PEOPLE, INT. OF R.D.S., 32 Colo. App. 26 (1973)

(507 P.2d 481)

The People of the State of Colorado in the Interest of R.D.S., Upon the Petition of S.F.M., by P.J.B., Next Friend, and Concerning A.S.

No. 72-198 Colorado Court of Appeals.
Decided January 23, 1973. Rehearing denied February 14, 1973. Certiorari granted March 26, 1973.

Paternity action. From jury verdict finding respondent not the father of her child, petitioner appealed.

Affirmed

1. PARENT AND CHILD — Exhibition of Child — Paternity Action — Existence Not in Dispute — Ample Evidence — Excluding Child — Courtroom — Not — Abuse of Discretion. Since, in paternity action, existence of child was not in dispute and since there was ample evidence to support a verdict for either petitioner or respondent, exhibition of the child to the jury would have had no probative value; thus, there was no abuse of discretion in trial court’s ruling excluding child from courtroom during the trial.

Appeal from the Juvenile Court of the City and County of Denver, Honorable John Robert Evans, Judge.

Max P. Zall, City Attorney, Frank A. Elzi, Assistant, John Gross, Assistant, Robert A. Powell, Assistant, for petitioner-appellant.

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Welborn, Dufford, Cook, Phipps Brown, Thomas G. Brown, for respondent-appellee.

Division II.

Opinion by JUDGE ENOCH.

Petitioner-appellant, S.M., initiated paternity proceedings alleging that respondent-appellee, A.S., was the father of her child, R.D.S., born April 25, 1966. Trial was to a jury in 1972 which determined that A.S. was not the father. S.M. appeals from the judgment entered on the verdict. We affirm.

The only issue raised in this appeal is whether the trial court erred in excluding the child from the courtroom during the trial. Prior to trial appellee moved that appellant not be allowed to display the child before the jury. This motion was granted over appellant’s objection.

Appellant contends that in a paternity action the child has an absolute right to be present in court to be viewed by the trier of fact or, in the alternative, that if the trial court has discretion to exclude the child the court abused that discretion in the instant case. In support of the “absolute right” argument appellant asserts that the law in Colorado is now clear and that the instant case is controlled by the decision of this court in In Re the People of the State of Colorado in the Interest of an Unborn Child, 494 P.2d 606. That case (not selected for official publication) does not support appellant’s contention. The opinion in that case states only that the trial court had not erred in allowing the child to be exhibited for a few moments for the purpose of proving the existence of the child.

Both counsel have cited cases from other jurisdictions which express a variety of views on the question of whether the child has a right to be present in court in a paternity case. The issue has not been determined in Colorado by an appellate court. We now hold that in a paternity action the question of whether the child is to be exhibited before the trier of fact is a discretionary matter on the part of the trial court, and its

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determination will be upheld on review in the absence of an abuse of that discretion. Roberts v. State, 205 Okla. 632, 240 P.2d 104.

[1] The remaining question is whether the trial court abused that discretion. The court ruled that exhibition of the child in this case would have been of no probative value. Appellant made no offer of proof and advanced no argument that could have been a basis for this court to determine that the trial court was in error. The existence of the child was not in dispute, and there was ample evidence to support a verdict for or against either party. The exhibition of the child would have had no probative value in this case in light of the record. Thus, we find no abuse of discretion in the court’s ruling.

Judgment affirmed.

CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.

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