Opinion · Colorado Court of Appeals
People in Interest of CO
People in Int. of CO, 541 P.2d 330 (Colo. App. 1975)
- Type
- Opinion
- Court
- Colorado Court of Appeals
- Jurisdiction
- Colorado
- Date
- 1975-09-09
- Topic
- general
How later courts describe this case
- absent any showing to the contrary, we must presume that a trial court considered only those matters properly before it
Citator
UpLaw has not yet analyzed People in Interest of CO. The absence of a flag is not a finding that it is good law.
- Cited by
- 7 opinions
PEOPLE IN INT. OF C.O.,36 Colo. App. 298(1975)
(541 P.2d 330)
The People of the State of Colorado,
In the Interest of C.O., a child, Upon
the Petition of K.B., and Concerning A.B.O.
No. 74-492
Colorado Court of Appeals.
Decided July 22, 1975. Opinion modified and as modified petition for
rehearing denied. Certiorari denied November 3, 1975.
Murray Richtel, Robert W. Brandes, Jr., for respondent-appellant.
Division III.
C.O. was born on February 3, 1971. There was no marriage between A.B.O. and the father and he has never contributed to the support of either mother or child. The evidence at both the combined adjudicatory and dispositional hearing and on the motion for new trial established that during the first year of her life, C.O. developed normally; she had, however, been born prematurely and remained small for her age. During this period, A.B.O. andPage 300C.O. were living in Denver and receiving aid and supervision from the Denver County Welfare Department. During C.O.'s second year of life, A.B.O., who had moved to Boulder County, did not receive any sustained supervision of mothering techniques and basic child care from that county's welfare department. C.O. gained less than two pounds of weight during that second year and her health deteriorated to the point where attending physicians adduced that she had symptoms of a severe "failure to thrive."Dependency and Neglect[1]After reviewing the full record, we are convinced that C.O.'s failure to thrive was established with a reasonable degree of medical certainty, as resulting from malnourishment and the limited ability of A.B.O. to satisfy the emotional needs of the child. It was A.B.O.'s responsibility to supply C.O. with a proper diet and to provide the necessary love and affection to satisfy the child's emotional requirements. A.B.O.'s failure to do so justified the court's conclusion that C.O. was dependent and neglected.Daugaard v. People in the Interest of Daugaard,176 Colo. 38,488 P.2d 1101. The adjudication of dependency and neglect is therefore affirmed.Termination of Parental Rights[2]As we stated inPeople in the Interest of K.S. and M.S.,33 Colo. App. 72,515 P.2d 130, quoted with approval inPeople in theInterest of M.M.,184 Colo. 298,520 P.2d 128, parental rights cannot be terminated unless there is: (1) A history of severe and continuous neglect; (2) a substantial probability of future deprivation; and (3) a determination that under no reasonable circumstances can the welfare of the child be served by a continuation of the legal relationship of the child with the parent. Implicit in the trial court's findings of dependency and neglect based upon evidence of "failure to thrive" is the finding that such neglect is continuous and severe.[3]The "failure to thrive" syndrome does not arise as a result of a single or even a few instances of deprivation by the parent or parents but must, by its very nature, be the result of neglect or deprivation continuing over a sufficiently long period of time that there occurs a clearly apparent difference between the growth and development of thePage 301deprived child and that of a child who receives normal love and care over a comparable period. Moreover, the fact that, over an extended period, there is a medically significant difference between the progress and development of the deprived child and that of normal children attests to the severity of the neglect. Thus, the trial court's finding here, as to the manner in which the child was neglected or became dependent, is sufficient to meet the first test enunciated inK.S., supra.[4]The trial court expressly found in its order denying the motion for a new trial and reaffirming the order of termination that: "under no reasonable circumstances could the welfare of the child be served by a continuation of the parent-child relationship . . . . To do so would subject the child to the jeopardy of malnutrition, inhibited development, and an unstable physical and emotional environment." Thus, as enumerated inK.S., supra, each of the prerequisites necessary for termination of parental rights have been found to exist by the trial court, and, although evidence to the contrary was presented, there is evidence to support those findings made by the trial court. Hence, although we might have reached a different conclusion, had we been the triers of fact, we may not substitute our judgment for that of the trial court.Adler v. Adler,167 Colo. 145,445 P.2d 906. We note that the alternative remedies referred to inPeople in the Interest of M.M.,supra, had in large measure, been attempted in the instant case prior to the entry of the order reaffirming termination.
We have considered the documents submitted in supplementation of the record and the supplemental brief filed by the respondent and, in the absence of any showing to the contrary, we presume that the trial judge considered only those matters which were properly before him for that purpose. We therefore find no ground of reversible error to have been raised by the supplemental brief.
The judgment terminating parental rights is, therefore, also affirmed.
JUDGE ENOCH and JUDGE RULAND concur.Page 302