Peo in Interest of SDM

• Court: Colorado Court of Appeals
• Decided: April 10, 2025
• Docket: 24CA1819
• Status: Unpublished

Opinion

24CA1819 Peo in Interest of SDM 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1819 City and County of Denver Juvenile Court No. 24JV30307 Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.D.M. and D.M., Children,

and Concerning J.W.M.,

Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025

Katie McLoughlin, Acting City Attorney, Amy J. Packer, Assistant City Attorney, Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, J.W.M. (father)

appeals the judgment adjudicating S.D.M. and D.M. (the children)

dependent or neglected. We affirm.

I. Background

¶2 In March 2024, Denver Human Services (the Department)

received a referral regarding a family violence incident in which

father threw several large rocks through the maternal grandparents’

apartment windows. At the time, then-nine-month-old S.D.M. was

in the apartment, and the grandparents reported that the rocks had

almost hit him. When law enforcement responded to the scene,

father fled, but officers eventually found and arrested him. As a

result of this incident, father was charged with child abuse. He was

also charged with assault of an at-risk adult after law enforcement

learned that a few days earlier, S.D.M.’s great-grandfather had tried

to intervene in an argument between the parents, and father struck

him, knocking out several of his teeth.

¶3 Over the following two months, the Department conducted a

safety assessment of the family. During that time, father remained

in custody, and S.D.M. remained in mother’s care at the maternal

grandparents’ home. In early April 2024, the Department requested

1 hair follicle testing of S.D.M., which yielded positive results for

amphetamine/methamphetamine, cocaine, cannabinoids/THC, and

fentanyl. Around the same time, mother’s urinalysis (UA) test

results were positive for marijuana, and the maternal grandparents’

UA results were positive for marijuana and alcohol. The

Department also discovered that mother’s family had ongoing

concerns about domestic violence between the parents and that

father had a history of substance abuse and drug-related criminal

activity.

¶4 At the end of April 2024, mother gave birth to a second child,

D.M. Around the same time, father pleaded guilty to the child

abuse and assault charges. He was sentenced to probation and

released from jail. Shortly thereafter, mother left the older child

S.D.M. with the maternal grandparents and took the newborn child

D.M. to see father. The maternal grandparents could not contact

mother, and the Department became concerned about D.M.’s safety

because mother’s whereabouts were unknown. Based on those

concerns, the Department requested emergency temporary custody

of both children, which the juvenile court granted. The Department

also filed a petition in dependency neglect regarding both children.

2 ¶5 The next day, mother brought D.M. to the courthouse, and the

Department placed both children with kin. The parents appeared

before the juvenile court, and the court appointed counsel for them,

but father’s appointed counsel was unavailable to appear that day.

A few days later, father appeared with his counsel, who waived

formal service and advisement on father’s behalf. Three weeks

later, father denied the allegations in the petition and requested a

jury trial, which the court scheduled.

¶6 At the pre-trial conference, father’s counsel said that she and

father had “discussed” his “right to an attorney,” but father wanted

to represent himself. Father then confirmed that he understood he

would “be under all the same obligations as an attorney in regards

to the procedure” and reiterated that he wanted to represent

himself. The court granted father’s request and terminated

counsel’s appointment. The court also asked father whether he

would like to proceed with the jury trial or have a court trial

instead, and he said that he wanted a trial “to the court.”

Accordingly, the court scheduled a court trial, and father confirmed

that he would be able to attend and bring any witnesses he wanted

to examine.

3 ¶7 On the day of the trial, father failed to appear. The county

attorney and the caseworker both reported that they had attempted

to contact him and that he had not returned their calls. The court’s

clerk then tried to call father twice, but he did not answer. The

court proceeded with the trial, but the Department had time to call

only one witness — a police officer. The court scheduled the second

half of the trial for two days later, and the county attorney

confirmed that the caseworker would call father to let him know.

But father did not appear for the second half of the trial either.

Again, the court attempted to call him, and he did not answer. The

court proceeded with the trial, and the Department called one more

witness — the caseworker. After considering the evidence, the

court found that the children’s environment was injurious to their

welfare and that father had subjected S.D.M. to mistreatment or

abuse. Thus, the court adjudicated the children dependent or

neglected.

¶8 About a month later, father appeared at the dispositional

hearing. He requested that the juvenile court reappoint counsel,

and the court did so. The court continued the dispositional hearing

to enable father to consult with counsel about the proposed

4 treatment plan. The court later held a dispositional hearing at

which father did not appear, but his counsel did. The court

adopted the proposed treatment plan but allowed father fourteen

days to object. After the fourteen-day objection period passed

without an objection from father, the court entered a final

dispositional order.

II. Statutory Framework

¶9 The purpose of an adjudicatory trial is to determine whether

the factual allegations in the dependency and neglect petition are

supported by a preponderance of the evidence and whether the

status of the child warrants intrusive protective or corrective state

intervention into the familial relationship. People in Interest of

G.E.S., 2016 COA 183, ¶ 13. A child may be adjudicated dependent

or neglected if the government proves that one or more of the

conditions set forth in section 19-3-102, C.R.S. 2024, exists. People

in Interest of S.M-L., 2016 COA 173, ¶ 25, aff’d on other grounds sub

nom People in Interest of R.S. v. G.S., 2018 CO 31. A child is

dependent or neglected if, as relevant here, “[a] parent, guardian, or

legal custodian has . . . subjected [the child] to mistreatment or

5 abuse” or “[t]he child’s environment is injurious to [the child’s]

welfare.” § 19-3-102(1)(a), (c).

III. Conversion of the Jury Trial to a Court Trial

¶ 10 As best we understand it, father contends that juvenile court

erroneously converted the jury trial to a court trial. He argues that

the court failed to sufficiently advise him of the consequences of

representing himself and opting for a court trial. And he asserts

that if the court had not converted the jury trial to a court trial,

then he might have been able to attend the trial because it likely

would have occurred on a later date, and he would not have been in

jail.1

¶ 11 Father concedes that he did not preserve his claim for appeal.

Indeed, he did not request a more robust advisement regarding his

right to counsel before the juvenile court terminated counsel’s

appointment, nor did he object to the procedure when the court

converted the jury trial to a court trial. In fact, he specifically

requested to represent himself at a court trial. And even after the

adjudicatory trial occurred and the juvenile court reappointed

1 Although the record does not establish that father was in jail at

the time of the court trial, no party disputes this fact on appeal.

6 counsel, father never filed a post-trial motion or argued that the

court had improperly advised him, held a court trial, or held the

trial in his absence.

¶ 12 Nevertheless, father urges us to review his appellate claim to

avoid a miscarriage of justice. But the miscarriage of justice

exception has a high bar and a narrow scope, applying only to

limited situations in which an error by the juvenile court, not

otherwise properly preserved for appeal, results in a grossly unfair

outcome for the parent. See People in Interest of M.B., 2020 COA

13, ¶¶ 23-24; see also People in Interest of A.E., 914 P.2d 534, 539

(Colo. App. 1996). Father’s arguments do not establish that the

court’s adjudicatory judgment created such a result.

¶ 13 First, father argues that the juvenile court failed to advise him

of his legal rights and appoint counsel at his first appearance. But

the record shows otherwise. The court appointed counsel for father

at his first appearance, even though counsel could not appear that

day. Then counsel appeared just three days later and waived

advisement on father’s behalf. Although father claims that the

court’s failure to appoint counsel who was available at the time of

his first appearance “delay[ed] his ability to receive legal advice,” he

7 does not explain what legal advice he would have received or how

receiving that legal advice three days earlier would have altered the

outcome of the adjudicatory trial. And we cannot find anything in

the record demonstrating that the adjudicatory trial was unfair

based on counsel’s absence from father’s first appearance or that

the outcome of the adjudicatory trial would have been different if

counsel had been present at the first appearance. See C.A.R. 35(c);

see also People in Interest of R.J., 2019 COA 109, ¶ 22 (an error or

defect only requires reversal if it affects a substantial right, meaning

that it can be said with fair assurance that the error or defect

substantially influenced the case’s outcome or impaired the basic

fairness of the trial itself); People in Interest of J.A.S., 160 P.3d 257,

262 (Colo. App. 2007) (even for a due process claim, a parent may

not obtain relief absent a showing of harm or prejudice).

¶ 14 Second, father argues that the juvenile court insufficiently

advised him when he asked to terminate his counsel and represent

himself. But father does not cite any legal authority to support his

argument that the court should have gone “beyond [its]

surface-level inquiry” and explained father’s specific responsibilities

as a self-represented party. Nor does he claim that his waiver of

8 counsel was involuntary, and nothing in the record indicates that it

was. See People in Interest of B.H., 2021 CO 39, ¶¶ 65-70 (in

dependency and neglect proceedings, a parent’s statutory right to

counsel is waivable; the waiver can be express or implied and must

only be voluntary, not knowing or intelligent). In fact, he does not

even assert that a more detailed advisement would have persuaded

him to change his decision to terminate his counsel. See R.J., ¶ 22;

J.A.S., 160 P.3d at 262.

¶ 15 Third, father argues that the juvenile court erred by asking if

father wanted a jury trial or a court trial after he asked to represent

himself. He also asserts that the court’s inquiry constituted

“disparate treatment” between him and mother because the court

did not make the same inquiry of mother at that time. But again,

he does not provide any legal authority to support these assertions.

Nor does he claim that his jury trial waiver was involuntary, and

nothing in the record indicates that it was. See People in Interest of

C.C., 2022 COA 81, ¶ 11 (parents in dependency and neglect cases

have a statutory right to demand an adjudicatory jury trial); B.H.,

¶ 69 (waiver of a statutory right must be voluntary, but need not be

knowing or intelligent).

9 ¶ 16 Last, father argues that if the court had not converted the jury

trial to a court trial, then the trial likely would have occurred on a

later date, and he may have been able to attend. He reasons that if

the court had “respected” his “initial jury demand,” then the “effect

of [his] absence from the trial” would have been “negat[ed].” But

this argument is pure speculation; it assumes that the court would

have held the jury trial on a later date and that father would have

appeared on that unknown date.

¶ 17 Even if we make those assumptions, however, father does not

explain what the “effect” of his absence from the court trial actually

was or how his presence would have made a difference in the

outcome at this stage. Said differently, he does not explain what

evidence he would have presented, what arguments he would have

made, or how his presence at trial would have changed the juvenile

court’s findings and determination that the Department met its

burden to prove one or more of the conditions set forth in section

19-3-102 existed. See S.M-L., ¶ 25. Based on our independent

review of the record and consideration of the ample evidence

presented by the Department, we cannot conclude that father’s

10 presence would have changed the outcome of the adjudicatory trial.

See R.J., ¶ 22; J.A.S., 160 P.3d at 262.

¶ 18 Based on the foregoing, we discern no miscarriage of justice

and reject father’s claim raised for the first time on appeal.

IV. Disposition

¶ 19 The judgment is affirmed.

JUDGE J. JONES and JUDGE YUN concur.