dissenting.
T1 Today the majority affirms the trial court's termination of M.C.'s parental rights based on the insufficiency of his $250 payment to the adoptive parents during the three months following the restoration of his rights. If this seems like an exceedingly slim reed upon which to base a termination of parental rights order, that is because it is. The reed becomes even slimmer considering the trial court "informally" raised the issue of child support but never settled a dispute over whether the adoptive parents were required to disclose financial information to set the amount of child support; in other words, the issue was never formally settled. Because the issue of child support was not resolved by the trial court, the trial court had no basis on which to determine that M.C. failed to "promptly" take "substantial parental responsibility" as required for termination by section - 19-5-105@8.1)(c), C.R.S. (2015). Moreover, our case- law requires that "[iln order to provide a [termination] procedure that is fundamentally fair," the trial court must also consider whether the parent is likely to pay child support in the future. In re R.H.N., 710 P2d 482, 487 (Colo.1985). Here, the trial court performed no such analysis; if it had, it would have concluded that M.C. would pay child support onee the issue was formally determined. Finally, while the majority hedges its bets on whether Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 *210L.Ed.2d 49 (2000) (plurality opinion), applies to this case, see maj. op. ¶ 19 (assuming, without deciding, that Troxel applies and concluding that it is satisfied), its entire analysis is beside the point. The problem here is not whether the trial court failed to give "special weight" to M.C.'s parenting decisions, as was the case in Troxel 530 U.S. at 70, 120 S.Ct. 2054, but rather whether M.C.'s parental rights should be terminated. In this context, our statute imposes two requirements: (1) clear and convincing evidence that the parent failed to promptly take substantial responsibility for his child; and (2) that the best interests of the child be served. § 19-5-105(8.1). As the court of appeals correctly determined, where there is an insufficient showing of the former, the parent's rights are impermissibly terminated based on the conclusion that the child would be "better off" being raised by someone else. M.C. v. Adoption Choices of Colo., Inc., 2014 COA 161, ¶ 80, 2014 WL 6485660. For these reasons, I respectfully dissent.
T2 Section 19-5-105(8.1) allows the trial court to terminate a birth parent's parental rights if such termination is in the child's best interests and there is clear and convine-ing evidence that "the parent has not promptly taken substantial parental responsibility for the child." One of the factors to consider in this inquiry is whether "the parent has failed to pay regular and reasonable support for the care of the child, according to that parent's. means.". § 19-5-105(8.1)(c)(I1). Hero, as the majority recognizes, the trial court "informally" raised the issue of child support. Maj. op. 8. This informal suggestion led to a "disput[e] [over] whether the adoptive parents had to disclose their financial information" in order to set the amount of support, Id. But the trial court never settled this dispute, nor did it enter a formal child support order. Id. The first time the issue was formally addressed by the trial court was when it determined that M.O.'s parental rights should be terminated due to non-payment. The majority finds that nonpayment is a legitimate ground on which to base a termination order because the statute specifies that child support should be paid according to a parent's means, not according to the adoptive parents' financial need. Maj. op. 48. The majority adopts an appropriate reading of the statute, but entirely misses the point, The trial court "informally" raised the issue of child support, leading to an expectation that the issue would be "formally" determined at a later point; Indeed, after the court's informal action, a dispute between the parties arose over whether the adoptive parents were required to disclose financial information before the issue could be resolved. Instead of settling the dispute, the trial court used M.C.'s non-payment as the grounds for termination. Under these cireumstances, the trial court had no basis to conclude that M.C. failed to promptly take substantial parental responsibility for his children.
T3 More importantly, the inquiry' into whether a parent has provided adequate support is not only backward-looking, it is forward-looking as well,. As we held in the analogous context of stepparent adoptions, "In order to provide a procedure that is fundamentally fair, once a court has determined that a natural parent has failed to provide child support .. . the court must look beyond the [period of non-payment] to determine whether there is any likelihood that the natural parent will provide child support." R.H.N., 710 P.2d at 487; see also E.R.S v. O.D.A., 779 P.2d 844, 848 (Colo.1989) (court must consider, prior to termination of parental rights, whether it is "unlikely" that parent will pay child support in the future) This forward-looking component is meant to ensure that the parent-child relationship is preserved where possible, Cf. D.P.H. v. J.L.B., 260 P.3d 320, 324 n. 2 (Colo.2011) (approving of In re J.D.K., 37 P.3d 541, 544 (Colo.App.2001), which refused to extend R.H.N. to the abandonment context because there was no relationship to preserve). The trial court in this case examined M.C.'s behavior only during the three months between the restoration of his parental rights and the termination hearing. But had the trial court inquired whether M.C. was likely to pay child support once the issue was settled, there was absolutely no indication that M.C. would fail to make- child support payments in the future. Indeed, he made a $250 payment two weeks prior to the hearing, and there was over*211whelming evidence that he was committed to establishing a relationship, with, and regaining custody of, his children onee his parental rights had been restored.
< I 4 Finally, I cannot agree with the majority's constitutional analysis, which assumes, without deciding, that Troxel applies, and then provides a lengthy discussion of why the dictates of that case have been met, if they did in fact apply. I believe the majority's constitutional analysis is simply a red herring. © Troxel concerned a trial court decision that failed to give "special weight" to a parent's parental decisions-in that case, regarding grandparent visitation. 530 U.S. at 70, 120 S.Ct 2054. This case involves a much more fundamental determination-namely, whether a parent's parental rights should be terminated. The issue here is thus dictated by our termination statute. Where,. as here, there is insufficient evidence to support the determination that a parent has failed to take substantial responsibility for his children, parental rights are terminated based solely on the "best interests of the child" analysis, meaning that, as the court of appeals observed, termination is based on the fact that the children would be "better off" being raised by someone else M.C., ¶ 80. Because the majority perpetuates the trial court's error in this regard, I respectfully dissent from its opinion.
I am authorized to state that JUSTICE COATS joins in this dissent.