be neglected or dependent because she lacks proper care through no fault of the parents. M.S. v. People, 812 P.2d 632 (Colo. 1991).

Summary judgment in favor of defendant pursuant to subsection (1)(f) and against mother of 9-year-old child was not appropriate. Even though child had once refused to go home, there was no evidence that child had run away from home, and child's statement that she would consider living part-time with each parent sufficiently raised a genuine issue as to whether child was beyond the control of her mother. People in Interest of C.C.G., 873 P.2d 41 (Colo. App. 1994).

Summary judgment was also inappropriate under subsections (1)(b) to (1)(d) where other than child's claim of abuse, there was no evidence of abuse under 19-3-505 (7)(a) which might have occurred while the child, who also spent time with noncustodial father, was in the mother's custody. People in Interest of C.C.G., 873 P.2d 41 (Colo. App. 1994).

Further, even if court were to characterize the enlarged vaginal opening as evidence of abuse pursuant to 19-3-505 (7)(a), it would establish only prima facie, not conclusive, evidence that child was neglected or dependent under this section. People in Interest of C.C.G., 873 P.2d 41 (Colo. App. 1994).

Whether to grant summary judgment in a dependency and neglect adjudication involving prospective harm must be decided on a case-by-case basis. The court must determine whether the material facts are disputed. If the material facts are undisputed, the court must apply the statute to the facts and determine whether reasonable minds can draw differing inferences. Depending on the undisputed facts of the case, summary judgment may be appropriate. While a parent's past conduct and current circumstances are likely to be disputed, the possibility of summary judgment in a particular case is not foreclosed. People in Interest of S.N. v. S.N., 2014 CO 64, 329 P.3d 276.

Jury instructions concerning dependency and neglect adjudication were not misleading where instructions were stated in the past tense rather than the present tense. People ex rel. S.X.M., 271 P.3d 1124 (Colo. App. 2011).

Jury instruction was not a proper pattern introductory statement of the case instruction when it incorporated the entire case history from the dependency and neglect petition into the statement-of-the-case instruction to prospective jurors. The case history included unsubstantiated allegations and allegations based on inadmissable evidence. The error impaired the basic fairness of the trial, requiring reversal. People in Interest of M.H-K., 2018 COA 178, 433 P.3d 627.

Presumption afforded parent under Troxel v. Granville, 530 U.S. 57 (2000), that parent is acting and will act in the best interests of the child is overcome by adjudicatory order finding a child dependent or neglected. The mere judicial authorization to file a petition alleging dependency or neglect does not overcome the Troxel presumption. People ex rel. N.G., 2012 COA 131, 303 P.3d 1207.

The Troxel presumption will ordinarily survive a deferred adjudication because a deferred adjudication is not final as to the merits of the allegations set forth in the dependency and neglect petition, especially where the determination is based only on the parent's no-fault admission. People ex rel. N.G., 2012 COA 131, 303 P.3d 1207.

The statutory criteria for adjudicating a child as dependent or neglected satisfies Troxel and does not require that the court find that both parents are unavailable, unable, or unwilling to provide reasonable parental care prior to adjudication. Adjudicatory proceedings are distinct from termination proceedings, and each has different goals and requirements. By requiring the state to prove that neither parent was available, able, and willing to provide reasonable parental care, the trial court erred in unnecessarily conflating the statutory dependency and neglect criteria with the termination criteria. People in Interest of J.G., 2016 CO 39, 370 P.3d 1151.

Subsection (1)(c) does not require proof of parental fault. Child may be adjudicated dependent or neglected when he or she is in an injurious environment, regardless of the parents' actions or failures to act. People in Interest of J.G., 2016 CO 39, 370 P.3d 1151.