People ex rel. S.N.

• Decision Date: 21 November 2013
• Docket Number: Court of Appeals No. 12CA2078
• Citation: 410 P.3d 500
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF S.N., a Child, and Concerning S.N., a/k/a S.S., and M.A.S., Respondent–Appellants.
• Court: Colorado Court of Appeals

410 P.3d 500

The PEOPLE of the State of Colorado, Petitioner–Appellee,

IN the INTEREST OF S.N., a Child,

and

Concerning S.N., a/k/a S.S., and M.A.S., Respondent–Appellants.

Court of Appeals No. 12CA2078

Colorado Court of Appeals, Div. V.

Announced November 21, 2013

Ben Pearlman, County Attorney, Toni Gray, Assistant County Attorney, Jeanne Judge, Assistant County Attorney, Boulder, Colorado, for Petitioner–Appellee.

Sharon M. Plettner, Guardian Ad Litem.

Law Office of Poland & Wheeler, P.C., Scott Poland, Andrew Poland, Lakewood, Colorado, for Respondent–Appellant S.N.

Robert Lubowitz, Denver, Colorado, for Respondent–Appellant M.A.S.

Opinion by JUDGE FURMAN

¶ 1 Mother and father appeal the summary judgment adjudicating their newborn child, S.N., dependent and neglected. The summary judgment was based on a theory of prospective harm—that there was a risk that the parents would harm S.N. in the future—premised on the trial court's prior summary judgment terminating the parents' relationships with their three older children. The central issue on appeal is whether prospective harm is a factual question that precludes summary judgment. We conclude that it is. We thus reverse the trial court's summary judgment and remand for an adjudicatory jury trial.

I. The Petition in Dependency and Neglect

¶ 2 The Boulder County Department of Human Services (Department) removed S.N. from her parents at birth because a hearing on termination of parental rights involving their three older children was pending. The Department then petitioned the trial court to adjudicate S.N. dependent and neglected, alleging that there was a risk of prospective harm to S.N. if she were placed into the parents' care.

¶ 3 The parents denied the allegations in the petition and requested a jury trial. But, the Department sought summary judgment, alleging in the motion a risk that the parents would not properly care for S.N. in the future because they had ongoing mental health issues, lived in an environment that would be injurious to S.N., and had mistreated their older children, as proven in the prior termination. The prior termination, and the adjudication that preceded it, had also been resolved by summary judgment.

¶ 4 In their responses, the parents denied these allegations and renewed their request for a jury trial.

¶ 5 The trial court agreed with the Department and adjudicated S.N. dependent and neglected by summary judgment. The court found as follows:

Regardless of whether the Court's conclusion to terminate parental rights to the other three children was correct, the Court's factual and legal findings regarding their care in the previous [termination] order are incorporated into this order regarding both parents' failure to comply with the treatment plan, both parents' continual exhibition of the same problems addressed in the treatment plan and that have existed since the beginning of the case, their unfitness as parents, and the unlikeliness that they will become fit within a reasonable period of time.

¶ 6 On appeal, the parents contend that prospective harm is a factual question that precludes summary judgment. To adequately address this issue, we directed the parties to provide supplemental briefing. See C.A.R. 3.4(j)(2) ("After reviewing the petition on appeal, any response, and the record, the Court of Appeals may ... set the case for supplemental briefing on issues raised by the parties....").

¶ 7 We initially address a procedural issue, collateral estoppel, that the Department raised in its supplemental brief. We then address the summary judgment issue.

II. Collateral Estoppel

¶ 8 The Department contends that the parents are collaterally estopped from litigating whether S.N. was dependent and neglected based on the findings and order that terminated the parents' rights to their three older children. We conclude that collateral estoppel is inapplicable because the issues in S.N.'s and the other siblings' cases are not identical. See S.O.V. v. People in Interest of M.C., 914 P.2d 355, 359–60 (Colo.1996) (collateral estoppel, or issue preclusion, bars relitigation of an issue only if, among other things, the issue is identical to an issue actually adjudicated in a prior proceeding). The prior termination order did not involve S.N., the newborn child. See People in Interest of S.B., 742 P.2d 935, 939 (Colo.App.1987) ("[A]djudications of dependency or neglect are not made as to the parents but, rather, relate only to the status of the child as of the date of the adjudication.").

¶ 9 We now turn to the issue of the trial court's summary judgment.

III. Summary Judgment

¶ 10 The explanations and arguments of the parties—both before the trial court and on appeal—demonstrate significant confusion about the procedures surrounding the jury trial right at the adjudicatory hearing and the capacity of summary judgment to preclude that right. To address this issue, we first discuss the procedural framework for adjudicatory hearings in the Children's Code, the standards applicable to summary judgment, and, finally, the Department's allegation that S.N. would be prospectively harmed by the parents if she were to be placed in their care.

A. Adjudicatory Hearings

¶ 11 The procedural framework for adjudicatory hearings is contained in the Children's Code. As our supreme court has recognized, "[t]he overriding purpose of the Children's Code is to protect the welfare and safety of children in Colorado by providing procedures through which their best interests can be ascertained and served. Article three, title 19, is the statutory framework for dependency and neglect proceedings." A.M. v. A.C., 2013 CO 16, ¶ 10, 296 P.3d 1026 (citation omitted).

¶ 12 Within this framework, parents are afforded an adjudicatory hearing. §§ 19–1–103(3), 19–3–202(2); 19–3–505(1), C.R.S.2013. At this hearing, a fact finder determines whether a child is dependent and neglected. See A.M., ¶ 12. It is only after finding the child dependent or neglected that the state may intrude into the familial relationship. Id. ; People in Interest of N.G., 2012 COA 131, ¶¶ 18–21, 303 P.3d 1207 ; People in Interest of A.M., 786 P.2d 476, 479 (Colo.App.1989). That is because, under Troxel v. Granville, 530 U.S. 57, 65, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), "there is a presumption that fit parents act in the best interests of their children" (the Troxel presumption). The Troxel presumption is tied to a parent's liberty interest, which "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State"; and the presumption continues until a proper and final adjudicatory order has been entered. People in Interest of A.M.D., 648 P.2d 625, 632 (Colo.1982) (internal quotation marks omitted); N.G., ¶¶ 30–31.

¶ 13 In other words, to overcome a parent's fundamental right and defeat the Troxel presumption, the state must follow certain procedures, unique to the Children's Code, that are based on due process standards. See L.L. v. People, 10 P.3d 1271, 1275–76 (Colo.2000). The right to have a jury determine whether the factual averments in a petition are proved is one of these unique procedures. Compare § 19–3–202(2) ("[T]he petitioner, any respondent, or the guardian ad litem may demand a trial by jury of six persons at the adjudicatory hearing."), and L.L., 10 P.3d at 1275, and A.M., ¶ 12 ("The court must notify and advise the parents in open court that, as respondents to the petition, they are entitled to certain rights ... [including] their right to request trial by jury or by the court.") (citations omitted), with Motz v. Jammaron, 676 P.2d 1211, 1213 (Colo.App.1983) ("In Colorado a litigant is not entitled to a jury trial in a civil action as a matter of right. The right to a jury trial in civil cases exists only when set forth by statute or rule of court.") (citations omitted).

¶ 14 Despite this apparently unrestricted jury trial right at the adjudicatory hearing, divisions of this court have affirmed orders adjudicating children dependent and neglected through summary judgment. See, e.g., People in Interest of C.T., 746 P.2d 56, 58 (Colo.App.1987) (affirming an order adjudicating a child dependent and neglected through summary judgment where the father was serving a lengthy prison sentence after being convicted of kidnapping and first degree murder); S.B., 742 P.2d at 938–39 (affirming an order adjudicating a child dependent and neglected through summary judgment where the father was being held without bond for the murder of the child's mother).

¶ 15 Yet, certain judges on this court have disagreed that summary judgment is ever appropriate in dependency and neglect cases. See S.B., 742 P.2d at 941 (Babcock, J., dissenting) ("My reading of the applicable provisions of the Children's Code leads me to conclude that summary judgment is not applicable to a proceeding in dependency or neglect."); see also People in Interest of A.E., 914 P.2d 534, 540 (Colo.App.1996) (Ney, J., specially concurring) ("I write separately because I believe that summary judgment procedures are not appropriate in a termination proceeding under the Children's Code.").

¶ 16 But, instead of resolving the broader disagreement about the propriety of summary judgment, we decide this case on a narrower basis—using standards applicable to summary judgment.

B. Standards Applicable to Summary Judgment

¶ 17 C.R.C.P. 56(c) allows a court to grant a motion for summary judgment before trial "when the pleadings and supporting documents establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Gibbons v. Ludlow, 2013 CO 49, ¶ 11, 304 P.3d 239.

¶ 18 Because summary judgment "denies litigants their right to [a] trial," it is a "drastic remedy" and is "never warranted except on a clear showing that there is no genuine issue as to any material fact." Ginter v. Palmer & Co., 196 Colo. 203, 205, 585 P.2d 583, 584 (1978) ; ...