Opinion
May 22, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 477
Wells & Snydal, E. Ord Wells, Fort Morgan, for petitioner-appellee.
Kenneth C. Scull, Brush, for respondent-appellant.
COYTE, Judge.
This is an appeal from a judgment of the district court of Morgan County adjudicating a child as a dependent and neglected child and terminating parental rights of respondent.
The child, L. T. N., was born to respondent out of wedlock on July 21, 1969, in Las Vegas, Nevada. Respondent moved to Colorado in August of 1969 and subsequently resided in various communities within the state. Respondent resided in Sterling, Logan County, Clorado, at the time of the institution of this action. However, the child was then being cared for by a Morgan County resident. On June 23, 1970, a petition and affidavit for dependency and neglect and termination of parental rights were filed in the district court of Morgan County. On the same day a temporary order was entered, exparte, placing the child in the custody of the Department of Public Welfare of Morgan County. On February 26, 1971, the court, without a jury, entered an order of adjudication finding that the allegations of the petition were supported by a preponderance of the evidence and that the child was a dependent and neglected child. By disposition order, entered September 2, 1971, the court terminated the parental rights of the respondent and placed permanent custody of the child in the Department of Welfare. Respondent appeals alleging that the court erred in admitting hearsay evidence, that the evidence was insufficient to sustain the court's findings, that proper venue was in Logan County, and that respondent was not advised of her rights and was denied due process of law. We affirm the orders and judgment.
I.
Respondent in her brief generally alleges that hearsay evidence was admitted at various hearings and directs the attention of the court to the introduction of 'all exhibits'. Exibits objected to by respondent were written reports ordered by the court to be prepared by the Morgan and Logan County Welfare Departments, pursuant to 1971 Perm.Supp., C.R.S.1963, 22--1--8(2), concerning the ability of the respondent to care for the child. Respondent's counsel waived cross-examination of individuals who prepared two of these reports and cross-examined the individuals who prepared the other two reports admitted. Since respondent either examined the persons who prepared the reports or waived examination, these reports were admissible under 1971 Perm.Supp., C.R.S.1963, 1963, 22--1--8(2).
Exhibit F, a report concerning the child while in foster care, was received by the court after objection that the exhibit was immaterial. This exhibit may well have been immaterial, but there was no showing that it was prejudicial, since the report in no way concerned or affected respondent, or her care of the child. The burden rests on respondent to show affirmatively prejudicial error. Hollenbeck & Reeves v. Peterson, 115 Colo. 301, 172 P.2d 678. A decree will not be reversed for errors which are not shown to be prejudicial. Hadden v. Gateway West Publishing Co., 130 Colo. 73, 273 P.2d 733; Stahl v. Cooper, 117 Colo. 468, 190 P.2d 891.
II.
The second error alleged by respondent is that the evidence presented was insufficient to establish that L. T. N. was a dependent and neglected child. A review of the record discloses that the allegations of the petition and the judgment of the court were supported by competent evidence. Accordingly, the findings of the trial court will not be set aside on review. Robinson v. People, 173 Colo. 113, 476 P.2d 262.
III.
The third error asserted by respondent is that venue in Morgan County was improper. 1969 Perm.Supp., C.R.S.1963, 22--1--5(1), provides that proceedings shall be commenced in the county where the child resides or is present. In the instant case the child was present in Morgan County on June 23, 1970, the date the petition was filed; thus, the action was properly commenced in Morgan County and jurisdiction attached.
IV.
The fourth ground alleged as error is that the respondent was not advised of her rights and was denied due process of law. Service of process was personally made on respondent in Logan County, Colorado, on June 24, 1970. Respondent testified that she received the summons which set forth notice of hearing and notice of request for termination of parental rights. She specifically testified that she read the notice of her legal rights and privileges contained in the summons. The initial hearing on the petition was set for July 8, 1970, but was continued to July 13, 1970, at which time the court entered orders of adjudication and disposition. However, on a motion for new trial, when it was established that respondent had been unable to attend these hearings, the orders were vacated and the matter was set for new trial. On July 13, 1970, counsel was appointed for respondent and she was represented by counsel throughout the remainder of the proceedings. It appears clear from the record that respondent was adequately advised of her rights and the possibility of the termination of her parental rights. Respondent was given a full opportunity to be heard and offer evidence concerning her care of the child and any other evidence which she might want to introduce at the hearing. After the new trial was held on August 28, 1970, the court with consent of the parties continued the case until November 18, 1970, without ruling on the adjudication, so that further investigation could be made as to ability of respondent to care for the child. On November 18, 1970, the case was again continued to February 17, 1971, at which time testimony was offered and the court entered an order adjudicating the child as a dependent and neglected child and the case was continued until March 10, 1971, for disposition hearing. On that date the case was again continued until September 3, 1971, for dispositional hearing in accordance with 1967 Perm.Supp., C.R.S.1963, 22--3--9. Respondent failed to appear for this hearing and the court entered its judgment severing parental rights.
A review of the record reveals that every effort was made to protect the rights of the mother and her claim that she was not advised of her rights and was denied due process of law is without merit.
Judgment of adjudication and severance of parental rights affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.