Peo in Interest of AIRZ

25CA0230 Peo in Interest of AIRZ 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0230
Eagle County District Court No. 24JV41
Honorable Paul R. Dunkelman, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.I.R.Z., a Child,

and Concerning V.D.C.Z.G. and A.R.G.,

Appellants.

JUDGMENTS REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE FOX
Schutz and Taubman,* JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Beth Oliver, County Attorney, Alison D. Casias, Special Assistant County
Attorney, Dillon, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins,
Colorado, for Appellant V.D.C.Z.G.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant A.R.G.

*Sitting by assignment of the Chief Justice under the provisions of Colo. Const.
art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this dependency and neglect proceeding, V.D.C.Z.G.

(mother) and A.R.G. (father) appeal the summary judgment

adjudicating A.I.R.Z. (the child) dependent or neglected. We reverse

and remand the case to the juvenile court.

I. Background

¶2 In July 2024, the Eagle County Department of Human

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

concerning the then-three-month-old child. The Department

alleged that mother had recently taken the child to the doctor

because the child had bruises and scratches on his ribs, back, and

leg. The parents were unable to provide any explanation for the

bruising and scratches. The child’s medical providers concluded

that the injuries were not accidental or the result of a medical

condition, but rather, were likely the result of abuse.

¶3 The juvenile court granted temporary custody of the child to

the Department, and the child was placed in foster care. Both

parents denied the allegations in the petition and requested a jury

trial.

¶4 Before the trial date, the Department moved to adjudicate the

child dependent or neglected based on evidence of child abuse or

1
nonaccidental injury under section 19-3-505(7)(a), C.R.S. 2025, and

exposure to an injurious environment under section 19-3-102(1)(c),

C.R.S. 2025. To support its motion, the Department attached

several photos of the child’s alleged injuries, a hospital discharge

summary, and an affidavit from the caseworker. The parents

opposed summary judgment by filing a joint verified response and

an affidavit from father.

¶5 The juvenile court granted summary judgment against both

parents and adjudicated the child dependent or neglected pursuant

to sections 19-3-505(7)(a) and 19-3-102. The court subsequently

denied mother’s motion to reconsider that ruling.

¶6 Both parents now appeal.

II. Jurisdiction

¶7 While this appeal was pending, and without the entry of a

limited remand, the juvenile court entered an order closing the

underlying case and stating that “[a]ll orders issued in this case are

vacated.” Based on the language of the court’s order, we ordered

the parties to show cause why the appeals were properly before this

court. Specifically, we noted that “if the [juvenile] court retained

authority to vacate the order appealed here, then it is unclear why

2
these appeals are not now moot.” In other words, if the juvenile

court had jurisdiction when it vacated all orders in the case, then

the order granting summary judgment — the order we are asked to

review on appeal — would no longer exist. And reversal of a

nonexistent order would have no practical effect on an existing

controversy. See People in Interest of C.G., 2015 COA 106, ¶ 12

(“An issue is moot when the relief sought, if granted, would have no

practical effect on an existing controversy.”).

¶8 The parties responded that even when a dependency and

neglect case has been closed or dismissed, an appeal of an

adjudicatory judgment is not moot because the judgment carries

the possibility of ongoing collateral legal consequences. See

DePriest v. People, 2021 CO 40, ¶ 9 (a case is moot “only if it is

shown that there is no possibility that any collateral legal

consequences will be imposed” based on the challenged ruling). For

example, in a future dependency and neglect action, the

adjudication of one child can be considered by a juvenile court

when determining if another child is dependent or neglected and

when determining fitness under the termination criteria. See § 19-

3-604(2)(l), C.R.S. 2025; see also People in Interest of S.N., 2014

3
COA 116, ¶ 18 (holding that evidence of a parent’s past treatment of

other children may be considered to determine “whether it is likely

or expected that a parent will fail to provide proper care for another

child”).

¶9 But we need not opine about the possibility of collateral

consequences because we have jurisdiction to review the challenged

order on the merits. Accordingly, the order to show cause is

discharged.

¶ 10 We conclude that the juvenile court did not have jurisdiction

to vacate its order granting summary judgment because it did so

while the judgment was on appeal in this court. See People in

Interest of K.A., 155 P.3d 558, 561 (Colo. App. 2006) (“Unless

otherwise authorized by statute or rule, the filing of a notice of

appeal shifts jurisdiction to the appellate court and divests the trial

court of jurisdiction to conduct further substantive action related to

the judgment on appeal.”).

III. Summary Judgment

¶ 11 Both parents contend that the juvenile court erred by

adjudicating the child dependent or neglected by summary

judgment. Specifically, they argue that (1) the court relied on an

4
inapplicable definition of “child abuse or neglect” when it found that

the Department met its initial burden to show that the child was

dependent or neglected, see § 19-1-103(1)(a), and (2) summary

judgment was precluded because genuine issues of material fact

still existed, see C.R.C.P 56(c). Additionally, mother argues that the

court improperly weighed the evidence and failed to consider the

child’s status when it entered summary judgment.

¶ 12 We agree that the juvenile court erroneously granted summary

judgment because the parents established that there were genuine

issues of material fact and because the court improperly weighed

the evidence. Thus, we need not consider the parents’ other

arguments.

A. Standard of Review and Legal Framework

¶ 13 A child may be adjudicated dependent or neglected if the

government proves that one or more of the conditions in section 19-

3-102 exist. See People in Interest of S.M-L., 2016 COA 173, ¶ 29

(“[S]ection 19-3-102 requires proof of only one condition for an

adjudication.”). Moreover, “[e]vidence that child abuse or

nonaccidental injury has occurred shall constitute prima facie

evidence that such child is neglected or dependent, and such

5
evidence shall be sufficient to support an adjudication . . . .” § 19-

3-505(7)(a).

¶ 14 An adjudication by summary judgment under C.R.C.P. 56 is

permissible in dependency and neglect proceedings. People in

Interest of S.B., 742 P.2d 935, 938-39 (Colo. App. 1987). Summary

judgment is only appropriate when there is no genuine issue

regarding any material fact and the moving party is entitled to

judgment as a matter of law. People in Interest of M.M., 2017 COA

144, ¶ 12 (citing People in Interest of S.N. v. S.N., 2014 CO 64, ¶¶

14-15).

¶ 15 The moving party bears the initial burden of establishing that

there is no disputed material fact. Id. at ¶ 13. A material fact is

one that will affect the outcome of the case. Id. To meet this

burden, the moving party can use pleadings, depositions, answers

to interrogatories, admissions on file, and affidavits. Id. If the

moving party fails to meet this burden, summary judgment must be

denied. Id. However, if the moving party meets its burden, the

burden shifts to the nonmoving party to demonstrate the existence

of a triable issue of fact. Id. at ¶ 14.

6
¶ 16 Moreover, even when the material facts are undisputed,

summary judgment is only appropriate when reasonable minds

could draw but one inference from them. Id. at ¶ 15. In making

this determination, we must view the facts, and all favorable

inferences reasonably drawn therefrom, in the light most favorable

the nonmoving party. Id.

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

at ¶ 11.

B. Application

¶ 18 In its order granting summary judgment, the juvenile court

found that the Department had established, through its motion and

supporting documentation, that (1) the child had suffered

nonaccidental injuries including bruising and scratching;

(2) neither parent had provided a viable explanation for the injuries;

(3) when the injuries occurred, the child was too young to walk,

crawl, or roll over; and (4) the parents were the only people caring

for the child before the injuries.

¶ 19 The court then looked to section 19-1-103(1)(a)(I), which

defines “child abuse or neglect” as “an act or omission . . . that

threatens the health or welfare of a child” in any case in which,

7
among other things, “a child exhibits evidence of skin bruising,

bleeding . . . [or] soft tissue swelling” and such condition “is not

justifiably explained” or “the circumstances indicate that such

condition may not be the product of an accidental occurrence.”

Applying that definition, the court found that the Department had

presented prima facie evidence that the child had “suffered

nonaccidental injury,” which was “sufficient to support

adjudication” under section 19-3-505(7)(a).

¶ 20 Both parents argue that the definition of “child abuse or

neglect” in section 19-1-103(1)(a)(I) is inapplicable when

determining whether a child is dependent or neglected.1 And thus,

they assert that the juvenile court misapplied the law when it found

that the Department had met its initial summary judgment burden.

However, we need not decide whether the definition of “child abuse

or neglect” in section 19-1-103(1)(a)(I) can be used to support an

adjudication under section 19-3-505(7)(a). But even if the definition

1 Section 19-1-103(1)(a) states expressly that its definition of

“abuse” or “child abuse or neglect” applies to those terms as “used
in part 3 of article 3 of this title 19.” § 19-1-103(1)(a), C.R.S. 2025.
This adjudication occurred under sections 19-1-102, C.R.S. 2025,
and 19-3-505(7)(a), C.R.S. 2025.

8
was relevant, and even if the Department met its initial summary

judgment burden, we still conclude that the parents met their

burden to demonstrate a triable issue of fact, which precluded the

entry of summary judgment.

¶ 21 The parents timely filed a joint response to the Department’s

summary judgment motion. Notably, mother verified the response

by declaring “under penalty of perjury under the law of Colorado

that the foregoing is true and correct” and signed the document.2

The response asserted that the parents disagreed with the medical

findings about the child’s injuries and believed that the bruises

were caused by a medical condition related to the child’s skin or

blood. The response also stated that “both parents adamantly deny

physical abuse to the child.”

2 As relevant here, C.R.C.P. 56 allows an opposing party to

demonstrate a genuine issue of material fact by filing an opposing
affidavit. Although mother did not file an affidavit, the joint
response served as the equivalent to an affidavit because her
verification statement and signature rendered the response an
“unsworn declaration.” See C.R.C.P. 108 (“When any rule of civil
procedure requires an affidavit or other sworn declaration, an
unsworn declaration under C.R.S. § 13-27-101 et seq. may be used
in its place.”); § 13-27-102(7), C.R.S. 2025 (defining “unsworn
declaration” as “a declaration in a signed record that is not given
under oath, but is given under penalty of perjury”).)

9
¶ 22 The juvenile court considered the statements in the verified

response but found that they were insufficient to show a genuine

issue of material fact because they were “simply allegations and

argument” without any supporting documentation. But the verified

statements were not “simply allegations and argument” because

mother could have testified to the statements in the verified

response. See K.H.R. v. R.L.S., 807 P.2d 1201, 1203 (Colo. App.

1990) (for summary judgment, supporting affidavits must be based

on personal knowledge, set forth admissible facts, and establish

that the affiant is competent to testify to the information in the

affidavit; they must also must contain evidentiary material, which if

the affiant were in court, would be admissible as part of their

testimony). More specifically, mother’s testimony — that she

believed that the child had a skin or blood condition which caused

the bruising and marks and that the parents did not physically

abuse the child — would have been admissible because it was

relevant to whether the child was dependent or neglected and was

based on mother’s personal knowledge about her child and his

medical history. See id.; see also CRE 402; CRE 601; CRE 602;

CRE 701. Accordingly, the parents were not required, as the

10
juvenile court implied, to provide additional supporting

documentation for the statements in their verified response.

¶ 23 Thus, contrary to the juvenile court’s findings, we conclude

that the statements in the parents’ verified response, when viewed

in the light most favorable to them, were sufficient to demonstrate

the existence of a triable issue of fact. Specifically, the verified

statements created a dispute as to whether the child’s injuries were

accidental and whether he was in an injurious environment.

¶ 24 Further, in determining that summary judgment was

warranted, the juvenile court heavily relied on the Department’s

documentation — mainly the hospital discharge summary that

stated that the child’s injuries were nonaccidental. But, because

mother’s statements directly contradicted the conclusions made in

the hospital discharge summary, the court necessarily weighed the

evidence before granting summary judgment.3 Although the

juvenile court could have properly weighed the conflicting evidence

and the credibility of the witnesses at an adjudicatory trial, it was

3 The parents did not challenge the juvenile court’s consideration of

the hospital discharge summary, despite the absence of an affidavit
or acknowledgment concerning the accuracy of its content.

11
precluded from doing so at the summary judgment stage. See S.N.,

¶ 15 (summary judgment is not a substitute for trial; only at a trial

can the court assess the weight of the evidence and the credibility of

the witnesses).

¶ 25 Based on the foregoing, we conclude that the juvenile court

erred by granting summary judgment against both parents and

adjudicating the child dependent or neglected. See M.M., ¶ 13.

IV. Disposition

¶ 26 The judgments adjudicating the child dependent or neglected

are reversed, and the case is remanded to the juvenile court. On

remand, the juvenile court may, in its discretion, enter a new order

dismissing the case and vacating its prior orders.

JUDGE SCHUTZ and JUDGE TAUBMAN concur.

12