2014 COA 168
Colo. Ct. App.2014Background
- Park County DHS took K.J.B. into protective custody, placed with father, filed dependency/neglect petition.
- Mother denied allegations and sought a trial; court denied jury trial and scheduled court trial.
- Mother demanded jury trial in two written motions; court denied.
- Mother participated via telephone at all hearings and through counsel at adjudicatory trial.
- Mother failed to personally appear at adjudicatory trial; department sought default judgment; court adjudicated dependent/neglected by default.
- Court adopted a treatment plan for mother; on appeal, adjudication by default and dispositional order are challenged; jury-trial denial is also challenged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment was authorized against mother | Mother did not fail to defend; counsel appeared and she participated | Default was improper; no authority to sanction with default for nonappearance | Default judgment reversed; remanded for adjudicatory trial |
| Whether denial of jury trial was proper | Mother argued improper waiver/ advisement | Record showed advisement or waiver; waiver valid | Jury-trial denial affirmed |
Key Cases Cited
- In Interest of A.E., 914 P.2d 534 (Colo. App. 1996) (applying CRCP 56 to dependency adjudication)
- People in Interest of S.N., 329 P.3d 276 (Colo. 2014) (Colo. Supreme Court decision on due process in dependency cases (2014 CO 64))
- Rombough v. Mitchell, 140 P.3d 202 (Colo. App. 2006) (default judgment when party fails to plead/defend; appearance via counsel not default)
- Davis v. Klaes, 346 P.2d 1018 (Colo. 1959) (trial on merits in absence of one party)
- People in Interest of R.D., 277 P.3d 889 (Colo. App. 2012) (court erred in entering order when parent did appear through counsel)
- Hovey v. Elliott, 167 U.S. 409 (U.S. 1897) (due process limits inherent powers to punish without hearing)
- Frey v. Frey, 158 P.2d 715 (Colo. 1916) (due process limits on contempt-based sanctions)
- Hammond Packing Co. v. Arkansas, 212 U.S. 322 (U.S. 1909) (distinguishes Hovey; default as presumption for evidence production)
- Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902 (Colo. 1992) (recognizes inherent powers limited to necessary judicial function)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parents' liberty interest; due process in dependency)