Opinion
May 26, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Kuttler, Redman & Anderson, Aurora, for appellant.
No appearance for appellee.
COYTE, Judge.
In accordance with the statute, we have substituted the initials of parties involved so as not to disclose identities.
This case involves an appeal from the refusal of the trial court to set aside under R.C.P.Colo. 60(b) a judgment decreeing a child, R.L.R., neglected and dependent.
R.S. and J.S. were married in 1959. At the time of the marriage, J.S. was the mother of R.L.R. who had been born on September 8, 1958, from a prior marriage.
J.S. moved from the family home in June, 1968, and R.L.R. remained with her stepfather, R.S.
On January 23, 1969, J.S. called R.S. and told him that she was coming for the child. He asked her to come on the evening of the 24th. He then consulted with the Jefferson County Department of Public Welfare and filed a verified petition requesting that R.L.R. be found to be a neglected or dependent child. He also filed a second petition stating that R.L.R. was presently living with her stepfather, R.S., and that the mother desired to take the child but that the mother presently was unable to furnish a good home environment, was unemployed, and transient. He requested that the Jefferson County Department of Public Welfare take temporary legal custody of R.L.R. with physical placement in his home. An order was entered to this effect and when J.S. came for the child on the evening of the 24th, she was presented with a copy of the order and advised that she could not take the child.
An effort was made by the sheriff's department to serve summons upon J.S. relating to a subsequent hearing in the matter of neglect and dependency, but she could not be found. R.S. thereupon signed an affidavit that her address was unknown and the court entered an order allowing service upon her by publication and set the date for the hearing as May 7 at 10:00 a.m. On this date the adjudicatory hearing was held and the court found that good and proper service had been had on J.S. The natural father was present in court for the hearing. The court heard evidence and at the conclusion of the evidence entered an order declaring R.L.R. a neglected and dependent child, and continued the matter for dispositional hearing.
Prior to the dispositional hearing, J.S. entered her appearance and filed a motion under R.C.P.Colo. 60(b) to set aside the decree of neglect and dependency entered on May 7, 1969.
She claimed that the court had obtained no service upon her because the order authorizing service by publication was fraudulently procured in that R.S. at all times knew her address and that the court had no jurisdiction in that the dependency and neglect proceeding involved only a quarrel between persons for the custody of R.L.R.
The court heard testimony in support of the motion under R.C.P.Colo. 60(b) on Decenber 3 from J.S., her mother, and R.S. as to where J.S. had resided during the past year, and as to R.S.'s knowledge of her whereabouts when he signed the affidavit for publication.
The court found from the evidence that R.S. did not know the whereabouts of J.S. when the motion to serve her by publication was signed; that there was good and complete service on J.S. by publication; and that there was no evidence presented in support of J.S.'s motion to relieve her from the final adjudicatory decree finding the child to be a neglected and dependent child. The court thereupon dismissed the petition to set aside the decree, and continued the case for dispositional hearing, which hearing might or might not sever all parental rights to the child so as to authorize the Jefferson County Department of Public Welfare to consent to the adoption of R.L.R. The case is now pending setting for the dispositional hearing in Jefferson County.
We are in agreement with the findings of the trial court. The court's finding that R.L.R. was a neglected and dependent child is not under attack in this court. None of the testimony taken at the hearing of May 7 was certified to this court. The sole question presented is the jurisdiction of the court and J.S.'s right to reopen to case because of her having been served by publication. The court found that the affidavit for service by publication was proper, since there was evidence in the record to support this finding. She is thereupon precluded from successfully challenging the same in this court.
J.S. claimed that the court had no jurisdiction in this neglect and dependency proceeding because the whole matter involves a controversy vying for the custody of the minor child and cites the cases of Kearney v. Blue, 137 Colo. 217, 301 P.2d 515, and Everett v. Barry, 127 Colo. 34, 252 P.2d 826, as her authority. These cases are not in point with the fact situation herein presented.
In the instant case the conflict is not between parties fighting for control of a child. The stepfathr, R.S., is not related to said child. He could not, as remarked by the trial court, authorize medical care and, in fact, had no legal authority over the child. He was authorized to file the petition by C.R.S. 1963, 22--3 et seq. and the subsequent finding by the court that the child was neglected and dependent verified the necessity for filing the petition.
Judgment affirmed.
DUFFORD and PIERCE, JJ., concur.