For parents involved in child neglect cases, Colorado lawmakers have given them the right to ask for a jury trial on the question of whether their children are neglected — a right they give up if they fail to appear at trial.

On Tuesday, members of the Colorado Supreme Court heard arguments in three cases in which parents did not show up for their child neglect jury trial, leading judges to convert the proceedings into a bench trial. Each case, however, presented circumstances suggesting the parents potentially maintained their right to a jury trial after all.

For example, the justices heard that some trial judges routinely warn parents that if they do not appear for a pretrial conference, they waive their right to a jury trial. The state’s Court of Appeals recently determined judges have no legal authorization to do that.

“Bottom line is: As tempting as it might be for a trial judge,” said Justice Carlos A. Samour Jr., “when the parent fails to appear at the pretrial conference, you have to resist the temptation to vacate the jury trial.”

In child neglect cases, formally known as dependency and neglect matters, deciding a child is neglected is a step along the road to the possible termination of a parent’s legal relationship with their child. Although there is no constitutional right to a jury trial for the neglect decision, lawmakers have established that right through statute. In turn, the rules of civil procedure note a failure to appear at trial amounts to a surrender of that right.

A do-over

In the first case out of El Paso County, a father requested a jury trial but failed to appear the day of the September 2021 trial date. District Court Judge Jessica Curtis found the father had given up his right but, on her own, deemed the children neglected by default. 

“The legal argument of the default judgment was incorrect, no question about that,” Melanie Douglas, representing the county, acknowledged to the Supreme Court. “And I would lay blame on my office, too, because the attorney who was at that hearing should not have accepted that default judgment.”

Later, the county moved to terminate the father’s parental rights. The father’s new attorney recognized the problem of the default judgment and asked District Court Judge Robin Chittum, who took over the case, to overturn Curtis’ prior neglect decision. Midway through the 2023 termination hearing, Chittum agreed and scheduled a trial to determine the children’s neglect status. She believed the father’s failure to appear two years earlier carried through to the second trial — meaning there would be no jury — and Chittum then found the children neglected.

In August, a three-judge Court of Appeals panel reversed her decision, reasoning the second trial was a separate legal proceeding, not simply a continuation of the first, aborted trial.

“And because father did appear at the 2023 adjudicatory trial, he didn’t waive his right to a jury,” wrote Judge Katharine E. Lum.

During oral arguments, the justices wondered whether Chittum’s decision to overturn the default judgment necessarily put the father where he was prior to the first trial, whether there was something more he needed to do, or whether his right to a jury trial was gone — period.

“I would submit in any type of case,” said Douglas, “once you’ve waived that right, it’s gone. That’s it. You don’t get that right back.”

“I’m not sure why they would waive it forever,” responded Justice Richard L. Gabriel. “If we’re going to have a do-over, why couldn’t they ask for another jury trial?”

Justice Melissa Hart observed if the Court of Appeals had overturned the default judgment, rather than Chittum doing it herself, “we’re starting at square one.” But the complication, she said, is “it’s not a complete do-over. It’s a partial do-over.”

“I’m really glad that you all are going to be ruling on this because there’s no case law out there that is really clear as to when that statutory right is gone,” said Douglas.

Pretrial conference

In the second case out of Denver, a father failed to appear for a pretrial conference in his child neglect case, prompting the court to set the case for a bench trial. On the date of the trial, the father did not appear again and then-Juvenile Court Judge Pax L. Moultrie decided his children were neglected.

Another Court of Appeals panel overturned that decision. Relying on a recent precedent-setting appellate decision, the court reasoned the father’s failure to appear at the pretrial conference led to the erroneous and unauthorized conversion of the jury trial to a bench trial. Therefore, the father could not have waived his right by failing to appear at the jury trial because no such trial existed.

Amy J. Packer of the Denver City Attorney’s Office told the Supreme Court that it is a practice in Denver Juvenile Court for judges to convert trials to bench trials based on pretrial conference attendance, and that parents are not explicitly required to demand a jury trial.

“What position is Denver County taking, if you know, when you have the scenario you described?” asked Justice Maria E. Berkenkotter, referring to Denver juvenile judges setting jury trials without a formal demand. “Is the county objecting or does the county just sit there and say, ‘I don’t want to ruffle the judge’s feathers?'”

“It would be the second,” responded Packer.

Failed attempt to locate mother

Finally, in a case out of Arapahoe County, a mother requested a jury trial in her child welfare case. The morning of trial, she was not present. Pursuant to her request for a disability accommodation, the county had arranged transportation, but the mother never got in the vehicle. Moreover, she had not spoken with her attorney.

After a break, her lawyer disclosed his client left him a message earlier in which she sounded “different,” either tired or sick. Another legal representative for the mother agreed the message was concerning. District Court Judge Don J. Toussaint tried unsuccessfully to call the mother. Allowing for additional time to find her, he then converted the jury trial to a bench trial.

The Court of Appeals rejected the idea that both a parent and the parent’s attorney have to fail to appear for the jury trial waiver to kick in. Referencing a recent appellate decision obligating judges to inquire about a parent’s whereabouts if they are not present, the Court of Appeals panel believed Toussaint appropriately handled the situation before abandoning the jury trial.

“The trial court did all that they could do in this instance,” said Justice Brian D. Boatright during arguments. “In this instance, I struggle to find fault with how the trial court handled it.”

“Your client, sadly, was suffering from a lot of confusion and inability to kind of situate herself in her own space, which may have been impacting her ability to help her kids get to school and appointments and things like that,” said Hart. It may be important for a parent to be present for trial because “it would be very hard for a jury to assess accurately the appropriateness of the (neglect) adjudication without being able to see the party.”

Gabriel, on the other hand, suggested he was sympathetic to the idea that a parent retains their jury trial rights if they appear through their lawyer, rather than appear themselves.

“What’s the harm with saying, ‘Let’s just have the jury trial?'” he wondered. “You’re probably gonna win in every case if the parent is not there.”

The cases are People in the Interest of Kay.W. et al., People in the Interest of C.C.M. et al. and R.G. v. People.

Editor’s note: This article has been updated to correctly identify which trial judges handled the El Paso County case.