People in Interest of F. M.

• Decision Date: 27 March 1980
• Docket Number: No. 79CA0171,79CA0171
• Citation: 609 P.2d 1123,44 Colo.App. 142
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of F.M., a Child and Concerning, M.M. and L.M., Respondents, and P.M., Respondent-Appellant. . II
• Court: Colorado Court of Appeals

Page 1123

609 P.2d 1123

44 Colo.App. 142

The PEOPLE of the State of Colorado, Petitioner-Appellee,

In the Interest of F.M., a Child and Concerning, M.M. and

L.M., Respondents,

and

P.M., Respondent-Appellant.

No. 79CA0171.

Colorado Court of Appeals, Div. II.

March 27, 1980.

J. Robert Lowenbach, Earl G. Rhodes, Asst. Weld County Attys., Greeley, for petitioner-appellee.

Gayle L. Lalich, Zane M. Pic, Colorado Rural Legal Services, Inc., Greeley, for respondent-appellant.

SMITH, Judge.

Alleging that the trial court erred in adjudicating his grandchild dependent and neglected, and in terminating the parental rights of his daughter with respect to his grandchild, respondent, the child's grandfather, appeals the orders of the trial court. We affirm.

Early in July 1977, when the child, F.M., was approximately two months old, M.M., the mother of the child, left him with P.M. and L.M., the child's grandfather and aunt respectively. On July 17, 1977, the child was hospitalized where he remained until July 25. At the time the child was taken to the hospital, he was suffering from malnutrition and acute tracheal-bronchitis.

On July 25, 1977, the Weld County Department of Social Services filed a petition, naming the mother as respondent and alleging that F.M. was a dependent or neglected child. By court order the department took protective custody of the child on August 5, 1977. On August 25, 1977, the grandfather, and the child's aunt, sought and were granted the right to intervene in the proceeding.

The case was continued, and on April 20, 1978, after hearing, the court found that because of the acts or omissions of the mother, the child lacked proper care necessary for its health, guidance, and well-being. The court further found that the mother had abandoned the child to the child's grandfather, and that the grandfather was not a person who could provide adequate care for the child. The court then adjudicated the child to be dependent and neglected. At that time, temporary custody was continued in the director of the Weld County Department of Social Services.

On September 6, 1978, nunc pro tunc August 28, 1978, the court terminated the parent-child relationship, vis-a-vis its mother, and placed custody in the Director of the Weld County Department of Social Services.

On September 14, 1978, the child's grandfather moved for a new trial. The motion was denied. Although the grandfather appeals, the child's mother and aunt do not.

I.

The People assert that because the motion for a new trial was not filed within ten days after the entry of the decree of dependency and neglect, the appeal is not properly before this court. We disagree.

A motion for new trial is not required until after entry of a final order. The adjudication of a child as dependent and neglected, in the absence of some sort of dispositional order is not a final order. People in the Interest of B.W., Colo.App., 601 P.2d 1086 (1979). Because appeal was not appropriate after the adjudicatory stage of the proceeding, and because the appeal was initiated by the filing of the appropriate motion within ten days of entry of the dispositional order terminating parental rights, the appeal is proper.

II.

The grandfather asserts that because of the care which the child was receiving from him and the aunt, the Juvenile Court either lacked jurisdiction over the child or erred in adjudicating the child to be dependent and neglected. We disagree.

When a child has been abandoned by its parents, a court may find that the child is dependent and neglected, notwithstanding the fact that the child may be currently receiving adequate care from other persons. Jones v. Koulos, 142 Colo. 92, 349 P.2d 704 (1960). In Jones the supreme court distinguished situations in which a child is placed with another individual and situations in which a child is abandoned to the care of another individual. The Jones court further noted that a child placed with relatives or friends does have proper parental care when the parent sends gifts of clothing, money, food, household items, toys, and medical supplies to the child, and frequently visits and communicates with the child.

In the case...