Opinion
Rehearing Denied Oct. 27, 1971.
James A. Cain, Lakewood, for petitioners-appellees.
Thomas R. Moeller, County Atty., Golden, for Child.
Robert Gordon, Golden, for respondent-appellant.
COYTE, Judge.
The child in this case is the natural daughter of the appellant, who is presently serving a life term in Missouri State Prison for the murder of the child's mother and maternal grandparents.
After the appellant was sent to prison, the custody of the child was placed in the St. Louis County Child Welfare Service on July 12, 1962, which in turn placed the child with the petitioners in this case, who were related to the child. The petitioners subsequently moved to Colorado with the child. They filed a petition in the District Court in Jefferson County in which they alleged that the child was neglected and dependent and sought a judgment terminating the parental rights of the appellant and the rights of the St. Louis County Child Welfare Services. Trial was held before a jury which returned a verdict finding the child neglected and dependent. In accordance with the verdict, the trial court entered judgment terminating the rights of the appellant as a parent, placed the child in the custody of the Jefferson County Welfare Department, and authorized the department to place the child in the home of the petitioners.
I.
Appellant's first asserted error is that the court lacked jurisdiction. Specifically, he contends the Colorado courts do not have jurisdiction over the child because of the fact that the State of Missouri originally awarded custody of the child to the St. Louis County Welfare Department, and argues that the State of Colorado may not make arrangements for the child's welfare contrary to the orders issued by the Missouri courts.
The petitioners, with whom the child has been living for the past eight and one-half years, have made their home in Colorado for the past several years and have supported the child without any financial aid from the State of Missouri. The State of Missouri waived service of process in this case, and, through its Director, St. Louis County Child Welfare Services consented that hearing be held as set forth in the petition. It is not a party to this proceeding. There is no dispute between the Colorado and Missouri courts over which state has jurisdiction of this child; the state of Missouri, by its acquiescence in this proceeding, has in effect surrendered custody to the Colorado court. The Children's Code confers jurisdiction on the Colorado court over the child where the child was physically residing within the jurisdiction of the court at the time of the filing of the petition alleging that the child was neglected and dependent. 1967 Perm.Supp., C.R.S.1963, 22--1--1 et seq.
II.
The appellant also urges that the evidence in this case does not support the jury's finding that the child was a neglected and dependent child under the statute, and that therefore the trial court erred in terminating his rights as a parent. We disagree.
The trial court is authorized by 1967 Perm.Supp., C.R.S.1963, 22--3--11, to terminate the parental rights of the natural parent if a child has been found 'neglected or dependent.' A 'neglected or dependent' child is defined in 1967 Perm.Supp., C.R.S.1963, 22--1--3(19), and includes as such a child one:
'(c) Who lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian;
(d) Whose environment is injurious to his welfare;
(e) Whose parent, guardian, or legal custodian fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for his health, guidance, or well-being; * * *.'
The appellant has not provided for the well-being of the child for the past several years. The verdict of the jury determining that the child was neglected and dependent was fully supported by the evidence. The termination of appellant's parental rights, based upon the jury's finding that the child was neglected and dependent, was a proper disposition in accordance with the discretionary powers granted the trial courts under 1967 Perm.Supp., C.R.S.1963, 22--3--11. III.
Another asserted error by the appellant concerns the possibility of prejudice existing on the part of the jury which he alleges required the court to order a new trial.
The reason given concerns the opening statement by the petitioner's counsel in which reference was made to the murder of the child's mother and maternal grandparents by the appellant. The appellant claims this statement would so prejudice the jury as to deny him a fair hearing. He requested a mistrial, which was refused by the trial court at the time, and he now urges as error the reference to the murder of the child's mother and grandparents.
The fact of appellant's imprisonment was brought to the jury's attention several times during trial by both sides. It is appellant's claim, however, that the reason for this imprisonment should not have been disclosed because of its possible prejudicial effect, whereas petitioners assert that it was a pertinent fact since the jury was informed why the child's mother was unavailable to care for her.
Our conclusion is that this error, if any, would be harmless in this instance. The issue, of course, was whether or not the child was neglected and dependent under our statute. The evidence presented in this case established beyond dispute that the child's natural father had not provided for her nor made any arrangements to provide for her care and well-being since his imprisonment.
In general, where there is alleged error, there must be an indication that a different result might have been reached if the particular error complained of had not been made. Since appellant would not have been entitled to a verdict in any event, these remarks do not require reversal. Smith v. Vinland, 53 Colo. 487, 127 P. 1022.
IV.
Appellant also claims prejudice by virtue of the fact the female petitioner in this case used a rest room at the same time female jurors were occupying it. This was brought out by affidavit of appellant's mother, who stated that she witnessed the petitioner and the jurors enter the rest room at the same time.
However, no facts were introduced, nor allegations made, that any improper communication took place at this time. This is not an instance in which there has been proof of communication between a party and a juror, but merely an instance in which there was a possibility that the petitioner and juror might have communicated. This is insufficient in itself to establish reversible error. Beals v. Cone, 27 Colo. 473, 62 P. 948.
We have considered the other assignments of error and find them to be without merit.
Judgment affirmed.
DWYER and DUFFORD, JJ., concur.