Opinion
No. 74-356
Decided March 18, 1975.
As a result of adjudicatory hearing tried to a jury, juvenile court entered order declaring children dependent or neglected, and mother of the children appealed.
Reversed
1. PARENT AND CHILD — Dependency or Neglect Petition — Adjudicatory Hearing — Question at Issue — Not — Parents Custody Rights. The question to be resolved in adjudicatory hearing on dependency or neglect petition is not the comparative rights of the various parents to custody, nor whether they can resolve their differences as to custody of various children, but rather whether the children are neglected or dependent as that condition is defined in the Children's Code.
2. Parents' Custody Dispute — Not Justify — Adjudication — Child — Dependent or Neglected. In defining a neglected or dependent child, the statute makes no reference to whether the parents can "satisfactorily resolve the issue of custody . . . without the intervention and determination of the court," and a dispute between parents as to the right of custody is not such a controversy as to justify an adjudication of dependency.
3. INSTRUCTIONS, CIVIL — Dependency or Neglect Hearing — Error — Inject — Parental Custody Dispute — Matter Before Jury. It is error to give an instruction which creates an issue of fact tending to mislead or divert the minds of the jury from the real factual issues; accordingly, the trial court, in dependency or neglect hearing, erred in giving an instruction to the jury which injected parental custody dispute into matter before the jury.
4. PARENT AND CHILD — Dependency or Neglect — Adjudicatory Proceedings — Testimony — Dispositional Matters — Erroneously Allowed. Testimony as to dispositional matters had no place in dependency or neglect adjudicatory proceedings and should not have been allowed, and the receipt of this type of evidence triggered improper closing argument relative to custody and dispositional matters.
Appeal from the District Court of the County of Adams, Honorable James J. Delaney, Judge.
S. Morris Lubow, County Attorney, Michael F. Swanson, Deputy County Attorney, for petitioner-appellee.
Larry D. Tannenbaum, for respondent-appellant.
A petition was filed on behalf of the People of the State of Colorado in the interest of W.C., J.C., and B.H. in the Juvenile Court of Adams County alleging that said children were neglected or dependent children. Respondents named were A.C., father of W.C. and J.C.; D.H., father of B.H.; and L.J.H., the mother of all three children. A.C. appeared pro se; D.H. did not appear; and L.J.H. appeared with counsel. The adjudicatory hearing was tried to a jury which returned a verdict that the petition had been proved. The court then entered an order declaring all three children dependent or neglected and making them wards of the court.
L.J.H. appeals the order of the court contending that the court erred in allowing the issue of custody and dispositional matters to be included in the instructions and in allowing evidence and argument to be presented to the jury on this issue. We agree and reverse.
The first instruction given the jury provided, in part, as follows:
"The issues for you to determine, from the evidence before you are these:
"As between [A.C. and L.J.H.] can the parties satisfactorily resolve the issue of custody of their two children without the intervention and determination by the Court?
"Regardless of which parent may have custody of the [C] children, is there need for continued supervision and protective services by the Court or its designated agent?
"As between Mr. and Mrs. [H], can the parties satisfactorily resolve the issues of custody and support as to [B.H.] without the intervention and determination by the Court?
"Regardless of which parent may have custody of [B.H.], is there need for continued supervision and protective services by the Court or its designed agent?
"If you answer either question as to the [C] children in the affirmative, then you should find that the Petition has been proved as to those children and as to [L.J.H.].
"If you answer both questions in the negative you should find the Petition has not been proved as to [L.J.H.] as the mother of the [C] children.
"If you answer either issue as to [B.H.] in the affirmative then you should find that the Petition has been proved as to [D.H.] and as to [L.J.H.] as the mother of [B.H.].
"If you answer both issues in the negative, you should find that the Petition has not been proved as to [L.J.H.] and as to [B.H.]."
[1,2] The question to be resolved in this type of hearing is not the comparative rights of the various parents to custody, nor whether they can resolve their differences as to custody of the various children, but rather whether the children are neglected or dependent as that condition is defined in § 19-1-103(20), C.R.S. 1973. In defining a neglected or dependent child, the statute makes no reference to whether the parents can "satisfactorily resolve the issue of custody . . . without the intervention and determination by the court," and a dispute between parents as to the right of custody is not such a controversy as to justify an adjudication of dependency. Kearney v. Blue, 134 Colo. 217, 301 P.2d 515; Everett v. Barry, 127 Colo. 34, 252 P.2d 826.
[3] It is error to give an instruction which creates an issue of fact tending to mislead or divert the minds of the jury from the real factual issues. Houser v. Eckhardt, 168 Colo. 226, 450 P.2d 664. Accordingly, the court erred in the giving of the above instruction.
[4] Additionally, testimony as to dispositional matters had no place in the adjudication proceedings and should not have been allowed, and the receipt of this type of evidence triggered improper closing argument relative to custody and dispositional matters. See People in re K.S., 33 Colo. App. 72, 515 P.2d 130.
Judgment reversed and cause remanded for a new trial.
JUDGE SMITH and JUDGE RULAND concur.