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District Court, Whoville County, Finlandia100 Whoville County ParkwayWhoville, FA 90210▲ COURT USE ONLY ▲THE PEOPLE OF THE STATE OF FINLANDIAIn the Interest ofChild: DOYEN TRUMP CHARMINGPetitioner: WHOVILLE COUNTY DIVISION OFCHILDREN, YOUTH AND FAMILIESRespondents: CINDER ELLA CHARMING, RICKCHARMING, PHILLIP KING and JOHN DOE.Cinder Ella’s AttorneyCase Number: 18JV0000Div.: 1 Ctrm.: 1ARESPONSE TO MOTION FOR SUMMARY JUDGMENT ON ADJUDICATIONCinder Ella Charming, by and through her attorney, requests that the Court strike the Department’s motion for summary judgment, or in the alternative, to deny the motion. In support of her request, Ms. Charming submits the following:MOTION TO STRIKE PLEADINGColorado Court rules require conferral of counsel and a certification that conferral has occurred before filing a motion with the Court, or alternatively, an explanation of why conferral has not occurred. C.R.C.P. Rule 121, §1-15,8, Duty to Confer, states:“[M]oving counsel and any self-represented party shall confer with opposing counsel and any self-represented parties before filing a motion... The motion shall, at the beginning, contain a certification that the movant in good faith has conferred with opposing counsel and any self-represented parties about the motion. If the relief sought by the motion has been agreed to by the parties or will not be opposed, the court shall be so advised in the motion. If no conference has occurred, the reason why, including all efforts to confer, shall be stated.” [italics added].The plaintiff’s counsel did not confer with the defendants’ counsel before filing its motion. Nor does plaintiff’s motion bear a certification of conferring, nor an explanation for not conferring. The Department’s motion does improperly claim that facts are undisputed. Ms. Charming disputes these facts. As such, the defendants’ request the plaintiff’s Motion for Summary Judgment should be struck; in the alternative the defendants respond below.RESPONSE TO MOTION FOR SUMMARY JUDGMENTMotions for summary judgment may be used in dependency and neglect proceedings. People in Interest of S.B., 742 P.2d 935 at 938 (Colo.App 1987). However, summary judgment is a drastic remedy that should not be used “unless it is clearly shown” that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. People ex rel. A.C., 170 P.3d 844 at 845 (Colo. App. 2007). Because dependency and neglect cases affect a parent’s liberty interest, courts have used the clear and convincing standard of proof for the statutory criteria in dependency and neglect cases when reviewing motions for summary judgment. People in Interest of A.E., 914 P.2d 534, 538 (Colo. App. 1996); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982).When ruling on a motion for summary judgment, a court must resolve all doubts against the moving party. People in Interest of C.C.G., 873 P.2d 41, 43 (Colo.App.1994).The movant has the initial burden of demonstrating that there is no genuine issue of material fact. People ex rel. A.C., 170 P.3d 844 at 846. The movant must support every material fact in the motion with “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” C.R.C.P. 56(c). Hauser v. Rose Health Care Systems, 857 P.2d 524 (Colo. App. 1993).A court must not consider portions of documents that refer to affidavits that are not attached to the document or are impermissible. Struble v. American Family Ins. Co., 172 P.3d 950 (Colo. App. 2007).An affidavit submitted in support of a motion for summary judgment (1) must be based on the personal knowledge of the affiant, (2) must set forth facts that would be admissible into evidence if the affiant were testifying in court (including the rules of evidence), and (3) must show that the affiant is competent to testify to the matters contained in the affidavit. K.H.R. By and Through D.S.J. v. R.L.S., 807 P.2d 1201 (Colo. App.1990).If the movant meets their burden, the respondent must raise a genuine issue of material fact. People ex rel. A.C., 170 P.3d 844 at 846. This cannot be done through argument alone, and like the movant, the respondent must set forth specific facts. Id.The Department’s motion alleges that Doyen is dependent and neglected because (1) he lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian, (2) his environment is injurious to his welfare; and (3) he tested positive at birth for either a schedule-1 controlled substance, as defined in C.R.S. §18-18-203, or a schedule-II controlled substance, as defined in C.R.S. §18-18-204, unless the child tests positive for a schedule-II controlled substance because of the mother’s lawful intake of such substance as prescribed.The Department does not support any of these claims using pleadings, depositions, answers to interrogatories, and admissions on file, or affidavits. Without permissible, supporting documents, the department has not met their burden of production and their contentions remain at issue.The Department claims that these issues are undisputed, although only the GAL is mentioned as being in support of the motion, and no supporting documents are included to demonstrate that these facts are undisputed. Ms. Charming disputes all of these facts.Doyen does not lack proper parental care. He received proper parental care while in Ms. Charming’s custody in the hospital, and she had arranged for him to have proper care while she was incarcerated. See Affidavit A.Doyen’s environment is not injurious to his health. There is no evidence that he was harmed by his environment while in Ms. Charming’s care. See Affidavit B.Doyen did not test positive for any drugs at birth. See Affidavit C with attached meconium test results.Wherefore, Ms. Charming requests that the Court strikes the Department’s motion, or in the alternative, that the Court dismisses the Department’s motion for summary judgment because the Department has not met their burden of demonstrating that no genuine issue of material fact exists using permissible documents. Even if the Court determines that the Department has met their burden, the Court should nevertheless dismiss the motion for summary judgment because Ms. Charming has met her burden by identifying genuine issues of material fact supported by permissible documents. ................
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