Summary
declining to address issues outside the scope of appeal
Summary of this case from Aurora Pub. Sch. Dist. v. Stapleton Gateway LLCOpinion
Rehearing Denied Dec. 19, 1972.
Page 980
T. Michael Dutton, Denver, for children.
Edward D. Durham, Montrose, for petitioner-appellee.
Wallace McCamant, Paonia, for respondents-appellants.
PIERCE, Judge.
In June of 1971, the Montrose County Welfare Department filed petitions seeking to have C.K.G. and T.B.G., minor children, adjudicated dependent and neglected. Temporary and permanent custody of the children was sought by the Montrose County Welfare Department, for eventual placement of the children in a foster home. At hearings before a jury to determine whether the children were dependent and neglected, the parents were represented by counsel and the children were represented by a court-appointed guardian ad litem.
The jury returned a verdict finding that both children were dependent and neglected. Counsel for the parents filed a motion for new trial which was denied. Thereafter, at a dispositional hearing, custody of the children was given to the Department of Welfare and they were placed in a foster home. The parents were given visitation rights. Thereafter, the parents obtained new counsel who filed a motion for judgment notwithstanding the verdict or for a new trial. This motion and the memorandum brief in support thereof attempted to cast doubt on the fairness of the initial adjudicatory hearing by specifying a variety of items which indicated that original counsel had not adequately represented the parents at the hearing. The trial court rejected this contention and denied the motion. The parents appeal that determination. Our review of the record convinces us that the parents' representation at the adjudicatory hearing was adequate, and we affirm.
I.
The parents' initial contention is that the allegations contained in the petitions originally filed were insufficient to confer jurisdiction upon the court, because the petitions stated conclusions rather than alleging facts, as required by 1967 Perm.Supp., C.R.S.1963, 22--3--2(2)(a). We disagree.
The petitions specifically alleged the following:
'Unsanitary home environment detrimental to health and welfare of said child.
'On information and belief, said child has been threatened with beatings by her (his) father and beaten by her (his) father.
'The respondent parents refuse to provide proper or necessary education, medical care and other care necessary for the children's health, guidance, or well-being.'
The purpose of allegations in the petition is to put the respondents on notice of what will be attempted to be proved at the adjudicatory hearing. The above allegations adequately served to put the parents on notice of the issues. It is within the discretion of the trial court to grant a continuance if the evidence departs from the petition should these be an indication that the parents were surprised by the evidence. 1967 Perm.Supp., C.R.S.1963, 22--3--6(2). However, the record discloses no indication that the parents were surprised by any of the evidence that was presented at the adjudicatory hearing.
II.
At a preliminary hearing, the district attorney for Montrose County was appointed guardian ad litem for the children in order that their interests might be represented in the adjudicatory hearing. Initial counsel for the parents, after asking the children in open court if this was what they desired, consented to the appointment of the district attorney. The parents now contend that appointment of the district attorney as guardian ad litem was error inasmuch as he had been responsible for some of the preliminary investigations that eventually resulted in the filing of the petitions, and thus could not be expected to be objective. We reject this contention.
The Colorado Children's Code provides for the appointment of a guardian ad litem. 1967 Perm.Supp., C.R.S.1963, 22--3--5. In proceedings such as these a guardian ad litem is expected to act as an advocate on behalf of the child. In the case before us, the children have from the beginning made it clear that it was their desire to be removed from the hostile atmosphere in which they lived. Therefore, appointment of a guardian ad litem to represent the interests of the children, who would pursue a course that would expose the environment in which they lived, was proper. This is the guardian ad litem's duty under the Children's Code. See also 1972 Sess.Laws, C.R.S.1963, 22--10--8(3). We can see no error in the fact that the guardian ad litem in this case happened also to be the district attorney, or that he had prepared a report recommending that the children be removed from the home. No matter who served as the guardian ad litem, it was necessary for him to investigate the children's claims and form preliminary opinions.
III.
The proof offered at the adjudicatory hearing disclosed a long history of problems with this family, caused primarily by the chronic alcoholism of the parents, and indicated a steady decline in the responsibilities assumed by the parents. The total picture presented was one of an environment of squalor, filth, and acts of brutality, strongly supporting the contention that the home environment of the children was unfit. It further established that the children's education was being impeded by this atmosphere.
The parents complain that a good portion of the evidence offered to prove this circumstance was so remote in time that it was irrelevant to the questions in dispute. It is true that much of the evidence offered was of events in the past. Indeed, some of the most damaging testimony came from an older brother who had not lived at home for several years. His testimony, however, considered together with that of the children, portrayed a strong pattern of decline in the home environment. Furthermore, evidence of the family's past was offered by both petitioner and respondents, and there was no contemporaneous objection to such evidence by either party. The determination of relevancy is generally within the sound discretion of the trial judge, and if the evidence has probative value in determining a central issue in dispute, although it is remote in time, it will not be overruled on appeal in the absence of a showing of abuse of discretion. Tucker v. Lower, 200 Kan. 1, 434 P.2d 320; In re Will of Williams, 71 N.M. 39, 376 P.2d 3. We perceive no abuse of discretion in allowing the evicence to be admitted. Therefore, we reject this contention.
We find no merit in the parents' contention that the evidence was insufficient to establish that the children were dependent and neglected under the terms of the Colorado Children's Code. They argue that the evidence shows only that they were 'bad parents' and that to deprive them of their children on that basis alone would be an unconstitutional application of the statute. This contention is wholly without merit. The proof offered at the adjudicatory hearing and outlined above satisfies the requirements of four of the five possible definitions of neglected and dependent children as set out in the statute. See 1967 Perm.Supp., C.R.S.1963, 22--1--3(19)(a)--(e).
IV.
The parents next contend that jury instruction number 1, stating, among other things, that the children 'agree that they are dependent and neglected,' could be read by the jury as directing a finding that the children are in fact dependent and neglected. The very same instruction, however, makes clear that the parents denied that the children were dependent and neglected, and concludes by saying, 'This is the issue you are now called upon to determine.' This instruction does nothing more than frame the issue, and in no way instructs the jury as to what conclusion they must reach. Where a jury instruction fairly presents the issues and is supported by the evidence, the parties are entitled to have it given. See Anderson v. Munoz, 159 Colo. 229, 411 P.2d 4. Since the evidence offered was adequate to support the contention that the children wanted to be removed from the home and further supported a finding that they were dependent and neglected, we perceive no error in the given instruction.
V.
The parents contend finally that the children are not satisfied with the foster home in which they had been placed. This contention is not supported in the record and is beyond the scope of this appeal. The adjudicatory decree did not permanently terminate the parental rights. Thus, this issue can be raised in future proceedings in the trial court.
The other assignments of error specified by appellants have been considered and we find them without merit.
Judgment affirmed.
DWYER and SMITH, JJ., concur.