Opinion
Gerald Ashby, Grand Junction, for petitioner-appellee.
Joseph A. Hambright, Grand Junction, for respondents-appellants.
COYTE, Judge.
A petition was filed by the Mesa County Department of Public Welfare on July 2, 1971, alleging that R. L., a child of R. L. and B. L., was a dependent and neglected child. After hearing, the court found that the parents R. L. and B. L. had abandoned their child. It then sustained the petition, and at a subsequent hearing terminated the parental rights of the parents. They appeal. We affirm that portion of the decree determining that the child was a dependent and neglected child, but reverse that portion of the decree terminating parental rights.
The child, R. L., was born in the summer of 1970, and because of its mother's ill health was left with one family and then another for short periods of time. Mr. L. is a Mexican National, and Mrs. L. is in the United States on a visa without time limit from a foreign country. On or about May 10, 1971, Mr. L. became concerned about his visa from Mexico and determined that he and his wife should go to Mexico to straighten out his visa problem. Before leaving on May 15, 1971, they left the child with a friend and signed the following paper:
'We have given permission for Mr.s&sMrs. Joe E. and Barbara L. Diaz to adopt (R. L.) born 26 July 1970.
We the undersigned give up all rights to this baby.
s/ (B. L.)
(R. L.)'
Mrs. L. testified that she had been drinking when she signed the paper and did not know the significance of what she had signed. Two apparently disinterested persons testified that they had witnessed the signing, that there had been no drinking, and that there had been some discussion prior to the actual signing. Mr. L. could not speak nor understand much English, but testified in court to the effect that he understood that they were giving up the baby. Between May 15 and August 19, 1971, Mr. and Mrs. L. corresponded with the Diaz's and also talked to them by telephone twice. However, Mrs. Diaz testified that the contacts were by Mrs. L. for the purpose of getting information on the child so as to help in obtaining the visa, and to borrow money. They had been delayed enroute to Mexico because of financial difficulties and had to work in Arizona in order to obtain funds.
On July 2, 1971, the Mesa County Welfare Department found that the baby had been left with the Diaz's. The filing of the petition followed, the sole reason for its filing being that the child was without legal guardian. There was no allegation that she was mistreated or unattended. Mr. and Mrs. L. were served by mail on August 19, 1971, the citation being received by them at Tucson, Arizona, on August 21, 1971. They then contacted an office they presumed to be the Legal Aid office in Tucson, wrote to the clerk of the district court, and returned to Grand Junction to contest the dependency and neglect petition and the termination of their parental rights.
The consent to adopt signed by Mr. and Mrs. L. would have no legal effect other than that it would be evidence of an intent to abandon the child. See Fackerell v. District Court, 133 Colo. 370, 295 P.2d 682. The evidence was conflicting as to the reason for and circumstances surrounding the signing of the consent. However, the trial court having resolved conflicting evidence in favor of petitioner, its findings will not be disturbed on review, even though it would be possible for reasonable men to arrive at different conclusions based on the same facts. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453. Therefore, since by statute, 1967 Perm.Supp., C.R.S.1963, 22--1--3(19)(b), a child whose parents have abandoned it is a dependent or neglected child, we affirm the trial court's finding that the child R. L. was dependent and neglected.
The evidence is clear that Mr. and Mrs. L. left their child with their friends, Mr. and Mrs. Diaz, on or about May 10, 1971. They returned to Grand Junction and appeared in court on Spetember 24, 1971, when they requested the appointment of an attorney so that they could retain or regain custody of their daughter. In the interim, there were telephone calls and correspondence with Mr. and Mrs. Diaz concerning the child.
The only evidence in the record relative to the care of the child was that Mrs. L. was a good mother and that she kept her child and house clean. A careful reading of the record reveals that there was no evidence in the record to support the termination of parental rights by other than a finding of abandonment.
The applicable statute, 1967 Perm.Supp., C.R.S.1963, 22--3--11(3), provides as follows:
'When a child has been adjudicated neglected because he has been willfully abandoned by his parent or parents, the court may enter a decree terminating parental rights in the child, if it finds that the parent or parents having legal custody have surrendered physical custody for a period of at least six months and during this period have not manifested to the child or the person having physical custody a firm intention to resume physical custody or to make arrangements for the care of the child.'
The six-months period of time established by the above statute had not elapsed when Mr. and Mrs. L. appeared in court to resist the dependency petition. Under these circumstances, ordering a termination of parental rights was contrary to the clear language of the statute and constitutes error.
The decree of the court that the child was a dependent and neglected child within the meaning of the statute is affirmed. That portion of the decree terminating respondents' parental rights to the child is reversed, and the case is remanded for further proceedings consistent with this opinion.
PIERCE and SMITH, JJ., concur.