Peo in Interest of JMS

• Court: Colorado Court of Appeals
• Decided: March 27, 2025
• Docket: 24CA1485
• Status: Unpublished

Opinion

24CA1485 Peo in Interest of JMS 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1485 Mesa County District Court No. 24JV18 Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.M.S., J.N.S., and A.S., Children,

and Concerning B.S.,

Appellant.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE LUM Román, C.J., and Fox, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025

Todd M. Starr, County Attorney, Brad Junge, Assistant County Attorney, Grand Junction, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem, for J.M.S. and J.N.S.

Josie L. Burt, Counsel for Youth, Glenwood Springs, Colorado, for A.S.

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant ¶1 B.S. (father) appeals the summary judgment adjudicating

J.M.S. and J.N.S. (the children) dependent and neglected. We

affirm the summary judgment and remand for further proceedings

consistent with this opinion.

I. Background

¶2 In February 2024, law enforcement in Mesa County obtained

emergency protective custody of the children after their mother was

arrested. The Mesa County Department of Human Services

(Department) then filed a petition in dependency and neglect

alleging that it had received reports that, among other things,

mother was using illicit substances, the children were not attending

school, and one of the children had physically fought with mother

and run away from home. The petition also alleged that father was

incarcerated for life.

¶3 Father denied the allegations in the petition and asked for a

jury trial. The children remained in out-of-home placement for the

remainder of the proceedings at issue here.

¶4 Before trial, the Department moved for an adjudication by

summary judgment, arguing that the children were dependent and

neglected under section 19-3-102(1)(b) and (e), C.R.S. 2024. The

1 Department asserted that undisputed facts established that (1)

father had been convicted of multiple counts of sexual assault on a

child in Mesa County Case No. 21CR281; (2) as a result of his

convictions, father was incarcerated serving a life sentence; (3) his

estimated parole date was in July 2165; and (4) father was

restricted from having contact with any children, including his own,

under the age of eighteen. To establish these facts, the Department

submitted copies of two protection orders and the mittimus from

Case No. 21CR281, as well as a screenshot from the Colorado

Department of Corrections offender search website. The

Department also submitted an affidavit from a caseworker in which

the caseworker opined that the children would lack proper parental

care due to the protection orders and father’s incarceration. The

Department argued that, as a result of the undisputed facts, the

children should be adjudicated dependent and neglected as to

father under section 19-3-102(1)(b) and (e).

¶5 In response, father asserted that the motion was based solely

on his incarceration and that it was largely based on inadmissible

hearsay. Father did not file any affidavits or other evidence to

support his response.

2 ¶6 After considering the parties’ pleadings and arguments, the

court granted the Department’s motion, vacated the jury trial, and

adjudicated the children dependent and neglected under section

19-3-102(1)(e).

II. Summary Judgment

¶7 Father contends 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.

A. Adjudication Criteria and Standard of Review

¶8 A child is dependent and neglected, as is pertinent to this

case, if the child “lacks proper parental care through the actions or

omissions of the parent,” § 19-3-102(1)(b), or is “homeless, without

proper care, or not domiciled with his or her parent . . . through no

fault of such parent,” § 19-3-102(1)(e).

¶9 Although the issue of whether a child is dependent and

neglected presents a mixed question of fact and law (because it

requires application of evidentiary facts to the statutory grounds),

People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 21, we review the

3 juvenile court’s grant of summary judgment de novo, Robinson v.

Legro, 2014 CO 40, ¶ 10.

B. Summary Judgment Principles and Relevant Law

¶ 10 Summary judgment is a drastic remedy that is only

appropriate when the moving party establishes that there is no

genuine issue as to any material fact and it is entitled to judgment

as a matter of law. S.N., ¶¶ 14-15; see also C.R.C.P. 56(c). To show

that there is no genuine issue of material fact, such facts must be

undisputed. S.N., ¶ 21. A material fact is one that affects the

outcome of the case. Morley v. United Servs. Auto. Ass’n, 2019 COA

169, ¶ 14.

¶ 11 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). An affidavit supporting a motion for

summary judgment must be made on personal knowledge, set forth

admissible facts, and affirmatively establish that the affiant is

competent to testify to the matters in the affidavit. C.R.C.P. 56(e).

The affidavit must contain evidentiary material, which, if the affiant

were in court, would be admissible as part of the testimony. People

4 v. Hernandez & Assocs., Inc., 736 P.2d 1238, 1240 (Colo. App.

1986).

¶ 12 If the moving party does not meet its burden, summary

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

144, ¶ 13; see also USA Leasing, Inc. v. Montelongo, 25 P.3d 1277,

1279 (Colo. App. 2001) (where the plaintiff did not meet its

summary judgment burden, the “defendant was not required to

submit opposing evidentiary materials”). However, if the moving

party meets that burden, the burden then shifts to the nonmoving

party to “adequately demonstrate by relevant and specific facts that

a real controversy exists.” City of Aurora v. ACJ P’Ship, 209 P.3d

1076, 1082 (Colo. 2009).

¶ 13 We apply the same standard as the juvenile court in our

review. City of Fort Collins v. Colo. Oil & Gas Ass’n, 2016 CO 28,

¶ 9. We must determine whether a genuine issue of material fact

existed and whether the court correctly applied the law. Id.

¶ 14 We view the facts in the light most favorable to the nonmoving

party and resolve all doubt against the moving party. Weisbart v.

Agri Tech, Inc., 22 P.3d 954, 956 (Colo. App. 2001).

5 C. Analysis

1. Hearsay

¶ 15 Father contends the Department did not meet its initial

burden because the restraining orders, mittimus, screenshot, and

caseworker affidavit were inadmissible, largely as hearsay.

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

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Hearsay is not

admissible unless otherwise allowed by statute or rule. CRE 802.

a. Restraining Orders, Mittimus, and Screenshot of Offender Search Results

¶ 17 Father asserts the restraining orders, mittimus, and

screenshot of offender search results were inadmissible hearsay

that did not fall under any exception. But even if that were true,

the court could nevertheless take judicial notice of the restraining

orders and mittimus, as well as the information contained in the

prisoner locator database, under to CRE 201. See Harriman v.

Cabela’s Inc., 2016 COA 43, ¶ 64 (noting that a court may take

judicial notice of the contents of court records in a related

proceeding); People in Interest of T.M., 240 P.3d 542, 545 n.1 (Colo.

6 App. 2010) (taking judicial notice of a parent’s estimated parole

eligibility date “contained in the [prison system’s] inmate locator

database”). The Department therefore met its burden to

demonstrate that father was incarcerated, wouldn’t be eligible for

parole until long after the children turned eighteen, and was

prohibited from having any contact with children under the age of

eighteen. Because father didn’t set forth any evidence that called

these facts into question, the court didn’t err to the extent it treated

them as undisputed.

b. Caseworker Affidavit

¶ 18 However, we agree with father that the caseworker’s affidavit is

inadmissible for two reasons.

¶ 19 First, the caseworker’s opinion in the affidavit that the

children would lack proper care is inadmissible. The Department

didn’t disclose the caseworker as an expert, and the caseworker’s

affidavit didn’t describe her qualifications such that a court could

have qualified her as an expert. See K.H.R. v. R.L.S., 807 P.2d

1201, 1203 (Colo. App. 1990) (to satisfy the requirements of

C.R.C.P. 56(e), the expert’s affidavit must describe the affiant’s

qualifications as an expert). Without her qualifications, the

7 caseworker could not have testified as to her opinion that father’s

absence would cause the children to lack proper parental care.

¶ 20 Secondly, the remainder of the caseworker’s affidavit does not

affirmatively show that the caseworker had any personal knowledge

of the relevant facts contained in the affidavit. Affidavits in support

of a summary judgment motion “shall be made on personal

knowledge.” C.R.C.P. 56(e). The affidavit only detailed that (1) the

caseworker spoke to mother and received personal information that

mother had and (2) the caseworker “reviewed” the mittimus and

protection order from Case No. 21CR281. Thus, the remainder of

the affidavit was also inadmissible.

2. Genuine Issues of Material Fact

¶ 21 Even without the caseworker’s affidavit, however, we conclude

that the undisputed facts give rise to only one reasonable inference:

that the children lacked proper parental care. S.N., ¶ 18 (noting

that summary judgment is appropriate where “reasonable minds

could draw but one inference” from the undisputed facts (quoting

Gibbons v. Ludlow, 2013 CO 49, ¶¶ 13, 35)). As the juvenile court

noted, at the time of the children’s adjudication as to father, the

children were not receiving parental care from mother because they

8 had been removed from her care by law enforcement and remained

in out-of-home placement. And father could not provide proper

parental care because, even if he were not incarcerated, he was

restricted from having contact with any children under the age of

eighteen.1 Cf. People in Interest of S.B., 742 P.2d 935, 938-39 (Colo.

App. 1987) (affirming summary judgment adjudication where the

child lacked proper parental care and was not domiciled with a

parent because father was incarcerated for murdering mother).

Accordingly, we conclude that the juvenile court did not err by

granting the Department’s summary judgment motion.

III. ICWA

¶ 22 Father also asserts that the juvenile court did not comply with

the Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-

1963, because it (1) failed to make findings as to whether it had a

1 Father makes a single-sentence assertion that the district court

improperly based its adjudication solely on his incarceration. See People in Interest of D.M.F.D., 2021 COA 95, ¶ 24 (a parent’s criminal convictions could not support a determination that the child was dependent or neglected absent a link between the conviction and the factors in section 19-3-102, C.R.S. 2024). Father’s argument is undeveloped, but we nevertheless note that the juvenile court based its decision not only on father’s incarceration but also on his inability to have contact with the children due to the protection order.

9 reason to know the children were eligible for membership with an

Indian tribe; and (2) failed to order the Department to exercise due

diligence, as father had claimed affiliation with a specific federally

recognized tribe. Because we agree that the court did not make

adequate findings prior to or at the dispositional hearing, we

remand the case for compliance with ICWA. See People in Interest

of M.V., 2018 COA 163, ¶¶ 46-47, overruled on other grounds by

People in Interest of E.A.M. v. D.R.M., 2022 CO 42.

A. Law and Standard of Review

¶ 23 In dependency and neglect proceedings, ICWA applies to cases

involving Indian children. See People in Interest of K.C. v. K.C.,

2021 CO 33, ¶ 24; see also 25 U.S.C. § 1903(4) (defining “Indian

child” as “any unmarried person who is under age eighteen” and

who either (1) is “a member of an Indian tribe” or (2) “is eligible for

membership in an Indian tribe and is the biological child of a

member of an Indian tribe”). To ascertain whether the case involves

an Indian child, a juvenile court must inquire of the parties whether

they know or have reason to know that the child is an Indian child.

§ 19-1-126(1)(a)(I)(A), C.R.S. 2024.

10 B. Analysis

¶ 24 The record shows that the juvenile court made ICWA inquiries

and the Department made repeated attempts to gather information

about whether the children had Native heritage.

¶ 25 Father asserted potential Kiowa tribal affiliation. But he never

provided further information, even upon request, about his

potential Native heritage. However, at a minimum, the court had

information that “the child[ren] may have [Native] heritage,” and

therefore it was required to “direct the petitioning or filing party to

exercise due diligence in gathering additional information that

would assist the court in determining whether there is reason to

know that the child[ren] [are] Indian child[ren].” § 19-1-126(3); see

also H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 5.

¶ 26 Nothing indicates that the court ever directed the Department

to exercise due diligence. Nor did the court make a finding about

whether it had reason to know that the children were Indian

children. See H.J.B., ¶ 59 (concluding that, if section 19-1-126(3)

applies, “the juvenile court must determine (1) whether the

petitioning party satisfied its statutory due diligence requirements

11 and (2) whether the court now has reason to know that the child is

an Indian child”).

¶ 27 We must therefore remand the case to the juvenile court to

comply with the provisions of ICWA. See M.V., ¶¶ 90-91. On

remand, the court must inquire of father whether he knows or has

reason to know that the children are Indian children. See § 19-1-

126(1)(a)(I)(A). If father still asserts that the children have Kiowa

heritage but are not members or eligible for membership in a tribe,

the court should direct the Department to exercise due diligence

under section 19-1-126(3). However, if after making the proper

inquiries the court has reason to know that the children are Indian

children, it must direct the Department to send notices to the

applicable tribes and treat the children as Indian children unless

and until it determines that the children do not meet the definition

of Indian children. See § 19-1-126(1)(b), (2). Once the court

resolves these questions, it must make factual findings regarding

whether ICWA applies.

IV. Disposition

¶ 28 The judgment is affirmed, and the case is remanded for

further proceedings consistent with this opinion.

12 CHIEF JUDGE ROMÁN and JUDGE FOX concur.