Peo in Interest of CBB

24CA1711 Peo in Interest of CBB 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1711
City and County of Denver Juvenile Court No. 23JV31028
Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Appellee,

In the Interest of C.B.B., a Child,

and Concerning S.J.A.,

Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

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

Josi McCauley, Guardian Ad Litem

Gregory Lansky, Office of Respondent Parents’ Counsel, Aurora, Colorado, for
Appellant
¶1 S.J.A. (mother) appeals the juvenile court’s judgment

adjudicating C.B.B. (the child) dependent or neglected. We affirm

the adjudication, but we reverse the disposition and remand the

case to the juvenile court for further proceedings in compliance with

the Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-

1963, and Colorado’s ICWA statute, § 19-1-126, C.R.S. 2024.

I. Background

¶2 In November 2023, the Denver Department of Human Services

received a referral indicating that mother had tested positive for

methamphetamine and marijuana at the time she gave birth to the

child. After an initial investigation, the Department filed a petition

in dependency and neglect concerning the then-newborn child. The

Department alleged concerns about mother’s substance use; lack of

housing; pending criminal charges; medical conditions, which

included a traumatic brain injury and uncontrolled seizures; and

mental health issues, which included post-traumatic stress

disorder and bipolar disorder. The Department also noted that the

child was born with Down syndrome and needed to be on oxygen.

¶3 The juvenile court granted temporary legal custody of the child

to the Department, and the child was placed with the child’s

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paternal grandmother. Mother denied the allegations in the petition

and requested an adjudicatory jury trial.

¶4 The juvenile court scheduled the jury trial for March 2024 but

continued it twice at mother’s request. In July 2024, mother did

not appear for the jury trial, and the court converted it to a court

trial after denying mother’s request to appear for the jury trial

virtually. At the conclusion of the trial, the court adjudicated the

child dependent or neglected under section 19-3-102(1)(b), (d), and

(e), C.R.S. 2024. The court later entered a dispositional order.

II. Mother’s Right to a Jury Trial

¶5 Mother contends that after she invoked her statutory right to a

jury trial, she never voluntarily waived it. Thus, she argues that the

juvenile court erred by converting the jury trial to a court trial. In

the alternative, she contends that her counsel was ineffective by

agreeing to proceed to a court trial. We are not persuaded.

A. Additional Background

¶6 Mother requested an adjudicatory jury trial, which the juvenile

court originally scheduled for March 2024. But mother did not

appear on the morning of trial, and her counsel requested a

continuance. The court continued the case to the afternoon and

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said that if mother did not appear, it would convert the jury trial to

a court trial. When mother did not appear, the court converted the

case to a court trial but explained that if mother appeared on the

scheduled date, she could reassert her right to a jury trial.

¶7 Mother appeared on the scheduled date and reasserted her

right to a jury trial. The court scheduled a jury trial for three weeks

later. But mother again did not appear, and her counsel moved for

another continuance, explaining that mother had a seizure a few

days earlier. The juvenile court granted the continuance and set

the case for another pretrial conference two days later. At that

conference, mother’s counsel reported that mother was doing

better, and the court again set a jury trial at mother’s request.

¶8 On the morning of the third-scheduled jury trial, mother again

did not appear. Mother’s guardian ad litem (GAL) explained that

although mother’s counsel had talked to mother the night before,

she had been unable to reach her that morning. The court paused

the proceeding to allow mother’s counsel the opportunity “to

ascertain [mother’s] location [and] intention of attending court.”

¶9 The court recalled the case fifteen minutes later, and mother’s

counsel reported that she had spoken to mother who was

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“purporting to not be doing well” and was “planning to call into

court.” Counsel acknowledged that it may be necessary to proceed

with a court trial but asked if the court would be willing to allow

mother to appear for the jury trial virtually. When the court denied

that request, counsel stated, “And with that, we’re in agreement

with proceeding with a court trial.” The court released the jury and

explained that mother could appear virtually for the court trial.

¶ 10 Before trial began, mother’s counsel said mother was “trying to

log in” and asked if the court could call her instead. The court

called mother twice with no answer and then allowed mother’s GAL

to step out of the courtroom to call mother. As she did so, mother’s

counsel told the court, “[W]e can get going.” After opening

statements, the court asked mother’s counsel if she had “any

updates in regards to reaching [mother],” and counsel said she did

not. The court proceeded with trial, and mother never appeared.

B. Jury Trial Waiver

¶ 11 Mother first contends that she did not waive her statutory

right to a jury trial by failing to appear for trial. We disagree.

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1. Applicable Law and Standard of Review

¶ 12 Parents have a statutory right to a jury trial at an adjudicatory

hearing in a dependency and neglect case. § 19-3-202(2), C.R.S.

2024; People in Interest of C.C., 2022 COA 81, ¶ 11. But a parent

may expressly or impliedly waive their statutory right to a jury trial

as long as the waiver is voluntary. See C.C., ¶ 12. A person may

waive a statutory right through “freely chosen conduct that clearly

manifests an intent to relinquish the right or is inconsistent with its

assertion.” People in Interest of B.H., 2021 CO 39, ¶ 70. Moreover,

in civil cases, a jury trial is not required when “all parties

demanding trial by jury fail to appear at trial.” C.R.C.P. 39(a).

¶ 13 When a parent fails to appear for an adjudicatory jury trial,

the juvenile court “should inquire further about the parent’s

whereabouts and the circumstances concerning her absence before

converting a jury trial to a bench trial.” See C.C., ¶ 18. The court

must then determine, based on that inquiry, whether the parent’s

actions manifest an intent to relinquish their right to a jury trial or

are inconsistent with the assertion of that right. See id.; B.H., ¶ 70.

¶ 14 The waiver of a statutory right presents a mixed question of

fact and law. See B.H., ¶ 50. We therefore accept the juvenile

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court’s factual findings if they are supported by the record and

review the legal significance of those facts de novo. Id.

2. Analysis

¶ 15 As an initial matter, the Department and GAL contend that

mother failed to preserve her jury trial claim for appeal by failing to

object to the juvenile court’s implied finding of waiver or to its

conversion of the jury trial to a court trial. See Forgette v. People,

2023 CO 4, ¶ 21 (noting that “a party must present the trial court

with ‘an adequate opportunity to make findings of fact and

conclusions of law on any issue’” before it is subject to appellate

review) (citation omitted). They also assert that mother is estopped

from challenging the lack of a jury trial because she expressly

agreed to and participated in the court trial. See MacGregor v.

Porter, 354 P.2d 489, 489-90 (Colo. 1960) (holding that party

waived jury trial by proceeding without objection to court trial).

¶ 16 We need not decide whether mother’s conduct, or that of her

counsel, precludes her from challenging the lack of a jury trial on

appeal. Even assuming mother’s claim is not barred by lack of

preservation or estoppel, we discern no error in the court’s

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conversion of the jury trial to a court trial because the record

indicates that mother waived her statutory right to a jury trial.

¶ 17 Consistent with C.C., when mother did not appear for trial (for

the third time), the juvenile court asked about her “whereabouts

and the circumstances concerning her absence.” C.C., ¶ 18. When

mother’s GAL explained that mother had “not been responsive,” the

court allowed additional time for counsel and the GAL to locate her

and determine whether she intended to appear in court. After

speaking with mother, counsel confirmed that mother did not plan

to appear in person and was planning to call in. Counsel gave no

indication that mother “would appear promptly or that she had a

good reason for her tardiness,” id., saying only that she was

“purporting not to be doing well this morning.” It was only after

this exchange that the court converted the jury trial to a court trial.

Although the court did not make an express finding that mother

waived her right to a jury trial, that finding was implicit in its

decision, and the record supports it. See In re Parental

Responsibilities of S.Z.S., 2022 COA 105, ¶ 21 (noting that a court’s

finding may be implicit in its ruling); C.C., ¶ 18; C.R.C.P. 39(a)(3).

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¶ 18 We are not persuaded by mother’s argument that C.R.C.P.

39(a)(3) does not apply to dependency and neglect cases. First, a

division of this court has concluded that it does. See People in

Interest of J.R.M., 2023 COA 81, ¶ 9 (noting that the Colorado Rules

of Civil Procedure apply to juvenile matters that are not governed by

the Colorado Rules of Juvenile Procedure or the Children’s Code);

see also C.R.J.P. 1.1 But more to the point, mother’s waiver does

not turn on the application of C.R.C.P. 39(a)(3). Regardless of

whether that rule applies, mother’s voluntary conduct of failing to

appear at trial — even after being contacted by counsel — manifests

an intent to relinquish her right to a jury trial or, at a minimum, is

inconsistent with the assertion of that right. See B.H., ¶ 70.

¶ 19 For the same reasons, we reject mother’s argument that her

counsel did not have the authority to waive her “personal and

substantial right to a jury trial.” Our conclusion is not based on

1 The supreme court has adopted new Colorado Rules of Juvenile

Procedure that will apply to all cases filed on or after July 1, 2025.
See 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. The new Rule 4.21(b) specifies how
a respondent parent can lose the statutory right to a jury trial. Id.
Thus, C.R.J.P. 4.21(b), rather than C.R.C.P. 39(a)(3), will apply in
dependency and neglect proceedings filed after July 1, 2025.

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counsel’s waiver of mother’s right to a jury trial. It is based on

mother’s waiver of her jury trial right by failing to appear at trial.

¶ 20 Nor are we persuaded by mother’s argument that, to the

extent C.R.C.P. 39(a)(3) applies, her counsel’s appearance was

sufficient to preserve her right to a jury trial under that rule.

C.R.C.P. 39(a)(3) provides that a jury trial is not required when the

“parties” demanding a jury trial fail to appear. And Colorado’s

Children’s Code specifies that a “party” to a dependency and neglect

proceeding is “[a] person named as a respondent.” § 19-3-

502(5.5)(a), C.R.S. 2024. Thus, when read together, C.R.C.P.

39(a)(3) and section 19-3-502 indicate that the focus must be on

the appearance of the respondent parent, not their counsel.

¶ 21 Mother suggests for the first time in her reply brief that the

court erred by denying her request to appear virtually for a jury

trial. We do not ordinarily consider arguments raised for the first

time in a reply brief. In re Marriage of Dean, 2017 COA 51, ¶ 31.

But even if we were to consider this argument, mother does not

point to any legal authority suggesting that a juvenile court must

permit a parent to appear virtually for a jury trial or that a parent’s

offer to do so preserves their statutory jury trial right. See In re

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Marriage of Zander, 2019 COA 149, ¶ 27, aff’d, 2021 CO 12

(declining to address argument not supported by “legal authority or

any meaningful analysis”). Notably, although the court did permit

mother to appear virtually for the court trial, she did not do so.

¶ 22 Finally, to the extent mother challenges the court’s conversion

of the first two scheduled jury trial dates to bench trials when

mother failed to appear for those trial dates, any error would be

harmless because the court subsequently allowed mother to

“reassert” her right to a jury trial and reset the case for a jury trial.

See C.A.R. 35(c) (“The appellate court may disregard any error or

defect not affecting the substantial rights of the parties.”).2

¶ 23 Thus, because mother waived her right to a jury trial by failing

to appear on the day of trial, the juvenile court did not err by

converting the jury trial to a court trial.

2 The Department and the GAL assert that mother was not entitled

to reassert her jury trial right after waiving it by failing to appear for
the first scheduled jury trial. Because we conclude that mother
waived her right by failing to appear for the third scheduled jury
trial date, we need not address this argument.

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C. Ineffective Assistance of Counsel

¶ 24 Mother also argues, in the alternative, that her counsel

provided ineffective assistance by (1) not requesting the court to

make the requisite inquiry under C.C. and (2) agreeing to proceed

with a court trial in mother’s absence. We again disagree.

1. Applicable Law

¶ 25 A parent has a statutory right to the effective assistance of

counsel in dependency and neglect proceedings. §§ 19-1-105(2),

19-3-202(1), C.R.S. 2024; A.R. v. D.R., 2020 CO 10, ¶ 47. A party

can raise a claim of ineffective assistance of counsel in a

dependency and neglect proceeding for the first time on appeal.

People in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007).

¶ 26 To establish a claim of ineffective assistance of counsel, a

parent must show that (1) “counsel’s performance was outside the

wide range of professionally competent assistance,” and (2) “there is

a reasonable probability that but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

A.R., ¶¶ 48, 60; see also Strickland v. Washington, 466 U.S. 668,

687 (1984). If the parent fails to establish either prong of this test,

the claim fails. People in Interest of C.B., 2019 COA 168, ¶ 26.

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¶ 27 Applying this test, we must remand the case for further factual

findings only if the parent’s allegations are “sufficiently specific to

constitute a prima facie showing of ineffective assistance of

counsel.” A.R., ¶ 63. If the allegations lack sufficient specificity or

do not meet this standard, we may summarily deny the claim. Id.

2. Analysis

¶ 28 Mother first argues that her counsel’s performance was

deficient because counsel did not ask the juvenile court to make

additional inquiries about mother’s whereabouts, as required by

C.C. But as we have explained above, the court made the proper

inquiry and allowed mother’s counsel additional time to investigate.

Mother’s counsel’s response made clear that mother did not plan to

appear in person, and mother does not assert otherwise on appeal.

There was thus no further inquiry for mother’s counsel to request.

¶ 29 Mother also argues that her counsel invited any error in the

conversion of her jury trial to a court trial by agreeing to proceed

with the court trial. But as discussed above, mother’s counsel did

not waive mother’s right to a jury trial; mother waived it by failing to

appear. And once she had done so, mother’s counsel had no

ground to object to the conversion of the jury trial to a court trial.

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¶ 30 Moreover, mother does not claim that counsel agreed to

proceed with the court trial without her consent or failed to advise

her of the consequences of her failure to appear. And nothing in

the record suggests that counsel acted against mother’s wishes. To

the contrary, the record indicates that counsel had spoken to

mother immediately before telling the court that “we’re at the point

where we understand if we need to proceed with a court trial” and

“with [the denial of the request to appear for a jury trial virtually],

we’re in agreement with proceeding with a court trial.” See Colo.

RPC 1.2(a) (providing that “a lawyer shall abide by the client’s

decisions concerning the objectives of the representation and . . .

consult with the client as to the means by which they are to be

pursued,” and “may take such action on behalf of the client as is

impliedly authorized to carry out the representation”).

¶ 31 Thus, because mother has not made sufficient allegations to

constitute a prima facie showing that her counsel’s performance

was deficient, we deny her claim. See A.R., ¶ 63; C.B., ¶ 26.

III. Judicial Notice

¶ 32 Mother also contends that the juvenile court erred by taking

judicial notice of its personal observations of mother’s functioning

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and emotional dysregulation, the fact that it had to continue the

trial several times, and the fact that it had to appoint a GAL for

mother. Mother asserts that the court improperly relied on these

judicially noticed facts to adjudicate the child dependent or

neglected. She also argues that this error created an appearance of

bias, deprived her of fundamentally fair proceedings, and

constituted a miscarriage of justice. We are not persuaded.

A. Applicable Law and Standard of Review

¶ 33 A court may take judicial notice of an adjudicative fact that is

not subject to reasonable dispute and is either (1) generally known

within the territorial jurisdiction of the court, or (2) capable of

accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned. CRE 201(b). A court

may also take judicial notice of its own records. In Interest of

C.A.B.L., 221 P.3d 433, 442 (Colo. App. 2009). But a court may not

take judicial notice of facts on the issue the parties are litigating.

Id. Judicial notice must be exercised “cautiously because its

purpose is to bypass the usual factfinding process.” Quintana v.

City of Westminster, 56 P.3d 1193, 1199 (Colo. App. 2002).

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¶ 34 We review the juvenile court’s decision to take judicial notice

for an abuse of discretion. Id. A court abuses its discretion when

its ruling is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law. People in Interest of E.R., 2018 COA 58, ¶ 6.

B. Analysis

¶ 35 Mother did not preserve her judicial notice argument for

appeal. When a court takes judicial notice without prior

notification, a party may request “an opportunity to be heard as to

the propriety of taking judicial notice and the tenor of the matter

noticed.” CRE 201(e). Yet, after the juvenile court said it was

taking judicial notice of certain of its observations, mother did not

object or otherwise challenge the propriety of that judicial notice.

We generally will not address arguments raised for the first time on

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

¶ 36 In any event, even if we were to address mother’s argument,

we discern no reversible error. The Department presented ample

evidence at the adjudicatory trial that mother’s emotional

dysregulation and medical conditions hindered her ability to care

for the child or meet the child’s needs. That evidence independently

supported the court’s finding that the child was dependent or

15
neglected, wholly apart from any judicially noticed facts. Thus, any

error in the court’s decision to take judicial notice of its own

observations of mother’s challenges was harmless. See C.A.R.

35(c); People in Interest of R.J., 2019 COA 109, ¶ 22 (holding that an

error does not affect a substantial right unless it can be said with

fair assurance that the error substantially influenced the outcome

of the case or impaired the basic fairness of the trial itself).

¶ 37 To the extent mother argues that the juvenile court’s decision

to take judicial notice created an appearance of bias or impropriety,

that argument is undeveloped. See People in Interest of D.B-J., 89

P.3d 530, 531 (Colo. App. 2004) (declining to address undeveloped

argument). We may not question the reliability of the result of a

proceeding unless the judge was “actually biased.” People in

Interest of A.P., 2022 CO 24, ¶ 29. To show actual bias, the record

must “clearly demonstrate” that the judge had a “substantial bent

of mind” against a party. Id. at ¶ 30 (citation omitted). Bare

assertions and speculative statements do not meet this burden. Id.

¶ 38 In her opening brief, mother asserts only that the court’s

decision to take judicial notice “created an appearance of partiality

and bias, a substantial appearance [of] impropriety, and made [the

16
court] a witness to the proceeding.” (Emphasis added.) But mother

does not contend that the judge was “actually biased” against her,

much less point to anything in the record that “clearly

demonstrate[s]” such bias. Id. at ¶¶ 29-30. She thus provides no

legal basis for setting aside the adjudication. See id. at ¶¶ 39-40.

¶ 39 Finally, mother contends that the court’s decision to take

judicial notice deprived her of fundamentally fair proceedings,

violated her due process rights, and constituted a miscarriage of

justice. This argument fails because we have already concluded

that any error was harmless. See People in Interest of J.A.S., 160

P.3d 257, 262 (Colo. App. 2007) (“A parent may not obtain relief on

a due process claim absent a showing of harm or prejudice.”).

IV. ICWA

¶ 40 Mother also contends that the juvenile court did not comply

with ICWA and Colorado’s ICWA statute by failing to direct the

Department to exercise due diligence in determining whether there

is reason to know that the child is an Indian child. We agree.

A. Applicable Law

¶ 41 ICWA applies when a dependency and neglect proceeding

involves an “Indian child.” See People in Interest of A.G.-G., 899

17
P.2d 319, 321 (Colo. App. 1995). “Indian child” is defined as “any

unmarried person who is under age eighteen and is either (a) a

member of an Indian tribe or (b) is eligible for membership in an

Indian tribe and is the biological child of a member of an Indian

tribe.” 25 U.S.C. § 1903(4); see also § 19-1-103(83), C.R.S. 2024.

¶ 42 In any emergency, voluntary, or involuntary child-custody

proceeding, the juvenile court must ask the parties on the record

whether they know or have reason to know that the child is an

Indian child. § 19-1-126(1)(a)(I)(A). A dispositional hearing is a

child-custody proceeding under ICWA. People in Interest of M.V.,

2018 COA 163, ¶ 42, overruled on other grounds by People in

Interest of E.A.M. v. D.R.M., 2022 CO 42. Thus, a juvenile court

must make an ICWA inquiry at the dispositional hearing.3

¶ 43 A mere assertion of a child’s Indian heritage does not alone

give the juvenile court reason to know that a child is an Indian

child. E.A.M., ¶ 56. But if the court receives information that the

child may have Indian heritage, it must direct the Department to

3 An adjudicatory trial is not a child-custody proceeding.People in
Interest of M.V., 2018 COA 163, ¶¶ 35-36, overruled on other
grounds by People in Interest of E.A.M. v. D.R.M., 2022 CO 42.

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“exercise due diligence in gathering additional information that

would assist the court in determining whether there is reason to

know that the child is an Indian child.” § 19-1-126(3); see also

H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 5.

B. Analysis

¶ 44 At the initial shelter hearing, mother reported having Seminole

and Cherokee heritage. Mother later filed a family ancestry chart,

which again reported that she had Seminole and Cherokee heritage

but explained that she did not know “specifics of who in her family

was enrolled” in a tribe. Thus, at a minimum, the court “receive[d]

information that the child may have Indian heritage.” § 19-1-

126(3). The court was therefore required to direct the Department

to exercise due diligence. Id.; see also H.J.B., ¶ 5 (holding that

“generalized assertions of Indian heritage, without more, trigger the

due diligence requirement” under section 19-1-126(3)).

¶ 45 Nothing in the record indicates that the court did so. Nor did

the court make any findings concerning the Department’s efforts to

gather more information about mother’s reported Indian heritage

and whether there was reason to know the child is an Indian child.

See H.J.B., ¶ 59 (explaining that juvenile court “must determine

19
(1) whether the petitioning party satisfied its statutory due diligence

requirements and (2) whether the court now has reason to know

that the child is an Indian child”). Although the court did inquire

about ICWA at the initial shelter hearing, it made no ICWA inquiry

or findings at the dispositional hearing. See § 19-1-126(1)(a)(I)(A).

¶ 46 We therefore reverse the dispositional order and remand the

case to the juvenile court. See M.V., ¶ 47. On remand, the juvenile

court should first ask mother whether she knows or has reason to

know that the child is an Indian child. § 19-1-126(1)(a)(I)(A). If

mother maintains that she has Seminole and Cherokee heritage

and does not know which family members are enrolled or eligible for

membership in a tribe, the court should direct the Department to

exercise due diligence under section 19-1-126(3). See H.J.B.,

¶¶ 57-59 (describing actions that a petitioning party should take to

satisfy section 19-1-126(3)). If, after making the proper inquiries

and considering any information the Department discovers through

its due diligence, the court has reason to know that the child is an

Indian child, it must direct the Department to send notices to

applicable tribes and treat the child as an Indian child unless and

20
until the court determines on the record that the child does not

meet the definition of an Indian child. See § 19-1-126(1)(b), (2).

V. Disposition

¶ 47 The adjudication is affirmed, the disposition is reversed, and

the case is remanded for further ICWA determinations.

JUDGE FREYRE and JUDGE SULLIVAN concur.

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