     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                           February 13, 2020

                                2020COA30

No. 19CA1406, People in Interest of A.M. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship

     A division of the court of appeals clarifies that when a juvenile

court finds that two options meet the child’s physical, mental, and

emotional needs, including adequately providing for permanency, it

must choose the option short of termination of the parent-child

relationship.
COLORADO COURT OF APPEALS
                                                                 2020COA30


Court of Appeals No. 19CA1406
Larimer County District Court No. 17JV249
Honorable Gregory M. Lammons, Judge


The People of the State of Colorado,

Appellee,

In the Interest of A.M., a Child,

and Concerning T.M.,

Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                    Division II
                             Opinion by JUDGE TOW
                                Webb, J., concurs
                                Terry, J., dissents

                          Announced February 13, 2020


Jeannine S. Haag, County Attorney, Jennifer A. Stewart, Senior County
Attorney, Fort Collins, Colorado, for Appellee

Josi McClauley, Guardian Ad Litem

Steven E. Baum, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
¶1    In this dependency and neglect proceeding, T.M. (father)

 appeals the juvenile court’s judgment terminating the parent-child

 legal relationship between him and A.M. (the child). We reverse and

 remand with directions. In doing so, we clarify that if a juvenile

 court determines that an allocation of parental responsibilities

 (APR) adequately serves a child’s physical, mental, and emotional

 needs, including providing for adequate permanence, it cannot

 terminate the parent-child relationship on the basis that

 termination of parental rights would be in the child’s best interests.

                           I.   Background

¶2    In June 2017, the Larimer County Department of Human

 Services received a report that the newborn child’s umbilical cord

 blood had tested positive for opiates. The child’s mother also tested

 positive for drugs. Later, at the request of the Department, father

 took a sobriety test, which was positive for methamphetamine, THC,

 and alcohol. The Department filed a motion for temporary custody,

 which a magistrate granted. The Department placed the child with

 her paternal aunt. The Department then filed a petition in

 dependency and neglect.




                                   1
¶3    Father admitted the petition’s allegations, and a magistrate

 adjudicated the child dependent or neglected. The magistrate also

 adopted a treatment plan for father, deeming it “both appropriate

 and in the best interest of the [c]hild.” The Department later filed a

 motion to terminate father’s parental rights.

¶4    After a hearing, the juvenile court found that the parents were

 unfit and that they were unlikely to change within a reasonable

 time. The court also found that terminating the parents’ rights

 would be in the child’s best interests. However, the court

 determined that because an APR to paternal aunt was a viable less

 drastic alternative, it could not terminate parental rights.

¶5    The Department appealed, contending that the court

 misapplied the law when it determined that “any permanency

 option . . . was an automatic bar to termination of parental rights.”

 In an unpublished opinion, a division of this court agreed with the

 Department. That division interpreted the juvenile court’s order as

 concluding that because the child’s aunt was willing to accept an

 APR, the juvenile court was precluded from terminating the parent-

 child relationship, without regard to whether the APR was in the

 best interests of the child. The division remanded the matter to the


                                    2
 juvenile court to determine whether the APR was in the best

 interests of the child. People in Interest of A.M., (Colo. App. No.

 18CA1091, May 2, 2019) (not published pursuant to C.A.R. 35(e))

 (A.M. I).

¶6     On remand, the juvenile court held a case management

 conference, but no party offered any additional testimony or any

 position regarding the directions on remand. The juvenile court

 then issued a new order. In its order on remand, the juvenile court

 took issue with the A.M. I division’s interpretation of its original

 order, noting that it had made “no such finding” that merely

 because the aunt was willing to accept an APR it was required to

 take that path. Rather, the juvenile court indicated that by finding

 the APR to be viable, it had implicitly found that it was in the child’s

 best interest. The juvenile court then found:

             In this case, the [c]ourt was presented with two
             viable alternatives: 1) permanent placement
             with [the child’s aunt]; or, 2) termination with
             adoption to [the aunt]. Both of those options
             provided safety and stability for A.M. Both
             provide appropriate permanence. Neither
             would create a feeling of temporariness. Both
             would serve A.M.’s physical, mental, and
             emotional needs.




                                     3
¶7    The juvenile court explained that it had previously believed

 that where “two viable options would serve the [c]hild’s physical,

 mental, and emotional needs, then the [c]ourt must choose the less

 drastic option.” But it felt that the A.M. I division had directed it to

 choose between the two alternatives based on which one was the

 best option. Ultimately, the juvenile court concluded that

 “termination is better for the child because it provides a slightly

 higher probability of permanence. Thus, the [c]ourt finds

 termination to be in [the child’s] best interest.”

                        II.    Father’s Contention

¶8    Father contends that the juvenile court erred by terminating

 his parental rights when termination provided only “a slightly

 higher probability of permanence than an existing less drastic

 alternative[,] namely, permanent placement with paternal aunt.”

 We agree.

                         A.    Threshold Matters

¶9    The Department and guardian ad litem (GAL) make assertions

 that we must address before analyzing father’s claim.

                          1.    Claim Preclusion




                                     4
¶ 10   The Department, in its answer brief, suggests that we should

  dismiss father’s contention under the doctrine of claim preclusion,

  otherwise known as res judicata. We disagree. Claim preclusion

  bars relitigation of matters that were decided in a prior proceeding,

  as well as matters that could have been raised in a prior proceeding

  but were not. Argus Real Estate, Inc. v. E-470 Pub. Highway Auth.,

  109 P.3d 604, 608 (Colo. 2005).

¶ 11   In the first appeal, the A.M. I division concluded that the

  juvenile court did not determine whether an APR was in the child’s

  best interests when it denied the Department’s request to terminate

  father’s parental rights. In this appeal, we understand father’s

  contention to be that, having now found that an APR would serve

  all of the child’s needs, a less drastic alternative exists in this case,

  and that the court erred in nonetheless terminating father’s

  parental rights.

¶ 12   Because this claim was not addressed in the first appeal, it is

  not precluded.

                      2.    Law of the Case Doctrine

¶ 13   We understand the GAL, in her answer brief, to request that

  we dismiss father’s appeal under the law of the case doctrine.


                                      5
  Again, we disagree. The law of the case doctrine recognizes that

  prior relevant rulings made in the same case are generally to be

  followed. In Interest of C.A.B.L., 221 P.3d 433, 438 (Colo. App.

  2009). But the doctrine applies to decisions of law, not to

  determinations of fact. Fortner v. Cousar, 992 P.2d 697, 700 (Colo.

  App. 1999).

¶ 14   To begin, the decision in A.M. I is susceptible of two readings.

  On the one hand, the division may have done no more than remand

  the matter for a determination yet to be made by the juvenile court

  — i.e., whether an APR would serve the child’s best interests.

  Alternatively, the decision could be read, as the juvenile court read

  it, to suggest that when faced with two viable alternatives that both

  meet the statutory threshold of serving the child’s physical, mental,

  and emotional needs, the court must select the single best

  alternative.

¶ 15   To the extent the decision in A.M. I is limited to the first

  interpretation, it did not establish a legal rule regarding whether the

  juvenile court has the obligation to choose the best of two viable

  options. To the extent the holding in A.M. I can be given this

  broader reading, we are not bound by it. See People v. Thomas,


                                     6
  2015 COA 17, ¶ 13 n.2 (“[T]he law of the case doctrine does not

  bind one division of this court to an earlier decision of another

  division, even in the same case.”). Either way, the law of the case

  does not preclude our addressing father’s contention.

                         B.    Standard of Review

¶ 16   Whether a juvenile court properly terminated parental rights

  presents a mixed question of fact and law because it involves

  application of the termination statute to evidentiary facts. People in

  Interest of L.M., 2018 COA 57M, ¶¶ 17, 24-29 (applied specifically to

  less drastic alternatives considerations).

¶ 17   Insofar as the question involves the juvenile court’s findings of

  fact, the court is the fact finder; it determines the credibility of

  witnesses and the probative effect and weight of the evidence.

  People in Interest of C.H., 166 P.3d 288, 289-90 (Colo. App. 2007).

  It also decides what inferences it will draw from that evidence. Id.

  And we may not disturb the court’s findings, including its ultimate

  finding to terminate a parent’s parental rights, if the record

  supports them. Id.

¶ 18   We review a juvenile court’s legal conclusions de novo when

  deciding mixed questions of fact and law. L.M., ¶ 17.


                                      7
                                  C.       Law

¶ 19      A juvenile court may terminate parental rights after finding, by

  clear and convincing evidence, that (1) the child has been

  adjudicated dependent and neglected; (2) the parent has not

  complied with an appropriate, court-approved treatment plan, or

  the plan has not been successful; (3) the parent is unfit; and (4) the

  parent’s conduct or condition is unlikely to change within a

  reasonable time. § 19-3-604(1)(c), C.R.S. 2019; People in Interest of

  N.A.T., 134 P.3d 535, 537 (Colo. App. 2006). Father does not

  challenge the court’s findings that these criteria were met in this

  case.

¶ 20      The statutory criteria imply the requirement that the court

  consider and eliminate less drastic alternatives before entering a

  termination order. People in Interest of M.M., 726 P.2d 1108, 1122-

  23 (Colo. 1986).

¶ 21      Termination of parental rights is a decision of paramount

  gravity affecting a parent’s fundamental constitutional interest in

  the care, custody, and management of his or her child. K.D. v.

  People, 139 P.3d 695, 700 (Colo. 2006). The state must exercise

  extreme caution in terminating parental rights. Id. Consequently,


                                       8
  a juvenile court must strictly comply with the appropriate

  standards for termination. Id. Because the determination of less

  drastic alternatives is implied in the statutory criteria for

  termination, the court must also strictly comply with the

  appropriate standards when determining less drastic alternatives.

¶ 22   As with all other criteria, when considering whether any less

  drastic alternatives to termination are viable, the juvenile court

  must “give primary consideration to the physical, mental, and

  emotional conditions and needs of the child.” § 19-3-604(3); see

  also People in Interest of J.L.M., 143 P.3d 1125, 1126-27 (Colo. App.

  2006). As relevant in this case, the juvenile court must also

  consider whether permanent placement with a relative provides

  “adequate permanence” or stability for the child. People in Interest

  of T.E.M., 124 P.3d 905, 910-11 (Colo. App. 2005); see People in

  Interest of A.R., 2012 COA 195M, ¶ 41.

¶ 23   Case law also provides guidance as to what the court may not

  consider in determining whether less drastic alternatives to

  termination exist. Importantly, “the parental relationship should

  not be terminated simply because the child’s condition thereby




                                      9
  might be improved.” People in Interest of E.A., 638 P.2d 278, 285

  (Colo. 1981).

¶ 24     Divisions of this court have determined that consideration of

  the child’s best interests is applicable to less drastic alternatives

  decisions.

       • Some divisions, as noted above, have concluded that the

         child’s best interests “govern” termination, generally. See

         People in Interest of J.M.B., 60 P.3d 790, 793 (Colo. App.

         2002); see also People in Interest of Z.M., 2020 COA 3M, ¶ 32

         (“If the record supports the court’s findings and conclusions

         that no less drastic alternatives existed and that termination

         of parental rights was in the child’s best interests,” the court

         will not disturb the findings. (citing People in Interest of M.B.,

         70 P.3d 618 (Colo. App. 2003), which, however, does not

         mention the child’s best interests as part of the termination

         decision)).

       • Another division concluded that the court must consider the

         child’s best interests when considering any placement “short

         of termination.” A.R., ¶ 44.




                                        10
       • And still another division indicated, specifically, that the

         child’s permanent placement with a relative “is dependent” on

         the child’s best interests. T.E.M., 124 P.3d at 910.

  We do not read these cases to require, however, that the phrase

  “best interests of the child” be used as a superlative — that the

  juvenile court must glean which of the alternatives that adequately

  meet the child’s needs would best do so. Rather, the inquiry must

  be whether there is an alternative short of termination that

  adequately meets the child’s physical, emotional, and mental health

  needs.

                                D.    Analysis

¶ 25     To reiterate, the juvenile court found that both an APR to

  paternal aunt and termination of parental rights would adequately

  provide for the child’s mental, physical, and emotional conditions

  and needs. Because the record supports these findings, we are

  bound by them. Nevertheless, in its order on remand, the juvenile

  court found that the termination of father’s parental rights was in

  the child’s best interest “because it provides a slightly higher

  probability of permanence. Thus, the [c]ourt finds termination to be

  in [the child’s] best interest.”


                                      11
¶ 26   In our view, the juvenile court’s original understanding of the

  law was correct: when both an APR to a relative and termination

  would adequately serve the child’s physical, mental, and emotional

  needs, termination must be denied. To the extent the division in

  A.M. I held otherwise, we respectfully disagree.

¶ 27   This view is consistent with the mandate recognized in People

  in Interest of M.M., requiring that before an order terminating the

  parent-child relationship may be entered, the court must consider

  and reject less drastic alternatives. 726 P.2d at 1123. It also

  recognizes the parent’s constitutional interests. See id. at 1122 n.9

  (“Requiring a court to give adequate consideration to less drastic

  alternatives before entering an order of termination gives due

  deference to the constitutional interest of the parent . . . .”).

¶ 28   In this case, the juvenile court determined that both an APR

  and termination would serve the child’s physical, mental, and

  emotional needs, and would provide appropriate permanence.

  Thus, this case is distinguishable from cases such as People in

  Interest of S.N-V., where the court found that the child’s need for

  permanence could not be met by permanent placement, but rather

  could “only be assured by adoption.” 300 P.3d 911, 920 (Colo. App.


                                      12
  2011). Simply put, once the juvenile court properly determined that

  an APR was a less drastic alternative that would adequately serve

  the child’s needs, it could not terminate the parent-child legal

  relationship.

                             III.   Conclusion

¶ 29     The judgment is reversed, and the case is remanded for the

  juvenile court to enter an order allocating parental responsibilities

  to the paternal aunt. However, if on remand the GAL or the

  Department asserts that circumstances have changed during the

  pendency of this appeal such that an APR to the paternal aunt

  would no longer adequately serve the child’s physical, mental, and

  emotional needs, including the need for permanence, the court

  should afford the parties the opportunity to present further

  evidence and enter an appropriate order to ensure those needs are

  met.

         JUDGE WEBB concurs.

         JUDGE TERRY dissents.




                                     13
       JUDGE TERRY, dissenting.

¶ 30   I respectfully dissent from the majority’s decision. In my view,

  because the district court determined that termination of father’s

  parental rights was in the child’s best interest, we must affirm that

  decision.

¶ 31   The majority’s opinion properly assigns grave importance to

  the constitutional right of parents to parent their children.

  Certainly, where an allocation of parental responsibilities (APR) is

  available, and where the court finds such an allocation to be in the

  child’s best interest, such an allocation should be ordered instead

  of termination of the parent’s rights.

¶ 32   But where, as here, the court considered the availability of

  such an APR, but still determined that termination of parental

  rights would be in the child’s best interest, and that finding is

  supported by the record, we must affirm that decision. People in

  Interest of J.M.B., 60 P.3d 790, 793 (Colo. App. 2002); cf. People in

  Interest of L.M., 2018 COA 57M, ¶ 36 (decision to terminate parental

  rights was affirmed where record showed that APR would not serve

  child’s best interest).




                                    14
¶ 33   For these reasons, I would affirm the district court’s order

  terminating parental rights.




                                   15
