People in Interest of P.N., No. 83SA106

Docket NºNo. 83SA106
Citation663 P.2d 253
Case DateMay 09, 1983
CourtSupreme Court of Colorado

Page 253

663 P.2d 253
The PEOPLE of the State of Colorado, Petitioner,
In the Interest of P.N., S.N., Children,
And Concerning, K.N., John J. Althoff, Acting in his
official capacity as District Court Judge, Division II, in
and for the County of Weld, State of Colorado, and Weld
County District Court Division II, Respondents.
No. 83SA106.
Supreme Court of Colorado,
En Banc.
May 9, 1983.

Page 254

Thomas O. David, Weld County Atty., Kathy E. Dean, Asst. County Atty., Greeley, for petitioner.

Robert M. Waldo, Greeley, guardian ad litem.

Steven Janssen, Boulder, for respondent K.N.

NEIGHBORS, Justice.

This is an original proceeding in which the petitioner seeks to prohibit the respondent district judge from holding a new trial on the petitioner's motion to terminate the parent-child relationship between the children, P.N. and S.N., and their father, K.N. The trial court granted K.N.'s motion for a new trial on the ground of newly discovered evidence. The petitioner then filed this case pursuant to C.A.R. 21. We issued a rule to show cause. We reverse the order of the trial court and make the rule absolute.

I.

A petition in dependency or neglect was filed by the People in the interest of P.N. and S.N. on November 13, 1979. P.N. and S.N. were adjudicated dependent and neglected children on May 2, 1980. A treatment plan was approved by the court on August 25, 1980. It was amended on February 9, 1981, and August 10, 1981. On February 8, 1982, the People filed a motion to terminate the parent-child legal relationship between the children and their father pursuant to section 19-11-103, C.R.S.1973 (1982 Supp. & 1978 Repl.Vol. 8). 1 A trial on the motion to terminate parental rights was held on April 28, 1982. On May 24, 1982, the respondent judge entered detailed findings of fact and an order terminating the parent-child relationship between the children and their father. At trial, the father presented no evidence. However, he was represented by counsel who cross-examined the witnesses called by the Weld County Department of Social Services (Department) and the guardian ad litem.

A disposition hearing was held on July 15, 1982, as required by section 19-11-106, C.R.S.1973 (1982 Supp. & 1978 Repl.Vol. 8). The father's lawyer asked the court for permission to withdraw from the case. The attorney informed the court that the father wanted another lawyer to review the record for a possible appeal and requested an extension of time to file a notice of appeal. As of that date, no motion for a new trial had been filed. The court granted the attorney's motion to withdraw and directed the Department to place the children for adoption as soon as possible. The court appointed new counsel for the father on July 16, 1982.

Page 255

On November 15, 1982, K.N.'s attorney filed a motion for a new trial based on two grounds. First, K.N. claimed that his trial counsel inadequately represented him because the attorney refused to allow K.N. to testify at the termination hearing. Second, K.N. alleged that he had recently discovered evidence which could not have been discovered and produced at trial. 2

A hearing on the new trial motion was held on December 7, 1982. At the conclusion of the hearing, the record indicates that the trial court denied K.N.'s motion for a new trial, insofar as it related to newly discovered evidence in the form of testimony from friends, relatives, and lawyers. However, the trial court agreed to hear testimony from K.N. 3 A further hearing was held on December 21, 1982. It is unclear from the record whether the court and counsel perceived the purpose of the hearing to be an extension of the original trial on the termination issue, a new trial, or an evidentiary hearing on the motion for a new trial. K.N. testified and was subjected to cross-examination. The court also permitted the petitioner to present rebuttal testimony from the caseworker employed by the Department. Following the hearing, counsel for the parties prepared written closing arguments. The captions of the written arguments indicate they were directed to K.N.'s motion for a new trial.

The court next held a hearing on February 9, 1983. Counsel for the parties agreed that they were requesting a ruling by the respondent judge on K.N.'s motion for a new trial.

During the course of the hearing, K.N. withdrew his claim that he had been incompetently represented by his trial counsel. The incompetency argument was premised on K.N.'s assertion that he was not permitted to testify at trial. Since the court entertained his testimony at the December 21, 1982, hearing, the claim of incompetency was no longer viable. The focus of K.N.'s argument for a new trial on the ground of newly discovered evidence was that he did not understand the treatment plan and its amendments.

During the hearing, the respondent judge first denied the motion for a new trial, but later reversed that ruling. The trial court gave two reasons for granting the new trial. First, new counsel for K.N. intended to pursue a different theory at trial, i.e., K.N. did not understand the treatment plan. Second, the permanent placement of the children in either K.N.'s home or an adoptive home could be accomplished more quickly than if an appeal were taken from the court's order terminating the parent-child relationship. 4

Page 256

II.

We first address the issue of whether this case is properly before us in an original proceeding. We are persuaded it is. Relief in the nature of prohibition is a proper remedy in cases where the trial court is proceeding without or in excess of its jurisdiction, or has abused its discretion in exercising its functions over matters within its authority to decide. People v. Gallagher, 194 Colo. 121, 570 P.2d 236 (1977); City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974). We will not interfere with a trial court's decision to grant or deny a new trial absent a clear showing of an abuse of discretion. People v. Gallagher, supra. Accordingly, the issue presented in this case is whether the respondent judge abused his discretion in granting K.N.'s motion for a new trial.

III.

We have adopted a three-part test to be applied in a case where a new trial is sought on the ground of newly discovered evidence. First, the applicant for a new trial must establish that the evidence could not have been discovered in the exercise of reasonable diligence and produced at trial. Second, it must be shown that the evidence was material to an issue before the court. Third, the applicant must establish that the evidence, if admitted by the court, would probably change the result of the trial. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969); American National Bank of Denver v. Christensen, 28 Colo.App. 501, 476 P.2d 281 (1970). We must, therefore, decide whether the alleged newly discovered evidence, i.e., the fact that K.N. did not understand the terms of the treatment plan, justifies a new trial.

A.

The record establishes...

To continue reading

Request your trial
16 practice notes
  • Higgs v. District Court In and For Douglas County, Nos. 83SA493
    • United States
    • Colorado Supreme Court of Colorado
    • December 2, 1985
    ...economy militate in favor of a review of issues relating to the respondent court's order for a new trial. See People in Interest of P.N., 663 P.2d 253 (Colo.1983) (prohibitory relief under C.A.R. 21 appropriate where trial court clearly abuses discretion in granting new Florey and Miller as......
  • Alzado v. Blinder, Robinson & Co., Inc., No. 85SC370
    • United States
    • Colorado Supreme Court of Colorado
    • February 16, 1988
    ...considered under all of the circumstances surrounding the meeting and viewed in the light most favorable to Alzado, see, e.g., In re P.N., 663 P.2d 253 (Colo.1983), the direct and circumstantial evidence was sufficient to support the jury's verdict. At trial both Alzado and Blinder-Robinson......
  • People ex rel. A.R., Court of Appeals No. 17CA2038
    • United States
    • Colorado Court of Appeals of Colorado
    • December 13, 2018
    ...to consider all errors that could potentially disrupt the finality of a termination judgment in one step. People in Interest of P.N. , 663 P.2d 253, 258 (Colo. 1983) ("There must be finality to litigation involving children."); see also Santosky , 455 U.S. at 760, 102 S.Ct. 1388 (......
  • People v. District Court of 2nd Judicial Dist., No. 83SA104
    • United States
    • Colorado Supreme Court of Colorado
    • June 6, 1983
    ...or has abused its discretion in exercising its functions over matters within its authority to decide. People in the Interest of P.N., 663 P.2d 253 (Colo.1983); People v. Gallagher, 194 Colo. 121, 570 P.2d 236 (1977); Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 The source......
  • Request a trial to view additional results
16 cases
  • Higgs v. District Court In and For Douglas County, Nos. 83SA493
    • United States
    • Colorado Supreme Court of Colorado
    • December 2, 1985
    ...economy militate in favor of a review of issues relating to the respondent court's order for a new trial. See People in Interest of P.N., 663 P.2d 253 (Colo.1983) (prohibitory relief under C.A.R. 21 appropriate where trial court clearly abuses discretion in granting new Florey and Miller as......
  • Alzado v. Blinder, Robinson & Co., Inc., No. 85SC370
    • United States
    • Colorado Supreme Court of Colorado
    • February 16, 1988
    ...considered under all of the circumstances surrounding the meeting and viewed in the light most favorable to Alzado, see, e.g., In re P.N., 663 P.2d 253 (Colo.1983), the direct and circumstantial evidence was sufficient to support the jury's verdict. At trial both Alzado and Blinder-Robinson......
  • People ex rel. A.R., Court of Appeals No. 17CA2038
    • United States
    • Colorado Court of Appeals of Colorado
    • December 13, 2018
    ...to consider all errors that could potentially disrupt the finality of a termination judgment in one step. People in Interest of P.N. , 663 P.2d 253, 258 (Colo. 1983) ("There must be finality to litigation involving children."); see also Santosky , 455 U.S. at 760, 102 S.Ct. 1388 (......
  • People v. District Court of 2nd Judicial Dist., No. 83SA104
    • United States
    • Colorado Supreme Court of Colorado
    • June 6, 1983
    ...or has abused its discretion in exercising its functions over matters within its authority to decide. People in the Interest of P.N., 663 P.2d 253 (Colo.1983); People v. Gallagher, 194 Colo. 121, 570 P.2d 236 (1977); Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 The source......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT