concurring in part and dissenting in part:
I concur in the reversal of the judgment and the remand for a new trial. I disagree with Part IV C of the court’s opinion which holds that a decree terminating parental rights may be entered even though the underlying dependency adjudication has been established by a preponderance of evidence only. In my view due process of law requires that the dependency adjudication be established by clear and convincing evidence before it may be used as the basis for *642terminating parental rights under section 19-11-105, C.R.S.1973 (1978 Repl. Vol. 8 and 1981 Supp.).
I.
Section 19-11-105(1) makes clear that the only grounds for a termination decree are abandonment, which is not applicable here, and a prior adjudication of dependency or neglect. Indeed, the majority recognizes that the dependency adjudication in Colorado serves as an essential element of any termination decree. The majority, by balancing this critical element against the other statutory criteria for termination in section 19-11-105(1), reasons that these other statutory criteria, when proven by clear and convincing evidence, “accomplish the substantial equivalent of requiring that the child be determined to be neglected or dependent at the time of the termination proceeding.” I cannot accept this balancing process which the majority utilizes in upholding the preponderance of evidence standard for a dependency adjudication leading directly to the termination of the parent-child relationship. I read Santosky v. Kramer,-U.S.-, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), to require as a matter of due process that the elevated standard of clear and convincing evidence be applied to any dispositive fact which leads directly to the termination of parental rights. In Colorado the depéndency adjudication is such a dispositive fact.
As the majority explains, New York’s statutory procedures reviewed in Santosky permitted the court, upon the filing of the petition alleging abuse or neglect, to order the temporary removal of the child from the parent’s home. N.Y. Family Court Act §§ 1021-29 (McKinney Supp. 1976-81). Although the initial finding of abuse or neglect was made under the preponderance of evidence standard, N.Y. Family Court Act §§ 1046(b), 1051 (McKinney Supp. 1976-81), it was not this finding which led directly to a termination decree. Rather, a permanent neglect proceeding first had to be commenced before the court was permitted to terminate parental rights. N.Y. Social Services Law § 384-b(3)(b) and 7(a) (McKinney Supp. 1981-82); N.Y. Family Court Act § 614 (McKinney Supp. 1976-81). Upon the filing of a permanent neglect petition, New York law required the court to hold two hearings: a factfinding hearing in order to determine under the preponderance of evidence standard whether the child has been permanently neglected and whether the state has made diligent efforts to encourage and strengthen the parental relationship, N.Y. Social Services Law § 384-b(3)(g) and (7)(a) (McKinney Supp. 1981-82); N.Y. Family Court Act §§ 614, 622 (McKinney Supp. 1976-81); and next, a dis-positional hearing to determine what course of action will be in the best interests of the child, N.Y. Family Court Act §§ 623, 631 (McKinney Supp. 1976-81).
I do not consider the initial finding of abuse or neglect under the New York procedure reviewed in Santosky as the substantive equivalent of the Colorado dependency adjudication. Although this finding permitted the New York court to order the temporary removal of the child from the natural parent’s home, it was not a disposi-tive fact in the subsequent termination proceeding. Rather, it was the finding of permanent neglect which was critical to a termination decree and, as New York procedure permitted this finding of permanent neglect to be made by a preponderance of evidence only, it was constitutionally flawed.
I consider the Colorado adjudication of dependency a critical element of a termination proceeding and, in a fashion similar to the New York finding of permanent neglect, I believe that the dependency adjudication in Colorado likewise must be made by the constitutionally mandated clear and convincing standard. If anything, the New York hearing on permanent neglect was more protective of the natural parent’s rights than the Colorado procedure. The New York procedure required a finding of permanent neglect, which is far more indicative of an irreparable parental unfitness than a Colorado dependency adjudication. A Colorado court is permitted to enter a *643dependency adjudication upon a showing of temporary, as distinguished from permanent, dependency or neglect. This Colorado dependency adjudication assumes a dominant significance to the natural parent’s liberty interest in the continuation of the parent-child relationship. The additional statutory components of a termination decree — such as the parent’s noncompliance with a treatment plan, present parental unfitness, and the improbability of parental change of condition within a reasonable time, section 19-11 — 105(l)(b), C.R.S.1973 (1978 Repl. Vol. 8) — are not a justification for balancing these additional elements against the dependency adjudication when that balancing results in undercutting the clear and convincing standard of proof on the essential element of initial dependency. The only balancing constitutionally permissible in this case is the balancing already mandated by Santosky — that is, a balancing which protects the natural parent from the risk of an erroneous adjudication on this essential element which serves as the legal basis for a termination proceeding and without which a termination decree cannot enter.
For these reasons I cannot endorse the majority’s assertion that under Colorado’s statutory scheme the accuracy of the findings of fact underlying the original adjudication of dependency does not approach critical significance to the ultimate decision to terminate the parent-child relationship at the dispositional phase of the case. As I see it, it is precisely because the dependency adjudication implicates the prospective termination of the parental relationship that it assumes critical significance to the subsequent termination proceeding.
At the dependency phase of the case the interests of the parent and the child coalesce. It is the state which juxtaposes itself against the family unit at this stage of the proceeding and seeks judicial intervention into the parental relationship due to alleged defalcations of the parent. It is also the state at this phase of the ease which “marshals an array of public resources to prove its case and disprove the parents’ case.” Santosky v. Kramer, supra, - U.S. at -, 102 S.Ct. at 1397, 71 L.Ed.2d at 610. If the state is successful and obtains a dependency adjudication, it is then permitted to seek a termination decree at the dispositional phase of the case. Section 19-11-105, C.R.S.1973 (1978 Repl. Vol. 8 and 1981 Supp.). Only the heightened standard of clear and convincing evidence at the dependency phase of the case will adequately protect the liberty interest of both the parent and child in their continued relationship.
What must not be forgotten is that Colorado’s statutory standards of dependency and neglect are imprecise. A dependent or neglected child includes the following: a child who lacks proper parental care through the actions or omissions of his parent; a child whose environment is injurious to his welfare; a child whose parent fails to provide proper or necessary subsistence; a child who is without proper care through no fault of the parent; and a child who is otherwise beyond the control of his parent. Section 19-1-103(20), C.R.S.1973 (1978 Repl. Vol. 8 and 1981 Supp.). These standards often invite determinations based upon the subjective values of the factfinder. Compounding the subjective character of the dependency standards is the unfortunate fact, as Santosky noted, that dependency proceedings often involve the “poor, uneducated, or members of minority groups” who may be “vulnerable to judgments based on cultural or class bias.” -U.S. at-, 102 S.Ct. at 1399, 71 L.Ed.2d at 612-13. These factors, coupled with the preponderance of evidence standard itself, create a significant risk of an erroneous adjudication of the very fact which is a sine qua non of the state’s right to intervene in the family unit in the first place.
I do not share the majority’s concern that a clear and convincing standard of proof will cause the state to become so enmeshed in the adversary process as to destroy its capacity to function effectively as a “helping intervenor” in the post-adjudication resolution of family problems. I believe the state and its agents are quite capable of maintaining a balance consistent with its *644parens patriae role throughout the adjudicatory phase of dependency proceedings regardless of the standard of proof applicable to the issue of dependency. Moreover, whether we like it or not, the Colorado statutory procedures for a dependency adjudication are such that, once the state decides to intrude into the privacy of the family relationship by seeking a dependency adjudication, it must assume an adversary position vis-a-vis the natural parent. No matter what standard of proof it might operate under, the state will be obligated to marshal its evidence and to present formal proof of inadequate parental ability if it expects to obtain an adjudication permitting it to interpose itself between the parent and the child as parens patriae. More important, whatever polarization the clear and convincing standard might bring about is more than offset by the procedural protections which this same standard will bestow on the natural parent when those protections are needed most. For unless and until the state proves dependency, both the child and the parent share a vital interest in preventing an erroneous adjudication that may lead directly to the termination of their natural relationship. I cannot believe that the state’s interest in preserving and strengthening family ties would be so impaired were it required to prove the allegations of a dependency adjudication by the same standard of factual certainty applicable to the commitment of an alcoholic for treatment, section 25-1-311(4), C.R.S.1973 (1981 Supp.), or to the certification of short term treatment of the mentally ill, section 27-10-111(1), C.R.S.1973 (1981 Supp.).
II.
Because Colorado’s statutory scheme permits intermediate degrees of governmental intrusion into the parent-child relationship once a dependency adjudication is entered, it might be argued that the clear and convincing standard should apply to all dependency proceedings. I would apply this standard, however, only to those dependency adjudications which serve as a predicate for a termination proceeding. It is only in these cases that the parent’s basic liberty interest in the continuation of the parental relationship is threatened. If the prior dependency adjudication has been entered under the preponderance of evidence standard, I believe the state should be permitted to seek some form of intermediate disposition short of termination without the need to relitigate the dependency issue under the elevated clear and convincing standard of proof. Where however the state initiates a termination proceeding based upon a prior adjudication entered under the preponderance of evidence standard, due process of law in my opinion requires the state to establish the dispositive fact of dependency by clear and convincing evidence, as well as all other statutory elements essential to termination. Although admittedly there is judicial inconvenience in such a procedure, this inconvenience is more than justified because the state is seeking to terminate a natural relationship which finds its source in the fundamental character of the human condition.
Since the adjudication of dependency in this case is what led directly to the termination proceeding, and without which the termination decree would not have been entered, I consider the condition of prior dependency a dispositive fact which, under Santosky, must be established by the clear and convincing standard of proof. I would therefore require the trial court upon remand to rehear the allegations of dependency or neglect as part of the termination proceedings. A termination decree should be entered only if the prior condition of dependency or neglect has been established by clear and convincing evidence and all the other statutory criteria for termination in section 19-11-105 also have been established under this elevated standard of proof.