K. A. J., In Interest of, 81CA0028
| Decision Date | 06 August 1981 |
| Docket Number | No. 81CA0028,81CA0028 |
| Citation | 635 P.2d 921 |
| Parties | The People of the State of Colorado, Petitioner-Appellant, In the Interest of K. A. J., A Child, And Concerning, M. J. and M. A. J., Respondents-Appellees. . II |
| Court | Colorado Court of Appeals |
Patrick R. Mahan, Jefferson County Atty., Gay B. Ummel, Asst. County Atty., Golden, for petitioner-appellant.
Fasing & Fasing, P. C., Timothy L. Fasing, Lakewood, for respondent-appellee M. J.
John L. Livingston, Lakewood, for respondent-appellee M. A. J.
The People appeal from the granting of a summary judgment in this dependent and neglected child proceeding. The basis of the trial court's order was that no genuine issue of fact remained to be determined. We reverse.
The issue presented to the court by the initial petition was whether the child had been subjected to an incestuous relationship with her father. Depositions submitted with the motion for summary judgment indicate that the child had made several detailed statements to other witnesses regarding the incestuous relationship and had provided considerable detail as to the manner and time of the incidents which allegedly took place over most of the child's lifetime. These statements were confirmed in an initial deposition taken from the child but were recanted in later depositions. The trial court rejected the statements on the ground that they were hearsay. We do not agree. Colorado Rules of Evidence 801(d)(1)(A) states:
The record before us indicates that the child would be available as a witness at the trial of the matter and would be subject to cross-examination. If her testimony would continue to be a denial of the incest, her prior statements would be admissible to create a fact dispute to be resolved by the trier of fact. Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). Therefore, summary judgment was not proper. See Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978); Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977).
The depositions presented here did contain evidentiary material which, if the affiant were in court and testifying on the witness stand, would be admissible. Therefore, the requirements of C.R.C.P. 56 were met....
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Rule 702 TESTIMONY BY EXPERTS
...denying defendant's request for a Shreck hearing. People v. Shanks, 2019 COA 160, ___ P.3d ___. Applied in People in Interest of K.A.J., 635 P.2d 921 (Colo. App. 1981); People v. Ortega, 672 P.2d 215 (Colo. App. 1983); People v. Jones, 743 P.2d 44 (Colo. App. 1987); People v. Williams, 761 ......
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Rule 801 DEFINITIONS
...her prior statements would be admissible to create a fact dispute to be resolved by the trier of fact. People in Interest of K.A.J., 635 P.2d 921 (Colo. App. 1981). Entire statement not admitted to rehabilitate testimony where only portion relevant. The trial court does not err in refusing ......
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Rule 803 HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL
...in Morrison v. Bradley, 622 P.2d 81 (Colo. App. 1980); Sims v. Indus. Comm'n, 627 P.2d 1107 (Colo. 1981); People in Interest of K.A.J., 635 P.2d 921 (Colo. App. 1981); Great W. Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331 (Colo. App. 1981); Scruggs v. Otteman, 640 P.2d 259 (Colo.......
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Rule 56 SUMMARY JUDGMENT AND RULINGS ON QUESTIONS OF LAW.
...Co., 628 P.2d 96 (Colo. 1981); DiChellis v. Peterson Chiropractic Clinic, 630 P.2d 103 (Colo. App. 1981); People in Interest of K.A.J., 635 P.2d 921 (Colo. App. 1981); In re George, 650 P.2d 1353 (Colo. App. 1982); Wheeler v. County of Eagle ex rel. County Comm'rs, 666 P.2d 559 (Colo. 1983)......