2022 COA 81
Colo. Ct. App.2022Background
- Denver Human Services filed a dependency-and-neglect petition regarding two children; the mother (C.L.E.) denied the allegations and demanded a six-person jury at the adjudicatory hearing.
- The adjudicatory jury trial was set to begin at 1:00 p.m.; the mother’s counsel and the guardian ad litem (GAL) were present on time.
- The mother did not appear by the scheduled start; the court dismissed the jurors about ten to sixteen minutes after 1:00 p.m., stating the mother had been warned to arrive by 12:45 and would waive a jury if more than 15 minutes late.
- Counsel informed the court the mother had texted about a Lyft/detour problem and was “somewhere in the building”; the mother arrived roughly thirty minutes late.
- The court proceeded with a bench trial the next day, adjudicated the children dependent and neglected, and the mother appealed, arguing she had not waived her statutory right to a jury trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a parent waives the statutory right to a jury trial by arriving late when counsel and GAL are present | Mother: No waiver; counsel and GAL were present and she arrived shortly after the jurors were dismissed | State: Mother’s tardiness justified dismissing jurors and converting to bench trial; right lost by failure to appear | Court: Reversed — tardiness alone (with counsel and GAL present) did not waive the statutory right; court should have inquired and allowed more time before dismissing jurors |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parents’ fundamental liberty interest in child-rearing)
- Bly v. Story, 241 P.3d 529 (Colo. 2010) (test for whether an error affected a substantial right)
- Banek v. Thomas, 733 P.2d 1171 (Colo. 1987) (standard for when an error affects substantial rights)
- Wright v. Woller, 976 P.2d 902 (Colo. App. 1999) (limitations on losing jury right under rule scope)
- Hoylman, 865 P.2d 918 (Colo. App. 1993) (failure to provide statutory jury right invalidates order)
- Watkins v. People, 344 P.2d 682 (Colo. 1959) (failure to allow time to exercise statutory jury right invalidates proceeding)