People in Interest of A.E.
| Decision Date | 22 February 1996 |
| Docket Number | No. 94CA1901,94CA1901 |
| Citation | 914 P.2d 534 |
| Parties | The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of A.E., a Child, and Concerning R.H., Respondent-Appellant. . IV |
| Court | Colorado Court of Appeals |
Meconi & Jackson, Rocco F. Meconi, Larry R. Bowling, Canon City, for Petitioner-Appellee.
Nancy L. Myers, Guardian Ad Litem, Salida.
Ernest F. Marquez, Salida, for Respondent-Appellant.
Opinion by Judge TAUBMAN.
R.H. (mother) appeals from a trial court judgment terminating the parent-child legal relationship between her and her child, A.E. We reverse and remand with directions.
After mother had been hospitalized several times for psychotic episodes, including one during which she attempted suicide, A.E. was adjudicated dependent and neglected upon mother's admission that A.E.'s environment was injurious to his health. The trial court adopted a treatment plan that required mother to obtain suitable housing, undergo a drug and alcohol evaluation, participate in therapy, and visit the child on a regular basis.
Several months later, the trial court returned legal and physical custody of A.E. to mother after problems developed at A.E.'s foster placement. Mother then took A.E. to Florida. When mother was hospitalized in Florida for mental illness, legal and physical custody of A.E. was returned to the Fremont County Department of Social Services (department), and the child was placed in foster care in Colorado.
Mother returned to Colorado, but failed to comply with the requirements of the treatment plan, which included consistent participation in both family therapy and psychiatric and chemical dependency treatment. On two occasions, mother required hospitalization for psychotic episodes and apparently continued her substance abuse.
On May 20, 1994, just over five months before the termination hearing, the juvenile court entered a permanency planning hearing order in which it found that "there is some probability that the child will be returned to the physical custody of his parent within six months." That court order also indicated that the department's plan for placement of the child was for the child to be returned to the home of a parent within six months. This order followed a review hearing on May 5, 1994, at which time the juvenile court praised mother for the progress she was making as discussed in the report from the department.
Nonetheless, on June 3, 1994, the department filed a motion for termination of the parent-child legal relationship.
At a scheduling conference on July 28, 1994, mother's attorney requested a several month continuance for the termination hearing so he would have adequate time to demonstrate mother's compliance with the treatment plan. During that hearing, mother's attorney indicated various witnesses he intended to call at the termination hearing.
Further, during that hearing the juvenile court advised mother that: "You should be doing your very best in between now and the time of the trial or the hearing that we'll conduct on October 24, and the more things that you do right, the better off your attorney will be in terms of trying to convince the court that I should not terminate parental rights."
The People adverted to the filing of a motion for summary judgment in their pretrial disclosure certificate filed August 19, 1994, but, at the pretrial hearing three days later, no discussion of such motion occurred. Instead, the discussion focused on when mother's counsel would file his pretrial disclosure certificate.
It was not until October 7, 1994, less than three weeks before the scheduled termination hearing, that the People filed their motion for summary judgment, together with one supporting affidavit. The People subsequently submitted additional supporting affidavits on October 13 and October 18, 1994.
The mother filed a one-page response to the People's summary judgment motion on October 19, asserting that summary judgment should be denied for various reasons. Among these, she maintained that she had not admitted any of the statutory criteria required for termination, that she was not required to support any contentions of material facts because the department has the burden of proof, and that she had the right to confront and examine the individuals whose affidavits were submitted in support of the summary judgment motion. She also contended that the department had not established the absence of genuine issues of material fact. Mother did not attach any affidavits with her response to the motion.
Finally, three days before the scheduled hearing on the termination of parental rights, on October 21, 1994, the People filed a notice of hearing regarding their motion for summary judgment.
When the hearing occurred, it concerned only the People's motion for summary judgment. Although mother's trial counsel sought to have mother testify, the trial court refused to allow her to do so. Then, based on the People's affidavits and no contrary evidence, the juvenile court granted the People's motion and terminated mother's parental rights.
Mother contends that termination of parental rights by summary judgment violates her right to due process by precluding a parent's right to an evidentiary hearing. We disagree.
The Colorado Rules of Civil Procedure apply to those juvenile matters that are not governed by the Colorado Rules of Juvenile Procedure or the Children's Code. Because of that principle, summary judgment under C.R.C.P. 56 has been held to be permissible in the adjudicatory phase of a dependency and neglect action. People in Interest of S.B., 742 P.2d 935 (Colo.App.1987). However, whether summary judgment is an appropriate method for termination of the parent-child legal relationship is an issue of first impression in Colorado.
Courts of other states considering the issue are divided. Some have disallowed summary judgment in termination proceedings on procedural grounds. Curtis v. Curtis, 104 N.C.App. 625, 410 S.E.2d 917 (N.C.App.1991) (); In re Mark K., 159 Cal.App.3d 94, 205 Cal.Rptr. 393 (Cal.App.1984) (). Others have done so on constitutional grounds. In re Christina T., 590 P.2d 189 (Okla.1979) (); In re Interest of Philip W., 189 Wis.2d 432, 525 N.W.2d 384 (Wis.App.1994) ().
In contrast, however, a New Mexico court has held that summary judgment may be granted in termination proceedings because the rules of civil procedure apply to such proceedings. New Mexico ex rel. Children, Youth & Families Department In re T.C., 118 N.M. 352, 881 P.2d 712 (App.1994). Also, the Wyoming Supreme Court has held that summary judgment may be appropriate in the narrow range of parental rights termination cases in which all the historical facts are uncontroverted. However, the court further ruled that "where the petition is appropriately and diligently contested, summary judgment is seldom to be the answer for parental rights termination." In Interest of SVG, 826 P.2d 237, 244 (Wyo.1992).
As an initial matter, we must determine whether C.R.C.P. 56 regarding summary judgment is applicable in a termination of parental rights proceeding under the Children's Code. Following People in Interest of S.B., supra, we conclude that the Colorado Rules of Civil Procedure, including C.R.C.P. 56, are applicable to parental rights termination proceedings in dependency and neglect actions.
With respect to the applicable statutory scheme, we note that § 19-3-602(1), C.R.S. (1995 Cum.Supp.) provides that:
Termination of a parent-child legal relationship shall be considered only after the filing of a written motion alleging the factual grounds for termination, and termination of a parent-child legal relationship shall be considered at a separate hearing following an adjudication of a child as dependent or neglected.
Although the statute refers to "a separate hearing," it does not specify that the hearing be an evidentiary one. In People in Interest of S.B., supra, the majority rejected the argument that similar language in § 19-3-106(1), C.R.S. (1986 Repl.Vol. 8B) regarding an adjudicatory hearing required that there be an evidentiary hearing at that phase of a dependency and neglect action. But see People in Interest of S.B., supra (Babcock, J., dissenting). Accordingly, we similarly conclude that nothing in the language of § 19-3-602(1) precludes disposition of the action by summary judgment at the parental rights termination stage of a dependency and neglect action.
Thus, the dispositive issue becomes whether the use of the summary judgment procedure here violated mother's right to due process. We conclude that it does not.
Due process requires that a respondent in a termination proceeding be given both notice of the proceedings and an opportunity to be heard or defend and to have the assistance of legal counsel. Such due process rights are satisfied if the respondent has an opportunity to appear through counsel and is given an opportunity to present evidence and cross-examine witnesses through deposition or otherwise. People in Interest of V.M.R., 768 P.2d 1268 (Colo.App.1989).
However, because a proceeding for termination of the parent-child legal relationship is civil, neither due process nor other constitutional guarantees confer upon a respondent a right of confrontation or require the respondent's presence at the termination hearing. People in Interest of C.G., 885 P.2d 355 (Colo.App.1994).
In light of these principles, we perceive no per se due process bar to the use of summary judgment procedures in termination cases. However, summary judgment is a drastic remedy and should be granted only when...
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