Peo in Interest of ML

24CA1452 Peo in Interest of ML 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1452
Montrose County District Court No. 22JV30030
Honorable D. Cory Jackson, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.L., a Child,

and Concerning S.P.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE KUHN
Welling and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Martha Phillips Whitmore, County Attorney, Julie R. Andress, Deputy County
Attorney, Montrose, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant
¶1 In this dependency and neglect action, S.P. (mother) appeals

the judgment adjudicating M.L. (the child) dependent and

neglected. We affirm.

I. Background

¶2 The Montrose County Department of Human Services filed a

petition in dependency and neglect regarding the then-one-year-old

child. Mother’s whereabouts were unknown at the time, but she

was later located in California and remained there throughout the

case.

¶3 Mother denied the allegations in the petition and requested an

adjudicatory jury trial. However, the juvenile court granted the

Department’s summary judgment motion and vacated the jury trial.

Mother appealed, and a division of this court reversed the

adjudication. People in Interest of M.L., (Colo. App. No. 23CA737,

Sept. 28, 2023) (not published pursuant to C.A.R. 35(e)).

¶4 During the year following her jury trial request, mother failed

to personally appear at numerous hearings, though her counsel

did. The court eventually found that she had waived her right to a

jury trial and held an adjudicatory bench trial. Both mother and

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her counsel appeared at the trial, and neither objected to

proceeding with a trial to the court rather than a jury trial.

¶5 The court adjudicated the child dependent and neglected.

II. Analysis

¶6 Mother contends that the juvenile court erred by

(1) determining that she waived her right to a jury trial and

(2) violating her right to a fundamentally fair proceeding. We

address each argument in turn.

A. Jury Trial Waiver

¶7 Mother first argues that the juvenile court erred by denying

her statutory right to an adjudicatory jury trial when she had not

voluntarily waived that right. We discern no basis for reversal.

1. Additional Background

¶8 Mother personally appeared at two hearings early in the case,

at one of which she denied the allegations in the petition and

requested a jury trial. She then failed to appear at eight

consecutive hearings, including some occurring during the

pendency of the first appeal. Throughout this period, her counsel

appeared at the hearings and repeatedly indicated that he had no

representations to make on mother’s behalf.

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¶9 Following the mandate in the first appeal, a year into the case,

mother continued not appearing in court. Her counsel reported

that he did not know her “position . . . in terms of moving forward.”

So the court set another hearing a month later to discern from

mother her position on adjudication and ordered her to at least call

in or otherwise appear remotely at the hearing.

¶ 10 Mother again did not appear, and her counsel reported that he

had no representations to make on her behalf. When the court

stated that it would like to set the case for a bench trial, her

counsel noted, “I guess my only concern just for the record is that

she did previously request a jury trial. I understand the court’s

position. I guess I would just put that out there, but I’m not

entirely sure what to do.” Then, the court found that mother had

waived her right to a jury trial and scheduled a bench trial:

At this point she’s failed to appear for several
hearings and we just don’t have any good
information. And I think that the case law . . .
talk[s] about a party who fails to appear at trial
and a potential waiver of a jury trial. And I
think that the purpose for setting today’s
hearing was really to ascertain what [mother’s]
preference was. And we discussed that at our
last hearing and the hope was that she would
appear and express a preference. So at this
point I do find that she’s waived her right to a

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jury trial based on her failure to appear and
otherwise indicate at this hearing what she
wanted to do. And I think that is consistent
with just our difficulty getting in touch with
her since the appeal went up. So I am going to
schedule a Court trial . . . .

Mother’s counsel did not object to the court’s finding of waiver at

this or any later appearances (nor did mother when she appeared at

subsequent proceedings).

¶ 11 The next month, mother appeared at a status conference, and

the court warned her it was “critical” that she appear at the

scheduling conference the next day so she could inform the court of

her availability for the trial. But she did not appear the next day.

Noting that the delays were causing a “really untenable” situation,

the court set another date for the bench trial.

¶ 12 Mother did not initially appear at the adjudicatory bench trial.

Her counsel acknowledged that he was “still in a tough spot,” but

confirmed that he could still ethically represent her. Mother later

joined the proceedings during the caseworker’s direct examination.

Mother and her attorney participated in the trial without objecting

to the lack of a jury.

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2. Mother Waived Her Right to a Jury Trial

¶ 13 Citing C.R.C.P. 39(a), mother first contends that the juvenile

court erroneously found that she waived her right to a jury trial.

¶ 14 A parent has a statutory right to demand a jury trial at the

adjudicatory hearing. § 19-3-202(2), C.R.S. 2024; People in Interest

of C.C., 2022 COA 81, ¶ 11; see C.R.C.P. 39(a) (providing, as

relevant here, that the trial shall be by jury so demanded unless the

requesting parties waive in writing or “all parties demanding trial by

jury fail to appear at trial”).1 However, a parent may waive the right

to a jury trial as long as the waiver is voluntary. People in Interest

of K.J.B., 2014 COA 168, ¶ 29; see also C.C., ¶ 17 (“[T]he right to a

jury trial ‘may be lost only for the reasons listed in C.R.C.P. 39(a).’”

(quoting Wright v. Woller, 976 P.2d 902, 903 (Colo. App. 1999))).

1 In April 2025, our supreme court adopted new Colorado Rules of

Juvenile Procedure that will apply to all cases filed on or after July
1, 2025. Rule Change 2025(10), Colorado Rules of Juvenile
Procedure (Amended and Adopted by the Court En Banc, Apr. 21,
2025), https://perma.cc/6FC6-5S75. As relevant here, C.R.J.P.
4.21 specifies how a respondent parent may invoke or waive the
right to an adjudicatory trial. Id. Thus, although C.R.C.P. 39
applies in this case, it will not apply in cases filed on or after July 1,
2025.

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“Such a waiver may be either express or implied.” People in Interest

of N.G., 2012 COA 131, ¶ 51.

¶ 15 In civil proceedings, such as dependency and neglect cases, a

party who demands a jury but fails to make any objection when the

case is tried without a jury waives the jury demand. See MacGregor

v. Porter, 354 P.2d 489, 489-90 (Colo. 1960); Johnson v. Neel, 229

P.2d 939, 944-45 (Colo. 1951). “[H]aving proceeded without

objection to trial to the court without a jury, [mother] cannot, after

adverse judgment at the hands of the court, claim error based upon

the fact that no jury was impaneled. Her right to a jury trial was

waived.” MacGregor, 354 P.2d at 489.

¶ 16 That is the case here. Neither mother nor her counsel ever

asserted that mother wanted a jury trial for the adjudication

following remand. To the contrary, at the hearing where the court

found a jury trial waiver, her counsel told the court that he had no

representations to make on her behalf. And neither mother nor her

counsel objected to that finding at any hearings following the

finding or at the bench trial itself. And neither later asserted the

right. Crucially, mother and her counsel appeared (mother albeit

late) and participated in the bench trial without objecting to the

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trial being held in front of the court rather than the jury. Under

these circumstances, we conclude that mother waived her statutory

right to a jury and has not preserved a claim of “error based upon

the fact that no jury was impaneled.” Id.; see Johnson, 229 P.2d at

944-45.

¶ 17 To the extent mother contends that the court, in contravention

of People in Interest of J.R.M., 2023 COA 81, ¶¶ 17, 20, erroneously

based its finding of waiver on her failure to appear at a pretrial

conference or struck a jury trial as a sanction for failure to comply

with court rulings, we again disagree.

¶ 18 As mentioned above, mother was absent for numerous

appearances and disengaged from this case for a year. Practically

speaking, no one — including her own attorney — knew how she

would like to proceed on the issue of adjudication after remand.

While her attorney noted his “concern just for the record” that she

requested a jury trial before the appeal, he admittedly was “just

put[ting] that out there” and was “not entirely sure what to do.” In

short, nothing in the record indicates that the court converted the

trial solely because of mother’s failure to attend a pretrial

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conference or to sanction her for failure to comply with a court

ruling.

¶ 19 In any event, we conclude that mother waived her claim of

error here because she and her counsel participated in the bench

trial without objection to the lack of a jury. MacGregor, 354 P.2d at

489; see Johnson, 229 P.2d at 944-45.

B. Procedural Due Process

¶ 20 Mother next contends that she was denied her due process

right to a fundamentally fair proceeding because the Department

introduced, and the court relied on, evidence of her post-trial

incarceration, though it was not alleged in the amended petition.

Specifically, mother argues that her due process rights were

violated because (1) she was not notified through an amended

petition of her own undisputed incarceration and (2) the court relied

on that evidence. Mother also impliedly argues that the court

essentially delayed ruling on adjudication to find a reason upon

which to base the adjudication that was neither pled nor tried

during the trial.

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1. Preservation

¶ 21 Mother raises her due process claim for the first time on

appeal. Generally, in dependency and neglect cases, only issues

raised in the juvenile court can be considered on appeal. People in

Interest of C.E., 923 P.2d 383, 385 (Colo. App. 1996). But an

appellate court may exercise its discretion and address an

unpreserved issue. See People in Interest of A.E., 914 P.2d 534, 539

(Colo. App. 1996). Divisions of this court have done so when, for

example, the issue concerned an alleged violation of fundamental

constitutional rights. See, e.g., C.E., 923 P.2d at 384-85. However,

we generally review such issues in dependency and neglect cases

only when doing so may prevent a miscarriage of justice. People in

Interest of M.B., 2020 COA 13, ¶ 20. That standard is not satisfied

here.

2. Additional Background

¶ 22 Following the reversal of the first adjudication, the Department

filed an amended petition, alleging that mother had limited contact

with the child (1) in the period preceding the filing of the initial

petition and could not be located at the time of his removal and

(2) for several months during the case and had abandoned him.

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¶ 23 During the bench trial, the court heard the caseworker’s and

mother’s testimony and closing arguments. While not authorized

by the court, mother’s counsel then filed a written supplemental

closing argument. The court in turn ordered the parties to file

supplemental briefs on multiple issues.

¶ 24 After briefing was complete, the Department notified the court

that mother had been arrested on felony charges and was

incarcerated in California. The court ordered that the evidence be

reopened to consider mother’s incarceration as it pertained to the

pending issue of adjudication. The court ordered the parties to file

status reports indicating whether the fact of her incarceration was

in dispute, including any requests for a hearing to establish or

disprove that fact. Only the Department responded with a status

report and a caseworker’s affidavit attesting that mother was facing

felony charges and incarcerated in California.

¶ 25 Four months after the bench trial, the court issued a written

ruling adjudicating the child dependent and neglected under

section 19-3-102(1)(b) and (c), C.R.S. 2024. The court based its

ruling on the admissible evidence introduced at the trial as well as

mother’s inability to parent because she was in custody. The court

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found that mother did not dispute the evidence of her incarceration

and noted that it is a fact that “appears appropriate for judicial

notice pursuant to CRE 201.”

3. Reviewing Mother’s Unpreserved Due Process
Claim Would Not Avert a Miscarriage of Justice

¶ 26 Mother does not articulate on appeal how she was prejudiced

by the court considering her incarceration under these facts, see

People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007),

and we do not perceive that she was. The juvenile court’s finding

that she was in custody and thus unable to provide parenting for

the child was not the sole basis for the adjudication. The court also

credited the caseworker’s unrefuted opinions that mother was

unable to care for the child or provide him with a safe living

environment for the child. And the court found, based on the

caseworker’s and mother’s testimony, that mother had an

“extremely limited relationship with the child” and had not had in-

person contact with him in a “stunningly long time.” Mother had

not been to Colorado for any in-person family time during the year

the case was open, her video visits were limited, and she had no

video visits with the child during the five months preceding the

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hearing. Further, the caseworker testified that the Department’s

concerns about such lack of involvement with the child had existed

since the case was opened. Finally, the court found that mother

was not credible on certain issues such as her ability to care for the

child, the suitability of her home, and the reasons she missed visits.

¶ 27 Thus, mother’s incarceration was not the sole — or even

primary — ground for the adjudication. And because mother does

not demonstrate prejudice from any alleged error in considering her

incarceration, we cannot conclude that reviewing her unpreserved

due process challenges would avert a miscarriage of justice. See

M.B., ¶ 20.

III. Disposition

¶ 28 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.

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