Colorado’s second-highest court ruled on Thursday that an El Paso County judge wrongly revoked a father’s choice of a jury trial in his child neglect case because the man had failed to appear two years earlier for a separate proceeding.

Under Colorado law, parents have the right of a jury trial to determine whether a child is neglected. However, a parent can forfeit their choice of a jury trial by, among other things, failing to show up at the trial.

Recently, the Court of Appeals has issued direction about when a judge may convert a jury trial into a bench trial based on a parent’s absence. In 2022, the court clarified a Denver judge was wrong to dismiss jurors without inquiring about the mother’s whereabouts after she was more than 10 minutes late to trial. Separately, the court ruled that an Adams County judge had no basis to revoke a mother’s jury trial because she did not appear at a pretrial conference.

The most recent appellate decision, however, arose under a different sequence of events.

In 2021, El Paso County initiated welfare proceedings on behalf of five children. The father, identified as K.L.W., denied the allegations of neglect and asked for a jury trial. K.L.W. failed to appear at the trial, so the judge converted the proceedings to a bench trial and declared the children neglected by default based on K.L.W.’s absence. K.L.W. challenged the decision, disputing the authority to make a child neglect decision by default. 

In 2023, at a hearing focused on whether to terminate the legal relationship between K.L.W. and his children, District Court Judge Robin Chittum deemed the earlier neglect decision void after all. She then converted the termination hearing into a new trial to determine if the children were neglected in the first place.

Over the objection of K.L.W.’s lawyer, Chittum decided K.L.W.’s failure to appear for the original trial meant he also forfeited his right to a jury trial the second time — even though K.L.W. was now present. She again found the children neglected.

A three-judge panel for the Court of Appeals agreed K.L.W.’s failure to appear at his first jury trial did not automatically mean he gave up his right to a jury in the impromptu second child neglect trial.

“The two adjudicatory trials were separate and distinct. This was not a circumstance in which an originally scheduled adjudicatory trial was ‘continued’ to another date,” wrote Judge Katharine E. Lum in the Aug. 29 opinion. “And because father did appear at the 2023 adjudicatory trial, he didn’t waive his right to a jury.”

The panel reversed the child neglect decision.

The case is People in the Interest of Kay.W. et al.