Peo in Interest of RRS

23CA2219 Peo in Interest of RRS 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2219

El Paso County District Court No. 23JV30652

Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Appellee,

In the Interest of R.R.S., a Child,

and Concerning S.S.,

Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE KUHN

Tow and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

Kenneth R. Hodges, County Attorney, Jessica M. Brungardt, Assistant County

Attorney, Colorado Springs, Colorado, for Appellee

Alison A. Bettenberg, Guardian Ad Litem

Michael Kovaka, Littleton, Colorado, for Appellant

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¶ 1 In this dependency and neglect proceeding, S.S. (mother)

appeals the judgment adjudicating R.R.S. (the child) dependent and

neglected. We affirm.

I. Background

¶ 2 In June 2023, the El Paso County Department of Human

Services filed a dependency and neglect petition regarding the

newborn child. The petition alleged, among other things, that the

child had tested positive for THC at birth and that mother used

marijuana, fentanyl, and methamphetamines during her pregnancy.

¶ 3 Mother denied the allegations and requested a jury trial. On

the trial date, the juvenile court called the case roughly a half hour

after the scheduled start time. Because mother was not present

when the proceedings began, the juvenile court inquired with

mother’s counsel as to mother’s whereabouts. Mother’s counsel

indicated that she had no knowledge of where mother was, that

mother was aware of the court date, and that mother had wanted to

proceed by jury trial.

¶ 4 The Department asked the court to find a waiver of mother’s

right to a jury trial, and the court granted the request over mother’s

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counsel’s objection. The court found a waiver based on mother’s

failure to appear and converted the jury trial to a bench trial:

So, [mother] is not connected virtually. She’s

not here physically. Under these

circumstances I’m going to find pursuant to

the rules of civil procedure that [mother] has

waived her right to [a] jury trial and the

adjudicatory phase of the case will be

converted to a bench trial.

I understand that [mother] is representing

through counsel that she wants a jury trial,

but she has to be present to have that happen.

And, I am finding that she knows about the

proceedings today and has not appeared. So,

we can go ahead and proceed to bench trial.

¶ 5 Shortly after testimony began, however, mother appeared

virtually and objected to the finding that she had waived her right

to a jury trial. The court affirmed its waiver finding and proceeded

with the bench trial. At the conclusion of the trial, the court

adjudicated the child dependent and neglected.

II. Analysis

¶ 6 Mother contends the juvenile court erred by finding she had

waived her right to a jury trial based on her failure to appear on

time at her adjudicatory trial. We disagree.

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A. Relevant Law and Standard of Review

¶ 7 “Dependency and neglect proceedings are civil in nature,”

People v. Johnson, 2017 COA 11, ¶ 32 (citation omitted), and thus

there is no constitutional right to jury trials in these cases, People in

Interest of C.C., 2022 COA 81, ¶ 11. However, parents have a

statutory right to demand a jury trial at the adjudicatory stage of

dependency and neglect proceedings. § 19-3-202(2), C.R.S. 2023

(providing that “any respondent . . . may demand a trial by jury of

six persons at the adjudicatory hearing pursuant to section

19-3-505”).

¶ 8 A parent may waive the statutory right to a jury trial and

“[s]uch a waiver may be either express or implied.” People in

Interest of N.G., 2012 COA 131, ¶ 51; People in Interest of K.J.B.,

2014 COA 168, ¶ 29. However, any such waiver must be voluntary.

N.G., ¶ 51; K.J.B., ¶ 29.

¶ 9 Once a party demands a jury trial, “[t]he right of [the] party to

have his case tried by a jury is an important and substantial one,”

Whaley v. Keystone Life Ins. Co., 811 P.2d 404, 405 (Colo. App.

1989), and such a right “may be lost only for the reasons listed in

C.R.C.P. 39(a),” Wright v. Woller, 976 P.2d 902, 903 (Colo. App.

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1999). See also C.R.J.P. 1 (providing that the Colorado Rules of

Civil Procedure apply in dependency and neglect cases when the

Colorado Children’s Code or the Juvenile Rules do not address a

particular procedure). In turn, C.R.C.P. 39(a)(3) provides that

“fail[ing] to appear at trial” is one reason justifying a trial to the

court instead of a jury. C.R.C.P. 39(a).

¶ 10 Whether a parent has waived the statutory right to a jury trial

presents a mixed question of fact and law. See People in Interest of

B.H., 2021 CO 39, ¶ 50 (addressing waiver of the right to counsel).

We accept the juvenile court’s findings of fact when they are

supported by the record, but we review the legal significance of

those facts de novo. Id.

B. Preservation

¶ 11 As an initial matter, the Department asks us to decline to

consider whether mother waived her right to a jury trial because

she failed to properly preserve this claim. Mother asserts she

properly preserved the issue. We agree with mother.

¶ 12 While mother’s counsel did not explicitly object to the court’s

finding that mother waived her right to a jury trial based on her

nonappearance, mother’s counsel asserted that mother “does want

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to contest this matter. She does want to have a jury trial.” When

mother appeared, she affirmed that she objected to the court

finding a waiver. And the juvenile court, in describing mother’s

counsel’s actions the day of the trial, told mother, “she objected to

the [c]ourt finding a waiver of your right to [a] jury trial.” See

Vaccaro v. Am. Fam. Ins. Grp., 2012 COA 9M, ¶ 52 (“An objection is

sufficient so long as it calls the court’s attention to the specific

point it addresses.”).

¶ 13 Accordingly, we conclude that this issue is preserved, and we

next consider the merits of mother’s claim.

C. Mother Waived Her Right to a Jury

Trial by Failing to Timely Appear

¶ 14 Mother contends that the juvenile court erred when it

determined that she waived her right to a jury trial by arriving to

the proceedings late. Specifically, mother asserts the court “did not

take the simple step of allowing [m]other’s counsel to check in with

[m]other regarding the circumstances” causing her delay before

finding mother waived her right. She further contends that the

court erred by finding waiver after only “an eight-minute delay.”

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Finally, she asserts that even if her failure to timely appear

constitutes a waiver, it cannot be deemed a voluntary waiver.

¶ 15 In support of her contentions, mother relies heavily on C.C.

But the facts here are distinguishable from that case.

¶ 16 In C.C., the parent failed to timely arrive for her adjudicatory

jury trial. C.C., ¶ 3. The juvenile court dismissed the jurors and

converted the jury trial to a bench trial despite the parent’s counsel

lodging an objection and informing the court that the parent had

difficulty with transportation but was on her way there. Id. at

¶¶ 3-4. Shortly after dismissing the jurors, and thirty minutes after

the trial was scheduled to begin, the parent arrived. Id. at ¶ 5. On

appeal, a division of this court concluded the juvenile court

reversibly erred and should have inquired about the parent’s

whereabouts and, if satisfied that she would promptly appear or

had good cause for being late, should have allowed her more time to

appear before releasing the jurors. Id. at ¶ 18.

¶ 17 Here, when mother failed to appear for her jury trial, the court

asked mother’s counsel, “do you have any representation in terms

of where [mother] might be today?” Mother’s counsel said she had

been texting with her client that day, had given her the Webex

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connection information, and that her client was aware of the jury

trial. Mother’s counsel further indicated, “she did advise me she

would not be present today.” Following that line of inquiry, the

court further inquired, “would you like to respond on if I find a

waiver of [mother’s] right to a jury trial based on her non-

appearance?” Mother’s counsel reasserted that mother wished to

have a jury trial but made no further record.

¶ 18 Unlike in C.C., at no point did mother’s counsel request more

time to see where her client was or indicate mother’s arrival was

imminent. When the Department asked the court to find a waiver

of mother’s right to jury trial, the Department’s counsel added,

“[s]he does have two active warrants, so we weren’t expecting that

she would appear today.”

¶ 19 Mother suggests the court “acted in direct contravention to the

holding of the C.C. opinion,” yet the record shows the court did

make an inquiry as to mother’s whereabouts. Based on the record

made by mother’s counsel and the Department, the court had no

reason to believe mother’s arrival was imminent nor was the court

aware of any good cause for delay.

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¶ 20 Mother argues the court should have allowed counsel to

“check in” with mother regarding her tardiness after mother

appeared and the court found a waiver, but mother’s counsel did

not make such a request nor does C.C. require this step, as mother

suggests on appeal.

¶ 21 Moreover, contrary to mother’s assertion that she was only

eight minutes late, she appeared virtually thirty-eight minutes after

the trial’s scheduled start time. Nonetheless, she asserts the

amount of time the court waited for her to appear was insufficient,

given that the court waited for a lesser time than the court in C.C.

did. But this argument mischaracterizes that case. In C.C., the

court specifically concluded, “we do not suggest that a parent can

never waive her right to a jury trial by being late.” Id. at ¶ 18. C.C.

did not impose a set time limit a court must wait for a parent’s

arrival. Rather, it merely imposed an obligation for the court to

make inquiries as to the parent’s whereabouts, and if there was

good cause for delay or their appearance was imminent, to then

allow for more time for the parent to appear. Id.

¶ 22 Here, the court made appropriate inquiries. Based on

responses to those inquiries, at the time it found a waiver it had no

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reason to believe mother would imminently appear nor that there

was good cause for delay. Therefore, the court was not obligated to

allow mother more time to appear before proceeding.

¶ 23 Last, mother asserts that even if her lack of timely appearance

does constitute a waiver of her right to a jury trial, it was not a

voluntary waiver. Specifically, she contends her failure to timely

appear was due to Webex connection issues, which was a

circumstance outside of her control. We are not convinced.

¶ 24 During the converted court trial, mother indicated her Webex

connection was “a little difficult getting in.” Yet mother’s counsel

reported she had been in communication with mother as early as 8

a.m. that day and as recently as five minutes before the trial.

Despite this, mother did not communicate to her counsel any

difficulty in appearing. This record does not support the conclusion

that mother’s connectivity troubles were so severe that she could

not connect before the court made its ruling.

¶ 25 Moreover, we note that after mother appeared, neither she nor

her counsel asked the court to reconsider its decision. It’s true that

mother asked the court questions about the waiver. But in context,

her primary concerns were focused on going to trial that day at all

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while being represented by her trial counsel. Mother wanted the

court to permit her trial counsel to withdraw and grant her a

continuance to find new counsel. Instead, the juvenile court found

no legal conflict and decided that the trial would go forward. But at

no point in those discussions did anyone ask the court to

reconsider its decision or to reset the matter as a jury trial.

¶ 26 We conclude, based on the totality of the circumstances on

this record — including mother’s failure to timely appear, her

failure to communicate any alleged difficulties connecting to Webex

with her counsel, and her failure to request a new jury trial — that

mother impliedly waived her right to jury trial. Accordingly, we

discern no error.

III. Disposition

¶ 27 The judgment is affirmed.

JUDGE TOW and JUDGE GOMEZ concur.