Case Summary – April 1

Friends,

Only one unpublished opinion from the of appeals this week, but with the court’s subtle reminder that proceeding by an during a termination hearing is an issue that could violate our parents’ due process rights. This is an issue that was raised back in December in another unpublished opinion in a different division. Considering that the issue was raised sua sponte by two different divisions of the court of appeals, this is a clear signal that this is an issue that is ripe for litigation.

The reason the court hesitates to make a clear determination of the issue is because it was unpreserved in the court and was not raised on appeal—so let’s remedy that! In my summary below, I’ve laid out all of the case law that the court relies on when analyzing its due process concern—feel free to use these cases as a jumping off point to include in a written filed before a termination hearing or to start researching the issue on your own.

In its opinion, the court laid out three grounds for objecting to a possible due process violation by proceeding via offer of proof during a termination hearing, and I emphasize them here and in my summary below: 1) Object to having the parties state what the would show and proceeding by an offer of proof 2) Challenge the Department’s evidence through cross-examination OR object to proceeding on an offer of proof by contending that it violated a client’s right to challenge evidence through cross-examination 3) Introduce evidence on mother’s behalf OR object to proceeding on an offer of proof by contending that it violated a client’s right to introduce evidence on their own behalf

Another exciting issue for our respondent parents, and some good ammo for an argument to raise at a contested termination hearing.

Until Next Week, Ruchi

Unpublished Opinions Please remember the Court of Appeals Policy concerning citation of unpublished opinions:

Citation of unpublished opinions is forbidden, with the following exceptions:

(1) Unpublished opinions may be cited to explain the case history or to establish the doctrines of law of the case, res judicata, or collateral estoppel;

(2) This policy shall not apply to opinions that were designated as "Not Selected for Official Publication" and were announced between January 1, 1970 and November 1, 1975, but nevertheless were published in the Pacific Second Reporter. (Policy adopted April 28, 1994)

Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Unpublished cases can be requested from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

Or, send me an email at [email protected] and I can send you a copy. Please keep everyone’s inboxes clutter-free and do not reply to the listserv.

People in the Interest of M.C., Case No. 15CA2053

The district court terminated mother’s parental rights to thirteen-month-old M.C., after the parties proceeded by offer of proof at the termination hearing.

On appeal, the court of appeals independently raised concerns about whether proceeding by an offer of proof at a termination hearing violates a parent’s due process right, even though the issue was not raised on appeal or in the trial court. The court analyzed the issue under CRE 103, finding that the principal purpose of an offer of proof is to make known to the trial and appellate courts the substance of excluded evidence. See People v. Gillis, 883 P.2d 554, 559 (Colo. App. 1994). An offer of proof serves the purpose of sufficiently appraising the trial court of the nature and substance of proposed evidence to allow it to exercise its discretion under the rules of evidence. Lanari v. People, 827 P.2d 495, 503 (Colo. 1992). On appeal, an offer of proof serves the purpose of establishing the basis in the record for appellate review of the trial court’s ultimate ruling. Id.

The court of appeals emphasized that an offer of proof is not evidence. See Gillis, 883 P.2d at 559 (stating that an offer of proof is not evidence but shows what counsel expects to prove by the excluded evidence); see also Mundell v. Dep’t of Alcoholic Beverage Control, 27 Cal. Rptr. 62, 72 (Cal. Dist. Ct. App. 1962); Echols v. City of Riverside, 332 S.W.3d 207, 212 (Mo. Ct. App. 2010); Gerken v. Hy Vee, Inc., 660 N.W.2d 893, 898 (Neb. Ct. App. 2003); Wood v. Wood, 964 P.2d 1259, 1264 (Wyo. 1998).

Because, however, mother’s counsel did not object to proceeding by offer of proof, the court of appeals did not address the merits of the issue and proceeded to affirm the termination of parental rights based on the unpreserved reasonable efforts argument raised on appeal.

As this division of the court of appeals reminds us, our job is to preserve a due process argument in the court below. Such an objection could have been made in one of three ways at the termination hearing—although making all three points on the record would have solidified the appellate issue: 1) Object to having the parties state what the evidence would show and proceeding by an offer of proof 2) Challenge the Department’s evidence through cross-examination OR object to proceeding on an offer of proof by contending that it violated a client’s right to challenge evidence through cross-examination 3) Introduce evidence on mother’s behalf OR object to proceeding on an offer of proof by contending that it violated a client’s right to introduce evidence on their own behalf