The Colorado Court of Appeals issued its opinion in People in the Interest of T.M. and J.M., Children, and Concerning S.M. on June 10, 2010.
Termination of Parent–Child Relationship—Summary Judgment—CRS § 19-3-604(1)(b)(III).
Father, S.M., appealed the termination of his parent–child relationship. The Court of Appeals affirmed in part the trial court’s summary judgment, reversed it in part, and remanded the case.
In April 2009, a dependency and neglect petition was filed. T.M was 3 years old and J.M was 8. The children were adjudicated dependent and neglected as to their mother, in June 2009, and she confessed to the termination of her parental rights in January 2010. The court adjudicated T.M. and J.M dependent and neglected as to father in August 2009.
The Boulder County Department of Housing and Human Services (Department) moved for summary judgment to terminate father’s parental rights under CRS § 19-3-604(1)(b)(III). In support, the Department asserted that it was undisputed that father was serving two consecutive twelve-year sentences in the Department of Corrections (DOC), and an additional concurrent sentence of six years related to a habitual offender count, with 771 days credit for time served. The Department averred that the sentences were far in excess of the statutory criteria, and it attached certified copies of the sentencing order and the mittimus.
The court granted summary judgment. Based on clear and convincing evidence, the court found that no appropriate treatment plan could be devised; that father was subject to long-term confinement of such duration that he would not be eligible for parole for at least thirty-six months after the children’s adjudication date; that termination was in the children’s best interests; and that there were no less drastic alternatives.
On appeal, father first argued it was error to grant summary judgment, because a genuine issue of material fact existed regarding his parole eligibility date and the length of his actual confinement. The Court agreed in part.
In his response to the summary judgment motion, father disputed the description of his present sentence and indicated he intended to appeal the six-year sentence he received for being a habitual offender, which he claimed would bring him under the minimum thirty-six month period of incarceration until parole eligibility. Father’s response was not verified, he provided no opposing affidavits or other support, and the court had nothing before it to suggest that the department had incorrectly represented his sentence. Thus, the Court concluded the Department met its burden as to T.M. and termination was appropriate.
The Court reached a different conclusion as to J.M. (who was older than 6 years). The Department presented no specific evidence that father would not become eligible for parole for at least six years after the date of the adjudication. Also, the trial court made no specific findings. It was clear father would be confined for over thirty-six months; however, the Court could not conclude his confinement would exceed six years. The summary judgment as to J.M. was reversed and remanded for further proceedings.
Father also argued that the trial court erred in applying to both children the thirty-six month incarceration period that only applies to T.M. The Court agreed. Therefore it was error for the court to apply to both children the expedited procedures that are only to be applied to children under the age of six.