1
2025 CO 28
The People of the State of Colorado, Petitioners
In the Interest of Minor Child: B.C.B.; and B.C.B.,
v.
A.B. and J.S. Respondents
No. 24SC539
Supreme Court of Colorado, En Banc
May 27, 2025
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 23CA1316.
Attorneys for Petitioner the People of the State of Colorado: Office of the El Paso County Attorney Kenneth Hodges, County Attorney Colorado Springs, Colorado.
Melanie Douglas LLC Melanie Douglas Colorado Springs, Colorado.
Attorney for Petitioner B.C.B.: Josi McCauley, guardian ad litem Superior, Colorado.
Attorneys for Respondent A.B.: Schmitz Law LLC Amanda Schmitz Denver, Colorado.
Attorney for Respondent J.S.: Michael Kovaka Littleton, Colorado.
Attorneys for Amicus Curiae Colorado Department of Human Services: Philip J. Weiser, Attorney General Russell D. Johnson, Deputy Solicitor General Nicole Chaney, Assistant Attorney General Denver, Colorado.
Attorney for Amici Curiae Elephant Circle, Harm Reduction Action Center, and Soul 2 Soul Sisters: Indra Lusero Palisade, Colorado.
Attorney for Amicus Curiae Office of the Child's Representative: Anna N. Ulrich Denver, Colorado.
Attorney for Amicus Curiae Office of Respondent Parents' Counsel: Christine Van Gaasbeek Denver, Colorado.
Attorneys for Amicus Curiae Pregnancy Justice: Karen Thompson New York, New York Kyriaki Council Denver, Colorado.
JUSTICE GABRIEL delivered the Opinion of the Court, in which JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE HART, and JUSTICE BERKENKOTTER joined. CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE SAMOUR, dissented.
OPINION
GABRIEL, JUSTICE.
¶1 This dependency or neglect action, in which the El Paso County Department of Human Services (the "Department") and the guardian ad litem ("GAL") for the child, B.C.B., challenge the court of appeals division's judgment reversing a dependency or neglect adjudication, requires us to construe section 19-3-102(1)(g), C.R.S. (2024). That statute provides that a child is dependent or neglected if "[t]he 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." Id.[1]
¶2 We now conclude, contrary to the division majority's determination, that a child is born affected by alcohol or substance exposure within the meaning of section 19-3-102(1)(g) when, as here, the child tests positive at birth for methamphetamine. This alone, however, does not suffice to establish that the
child was dependent or neglected because the statute further requires that the Department prove that "the newborn child's health or welfare is threatened by substance use." Id. The Department satisfies this prong of the statute if it shows either that (1) exposure to a particular substance directly threatens a child's health or welfare; or (2) as a result of a parent's substance use, the parent would be unable to care for the child properly. Applying this construction of the statute here, we conclude that sufficient evidence supported the jury's finding that B.C.B. was dependent or neglected.
¶3 Accordingly, we reverse the judgment of the division below.
I. Facts and Procedural History
¶4 B.C.B. was born in a car in which his mother and father were living. After B.C.B. and mother were transported by ambulance to a hospital, B.C.B.'s urine and umbilical cord tested positive for amphetamines and methamphetamine. Mother also tested positive for methamphetamine, although she initially denied knowingly using methamphetamine during her pregnancy.
¶5 Due to B.C.B.'s positive methamphetamine test, the Department brought in an intake caseworker to conduct a safety assessment to determine whether B.C.B. was at risk. Concluding that the impact on B.C.B. was so significant that it caused him harm, the Department sought and was granted a court order allowing it to
take temporary custody of B.C.B., and he was placed with caregivers upon his release from the hospital.
¶6 The Department then filed a petition alleging that B.C.B. was dependent or neglected pursuant to various sections of 19-3-102. Initially, the whereabouts of B.C.B.'s father were unknown, and the matter was set for a jury trial at mother's request. Thereafter, father entered an appearance, the trial was reset for both parents, and the case proceeded to an adjudicatory trial in the El Paso County District Court.
¶7 At trial, contrary to her previous denial, mother admitted using methamphetamine during her pregnancy with B.C.B. She further testified that she did not have much prenatal care, a primary care doctor, or an ob-gyn, although during her pregnancy, she went to a pregnancy center, where she had a couple of ultrasounds.
¶8 Also at trial, three of B.C.B.'s pediatricians testified. Specifically, Dr. Anna Lawrence testified that in the days after B.C.B.'s birth, he had some problems with latching to breastfeed. Dr. Lawrence opined that this issue could have been drug-related, although it also could have been attributable to a newborn baby's struggling to learn how to eat. Dr. Lawrence further testified that, due to B.C.B.'s methamphetamine exposure, he is at risk of developing attention deficit
hyperactivity disorder and cognitive, behavioral, and motor skill difficulties. Accordingly, in Dr. Lawrence's view, he should be monitored.
¶9 Dr. Stephanie Lombardi then testified that B.C.B.'s caregiver had reported to her that B.C.B. was experiencing tremors and was sweating and easily startled. Although Dr. Lombardi did not personally observe these behaviors during B.C.B.'s appointments, she noted that some of these symptoms have been linked to methamphetamine withdrawal. Dr. Lombardi further testified that it was "very important" that B.C.B. be closely followed to make sure that he does not experience developmental delays or other concerning symptoms that might arise over time.
¶10 B.C.B.'s primary care pediatrician, Dr. Heather Welfare, followed, and she testified that B.C.B. seemed to be doing "very well" after experiencing an episode of bronchiolitis. Dr. Welfare also opined that methamphetamine exposure in utero was "medically significant" and that B.C.B. should be monitored for cognitive and developmental effects because some studies have shown such effects from methamphetamine exposure.
¶11 Although all of these doctors noted potential risks from prenatal methamphetamine exposure, none of them could say whether B.C.B. would actually experience any future effects from his exposure. This is because methamphetamine exposure is one of the less studied forms of in utero exposure
and evidence in the medical literature on its effects is thus far conflicting. Accordingly, as Dr. Welfare put it, the risks to B.C.B. from his exposure are, at this point, possibilities and not probabilities.
¶12 The intake caseworker assigned to this matter also testified. She reported that mother had told her that mother had some undiagnosed mental health issues, including intermittent explosive anger issues. Mother also noted that she had experienced a traumatic brain injury several years before, that this injury might affect her cognitive processing, and that she self-medicates. And mother told the caseworker that she and father were living in a car because they had been evicted from her parents' home a month prior to B.C.B.'s birth, due in part to mother's "anger explosive situation."
¶13 This caseworker also described how a child's health and welfare can be threatened by a caregiver's use of substances:
[I]f a caregiver is using substances and has a potentiality to have out of control behavior or not able to make the appropriate decisions . . . as a child being zero to three, they are vulnerable. They do not know how to speak and they are dependent on a caregiver. If a caregiver is intoxicated or under the use of-under the influence of any substances, it puts a great deal of risk for the child to be harmed or hurt or-or something more severe.
¶14 Lastly, mother's therapist testified that although mother had been participating in substance abuse treatment and therapy, she should not be discharged from such services because she was still working on implementing
changes in her life and the therapist wanted more consistency and stability. Specifically, the therapist observed that mother had not yet been cured in her recovery and was still working on having a sober lifestyle in place and establishing the skills and knowledge to implement relapse prevention without external supports. In addition, the therapist noted that one of mother's biggest triggers is being overwhelmed and stressed out, and a significant concern for the therapist was to help support mother to reduce those triggers if she were to have B.C.B. in her home in the future.
¶15 The jury ultimately returned a verdict finding that B.C.B. was born affected by substance exposure and that his health or welfare was threatened by substance use. The trial court thus entered an adjudication of dependency or neglect, ordered that custody of B.C.B. continue with the Department, and further ordered treatment staffing for mother.
¶16 The parents then appealed. As pertinent here, mother argued that the department had not produced sufficient evidence to support B.C.B.'s adjudication under section 19-3-102(1)(g). People in Int. of B.C.B., 2024 COA 88, ¶ 22, 558 P.3d 980, 985.
¶17 In a divided, published opinion, a division of our court of appeals agreed with mother and reversed the trial court's adjudication. Id. at ¶¶ 2, 34, 558 P.3d at 983, 988. Relying on (1) the 2020 amendment to section 19-3-102(1)(g), which
replaced the prior statutory language that had provided that a positive drug test alone established that a child was dependent or neglected; and (2) regulations adopted by the State Board of Human Services defining the terms in the amended version of the statute, the majority concluded that to secure an adjudication under section 19-3-102(1)(g), the Department "must establish that, at birth, the child was adversely affected by-rather than merely exposed to-alcohol or substances." Id. at ¶¶ 2, 17-21, 558 P.3d at 983-85. Applying this construction to the facts before it, the majority concluded that the Department had not presented evidence sufficient to support a conclusion, by a preponderance of the evidence, that B.C.B. had suffered a physical, developmental, or behavioral response to substance exposure, and, thus, the evidence did not support B.C.B.'s adjudication as dependent or neglected. Id. at ¶¶ 2, 34, 558 P.3d at 983, 988.
¶18 In so ruling, the majority reasoned that, under the statute, B.C.B.'s positive test at birth for methamphetamine was insufficient, by itself, to establish dependency or neglect and that the Department did not otherwise prove that B.C.B.'s in utero exposure impacted his physical, developmental, or behavioral response. Id. at ¶¶ 25-33, 558 P.3d at 986-88. As the majority saw it, at best, the Department had presented evidence that B.C.B. might suffer long-term impacts due to the substance exposure, but "[a]n adjudication cannot be premised on conjecture or speculation." Id. at ¶ 30, 558 P.3d at 987. Nor was the majority
persuaded by the evidence that B.C.B. had initial difficulty latching to feed and that a caretaker had observed tremors and similar symptoms. Id. at ¶¶ 31-32, 558 P.3d at 987-88. This was because none of B.C.B.'s doctors were able to attribute these symptoms to the methamphetamine exposure. Id.
¶19 Judge Fox dissented. In her view, section 19-3-102(1)(g)'s plain language did not require the Department to present evidence of immediate impacts caused by B.C.B.'s in utero exposure. Id. at ¶ 35, 558 P.3d at 988 (Fox, J., dissenting). Rather, it was enough, under a preponderance of the evidence standard, that Dr. Lombardi had associated B.C.B.'s tremors with withdrawal symptoms. Id. at ¶ 37, 558 P.3d at 989.
¶20 Specifically, Judge Fox disagreed with the majority's determination that the statute required the Department to present evidence that exposure to methamphetamine caused an immediate, harmful effect on B.C.B. Id. at ¶ 46, 558 P.3d at 990. Rather, the word "affect" meant simply to produce an effect on someone or something, and here, B.C.B.'s positive test was the effect of his in utero exposure. Id. Accordingly, Judge Fox proceeded to the statute's second prong, and she concluded that because (1) Dr. Lombardi had connected B.C.B.'s tremors to prenatal exposure, (2) mother still required treatment for her substance abuse issues, and (3) the evidence did not show that either parent was in a position to care safely for B.C.B. as of the time of the adjudicatory trial, the Department had
sufficiently established that B.C.B.'s health or welfare was threatened by substance abuse. Id. at ¶¶ 51-54, 558 P.3d at 991-92.
¶21 The Department and the GAL then filed petitions for writs of certiorari, and we granted both petitions.
II. Analysis
¶22 We begin by setting forth the applicable standard of review and principles of statutory construction. Next, we address the proper construction of section 19-3-102(1)(g), and we discuss the deference, if any, that we must afford the agency regulations defining key terms in that statute. We then apply our construction to the case before us, ultimately concluding that sufficient evidence allowed the jury to conclude, by a preponderance of the evidence, that B.C.B. was dependent or neglected.
A. Standard of Review and Principles of Statutory Construction
¶23 In determining whether sufficient evidence supported a jury verdict of dependency or neglect, we view the record in the light most favorable to the party that succeeded at trial, and we draw every inference fairly deducible from the evidence in favor of the judgment. People in Int. of D.L.R., 638 P.2d 39, 41 (Colo. 1981).
¶24 In contrast, we review questions of statutory interpretation de novo. In re People in Int. of C.J.T., 2023 CO 60, ¶ 40, 546 P.3d 1150, 1158. When interpreting
statutes, we seek to discern and effectuate the legislature's intent. Id. In doing so, we apply words and phrases according to their plain and ordinary meanings, and we consider the entire statutory scheme to give consistent, harmonious, and sensible effect to all of its parts. Id. In addition, we must avoid constructions that would render any statutory words or phrases superfluous or that would lead to illogical or absurd results. Id.
¶25 In construing a statute, we must respect the legislature's choice of language. UMB Bank, N.A. v. Landmark Towers Ass'n, 2017 CO 107, ¶ 22, 408 P.3d 836, 840. As a result, we may not add words to a statute or subtract words from it. Id.
¶26 If the statutory language is unambiguous, then we apply it as written, and we need not resort to other rules of statutory construction. C.J.T., ¶ 41, 546 P.3d at 1158.
¶27 In conducting our statutory analysis, we may consider an administrative agency's interpretation of the statute, but we are not bound by this interpretation, and we will not defer to it if it conflicts with the statute's plain language. Dep't of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d 1012, 1016-17.
B. Section 19-3-102(1)(g)
¶28 As noted above, prior to its amendment in 2020, section 19-3-102(1)(g) provided that a child was dependent or neglected if the child "tests positive at birth for either a schedule I controlled substance . . . or a schedule II controlled
substance." Ch. 186, sec. 5, § 19-3-102(1)(g), 2020 Colo. Sess. Laws 852, 854. This language established a one-factor test: if a child tested positive at birth, then the child was dependent or neglected.
¶29 In 2020, however, the legislature amended section 19-3-102(1)(g). This amendment was enacted as part of S.B. 20-028, which was entitled, "An Act Concerning Measures to Assist an Individual's Recovery From a Substance Use Disorder." Ch. 186, 2020 Colo. Sess. Laws 852, 852. As the bill's title reflects, the amendment was intended to deemphasize the focus on a child's positive test at birth and to shift the focus to a holistic assessment of the family's needs and strengths. Hearing on S.B. 028 before the S. Comm. on Health & Hum. Servs., 72d Gen. Assemb., 2d Sess. (Jan. 30, 2020) (statement of Jade Woodard).
¶30 Toward those ends, the amended version of section 19-3-102(1)(g) now provides that a child is neglected or dependent if "[t]he 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." Accordingly, to establish that a child is dependent or neglected under this provision, the Department must now satisfy a two-factor test: (1) the child must be born affected by alcohol or substance exposure and (2) the child's health or welfare must be threatened by substance use.
¶31 This case requires us to construe both "affected by alcohol or substance exposure" and "threatened by substance use." Although the legislature did not define, and we have not yet had occasion to define, either phrase, we view these phrases to be unambiguous.
¶32 Webster's Third New International Dictionary defines "affect," in pertinent part, as "to produce an effect (as of disease) upon . . ." and "to have a detrimental influence on . . . ." Affect, Webster's Third New International Dictionary (2002). Black's Law Dictionary similarly defines "affect," in pertinent part, as "to produce an effect on; to influence in some way." Affect, Black's Law Dictionary (12th ed. 2024). Accordingly, "affected by alcohol or substance exposure" requires only a showing that alcohol or substance exposure has had an effect on a newborn child. In our view, the presence of illicit substances in a newborn child's body due to a mother's use of such substances is plainly an effect of mother's use.
¶33 In so construing this language, we acknowledge that the State Board of Human Services has adopted a regulation that provides, "A child is born affected by alcohol or substance exposure when it impacts the child's physical, developmental, and/or behavioral response." Dep't of Hum. Servs., 12 Colo. Code Regs. 2509-1:7.000.2(A) (2025). As noted above, however, we are not bound by regulations that we deem inconsistent with the plain meaning of the statute, and for the reasons set forth above, we do not interpret "affected by" to require
that a child be impacted physically, developmentally, or behaviorally by exposure to alcohol or illicit substances. Accordingly, we conclude that the Board's definition is inconsistent with the plain meaning of the words used in the statute, and we, therefore, do not follow the Board's definition here.
¶34 Proceeding then to the second prong of the amended version of section 19-3-102(1)(g), namely, whether a newborn child's health or welfare is threatened by substance use, we conclude that under the statute's plain language, a child's health or welfare can be "threatened by substance use" in two different ways.
¶35 First, section 19-3-102(1)(g)'s second prong can be satisfied by proof that substance use directly threatens a newborn child's health or welfare. Thus, this prong would be satisfied if the evidence establishes that exposure to a given substance is known to create a particular risk to a child's health or welfare (i.e., beyond speculation or conjecture). In these circumstances, a newborn child's health or welfare would plainly be threatened by substance use.
¶36 Second, a newborn child's health or welfare would be "threatened by substance use" if, as a result of a parent's substance use, the parent would be unable to care for the child properly. Such a view is consistent with the definition of "threatened by substance use" adopted by the State Board of Human Services. Dep't of Hum. Servs., 12 Colo. Code Regs. 2509-1:7.000.2(A) (providing that a child's health or welfare is threatened by substance use "when the medical,
physical, and/or developmental needs of the newborn child are likely to be inadequately met or parent and/or caregivers are likely unable to meet the newborn child's needs"). This construction is also consistent with the above-noted purposes of the 2020 amendments to section 19-3-102(1)(g), which were to assist individuals recovering from substance use disorders and to change the focus of the analysis from a child's positive test at birth, viewed in isolation, to a holistic assessment of the family's needs and strengths. 2020 Colo. Sess. Laws, at 852; Hearing on S.B. 028 (Jan. 30, 2020) (statement of Jade Woodard).
C. Application
¶37 With these principles in mind, we turn to the facts of this case and conclude, first, that B.C.B.'s positive test for methamphetamine satisfied the first prong of section 19-3-102(1)(g). As noted above, to establish that prong of the statute, the Department was required to show only that alcohol or substance exposure had an effect on B.C.B. Here, B.C.B.'s positive drug test at birth showed that methamphetamine had entered his system, and, in our view, this was an obvious effect of his exposure to methamphetamine as a result of mother's use of that substance.
¶38 In reaching this conclusion, we are unpersuaded by mother's view and the of the division majority below that the amended version of section 19-3-102(1)(g) foreclosed a determination that a positive drug test alone could
satisfy the first element. As we read the amendment, the change in language from its focus on a positive drug test to an initial requirement that a child be born affected by alcohol or substance exposure reflects a broadening of the first element. Whereas before, a positive test was necessary, under the current version of the statute, a positive test or other circumstances establishing an effect of exposure can satisfy the first prong of the statute.
¶39 Nor do we agree that our interpretation of the first statutory factor allows for an adjudication of dependency or neglect based solely on a positive drug test at birth, notwithstanding the fact that the legislature amended section 19-3-102(1)(g) to alter the prior mandate that a positive test alone was sufficient. As noted above, the legislature also added a second element that must be proved. Accordingly, we perceive no inconsistency between our conclusion that the positive drug test here was an effect, on the one hand, and the legislature's amendment of section 19-3-102(1)(g), on the other.
¶40 The question thus becomes whether the Department has satisfied the second statutory prong, namely, whether B.C.B.'s health or welfare is threatened by methamphetamine. We conclude that the Department has done so.
¶41 As noted above, the Department could establish this prong by showing either that substance use directly threatened B.C.B.'s health or welfare or that, as
a result of mother's use of illegal substances, she would be unable to care for B.C.B. properly.
¶42 Here, it is debatable whether the evidence at trial established a direct threat to B.C.B.'s future health or welfare as a result of his methamphetamine exposure. On the one hand, the evidence showed that B.C.B. had trouble latching, and his caregiver observed that he exhibited tremors, sweating, and a tendency to startle easily, at least some of which behaviors could relate to methamphetamine exposure or withdrawal. In addition, all three pediatricians who testified opined that the future risks to B.C.B. as a result of his methamphetamine exposure were significant enough to warrant closely monitoring him for cognitive or developmental effects. On the other hand, none of these doctors could, to a reasonable degree of medical certainty, tie the latching difficulty, tremors, sweating, and other symptoms to B.C.B.'s methamphetamine exposure. And although all three of the doctors opined that prenatal methamphetamine exposure could lead to future impacts on B.C.B.'s health or welfare, including developmental and cognitive problems, none of them could say whether B.C.B. would likely experience such impacts. Rather, as Dr. Welfare testified, the risks could be described only in terms of possibilities, not probabilities.
¶43 Accordingly, some evidence tended to show that B.C.B.'s present and future health and welfare were threatened by substance abuse, but other evidence arguably rendered these risks speculative.
¶44 We need not rely solely on this evidence, however, because, viewing the evidence in the light most favorable to the Department and drawing every fairly deducible inference in favor of the jury's verdict, as we must, we conclude that ample evidence tended to show that, as a result of mother's history of substance abuse, she would be unable to care for B.C.B. properly, thus satisfying section 19-3-102(1)(g)'s second prong. Specifically, as noted above, mother's therapist testified that mother should not be discharged from substance abuse treatment and therapy because she was still working on implementing changes in her life and, as a result, was in need of further treatment and therapy. Ultimately, the therapist was looking for more consistency and stability from mother than mother had yet shown. The intake caseworker then testified that a child in the first few years of life is vulnerable and dependent on the caregiver, and if the caregiver is under the influence of any substances, then it creates a great deal of risk for the child.
¶45 In our view, this evidence was sufficient to establish, by a preponderance of the evidence, that B.C.B.'s health or welfare is threatened by mother's substance
use. We therefore conclude that the jury reasonably found B.C.B. to be dependent or neglected in this case.
III. Conclusion
¶46 For these reasons, we conclude that the Department sufficiently established, by a preponderance of the evidence, that (1) B.C.B. was born affected by substance exposure due to his positive test for methamphetamine at birth and (2) B.C.B.'s health or welfare is threatened by substance use due to mother's ongoing need for treatment to address her substance abuse issues.
¶47 Accordingly, we reverse the judgment of the division below and remand this case for further proceedings consistent with this opinion.
CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE SAMOUR, dissenting.
¶48 Five years ago, the legislature amended section 19-3-102(1)(g), enacting a significant change to the bases upon which a child may be found "neglected or dependent." Ch. 186, sec. 5, § 19-3-102(1)(g), 2020 Colo. Sess. Laws 852, 854. Before this change, a child could be deemed dependent or neglected if the child "test[ed] positive at birth" for certain substances, unless the mother took such substances as prescribed. § 19-3-102(1)(g), C.R.S. (2005). Senate Bill 20-028 ("An Act Concerning Measures to Assist an Individual's Recovery from a Substance Use Disorder") struck this language and replaced it with a different test, defining a child as dependent or neglected under this provision only if (1) the child is "born affected by alcohol or substance exposure" (the "affected-by-exposure" requirement), and (2) "the newborn child's health or welfare is threatened by substance use" (the "threatened-by-substance-use" requirement). 2020 Colo. Sess. Laws at 852, 854; see also § 19-3-102(1)(g), C.R.S. (2024) ("subsection (1)(g)").
¶49 Today, the majority disregards this statutory change and effectively reinstates the policy previously reflected in the 2005 statute-the very policy the General Assembly rejected when it enacted S.B. 20-028. Although the legislature struck the phrase "tests positive at birth" from subsection (1)(g), the majority nevertheless holds that an infant's positive drug test is sufficient to establish that the child was "born affected by alcohol or substance exposure" for purposes of
subsection (1)(g). Maj. op. ¶¶ 30, 32. The majority then broadly construes the threatened-by-substance-use requirement to include evidence that the substance to which a child was exposed poses a "particular risk" to a child's health or welfare. Id. at ¶ 35. Though it insists otherwise, id. at ¶ 39, the majority's interpretation of subsection (1)(g) effectively guarantees that a positive test for a substance that poses a risk of future health problems is sufficient to deem a child dependent or neglected, even absent a showing that the child was actually "affected by alcohol or substance exposure" and that the child's health or welfare is meaningfully "threatened by substance use."
¶50 For a number of reasons, I cannot join the majority's decision.
¶51 First, the majority's interpretation defies the plain language and statutory history of subsection (1)(g). The 2020 amendments to subsection (1)(g) made clear that a child's mere "exposure" to alcohol or substances (as reflected by a drug test showing the presence of substances in the child's system) is insufficient, by itself, to deem a child dependent or neglected. Rather, subsection (1)(g) now requires that the child be "affected by" that exposure. The majority's reading erroneously conflates exposure and effect, and in so doing, fails to honor the legislative intent of the 2020 changes to the statute. See Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465, 469 (Colo. 1998).
¶52 Second, the majority fails to give deference to the State Board of Human services' ("Board") regulatory definition of the affected-by-exposure requirement-a definition promulgated under the legislature's express statutory directive to do so. § 19-3-216, C.R.S. (2024) ("The [Board] shall promulgate rules to determine . . . if a child is neglected or dependent as described in [subsection (1)(g)]."). Under the Board's regulation, a child is "born affected by alcohol or substance exposure" if the exposure "impacts the child's physical, developmental, and/or behavioral response." Dep't of Hum. Servs., 12 Colo. Code Regs. 2509-1:7.000.2 (2025). The Board's regulation is a patently reasonable interpretation of the phrase "born affected by alcohol or substance exposure" in subsection (1)(g). See Larimer Cnty. Bd. of Equalization v. 1303 Frontage Holdings LLC, 2023 CO 28, ¶ 30, 531 P.3d 1012, 1020 ("[W]e may . . . defer to an administrative agency's reasonable interpretation of the statute it's charged with administering."). And its interpretation is grounded in the Board's special expertise in the area of child welfare services. See El Paso Cnty. Bd. of Equalization v. Craddock, 850 P.2d 702, 704-05 (Colo. 1993) (explaining the circumstances under which deference to an agency's interpretation of a statute is appropriate). Accordingly, I would adopt the Board's definition of the affected-by-exposure requirement.
¶53 Finally, I disagree with the majority that the evidence here was sufficient for a reasonable jury to conclude that B.C.B. was "born affected by" exposure to methamphetamine. See Maj. op. ¶ 37. I therefore do not reach the question of whether the evidence established that the child's health or welfare was "threatened by substance use."
¶54 Accordingly, I respectfully dissent.
I. Subsection (1)(g) Does Not Permit a Finding of Dependency or Neglect Based Solely on an Infant's Positive Test for Substances
¶55 The majority holds that an infant's positive test for substances satisfies the affected-by-exposure requirement of subsection (1)(g) because "the presence of illicit substances in a newborn child's body due to a mother's use of such substances is plainly an effect of mother's use." Maj. op. ¶ 32. In my view, this reading contradicts the text of subsection (1)(g) and contravenes the legislature's clear intent in amending this provision.
A. The Text of Subsection (1)(g) Does Not Support the Majority's Reading
¶56 When interpreting statutes, this court's objective is "to ascertain and give effect to the General Assembly's intent." People in Int. of J.G., 2016 CO 39, ¶ 13, 370 P.3d 1151, 1157. We look first to the "plain and ordinary meaning of the General Assembly's words." Id. And we may consider "a provision's statutory history-the 'evolution of a statute as it is amended over time by the
legislature'" -to "'inform[] our understanding of legislative intent.'" Plemmons v. People, 2022 CO 45, ¶ 33, 517 P.3d 1210, 1218 (quoting Colo. Oil & Gas Conservation Comm'n v. Martinez, 2019 CO 3, ¶ 30 n.2, ¶ 31, 433 P.3d 22, 29 n.2, 30).
¶57 The majority's interpretation of subsection (1)(g) erroneously conflates an infant's "exposure" to substances with the statutory requirement that the infant be "affected by" that exposure. As the majority acknowledges, the word "affect" means "'to produce an effect (as of disease) upon . . .' and 'to have a detrimental influence on.'" Maj. op. ¶ 32 (quoting Affect, Webster's Third New International Dictionary (2002)). The majority correctly concludes that the phrase "affected by alcohol or substance exposure" requires a "showing that [the] alcohol or substance exposure has had an effect on a newborn child." Id. But this means that mere exposure (as reflected by the presence of a substance in a child's system) does not, by itself, establish that such exposure has "produced] an effect" or caused some "detrimental influence" on the child. In short, a positive test does not, standing alone, prove that a child was "affected by alcohol or substance exposure." § 19-3-102(1)(g).
¶58 The majority attempts to avoid this result by reasoning that "the presence of illicit substances in a newborn child's body . . . is plainly an effect of mother's use." Maj. op. ¶ 32. But this reasoning disregards the language of the statute. At most, "the presence of illicit substances" reflects the child's in utero exposure to
such substances (via the mother's ingestion of them). But subsection (1)(g) requires more; namely, evidence of some (presumably adverse) effect from that exposure. Under the majority's logic, however, no such effect is required because exposure alone (as reflected by a positive test) is sufficient.
¶59 By deeming exposure alone sufficient to satisfy the affected-by-exposure requirement of subsection (1)(g), the majority invites the state to intervene in the parent-child relationship-even absent evidence that such exposure has adversely affected the child. See C.W.B., Jr. v. A.S., 2018 CO 8, ¶ 22, 410 P.3d 438, 443 (explaining that article 3 of the Children's Code is designed to permit state intervention only "where necessary to protect the welfare of children"). This reading runs contrary to the plain language and legislative intent of the statute.
B. The Statutory History of Subsection (1)(g) Reflects a Legislative Intent to Require More Than a Positive Drug Test to Satisfy the Statute's Requirements
¶60 The 2020 amendments to subsection (1)(g) confirm the legislature's intent to require more than a positive drug test to satisfy the statute's requirements.
¶61 As originally enacted, subsection (1)(g) designated a child dependent or neglected if the child "test[ed] positive at birth for either a schedule-I controlled substance . . . or a schedule-II controlled substance . . . unless the child test[ed] positive for a schedule-II controlled substance as a result of the mother's lawful intake of such substance as prescribed." § 19-3-102(1)(g), C.R.S. (2005). With
S.B. 20-028, the legislature struck this language entirely and replaced the simple positive-test requirement with two distinct requirements: the affected-by-exposure requirement and the threatened-by-substance-use requirement. 2020 Colo. Sess. Laws at 854.
¶62 The wholesale replacement of language in a statute reflects the General Assembly's intent to change the law. City of Colo. Springs v. Powell, 156 P.3d 461, 465 (Colo. 2007) ("[B]y amending the law, the legislature has intended to change it."). By striking the language referring to a positive drug test, the General Assembly made clear that a child's mere exposure to alcohol or substances is no longer sufficient to find a child dependent or neglected under subsection (1)(g).
¶63 The majority acknowledges this change in the law. Maj. op. ¶¶ 28-30. But in its view, the legislature intended the new language to broaden the circumstances that can establish that a child is affected by exposure. Id. at ¶ 38. The majority further posits that although a positive drug test satisfies the affected-by-exposure requirement, the newly added threatened-by-substance-use requirement forecloses the possibility that a positive test alone will result in a finding of dependency or neglect. Id. at ¶ 39.
¶64 To the extent the majority's reading permits circumstances other than a positive drug test to satisfy the affected-by-exposure requirement, I agree. For example, withdrawal symptoms, when sufficiently linked to an infant's substance
exposure, necessarily demonstrate that the infant was "born affected by alcohol or substance exposure." § 19-3-102(1)(g). But for the reasons explained above, a positive drug test indicates only exposure, not the effects of that exposure. Thus, even assuming subsection (1)(g) now permits a variety of circumstances to satisfy the affected-by-exposure requirement, see Maj. op. ¶ 38, it forecloses the possibility that a positive test alone could meet that requirement.
¶65 I agree with the majority's observation that the threatened-by-substance-use requirement is a new addition to subsection (1)(g) that did not previously exist. Id. at ¶ 39. But if the legislature intended to preserve a positive drug test as sufficient to support a dependency or neglect determination, it could have retained the "tests positive" language and simply added the threatened-by-substance-use requirement. The legislature instead made a very different choice: it struck the "tests positive" language and rewrote subsection (1)(g) in a manner that requires not just a child's exposure to alcohol or substances, but also that such exposure actually "affect" the child. § 19-3-102(1)(g).
¶66 Notably, the majority's opinion allows for some circumstances in which an infant's positive test for substances could alone be sufficient to support a finding of dependency or neglect under subsection (1)(g). In the majority's view, evidence "establish[ing] that exposure to a given substance is known to create a particular risk to a child's health or welfare" satisfies the threatened-by-substance-use
requirement. Maj. op. ¶ 35. This means that under the majority's approach, a court may find an infant dependent or neglected based solely on the infant's positive test at birth for a substance that experts "know" is likely to cause physical, cognitive, or behavioral conditions in some children. See id. at ¶¶ 10, 35, 42.
¶67 My concern is that the majority's reading of subsection (1)(g) invites courts to find children dependent or neglected based solely on the child's positive test for alcohol or substances. But the legislature's 2020 amendments reflect that this is precisely the result it sought to change. By construing subsection (1)(g) to still permit a finding of dependency or neglect (at least in some circumstances) based solely on a positive drug test, the majority disregards the legislature's intent.[1] See Farmers Ins. Exch., 961 P.2d at 469 ("In construing statutory provisions, our
obligation is not to make policy decisions but rather to give full effect to the legislative intent.").
¶68 For these reasons, I conclude that an infant's positive drug test-standing alone-no longer satisfies any requirement of subsection (1)(g). Rather, a finding of dependency or neglect under subsection (1)(g) requires evidence showing that the child was actually "affected by" their exposure to alcohol or drugs and that the child's health or welfare is meaningfully threatened by substance use.
II. The Board's Regulatory Definitions of the Requirements of Subsection (1)(g) Merit This Court's Deference
¶69 The Board's regulations lend further support to this conclusion and merit this court's deference.
¶70 As part of S.B. 20-028, the legislature expressly delegated to the Board the authority to promulgate regulatory guidance for implementing subsection (1)(g). 2020 Colo. Sess. Laws at 854; § 19-3-216 (stating that the Board "shall promulgate rules to determine . . . if a child is neglected or dependent as described in section 19-3-102(1)(g)"). Section 19-3-216 unambiguously "imbues the [Board] with broad authority to determine" when a child's circumstances warrant a finding of dependency or neglect under subsection (1)(g). Kaiser v. Aurora Urb. Renewal Auth., 2024 CO 4, ¶ 34, 541 P.3d 1180, 1188; see also id. at ¶ 38, 541 P.3d at 1188-89 (deferring to the Property Tax Administrator's regulations where a statute "unambiguously entrust[ed] the Administrator with the responsibility to develop
'[t]he manner and methods by which'" another statute would be implemented (alteration in original) (quoting § 31-25-107(9)(h), C.R.S. (2024))).
¶71 The majority downplays this express delegation of authority to the Board and declines to follow the Board's definition of the affected-by-exposure requirement because, in its view, the Board's definition is inconsistent with the text of subsection (1)(g). Maj. op. ¶ 33. I respectfully disagree.
¶72 The Board defines a child as "born affected by alcohol or substance exposure" when that exposure "impacts the child's physical, developmental, and/or behavioral response." 12 Colo. Code Regs. 2509-1:7.000.2. This definition identifies the types of effects that render a child "born affected by alcohol or substance exposure" in a manner that properly distinguishes between exposure (as reflected by a positive drug test) and the effects of such exposure (as measured by an infant's actual responses to that exposure). It also comports with the legislature's intent, as expressed in the statutory history, to require more than a positive drug test to trigger the application of subsection (1)(g). Thus, the Board's definition of the affected-by-exposure requirement is consistent with the statutory text.
¶73 The Board's regulation also draws a clear distinction between subsection (1)(g)'s two requirements. Under the Board's regulation, the affected-by-exposure requirement captures a child's physical, developmental, and
behavioral responses to substance exposure. 12 Colo. Code Regs. 2509-1:7.000.2. In contrast, the threatened-by-substance-use requirement refers to the risk that substance use will prevent the child's caregivers from meeting the child's medical, physical, or developmental needs. Id. In this way, the Board's regulation comports with the text and purpose of subsection (1)(g): to deem a child dependent or neglected only when alcohol or substance exposure actually affects the child and substance use risks rendering the child's caregivers incapable of providing the care the child needs.
¶74 Finally, the Board's interpretation of subsection (1)(g) warrants special consideration because it involves a subject that "calls for the exercise of technical expertise which the agency possesses." Craddock, 850 P.2d at 705. As part of the Department of Health and Human Services ("DHS"), the Board contributes to the administration of "[c]hild welfare services," which include, among other things, child protection, risk assessment, and out-of-home placement for dependent or neglected children. § 26-5-101(3), C.R.S. (2024) (defining "[c]hild welfare services"); § 26-1-201(1)(f), C.R.S. (2024) (creating DHS in part to administer "[c]hild welfare services"). As the entities responsible for providing and managing child protective services, DHS and the Board possess the subject-matter expertise necessary to implement the legislature's directive to define what
constitutes dependency or neglect for purposes of subsection (1)(g). See § 19-3-216. That expertise merits this court's deference.
¶75 In sum, the Board's regulatory interpretation of the statute has a reasonable basis in law that deserves this court's deference. See Stell v. Boulder Cnty. Dep't of Soc. Servs., 92 P.3d 910, 916 (Colo. 2004) (observing that a court will generally accept an interpretation of a statute by the agency charged with its administration where that interpretation has a "reasonable basis in law"). For these reasons, I would respect the legislature's express delegation of authority to the Board to promulgate regulations defining the circumstances that satisfy subsection (1)(g)'s requirements. Affording "appropriate deference" to the Board's regulations, Craddock, 850 P.2d at 705, I would hold that an infant is "affected by alcohol or substance exposure" when that exposure impacts the infant's physical, developmental, or behavioral response.[2]
III. The Evidence Here Is Insufficient to Support a Reasonable Jury's Conclusion that B.C.B. Is Affected by Substance Exposure
¶76 The majority holds that B.C.B.'s positive test for methamphetamine at birth is sufficient evidence to conclude that B.C.B. was "affected by" substance exposure within the meaning of subsection (1)(g). Maj. op. ¶ 37. For the reasons discussed above, I cannot read subsection (1)(g) as allowing a mere positive test to meet this requirement. Instead, applying the Board's regulatory definition of the affected-by-exposure requirement, I would hold that the evidence in the record is insufficient to support a reasonable jury's conclusion that B.C.B. was born affected by exposure to methamphetamine.[3]
¶77 Admittedly, certain evidence in the record arguably could support the conclusion that prenatal exposure to methamphetamine impacted B.C.B.'s physical, behavioral, or developmental response. However, this evidence falls short.[4]
¶78 First, Dr. Anna Lawrence observed that B.C.B. had "some problems with latching" and noted that such problems "could be potentially drug related." Such problems would constitute a physical, behavioral, or developmental response to methamphetamine exposure. However, Dr. Lawrence then explained that B.C.B.'s trouble feeding could have been "just a newborn baby struggling to learn how to eat." As a result, she was unable to state "with any degree of medical certainty that [B.C.B.'s] latching problem was the result of substance withdrawal." Dr. Lawrence's inability to link B.C.B.'s trouble latching to his methamphetamine exposure with any degree of medical certainty precludes this court from fairly inferring such a link on its own. People in Int. of D.L.R., 638 P.2d 39, 41 (Colo. 1981) (requiring that a court draw only those inferences that are "fairly deducible from the evidence").
¶79 Second, Dr. Stephanie Lombardi recalled reports from B.C.B.'s caregiver that he had experienced tremors, was easily startled, and exhibited "a little bit of sweating throughout the day." She testified that such symptoms could "potentially" indicate methamphetamine withdrawal (that is, a physical response
to methamphetamine exposure). But like Dr. Lawrence, Dr. Lombardi could not "opine with medical certainty" that the symptoms reported to her represented symptoms of withdrawal; instead, she testified that it was merely "possible" that the tremors B.C.B.'s caregiver reported were related to substance exposure. This mere possibility is insufficient to conclude that B.C.B. was actually affected by prenatal exposure to methamphetamine. See Daugaard v. People in Int. of Daugaard, 488 P.2d 1101, 1103-04 (Colo. 1971) (explaining that opinions "essentially based upon possibilities" regarding the cause of a child's symptoms "amount[] to no more than conjecture and speculation"), overruled on other grounds by People v. Ramirez, 155 P.3d 371, 376-77 (Colo. 2007).
¶80 Third, all three experts who testified pointed to some medical evidence that prenatal methamphetamine exposure may have some effect on a child's physical, behavioral, or cognitive development in the future. But none of the three experts could describe the risk that B.C.B.'s exposure would affect his development as probable with any degree of medical certainty; again, they described the risk as merely possible.[5] See id. at 1103 (requiring for sufficiency purposes that evidence be presented with "reasonable medical certainty or probability"). At most,
evidence of such possible risks would suffice to conclude that if B.C.B. experiences developmental or behavioral deficiencies in the future, those deficiencies may be linked to his prenatal methamphetamine exposure. The mere possibility that such a link may exist does not, however, constitute sufficient evidence that B.C.B. was actually "affected by" prenatal methamphetamine exposure as required by subsection (1)(g). See id. at 1103-04.
¶81 To the contrary, ample evidence showed that B.C.B. was healthy from the time he was born until at least several months later. Dr. Lawrence testified that, shortly after his birth, B.C.B. "wasn't behaving differently from most babies" and performed well on post-natal screenings, including neurological tests. Dr. Lombardi agreed that B.C.B. was "a healthy child," noting that the results of his physical exam and of tests for his "neurological and infantile reflexes" did not raise any concerns. And Dr. Welfare testified that B.C.B. was "doing very well" in general and "was on track developmentally." This testimony suggests that the only inference "fairly deducible from the evidence" is that B.C.B. was a healthy baby, not that he was born affected by exposure to any substance. See D.L.R., 638 P.2d at 41.
¶82 Accordingly, I would affirm the court of appeals division majority and hold that the evidence is insufficient to support a reasonable jury's conclusion that
B.C.B. was "affected by alcohol or substance exposure" as required by subsection (1)(g).
IV. Conclusion
¶83 The majority's interpretation of section 19-3-102(1)(g) effectively negates the legislature's policy shift expressed by the amendments in S.B. 20-028. The majority's reading conflates the fact of substance exposure with the showing of adverse effects from such exposure. As a result, it allows an infant's positive test to always satisfy the affected-by-exposure requirement and, at least in some circumstances, to constitute the sole basis for a finding of dependency or neglect- despite the legislature's decision to remove the statutory language that previously permitted such a result.
¶84 In reaching this outcome, the majority disregards the plain language and statutory history of subsection (1)(g)'s affected-by-exposure requirement. The majority further rejects the Board's reasonable regulatory definition of the affected-by-exposure requirement, eschewing the legislature's clear delegation of authority to the Board to interpret subsection (1)(g)'s nuances in light of the Board's special expertise in child welfare services. I cannot support this result.
¶85 Reading the plain language of subsection (1)(g), I would hold that an infant's positive drug test does not, standing alone, satisfy the affected-by-exposure requirement. Rather, I would turn to the Board's definition of this requirement for
guidance and conclude that a child is "affected by alcohol or substance exposure" under subsection (1)(g) if the exposure impacts the child's physical, behavioral, or developmental response. 12 Colo. Code Regs. 2509-1:7.000.2. And in this case, I would hold that the evidence is insufficient to show that B.C.B. was so impacted.
¶86 To the extent the legislature's changes to subsection (1)(g) might be perceived as endangering infants whose parents are ill-equipped to care for them, numerous grounds for a dependency-or-neglect finding under section 19-3-102(1) guard against such an outcome. See § 19-3-102(1) (defining a child as "neglected or dependent" if (a) a parent has abandoned, mistreated, or allowed others to mistreat the child, (b) "[t]he child lacks proper parental care through the actions or omissions of the parent," and (c) "[t]he child's environment is injurious to his or her welfare"). Indeed, evidence of a parent's prenatal substance abuse- including an infant's positive test for substances like methamphetamine-may support a finding of dependency or neglect under some of these provisions. See People in Int. of T.T., 128 P.3d 328, 329-30 (Colo.App. 2005) (holding that evidence of a parent's prenatal substance abuse, including an infant's positive test for, among other substances, methamphetamines, "may . . . support the filing of a petition in dependency or neglect under § 19-3-102(1)(a)-(c)"). But nothing in subsection (1)(g) allows a mere positive test to support such a finding.
¶87 I respectfully dissent.
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Notes:
[1] Specifically, we granted certiorari to review the following issues:
1. Did the court of appeals correctly interpret the amended language of Colorado Revised Statute section 19-3-102(1)(g)?
2. Did the court of appeals err in finding that there was insufficient evidence to support the jury's verdict, by a preponderance of the evidence, that BCB [sic] was dependent and neglected?
3. Whether a divided division of the court of appeals erred in its interpretation of recently amended section 19-3-102(1)(g), C.R.S., and in relying on agency regulations to define this statutory provision.
[1] The majority suggests that that the legislative history of S.B. 20-028 supports its interpretation because one of the bill's supporters testified that the bill "deemphasize[s] the focus on a child's positive test at birth and . . . shift[s] the focus to a holistic assessment of the family's needs and strengths." Maj. op. ¶ 29. But to the extent the majority leans on legislative history, that history shows that by amending subsection (1)(g), the bill's sponsors sought to eliminate the threat of a finding of dependency or neglect based solely on an infant's positive drug test, specifically to (1) encourage pregnant mothers to "get help" with substance-use disorders, (2) "keep [babies] with their moms" once they are born to "get them to bond together," and (3) take advantage of new mothers' "heightened motivation" to seek treatment for their disorders. Hearings on S.B. 028 before the H. Comm. on Health & Ins., 72d Gen. Assemb., 2d. Sess. (June 10, 2020) (statements of Rep. Buentello). By perpetuating the threat that a positive drug test may result in a dependency or neglect determination, the majority undermines these goals.
[2] I note that the majority's rejection of the Board's regulation as "inconsistent with the plain meaning" of the statute, Maj. op. ¶ 33, simply highlights the majority's conflation of exposure with the effects of such exposure. The majority rejects the Board's regulation because it concludes that the statute does not require the child to be "impacted" (physically, developmentally, or behaviorally) by the exposure. Id. But "impact" is merely a synonym for "affect." See Impact, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/impact [https:// perma.cc/H6CA-WSRT] (defining "impact" as "to have a direct effect or impact on" (emphasis added)). And a showing that the child is "affected" by substance exposure is precisely what the 2020 amendments to subsection (1)(g) now require.
[3] Because this holding alone negates a finding of dependency or neglect, I, like the division majority below, would not reach the threatened-by-substance-use requirement of subsection (1)(g). See People in Int. of B.C.B., 2024 COA 88, ¶¶ 25, 34, 558 P.3d 980, 986, 988.
[4] The majority analyzes this same evidence. Maj. op. ¶ 42. Notably, the majority concludes that it would "arguably" be speculative to draw any inference from this evidence regarding the health effects B.C.B. experienced as a result of his prenatal methamphetamine exposure. Id. at ¶ 43. The majority avoids actually deeming this evidence speculative, however, because it mistakenly considers this evidence only as it relates to the threatened-by-substance-use requirement. Id. at ¶¶ 41-42, 44. This error allows the majority to rely on other evidence-namely, of mother's ability to care for B.C.B.-in evaluating whether the threatened-by-substance-use requirement is satisfied. Id. at ¶¶ 44-45. Because I consider this evidence only for purposes of applying the affected-by-exposure requirement, I evaluate whether it is too speculative to satisfy that requirement here. I conclude that it is.
[5] Dr. Heather Welfare, B.C.B.'s primary-care physician, even noted that she did not recommend seeing B.C.B. more frequently for "developmental surveillance" or "growth concerns" than she would see other children.
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