JUVENILE COURT,
_____________ COUNTY, STATE OF COLORADO
Case Number CASE
NUMBER
SUMMARY JUDGMENT RESPONSE
People in the
Interest of:
CHILD, et. al., Minor
Children,
and concerning,
RESPONDENT, et. al., Respondents.
COMES NOW
Respondent RESPONDENT, by and through Respondent's attorney, ATTORNEY,
and responds to the Petitioner's Motion for Summary Judgment, received
____________, as follows:
1. Respondent's
attorney does not herein supply the Court with responsive affidavits because
Respondent's attorney received this Motion just _____ days ago. Respondent
moves this Court allow an extended period to respond to this Motion by
affidavit until this Motion can be argued. Respondent has no actual notice of
this Motion.
2. Respondent need
not file responsive affidavits to a motion for summary judgment. Ellerman v.
Kite, 625 P.2d 1006, 1009-10 (Colo. 1981); Wolther v. Schaarschmidt, 738
P.2d 25 (Colo. App. 1986). "The election not to do so does not relieve the
moving party of the burden to establish that a summary judgment is appropriate
on the facts and the law. "Ellerman, at p. 1001. See also Seal
v. Hart, 755 P.2d 462 (Colo. App. 1988) (CRCP 121 1-15 doesn't apply to
motion for summary judgment.) and Pistora v. Rendon, 765 P. 2d 1089
(Colo. App. 1988) (Failure to file responsive affidavit does not confess the
motion for summary judgment.)
3. The Petitioners'
affidavit is inadequate in that it does not conform to the requirements of
56(c). It is impossible to determine from the affidavit if the affiant is
relating hearsay and not first-hand information as required by the rule.
Hearsay would not be admissible, as required by the rule. Moreover, the
affidavit ends with "to the best of my information and belief" which
is not the standard under the rule.
4. The Petitioner
has failed to establish the appropriateness of its motion for summary judgment
on the facts. The facts in this matter are patently more complicated than the
Petitioner's Motion makes out and Respondent wishes due-process opportunity to
cross-examine. Hatfield v. Barnes, 168 P.2d 552, 115 Colo. 30 (1946).
Though the County draws remarkable conclusions from the few facts set out in
the affidavit, that ___________________________________________________, those
few facts are not sufficient to prove dependency or neglect. Respondent may
have many good reasons for Respondent's behavior, not the least of which might
reasonably be: ________________________________________.
5. The Petitioner
fails to establish the appropriateness of the motion for summary judgment on
the law. The Petitioner argues, apparently, that the child must be adjudicated
as dependent and neglected as a matter of law as to Respondent under the
petition because, apparently, _______________________________________. This is
effectively the whole of the comments concerning Respondent in the affidavit.
There are infinite interpretations of the above allegations, even if taken as
fact for the purposes of this motion, and not all of those interpretations lead
to the inescapable conclusion that the child should be adjudicated as a matter
of law. Giving the Respondent the benefit of all favorable inferences, Mt.
Emmons Mining Co., below, these facts as set out do not meet the
stringent requirements of the burden on the Petitioner for its motion.
6. The ultimate
burden in a motion for summary judgment always rests on the moving party. Continental
Airlines, Inc. v. Keeman, 731 P.2d 708 (Colo. 1987). It is a drastic
remedy. K.N. Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769, 776
(Colo. 1985). The non-moving party gets the benefit of all favorable inferences
that may be drawn from the facts. Mt. Emmons Mining Co. v. Town of Crested
Butte, 690 P.2d 769, 776 (Colo. 1985). The standard for the court is, it
seems to this counsel, the highest in the law. The standard is "beyond any
doubt." See O'Herron v. St. Farm Mut. Auto Ins. Co. 397 P.2d 227,
231, 156 Colo. 164 (1964). (If any doubt resides in the court's mind it must
decide against the moving party.); Seal, above. But see People in the
Interest of A.E., 914 P2d 534 (Colo. App. 1996).
RESPECTFULLY
SUBMITTED this _______________________
___________________________