Positive Newborn Drug Test Satisfies “Affected by Exposure”; Threat May Be Shown by Direct Substance Risk or Parental Incapacity — Colorado Supreme Court Clarifies § 19-3-102(1)(g)

Positive Newborn Drug Test Satisfies “Affected by Exposure”; Threat May Be Shown by Direct Substance Risk or Parental Incapacity — Colorado Supreme Court Clarifies § 19-3-102(1)(g)

Introduction

In People of the State of Colorado in the Interest of Minor Child B.C.B.; and B.C.B. v. A.B. and J.S., 2025 CO 28, 569 P.3d 74, the Colorado Supreme Court resolved a consequential question arising from the General Assembly’s 2020 overhaul of section 19-3-102(1)(g), Colorado’s dependency-or-neglect provision addressing infants exposed to alcohol or drugs in utero. The case presented a clash between a divided court of appeals’ reading of the amended statute and the Department of Human Services’ and guardian ad litem’s efforts to sustain a jury’s adjudication of dependency or neglect after a newborn tested positive for methamphetamine.

The Court held that a positive drug test at birth is sufficient to establish the statute’s first requirement that the child be “born affected by alcohol or substance exposure.” However, it emphasized that the 2020 amendments add a second, independent requirement: the People must also prove that “the newborn child’s health or welfare is threatened by substance use.” The Court articulated two ways to meet that second prong—either by showing a direct health or welfare threat posed by the substance exposure or by proving that, as a result of parental substance use, the parent would be unable to care for the child properly. Applying those rules, the Court reinstated the jury’s dependency finding, concluding the evidence sufficed to show that the mother’s ongoing substance-use issues threatened the child’s health or welfare.

A forceful dissent by Chief Justice Márquez (joined by Justice Samour) contended the majority effectively restores a positive-test-only regime that the 2020 amendments were designed to displace, and that courts should defer to the State Board of Human Services’ regulation requiring evidence of a physical, developmental, or behavioral impact to satisfy the “affected by” element.

Case Background

B.C.B. was born in a car where his parents were living. At the hospital, the newborn’s urine and umbilical cord tested positive for amphetamines and methamphetamine; the mother also tested positive and later admitted to methamphetamine use during the pregnancy. The El Paso County Department of Human Services initiated a dependency-or-neglect proceeding under several provisions, including § 19-3-102(1)(g) as amended in 2020.

At trial, pediatricians described potential risks associated with prenatal methamphetamine exposure and emphasized the need for close monitoring, though they could not predict with medical certainty whether this infant would experience long-term effects. The intake caseworker and the mother’s therapist testified to mother’s ongoing substance-use treatment needs, unstable circumstances, and concerns about her ability to care safely for a newborn.

A jury found B.C.B. had been born affected by substance exposure and that his health or welfare was threatened by substance use. The trial court adjudicated the child dependent or neglected. A divided court of appeals reversed, construing the amended statute to require proof that the child was adversely affected at birth, not merely exposed, and finding the evidence insufficient. The Supreme Court granted certiorari.

Summary of the Opinion

  • First element — “born affected by alcohol or substance exposure”: The Court held that an infant’s positive drug test at birth satisfies this requirement. The presence of an illicit substance in the newborn’s body is itself an “effect” of exposure. The Court rejected the State Board of Human Services’ regulatory definition requiring a demonstrated impact on the child’s physical, developmental, and/or behavioral response as inconsistent with the statute’s plain meaning.
  • Second element — “the newborn child’s health or welfare is threatened by substance use”: The Court announced two independent pathways to satisfy this prong:
    • Direct threat: Evidence that exposure to the particular substance is known to create a non-speculative risk to the child’s health or welfare.
    • Caregiver-capacity threat: Evidence that, as a result of a parent’s substance use, the parent would be unable to care properly for the child.
  • Application: Without deciding whether the evidence showed a direct threat, the Court held the caregiver-capacity pathway was proven by a preponderance of the evidence, citing the mother’s ongoing treatment needs, instability, and the heightened risk to a newborn if a caregiver is using substances. The Court therefore reversed the court of appeals and reinstated the adjudication.
  • Dissent: Chief Justice Márquez, joined by Justice Samour, would require evidence of an actual impact on the infant to satisfy “affected by,” defer to the Board’s regulation, and find the evidence insufficient to show the child was affected at birth.

Detailed Analysis

Statutory Framework and 2020 Amendments

Before 2020, § 19-3-102(1)(g) set a one-factor rule: a newborn’s positive test for a Schedule I or II controlled substance at birth sufficed to establish dependency or neglect (subject to an exception for lawful prescribed use). In 2020, as part of S.B. 20-028 (“An Act Concerning Measures to Assist an Individual’s Recovery From a Substance Use Disorder”), the General Assembly repealed the positive-test language and adopted a two-element standard:

  • The child must be “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 legislative testimony reflected a policy shift away from automatic adjudications triggered solely by a lab result, toward a more holistic assessment of family strengths and needs and support for treatment and recovery. The core interpretive dispute in B.C.B. concerns how much the first element (“affected by”) raised the evidentiary threshold beyond mere exposure and how the second element was meant to operate.

The Majority’s Legal Reasoning

1) “Affected by alcohol or substance exposure” — a plain-language reading

Relying on ordinary-meaning dictionaries, the Court defined “affect” as “to produce an effect on; to influence in some way.” On that basis, it concluded that the presence of an illicit substance in the newborn’s system at birth is itself an effect of exposure. Thus, a positive neonatal test is enough to meet the first element. In the Court’s view, the 2020 amendment broadened the category of evidence that can prove the first element (for example, clinical withdrawal signs could also suffice), but did not exclude a lab-confirmed positive test as adequate proof that exposure had an effect.

The Court rejected the State Board of Human Services’ regulation defining “born affected by” to require an impact on the child’s “physical, developmental, and/or behavioral response,” concluding this adds words the legislature did not use and conflicts with the statute’s plain meaning. While agency constructions may be considered, the Court reiterated it will not defer to an interpretation that contradicts unambiguous text.

2) “The newborn child’s health or welfare is threatened by substance use” — two distinct pathways

The newly added second element does the heavy doctrinal lifting. The Court announced two independent means of proving a threat:

  • Direct-substance-threat pathway: The People can prove that exposure to the particular substance is known to create a particular, non-speculative risk to the child’s health or welfare. This permits expert or medical evidence that the substance carries recognized risks (beyond conjecture) sufficient to threaten the child’s health or welfare.
  • Caregiver-capacity pathway: Even without proving direct physiological risk, the People can prove that, as a result of a parent’s substance use, the parent would be unable to care for the infant properly. The Court observed that this construction aligns with the Board’s definition of “threatened by substance use” (which focuses on whether caregivers are likely unable to meet the newborn’s needs) and with the 2020 amendment’s holistic, family-centered focus.

In short, the first element is a low threshold (exposure had an effect, which a positive test can demonstrate), and the second element screens cases by requiring a demonstrated threat rooted either in the substance’s risks or in caregiver capacity compromised by substance use.

3) Application to the record and the standard of review

Applying the sufficiency review standard (viewing the evidence in the light most favorable to the verdict and drawing all fair inferences for the People), the Court held:

  • First element satisfied: The newborn’s positive test established that exposure had an effect.
  • Second element satisfied via caregiver-capacity pathway: Testimony from the mother’s therapist showed ongoing treatment needs and instability; the caseworker explained the heightened risks to infants when caregivers are under the influence and not able to make appropriate decisions. That evidence, taken together, supported a finding by a preponderance that the newborn’s health or welfare was threatened by the mother’s substance use due to compromised caregiving capacity.

The Court expressly declined to rely solely on evidence of direct physiological effects; while some symptoms were reported (e.g., tremors, startle, sweating, latch difficulty), the medical experts described future impacts as possible but not certain. Because the caregiver-capacity pathway was sufficiently proven, the Court reinstated the adjudication.

The Dissent’s Legal Reasoning

Chief Justice Márquez, joined by Justice Samour, emphasized three core points:

  • Text and statutory history: The 2020 amendments intentionally moved away from a positive-test-only standard. By holding that a positive test satisfies “affected by exposure,” the majority collapses “exposure” into “effect,” undermining the legislative change that requires actual effect, not mere exposure.
  • Agency deference: The General Assembly expressly directed the Board to promulgate rules implementing subsection (1)(g). The Board’s regulation—requiring a physical, developmental, or behavioral impact to satisfy “affected by”—is reasonable, grounded in the Board’s technical expertise, and entitled to judicial deference. The majority errs in rejecting it.
  • Insufficiency of evidence on the first element: The experts could not link the infant’s transient symptoms to methamphetamine exposure with medical certainty, and the baby was otherwise healthy and on track. On this record, a reasonable jury could not find the child was “affected by” exposure as opposed to merely exposed.

The dissent warned that the majority’s approach will again permit findings of dependency or neglect based solely on a positive test when the substance is known to pose risks, contrary to the 2020 policy shift intended to avoid discouraging prenatal care and treatment engagement.

Precedents and Authorities Cited

  • People in Interest of D.L.R., 638 P.2d 39 (Colo. 1981): Establishes the sufficiency-of-the-evidence standard applicable to dependency-or-neglect adjudications—review the record in the light most favorable to the prevailing party and draw all fair inferences to support the verdict. The majority relied on this to uphold the jury’s findings.
  • In re People in Interest of C.J.T., 2023 CO 60: Restates core principles of statutory interpretation—ascertain legislative intent, give words their ordinary meaning, and construe provisions harmoniously. The majority applied these canons to read “affected by” according to ordinary meaning.
  • UMB Bank, N.A. v. Landmark Towers Ass’n, 2017 CO 107: Courts may not add to or subtract from statutory text. Used to reject the Board’s added “physical/developmental/behavioral” impact gloss on “affected by.”
  • Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41: Courts may consider agency interpretations but need not defer to them when they conflict with the statute’s plain language. Supports the majority’s refusal to follow the Board’s definition of “affected by.”
  • People in Interest of T.T., 128 P.3d 328 (Colo. App. 2005): Cited in dissent to note that prenatal substance use and positive tests can support adjudication under other subsections (e.g., lack of proper care or injurious environment), underscoring that subsection (1)(g) should not be read to allow a positive test alone to suffice after 2020.
  • Daugaard v. People in Interest of Daugaard, 488 P.2d 1101 (Colo. 1971): The dissent invokes this for the requirement that expert causation opinions be framed in terms of reasonable medical probability, not mere possibility, when used to infer effects.
  • Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo. 1998); City of Colorado Springs v. Powell, 156 P.3d 461 (Colo. 2007): The dissent uses these to emphasize giving effect to legislative intent and recognizing that amendments effectuate change.
  • Kaiser v. Aurora Urban Renewal Auth., 2024 CO 4; El Paso Cnty. Bd. of Equalization v. Craddock, 850 P.2d 702 (Colo. 1993); Larimer Cnty. Bd. of Equalization v. 1303 Frontage Holdings LLC, 2023 CO 28: The dissent cites these to support greater deference to agency regulations where the legislature expressly delegates rulemaking and the agency brings technical expertise.
  • C.W.B., Jr. v. A.S., 2018 CO 8; People in Interest of J.G., 2016 CO 39: Discussed in the dissent to emphasize that state intervention in the parent-child relationship should occur only when necessary to protect child welfare and must hew to statutory limits and purposes.

Impact and Practical Implications

1) Doctrinal clarification and litigation posture

  • First element threshold lowered to exposure-plus: A positive neonatal test now clearly satisfies “born affected by” exposure. Parties should expect limited litigation over that element where there is reliable biochemical evidence of exposure or other concrete signs that exposure had an effect.
  • Second element as the decisive battleground: Future cases will center on whether the People can prove the newborn’s health or welfare is threatened. Practically, two lanes of proof are now sanctioned:
    • Substance-specific risk evidence (e.g., accepted medical risks associated with the particular exposure), and
    • Caregiver-capacity evidence (e.g., ongoing substance-use disorder, instability, poor decision-making, inability to meet infant’s needs).
  • Sufficiency review favors trial outcomes: Because appellate courts view evidence in the light most favorable to the verdict, well-developed records documenting parental capacity concerns and professional assessments will often sustain adjudications under the caregiver-capacity pathway.

2) Agency rulemaking and deference

  • The Court’s refusal to adopt the Board’s “affected by” definition signals that agency regulations will not control when they diverge from unambiguous statutory text. Agencies may need to revisit 12 CCR 2509-1:7.000.2(A) to align with the Court’s construction, at least as to the first element.
  • The Court, however, cited the Board’s definition of “threatened by substance use” approvingly when articulating the caregiver-capacity pathway, indicating that portions of the regulation remain persuasive and consistent with legislative purpose.

3) Practice pointers

  • For petitioning agencies:
    • Document the newborn’s positive test and any corroborating clinical observations.
    • Build a full caregiver-capacity record (treatment status, triggers, relapse prevention, stability, housing, supports, decision-making while using, and provider opinions about ability to meet newborn needs).
    • If pursuing a direct-threat theory, present non-speculative, substance-specific risk evidence grounded in recognized medical literature or expert consensus.
  • For respondent parents:
    • Focus defense resources on the second element: demonstrate present capacity to meet infant needs, sustained sobriety, treatment engagement, stable housing and supports, and safety planning.
    • Challenge speculative medical risk opinions that are not framed beyond conjecture and highlight normal developmental milestones when present.
  • For courts:
    • Separate the two elements analytically. The first element is satisfied by a positive test; the second requires a qualitative assessment of present threat, either via substance-specific risk or caregiver capacity.
    • Be mindful that the statute excludes substances “taken as prescribed or recommended and monitored by a licensed health care provider.” Ensure records address that exception when relevant.

4) Policy considerations

  • The majority seeks to harmonize the 2020 policy shift by retaining a meaningful second element that prevents automatic adjudications based on lab results alone. The dissent warns the majority’s reading still risks reviving a positive-test-only dynamic in practice, potentially discouraging prenatal care or addiction treatment engagement.
  • The decision will likely increase the salience of individualized caregiver-capacity assessments, wraparound services, and close coordination with substance-use treatment providers in newborn cases.

Complex Concepts Simplified

  • Dependency or neglect adjudication: A civil proceeding to determine whether a child lacks proper care or is at risk, authorizing court oversight and services to protect the child’s welfare.
  • Preponderance of the evidence: The standard of proof in dependency cases—more likely than not (greater than 50%).
  • “Born affected by alcohol or substance exposure”: Under this decision, exposure that results in the presence of the substance in the newborn’s body is an “effect” and satisfies this element; the statute also allows other evidence to show effect.
  • “Health or welfare is threatened by substance use”: Can be shown either by evidence that the particular substance exposure presents a known, non-speculative risk to the child, or by proof that parental substance use renders the caregiver unable to meet the newborn’s needs.
  • Agency deference: Courts may consider agency regulations, but in Colorado they will not defer to them if they conflict with the statute’s clear text. Express legislative delegations matter, but plain meaning controls.
  • Medical “possibility” vs. “probability”: Testimony that something is merely possible is generally weaker than testimony that it is probable. The majority did not require medical certainty to prove a caregiver-capacity threat; the dissent would have required more to show the child was affected at birth.

Conclusion

People in the Interest of B.C.B. provides definitive guidance on the 2020 amendments to § 19-3-102(1)(g). The Colorado Supreme Court holds that a positive drug test at birth satisfies the “born affected by exposure” element, while clarifying that the People must also prove a separate threat to the newborn’s health or welfare. That threat can be shown either by non-speculative, substance-specific risks or by the parent’s compromised capacity to meet the newborn’s needs due to substance use.

The ruling narrows the practical effect of the 2020 change at the first element but gives real content to the second, ensuring adjudications will focus on individualized risks and parental capacity at the time of adjudication. It also recalibrates the role of agency rulemaking: courts may look to, but need not defer to, regulations that diverge from unambiguous text—though consistent definitions, such as the caregiver-capacity conception of “threat,” remain persuasive.

Going forward, the most consequential litigation in newborn exposure cases will pivot on the second element. The decision both equips child-welfare agencies with a clear evidentiary roadmap and signals to defense counsel where the decisive factual showing lies: present caregiving ability and stability. Whether this balance faithfully advances the General Assembly’s 2020 policy aims is the subject of a thoughtful dissent that will continue to inform debates in the courtroom and the legislature alike.

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