Peo in Interest of ZJJ

• Court: Colorado Court of Appeals
• Decided: January 9, 2025
• Docket: 24CA0815
• Status: Unpublished

Opinion

24CA0815 Peo in Interest of ZJJ 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0815 Gunnison County District Court No. 23JV30000 Honorable J. Steven Patrick, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Z.J.J., a Child,

and Concerning D.R.S. and B.L.J.,

Appellants.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE YUN Harris and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 9, 2025

Matthew R. Hoyt, County Attorney, Alex San Filippo-Rosser, Deputy County Attorney, Gunnison, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem

Michael Kovaka, Littleton, Colorado, for Appellant D.R.S.

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant B.L.J. ¶1 D.R.S. (father) and B.L.J. (mother) appeal the judgment

terminating their parent-child legal relationships with Z.J.J. (the

child) by summary judgment. We reverse and remand to the

juvenile court for further proceedings.

I. Background

¶2 In January 2023, the Gunnison County Department of Human

Services (Department) filed a petition in dependency and neglect,

alleging, among other things, that mother used substances during

her pregnancy and the child was born affected by substance

exposure. The parents admitted to the allegations in the petition,

and the juvenile court adjudicated the child dependent and

neglected. The court then adopted treatment plans for the parents.

¶3 In March 2024, the Department moved to terminate the

parents’ parental rights by summary judgment. The juvenile court

granted the motions — one for each parent — and terminated the

parent-child legal relationships between the parents and the child.

II. Discussion

¶4 The parents assert that the juvenile court erred by granting

summary judgment. We agree.

1 A. Standard of Review and Legal Principles

¶5 We review an order granting summary judgment de novo.

Robinson v. Legro, 2014 CO 40, ¶ 10; see also Hamon Contractors,

Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 290 (Colo. App. 2009)

(appellate courts apply the same principles that guided the juvenile

court’s determination).

¶6 Summary judgment is a drastic remedy that is appropriate

only 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. People in Interest of S.N. v. S.N., 2014 CO 64,

¶¶ 14-15; C.R.C.P. 56(c). To show that there is no genuine issue of

material fact, the evidentiary facts — the raw, historical data

underlying the controversy — 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.

¶7 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

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

App. 1986). Affidavits based on inadmissible hearsay, or containing

mere conclusions, are insufficient to demonstrate the absence of a

genuine issue of material fact. Id.; see also S. Cross Ranches,

LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 15.

¶8 In assessing a summary judgment motion seeking to terminate

parental rights, the juvenile court must find not only that there are

no genuine issues of material fact, but also that the moving party —

in this case the Department — established the applicable statutory

criteria for termination by clear and convincing evidence. People in

Interest of T.M., 240 P.3d 542, 544 (Colo. App. 2010). Clear and

convincing evidence is proof that persuades the trier of fact that the

truth of the contention is highly probable and free from serious or

substantial doubt. People in Interest of G.R.N.M., 228 P.3d 976, 978

(Colo. App. 2010). This required standard of proof “significantly

limits the cases in which summary judgment [is] appropriate” in

3 termination proceedings. People in Interest of A.E., 914 P.2d 534,

538-39 (Colo. App. 1996).

¶9 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”). To make our

determination, 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); see

also O’Herron v. State Farm Mut. Auto. Ins. Co., 397 P.2d 227, 231

(Colo. 1964) (“If any doubt resides in the mind of the court after a

consideration of the motion, its resolution must be against the

motion.”); D.R. Horton, Inc.-Denver v. D & S Landscaping, LLC,

215 P.3d 1163, 1166 (Colo. App. 2008) (“[S]ummary judgment is

appropriate only in the clearest of cases, where there is no doubt

concerning the facts.”).

4 B. Termination of Parental Rights

¶ 10 The Department moved to terminate the parents’ parental

rights under section 19-3-604(1)(c), C.R.S. 2024. To terminate

parental rights under that section, the Department must establish,

by clear and convincing evidence, that (1) the parent has not

complied with an appropriate, court-approved treatment plan or the

plan has not been successful; (2) the parent is unfit; and (3) the

parent’s conduct or condition is unlikely to change in a reasonable

time.

¶ 11 The parents’ treatment plans required, among other things,

that they demonstrate a lifestyle free from all substance and alcohol

use, develop parenting skills by participating in family time, and

refrain from further criminal activity. The Department alleged in its

motions for summary judgment that the parents had not complied

with their treatment plans because they failed to consistently attend

family time with the child, did not adequately participate in

monitored sobriety, and received new criminal charges and

convictions during the case. In support of its motions for summary

judgment, the Department attached (1) affidavits from the ongoing

caseworker; (2) affidavits from the court appointed special advocate

5 (CASA); and (3) several documents detailing the parents’ criminal

histories.

¶ 12 The parents assert that the Department did not meet its initial

burden because the attachments were insufficient to support

summary judgment. Specifically, they contend that the

caseworker’s affidavits included inadmissible hearsay statements

involving whether they attended family time or engaged in

monitored sobriety. As a result, they maintain that the Department

did not prove the statutory criteria for termination in section

19-604(1)(c) by clear and convincing evidence. For the reasons

outlined below, we agree with the parents.

¶ 13 First, the Department maintains that the hearsay statements

were admissible to support the caseworker’s expert opinion. To be

sure, the Department disclosed the caseworker as an expert in

“child welfare social work,” and the caseworker’s affidavit described

his qualifications from which a court could have qualified him 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). However,

we agree with the parents that, although an expert witness can rely

6 on otherwise inadmissible hearsay in forming an opinion and a

court can admit the inadmissible statements for that limited

purpose, the underlying hearsay statements cannot be considered

for the truth of the matter asserted. See CRE 703; People in Interest

of D.M.F.D., 2021 COA 95, ¶ 11 (a court may not base its decision

on evidence admitted for a limited purpose).

¶ 14 Second, we disagree with the Department that the hearsay

statements about family time and monitored sobriety could be

considered under the hearsay exceptions in CRE 803(6) (business

records); CRE 803(7) (absence of entry in a business record); and

CRE 803(8) (public records) because the caseworker’s affidavit did

not set out the requisite foundation to admit the hearsay

statements under one of these exceptions. See People v. Dorsey,

2021 COA 126, ¶ 31 (noting that the proponent of the hearsay

evidence must establish the foundation for the exception), aff’d on

other grounds, 2023 CO 51. And the Department did not submit

any records from the family time or monitored sobriety service

providers. See People v. Vigil, 2024 COA 72, ¶ 33 (“Testimony about

the contents of a public or business record is admissible only when

7 the record itself is introduced; otherwise, the witness’s testimony is

inadmissible hearsay.”).

¶ 15 Third, the Department asserts that the hearsay statements

were admissible because they were admissions by a party opponent.

CRE 801(d)(2) (a “party’s own statement” is not hearsay). Although

the caseworker did include some admissible statements from the

parents, the Department has not directed us to any definitive

statements outlined in the affidavits showing that the parents

admitted that they had not engaged in family time or monitored

sobriety, or that they had failed to comply with the treatment plan

overall. In other words, we agree that the parents’ statements to

the caseworker were admissible against them for purposes of

summary judgment, but we do not agree that those admissions, by

themselves, sufficiently established the termination criteria by clear

and convincing evidence to warrant summary judgment.

¶ 16 Fourth, the Department asserts that, even without the hearsay

statements, there is still “overwhelming evidence” supporting

summary judgment. Although the caseworker’s affidavits include

some admissible evidence supporting termination, no admissible

evidence shows that the parents failed to comply with family time

8 and monitored sobriety. Therefore, even considering the admissible

portions of the caseworker’s affidavits, there are triable issues of

material fact as to whether the parents complied with their

treatment plans.

¶ 17 Fifth, having concluded that the caseworker’s affidavits do not

provide sufficient evidence to support summary judgment, we turn

to the CASA’s affidavits. Even though the CASA’s affidavits do not

describe any expert qualifications, the Department asserts that the

CASA is qualified to give expert opinions based solely on the

statutes creating the CASA program. See §§ 19-1-201 to -210,

C.R.S. 2024. However, assuming, without deciding, that the CASA

could be qualified as an expert on this basis alone, we still conclude

that the CASA’s affidavits and reports do not provide sufficient

evidence to establish the termination criteria by clear and

convincing evidence. Like the caseworker’s affidavits, the CASA’s

reports contain voluminous hearsay statements that we cannot

consider for the truth of the matter asserted. See D.M.F.D., ¶ 11.

And although the reports provide some observations about family

time, there is no other direct evidence about the parents’

compliance with their treatment plans.

9 ¶ 18 Sixth, the Department asserts that, even if there were hearsay

statements in the criminal histories, we can consider them by

taking judicial notice of the parents’ criminal charges and

convictions under CRE 201. See Harriman v. Cabela’s Inc., 2016

COA 43, ¶ 64 (allowing a court to take judicial notice of court

records in a related proceeding). That may be true to some extent,

but the convictions establish only that the parents did not comply

with one of several components in their treatment plans. See

People in Interest of T.E.M., 124 P.3d 905, 909 (Colo. App. 2005)

(“Absolute compliance with a treatment plan is not required.”).

¶ 19 Finally, although not raised on appeal, there are also triable

issues of fact related to whether (1) the Department made

reasonable efforts to rehabilitate the parents and (2) father’s

conduct or condition was likely to change in a reasonable time. See

C.A.R. 1(d) (stating that an appellate court may “notice any error

appearing of record”). As for the former, the Department’s motion

provides little information about the services the Department

provided in this case, such as substance abuse treatment services

and family time for the parents while they were incarcerated. As to

the latter, the caseworker averred that, after father had resolved his

10 criminal issues, he had entered a treatment facility, began virtual

visits with the child, and had a plan to restart in-person visitation

once he completed his treatment program (which he may have

completed by the time the court entered summary judgment).

¶ 20 In sum, we conclude that summary judgment is not

appropriate in this case because there remain triable issues of fact

involving whether (1) the parents complied with their treatment

plans, namely whether they did not attend family time or

participate in monitored sobriety; (2) the Department provided

reasonable efforts; and (3) father’s conduct or condition was likely

to change in a reasonable time. Therefore, the Department did not

meet its initial burden, and the juvenile court therefore erred by

granting summary judgment.

¶ 21 Based on this resolution, we need not address mother’s

additional arguments that (1) the Department failed to establish

that there was no less drastic alternative to termination and (2) the

juvenile court violated her due process right to a fundamentally fair

proceeding by prohibiting her from responding to the amended

motion for summary judgment.

11 III. Disposition

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

juvenile court for further proceedings.1

JUDGE HARRIS and JUDGE KUHN concur.

1 The parents also assert that the juvenile court did not comply with

the provisions of the Indian Child Welfare Act (ICWA) of 1978 because it did not ask them on the record whether they had reason to know that the child is an Indian child after the Department filed the motion to terminate. See § 19-1-126(1)(a)(I)(A), C.R.S. 2024; C.R. ICWA P. 3(c) (noting that, if a new child custody proceeding, such as “a proceeding to terminate parental rights” is initiated, then the court must make a new inquiry). Because we reverse the summary judgment, the court should make the proper ICWA inquiries on remand and make findings as to whether ICWA applies before entering judgment.