In some “limited situations[,]” “an error by the trial court, not otherwise properly preserved for appeal, should be characterized as fundamental or one causing a miscarriage of justice, thereby allowing us to consider it on appeal.”
How later courts described this case
- In some “limited situations[,]” “an error by the trial court, not otherwise properly preserved for appeal, should be characterized as fundamental or one causing a miscarriage of justice, thereby allowing us to consider it on appeal.”
- "I write separately *504because I believe that summary judgment procedures are not appropriate in a termination proceeding under the Children's Code."
- “[T]he required standard of clear and convincing evidence in parental termination 4 proceedings significantly limits the cases in which summary judgment would be appropriate . . . .”
- unless otherwise ordered by the court, motion must be filed 75 days prior to trial
Written by the judges who cited it.
The opinion
Judge NEY
specially concurring.
I concur with the majority that the judgment terminating the parent/ehild legal relationship between R.H. and A.E. must be reversed. I write separately because I believe that summary judgment procedures are not appropriate in a termination proceeding under the Children’s Code.
The majority recognizes that parents have a fundamental liberty interest in the care, custody, and management of their children such that, before the state may completely and irrevocably sever a parent’s rights in his or her natural child, due process requires that the parent be permitted to participate in a meaningful manner in the termination proceedings. Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982). However, although the majority recognizes that § 19-3-602(1), C.R.S. (1995 Cum.Supp.) provides for termination only after a separate hearing, it also determines that such a hearing need not be an evidentiary hearing and a summary proceeding may be used. With this conclusion I cannot agree.
Because termination of the pareni/child relationship so drastically affects a parent’s liberty interest, I would hold that summary judgment is inappropriate in the context of termination of parental rights. See In re Interest of Philip W., 189 Wis.2d 432 , 525 N.W.2d 384 (Wis.App.1994); In re Christina T., 590 P.2d 189 (Okla.1979).