Opinion
June 10, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 881
William H. Prendergast, Lakewood, for petitioner-appellant.
Anthony F. Vollack, Golden, for respondent-appellee.
KELLY, Judge.
Petitioner appeals from an order and decree of the trial court dismissing his petition for adoption of his stepdaughter. We affirm.
Petitioner alleged in his petition that the natural father of the child had 'abandoned and failed to reasonably support said child for a period of more than one (1) year.' The trial court found that petitioner's evidence failed to establish abandonment or nonsupport by the natural father and that, therefore, the petitioner had failed to show the availability of the child for adoption under s 19--4--107(1)(e)(II), C.R.S.1973 (1969 Perm.Supp., ,C.R.S.1963, s 22--4--7(1)(e)(II)). On appeal, petitioner argues that the evidence was insufficient to support the trial court's findings, and that the trial court erred in admitting a letter which was not properly identified and was hearsay. We disagree.
Parental rights cannot be terminated under s 19--4--107(1)(e)(II), thus rendering a child available for adoption, in the absence of a showing that they have been forfeited by abandonment or nonsupport. The requirements of the statute in this regard are mandatory. Allen v. Huffman, 135 Colo. 1, 307 P.2d 802. While it is true that it is not necessary to show both non-support and abandonment in order to terminate parental rights, buder v. Reynolds, 175 Colo. 28, 486 P.2d 432, here, the trial court's conclusion that neither had been proven by petitioner is supported by the record. We are bound, therefore, by the rule that findings of the trial court which are supported by the evidence may not be overturned on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
The trial court found that the mother of the minor child obtained a divorce from the natural father in June 1971 in Kansas City, Missouri. Custody of the child was given to the mother, but since the Missouri court did not have personal jurisdiction over the father, child support was not awarded in the divorce proceeding.
After the entry of the divorce decree, the mother sought support for the minor child under the Uniform Reciprocal Enforcement of Support Act in Blair County, Pennsylvania. The Pennsylvania court ordered the father to pay $12.50 per week for child support beginning in April 1971.
The trial court also found that payments were made by the father pursuant to that court order until March 1973, when he received a letter from an officer of the Pennsylvania court directing him to discontinue payments because, according to the letter, the wherabouts of the child could not be ascertained.
The trial court found, regarding abandonment, that the father had, from time to time, made efforts to visit the minor child. These efforts had been frustrated, however, by the actions of the mother and the maternal grandmother.
These findings are supported by the record, which shows, among other things, that five months after the mother and child left the father, he traveled to Missouri to see his daughter, who was living in the maternal grandmother's house. Both the mother and grandmother refused to allow him to take the child with him or to visit with her for more than a short time. He returned to his home in Pennsylvania shortly thereafter.
The mother subsequently remarried, and she and the child left the maternal grandmother's home. She did not inform either the child's father or the Pennsylvania court of her change of address. In August 1972, the mother, her new husband and the child moved to Colorado and again made no effort to inform the father or the court of this change of address.
The grandmother moved twice after 1970, causing the father further difficulty in locating his daughter, since the grandmother's address was the last known address of the mother and child. The father testified that the grandmother was hostile to him and unsympathetic to his efforts to see his child.
The father finally located his daughter in January 1974 and promptly resumed his child support payments. This stepparent adoption proceeding was commenced in February 1974, and when the father traveled to Colorado in April to visit his daughter, the mother refused to allow him to see the child.
Even the testimony of the mother and maternal grandmother supports the conclusion that they attempted to conceal the child's whereabouts from the father and to thwart his efforts to support and visit her. The evidence further shows that the father stopped making support payments only after one of his support payments was refunded and he was instructed by the Pennsylvania court to discontinue payments.
Petitioner's contention that the letter from the Pennsylvania court instructing the father to discontinue support payments was inadmissible hearsay is without merit. Evidence which is offered to prove only that a statement was made, and not the truth of the statement, is not hearsay. See Abeyta v. People, 156 Colo. 440, 400 P.2d 431; Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982. Here, the letter was offered for the sole purpose of showing the instructions received by the father which moved him to stop making support payments. Since the letter was not offered to establish the truth of the information on which these instructions were based, it was not hearsay. See Commercial Bank & Trust Co. v. Beach, 66 Colo. 226, 180 P. 982. Under these circumstances, the father's testimony that he received this letter from the Pennsylvania court, together with a refund check for support payments, was sufficient identification of the document. See Atlantic Insurance Co. v. Manning, 3 Colo. 224.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.