RESPONDENT MOTHER'S MOTION IN LIMINE REGARDING OTHER ACTS EVIDENCE

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1 DISTRICT COURT, COUNTY, STATE OF COLORADO The People of the State of Colorado in the Interest of Children: Petitioner: And Concerning:, Respondents COURT USE ONLY Attorney for Respondent Mother Douglas T. Cohen, Reg. No Peak Legal Services, LLC 600 Grant St., Suite 206 Denver, CO Phone: Fax: Case No. Div.: Ctrm.: RESPONDENT MOTHER'S MOTION IN LIMINE REGARDING OTHER ACTS EVIDENCE Respondent Mother, by and through her counsel, Douglas T. Cohen, of Peak Legal Services, LLC, respectfully submits her Motion in Limine to preclude testimony and exhibits of prohibited character evidence unrelated to parental fitness in the instant case. 1. Petitioner filed a Motion to Terminate Parent-Child Legal Relationships between the children, regarding both Respondent Mother and Respondent Father on February --, The matter is set for a termination of parental rights hearing to commence the week of May --,

2 2. Counsel for petitioner has formally endorsed 37 witnesses and provided Respondent with more than a thousand pages of discovery, with additional discovery coming. Petitioner recently sent an narrowing that list down to about a dozen witnesses Petitioner plans to call in its case in chief. Upon information and belief, Petitioner intends to illicit testimony from or introduce exhibits through some of these witnesses regarding prior dependency and neglect actions unrelated to the children named in this case as well as Respondent Mother s contacts with police unrelated to this case. 3. It would be improper for this Court to consider other acts evidence at the termination hearing regarding prior dependency and neglect actions, other than to establish either that Respondent Mother s rights were terminated as to prior born children not named in this case, or that the children that are named in this case were named in prior dependency and neglect cases involving Respondent Mother. The existence of prior dependency and neglect actions involving the same children or termination of parental rights involving other children can be established by taking judicial notice of registry of actions (and possibly by potential stipulation of the parties). Testimony regarding the facts and circumstances of those other actions is neither relevant nor permissible and would introduce unduly prejudicial evidence in the hearing. 4. The questions this Court must resolve are whether Petitioner has proven by clear and convincing evidence that Respondent Mother, in her current status, is unfit to parent based on an alleged failure to complete a treatment plan that was adopted by the Court as appropriate in the instant case and reasonably capable of success. The termination hearing process stems from an initial shelter or temporary custody hearing followed by an adjudicatory proceeding that focuses on the current status of the child(ren) named in the petition, and whether state intervention is warranted based on the child(ren) s current status as dependent and neglected or not. See K.D. v. People, 139 P.3d 695, 699 (Colo. 2006). 5. Pursuant to section (2)(i), C.R.S., in determining a parent s fitness the Court shall consider: That any parent who is a named respondent in the termination proceeding has had prior involvement with the department of human services concerning an incident of abuse or neglect involving the child and a subsequent incident of abuse or neglect occurs. (e.s.). 6. The plain reading of subsection (i) is that the Court may consider Respondent Mother s prior involvement with the Department regarding abuse or neglect regarding the children who are the subject of this termination action, not as to other children. 7. Respondent Mother agrees that Petitioner may introduce evidence (as long as it is otherwise admissible and not cumulative) related to Respondent Mother s prior involvement with the Department if it relates to the children. But evidence related to other children or another child not the subject of this hearing should not be admissible, other than the mere fact there was adjudication or termination in a separate dependency and neglect case involving another child. (See below). 8. Pursuant to section (2)(l), C.R.S., in determining a parent s fitness, the Court shall consider: Whether, on two or more occasions, a child in the physical custody of the parent has been adjudicated dependent or neglected in a proceeding under this article or comparable proceedings under the laws of another state 2

3 9. In addition, pursuant to section (2)(m), C.R.S., the Court shall consider: Whether, on one or more prior occasions, a parent has had his or her parent-child legal relationship terminated pursuant to this article 10. The plain language of subsection (l) is that the Court may consider only the fact that there has been adjudication in dependency and neglect against Respondent Mother involving another child. The statutory language does not open the door for the Petitioner in this case to enter evidence of the underlying details and facts in that prior action. 11. Similarly, the plain language of subsection (m) is that the Court may consider only the fact that Respondent Mother has had her parental rights terminated in a prior case, but not the underlying details and facts of that prior termination action. 12. The Court may take judicial notice of the fact that there were other termination actions or adjudications for dependency and neglect involving Mother s other children. Calling witnesses and admitting exhibits about the details of those prior actions would be irrelevant and unduly prejudicial, and only serve to harass and embarrass Respondent Mother. 13. Petitioner attempting to muddy Respondent Mother s character with details and facts about her past, is analogous to a party cross-examining a witness with a prior felony conviction - - which is admissible to impeach a witness s credibility -- but then questioning the witness about the underlying details of that felony conviction. The latter is clearly not allowed and inadmissible (absent very specific exceptions). 14. By attempting to introduce testimony and other evidence beyond the scope of what is allowed under section (2), C.R.S., Petitioner is trying to discount Respondent Mother s ability to parent in the present day, by attacking her with improper CRE 404(b) character evidence from her past. If Petitioner intends to turn this into a case bolstered by CRE 404(b) evidence, then this Court should first require Petitioner (in an in limine hearing set before the termination hearing) to sufficiently demonstrate for this Court why the evidence is relevant and probative of material facts regarding Respondent Mother s current parental fitness. Further, this Court should preclude such evidence, even if it has some potential relevance, under a CRE 403 analysis. As the Court discussed in King, supra, a trial court in a dependency and neglect proceeding needs to determine whether evidence objected to as inadmissible CRE 404(b) evidence such as prior contact with police for domestic violence constitutes prohibited other act evidence and, considering the appropriate factors, make more specific findings as to is admissibility. King, citing People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). 15. Based on the same analysis, this Court should preclude Petitioner from introducing evidence of Respondent Mother s contact with police, unless Petitioner can first demonstrate in a pre-trial hearing how such police contacts are relevant to her present day parental fitness and such evidence is not substantially outweighed by unfair prejudice. 3

4 16. Finally, this Court should preclude Petitioner from introducing any evidence that is prejudicial, collateral, or otherwise irrelevant to the questions at issue in this case. See People v. Abbott, 690 P.2d 1263 (Colo. 1984); People v. Moore, 562 P.2d 749 (Colo. 1977); C.R.E. 401, 402, 403, 404(b). These rules go to the heart of a defendant s constitutional right to a fair hearing. See Oaks v. People, 371 P.2d 443, 447 (Colo. 1962); U.S. Const., amends. V, VI, XIV; Colo. Const., art. II, 16, 25. WHEREFORE, Respondent Mother respectfully requests that this Court conduct a hearing in limine and prohibit Petitioner from eliciting testimony and admitting exhibits of irrelevant or unduly prejudicial character evidence. Respectfully submitted this -- day of May, PEAK LEGAL SERVICES LLC Douglas T. Cohen, # ATTORNEY FOR RESPONDENT MOTHER 4

5 CERTIFICATE OF SERVICE I hereby certify that on this -- day of May, 2016, a true and correct copy of the foregoing RESPONDENT MOTHER'S RESPONDENT MOTHER'S MOTION IN LIMINE REGARDING OTHER ACTS EVIDENCE was filed via and U.S. Mail with the District Court and served via to the following recipients: Assistant County Attorney GAL Attorney For Respondent Father GAL for Respondent Mother Bonnie M. Smith Paralegal, Peak Legal Services LLC 5