Peo in Interest of LAC

25CA2357 Peo in Interest of LAC 06-11-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA2357
Arapahoe County District Court No. 24JV237
Honorable Bonnie McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.A.C., a Child,

and Concerning K.A.C.H.,

Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE MEIRINK
Pawar and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 11, 2026

John Christofferson, Interim County Attorney, Alison Bettenberg, Assistant
County Attorney, Aurora, Colorado, for Appellee

Mary R. Brown, Guardian ad Litem

Patrick R. Henson, Officer of Respondent Parents’ Counsel, Chelsea A. Carr,
Officer of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, K.A.C.H. (mother)

appeals the summary judgment adjudicating L.A.C. (the child)

dependent and neglected. We reverse and remand to the juvenile

court for further proceedings.

I. Background

¶2 In August 2024, the Arapahoe County Department of Human

Services filed a petition in dependency or neglect concerning the

then two-month-old child. As relevant, the Department alleged that

mother struggled with mental health issues and was placed on a

mental health hold after giving birth to the child. And the

Department asserted that mother had previously agreed to a safety

plan that discharged the child to her maternal grandmother’s care.

¶3 Mother was the defendant in multiple criminal cases at the

time the Department opened this case. Later, the juvenile court

noted that mother had been found incompetent to proceed in the

criminal matters.

¶4 Through counsel, mother denied the allegations in the petition

and requested an adjudicatory jury trial. In January 2025, the

court noted that mother had been transferred to a treatment facility

for competency restoration. The court then found good cause to

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continue the jury trial in June 2025, after the court held a pretrial

conference at which mother did not appear. In its ruling, the court

recognized the case was “almost a year old” but emphasized that it

presented “significant, very unusual legal issues.”

¶5 A few months later, the Department moved for an adjudication

by summary judgment. It submitted no documents in support of

the motion. On mother’s counsel’s request, the court held a

hearing on summary judgment. Mother’s counsel did not file a

written response, asserting that he would counter the motion orally

instead.

¶6 At the hearing, mother’s counsel argued first and opposed

summary judgment. During its rebuttal, the Department moved to

amend the motion and the dependency petition to include a new

statutory basis, section 19-3-102(1)(e), C.R.S. 2025, for

adjudication.

¶7 Ultimately, the court found that the child lacked proper

parental care and, through no fault of mother, was not domiciled

with mother. See § 19-3-102(1)(b), (e). The court thus granted

summary judgment and adjudicated the child dependent and

neglected.

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¶8 Though mother’s counsel filed writs to secure her attendance,

mother had appeared at only a few hearings when the court entered

its ruling.

II. Preservation

¶9 The Department and the child’s guardian ad litem argue that

mother’s contentions are only partially preserved because she did

not (1) “tender arguments related to all paragraphs sought for

summary judgment” or (2) submit a written response to the motion.

But the Department and guardian ad litem do not specify which

contentions mother failed to “preserve.” See People in Interest of

D.B-J., 89 P.3d 530, 531 (Colo. App. 2004) (declining to address an

issue where a party did not “make specific arguments” in support of

it). In any case, that mother levied only oral opposition to summary

judgment “[did] not relieve the [Department] of its burden to

establish that summary judgment is appropriate.” USA Leasing,

Inc. v. Montelongo, 25 P.3d 1277, 1278 (Colo. App. 2001).

III. Legal Framework and Standard of Review

¶ 10 As relevant here, a child is dependent or neglected if the child

(1) lacks proper parental care through the actions or omissions of

their parent, see § 19-3-102(1)(b), or (2) is homeless, without proper

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care, or not domiciled with their parent through no fault of the

parent, see § 19-3-102(1)(e) (no-fault basis). “Proper parental care

means the minimum level of care or services and necessities that

are required to prevent any serious threat to the child’s health or

welfare.” CJI-Civ. 41:7 (2026). While the Children’s Code does not

define “domicile,” Colorado case law has established that it means a

place where a person intends to reside permanently. See Potter v.

State Farm Mut. Auto. Ins. Co., 996 P.2d 781, 783 (Colo. App. 2000).

A child’s domicile has been understood to be that of the parent with

whom the child lives. See Scheer v. Dist. Ct., 363 P.2d 1059, 1060-

61 (Colo. 1961).

¶ 11 An adjudication must be based on existing circumstances and

relate to the child’s status at the time of adjudication. People in

Interest of A.E.L., 181 P.3d 1186, 1192 (Colo. App. 2008). But that

does not mean that the juvenile court must find that the child is

presently receiving improper care. People in Interest of S.X.M., 271

P.3d 1124, 1130 (Colo. App. 2011). Instead, an adjudication may

be based on current, past, or prospective harm. People in Interest of

G.E.S., 2016 COA 183, ¶ 15; see S.X.M., 271 P.3d at 1130-31.

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¶ 12 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 that it is entitled to judgment as a

matter of law. People in Interest of S.N. v. S.N., 2014 CO 64, ¶¶ 14-

15; see also C.R.C.P. 56(c) (summary judgment is appropriate when

the pleadings, depositions, answers to interrogatories, admissions

on file, and affidavits show this standard is met). In dependency

and neglect cases, summary judgment, particularly when based on

prospective harm, is warranted only infrequently. See S.N., ¶ 25.

¶ 13 If the moving party fails to meet this burden, summary

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

144, ¶ 13; see also USA Leasing, 25 P.3d at 1279 (where the

plaintiff did not meet its burden, the “defendant was not required to

submit opposing evidentiary materials”). But if the moving party

meets its burden, the burden shifts to the nonmoving party to

demonstrate a controverted factual question. S.N., ¶ 16.

¶ 14 Even when the material facts are undisputed, summary

judgment is only appropriate when reasonable minds could draw

but one inference from them. M.M., ¶ 15. A court must give the

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nonmoving party all favorable inferences that can be drawn from

the facts. S.N., ¶ 16.

¶ 15 We review the court’s grant of summary judgment de novo.

M.M., ¶ 11.

IV. Discussion

¶ 16 The Department made numerous allegations in its motion for

summary judgment. Among other things, the Department alleged

that it was “undisputed” that (1) the child was placed with maternal

grandmother after her discharge from the hospital; (2) mother had

not cared for the child; (3) mother had been found incompetent in

the criminal cases; and (4) the child could not reside in the

treatment facility where mother was living. But the Department

filed no affidavits, admissions, answers to interrogatories, or

exhibits in support of its motion. See C.R.C.P. 56(c). While the

county attorney indicated that she would serve requests for

interrogatories on mother, none appear in the record. Thus, the

Department offered no evidence to support its allegations. See id.;

see also S.N., ¶ 17 (“[A] litigant cannot merely assert a legal

conclusion without evidence to support it.” (citation modified)).

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¶ 17 Instead, the only undisputed facts established were those

conceded by mother’s counsel, who agreed that mother (1) had been

found incompetent in her criminal cases, and (2) was currently and

“ha[d] been” residing in an inpatient treatment facility for

competency restoration.

¶ 18 As noted, the Department did not seek adjudication under the

no-fault basis in its written summary judgment motion. Instead, it

orally moved to add this ground to both the motion and the

dependency petition after mother’s attorney’s argument at the

summary judgment hearing. Yet, the record does not contain an

amended petition including the Department’s new allegations —

that mother was presently “[un]available” and the child was not

“able to . . . live with her.” See § 19-3-505(4)(a)-(b) (when evidence

presented at the adjudicatory hearing discloses facts not alleged in

the petition, the juvenile court may consider the additional matters

raised by the evidence if the parties consent; in such event, the

court shall order the petition be amended to conform to the

evidence).

¶ 19 But even assuming without deciding that the Department

properly moved for summary judgment on the no-fault basis, we

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conclude that it did not meet its burden as to either statutory

ground on which the juvenile court based the adjudication.

¶ 20 Under the Colorado Code of Criminal Procedure, “incompetent

to proceed” means that, as a result of a mental or developmental

disability, the defendant (1) “does not have sufficient present ability

to consult with the defendant’s lawyer with a reasonable degree of

rational understanding” to assist the defense, or (2) “does not have

a rational and factual understanding of the criminal proceedings.”

§ 16-8.5-101(12), C.R.S. 2025.

¶ 21 Mother’s incompetency to proceed within the criminal matters

and past or present participation in residential restoration

treatment at the time of the hearing — without more — do not

establish as a matter of law that the child would lack proper

parental care if placed into mother’s care. See § 19-3-102(1)(b);

S.X.M., 271 P.3d at 1130 (in cases of removal, the factfinder’s task

is to determine whether the child will lack proper parental care if

returned to the parent); CJI-Civ. 41:7. This evidence is not

dispositive of mother’s “actions or omissions” in the context of

parental care, and a reasonable factfinder could draw divergent

inferences about mother’s ability to care for the child based on

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these facts. See § 19-3-102(1)(b); M.M., ¶ 15 (summary judgment is

only appropriate when reasonable minds could draw but one

inference from the facts).

¶ 22 Nor do the facts conceded by mother’s counsel, standing

alone, establish that the child was without housing or proper care

or not domiciled with mother. See § 19-3-102(1)(e); Potter, 996 P.2d

at 783. While the Department made allegations about where the

child did or was permitted to reside, it presented no evidence about

her domicile or the care she received. See C.R.C.P. 56(c). Mere

allegations, presented without supporting evidence, are insufficient

to meet a movant’s burden on summary judgment. See S.N., ¶ 17;

USA Leasing, 25 P.3d at 1278-79 (plaintiff did not meet its burden

where it filed no supporting documents and a previously filed

affidavit set forth only a conclusory allegation, among other issues);

see also S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019 COA

58, ¶ 15 (affidavits containing mere conclusions are insufficient to

meet initial burden).

¶ 23 Moreover, this evidence fails to establish the other statutory

grounds on which the Department relied. See § 19-3-102(1)(a) (a

child is dependent or neglected if the parent has abandoned the

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child or subjected them to mistreatment or abuse), (c) (a child is

dependent or neglected if their environment is injurious to their

welfare).1

¶ 24 Accordingly, we conclude that the Department failed to

sustain its burden on summary judgment and the juvenile court

erred by granting its motion and adjudicating the child dependent

and neglected.

V. Disposition

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

juvenile court for further proceedings consistent with this opinion.

JUDGE PAWAR and JUDGE SULLIVAN concur.

1 By the time of the summary judgment hearing, the Department

had abandoned theories of adjudication under section 19-3-
102(1)(d) and (g), C.R.S. 2025, both raised in its written motion.

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