People in Interest of P.N.

• Decision Date: 09 May 1983
• Docket Number: No. 83SA106,83SA106
• Parties: 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.
• Court: Colorado Supreme Court

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.

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.

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

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 that K.N. failed to meet the first element of the test. K.N.'s motion for a new trial specifically states that his trial attorney knew of K.N.'s request to testify at trial, but refused to permit him to take the witness stand. Where the facts relied upon by the father were within his knowledge at the time of trial, the evidence to which he points as warranting a new trial was not newly discovered. Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153 (1959). A motion for a new trial on the ground of newly discovered evidence should be denied where the name of the witness and the nature of the anticipated testimony were known to the applicant for a new trial during or prior to trial. Gasper v. People, 83 Colo. 341, 265 P. 97 (1928).

A new trial on the ground of newly discovered evidence may not be granted merely because new counsel believes that evidence of a fact may be material in a case where the original attorney had knowledge of that fact at trial and elected not to offer evidence of it. Kennedy v. Bailey, supra; Herron v. Allen, 32 S.D. 301, 143 N.W. 283 (1913). The decision of whether a party should testify on his own behalf is a matter of sound trial strategy adopted by trial counsel to further the client's best interest. Young v. Ricketts, 242 Ga. 559, 250 S.E.2d 404, cert. denied, 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1978). A litigant is bound by the choice of litigation procedures and tactical decisions made by his attorney. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958). In the absence of a showing of incompetence on the part of trial counsel, the client is bound by the decisions made during the course of a trial on the issue of termination of parental rights.

B.

The second requirement for a new trial on the ground of newly discovered evidence requires a determination of whether the evidence is material to the issues before the trial court. Under section 19-11-105(1)(b)(I), C.R.S.1973 (1982 Supp. & 1978 Repl.Vol. 8), ⁵ the trial court must make a finding that either the parent has not complied with an appropriate treatment plan or that the plan has not been successful. K.N.'s proffered evidence that he did not understand the terms of the treatment plan would be relevant to the issue of noncompliance. Under appropriate circumstances, such evidence might also be relevant to the issue of whether the plan has been successful. Although K.N.'s proffered evidence might be material to the issue of termination, it does not necessarily follow that he is entitled to a new trial. It was incumbent upon K.N. to satisfy not only the first part of the test, a requirement he failed to meet, but also the third criterion to which we now turn.

C.

The burden of proof was on K.N. to establish that his lack of understanding of the treatment plan would probably have changed the result of the termination proceeding. K.N.'s evidence does not meet this requirement for several reasons. The respondent court's findings of May 24, 1982, entered after...