People in Interest of A. M. D., No. 81SA145

Docket NºNo. 81SA145
Citation648 P.2d 625
Case DateJuly 19, 1982
CourtSupreme Court of Colorado

Page 625

648 P.2d 625
The PEOPLE of the State of Colorado, Petitioner-Appellee,
In the Interest of A. M. D. and M. D., Children, And
Concerning, D. D., Respondent-Appellant.
No. 81SA145.
Supreme Court of Colorado, En Banc.
July 19, 1982.

Page 627

Earl G. Rhodes, Asst. Weld County Atty., Greeley, for petitioner-appellee.

James H. Hiatt, Fort Collins, for respondent-appellant.

PER CURIAM.

This appeal involves the termination of the parental relationship between a mother, D. D., and her two children, A. M. D. and M. D. The Weld County District Court adjudicated the children dependent or neglected, and later entered an order terminating the parent-child relationships pursuant to section 19-11-105, C.R.S.1973 (1978 Repl.Vol. 8), which has been construed to authorize an order of termination under the preponderance of the evidence standard. 1 Because that standard, as so applied, violates due process of law under the Fourteenth Amendment to the United States Constitution, we reverse the order of termination and remand for a new trial.

I. Facts

D. D. is the mother of two minor children, a six-year-old daughter, A. M. D., and a four-year-old son, M. D. The whereabouts of the children's fathers is unknown. In August 1976, D. D. moved to Weld County, Colorado, from Dubuque, Iowa, where she had been supervised by the Dubuque County Department of Social Services. That agency became involved with D. D. when it received a neglect referral from a hospital to which A. M. D. had been brought for treatment. In December 1976, the Weld County Department of Social Services (department) commenced supervision of D. D. at the request of the Dubuque Department of Social Services. The principal caseworker assigned to supervise D. D. in Weld County was Mrs. Frankie Perdue.

In December 1977, M. D. was hospitalized at Weld County General Hospital and diagnosed

Page 628

as a "failure to thrive" baby because of inadequate weight gain since his birth. M. D.'s treating physician contacted Mrs. Perdue and recommended that M. D. be placed in foster care until his weight increased. Mrs. Perdue filed a dependency or neglect petition, and M. D. was temporarily placed in the custody of the department. The department placed M. D. in a foster home, where his weight increased to within the normal range. A. M. D. also had been residing in a series of foster homes, at D. D.'s request, since March 1977.

The children were returned to D. D.'s care in March 1978 after she expressed a willingness to provide for them and to seek counselling. On June 8, 1978, D. D. left the children at a day care center and was not at home when workers from the center made repeated attempts to deliver the children to her later in the day. The children were placed in a receiving home, and the department petitioned for and was granted temporary custody on June 12, 1978. Shortly thereafter the department filed an amended petition alleging that both A. M. D. and M. D. were dependent or neglected children. The court appointed an attorney for D. D. and a guardian ad litem for the children.

On January 17, 1979, the department amended its petition to allege that the children were dependent or neglected because D. D. had "on numerous occasions voluntarily placed the children in the custody of the Weld County Department of Social Services and (D. D.) has been unable to provide a home which can continuously provide the necessary care for the subject children." D. D. admitted the allegations of the amended petition. The court then found that the children were dependent or neglected and approved a six-month treatment plan which included requirements that D. D. participate in mental health sessions, attend classes to improve her skills as a parent, and submit to a physical examination to determine whether her physical condition impaired her parental ability. The court deferred entry of a decree of dependency or neglect, and the children were continued in the custody of the department.

On July 11, 1979, the People moved to terminate the parent-child relationship, alleging that D. D. had not complied with the treatment plan, she was an unfit parent, and the conduct that had resulted in the finding of dependency or neglect was unlikely to change within a reasonable period of time. On July 20, 1979, the district court formally adjudicated the children as dependent or neglected and ordered that they remain in the custody of the department. A termination hearing was held in February 1980. During the termination hearing a dispositional report prepared by the department caseworker, Mrs. Perdue, was admitted into evidence over D. D.'s hearsay objection. Also admitted into evidence, without objection, was a report by the Children's Diagnostic Center of the University of Colorado Medical Center to which the court had referred D. D. and her children for an evaluation. Both the department and the Children's Diagnostic Center recommended that D. D.'s parental rights be terminated. On February 22, 1980, the court orally ruled from the bench at the conclusion of the evidence and terminated D. D.'s parental rights. On February 27, 1980, five days after its oral ruling, the court entered a written order, nunc pro tunc February 22, terminating the parent-child relationships between D. D. and her two children, A. M. D. and M. D. In support of this disposition the court set forth conclusions in accordance with the statutory criteria for termination contained in section 19-11-105, C.R.S.1973 (1978 Repl.Vol. 8).

D. D. filed a motion for a new trial on March 7, 1980, alleging principally the insufficiency of evidence to support the court's order of termination. The People objected to the motion as untimely because it had been filed more than 14 days, rather than within 10 days, after the court's oral ruling on February 22, 1980. On June 3, 1980, after a hearing, the court denied the motion for a new trial. In a later ruling on D. D.'s motion for enlargement of the time for filing a new trial motion, the court elaborated on its denial of D. D.'s new trial motion, stating:

Page 629

When I ruled on the Motion for New Trial on June third, I ruled on the merits and I did not deny the Motion ... on the ground that it was untimely filed. At that time, although not announced, my view was ... that the ten day period commenced to run on February 27, the day I signed the order terminating parental rights, although it was nunc pro tunc as of February 22.

That being the case, the Motion was filed on the 9th day, within the ten day period provided by the rules.

Although several issues have been raised on this appeal, our disposition renders it unnecessary to address all of them. 2 We consider first the People's contention that D. D.'s motion for a new trial was not timely filed and therefore D. D.'s appeal should be dismissed. Next we address D. D.'s assertion that she was not adequately advised of her constitutional and other legal rights as required by statute. We then turn to D. D.'s argument that use of the preponderance of the evidence standard in the adjudicatory and dispositional stages of a dependency or neglect proceeding in which termination of parental rights is sought violates due process of law, and finally consider D. D.'s contention that the court erred in admitting into evidence the department's dispositional report and the evaluative report prepared by the Children's Diagnostic Center.

II. The Motion for a New Trial.

The People initially argue that D. D.'s appeal should be dismissed because her motion for a new trial was untimely filed. We disagree.

The time for filing a motion for a new trial commences on the date of the entry of the final judgment or, in this case, the decree of termination. People in the Interest of E. A., 638 P.2d 278 (Colo.1981); People in the Interest of F. M., Colo.App., 609 P.2d 1123 (1980). Although C.R.J.P. 20(a) was repealed effective July 1, 1980, it nevertheless governed the time for filing a motion for a new trial in this proceeding. The rule provided:

A motion for new trial or rehearing shall be in writing and shall be made within ten days of entry of the order or decree unless time is enlarged by the court. It shall state the particulars in which the order or decree is in error and the grounds for such motion.

The Rules of Juvenile Procedure are silent on the entry of a judgment of decree. Under C.R.J.P. 1 we therefore must look to the Rules of Civil Procedure, particularly C.R.C.P. 58(a), 3 for guidance on this matter.

Page 630

It is clear in this case that the court did not intend its oral ruling of February 22, 1980, to be the judgment in the case. In fact, because the court believed that no judgment had been entered on this occasion, it refused to dismiss D. D.'s motion for a new trial as untimely filed and instead denied it on its merits. C.R.C.P. 58(a)(2) provides, in pertinent part, that upon a decision by the court granting relief-other than relief in the form of a general jury verdict, or a sum certain or costs, or a denial of all relief-" the court shall promptly prepare a written form of the judgment, and the clerk shall thereupon enter it on the register of actions as provided by Rule 79(a)." Under the circumstances of this case we believe the court's written decree of February 27, 1980, which expressly "ordered, adjudged and decreed" that the parental relationship between D. D. and her children "be and hereby is terminated for all time," constitutes "a written form of the judgment" within the intendment of C.R.C.P. 58(a)(2). See, e.g., Poor v. District Court, 190 Colo. 433, 549 P.2d 756 (1976); In re Marriage of Gardella, 190 Colo. 402, 547 P.2d 928 (1976); Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo.App. 252, 539 P.2d 137 (1975). Since D. D.'s motion for a new trial was filed within ten days after the court's written decree, we hold that the motion was timely filed. Id. Thus the trial court was not deprived of jurisdiction to...

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151 practice notes
  • Kelley v. Kelley, No. 104,787.
    • United States
    • Supreme Court of Oklahoma
    • December 18, 2007
    ...(1997); Thorlaksen v. Thorlaksen, 453 N.W.2d 770 (N.D.1990); Schmitz v. Schmitz, 351 N.W.2d 143 (S.D.1984); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982); State ex rel. Fisher v. Devins, 294 Minn. 496, 200 N.W.2d 28, 59 A.L.R.3d 1331 (1972); In re Kramer, 177 Mont. 61, 580 P.2d 439......
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...of parental rights are wholly statutory. Israel v. Allen, 195 Colo. 263, 577 P.2d 762 (1978) (adoption); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982) (parental The statutes governing parental relinquishment, § 19-5-101, et seq., C.R.S. (1993 Cum.Supp.), and adoption, § 19-5-210, e......
  • In the Matter of Minor Child D.I.S.Alan Sidman v. Sidman, No. 09SC483.
    • United States
    • Colorado Supreme Court of Colorado
    • April 11, 2011
    ...in which the state seeks to terminate parental rights wherein the clear and convincing standard of proof applies. See In re A.M.D., 648 P.2d 625, 641 (Colo.1982); L.L. v. People, 10 P.3d at 1276 (reasoning that the greater the deprivation, the greater the procedural protection provided to p......
  • In re Noelia M., Nos. F04–CP–12–009499–A
    • United States
    • Superior Court of Connecticut
    • August 19, 2014
    ...in the termination proceeding.” (Citations omitted; footnote omitted; internal quotation marks omitted.) In the Interest of A. M. D., 648 P.2d 625, 638–39 (Colo.1982) (en banc).Courts in two other jurisdictions have come to the same conclusion. The Appellate Court of Washington explained th......
  • Request a trial to view additional results
151 cases
  • Kelley v. Kelley, No. 104,787.
    • United States
    • Supreme Court of Oklahoma
    • December 18, 2007
    ...(1997); Thorlaksen v. Thorlaksen, 453 N.W.2d 770 (N.D.1990); Schmitz v. Schmitz, 351 N.W.2d 143 (S.D.1984); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982); State ex rel. Fisher v. Devins, 294 Minn. 496, 200 N.W.2d 28, 59 A.L.R.3d 1331 (1972); In re Kramer, 177 Mont. 61, 580 P.2d 439......
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...of parental rights are wholly statutory. Israel v. Allen, 195 Colo. 263, 577 P.2d 762 (1978) (adoption); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982) (parental The statutes governing parental relinquishment, § 19-5-101, et seq., C.R.S. (1993 Cum.Supp.), and adoption, § 19-5-210, e......
  • In the Matter of Minor Child D.I.S.Alan Sidman v. Sidman, No. 09SC483.
    • United States
    • Colorado Supreme Court of Colorado
    • April 11, 2011
    ...in which the state seeks to terminate parental rights wherein the clear and convincing standard of proof applies. See In re A.M.D., 648 P.2d 625, 641 (Colo.1982); L.L. v. People, 10 P.3d at 1276 (reasoning that the greater the deprivation, the greater the procedural protection provided to p......
  • In re Noelia M., Nos. F04–CP–12–009499–A
    • United States
    • Superior Court of Connecticut
    • August 19, 2014
    ...in the termination proceeding.” (Citations omitted; footnote omitted; internal quotation marks omitted.) In the Interest of A. M. D., 648 P.2d 625, 638–39 (Colo.1982) (en banc).Courts in two other jurisdictions have come to the same conclusion. The Appellate Court of Washington explained th......
  • Request a trial to view additional results

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