Jones v. Koulos

• Decision Date: 29 February 1960
• Docket Number: No. 18726,18726
• Citation: 349 P.2d 704,142 Colo. 92
• Parties: Lester B. JONES, Petitioner in the Matter of the People in the Interest of Jon Paul Koulos, Dependent, Plaintiff in Error, v. Peter KOULOS, Charlotte Ann Koulos, Charmaine McEnery and Frederick McEnery, Defendants in Error.
• Court: Colorado Supreme Court

Page 704

349 P.2d 704

142 Colo. 92

Lester B. JONES, Petitioner in the Matter of the People in the Interest of Jon Paul Koulos, Dependent Plaintiff in Error, v. Peter KOULOS, Charlotte Ann Koulos, Charmaine McEnery and Frederick McEnery, Defendants in Error.

No. 18726.

Supreme Court of Colorado, En Banc.

Feb. 29, 1960.

John C. Banks, Frank A. Elzi, Arthur E. Ryman, Jr., Denver, for plaintiff in error.

No appearance for defendants in error.

KNAUSS, Justice.

Plaintiff in error was petitioner and defendants in error were respondents in the trial court. The parties will be referred to as they there appeared, or by name.

Petitioner, representing an agency of the Denver Department of Welfare, filed a petition in dependency wherein it was alleged that Jon Paul Koulos is a dependent and neglected child for the reason, among others, that he does not have proper parental care.

The petition named as respondents, Peter Koulos, Charlotte Koulos, Charmaine McEnery and Frederick McEnery. Of the four respondents only the McEnerys appeared.

Hearing was had on the petition and at the conclusion of petitioner's evidence the trial court found that the child is not dependent and neglected and ordered the petition dismissed. Petitioner is here by writ of error and urges for reversal that the child is dependent and neglected for the reason that he has been abandoned, lacks proper parental care, and other reasons not here pertinent.

The facts as disclosed by the record are as follows: Charlotte Koulos is the mother of Jon Paul Koulos, hereinafter referred to as Jon, who was born in Denver, Colorado, August 20, 1956. At that time Charlotte Koulos was married to Peter Koulos who has denied that he is Jon's father.

Shortly after Jon's birth the mother and child moved into the home of Frederick McEnery and Charmaine McEnery. At that time the McEnery's were not married but were living together, being married some four months thereafter. After living with the McEnerys for approximately one month the mother moved away leaving Jon with the McEnerys and making no provision for his support.

In October 1956 Jon became ill and required hospitalization. The mother was contacted by the McEnerys but expressed no interest in the child's welfare, and has at all times refused to contribute to his support.

On September 21, 1957, Charlotte Koulos gave birth to a second child and again moved into the McEnery home. She was subsequently accused of being in love with Mr. McEnery and asked by Mrs. McEnery to leave. She abandoned her second child who was later decreed dependent and neglected by the juvenile court and placed in the custody of the agency represented by petitioner.

When the instant petition in dependency was filed, respondent Peter Koulos was confined in the federal penitentiary at Fort Leavenworth, kansas and the mother's whereabouts were unknown.

The trial court in dismissing the petition in the present case, stated in part:

'This is a rather peculiar case, although I think the motion to dismiss is good. Now, this is a dependency case. I think time and time again the Supreme court has ruled it has to be very direct evidence that the child is neglected and dependent and in this case as I see it now, the mother placed the child with these people some time ago. Is there any law against placing a child directly with strangers?

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'The Supreme Court has ruled that the Juvenile Court has no particular right to move in unless the evidence is there. I think maybe, Mr. Elzi, you should appeal this. Can the Court move in merely because the mother places a child with strangers? I don't know. I doubt it. The petition in dependency is dismissed--motion granted.'

It is undisputed that the child has been abandoned by his natural parents. Therefore, the error by the trial court consisted in the finding that...