People ex rel. S.N. v. S.N.

JUSTICE COATS,

dissenting.

127 Because I believe the rationale of the court of appeals was substantially correct and would affirm its judgment reversing the summary judgment of the trial court, I respectfully dissent.

128 I understand the court of appeals holding to rest on a largely formal distinetion between the role of a fact-finder and the role of a court in granting a motion for summary judgment. It reasons that "future conduct," or "prospective harm," is a purely factual matter, and that a prediction of a parent's future conduct in providing care for his or her child derived from even overwhelming evidence of that parent's past conduct with other children is always a matter as to which reasonable minds could differ. Rather than directly disputing that proposition, the majority recharacterizes it as a finding that reasonable minds could always differ about "whether the statutory criteria are met in a dependency and neglect adjudication based on prospective harm," maj. op. 13, and concludes that the question whether a child is dependent and neglected is a mixed question of fact and law, which can be removed from the trier of fact. To the extent the majority fails to appreciate the difference between future conduct that may be harmful to the child and the legal characterization of that conduct in terms of the statutory definition of dependency and neglect, it simply fails to address or find fault with the court of appeals rationale; to the extent it actually finds a prediction of future conduct to be a question of law for the court rather than a question of fact for the trier of fact, I consider its reasoning dangerously wrong.

129 Notwithstanding many careful readings, I confess that the majority's reasoning remains largely a mystery to me. While I find equally baffling its reliance on disparate authorities concerning the meaning and import of dubbing something a mixed question of fact and law, it does appear to me that the majority sees this designation as blurring the distinction between historical facts and the application of a legal standard to them, allowing even the former to be "removed) ... from the trier of fact," maj op. 122. Quite apart from the immediate problem at hand, I am concerned about the implications of this rationale, as distinguished from simply disagreeing with the proposition that prospective harm cannot be adequately predicted from past conduct, for summary judgment law in general.

130 With regard to the immediate problem, however, I do not understand the court of appeals to hold that summary judgment can never be proper with regard to prospective harm, but only that a lack of any genuine issue of material fact concerning a parent's past conduct and care of other children cannot alone justify granting summary judgment on the basis of a prediction of prospective harm. The court of appeals opinion does not address the question and I do not understand its rationale to imply that undisputed medical evidence of incapacity, for example, or admissions of the parent concerning his or her intended future conduct could not serve to foreclose any genuine dispute concerning prospective harm; and if its holding could be read that broadly, I too believe it would go too far. The court of appeals found that the parents in this case denied the allegations of a risk of prospective harm, and that the trial *285 court granted the department's motion for summary judgment solely on the basis of findings in a prior proceeding regarding their unfitness and lack of care for other children in the past. It reversed the summary judgment, holding simply that prior conduct alone could never be sufficiently predictive of future conduct to take the question from a trier of fact by summary judgment. In this, I believe it was entirely correct.

131 Finally, I note that the court of appeals acknowledged a broader disagreement, as evidenced by various alternate opinions in court of appeals cases, about the propriety of summary judgment in dependency and neglect adjudications as an entire class, but found it unnecessary to resolve that disagreement because its holding in this case rested on narrower grounds for disapproval. By concluding that summary judgment may be appropriate in a dependency and neglect adjudication in certain cases involving prospective harm, the majority implicitly, but necessarily, forecloses the broader issue, without briefing, argument, or any consideration at all.

T 32 I therefore respectfully dissent.

I am authorized to state that JUSTICE EID joins in this dissent.