Peo in Interest of KS

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 24CA1530
• Status: Unpublished

Opinion

24CA1530 Peo in Interest of KS 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1530 Archuleta County District Court No. 23JV30012 Honorable A. Nathaniel Baca, Judge

The People of the State of Colorado,

Appellee,

In the Interest of K.S. and T.B., Children,

and Concerning N.S.,

Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division A Opinion by JUDGE TAUBMAN* Román, C.J., and Graham*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

KDO, LLC, Jeffrey C. Koy, Lauren Dingboom, Jordan Oates, Englewood, Colorado, for Appellee

Josie L. Burt, Guardian Ad Litem

Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this dependency and neglect action, N.S. (father) appeals

the default judgment adjudicating K.S. and T.B. (the children)

dependent and neglected. Because “[n]ot being present at the trial

is not an act of default” as contemplated under C.R.C.P. 55, we

reverse the judgment and remand for further proceedings. See

People in Interest of K.J.B., 2014 COA 168, ¶ 13, 342 P.3d 597, 600.

(citation omitted).

I. Background

¶2 The Archuleta County Department of Human Services moved

to take the children — then one and three years old — into

emergency protective custody, alleging concerns that the children’s

needs were not being met because of mother’s substance

dependence. Father was appointed counsel before the emergency

shelter hearing. The Department then filed a petition in

dependency and neglect.

¶3 At the advisement, father’s counsel asked the juvenile court to

set the matter for an adjudicatory jury trial. Due to scheduling

issues, father’s counsel was released, and a second counsel was

appointed.

1 ¶4 Father appeared with his second counsel at a series of

“admit/deny” hearings set by the court. However, father did not

appear with counsel at the fourth admit/deny hearing, held almost

four months after the shelter hearing. At that hearing, father’s

second counsel reported on negotiations with the Department for a

deferred adjudication and then asked to be permitted to withdraw

as father’s counsel.

¶5 The juvenile court sua sponte entered a default judgment

against father and gave the Department the option to either enter a

default adjudication or continue the adjudication pursuant to

section 19-3-505(5), C.R.S. 2024.1 The Department later

submitted, and the court signed, an order adjudicating the children

based on father’s failure to appear at the admit/deny hearing. After

finding that father was in default, the juvenile court granted father’s

second counsel’s request to withdraw.

1 C.R.C.P. 55(b)(1) provides that “a party entitled to a judgment by

default shall apply to the court therefor.” No party applied to the juvenile court for a default judgment in this case; instead, the court entered the default at a non-noticed hearing unprompted. However, because no party raises this discrepancy on appeal, the question of whether such an action is permitted by the Colorado Rules of Civil Procedure is not currently before us.

2 ¶6 Two weeks later, the juvenile court held a dispositional

hearing for father. Neither father nor counsel appeared at the

hearing, and the court adopted a treatment plan for father. The

notice deadline for father’s second counsel’s withdrawal motion was

the next day.

¶7 One month later, the juvenile court appointed father a third

counsel. With the assistance of counsel, father filed for appropriate

relief from the adjudicatory judgment pursuant to C.R.C.P. 60(b)(3),

which the juvenile court denied.

II. Default Adjudication

¶8 Father contends that the juvenile court erred by denying his

motion to set aside the default adjudication because he was

represented by counsel when the court entered the default

adjudication and a default is not authorized for his nonappearance

alone. We agree.2

2 Father also contends that the default judgement was entered in

error because the hearing was not properly noticed as an adjudicatory hearing. We cannot find anything in the record that would suggest that the hearing in question would be treated as an adjudicatory hearing. However, because we determine the court erred by entering the default whether the hearing was properly noticed or not, we decline to address this contention.

3 ¶9 The Colorado Children’s Code does not independently

“authorize entry of a default judgment against a parent for failing to

appear at the adjudicatory hearing.” K.J.B., ¶ 25, 342 P.3d at 601.

Generally, however, a default judgment may be entered when a

party “has failed to plead or otherwise defend.” C.R.C.P. 55. While

it is unclear what a failure “to plead or otherwise defend” means in

juvenile cases where responsive pleadings are not required,

divisions of this court have recognized that a parent may “actively

litigate” a case by appearing at hearings, denying the allegations of

the petition, requesting a trial, and participating in hearings

through counsel. K.J.B., ¶ 15, 342 P.3d at 600.

¶ 10 In any event, a parent’s “nonappearance at trial alone does not

constitute a failure to ‘otherwise defend’ permitting entry of a

default judgment under C.R.C.P. 55.” Id. at ¶ 13 (citation omitted).

In such a circumstance, the court may receive evidence in a

parent’s absence and render judgment on the merits, but it may not

enter a default adjudication. Id. at ¶ 14.

¶ 11 The Department and the child’s guardian ad litem contend

that the default judgment was justified because he failed to actively

4 litigate in addition to his failure to appear at trial. We are not

convinced.

¶ 12 The juvenile court listed only father’s nonappearance as

support for the default adjudication. The court’s adjudicatory order

stated “that [f]ather has failed to appear and he is in default.

Adjudication by default is appropriate and in the best interests of

the children.” The court did not make any finding, either in the

adjudicatory order or the order denying father’s motion to set aside

the default judgment, that father failed to actively litigate the

adjudication.

¶ 13 Furthermore, the record does not suggest that father failed to

“plead or defend” as contemplated by C.R.C.P. 55. See K.J.B., ¶ 15,

342 P.3d at 600. Father requested a jury trial and appeared at

each hearing before the final admit/deny hearing. Importantly,

although father did not personally appear, he was represented by

counsel through the conclusion of the hearing at which the juvenile

court entered a default judgment against him.

¶ 14 Given these circumstances, we conclude that the juvenile

court erred by entering a default adjudicatory judgment against

father. Accordingly, we reverse the juvenile court’s judgment

5 adjudicating the children dependent and neglected as to father and

remand the matter for a trial.

III. Father’s Other Contentions

¶ 15 Because we reverse the juvenile court’s judgment, we need not

address father’s other contentions, including that his dispositional

order was also erroneously entered by default and that he received

ineffective assistance of counsel.

IV. Disposition

¶ 16 The default judgment is reversed. The dispositional order is

also vacated. See id. at ¶ 34.

¶ 17 The case is remanded to the juvenile court for an adjudicatory

trial.

CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.