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People ex rel. M.M.

Court of Appeals of Colorado, Sixth Division

November 16, 2017

The People of the State of Colorado, Petitioner-Appellee, In the Interest of M.M. and P.M. III, Children, and Concerning P.M., Jr., Respondent-Appellant.

         Fremont County District Court No. 16JV173 Honorable Ramsey L. Lama, Judge

          Daniel B. Slater, Cañon City, Colorado, for Petitioner-Appellee.

          Jenna L. Mazzucca, Guardian Ad Litem The Gasper Law Group, PLLC, Kenneth H. Gray, Colorado Springs, Colorado, for Respondent-Appellant.

          OPINION

          HARRIS JUDGE

         ¶ 1 P.M., Jr. (father) appeals the trial court's summary judgment order adjudicating his children dependent and neglected. Because we conclude that father did not dispute that the children were in an injurious environment and were without proper parental care through no fault of a parent, we affirm the summary judgment in part. However, we reverse the portion of the summary judgment order that adjudicates the children dependent and neglected on other statutory grounds.

         I. The Trial Court Proceeding

         ¶ 2 The Fremont County Department of Human Services (the Department) filed a dependency and neglect petition after completing a preliminary investigation as part of a domestic relations proceeding between father and K.B. (mother). The Department alleged that five-month-old M.M. and four-year-old P.M. III (the children) lacked proper parental care through a parent's acts or omissions, the children were without proper care through no fault of a parent, and the children's environment was injurious to their welfare.

         ¶ 3 The magistrate granted custody of the children to the Department. But he left the children in both parents' care with the provision that P.M. III would spend equal time with each parent and M.M. would stay with mother while having daily visits with father. ¶ 4 Mother admitted that the children were dependent and neglected. Father, however, denied the allegations in the petition and requested an adjudicatory trial before a jury. ¶ 5 The Department then moved to adjudicate the children dependent and neglected by summary judgment. It identified undisputed facts, including the following:

• father used marijuana around the children;
• a pipe that tested positive for opiates was found in one of the children's clothing after a visit at father's home;
• father recently pleaded guilty to violating a permanent protection order (which was issued based on allegations of domestic violence by father) by threatening mother;
• according to father, both children were in danger when in mother's care;
• according to father, mother abused the children emotionally and psychologically;
• according to father, mother used M.M.'s illnesses as a means of control and alienation;
• according to father, the children needed protection from mother; and
• according to father, mother was unfit.

         ¶ 6 Father's response to the motion included an affidavit in which he disputed the allegations concerning his drug use, domestic violence, and the violation of the protection order. He did not dispute his earlier statements about mother.

         ¶ 7 Father asserted that there were genuine issues of material fact and the Department was not entitled to summary judgment based on mother's admission or the ...


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