People ex rel. A.E
In People ex rel. A.E., 914 P.2d 534 (Colo. Ct. App. 1996), the agency filed its motion for summary judgment less than three weeks before the termination hearing, and later supplemented the motion. Id. at 536-37. Mother filed a one-page response but did not attach any affidavits. Id. at 537.
On the day of trial, the motion was argued and granted even though mother was precluded from testifying. Id.
On appeal, the court examined whether summary judgment was appropriate and whether due process was violated. Id. The appellate court first found that the rules of procedure were applicable to termination cases. Id.
It then found that due process was satisfied "if the respondent has an opportunity to appear through counsel and is given an opportunity to present evidence and cross-examine witnesses . . . . However, because a proceeding for termination of the parent-child legal relationship is civil, neither due process nor other constitutional guarantees confer upon a respondent a right of confrontation or require the respondent's presence at the termination hearing." Id. at 538.
It stated "we perceive no per se due process bar to the use of summary judgment procedures in termination cases. However, summary judgment is a drastic remedy and should be granted only when there are no genuine issues as to any material fact." Id.
The court then reversed the termination. It found that the order could not stand because the trial court had not applied the clear and convincing standard. Id. at 539.
Moreover, it found that the trial court should not have allowed the untimely motion and the filing of supplemental affidavits to continue, and that such error "should be characterized as fundamental or one causing a miscarriage of justice." Id.