2015 COA 144
Colo. Ct. App.2015Background
- Mother (A.C.) gave birth to A.W., who was taken into emergency custody the day after birth; A.W. was in the NICU and mother was homeless with an outstanding arrest warrant.
- Mother previously had eight children; parental rights to seven were terminated and she had only limited supervised visitation with the youngest.
- The Mesa County Department of Human Services petitioned to adjudicate A.W. dependent and neglected on grounds she lacked proper parental care and her environment would be injurious.
- Mother requested a jury trial, listed a shelter acquaintance (J.L.) as a witness, and later moved (five days before trial) to continue because J.L. would be unavailable; she was not subpoenaed and did not supply a hearing transcript to show diligence.
- The Department sought to admit evidence from mother’s prior dependency and neglect case; the juvenile court admitted that evidence with a limiting instruction that it be used only to assess prospective harm/parental care.
- The jury found A.W. dependent and neglected; mother’s post-verdict motion for new trial (unsupported by affidavit) was denied, and the adjudication was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (A.C.) | Held |
|---|---|---|---|
| Denial of continuance for unavailable witness | Continuance not required; expedited hearings and due-diligence standard apply | Mother argued she needed witness J.L. to show parenting capacity and rebut prior-case evidence | Court affirmed denial: mother failed to show due diligence in procuring J.L., so no abuse of discretion |
| Admissibility of prior dependency/neglect evidence | Prior acts relevant to predicting prospective harm and home environment; admissible with limiting instruction | Evidence was remote/dissimilar and barred by Spoto/CRE 404(b) and unduly prejudicial under CRE 403 | Court held Spoto/CRE 404(b) inapplicable because evidence was used to show prospective harm (prediction of environment); CRE 403 did not bar admission given relevance and limiting instruction |
| Jury instruction/limiting use of prior-case evidence | Limiting instruction sufficed to prevent improper use | Mother argued prejudice from prior-case evidence | Court presumed jury followed limiting instruction; no unfair prejudice shown |
| Denial of new trial for alleged improper statements in closing | Department argued mother provided no supporting affidavit/transcript so court not obliged to act | Mother argued affidavit requirement excused by precedent | Court denied new trial: C.R.C.P. 59(d)(1) requires affidavit for grounds asserted and mother provided none; no abuse of discretion |
Key Cases Cited
- People v. Spoto, 795 P.2d 1314 (Colo. 1990) (four-part test limiting use of prior acts evidence)
- People v. D.A.K., 596 P.2d 747 (Colo. 1979) (prior parental behavior is relevant to assessing a child’s status and prospective risk)
- People v. Czemerynski, 786 P.2d 1100 (Colo. 1990) (Colorado rules favor admission of relevant evidence)
- People in Interest of D.J.P., 785 P.2d 129 (Colo. 1990) (denial of continuance is permissible where moving party failed to show due diligence in securing witness)
- People v. Ullery, 984 P.2d 586 (Colo. 1999) (appellate court presumes correctness where appellant fails to provide complete record)
- Bigler v. Richards, 377 P.2d 552 (Colo. 1963) (party seeking continuance must show due diligence)