2025 CO 48
The People of the State of Colorado, Petitioner: In the Interest of Minor Children: Kay. W., Kai.W., E.W., D.W., and S.W., and Kay. W., Kai.W., E.W., D.W., and S.W., Petitioners:
v.
K.L.W. Respondent:
No. 24SC621
Supreme Court of Colorado, En Banc
June 30, 2025
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 23CA2106
Attorneys for Petitioner People of the State of Colorado:
Kenneth Hodges, El Paso County Attorney
Colorado Springs, Colorado
Melanie Douglas LLC
Melanie Douglas
2
Attorney for Petitioners Kay.W., Kai.W., E.W., D.W., and
S.W.:
Josi
McCauley, guardian ad litem
Superior, Colorado
Attorney for Respondent:
Michael Kovaka
Littleton, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER
joined.
3
SAMOUR
JUSTICE
¶1
In this dependency and neglect proceeding, a division of the
court of appeals allowed K.L.W. ("Father") to take
the judicial equivalent of a mulligan[1] by reversing the juvenile
court's adjudicatory judgment. We conclude that the
division erred.
¶2
The parties agree, as do we, that the juvenile court
correctly found in 2021 that Father waived his
statutory right to a jury trial by failing to appear for
trial. However, everyone also agrees that the court
incorrectly proceeded to adjudicate, by default,
Father's five children, Kay.W., Kai.W., E.W., D.W., and
S.W. (the "children"), as dependent or neglected
with regard to him.
¶3
About two years later, in 2023, the juvenile court corrected
course by vacating the default judgment and scheduling a new
adjudicatory trial. In that order, the court found that
Father had waived his statutory right to a jury trial by
failing to appear in 2021. Consequently, it scheduled the
matter for an adjudicatory trial to the court. Twenty days
passed between the issuance of that
4
order and the bench trial. Yet, Father took no steps during
that timeframe to make a new demand for a jury trial. To the
contrary, in a pretrial pleading, Father acknowledged,
without objection, that the proceeding was set for an
"adjudicatory court trial."
¶4
At the beginning of the 2023 bench trial, however, when the
court asked the parties if there were any preliminary matters
it needed to address, Father stated, "for the
record," that he objected to the finding of a waiver of
his statutory right to a jury trial. The court did not
respond, and the issue was not raised again. At the
conclusion of the bench trial, the court adjudicated the
children dependent or neglected as to Father. Father then
appealed, and a division of the court of appeals reversed,
concluding that Father's 2021 waiver of a jury didn't
extend to the 2023 proceeding. People in Int. of
Kay.W., No. 23CA2106, ¶¶ 18-19 (Aug. 29,
2024).
¶5
We now reverse the division. Even assuming, without deciding,
that the 2021 waiver of Father's statutory right to a
jury trial was not binding for the remainder of the case and
thus did not bar him from reasserting his jury-trial right in
the 2023 proceeding, Father still cannot prevail. Father
never demanded a jury for purposes of the 2023 proceeding, as
required by statute, section 19-3-202(2), C.R.S. (2024),
5
and rule, C.R.J.P. 4.3(a).[2] The only jury trial Father ever
demanded was waived in 2021 by his failure to appear.
¶6
Contrary to the division's determination, Father's
"for the record" objection in 2023 was not a demand
for a jury. And even if we could construe it as such-we
cannot-it would fail as untimely because Father waited twenty
days, until the morning of the bench trial, to advance it.
Had the court sustained Father's objection in this
expedited permanency planning case,[3] a time-sensitive matter, it
would have unnecessarily delayed the proceeding, to the
detriment of the children. And that, in turn, would have run
counter to the best interests of the children, which take
precedence in dependency and neglect proceedings.
Additionally, granting Father's objection would have
interfered with the court's orderly administration of
justice and inconvenienced the witnesses.
¶7
In the end, even if Father was entitled to make a new demand
for a jury trial in 2023, he never did so, let alone in a
timely fashion. And we are unwilling to conclude that his
2021 demand for a jury trial was automatically revived post-
6
waiver when the juvenile court vacated the default judgment
in 2023. Accordingly, the juvenile court correctly conducted
a bench trial, and the division erred in reversing the
adjudicatory judgment.
I.
Facts and Procedural History
¶8
In May 2021, the Department of Human Services ("the
Department") filed a petition alleging that the children
were dependent or neglected with regard to Father. The
petition contended that the children were at risk because
Father's whereabouts were unknown and he was struggling
with mental health conditions (including suicidal ideation)
and substance use issues. Father was eventually located, and
counsel was appointed for him. At a pretrial conference,
Father denied the petition's allegations and requested a
jury trial for the adjudicatory phase of the case. The
juvenile court granted his request and scheduled the matter
for a jury trial to commence on September 22, 2021.
¶9
When Father failed to appear, the court determined that he
had waived his statutory right to a jury trial, emphasizing
its "heavy juvenile docket" and the need to avoid
engaging in "gamesmanship" with parents who fail to
appear for a jury trial, as such engagement "would delay
significantly proceedings getting resolved within [the]
expedited permanency planning or just regular permanency
planning guidelines." The court then proceeded to
adjudicate, by default, the children dependent or neglected
with respect to Father "based on [the] failure to
appear."
7
Further, the court adopted an interim treatment plan for
Father and granted his counsel's motion to withdraw from
the case.
¶10
About eighteen months later, in March 2023, the Department
moved for termination of Father's parental rights, and
the court set the matter for a termination hearing. Shortly
after the termination hearing commenced in late July 2023,
Father's new counsel moved to vacate the 2021 default
judgment pursuant to C.R.C.P. 60(b), arguing that the court
had improperly adjudicated the children dependent or
neglected by default. Father did not reassert his statutory
right to a jury trial in this motion.
¶11
The court (with a different judicial officer presiding)
granted Father's motion on September 26, 2023, after the
second day of the termination hearing.[4] It agreed with
Father that "[t]he Children's Code does not
authorize entry of a default judgment against a parent for
failing to appear at the adjudicatory hearing." (Quoting
People in Int. of K.J.B., 2014 COA 168, ¶ 25,
342 P.3d 597, 601.) Thus, the court converted the remainder
of the termination hearing into a new adjudicatory trial,
which the court scheduled to commence twenty days later, on
October 16.
8
¶12
Of particular relevance here, in its order granting
Father's C.R.C.P. 60(b) motion, the court found that
Father had "waived his right to a jury trial by failing
to appear" at the 2021 trial. Accordingly, the court set
the new adjudicatory trial as a bench trial. During the
ensuing twenty days, Father did not make another demand for a
jury trial. Quite the contrary, about a week before trial,
Father filed an amended list of witnesses expressly stating,
without complaint, that the matter was set for an
"adjudicatory court trial."
¶13
At the beginning of the first day of trial, however, when the
court inquired as to whether there were any preliminary
matters it needed to address, Father's counsel spoke as
follows: "[F]or the record[,] I'm going to object to
the [c]ourt's finding and waiver of jury
trial."[5] Counsel didn't elaborate, and the
court didn't comment further on the issue. Indeed, the
matter was not discussed again. At the conclusion of the
bench trial, the court adjudicated the children dependent or
neglected as to Father.
¶14
Father appealed. As pertinent here, he argued that the
juvenile court erred in finding that he had waived his
statutory right to a jury trial for purposes of the 2023
trial by failing to appear for the 2021 trial.
9
¶15
A division of the court of appeals agreed with Father in an
unpublished, unanimous opinion. Kay.W., ¶ 8.
The division held that Father's waiver of his statutory
right to a jury trial for failing to appear at the 2021 trial
didn't extend to the 2023 trial. Id. at
¶¶ 18-19.
¶16
First, the division explained that the "two adjudicatory
trials were separate and distinct" because the 2023
trial was a "completely new trial," not a
continuation of the 2021 trial. Id. at ¶ 19. It
then determined that the juvenile court's decision in
2023 to set aside the 2021 default adjudication "put
[F]ather in the same legal position" he was in before
the 2021 trial. Id. Relying on C.R.C.P. 39(a),
which, as relevant here, requires a jury trial unless such a
trial is waived because "all parties demanding trial by
jury fail to appear at trial," the division ruled that
the juvenile court erred because the waiver could not have
occurred before Father had been given an opportunity to
appear "at trial" in 2023. Kay.W., ¶
20. And because Father did appear at the 2023 trial,
the division concluded that he could not have waived his
statutory right to a jury trial for purposes of that
proceeding. Id.
¶17
Second, the division decided that, because the statutory
right to a jury trial is a "substantial right[]"
under C.R.C.P. 61, the error was not harmless.
Kay.W., ¶ 21. It thus reversed the adjudication
judgment and remanded the matter for
10
further proceedings. Id. at ¶ 24. Given this
disposition, the division declined to address Father's
remaining contentions on appeal. Id. at ¶¶
21-23.
¶18
The children's guardian ad litem (the "GAL")
and the Department (collectively, "Petitioners")
separately sought our review.[6] We granted their
petitions.[7] Before analyzing the issues raised, we
make a pit stop to review some elemental legal tenets.
II.
Basic Legal Principles
¶19
"'Dependency and neglect proceedings are civil in
nature' and follow the Colorado Children's Code
...." People v. Johnson, 2017 COA 11, ¶
32, 446 P.3d 826, 831 (quoting People in Int. of
Z.P., 167 P.3d 211, 214 (Colo.App. 2007)); see also
People v. D.A.K., 596 P.2d 747, 751 (Colo. 1979)
(stating that a dependency and neglect proceeding is civil in
nature and involves three parties-the parents, the
11
child, and the state); C.R.J.P. 1 (noting that proceedings
brought in juvenile court are "civil in nature").
Accordingly, there is no right to a jury trial grounded in
the Colorado Constitution in these cases. Kaitz v. Dist.
Ct., 650 P.2d 553, 554 (Colo. 1982) ("In Colorado
there is no constitutional right to a trial by jury in a
civil action."); People in Int. of C.C., 2022
COA 81, ¶ 11, 519 P.3d 762, 765. However, our General
Assembly has provided a statutory right to a jury
trial at the adjudicatory hearing stage of dependency and
neglect cases. § 19-3-202(2) ("[A]ny respondent . .
. may demand a trial by jury of six persons at the
adjudicatory hearing ....").
¶20
Generally, when juvenile matters are "not governed
by" the Colorado Rules of Juvenile Procedure or the
Children's Code, they are "conducted according to
the Colorado Rules of Civil Procedure." C.R.J.P. 1;
see also K.J.B., ¶ 9, 342 P.3d at 599 (same).
Thus, when the Colorado Rules of Juvenile Procedure and the
Children's Code are silent on an issue, the Colorado
Rules of Civil Procedure may kick in.
¶21
As relevant here, C.R.J.P. 4.3(a) states that a parent must
demand a jury trial "[a]t the time the allegations of a
petition are denied"; otherwise, the right is
"deemed waived." No other rule in the Colorado
Rules of Juvenile Procedure or the Children's Code
further discusses the statutory right to a jury trial or its
waiver once the right has been invoked.
12
¶22
C.R.C.P. 39, however, sets forth the circumstances under
which such waiver may occur, including, as pertinent here,
when "all parties demanding trial by jury fail to appear
at trial." C.R.C.P. 39(a). As the division implicitly
acknowledged, the waiver provisions of C.R.C.P. 39 are much
more comprehensive than those of C.R.J.P. 4.3(a) and the
Children's Code and thus apply in dependency and neglect
cases.
III.
Analysis
¶23
Petitioners argue that Father's 2021 waiver of his
statutory right to a jury trial was permanently binding in
this case and thus barred him from reasserting that right for
purposes of the 2023 trial. In their view, the juvenile
court's 2023 decision to set aside the 2021 default
adjudication had no impact on the waiver because the waiver
occurred before the error ultimately responsible for the
reversal of the first adjudication. Father counters that the
order granting his C.R.C.P. 60(b) motion rendered the 2021
adjudication void, which necessitated a "completely new
adjudicatory trial," and since he didn't fail to
appear at the 2023 trial, he was entitled to have a jury
determine the issue of adjudication at that proceeding.
¶24
At the outset, we lay out what is not in dispute:
• In 2021, Father properly requested an adjudicatory
jury trial but then failed to appear for that trial.
13
• Under Colorado law, Father's 2021 failure to
appear constituted a waiver of his statutory right to a jury
trial.
• On the day Father failed to appear in 2021, the
juvenile court incorrectly adjudicated, by default, the
children dependent or neglected as to him.
• In 2023, the juvenile court correctly granted
Father's C.R.C.P. 60(b) motion and vacated the default
judgment.
• In the order vacating the default judgment, the
juvenile court scheduled an adjudicatory bench trial after
finding that Father had waived his statutory right to a jury
trial in 2021.
¶25
The question we confront is whether the juvenile court erred
by ruling in its C.R.C.P. 60(b) order that Father had waived
his jury-trial right for purposes of the 2023 trial by
failing to appear for the 2021 jury trial. But the devil is
in the details, as they say. So, we frame the issue before us
more precisely as follows: Where, as here, a parent in a
dependency and neglect proceeding waives the statutory right
to a jury by failing to appear for an adjudicatory trial, and
a default adjudicatory judgment is subsequently entered
(incorrectly) and then vacated (correctly) pursuant to a
C.R.C.P. 60(b) motion, does the waiver of the jury-trial
right bar the parent from making a jury-trial demand at the
second adjudicatory trial?
¶26
Not surprisingly, neither the parties' research nor ours
unearthed any cases in Colorado or elsewhere on point. There
is a body of case law outside of Colorado, however, that
addresses somewhat similar questions in the context of the
constitutional right to a jury trial and a waiver of
that right expressly executed by a party. Of course,
here, we deal with a statutory right to a jury trial
and an
14
implied waiver of that right as a result of a
party's failure to appear for a jury trial. Nevertheless,
we think it useful to briefly discuss the case law from other
jurisdictions because the principles that can be extracted
from it are enlightening.
¶27
Most states appear to hold that the waiver of a jury trial is
not operative for a subsequent trial in the same case.
See generally H.D.W., Annotation, Waiver of
Right to Jury Trial as Operative After Expiration of Term
During Which It Was Made, or as Regards Subsequent
Trial, 106 A.L.R. 203 (1937); H.H. Henry, Annotation,
Withdrawal of Waiver of Right to Jury Trial in Criminal
Case, 46 A.L.R.2d 919 (1956); see also In re Hulcher
Servs., Inc., 568 S.W.3d 188, 190 (Tex. App. 2018)
(referring to this as "[t]he long-standing majority
rule"). And most federal courts appear to be on the same
page. See generally Wesley Kobylak, Annotation,
Waiver of Right to Trial by Jury as Affecting Right to
Trial by Jury on Subsequent Trial of Same Case in Federal
Court, 66 A.L.R. Fed. 859 (1984). We explore each
category of cases in turn.
¶28
Starting with the state cases, we note that the Washington
Supreme Court has explained that, since a party waiving the
right to a jury trial "likely does so without
contemplating the possibility of a subsequent trial, the
party does not intentionally 'waive' the
right to trial by jury in the second trial." Wilson
v. Horsley, 974 P.2d 316, 321-22 (Wash. 1999) (emphasis
added); see also Tesky v. Tesky, 327 N.W.2d 706,
708-09 (Wis. 1983) (same); People v. Hamm, 298
N.W.2d 896, 899 (Mich. Ct. App. 1980) (same); Nedrow v.
Mich.-Wis. Pipe Line Co., 70 N.W.2d 843, 844-45 (Iowa
1955)
15
(same). The Oklahoma Supreme Court came to a similar
conclusion, observing that, because the right to trial by
jury in the second trial didn't exist and couldn't
have been known at the time of the execution of the waiver,
it could not have been impliedly waived. Seymour v.
Swart, 695 P.2d 509, 512 (Okla. 1985); see also
Horsley, 974 P.2d at 322 (same).
¶29
In Nedrow, the Iowa Supreme Court reasoned that
limiting a waiver of the right to a jury trial to the initial
proceeding made sense given that circumstances may have
changed by the time of the second proceeding-i.e., both the
jury pool and the presiding judge could be different. 70
N.W.2d at 844 ("[I]t is hardly fair to presume that by
waiving a jury for one trial the parties intended to waive a
jury for any further trial that may be had ....");
see also Horsley, 974 P.2d at 322 (quoting
Nedrow with approval). Even if a case is remanded
for retrial in front of the same judge after reversal of a
conviction, there may still be concerns with applying a
waiver of the jury executed for purposes of the initial
proceeding: A criminal defendant might well be opposed to a
retrial in front of the same judge who previously reached a
judgment of guilty.
¶30
The weight of authority in the federal system aligns with
these teachings from our sister state courts. More than a
century ago, the Seventh Circuit held that a stipulation to
waive the jury applied only in the pending trial because it
"should not be presumed that the parties, in making the
stipulation, had in mind any
16
possible subsequent trial." Burnham v. N. Chicago
St. Ry. Co., 88 F. 627, 629 (7th Cir. 1898). Much more
recently, in United States v. Lutz, 420 F.2d 414,
416 (3d Cir. 1970), the Third Circuit held that, following a
mistrial, the parties may assert or waive their jury-trial
rights. Likewise, around the same time, the Sixth Circuit
held that, unless the waiver of a jury trial explicitly
includes the contingency of a retrial, the waiving party may
demand a jury trial before the retrial. United States v.
Groth, 682 F.2d 578, 580 (6th Cir. 1982). Along the same
lines, in Zemunski v. Kenney, 984 F.2d 953, 954 (8th
Cir. 1993), the Eighth Circuit ruled that, although a
mistrial doesn't automatically extinguish a jury-trial
waiver, a party may withdraw the waiver before the second
trial. And, in a similar context, the Ninth Circuit declared
that the waiver of some constitutional rights "should
not, once uttered, be deemed forever binding."
United States v. Mortensen, 860 F.2d 948, 950 (9th
Cir. 1988) (concluding that consent to try a case before a
magistrate judge instead of an Article III judge may be
withdrawn following a mistrial).
¶31
We reiterate that these state and federal cases are not on
all fours with this case. For one thing, they implicated a
constitutional right of heightened importance, the
waiver of which "must be strictly construed."
Horsley, 974 P.2d at 322; see also United States
v. Lee, 539 F.2d 606, 609 (6th Cir. 1976) (indicating
that the constitutional right to a jury trial in a criminal
case is "a fundamental right, and a waiver should not be
presumed"); Burnham, 88 F. at 629 ("The
right of trial by jury
17
. . . is a high and sacred constitutional right in
Anglo-Saxon jurisprudence .... A stipulation for the waiver
of such right should therefore be strictly construed in favor
of the preservation of the right."). For another, they
were concerned with the prospect of applying a waiver of the
jury-trial right, executed by a party for purposes of one
trial, in an unforeseen subsequent trial. See, e.g.,
Horsley, 974 P.2d at 322; Seymour, 695 P.2d
at 512-13; Burnham, 88 F. at 629.
¶32
So, what happens where, as here, there's an
implied waiver (by operation of law) of a
statutory right to a jury as a result of a
party's failure to appear at trial? Is such a waiver
forever binding in the case so as to bar the party from
demanding a jury trial in any subsequent proceeding? And if
it's not, does Father prevail here? These questions
compel us to delve deeper into the case law.
¶33
What is clear from the majority rule our research excavated
is that, while a waiver of the right to a jury trial
doesn't bar a jury-trial demand in a subsequent
proceeding in the same case, the waiving party doesn't
automatically receive a jury trial in the latter proceeding.
See, e.g., Horsley, 974 P.2d at 322. Nor is
the burden on the trial court to inquire at the subsequent
proceeding whether the waiving party wishes to persist in the
waiver or demand a jury trial. See, e.g.,
id. No: If the waiving party wants a jury trial in
the subsequent proceeding, the burden is on that party to
request such a trial. See, e.g., id.
18
¶34
Moreover, any request for a jury trial in the subsequent
proceeding must be timely made-i.e., without unnecessary
delay. In Mortensen, the Ninth Circuit pointed out,
in the context of a waiver of the right to a trial before an
Article III judge, that a request to withdraw such a waiver
for purposes of a retrial must be timely. 860 F.2d at 950. Of
course, timeliness is not a concept that can be defined with
"precise quantification." Id. Rather, its
contours are necessarily set by the circumstances of each
particular case. Id. The Mortensen court
ultimately held that "a withdrawal motion is timely when
granting the motion would not unduly interfere with or delay
the proceedings." Id. Because Mortensen waited
to seek withdrawal of his waiver until the morning of the
retrial, the court concluded that he "clearly failed to
satisfy the timeliness requirement." Id. at
951.
¶35
Notably, the Ninth Circuit was troubled by the fact that
Mortensen's actions up until the morning of the retrial
were inconsistent with his last-minute request to withdraw
his waiver. Id. Specifically, Mortensen allowed the
matter to be scheduled in front of a magistrate, set a date
for the filing of pretrial motions to the magistrate,
submitted a material witness warrant indicating the retrial
would be in front of the magistrate, advanced a request to
dismiss in front of the magistrate that made no mention of
his desire to withdraw his waiver, and sought and obtained a
continuance from the magistrate. Id.
19
¶36
In the same vein, in Zemunski, the Eighth Circuit
reaffirmed that a defendant may move to withdraw a jury
waiver following a mistrial only if the request is timely.
984 F.2d at 954. Applying the definition of timeliness from
Mortensen, the court concluded that Zemunski's
request to withdraw was untimely because he inexplicably
waited until the first day of the retrial to make it.
Id. The court reasoned that, like the waiver itself,
which was made on the first day of the initial trial, the
request to withdraw appeared to be dilatory in nature.
Id.
¶37
Lastly, in Talbert v. State, 529 S.W.3d 212, 214
(Tex. App. 2017), the Court of Appeals of Texas cautioned
that a criminal defendant's request to withdraw a jury
waiver must be made "sufficiently in advance of trial
such that granting the request will not: (1) interfere with
the orderly administration of the business of the court, (2)
result in unnecessary delay or inconvenience to witnesses, or
(3) prejudice the State." The court determined that the
trial court did not abuse its discretion in denying
Talbert's motion to withdraw his jury waiver because he
filed the motion on the day of trial, the motion was not
supported with evidence addressing the aforementioned
concerns, and the record supported "the trial
court's finding that withdrawal would have interfered
with the orderly administration of the court's
business." Id. at 216.
¶38
Aided by this guidance, we turn back to the issues we agreed
to review. For the reasons we articulate, we conclude that
the division erred.
20
IV.
Application
¶39
We need not decide whether Father's 2021 waiver of his
jury-trial right was, on the one hand, forever binding in
this case, thus barring him from reasserting his jury-trial
right in 2023 as Petitioners contend, or, on the other,
limited to the 2021 trial, and thus inoperative at the 2023
proceeding as Father asserts. And consistent with judicial
restraint, we abstain from doing so.
¶40
Father cannot prevail regardless of which side is right. If
Petitioners are correct, the analysis is simple: Father's
waiver of his jury-trial right as a result of failing to
appear in 2021 was permanently binding in this case and
therefore precluded him from demanding a jury trial for
purposes of the 2023 proceeding. Under this rationale, once a
party fails to appear for an adjudicatory jury trial in a
case, the party is barred from ever demanding a jury trial in
the case. On the flip side of the coin, if Father is
correct-which we assume solely for purposes of our
analysis-then his 2021 waiver was not forever binding in this
case. While this makes the analysis a little more
complicated, it still doesn't get Father his desired
fresh start.
¶41
In 2023, when the juvenile court vacated the default
judgment, it returned the case to the procedural posture it
was in right before the default judgment entered in 2021. It
was as if the default judgment had never entered. The case in
2023 had to resume the procedural posture from two
years earlier, where the case
21
was halted: There was a request by the Department to
adjudicate the children dependent or neglected as to Father,
Father had demanded a jury trial, and Father had then waived
his right to a jury trial. Even limiting the effect of the
waiver to the 2021 proceeding, there was no active
demand for a jury trial. To be sure, Father was free to
make a new jury-trial demand for purposes of the 2023
proceeding. But it was incumbent on him to do so, as required
by section 19-3-202(2) and C.R.J.P. 4.3(a) and as supported
by the majority rule we've examined. Because he made no
such demand, the case proceeded to the bench trial that would
have been conducted in 2021 if the juvenile court hadn't
erroneously entered a default judgment after he failed to
appear.
¶42
The division recognized that the vacatur of the default
judgment in 2023 put Father "in the same legal position
. . . he was in before the 2021 adjudicatory trial."
Kay.W., ¶ 19. But the division seemed to assume
that Father was automatically entitled to have a jury trial
in 2023: "C.R.C.P. 39(a) requires that a jury trial be
held unless 'all parties demanding trial by jury
fail to appear at trial.' . . . And because [F]ather did
appear at the 2023 adjudicatory trial, he didn't waive
his right to a jury." Id. at ¶ 20
(emphasis added and original emphases omitted). In giving
Father a do-over in this case, the division treated his
waiver as lacking binding effect for purposes of the 2023
trial (which we assume was correct). Id. at
¶¶ 19-20. But that only meant that Father was
free to reassert his right to a jury trial, not that
22
Father was automatically entitled to have a jury trial. The
division was wrong to reflexively revive Father's 2021
demand for a jury trial after the waiver that resulted from
his failure to appear.
¶43
No case that we have found in our research-in Colorado or
elsewhere, in state court or federal court-supports the
division's analysis. Even the cases in the majority camp
(i.e., the cases most favorable to Father), which decline to
deem the waiver of a jury as binding in a subsequent
proceeding in the same case, make clear that the waiving
party must assert the jury-trial right in the subsequent
proceeding. See, e.g., Horsley, 974 P.2d at
322 ("Parties who waive the right to a jury trial are
free to assert this right following a
mistrial." (emphasis added)); Lutz, 420 F.2d at
416 (noting that, following a mistrial, the parties may
assert or waive their jury-trial rights); Groth, 682
F.2d at 580 (stating that, unless the waiver of a jury trial
explicitly includes the contingency of a retrial, the waiving
party may demand a jury trial before the second trial).
¶44
Importantly, following his waiver of a jury in 2021, section
19-3-202(2) and C.R.J.P. 4.3(a) required Father to demand a
jury trial again in 2023. § 19-3-202(2) ("[A]ny
respondent . . . may demand a trial by jury of six persons at
the adjudicatory hearing ....); C.R.J.P. 4.3(a) ("[A]
respondent . . . may demand . . . a jury of not more than
six. Unless a jury is demanded or ordered, it shall be deemed
waived."). Father failed to comply with the statute and
the rule.
23
¶45
To the extent that the division considered the 2023 trial to
be a "separate and distinct" proceeding from the
2021 proceeding during which the jury was waived,
Kay.W., ¶ 19, we're not sure why that
wouldn't require Father to make a new demand for a jury
trial in accordance with section 19-3-202(2) and C.R.J.P.
4.3(a). True, C.R.J.P. 4.3(a) states that a party may demand
a trial by jury "[a]t the time the allegations of a
petition are denied," and, as of the 2023 proceeding,
the petition's allegations had been denied for two years.
But the statute doesn't tether a jury demand to the
denial of the allegations, and we decline to construe the
rule as dispensing with the requirement for a jury demand
where, as here, a trial is conducted after the waiver of a
previous demand for a jury trial. Thus, Father should have
demanded a jury as provided in section 19-3-202(2) and
C.R.J.P. 4.3(a).
¶46
Having waived his right to a jury trial in 2021-a waiver that
preceded, and was thus unaffected by, the order that vacated
the default judgment and required a new adjudicatory
trial-there was no active demand for a jury trial on which
Father could rely in 2023. Therefore, contrary to the
division's suggestion, there was also no jury-trial right
for Father to preserve by simply appearing at the 2023 trial.
¶47
We acknowledge that on the morning of the 2023 trial, in
response to the juvenile court's inquiry about
preliminary matters, Father objected, "for the
24
record," to the finding of a waiver. But we disagree
with the division that this was the equivalent of a demand
for a jury trial.
¶48
Besides, even if Father's objection could reasonably be
deemed a jury demand-it cannot-it would still fall woefully
short. Father waited twenty days, until the morning of trial,
to make his objection. And he provided no explanation for his
tardiness.[8] What's more, his actions preceding the
start of the 2023 trial belied his objection. In an amended
witness list filed just one week before trial, Father
expressly acknowledged, without protestation, that the matter
was set for a trial to the court. Why did Father seem to
implicitly accept a bench trial a week before trial but not
on the morning of trial?
¶49
Significantly, had the court sustained Father's
objection, it inevitably would have resulted in an
unnecessary delay of the proceeding, to the detriment of the
children. This would have been unacceptable because the
children's best interests are of preeminent importance in
this proceeding. Of course, the expedited placement of young
children is expressly among those best interests. Indeed, the
Children's Code's preamble, § 19-1-102(1.6),
C.R.S. (2024), emphasizes the need for "an expedited
placement procedure to ensure that children under the age of
six
25
years who have been removed from their homes are placed in
permanent homes as expeditiously as possible." As
mentioned, four out of the five children involved in this
case were under six years of age at the time the dependency
and neglect petition was filed. Consistent with our
legislature's declaration, the juvenile court had a duty
to "proceed with all possible speed to a legal
determination that [would] serve the best interests of the
child[ren]." § 19-1-102(1)(c). And, although it is
not lost on us that section 19-3-202(2) recognizes a
parent's right to an adjudicatory jury trial, that
statute nowhere endorses or even permits dilatory tactics.
¶50
Additionally, granting Father's objection would have
interfered with the court's administration of justice and
inconvenienced the witnesses. The court would have been
required to postpone the matter so it could then summon
prospective jurors for the case on a future date. All
witnesses would then have been required to return for a jury
trial.
¶51
Under these circumstances, Father's objection was too
little, too late. Thus, the juvenile court did not err in
holding an adjudicatory bench trial.
V.
Conclusion
¶52
For the foregoing reasons, we reverse the division's
judgment. We remand the case so the division may entertain
Father's remaining contentions.
---------
Notes:
[1] A "mulligan" is "a free
shot sometimes given a golfer in informal play when the
previous shot was poorly played." Mulligan,
Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/mulligan
[https://perma.cc/ 5BQW-GVMF]. In common parlance, a
"mulligan" refers to a second chance: an
"opportunity to start again after an initial
failure." Mulligan, Collins English Dictionary,
https://
www.collinsdictionary.com/dictionary/english/mulligan
[https://perma.cc/D7CT-MJP5].
[2] C.R.C.P. 38 addresses jury-trial
demands in civil cases, including the procedures that must be
observed. We need not decide here whether the rule applies to
dependency and neglect cases.
[3] An expedited permanency planning case
is one in which the juvenile court must follow specific
expedited timelines and procedures "for the permanent
placement of children under the age of six years."
§ 19-1-123(1)(a), C.R.S. (2024). Four of the children
had not yet celebrated their sixth birthday at the time the
dependency and neglect petition was filed.
[4] The termination hearing was scheduled
to take place over several noncontiguous days during a period
spanning a handful of months.
[5] Father's counsel did not specify
whether his "for the record" objection was premised
on the finding in 2021 that his failure to appear constituted
a waiver or the finding in 2023 that he'd previously
waived a jury.
[6] The division rejected the preservation
argument advanced by the GAL. Id. at ¶¶
14-15. The GAL reraises that argument here. That ship,
however, sailed when we accepted the only two issues raised
in Petitioners' requests for review, neither of which
dealt with preservation.
[7] The issues upon which we granted
certiorari are different framings of what is loosely the same
question:
1. Whether the court of appeals correctly ruled that
father regained his right to a jury trial for adjudication
after he waived the statutory right by
non-appearance.
2. Whether the division erred in finding that father
did not waive his statutory right to an adjudicatory jury
trial after he failed to appear for the first-scheduled
trial, but where the judgment from the hearing was later
vacated and another hearing was scheduled.
[8] Petitioners maintain that Father
should have renewed his demand for a jury trial in his
C.R.C.P. 60(b) motion. While this may have been ideal, we do
not hold it against Father that he failed to do so.