Colorado’s second-highest court on Thursday concluded a Denver judge wrongfully revoked a woman’s jury trial for child neglect because she arrived late the morning of the trial.

Child welfare cases, formally known as dependency and neglect, are not criminal, and so a parent has no constitutional right to a jury trial. But the Colorado legislature has enabled parents to choose a trial by jury for determining whether their child is dependent or neglected.

When Denver Human Services initiated child welfare proceedings in late 2021 against a mother identified as D.Y.C., she invoked her legal right to a jury trial. D.Y.C., however, ran late to the proeedings, showing up 70 minutes past the start time. By that point, Juvenile Court Judge Laurie A. Clark decided D.Y.C. had relinquished her right to a jury trial, dismissed the jurors and tried the case herself.

A three-judge panel of the Court of Appeals faulted Clark for effectively punishing D.Y.C.’s tardiness by revoking her right to a jury trial with minimal investigation into D.Y.C.’s whereabouts.

“Moreover, the record shows that the court’s decision rested, in large part, on whether mother would arrive before an arbitrary cutoff time, at which point the jury would need to be excused if mother had not yet appeared,” wrote Judge Lino S. Lipinsky de Orlov in the Dec. 19 opinion. “We are not aware of any such requirement.”

D.Y.C. denied Denver’s allegations that her four children were dependent and neglected based on non-attendance at school and potential drug ingestion. She requested a jury trial, which was scheduled to begin at 9 a.m. on April 11, 2022. When the time arrived, however, D.Y.C. was not present.

D.Y.C.’s lawyer explained to the judge that D.Y.C. was on her way, blaming the tardiness on D.Y.C.’s phone being “an hour off.”

“I don’t believe any transport time will take very long so I would ask for a little bit of leeway so she can appear,” the attorney added, suggesting the parties could handle pretrial issues in the meantime.

Clark responded that “we lose the jury” if D.Y.C. did not arrive by a certain time, although she was unsure what that time was. Instead of allowing D.Y.C.’s attorney to call her, Clark began with the other, pretrial matters.

Eventually, the children’s legal representative asked for an update on the jury trial, suggesting D.Y.C. had waived her right by being so late. Clark told D.Y.C.’s lawyer to “look in the hallway” for the mother. If D.Y.C. was not there, she would dismiss the jurors.

The attorney exited the courtroom, then returned to say she had called D.Y.C. The mother was on her way, and the lawyer reiterated her request for leeway. There were still other pretrial matters remaining, she pointed out.

If D.Y.C. did not show up in five minutes, Clark responded, she would dismiss the jury. At 10:10, D.Y.C. was still not present and Clark sent the jurors home. D.Y.C. arrived sometime afterward, but while the parties were continuing with pretrial issues.

“At some point, I’m required to release the jurors rather than have them sit and wait in hopes that you make it here,” Clark told D.Y.C. “So I just want you to know that we tried … to be as patient as possible.”

Clark tried the case herself and found D.Y.C.’s children to be dependent or neglected, a step that can lead to the termination of a parent’s legal relationship with their child.

While D.Y.C.’s appeal was pending, another panel of the Court of Appeals confronted a similar scenario, also from Denver. A different judge sent jurors home 10 minutes after the trial’s scheduled start time and tried the case himself. The mother there ended up being 30 minutes late.

That case, People in the Interest of C.C., was the first time the appellate court addressed whether a late-arriving parent forfeits their right to a jury trial. The panel ultimately concluded the juvenile judge should have inquired about the mother’s whereabouts and, if she was on her way or had a good reason for being late, afforded her extra time.

“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,” Judge David H. Yun wrote in the C.C. appeal.

The panel of judges hearing D.Y.C.’s case acknowledged she arrived later than the mother in C.C. Procedural rules also deem a parent’s failure to appear as a relinquishment of their right to a jury trial.

However, the panel did not view D.Y.C.’s tardiness as disqualifying, given that Clark had set a seemingly-random deadline for D.Y.C. to show up without investigating where she was. If it turns out that a parent is on their way and will arrive soon, Lipinsky explained, that is strong evidence they are not waiving their right to a jury trial.

“What the court did not know, and what it should have inquired about further, was whether mother’s arrival was imminent. We know now that it was,” he wrote.

The panel also took note of Clark’s representation that she had to begin the trial by a certain time, otherwise she was “required” to release the jurors. While the appellate judges were sympathetic toward Clark’s desire to not inconvenience jurors, it was not clear to them what requirement Clark was talking about.

“Consequently, the court’s decision to convert mother’s jury trial to a bench trial effectively served as a sanction for her tardiness,” Lipinsky concluded.

The case is People in the Interest of J.D.C. et al.