Peo in Interest of AG

• Court: Colorado Court of Appeals
• Decided: March 6, 2025
• Docket: 24CA0998
• Status: Unpublished

Opinion

24CA0998 Peo in Interest of AG 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0998 El Paso County District Court No. 23JV30837 Honorable Diana K. May, Judge Honorable Jayne Candea-Ramsey, Magistrate

The People of the State of Colorado,

Appellee,

In the Interest of A.G., a Child,

and Concerning I.G. and J.T.,

Appellants.

JUDGMENTS REVERSED

Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025

Kenneth Hodges, County Attorney, Melanie E. Gavisk, Assistant County Attorney, Colorado Springs, Colorado, for Appellee

Jennifer Darby, Guardian Ad Litem

James West, Office of Respondent Parents’ Counsel, Longmont, Colorado, for Appellant I.G.

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant J.T. ¶1 In this dependency and neglect proceeding, J.T. (mother) and

I.G. (father) appeal the summary judgments adjudicating A.G.

(child) dependent and neglected. We reverse.

I. Background

¶2 The El Paso County Department of Human Services

(Department) filed a petition in dependency and neglect, alleging, as

relevant here, that mother and father were using illegal substances

in front of the child. Father requested an adjudicatory jury trial,

which the court set for both parents.

¶3 The Department moved to adjudicate the child by summary

judgment. Father responded to the motion; mother did not. The

juvenile court granted summary judgment against both parents and

adjudicated the child dependent and neglected. The court

adjudicated the child as to mother under section 19-3-102(1)(a)-(d),

C.R.S. 2024, and later as to father under section 19-3-102(1)(c).

¶4 Both parents now appeal.

II. Applicable Law and Standard of Review

¶5 To establish that a child is dependent and neglected, the

government must establish one or more of the grounds for

adjudication in section 19-3-102 by proving the facts alleged in the

1 petition by a preponderance of the evidence. See § 19-3-505(1),

C.R.S. 2024. As relevant here, a child is dependent or neglected if

the child’s environment is injurious to her welfare. § 19-3-102(1)(c).

¶6 An adjudication by summary judgment under C.R.C.P. 56 is

permissible in dependency and neglect proceedings. People in

Interest of S.B., 742 P.2d 935, 938-39 (Colo. App. 1987). Summary

judgment is a drastic remedy that is only appropriate when there is

no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. People in Interest of M.M.,

2017 COA 144, ¶ 12 (citing People in Interest of S.N. v. S.N., 2014

CO 64, ¶¶ 14-15).

¶7 The moving party bears the burden of establishing that there

is no disputed material fact. Id. at ¶ 13. A material fact is one that

will affect the outcome of the case. Id. To meet this burden, the

moving party can use pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits. S.N., ¶ 16. If the

moving party fails to meet this burden, summary judgment must be

denied. M.M., ¶ 13.

¶8 But if the moving party meets its burden, the burden shifts to

the nonmoving party to demonstrate the existence of a triable issue

2 of fact. Id. at ¶ 14. And even when the material facts are

undisputed, summary judgment is only appropriate when

reasonable minds could draw but one inference from them. Id. at ¶

15. In making this determination, we must view the facts in the

light most favorable to the nonmoving party. Id.

¶9 We review the court’s grant of summary judgment de novo. Id.

at ¶ 11.

III. Father’s Appeal

¶ 10 Father argues the court erred by concluding that the

Department met its burden on summary judgment and finding that

exposure to drugs was a “per se” injurious environment. We agree.1

¶ 11 Although “injurious environment” is not statutorily defined,

the Department must show that the child is “in a situation that is

likely harmful to that child.” People in Interest of C.M., 2024 COA

1 We reject the Department’s preservation challenge and claim of

invited error. Father argued in his response to the motion for summary judgment that the child’s positive drug test was not dispositive of whether that exposure occurred in the child’s home. And father expressly denied that it did. The juvenile court initially recognized that the Department bore the burden of proving that the drug exposure occurred in father’s care. That it later granted summary judgment finding that the fact of exposure itself was sufficient to adjudicate as to father does not limit our de novo review of whether the Department met its initial burden.

3 90, ¶ 19 (quoting People in Interest of J.G., 2016 CO 39, ¶ 26). This

situation generally must exist as of the date of the adjudication. Id.

¶ 12 However, a child may be adjudicated based on prospective

harm. Id. When, as here, a child has been removed from the

parents, “the relevant inquiry is whether the child’s environment

would be injurious to the child’s welfare if the child were returned

to the parents, which will generally be based on evidence that the

child was in an injurious environment while in the parent’s care.”

Id. at ¶ 29 (citing People in Interest of S.X.M., 271 P.3d 1124, 1130

(Colo. App. 2011)).

¶ 13 Here, the Department alleged in its summary judgment motion

that “illegal narcotics were being ingested in the presence of the

[child].” The Department attached to its motion: (1) father’s

answers to its requests for admissions (RFAs); (2) the child’s

positive hair follicle test results; and (3) an affidavit from the drug

testing agency’s custodian of records. Both the child’s test results

and father’s admissions establish that the child’s hair follicle test

taken the day the Department filed the petition was positive for

methamphetamine and fentanyl. The Department thus argued that

4 the child was in an injurious environment as a matter of law as to

father.

¶ 14 However, in his answers to the RFAs, father expressly denied

using narcotics. And regardless, the Department never offered any

evidence, through affidavit or otherwise, that would support its

allegation (seemingly based on statements by the child) that “illegal

narcotics were being ingested in the presence of the [child].”

¶ 15 Thus, the only undisputed facts the Department established

were that the child had, at some point, been exposed to

methamphetamine and fentanyl. The Department presented no

evidence of where or how the drug exposure occurred. While the

Department claims on appeal that the child was in her parents’ care

for “essentially the entire period preceding the positive test,” and

her hair follicle test was taken “almost immediately” after her

removal, its summary judgment motion was not accompanied by

any evidence that would support either conclusion. In essence, the

Department presented no evidence that connected the child’s drug

exposure to her environment when she was in the care of her

parents.

5 ¶ 16 The child’s drug exposure at some point prior to or on the day

the petition was filed — without more — does not establish that her

environment would be injurious to her welfare if she were returned

to her parents. See C.M., ¶¶ 22-25, 37-38 (child’s

methamphetamine exposure alone, where there was no evidence of

where exposure occurred and child was in foster care for more than

half of the exposure period, does not show an injurious

environment as a matter of law); see also M.M., ¶ 15 (the nonmoving

party is entitled to the benefit of all favorable inferences reasonably

drawn from the undisputed facts). Consequently, the Department

failed to meet its initial burden, and the juvenile court erred by

granting summary judgment. See M.M., ¶ 13.

¶ 17 For the same reasons as detailed above, the court erred by

finding that the child’s fentanyl exposure established that she was

in a “per se” injurious environment. See C.M., ¶¶ 37-38.

¶ 18 Accordingly, we reverse the judgment adjudicating the child

dependent and neglected as to father.

6 IV. Mother’s Appeal

¶ 19 Mother also argues that the juvenile court erred by concluding

that the Department met its burden on summary judgment. We

agree.

A. Preservation

¶ 20 The Department contends that mother failed to preserve this

issue for review because she did not respond to the motion or object

to summary judgment. Indeed, the record shows that mother

lodged no opposition or objection to summary judgment. However,

we review summary judgment, including whether the Department

met its initial burden, de novo. See Part II.B. Mother’s lack of

response to its motion did not relieve the Department of the

obligation to meet this initial burden. USA Leasing, Inc. v.

Montelongo, 25 P.3d 1277, 1278 (Colo. App. 2001); see C.R.C.P.

56(e). Therefore, regardless of mother’s lack of response, we review

whether the Department met its initial burden.

B. Analysis

¶ 21 In its motion for summary judgment, the Department argued

that by failing to respond to its RFAs, mother admitted to the

petition and thus admitted the child was dependent and neglected

7 under section 19-3-102(1)(a)-(d). See Sanchez v. Moosburger, 187

P.3d 1185, 1187 (Colo. App. 2008) (a failure to respond to a request

for admission is a deemed admission under C.R.C.P. 36, which may

be used to support a summary judgment motion). While it is

undisputed on appeal that mother did not respond to the RFAs, the

Department did not attach the RFAs it sent her to its motion. Nor

do those RFAs appear in the appellate record. See S.N., ¶ 16 (to

meet its burden, the moving party may use admissions on file).

Because the RFAs sent to mother appear nowhere in the appellate

record, we cannot conclude that the Department established that

mother admitted the child was dependent or neglected under

section 19-3-102(1)(a)-(d).

¶ 22 We disagree with the Department that a summary judgment

adjudicating the child under section 19-3-102(1)(c) was nonetheless

proper as to mother based on the hair follicle test results. As

discussed in Part II.B.2, the Department only established as

undisputed fact the child’s methamphetamine and fentanyl

exposure as of the date the Department filed the petition, which

alone is insufficient to establish that the child’s environment would

be injurious if she were returned to her parents. See C.M., ¶¶ 22-

8 25, 37-38. Therefore, the Department failed to sustain its initial

burden on summary judgment as to mother.

¶ 23 Accordingly, the juvenile court erred by granting summary

judgment against mother and adjudicating the child dependent and

neglected, and we reverse its judgment. See M.M., ¶ 13.

V. Disposition

¶ 24 The judgments adjudicating the child dependent and neglected

are reversed.

JUDGE HARRIS and JUDGE GROVE concur.