Peo in Interest of DRS

Opinion

25CA2257 Peo in Interest of DRS 07-23-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA2257 Arapahoe County District Court No. 24JV195 Honorable Bonnie McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of D.R.S., a Child,

and Concerning K.A.S. and C.B.,

Appellants.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE WELLING Schock and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 23, 2026

John Christofferson, Interim County Attorney, Tamra White, Assistant County Attorney, Aurora, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant K.A.S.

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins, Colorado, for Appellant C.B. ¶1 K.A.S. (mother) and C.B. (father) appeal the summary

judgment adjudicating D.R.S. (the child) dependent or neglected.

We reverse and remand to the juvenile court for further

proceedings.

I. Background

¶2 The Arapahoe County Department of Human Services filed a

petition in dependency or neglect concerning the then seven-month-

old child. The petition alleged that both parents were incarcerated

and that the child’s designated caregiver, L.R., was abusing alcohol,

was living in a dirty motel room, and exposed the child to domestic

violence.

¶3 The juvenile court held a hearing and granted temporary

custody to the Department. Both parents denied the allegations

and requested a jury trial. The juvenile court responded:

You want a jury trial? Okay. Mom is doing ten years in the department of corrections, and dad is doing eight years in the department of corrections. I was hoping to take this a little kindler [sic], gentler approach, but if we are going to . . . go to war, then let’s tee it up, and I would absolutely expect a motion for summary judgment.

1 ¶4 The Department then moved for summary judgment, asserting

that the child was dependent or neglected under section 19-3-

102(1)(c), C.R.S. 2025. The Department alleged that the parents

were unavailable to care for the child because they were

incarcerated and that L.R. had created an injurious environment

because he had been arrested and left the child without a caregiver.

The Department also argued that there had been “a judicial finding

that [the child] was in fact not left in the care of a safe individual”

and “[b]ecause of this judicial finding there [was] no genuine issue

of material fact regarding if mother left the child in the care of an

appropriate caregiver when she left the child with L.R.” The

Department attached several documents to its summary judgment

motion, including (1) a transcript of the temporary custody hearing;

(2) screenshots from the Colorado Department of Corrections (DOC)

offender search website; (3) screenshots of domestic violence

charges filed against L.R.’s ex-girlfriend; and (4) a verbal removal

order.

¶5 Both parents opposed summary judgment and filed, among

other attachments, an affidavit from L.R. The parents argued that

“genuine issues of material facts exist[ed]” that precluded the court

2 from granting summary judgment, because L.R. “remain[ed] an able

and willing caregiver for [the child].”

¶6 The juvenile court granted the motion for summary judgment,

adjudicated the child dependent or neglected, and vacated the

adjudicatory jury trial.

II. Summary Judgment

¶7 Both parents contend that the juvenile court erred by granting

summary judgment, alleging that the supporting evidence provided

by the Department was inadmissible and that genuine issues of

material fact remained. We agree.

A. Adjudication Criteria

¶8 As relevant here, a child is dependent or neglected if “[t]he

child’s environment is injurious to his or her welfare.” § 19-3-

102(1)(c). Although the statute doesn’t define “injurious

environment,” the Department must show that the child is “in a

situation that is likely harmful to that child.” People in Interest of

J.G. v. M.L., 2016 CO 39, ¶ 26. This situation generally must exist

as of the date of the adjudication. People in Interest of N.G., 2012

COA 131, ¶ 25. A child may also be adjudicated dependent or

neglected based on prospective harm — that is, when the child’s

3 environment will be injurious to the child’s welfare in the future.

People in Interest of S.N. v S.N., 2014 CO 64, ¶ 12. “[W]hen a child

has been removed from the child’s parents, the relevant

environment is the one the child is in — or would be in — while in

the custody of the parents.” People in Interest of C.M., 2024 COA

90, ¶ 27.

B. Summary Judgment Principles and Standard of Review

¶9 Although summary judgment is available in dependency and

neglect cases, it’s a drastic remedy and 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. S.N., ¶¶ 15, 18;

see C.R.C.P. 56(c).

¶ 10 The moving party may use pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits to meet this

burden. C.R.C.P. 56(c). While the form of the evidence supporting

a motion for summary judgment need not be admissible at trial, the

content or substance of the evidence must be admissible. S.N.,

¶ 16.

¶ 11 If the moving party doesn’t meet this burden, summary

judgment must be denied. People in Interest of M.M., 2017 COA

4 144, ¶ 13. But if the moving party meets its burden, the burden

shifts to the nonmoving party to demonstrate a controverted

material factual question. S.N., ¶ 16. A court must give the

nonmoving party all favorable inferences that can be drawn from

the undisputed facts. Id.

¶ 12 Generally, whether a child is dependent or neglected presents

a mixed question of fact and law because it requires the application

of statutory grounds to evidentiary facts. Id. at ¶ 21. But we review

de novo a juvenile court’s grant of summary judgment. M.M., ¶ 11.

C. Analysis

¶ 13 As an initial matter, we note that the parents conceded that

they wouldn’t be able to care for the child because of their

incarceration. But “incarceration of a parent cannot be the sole

basis for an adjudication . . . .” People in Interest of S.B., 742 P.2d

935, 939 (Colo. App. 1987).

¶ 14 With the parents’ incarceration in mind, we review the motion

for summary judgment de novo and conclude that the relevant

content and substance of the Department’s attachments aren’t

admissible. Thus, the Department didn’t meet its burden of

5 establishing that there is no genuine issue of material fact that the

child was in an injurious environment.

1. Hearsay

¶ 15 We agree with the parents that the caseworker’s testimony,

although admissible at a temporary custody hearing, contained

inadmissible hearsay for purposes of summary judgment.

¶ 16 Hearsay — a statement other than one made by the declarant

while testifying that is offered to prove the truth of the matter

asserted — is generally inadmissible. CRE 801(c); CRE 802. But

hearsay may be admitted under one of the recognized exceptions to

the hearsay rule. See CRE 803.

¶ 17 Affidavits based on inadmissible hearsay are insufficient to

support summary judgment. See People v. Hernandez & Assocs.,

Inc., 736 P.2d 1238, 1240 (Colo. App. 1986); see CRE 802. Unlike a

motion for summary judgment, at a temporary custody hearing, the

juvenile court may receive “[a]ny information having probative

value . . . regardless of its admissibility under the Colorado rules of

evidence.” § 19-3-403(3.6)(a)(II), C.R.S. 2025.

¶ 18 The Department attached a transcript of the temporary

custody hearing to the summary judgment motion in support of its

6 allegation that L.R. exposed the child to an injurious environment.

The caseworker testified that the Department received information

from two unidentified sources that

• L.R.’s hotel room had “an overwhelming smell of

urine . . ., blood on the bedsheets, individuals coming in

and out . . . who were possibly homeless,” and people

“using drugs called blues”;

• dogs in the hotel room had “scraped or scratched” the

child;

• the child had “rolled off” a bed;

• L.R. consumed “multiple bottles of alcohol” while caring

for the child; and

• L.R. was holding the child during a “domestic violence

incident.”

¶ 19 But the caseworker didn’t “observe any of these concerns

directly when [she] visited the hotel.” Thus, the caseworker’s

testimony failed to show that she had personal knowledge of the

relevant facts. See C.R.C.P. 56(e) (affidavits in support of a

summary judgment motion “shall be made on personal knowledge”).

The contents of the transcript are therefore hearsay, and we see no

7 basis to determine that the relevant testimony falls within any

exception to the hearsay rule.

2. Genuine Issues of Material Fact

¶ 20 The parents also demonstrated the existence of “disputed

material facts.” S.N., ¶ 16.

¶ 21 Regarding L.R.’s substance use, the caseworker testified that

L.R. admitted that he drank regularly, “up to three beers a night.”

But the caseworker only observed “a case of Coors alcohol glass

bottles,” and “did not see any open . . . bottles at that time on any

counters.” And when L.R. was placed on urinalysis (UA) testing,

only his first two tests were positive for alcohol. Thereafter he was

“able to abstain from alcohol completely and submitted seven clean

UAs.”

¶ 22 Regarding the domestic violence incident, the caseworker

testified that L.R. and his ex-girlfriend were both arrested because

of the incident. But L.R.’s charges were dismissed and, in his

affidavit, he denied committing any act of domestic violence. He

also denied that the child was present during the incident. L.R.

stated that he understood “the impact exposure to domestic

violence can have on a child,” so he ended his relationship with his

8 ex-girlfriend and had not lived with her since the incident.

Moreover, L.R. stated that he had arranged temporary care for the

child when he was arrested, but “that it was against [law

enforcement] policy to release [the child] to the care of anyone but

the Department of Human Services.” After L.R.’s release — less

than twenty-four hours after his arrest — he contacted the

Department and “expressed [his] desire to have [the child] returned

to [his] care.”

¶ 23 Finally, L.R. confirmed that his “current and future living

arrangements [were] appropriate for [the child],” that he was “willing

and able to have [the child] in [his] care and custody,” and that he

was “willing to work with the Arapahoe County Department of

Human Services ongoing to address and mitigate any concerns they

have.”

¶ 24 Viewing this evidence in the light most favorable to the

parents, as we must, we conclude that the Department failed to

establish the absence of a genuine issue of material fact regarding

whether the child was or would be exposed to an injurious

environment if returned to L.R. See Broomfield Senior Living Owner,

LLC v. R.G. Brinkmann Co., 2017 COA 31, ¶ 40 (“An issue of fact

9 may arise from the existence of conflicting permissible inferences

from evidence accepted as true.” (quoting Fin. Assocs., Ltd. v. G.E.

Johnson Constr. Co., 723 P.2d 135, 138 (Colo. 1986))); Raygor v. Bd.

of Cnty. Comm’rs, 21 P.3d 432, 435 (Colo. App. 2000) (“Where

evidence is susceptible of a contradictory, yet reasonable

interpretation, summary judgment is not appropriate.”).

¶ 25 Accordingly, we conclude that the juvenile court erred by

granting summary judgment based on an injurious environment

under section 19-3-102(1)(c) and by adjudicating the child

dependent or neglected.

III. Disposition

¶ 26 The judgment is reversed, and the case is remanded to the

juvenile court for further proceedings consistent with this opinion.

¶ 27 On remand, the juvenile court must also comply with the

provisions of the Indian Child Welfare Act and inquire of father

whether he knows or has reason to know that the child is an Indian

child. See § 19-1.2-107(2), C.R.S. 2025.

JUDGE SCHOCK and JUDGE LUM concur.