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People ex rel. S.N.

Court of Appeals of Colorado, Fifth Division

September 11, 2014

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

Boulder County District Court No. 12JV85. Honorable Roxanne Bailin, Judge.

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 Graham and Miller, JJ., concur. JUDGE GRAHAM and JUDGE MILLER concur.


Page 509


[¶1] In this prospective harm case, the trial court adjudicated the parents' child, S.N., dependent and neglected by summary judgment. The case is before us again following a remand from our supreme court, which directed us to determine whether the " underlying material facts are undisputed" and, if they are, " apply the [dependency and neglect] statute to the facts and determine whether reasonable minds can draw differing inferences." People in Interest of S.N., 329 P.3d 276, 2014 CO 64, ¶ ¶ 1, 24, 26 ( S.N. II ). We conclude that some of the underlying material facts are disputed, that some are undisputed, and that reasonable minds could draw differing inferences from those facts that are undisputed. We thus reverse the trial court's summary judgment and remand for an adjudicatory trial.

I. The Adjudication of S.N. by Summary Judgment

[¶2] The Boulder County Department of Human Services (Department) removed S.N. from her parents' custody at birth because a hearing on termination of parental rights involving the parents' three older children was pending. (The trial court had adjudicated the parents' older children dependent and neglected by summary judgment.)

[¶3] 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. Six days after S.N.'s birth, the trial court terminated the parents' rights to the three older children, also by summary judgment.

[¶4] At the first appearance hearing, the parents denied the allegations in the petition and requested a jury trial. See § 19-3-202(1), C.R.S. 2013

Page 510

(" At the first appearance of a respondent parent, . . . the court shall fully advise such party of his [or her] legal rights, including the right to a jury trial . . . ." ).

[¶5] But, the Department filed a motion for summary judgment, alleging there was 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. Because S.N. had never been in the parents' care, the motion was based entirely on a theory of prospective harm.

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

[¶7] The trial court entered summary judgment, in favor of the Department and against the parents, and adjudicated S.N. dependent and neglected. 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.

II. The Question of Prospective Harm to S.N.

[¶8] The parents appealed. In People in Interest of S.N., 2013 COA 157, ¶ ¶ 14-15 ( S.N. I ), we first considered whether summary judgment was ever appropriate in a dependency and neglect adjudication when a parent denies the allegations in a petition and requests a jury trial. We noted that " the right to a jury trial" in section 19-3-202 provides respondent parents with what appeared to be an unqualified statutory right afforded by the legislature, id. at ¶ 14, and that judges on our court were divided over this issue, id. at ¶ 15. But, instead of answering this more fundamental question, we reversed " on a narrower basis -- using standards applicable to summary judgment." Id. at ¶ 16. Our holding was " premised on the trial court's prior summary judgment terminating the parents' relationships with their three older children." Id. at ¶ 1. We determined that the risk of prospective harm is a factual question and that " the parents' conduct and care of their other children" are probative, but not conclusive, of " how they might treat S.N. in the future." Id. at ¶ 32. We thus concluded that " the question of prospective harm is inappropriate for summary judgment" because prior conduct alone can never be sufficiently predictive of future conduct to take the question from a trier of fact by summary judgment. Id. at ¶ 33.

[¶9] The supreme court disagreed with our analysis. It concluded that our " holding that prospective harm is purely a factual question is incorrect." S.N. II, ¶ ...

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