Opinion
No. 78-284
Decided January 11, 1979. Rehearing denied February 1, 1979. Certiorari granted April 16, 1979. Publication Effected October 25, 1979, by Order of Supreme Court.
From judgment finding children neglected and dependent, mother of children appealed.
Affirmed
1. APPEAL AND ERROR — Transcript — Testimony Included Hearsay — Irrelevant Matters — Incomplete Record — Trial to Court — Precludes Conclusion — Prejudicial Error — Evidence Insufficient — Judgment Affirmed. Although transcript made a part of the record on appeal showed that testimony of one witness contained much that was hearsay and irrelevant to the issues, the incompleteness of the record on appeal precludes the conclusion that the admission of this testimony in a trial to the court was prejudicial nor can it be concluded, on the partial record supplied, that the evidence was insufficient to support the trial court's conclusion that children were dependent and neglected; hence, the trial court judgment must be affirmed.
Appeal from the District Court of Prowers County, Honorable Robert Sanderson, Judge.
Johnson, McLachlan DiCola, M. Kent Olsen, Stanley A. Brinkley, for petitioner-appellee.
Lefferdink, Lefferdink and Stovall, John J. Lefferdink, for respondent-appellant.
J.M. and C.M. were adjudicated to be dependent or neglected children, and their father was given their temporary custody. The children's mother appeals the judgment of dependency or neglect, asserting that hearsay evidence was improperly admitted and that there was insufficient evidence to support the trial court's conclusion. We affirm.
The record before us consists of certain documents filed in the trial court, and portions of the testimony, some of which was received at what the trial court characterized as a "detention hearing," the remainder being portions of the testimony taken at the adjudicatory hearing. The transcript of the testimony at the adjudicatory hearing shows that the trial court took judicial notice of testimony received at the "detention" hearing. None of the testimony judicially noticed by the trial court is included in the record. Under these circumstances, we are unable to reach the questions presented for review. See Hinshaw v. Dyer, 166 Colo. 394, 443 P.2d 992 (1968).
[1] The judgment of a trial court is presumed to be correct, and the burden of showing error is on him who asserts it. See Hinshaw v. Dyer, supra; Laessig v. May DF, 157 Colo. 260, 402 P.2d 183 (1965). While the transcript shows that the testimony of one witness included much that was hearsay and irrelevant to the issues, we cannot conclude, based on a partial record, that the admission of this testimony in a trial to the court was prejudicial. Neither can we say, on a partial record, that the evidence was insufficient to support the trial court's conclusions. "We do not know what the evidence amounts to." Laessig v. May DF, supra.
The judgment is affirmed.
JUDGE ENOCH and JUDGE STERNBERG concur.