Peo in Interest of IG

24CA0686 Peo in Interest of IG 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0686
Prowers County District Court No. 23JV30020
Honorable Mike Davidson, Judge

The People of the State of Colorado,

Petitioner,

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

and Concerning R.G.,

Appellant.

JUDGEMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Jenna L. Mazzucca, Guardian Ad Litem

Katayoun A. Donnelly, Office of Respondent Parents’ Counsel, Denver,
Colorado, for Appellant
¶1 R.G. (father) appeals the judgment adjudicating I.G. (the child)

dependent and neglected by summary judgment. We affirm the

adjudication, but we reverse the disposition and remand the case to

the juvenile court to ensure compliance with the Indian Child

Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-1963, and

Colorado’s ICWA statute, § 19-1-126, C.R.S. 2024.

I. Background

¶2 In July 2023, the Prowers County Department of Human

Services (Department) received a report that the child’s half-sibling

had tested positive for controlled substances at birth. The

Department opened a voluntary case, but mother did not comply.

The Department then filed a petition in dependency and neglect and

alleged, among other things, that father was in prison. Father

denied the allegations in the petition and asked for a jury trial.

¶3 The juvenile court set the matter for an adjudicatory trial in

November 2023. However, prior to trial, the Department moved for

an adjudication by summary judgment. In response, father

asserted that summary judgment was improper at the adjudicatory

phase of a dependency and neglect case because he had “an

unqualified right to trial by a jury.” After considering the parties’

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pleadings and arguments, the court granted the Department’s

motion, vacated the jury trial, and adjudicated the child dependent

and neglected. The court then adopted a treatment plan for father.

II. ICWA

¶4 As a preliminary matter, because the record does not establish

that the juvenile court complied with the provisions of ICWA and

Colorado’s ICWA statute, we reverse the disposition and remand the

case for further proceedings. See People in Interest of M.V., 2018

COA 163, ¶ 35 (noting that a dispositional hearing is a child

custody proceeding under ICWA, but an adjudicatory hearing is

not), overruled on other grounds by People in Interest of E.A.M. v.

D.R.M., 2022 CO 42.

¶5 For ICWA to apply in a dependency and neglect proceeding,

the case must involve an Indian child. See People in Interest of

A.G.-G., 899 P.2d 319, 321 (Colo. App. 1995); see also 25 U.S.C.

§ 1903(4) (defining “Indian child” as “any unmarried person who is

under age eighteen” and (1) “a member of an Indian tribe,” or (2)

“eligible for membership in an Indian tribe” and “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

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whether they know or have reason to know that the child is an

Indian child. § 19-1-126(1)(a)(I)(A). A mere assertion of Native

heritage, without more, is insufficient to give the court reason to

know that the child is an Indian child. E.A.M., ¶ 56.

¶6 The record does not show that the juvenile court ever inquired

of father as to whether he knew or had reason to know that the

child was an Indian child. Nevertheless, father submitted an ICWA

assessment form, in which he stated that the child had Apache

heritage through the paternal family. But father stated that he did

not know if the child was a member of a tribe or eligible for

membership. That said, father indicated on the form that he was a

member of a tribe or eligible for membership.

¶7 Based on this record, the juvenile court did not have reason to

know that the child was an Indian child because, even though

father claimed to be a member of a tribe, he said that he did not

know whether the child was a member or eligible for membership.

25 U.S.C. § 1903(4). Therefore, at a minimum, the court had

information that “the child may have Indian heritage,” and

consequentially the court was required to “direct the petitioning or

filing party to exercise due diligence in gathering additional

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information that would assist the court in determining whether

there is reason to know that the child is an Indian child.” § 19-1-

126(3); see also H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48,

¶ 5. But there is nothing in the record to indicate that the court

ever directed the Department to exercise due diligence. And the

court never made a finding about whether it had reason to know

that the child was an Indian child. See H.J.B., ¶ 59 (concluding

that, if section 19-1-126(3) applies, then “the juvenile court must

determine (1) whether the petitioning party satisfied its statutory

due diligence requirements and (2) whether the court now has

reason to know that the child is an Indian child”).

¶8 We must therefore reverse the disposition and remand the

case to the juvenile court. See M.V., ¶ 35. On remand, the court

should first inquire of father whether he knows or has reason to

know that the child is an Indian child. § 19-1-126(1)(a)(I)(A). If

father maintains that the child has Apache heritage but is not a

member or eligible for membership in a tribe, the court should

direct the Department to exercise due diligence under section 19-1-

126(3). See H.J.B., ¶¶ 57-59 (describing actions that a petitioning

party should take to satisfy section 19-1-126(3)). However, if after

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making the proper inquiries the court has reason to know that the

child is an Indian child, it must direct the Department to send

notices to applicable tribes and treat the child as an Indian child

unless and until it determines that the child does not meet the

definition of an Indian child. See § 19-1-126(1)(b), (2). Finally, once

the court resolves these questions, it may reenter the disposition.

III. Summary Judgment

¶9 Father contends that adjudication by summary judgment is

impermissible at the adjudicatory phase of a dependency and

neglect case. We disagree.

A. Standard of Review and Principles of Statutory Construction

¶ 10 To resolve this appeal, we must interpret statutes and rules of

procedure. Our review is de novo. See People in Interest of C.L.S.,

313 P.3d 662, 665-66 (Colo. App. 2011) (statutes); see also

Boudette v. State, 2018 COA 109, ¶ 20 (procedural rules). In

construing procedural rules, we employ the same interpretive

principles applicable to statutory construction as described below.

Boudette, ¶ 20.

¶ 11 We must liberally construe provisions of the Colorado

Children’s Code to serve the welfare of children and the best

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interests of society, People in Interest of S.X.M., 271 P.3d 1124,

1130 (Colo. App. 2011), and avoid “any technical reading” that

“would disregard [a child’s] best interests,” C.S. v. People in Interest

of I.S., 83 P.3d 627, 635 (Colo. 2004). We favor interpretations that

produce a harmonious reading of the statutory scheme, People in

Interest of J.G., 2016 CO 39, ¶ 13, and we presume that the General

Assembly intended a just and reasonable result by avoiding an

interpretation that would lead to an absurdity. People in Interest of

H., 74 P.3d 494, 495 (Colo. App. 2003).

¶ 12 In construing statutes, appellate courts must ascertain and

give effect to the General Assembly’s intent. J.G., ¶ 13. To do this,

we look to the language of the statute and give effect to the plain

and ordinary meaning of the General Assembly’s words. People in

Interest of B.C.B., 2024 COA 88, ¶ 15. Because we must respect the

General Assembly’s choice of language, we do not add or subtract

words from a statute. See People v. Laeke, 2018 COA 78, ¶ 15. If

the language in a statute is clear and unambiguous, we apply it as

written. See State v. Nieto, 993 P.2d 493, 500 (Colo. 2000).

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B. Applicable Law

¶ 13 The government may initiate an action in dependency and

neglect by filing a petition setting forth its allegations. § 19-3-502,

C.R.S. 2024. After an advisement, parents may admit or deny the

allegations, and if they deny the allegations, they may demand a

trial by jury. C.R.J.P. 4.2; § 19-3-202(2), C.R.S. 2024. At a hearing

to the court or jury trial, the government must prove the allegations

by a preponderance of the evidence. § 19-3-505(1), C.R.S. 2024;

see also J.G., ¶ 15.

¶ 14 To meet its burden, the government must establish that the

facts satisfy one of the grounds for adjudication in section 19-3-

102, C.R.S. 2024. If the government proves the allegations by a

preponderance of the evidence, then the juvenile court will sustain

the petition and adjudicate the child dependent and neglected. §

19-3-505(7). “The adjudication represents the court’s

determination that state intervention is necessary to protect the

child and that the family requires rehabilitative services in order to

safely parent the child.” A.M. v. A.C., 2013 CO 16, ¶ 12.

¶ 15 Divisions of this court have determined that a juvenile court

may adjudicate a child dependent and neglected by summary

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judgment under C.R.C.P. 56. See People in Interest of A.E., 914

P.2d 534 (Colo. App. 1996) (termination); People in Interest of S.B.,

742 P.2d 935 (Colo. App. 1987) (adjudication). C.R.C.P. 56 allows a

court to grant summary judgment when there is “no genuine issue

as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Thus, to grant summary judgment at

the adjudicatory phase, “(1) the evidentiary facts — the raw

historical data underlying the controversy — must be undisputed,

and (2) a reasonable trier of fact must not be able to draw divergent

inferences when applying the undisputed facts to the statutory

criteria” in section 19-3-102. People in Interest of C.M., 2024 COA

90, ¶ 18.

¶ 16 Two divisions of this court have directly addressed whether the

summary judgment procedures in C.R.C.P. 56 are applicable to

dependency and neglect proceedings.

¶ 17 First, in S.B., a division of this court considered whether the

summary judgment procedures in C.R.C.P. 56 were applicable at

the adjudicatory phase. The division determined that, because the

Rules of Juvenile Procedure and the Colorado Children’s Code did

not address summary judgment, juvenile courts could apply the

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Rules of Civil Procedure, as permitted by C.R.J.P. 1. S.B., 742 P.2d

at 938-39. In a dissent, Judge Babcock disagreed with the premise

that summary judgment could be applied in dependency and

neglect cases because (1) the Children’s Code impliedly required an

evidentiary hearing; (2) depriving parents of an evidentiary hearing

“raise[d] substantial constitutional questions concerning denial of

due process and equal protection”; and (3) the Juvenile Rules

suggested that a dependency and neglect case could not “be

resolved on pleadings alone.” People in Interest of S.B., 742 P.2d

935, 942 (Colo. App. 1987) (Babcock, J., dissenting).

¶ 18 Second, in A.E., another division of this court addressed

whether summary judgment was appropriate at the termination

phase of a dependency and neglect case. Relying on S.B., the

division concluded that the Civil Rules applied because the Juvenile

Rules and the Children’s Code were silent on issues of summary

judgment. A.E., 914 P.2d at 537. The division also rejected the

parent’s assertion that section 19-3-602(1), C.R.S. 2024, required

an evidentiary hearing. A.E., 914 P.2d at 538. Last, the division

concluded that summary judgment did not violate the parent’s due

process rights, considering that due process did not “confer upon a

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[parent] a right of confrontation or require the [parent’s] presence at

the termination hearing.” Id.

C. Analysis

¶ 19 To begin, we address whether the supreme court’s decision in

People in Interest of S.N., 2014 CO 64, forecloses father’s position on

appeal. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40 (noting

that the Colorado Court of Appeals is bound by the precedent of the

Colorado Supreme Court). In S.N., ¶ 1, our supreme court

determined that, on a case-by-case analysis, a juvenile court could

adjudicate a child by summary judgment in a case involving

prospective harm. In his dissent, Justice Coats noted that “the

court of appeals [had] acknowledged a broader disagreement . . .

about the propriety of summary judgment in dependency and

neglect adjudications as an entire class,” but the division did not

“resolve that disagreement because its holding in this case rested

on narrower grounds for disapproval.” People in Interest of S.N.,

2014 CO 64, ¶ 31 (Coats, J., dissenting). Consequently, Justice

Coats believed that the majority had “implicitly, but necessarily,

foreclose[d] the broader issue, without briefing, argument, or any

consideration at all.” Id.

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¶ 20 In this case, the juvenile court relied, in part, on S.N. to reject

father’s contention and grant summary judgment. But we agree

with father that, because the parties did not argue the broader

issue in S.N., it was not before the supreme court and as a result,

the supreme court did not consider that issue in its holding.

Therefore, we can consider the merits of father’s appeal. See People

v. Smoots, 2013 COA 152 ¶ 21 (one division of the court of appeal is

not bound by the decision of another division).

¶ 21 We are not persuaded by father’s assertion that the Colorado

Children’s Code provides an absolute right to an adjudicatory

hearing before a jury. To be sure, section 19-3-202(2) provides a

parent with the right to “demand a trial by jury of six persons at the

adjudicatory hearing,” but it does not guarantee an absolute right

to have one. Indeed, a jury trial can be waived by a party’s

inaction. See C.R.J.P. 4.3(a) (“Unless a jury is demanded or

ordered, it shall be deemed waived.”); C.R.C.P. 39(a)(3) (a party may

waive a jury trial if “all parties demanding trial by jury fail to appear

at trial”); see also People in Interest of C.C., 2022 COA 81, ¶ 12

(recognizing that C.R.C.P. 39(a)(3) applies in dependency and

neglect cases).

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¶ 22 Likewise, we do not think that section 19-3-505(1) provides

parents with an absolute right to an adjudicatory hearing before a

jury (as argued in the briefs) or a judge (as argued at oral

argument). Section 19-3-505(1) provides that, “[a]t the adjudicatory

hearing, the court shall consider whether the allegations of the

petition are supported by a preponderance of the evidence.” In our

view, section 19-3-505 explains only what should occur at an

adjudicatory hearing if one is held. Notably, the dissent in S.B.

advanced a similar position with respect to former section 19-3-

106(1), C.R.S. 1986. That statute was repealed and replaced with

section 19-3-505(1) following the decision in S.B., but the General

Assembly declined the opportunity to add language clarifying the

right to an evidentiary hearing. See Ch. 138, sec. 1, § 19-3-505,

1987 Colo. Sess. Laws. 306; see also Larrieu v. Best Buy Stores,

L.P., 2013 CO 38, ¶ 13 (“When the General Assembly legislates in a

particular area, we presume it was aware of existing case law

precedent.”).

¶ 23 Ultimately, father has not directed us to anything in the

Children’s Code that specifically confers upon a parent an absolute

right to an adjudicatory hearing before a jury. Because the General

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Assembly did not specifically provide for an absolute right to an

adjudicatory hearing before a jury when it had an opportunity to do

so, we decline father’s invitation to read words into the statutes that

do not appear in them. See Laeke, ¶ 15; see also People v. Griffin,

397 P.3d 1086, 1089 (Colo. App. 2011) (noting that, if the General

Assembly intended an “unusual requirement,” it would have said so

explicitly).

¶ 24 Nor are we convinced to reach a different conclusion based on

father’s assertion that C.R.C.P. 56 conflicts with C.R.J.P. 4.1.

C.R.J.P. 4.1(a) states that “no written responsive pleadings are

required.” In other words, unlike in general civil cases, parents are

not required to file an answer to the Department’s complaint (i.e.,

the petition in dependency and neglect). Cf. C.R.C.P. 7(a) (In a

general civil case, “[t]here shall be a complaint and answer.”). And

although C.R.C.P. 56(c) allows a court to consider the pleadings

when deciding whether to enter summary judgment, father does not

explain why the lack of an answer in dependency and neglect cases

necessarily prevents a court from entering summary judgment.

¶ 25 Father also asserts that a motion for summary judgment is

not permitted by C.R.J.P. 4.1(b) because it is not a “defense” or an

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“objection” under C.R.J.P. 4.1(b). C.R.J.P. 4.1(b) recognizes that a

party may file a motion raising “[a]ny defense or objection which is

capable of determination without trial of the general issues.” But

simply because C.R.J.P. 4.1(b) allows a party to file certain motions

does not mean that other types of motions capable of determination

without trial, such as a motion for summary judgment, are

prohibited. Father has not cited any authority for this proposition,

and we are not aware of any.

¶ 26 We therefore agree with the divisions in S.B. and A.E. that

because dependency and neglect proceedings are civil proceedings

and the Rules of Juvenile Procedure do not address summary

judgment, juvenile courts can apply the summary judgement

procedures in the Rules of Civil Procedure. See A.E., 914 P.2d at

537; S.B., 742 P.2d at 938-39; see also People in Interest of C.C.G.,

873 P.2d 41, 43 (Colo. App. 1994) (recognizing that “[s]ummary

judgment is applicable to proceedings in dependency and neglect).

¶ 27 Finally, we disagree with father’s assertion that the use of

summary judgment procedures in dependency and neglect

proceedings violates a parent’s right to a fundamentally fair

proceeding. Because “[p]arents have a constitutionally protected

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liberty interest in the care, custody, and management of their

children,” People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 17, they

must be provided “fundamentally fair procedures” to satisfy due

process, J.G., ¶ 20 (quoting Santosky v. Kramer, 455 U.S. 745, 753-

54 (1982)). At a minimum, a parent must be given adequate notice

of the proceeding and an opportunity to be heard. People in Interest

of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007); see also People in

Interest of A.B-A., 2019 COA 125, ¶ 50.

¶ 28 Among other things, “[t]he purpose of an adjudicatory hearing

is to determine whether the factual allegations in the dependency

and neglect petition are supported by a preponderance of the

evidence.” People in Interest of A.M., 786 P.2d 476, 479 (Colo. App.

1989). Generally, a parent can challenge the allegations against

them at a trial, and due process is satisfied if the parent is allowed

to present evidence and cross-examine witnesses. See J.G., ¶ 25.

But “[s]ummary judgment is only appropriate in those

circumstances where there is no role for the fact finder to play”

because the material facts are undisputed. Anderson v. Vail Corp.,

251 P.3d 1125, 1127 (Colo. App. 2010). In other words, summary

judgment does not deprive a parent of the opportunity to test the

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allegations against them at a trial because summary judgment is

only appropriate when there are no disputed facts. See S.N., ¶ 16.

If there are disputed facts, then the juvenile court must deny the

motion for summary judgment and require the Department to prove

its allegations by a preponderance of the evidence at a hearing. See

People in Interest of S.N., 2014 COA 116, ¶ 37 (noting that summary

judgment is warranted only infrequently in dependency and neglect

adjudications). We therefore discern no due process violation.

¶ 29 In sum, because (1) a parent does not have an absolute

statutory right to an adjudicatory hearing before a jury; (2) the

Juvenile Rules do not conflict with C.R.C.P. 56; and (3) summary

judgment does not violate a parent’s right to a fundamentally fair

proceeding, we conclude that a juvenile court may adjudicate a

child by summary judgment. And because father does not

otherwise assert that the court improperly entered summary

judgment in this case, we discern no basis for reversal.

IV. Disposition

¶ 30 The judgment is affirmed in part and reversed in part, and the

case is remanded to the juvenile court for further ICWA

determinations.

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JUDGE GROVE and JUDGE LUM concur.

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