Positive Newborn Drug Test Satisfies “Affected by Exposure”; “Threatened” Element May Be Shown by Direct Risk or Parental Incapacity under § 19-3-102(1)(g): Colorado Supreme Court Clarifies the Two‑Prong Test in People ex rel. B.C.B. v. A.B. (2025)

Introduction

In People ex rel. B.C.B. v. A.B., 2025 CO 28, the Colorado Supreme Court resolved a high-stakes interpretive dispute over the meaning of Colorado Children’s Code section 19‑3‑102(1)(g) (2024), the provision governing dependency or neglect adjudications for newborns exposed to alcohol or substances in utero. The case arose after a newborn, B.C.B., tested positive for methamphetamine at birth. The El Paso County Department of Human Services (the “Department”) and the child’s guardian ad litem (GAL) obtained a jury adjudication that the child was dependent or neglected. A divided Court of Appeals reversed, holding the Department had not proved the amended statute’s requirements. The Supreme Court—over a dissent by the Chief Justice—reversed the appellate decision and reinstated the adjudication.

The key issues were:

What “born affected by alcohol or substance exposure” means under § 19‑3‑102(1)(g), as amended in 2020; and
How to prove that “the newborn child’s health or welfare is threatened by substance use.”

The Court held that a newborn’s positive toxicology test at birth is sufficient, by itself, to satisfy the statute’s first prong—being “born affected” by exposure. For the second prong, the Court recognized two alternative pathways: (1) proof that exposure to the substance directly threatens the child’s health or welfare, or (2) proof that, as a result of a parent’s substance use, the parent is unlikely to properly care for the child. Applying these standards, the Court found the evidence sufficient to support the jury’s verdict and reinstated the dependency or neglect adjudication.

Summary of the Opinion

Writing for the majority (Justices Boatright, Hood, Hart, and Berkenkotter joining), Justice Gabriel held:

“Affected by alcohol or substance exposure” is unambiguous and requires only that exposure has had an “effect” on the newborn. The presence of illicit substance in the newborn’s body at birth is itself an “effect,” so a positive test at birth satisfies the first prong.
The State Board of Human Services’ regulation defining “affected by” as requiring a demonstrated impact on the child’s “physical, developmental, and/or behavioral response” conflicts with the statute’s plain meaning and does not control.
“Health or welfare is threatened by substance use” can be shown in two ways:
- Direct risk pathway: evidence that exposure to the specific substance is known to create a particular risk to the newborn’s health or welfare; or
- Parental incapacity pathway: evidence that, due to a parent’s substance use, the parent is likely unable to properly care for the child.
On the facts, the record supported the jury’s finding that the child’s health or welfare was threatened by the mother’s ongoing substance use and treatment needs (even if the medical testimony about direct harms from methamphetamine exposure was cautious and couched in possibilities). The dependency or neglect adjudication was therefore properly entered.

Chief Justice Márquez, joined by Justice Samour, dissented. The dissent argued that the 2020 amendment intentionally raised the bar by requiring more than mere exposure—insisting on proof that exposure actually affected the child—and that the Board’s regulation, promulgated under an express legislative directive, reasonably defined “affected by” and merited deference. The dissent concluded the evidence did not show B.C.B. was “affected by” exposure and would have affirmed the Court of Appeals.

Analysis

Precedents and Authorities Cited and Their Influence

People in Interest of D.L.R., 638 P.2d 39 (Colo. 1981): The Court applied the longstanding sufficiency-of-the-evidence standard, emphasizing deference to the jury’s verdict by viewing the record in the light most favorable to the prevailing party and drawing every fairly deducible inference in support of the judgment. This posture was pivotal to upholding the jury’s finding on the “threatened” prong.
In re People in Interest of C.J.T., 2023 CO 60, 546 P.3d 1150: Reiterated canons of statutory interpretation—plain meaning, internal harmony, and avoidance of absurd results—used to conclude § 19‑3‑102(1)(g)’s key phrases are unambiguous.
UMB Bank, N.A. v. Landmark Towers Ass’n, 2017 CO 107, 408 P.3d 836: The Court refused to add or subtract words from the statute—central to rejecting the argument (and agency regulation) that would effectively insert “physical, developmental, or behavioral impact” into the text of “affected by.”
Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41, 441 P.3d 1012: Confirmed that courts may consider agency interpretations but will not defer to them when they conflict with unambiguous statutory text. This undergirded the Court’s refusal to adopt the Board’s definition of “affected by,” while acknowledging the consistency of the Board’s articulation of the “threatened” prong.
People in Interest of T.T., 128 P.3d 328 (Colo. App. 2005) (invoked by the dissent): Shows alternate statutory grounds outside subsection (1)(g) (e.g., § 19‑3‑102(1)(a)-(c)) that may support dependency or neglect findings based on prenatal substance abuse; relevant to the dissent’s concern that the majority’s reading undermines the 2020 policy shift.
Additional dissent-cited authorities on legislative change and agency deference (e.g., City of Colo. Springs v. Powell, 156 P.3d 461 (Colo. 2007); Farmers Ins. Exch. v. Bill Boom, Inc., 961 P.2d 465 (Colo. 1998); Kaiser v. Aurora Urban Renewal Auth., 2024 CO 4; Larimer Cnty. Bd. of Equalization v. 1303 Frontage Holdings LLC, 2023 CO 28; El Paso Cnty. Bd. of Equalization v. Craddock, 850 P.2d 702 (Colo. 1993); Stell v. Boulder Cnty. Dep’t of Soc. Servs., 92 P.3d 910 (Colo. 2004)) collectively frame the dissent’s argument for deference to the Board’s rulemaking under § 19‑3‑216 and for honoring the legislature’s policy shift.
Daugaard v. People in Interest of Daugaard, 488 P.2d 1101 (Colo. 1971), overruled on other grounds by People v. Ramirez, 155 P.3d 371 (Colo. 2007): Cited by the dissent to argue that expert testimony framed in “possibilities,” rather than “probabilities,” is insufficient—an argument the majority effectively sidesteps by relying on the “parental incapacity” route for the “threatened” prong.

Legal Reasoning and Doctrinal Clarifications

The statutory text now contains a two-prong test:

“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.”

The majority interprets both prongs as follows:

First prong—“affected by exposure”:
- Using dictionary definitions, the Court held “affected” simply means “producing an effect” or “influencing in some way.”
- A newborn’s positive toxicology at birth is itself an “effect” of exposure; therefore, a positive test suffices to satisfy the first prong. This is not a return to the pre‑2020 one-factor regime: the second prong still must be proved.
- The Court explicitly rejected the Board’s rule that would require a showing of physical, developmental, and/or behavioral impact to satisfy “affected by,” concluding that the regulation narrows unambiguous statutory text.
Second prong—“health or welfare is threatened by substance use”:
- Two distinct, alternative paths can prove “threatened”:
  - Direct risk path: robust evidence that exposure to a particular substance is known to present a specific risk to the child’s health or welfare (beyond speculation); or
  - Parental incapacity path: evidence that, because of a parent’s substance use, the parent is likely unable to meet the newborn’s needs.
- This construction aligns with the State Board’s regulation on “threatened by substance use,” which the Court treated as consistent with the statute’s language and the 2020 amendment’s holistic, recovery‑oriented purpose.

Applying these rules to the record, the Court acknowledged the medical testimony about potential future harms from in utero methamphetamine exposure was appropriately cautious—reflecting uncertainty in the literature and avoiding probabilistic conclusions. Nevertheless, under the parental‑incapacity route, the unchallenged evidence of the mother’s ongoing need for substance use treatment, therapeutic support, and stability, combined with the vulnerability of infants and the risks associated with caregiver intoxication, permitted the jury to find that the newborn’s health or welfare was threatened by substance use. Given the deferential sufficiency standard, the verdict was sustained.

The Dissent’s Counter‑Reasoning

The dissent advanced three principal arguments:

Text and statutory history: By striking the prior “tests positive at birth” language and replacing it with “born affected by alcohol or substance exposure,” the legislature intended to require more than mere exposure. The majority’s view collapses “exposure” into “effect,” effectively restoring the old rule and frustrating the reform enacted by S.B. 20‑028.
Agency deference: The General Assembly expressly directed the State Board of Human Services to promulgate rules implementing subsection (1)(g). The Board’s definition—requiring evidence that exposure impacted the child’s physical, developmental, and/or behavioral response—is reasonable, within delegated authority, and deserves deference, particularly given the Board’s expertise in child welfare.
Insufficiency of the evidence: Medical testimony described only possibilities, not probabilities, and the child appeared healthy; thus the record does not show the child was “affected by” exposure. Because the first prong fails, the dissent would not reach the “threatened” prong.

The dissent also warned that allowing a positive test to satisfy the first prong revives the deterrent to pregnant individuals seeking treatment or prenatal care that the 2020 amendments sought to reduce and may impede goals of keeping newborns safely with their parents when appropriate.

Agency Deference and Regulatory Implications

The opinion draws a sharp line on when agency rules will matter in dependency/neglect cases under subsection (1)(g):

Where the statutory text is unambiguous, courts will not adopt an agency’s narrowing gloss. That is the fate of the Board’s “affected by” definition, which the majority deemed inconsistent with plain meaning.
Where an agency rule articulates a construction consistent with statutory text, it can inform, and even reinforce, the judicial construction. The Court expressly characterized the Board’s “threatened by substance use” definition as consistent with the statute, and it aligns with the decision’s two‑path formulation (direct risk or parental incapacity).

For practitioners, the practical takeaway is nuanced. The Department cannot rely on the Board’s “affected by” definition to demand evidence of immediate physical, developmental, or behavioral manifestations. A positive neonatal toxicology test suffices. But Departments still must shoulder the independent burden to prove the “threatened” prong, which, as the Court explains, accommodates both medical‑risk evidence and caregiver‑capacity evidence.

Practical Applications and Litigation Guidance

The decision reshapes proof strategies under § 19‑3‑102(1)(g):

First prong—“born affected by exposure”:
- Positive toxicology at birth will typically satisfy this prong. Other evidence (e.g., credible observations of withdrawal or exposure‑related effects) can also suffice, even without a test.
- Exception: Exposure to substances taken as prescribed/recommended and monitored by a licensed health care provider does not qualify. Medication‑assisted treatment (MAT) and other supervised therapies may fit this safe harbor if properly documented.
Second prong—“health or welfare is threatened by substance use”:
- Direct risk path: Develop credible, non‑speculative medical evidence linking the specific substance and exposure level to recognized neonatal or longer‑term risks. Expert testimony should go beyond mere possibilities.
- Parental incapacity path: Present evidence of current substance use disorder severity, treatment status and compliance, relapse risk, caregiver decision‑making, stability (housing, supports), and ability to meet the newborn’s needs. Testimony from therapists, caseworkers, and service providers will be central.

Practice tips:

For Departments/GALs:
- Do not over‑rely on generalized medical literature; where direct-risk proof is thin, marshal robust evidence of caregiver capacity risks (treatment needs, instability, observed impairment).
- Build a record of services offered, engagement, and progress; document risk mitigation plans and any failures.
For Parents’ Counsel:
- Focus on the second prong: highlight sobriety, treatment compliance, supports, safe housing, and caregiving capacity. Seek expert testimony addressing infant health and lack of current risk.
- Where applicable, document the “prescribed/monitored” exception (e.g., MAT under medical supervision).
For Courts:
- Ensure jury instructions reflect that a positive test satisfies “affected by exposure,” but that a separate, independent finding is required on whether the child’s health or welfare is “threatened by substance use,” using either pathway recognized by the Court.

Impact and Future Litigation

The decision establishes a clear, statewide rule that will govern newborn exposure cases:

Recalibrated burden on the first prong: Proving “affected by exposure” is now straightforward when a positive neonatal toxicology exists. The primary battleground will move to the second prong.
Expanded content of the second prong: The recognized “parental incapacity” route will likely be the Department’s most common path, particularly where medical science on specific exposure harms is contested or evolving. Evidence of ongoing recovery needs, instability, or impaired decision‑making can suffice.
Regulatory implications: Agencies should expect challenges to any rules that narrow unambiguous statutory language. Conversely, rules that operationalize the “threatened” prong by focusing on caregiver capacity and safe care planning are more likely to withstand scrutiny.
Policy tension: The dissent’s concerns about chilling treatment‑seeking and prenatal care will likely surface in policy debates and possible legislative refinements. Meanwhile, courts will balance the holistic aims of S.B. 20‑028 with the protective function of the dependency system.
Evidentiary standards: Parties should anticipate closer judicial attention to whether medical testimony on direct risk is speculative versus grounded in recognized probability. Where such testimony is cautious, caregiver‑capacity evidence will carry greater weight.

Open questions likely to arise:

What quantum and type of expert evidence suffices to show a “particular risk” on the direct‑risk path, especially for substances with mixed literature?
How courts will evaluate the “prescribed/recommended and monitored” exception for complex treatment regimens (e.g., MAT, off‑label uses, multiple providers).
Whether and how legislative or regulatory responses will further specify how S.B. 20‑028’s “holistic” aims are implemented at adjudication versus disposition.

Complex Concepts Simplified

Dependency or Neglect (D&N): A civil proceeding to determine whether a child’s circumstances warrant state intervention for safety and well‑being. It is not a criminal prosecution, and the standard of proof is “preponderance of the evidence” (more likely than not).
“Affected by exposure” versus “exposure”: “Exposure” means the substance is present in the newborn’s system (e.g., via a positive test). “Affected by exposure” means there has been some “effect.” The Court held that the presence of the substance itself is an “effect,” satisfying this prong.
“Health or welfare is threatened by substance use”: This looks either to (a) medically recognized risks from the specific exposure, or (b) the caregiver’s capacity to meet the newborn’s needs in light of substance use. Either pathway suffices.
Agency deference: Courts may consider agency regulations but will not follow them if they conflict with clear statutory text. Here, the Court rejected the Board’s narrowing of “affected by,” but found the Board’s articulation of “threatened by substance use” consistent with the statute.
Standard of review on appeal: Sufficiency of the evidence is reviewed in the light most favorable to the prevailing party, with all fair inferences drawn to support the verdict.
“Possibility” versus “probability” in expert testimony: Opinions couched only in possibilities typically have limited weight for proving direct causation or risk. However, under the parental‑incapacity path, the focus is on caregiver capacity, not medical causation alone.

Conclusion

People ex rel. B.C.B. v. A.B. is a consequential clarification of Colorado’s newborn exposure provision in § 19‑3‑102(1)(g). The Court held that a positive neonatal toxicology test is sufficient to establish that a child was “born affected by” exposure, rejecting a regulatory gloss that would have required immediate physical, developmental, or behavioral manifestations. The decision also articulates a two‑route framework for the “threatened” prong: either proof of direct medical risk from exposure or proof that a parent’s substance use leaves the parent unable to provide proper care.

In practical terms, the dispute in future cases will cluster around the second prong. Where medical science is unsettled or individualized causation is uncertain, Departments can still meet their burden by demonstrating parental incapacity linked to substance use. Conversely, parents can defeat adjudication by showing stable recovery, treatment compliance, protective supports, and a present ability to meet the newborn’s needs.

The dissent’s urging for deference to the Board’s “affected by” definition and its emphasis on the 2020 reform’s treatment‑oriented goals spotlight real policy tensions—particularly the risk of discouraging prenatal care or treatment‑seeking. Yet the majority’s approach preserves the legislative shift away from automatic adjudications by insisting on a separate and substantive showing that the child’s health or welfare is threatened. The opinion thus reorients litigation under subsection (1)(g) toward a robust, fact‑specific inquiry into present caregiving capacity and concrete risks, while providing clear guidance on how each element of the statute should be proven.