People In Interest of C.C. and R.R.E.G., Children ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 21, 2022
2022COA81No. 21CA1411, People in Interest of C.C. — Juvenile Court —
Dependency and Neglect — Adjudicatory Jury Trial — Waiver of
Statutory Right to Jury Trial
A division of the court of appeals considers whether a juvenile
court errs by converting an adjudicatory jury trial to a bench trial
when the parent’s counsel and guardian ad litem appear on time,
but the parent herself arrives approximately thirty minutes late.
The division concludes, as a matter of first impression in Colorado,
that under these circumstances the parent does not waive her
statutory right to a jury trial. Before converting the jury trial to a
bench trial, the juvenile court should have made further inquiries
about the parent’s whereabouts and, if satisfied that she would
appear promptly or that she had a good reason for her tardiness,
given her additional time to arrive. Because the record does not
indicate that the court made any such inquiries or
accommodations, and the error was not harmless, the division
reverses the judgment adjudicating the children dependent and
neglected and remands the case for a new trial.
COLORADO COURT OF APPEALS 2022COA81Court of Appeals No. 21CA1411
City and County of Denver Juvenile Court No. 20JV779
Honorable D. Brett Woods, Judge
The People of the State of Colorado,
Appellee,
In the Interest of C.C. and R.R.E.G., Children,
and Concerning C.L.E.,
Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE YUN
Grove and Rothenberg*, JJ., concur
Announced July 21, 2022
Kristin M. Bronson, City Attorney, Amy J. Packer, Assistant City Attorney,
Denver, Colorado, for Appellee
Debra W. Dodd, Guardian Ad Litem
Steven E. Baum, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 C.L.E. (the mother) appeals the judgment entered by the
juvenile court adjudicating C.C. and R.R.E.G. (the children)
dependent and neglected after a bench trial. She maintains that
the juvenile court erred in ruling that she waived her statutory right
to a jury trial by arriving late to the adjudicative hearing. We agree,
and we therefore reverse the adjudication and remand the case for a
new trial.
I. Background
¶2 The Denver Human Services Department filed a petition in
dependency and neglect regarding the children, and the court
appointed a guardian ad litem (GAL) for the mother. The mother
denied the allegations in the petition and requested a jury trial at
the adjudicatory phase of the proceedings. No other party
demanded a jury trial.
¶3 The adjudicatory jury trial was scheduled for two days, with
the first day set to begin at 1 p.m. The mother’s counsel and her
GAL were present at 1 p.m., but when the mother did not appear by
1:10 p.m., the court dismissed the jurors and converted the jury
trial to a bench trial. The court explained that the “mother was told
to be here at 12:45 pm,” and that “if she was later than 15 minutes,
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she would waive her right to a jury trial as a matter of law under
the Colorado Rules of Civil Procedure.” The court noted that it was
1:15 p.m. and that the mother was still not there.
¶4 After releasing the jurors, the court had a discussion with the
parties’ counsel. The mother’s counsel objected to converting the
jury trial to a bench trial and informed the court that the mother
was “apparently . . . somewhere in the building.” Counsel then had
the following exchange with the court:
[COUNSEL]: Your Honor, I did get a text from
[the mother] after 1 o’clock saying that there
was a problem with her Lyft . . . [and] saying
there was some sort of detour. So I don’t know
why she was that late, but . . . .
THE COURT: Well, it’s now pushing 1:16, and
she’s still not with us. And, of course, not to
beat up on your client or anything like that,
but we had 50 jurors here who were on time
and had no trouble getting here, and she didn’t
make it. So it’s not fair to the jury to keep
them waiting . . . .
¶5 By 1:30 p.m., the mother had arrived. The mother’s GAL
asked the court to continue the trial until the next day to give the
mother “more time to talk to her counsel and me about how the
trial would proceed to the Court.” The court granted the request
and addressed the mother, stating:
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Ma’am, I’m sorry about the jury, but — and I
have been a judge now for about 15 years, and
I can tell you this is the first time in all that
time that I’ve released a jury. But you weren’t
here, and I had 50 people from the community
in their seats, ready to go. And the rules are
pretty clear that if you’re not here, you waive
your right to a jury. So that’s what happened.
But I am bound and determined for you to
have a fair trial, and I will listen to the
evidence very carefully and make the decision.
¶6 The next day, the court proceeded with a bench trial, and after
hearing the evidence, it adjudicated the children dependent and
neglected.
II. No Waiver of Jury Trial
¶7 The mother contends that the juvenile court erred by
converting the jury trial to a bench trial. Although she was not
present when the jury trial was scheduled to begin, she maintains
that, because her counsel and GAL were present and on time and
she arrived shortly after the court converted the jury trial to a
bench trial, she did not waive her statutory right to a jury. We
agree.
A. Standard of Review
¶8 We review questions of statutory interpretation de novo.
People in Interest of L.M., 2018 CO 34, ¶ 13. Thus, in interpreting a
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provision of the Children’s Code, “we look to the entire statutory
scheme in order to give consistent, harmonious, and sensible effect
to all of its parts, and we apply words and phrases in accordance
with their plain and ordinary meanings.” UMB Bank, N.A. v.
Landmark Towers Ass’n, 2017 CO 107, ¶ 22. Ultimately, our goal
is “to effectuate the legislature’s intent.” Blooming Terrace No. 1,
LLC v. KH Blake St., LLC, 2019 CO 58, ¶ 11.
B. Analysis
¶9 Parents have a fundamental liberty interest in the care,
custody, and control of their children, Troxel v. Granville, 530 U.S.
57, 66 (2000), and “due process requires the state to provide
fundamentally fair procedures in a dependency and neglect
proceeding,” People in Interest of J.A.S., 160 P.3d 257, 262 (Colo.
App. 2007). “At a minimum, a parent must be given adequate
notice of the proceeding and an opportunity to protect his or her
rights.” Id.¶ 10 Nevertheless,
[t]he Seventh Amendment to the United States
Constitution does not guarantee a right to jury
trial in such cases, because it preserves the
right only in common law actions, and is not
applicable to the states. However, some states
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have nonetheless granted a right to jury trial,
under either their state constitution or
pursuant to a statutory provision.
James L. Buchwalter, Annotation, Right to Jury Trial in Child
Neglect, Child Abuse, or Termination of Parental Rights Proceedings,
102 A.L.R. 5th 227 (2002).
¶ 11 In Colorado, because “[d]ependency and neglect proceedings
are civil in nature,” People v. Johnson, 2017 COA 11, ¶ 32 (citation
omitted), the Colorado Constitution does not guarantee the right to
jury trials in these cases. But the General Assembly has granted
parents a statutory right to demand a jury trial at the adjudicatory
hearing phase of dependency and neglect cases. See § 19-3-202(2),
C.R.S. 2021 (providing, as relevant here, that “any respondent . . .
may demand a trial by jury of six persons at the adjudicatory
hearing under section 19-3-505 or the court, on its own motion,
may order such a jury to try any case at the adjudicatory hearing
under section 19-3-505”); see also Wright v. Woller, 976 P.2d 902,
902-03 (Colo. App. 1999) (observing that the right to a jury trial in
certain civil cases has “been an essential part of Colorado’s justice
system almost from its inception” (quoting Whaley v. Keystone Life
Ins. Co., 811 P.2d 404, 404-05 (Colo. App. 1989))).
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¶ 12 “Generally, the Colorado Rules of Civil Procedure apply to
those juvenile matters that are not governed by the Colorado Rules
of Juvenile Procedure or the Children’s Code.” People in Interest of
K.J.B., 2014 COA 168, ¶ 9. C.R.C.P. 39(a)(3) provides, as relevant
here, that “[t]he trial shall be by jury of all issues so demanded
unless . . . all parties demanding trial by jury fail to appear at trial.”
A waiver of the statutory right to a jury trial “may be either express
or implied,” but it must be voluntary. People in Interest of N.G.,
2012 COA 131, ¶ 51; see also K.J.B., ¶ 29.
¶ 13 We are unaware of any published Colorado appellate decisions
that have addressed whether a parent waives the right to a jury trial
at an adjudicatory hearing in a dependency and neglect case when
her counsel appears on time for trial, but the parent is late.
However, other jurisdictions have offered guidance.
¶ 14 For example, Oklahoma courts have held that when a parent
has properly asserted the right to a jury trial in a dependency and
neglect case, the parent’s failure to appear or failure to appear on
time does not constitute a waiver if the absent parent is represented
by counsel and counsel appears for trial. In re H.M.W., 2013 OK
44, ¶¶ 8-14; In re State ex rel. K.W., 2006 OK CIV APP 40, ¶¶ 8-11.
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Although Oklahoma’s constitution — unlike Colorado’s —
guarantees jury trials in dependency and neglect cases, K.W. is
nonetheless instructive.
¶ 15 In that case, the state filed a petition seeking to terminate the
mother’s parental rights, and the mother demanded a jury trial.
K.W., ¶ 3. On the day of trial, the mother’s counsel appeared, but
the mother did not. Id. at ¶ 4. As a result, the trial court
conducted the hearing in chambers without a jury. Id. at ¶ 5. After
the state presented its evidence, the court terminated the mother’s
parental rights, but within minutes of the court’s ruling, the mother
arrived. Id. at ¶ 6. When the mother offered no explanation for her
late arrival, the trial court informed the mother of its decision and
her right to appeal. Id.
¶ 16 On appeal, the mother argued that her late arrival did not
constitute a waiver of her right to a jury trial. Id. at ¶ 7. The
Oklahoma Court of Civil Appeals agreed. It explained that the
mother had asserted her right to a trial by jury early in the
proceedings and that the record did not reflect a voluntary waiver of
the jury demand. Id. at ¶ 10. The court thus held that the
mother’s “appearance for trial some twenty minutes late does not
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constitute a waiver of her right to trial by jury, particularly where,
as here, her appointed counsel appeared for trial.” Id.
¶ 17 Similarly, here, though the juvenile court had told the mother
to arrive at 12:45 p.m. and warned her that she would waive her
right to a jury trial if she was not there by 1 p.m., the right to a jury
trial “may be lost only for the reasons listed in C.R.C.P. 39(a).”
Wright, 976 P.2d at 903. The mother’s counsel and GAL were
present when the trial was scheduled to start, and before
dismissing the jurors, the court did not even ask the mother’s
counsel or GAL why the mother was running late or whether they
wanted to proceed in her absence. Instead, the court waited a mere
ten minutes after the scheduled start time and then released the
jurors.
¶ 18 Under these circumstances, we conclude that the mother’s
failure to appear for trial on time did not constitute a waiver —
either express or implied — of her statutory right to a jury trial. In
reaching this conclusion, we do not suggest that a parent can never
waive her right to a jury trial by being late. However, before a court
determines whether a waiver has occurred, it should inquire further
about the parent’s whereabouts and the circumstances concerning
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her absence before converting a jury trial to a bench trial.
Especially when the mother’s counsel and GAL were there on time
and ready to proceed, the court should have inquired about the
mother’s whereabouts and, if satisfied that she would appear
promptly or that she had a good reason for her tardiness, should
have given her additional time to arrive before releasing the jurors.
The court failed to make such inquiries or accommodations, and
while its concern about inconveniencing the jurors was
understandable, it was an insufficient reason to overcome the
mother’s statutory right to a jury trial.
¶ 19 We therefore conclude the court erred in dismissing the jury
and proceeding with a bench trial.
¶ 20 We also conclude that reversal is required. Under C.A.R.
35(c), “[t]he appellate court may disregard any error or defect not
affecting the substantial rights of the parties.” See also C.R.C.P. 61
(“The court at every stage of the proceeding must disregard any
error or defect in the proceeding which does not affect the
substantial rights of the parties.”). “An error affects a substantial
right only if ‘it can be said with fair assurance that the error
substantially influenced the outcome of the case or impaired the
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basic fairness of the trial itself.’” Bly v. Story, 241 P.3d 529, 535
(Colo. 2010) (quoting Banek v. Thomas, 733 P.2d 1171, 1178 (Colo.
1986)).
¶ 21 We agree with the division in People in Interest of M.H-K., 2018
COA 178, ¶ 15, that a parent’s statutory right to a jury trial at the
adjudicatory stage is a “substantial right” under C.R.C.P. 61. See
People in Interest of Hoylman, 865 P.2d 918, 921 (Colo. App. 1993)
(“[T]he court’s failure to provide respondent his statutory right to a
jury hearing on his short-term certification invalidated its resulting
order.”); see also Watkins v. People, 140 Colo. 228, 231, 344 P.2d
682, 684 (1959) (failure of the court to provide time for the
respondent to exercise a statutory right to a jury trial invalidated
the commitment order). Because the mother was denied her right
to have a jury rather than a judge decide her case, the juvenile
court’s ruling cannot be viewed as harmless.
III. Conclusion
¶ 22 We reverse the judgment and remand the case to the juvenile
court for a new adjudicatory trial by jury.
JUDGE GROVE and JUDGE ROTHENBERG concur.
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