Peo in Interest of SMJ

24CA0436 Peo in Interest of SMJ 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0436
City and County of Denver Juvenile Court No. 23JV30185
Honorable Elizabeth Strobel, Judge
Honorable Pax Moultrie, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.M.J., C.M.F., and K.F., Children,

and Concerning D.M.B.,

Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 3, 2024

Kerry Tipper, City Attorney, Amy J. Packer, Assistant City Attorney, Denver,
Colorado, for Appellee

Jenna Mazzucca, Counsel for Youth, Denver, Colorado, for S.M.J.

Josi McCauley, Guardian Ad Litem for C.M.F. and K.F.

Ainsley Bochniak, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
¶1 D.M.B. (mother) appeals the juvenile court’s judgment

adjudicating S.M.J., C.M.F., and K.F. (the children) dependent or

neglected. She contends that the juvenile court erred by (1) finding

that she had voluntarily waived her right to a jury trial; and (2)

determining that the children were dependent or neglected. We

disagree and therefore affirm.

I. Waiver of Jury Trial

¶2 In March 2023, Denver Human Services (the Department) filed

a petition in dependency and neglect. Mother requested, and the

court ordered, an adjudicatory jury trial.

¶3 After granting an initial request for a continuance, the court

scheduled the jury trial for November 1. On October 30, during a

hearing that mother attended by Webex, the court agreed to appoint

mother a new lawyer. As the court updated new counsel about the

proceedings, mother was disconnected from the Webex platform.

The court announced that “we’re going [to] call [mother] back,” and

“in the meantime,” it set a new trial date of December 13 at 8:00

a.m. It is not clear from the transcript if mother was, in fact,

reconnected to the hearing.

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¶4 Mother did not appear at the pretrial conference on December

11. Her new lawyer informed the court that he had not had any

contact with mother since his appointment. The court decided that

if mother did not appear for trial on December 13, it would likely

conduct a bench trial the next day.

¶5 Mother did not appear for trial on December 13. When the

court asked counsel, “What’s [mother’s] status?” her lawyer said he

did not know her status but offered that he was “not sure if

[mother] is aware of the time that we were set for this morning.”

The court asked for clarification regarding counsel’s comment about

“the time setting for this morning,” and counsel clarified that he

was “not sure if [mother] knew [the trial] was set at 8:00 a.m.”

¶6 In light of the information that mother might not have had

“notice that the trial started at [8:00 a.m.],” as opposed to 9:00

a.m., the court tried to contact her on two different telephone

numbers and gave “her time to appear.” But at 10:00 a.m., mother

was still not present. The juvenile court found that mother was

“present on October 30th” when new counsel was appointed, she

had a “spotty history of attendance at court hearings,” and she was

not answering any of the telephone calls from the court. The court

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concluded that “regardless of whether [mother] thought [trial] was

set at 8:00 or 9:00,” she was not present, and she had therefore

waived her right to a jury trial.

¶7 On appeal, mother contends that the court erred by finding a

waiver because the record does not show that she had notice of the

trial date and voluntarily failed to appear.

A. Relevant Law and Standard of Review

¶8 A parent’s right to a jury trial in dependency and neglect

proceedings is statutory, not constitutional. § 19-3-202(2), C.R.S.

2024; People in Interest of C.C., 2022 COA 81, ¶ 11. Still, once a

party demands a jury trial, the right to a trial by jury “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. 1999); see also C.R.J.P. 1 (providing that,

in dependency and neglect cases, the Colorado Rules of Civil

Procedure apply when the Colorado Children’s Code or the Colorado

Rules of Juvenile Procedure do not address a particular procedure).

Under Rule 39(a)(3), a party waives her right to a jury trial if she

“fail[s] to appear at trial.”

¶9 Before the court may find a waiver under Rule 39(a)(3),

however, it must determine that the parent’s nonappearance is

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voluntary. See C.C., ¶ 12. To that end, the court must inquire

“about the parent’s whereabouts and the circumstances concerning

her absence.” Id. at ¶ 18. If the court is satisfied that the parent

will appear promptly or has a good reason for her tardiness, it

should give the parent additional time to arrive before converting

the jury trial to a bench trial. Id.

¶ 10 Waiver is ordinarily a mixed question of fact and law: we

accept the trial court’s findings of fact if they are supported by

record evidence, but we assess the legal significance of the facts de

novo. See People in Interest of B.H., 2021 CO 39, ¶ 50 (addressing

waiver of counsel in dependency and neglect proceedings).

B. Analysis

¶ 11 The question on appeal is whether the record supports the

juvenile court’s finding that mother voluntarily failed to appear for

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the scheduled jury trial and thereby waived her right to a jury

under Rule 39(a)(3).1 We conclude that it does.

¶ 12 Contrary to mother’s assertions, the juvenile court did inquire

as to mother’s whereabouts when it asked counsel, “What’s

[mother’s] status?” In response, counsel did not tell the court that

mother might not have known about the trial setting because she

was not present at the October 30 hearing when the court set the

trial date. Rather, counsel explained that mother might not have

known that trial was scheduled to begin at 8:00 a.m. The court

understood counsel’s explanation to mean that there was a

“concern about the time change” from 9:00 a.m. to 8:00 a.m., and

counsel never suggested that the court’s understanding was

incorrect. And no one disputed the court’s recollection that mother

had attended the October 30 hearing when the trial date had been

continued.

1 To the extent mother argues, as a factual matter, that she did not

have notice of the trial, resulting in a due process violation that
requires setting aside the adjudication order, she had to raise that
issue in a C.R.C.P. 60(b) motion filed in the juvenile court. See,
e.g., In re C.L.S., 252 P.3d 556, 559 (Colo. App. 2011). As an
appellate court, we “don’t (and, indeed, can’t) make findings of fact.”
Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51,
¶ 19.

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¶ 13 On this record, we cannot say that the court erred by

concluding that mother voluntarily failed to appear. The

information provided to the court indicated that mother had notice

of the date of trial but possibly not the start time. The court

therefore determined that mother might have a “good reason for her

tardiness” and gave her “additional time to arrive.” C.C., ¶ 18. But

an hour after the later start time, mother had not appeared.

¶ 14 Still, mother says that because her lawyer was present “and

prepared to move forward with the jury trial,” the “parties”

demanding a jury trial did not fail to appear. See C.R.C.P. 39(a)

(“When trial by jury has been demanded . . . [t]he trial shall be by

jury . . . unless . . . (3) all parties demanding trial by jury fail to

appear at trial.”). Mother’s lawyer was not a “party” to the

adjudication proceeding, though. A “party” is a “litigant” — “[o]ne

by or against whom a lawsuit is brought.” Black’s Law Dictionary

1297 (12th ed. 2019). Nor was mother’s lawyer “prepared to move

forward with the jury trial” on December 13. At the December 11

pretrial conference, counsel told the court that even if mother

appeared for trial, he would need a continuance to confer with her,

and the court agreed to reset the trial date should that

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circumstance arise. Thus, we need not decide in this case whether

a parent waives her right to a jury trial if she voluntarily fails to

appear but her counsel is present and offers to proceed without her.

¶ 15 In sum, the court correctly applied the law, and its

determination that mother’s nonappearance was voluntary is

supported by the record. Accordingly, we conclude that the court

did not err by finding that mother waived her right to a jury trial.2

II. Sufficiency of the Evidence

¶ 16 The evidence presented at the adjudication trial established

the following facts:

• The Department opened a voluntary case in May 2022,

based on reports that the father of the two younger

children (father) had, on multiple occasions, assaulted

mother in front of the children.

• In February 2023, the Department received reports

alleging that the two older children, thirteen-year-old

S.M.J. and six-year-old C.M.F., were chronically absent

2 In light of our conclusion, we need not address the guardian ad

litem’s argument that mother was not entitled to a jury trial
because she did not “personally demand[]” one.

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from school and that mother was using drugs or abusing

alcohol. A month later, the Department learned that the

youngest child, eighteen-month-old K.F., had been found

unattended in the street near mother’s house.

• In March 2023, the two younger children submitted to

hair follicle testing, the results of which showed that the

children had been exposed to methamphetamine and

cocaine.

• The Department filed a petition in dependency and

neglect in March 2023 and placed the children with

maternal grandparents. S.M.J. had frequent visits with

her father, S.N.J.

• At around the time the petition was filed, mother stopped

cooperating with the Department.

• In April 2023, father was released from prison. He was

subject to a protection order listing mother as the

protected party.

• In May, the caseworker saw mother and father together

at the grandparents’ house. In August, mother was

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hospitalized after father assaulted her and broke her

ribs.

• During the 2022-23 school year, C.M.F. missed forty-four

days of school. S.M.J., an eighth grader, frequently

missed her morning “core” classes, arriving at school in

the afternoon.

• Although the school tried to enlist mother’s help with the

truancy issues, mother was uncooperative: she did not

attend school meetings; she became angry at school staff

who raised attendance concerns; and, on one occasion,

she came to school “smell[ing] of alcohol and lunged at

[the] safety and security officer.”

• During the fall 2023 semester, after his placement with

the grandparents, C.M.F.’s attendance improved

significantly, and he was more social with his peers and

adults. Neither the school social worker nor the

caseworker had information about S.M.J.’s attendance at

high school during that semester.

¶ 17 The juvenile court found that the Department had proved by a

preponderance of the evidence that all three children lacked proper

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parental care and would be in an injurious environment if returned

to mother’s care, and that mother had failed to provide the older

two children with proper or necessary education. Accordingly, the

court entered an order adjudicating the children dependent or

neglected.

¶ 18 On appeal, mother contends that the evidence was insufficient

to support a determination that the children were dependent or

neglected.

A. Legal Framework and Standard of Review

¶ 19 A child is dependent and neglected if, as pertinent here, (1) the

“child lacks [proper parental] care through the actions or omissions

of the parent”; (2) “[t]he child’s environment is injurious to his or

her welfare”; or (3) “[a] parent . . . fails or refuses to provide the

child with proper or necessary subsistence, education, medical

care, or any other care necessary for his or her health, guidance, or

well-being.” § 19-3-102(1)(b), (c), (d), C.R.S. 2024. “The purpose of

an adjudicatory hearing is to determine (1) whether the factual

allegations in the dependency and neglect petition are supported by

a preponderance of the evidence, and (2) whether the status of the

children warrants intrusive protective or corrective state

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intervention into the familial relationship.” People in Interest of

A.H., 271 P.3d 1116, 1120 (Colo. App. 2011).

¶ 20 Because a dependency and neglect proceeding is preventative

as well as remedial, an adjudication may be based not only on

current or past harm but also on prospective harm. People in

Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009). At all stages

of a dependency and neglect proceeding, including the adjudication

stage, the best interest of the child is paramount. A.M. v. A.C.,

2013 CO 16, ¶ 14.

¶ 21 The credibility of the witnesses and the sufficiency, probative

effect, and weight of the evidence, as well as the inferences and

conclusions to be drawn therefrom, are matters within the

discretion of the juvenile court. People in Interest of A.M. v. T.M.,

2021 CO 14, ¶ 15. In determining whether the evidence is

sufficient to sustain an adjudication, we review the record in the

light most favorable to the prevailing party, and we draw every

inference fairly deducible from the evidence in favor of the court’s

decision. People in Interest of D.M.F.D., 2021 COA 95, ¶ 13. We

must uphold the court’s findings and conclusions if the record

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supports them, even though reasonable people might arrive at

different conclusions based on the same facts. Id.

B. Proper Parental Care

¶ 22 The court determined that the children lacked proper parental

care because mother had exposed them to drugs, including

methamphetamine.

¶ 23 Mother argues that the Department failed to prove that mother

had exposed the children to drugs, noting that mother’s drug tests

were positive for marijuana and cocaine, while the children’s hair

follicle tests were positive for marijuana, cocaine, and

methamphetamine. But the fact that mother’s March 2023 test

results were not positive for methamphetamine does not mean that

mother did not use methamphetamine in the presence of the

children before March. Nor does it mean that mother did not

otherwise allow the children to be exposed to methamphetamine.

¶ 24 Next, mother asserts that evidence the children were exposed

to drugs “at an unknown time” before March 2023 and in “an

unknown manner” was insufficient to prove they were dependent

and neglected. The juvenile court, however, found that mother

likely exposed the children to drugs while they were in her care.

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That finding is based on the evidence and reasonable inferences

drawn from it, and mother does not explain why the finding is

clearly erroneous. Nor does mother provide any authority for the

proposition that exposing the children to drugs including

methamphetamine and cocaine does not amount to a lack of proper

parental care. We think the court’s contrary conclusion is

reasonable, so we decline to disturb it on appeal.

¶ 25 Finally, that the children’s grandparents were sober caregivers

or that S.M.J. received proper parenting from her father says

nothing about whether mother provided or would provide proper

parental care.

C. Injurious Environment

¶ 26 The juvenile court determined that, if returned to mother’s

care, the children would be in an injurious environment based on

the occurrence of domestic violence.

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¶ 27 According to mother, S.M.J.3 is old enough to “self-protect”

from exposure to domestic violence, so a home where domestic

violence is occurring — presumably, even the kind that results in

mother’s hospitalization — is not an injurious environment for her.

Mother does not explain what it means for a teenager to “self-

protect” from severe domestic violence or point to any evidence that

S.M.J. engaged in conduct that qualifies as “self-protective.” The

only evidence in the record on this subject was that the mere sight

of mother and father together at the grandparents’ house in May

2023 made S.M.J. “upset with [m]other.”

3 S.M.J., who was fourteen years old at the time of the hearing, was

represented by counsel. See § 19-3-203(2), C.R.S. 2024 (“Upon the
filing of a petition [in dependency and neglect], the court shall
appoint counsel for youth for any child . . . who is twelve years of
age or older.”). At the beginning of trial, S.M.J.’s lawyer informed
the court that “[S.M.J.] . . . does not believe that she . . . should be
adjudicated dependent or neglected. She did not authorize me to
say anything further on her behalf.” Nonetheless, S.M.J.’s lawyer
argued at trial that S.M.J. was dependent and neglected, and, on
appeal, appellate counsel for youth filed a brief defending the
judgment as to S.M.J. Without intending to admonish counsel, and
acknowledging that “counsel for youth” is a new position in
Colorado (and that S.M.J. might have reversed position after trial
and authorized the appellate brief), we note that, subject to
exceptions not applicable here, a lawyer must “abide by a client’s
decisions concerning the objectives of representation.” R.P.C.
1.2(a); see also R.P.C., Preamble (A lawyer must “zealously assert[]
the client’s position under the rules of the adversary system.”).

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¶ 28 Alternatively, mother contends that the juvenile court erred by

finding that she would not protect the children from the harm

created by father’s violence. On this point, we pause to emphasize,

as the juvenile court did, that the person responsible for ending

domestic violence is the perpetrator — in this case, father.

Rebuking mother for not protecting the children from father’s

victimization of her might seem as if we are shifting the burden.

But at the same time, the court had to, and properly did, consider

the obvious and substantial harm to the children associated with

domestic violence in the home. And the evidence showed that

mother was not able to sever ties with father, even though a

protection order had been issued and even though, according to the

court’s findings, the Department offered her assistance in this

regard. (We reject, as unpreserved and therefore waived, mother’s

argument that the court should not have considered the evidence of

father’s August 2023 assault because it was inadmissible hearsay.

See People in Interest of M.B., 2020 COA 13, ¶ 14.)

¶ 29 Finally, mother contends that because she had frequent,

unsupervised visits with the children, the court erred by finding

that, if returned to mother’s care, they would be in an injurious

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environment. But simply because mother could visit with the

children without endangering them does not necessarily

demonstrate that she could provide safe and nurturing parenting as

the primary caregiver.

D. Failure to Provide Education

¶ 30 The juvenile court determined that mother failed to provide the

two older children with proper and necessary education, based on

evidence that the children were chronically absent from school

when they were in mother’s care.

¶ 31 Mother argues that the court erred because by the time of the

adjudication hearing, the children’s truancy issues had been

resolved. True, but the court could reasonably have inferred from

the evidence that the children’s attendance improved thanks to the

maternal grandparents’ supervision, and, if they were returned to

mother, who had not cooperated in prior efforts to get the children

to school, the truancy issues would likely recur. See People in

Interest of S.X.M., 271 P.3d 1124, 1130 (Colo. App. 2011) (the fact

finder’s task at the adjudication stage is not to determine whether

the child is “presently” receiving proper care, but rather whether the

child “will lack” proper care if returned to the parent).

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¶ 32 For these reasons, we conclude that the juvenile court did not

err by adjudicating the children dependent and neglected.

III. Disposition

¶ 33 The judgment is affirmed.

JUDGE YUN and JUDGE KUHN concur.

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