People in Interest of C. R. v. E. L.

• Decision Date: 16 September 1976
• Docket Number: No. 76--058,76--058
• Citation: 38 Colo.App. 252,557 P.2d 1225
• Parties: The PEOPLE of the State of Colorado in the Interest of C.R. et al., Petitioners-Appellees, and concerning E.L., Mother, Respondent-Appellant, and M.L., Father, Respondent. . I
• Court: Colorado Court of Appeals

Page 1225

557 P.2d 1225

38 Colo.App. 252

The PEOPLE of the State of Colorado in the Interest of C.R et al., Petitioners-Appellees and concerning E.L., Mother, Respondent-Appellant and M.L., Father, Respondent.

No. 76--058.

Colorado Court of Appeals, Div. I.

Sept. 16, 1976.

Rehearing Denied Oct. 21, 1976.

Certiorari Denied Dec. 27, 1976.

Harlan Johnson, Anthony J. DiCola, Lamar, for petitioners-appellees.

Tom O'Neill, Randall J. Kries, La Junta, for respondent-appellant.

PIERCE, Judge.

This is an appeal by the mother (E.L.) of four daughters (C.R., F.J.L., M.A.L., and C.B.L.) from a decree terminating her parental rights. In early 1975, E.L.'s daughters, ranging in age from four months to six years, were removed from her custody by the county department of social services. The reason for removal was the allegation that she had abused them or had permitted their mistreatment by another person. The children were subsequently adjudicated to be neglected or dependent, the three younger girls due to child abuse, and the eldest on a finding that E.L. was incompetent to provide her with reasonable care. See § 19--1--103(20)(a) & (b), C.R.S.1973. At the later dispositional hearing, the trial court entered an order terminating E.L.'s parental rights as to all four girls.

E.L. challenges both the order of termination and the earlier adjudication of dependency. We affirm.

I. THE DEPENDENCY DETERMINATION

We do not agree with E.L.'s contention that the trial court erred in adjudicating her daughters to be neglected or dependent. Extensive evidence established that a man cohabitating with E.L. had inflicted multiple injuries upon the three younger children over an extended period of time. Some testimony supported E.L.'s claim that she had sought to prevent their mistreatment, but that evidence also indicated that those efforts had been sporadic and unavailing. It was also shown that E.L. did not seek medical or other assistance for her children following the infliction of injuries. Under these circumstances, the trial court's finding that the three younger children were neglected or dependent, due to the failure of E.L. to prevent their mistreatment, must be affirmed. See § 19--3--106(6)(a), C.R.S.1973; People in the Interest of R.K. and S.K., 31 Colo.App. 459, 505 P.2d 37 (1972).

In support of her argument that there was error in adjudicating the oldest daughter, C.R., to be neglected or dependent, E.L. emphasizes the absence of evidence of physical injury to that child. As to the finding regarding her incompetency as a parent, she asserts error occurred because the dependency petition only alleged mistreatment, not incompetency. These arguments are not well taken.

Although physical injury to C.R. was not shown, it was proper for the trial court to consider treatment accorded the other children in reaching a conclusion regarding the non-abused daughter. See In re Dunagan, 74 Wash.2d 807, 447 P.2d 87 (1968). The trial court could reasonably infer that the non-abused child lacked proper parental care from the evidence establishing mistreatment of the others. In the Matter of P.N., 533 P.2d 13 (Alaska 1975); In re Miller, 40 Wash.2d 319, 242 P.2d 1016 (1952). Furthermore, although E.L.'s incompetency as a parent was not alleged in the petition, the trial court did not act improperly in adjudicating C.R. neglected or dependent on that basis. During the adjudicatory hearing, considerable evidence raising the issue of E.L.'s competence was received without objection, putting into question her ability to provide proper parental care for her daughters. Thus, the issue was properly raised. See C.R.J.P. 1; C.R.C.P. 15(b).

E.L. acknowledges the existence of evidence of her incompetence. She contends, however, that the trial court's finding in this regard was erroneous. This contention is not supported by the record. At the time of the adjudicatory hearing, the trial court was aware of E.L.'s limited mental capacity, and had heard evidence demonstrating her inability to perceive or cope with the injuries inflicted upon her children. Under these circumstances, the trial court properly found all four children to be neglected or dependent.

II. TERMINATION OF PARENTAL RIGHTS

E.L. also contends that the trial court erred in terminating her parental rights following the consequent dispositional hearing. She argues that the trial court failed to consider realistic alternatives to termination which were shown to exist by the evidence, and that the trial court's findings in support of termination do not comply with those outlined by the Colorado Supreme Court in People in the Interest of M.M., 184 Colo. 298, 520 P.2d 128 (1974). We do not agree.

In decreeing termination of parental rights, a trial court must find that the conditions which resulted in the earlier determination of dependency will in all probability continue into the...