Colorado Supreme Court: No Automatic Revival of a Waived Adjudicatory Jury Demand After Vacatur; New, Timely Demand Required in Dependency and Neglect Cases

Introduction

In People ex rel. Kay. W. v. K.L.W., 2025 CO 48 (Colo. June 30, 2025), the Colorado Supreme Court addressed whether a parent in a dependency and neglect proceeding who waived a statutory right to a jury trial by failing to appear at an adjudicatory hearing could rely on that earlier, now-vacated posture to demand a jury at a later adjudicatory trial without expressly and timely reasserting the demand. The case arose from a sequence of events in which the juvenile court correctly found waiver when the father failed to appear for a scheduled jury trial in 2021, then incorrectly entered a default adjudication. In 2023, the court vacated the default under C.R.C.P. 60(b) and set a new adjudicatory hearing as a bench trial; the father did not demand a jury anew during the subsequent 20 days, but noted a “for the record” objection on the morning of trial.

The Court of Appeals reversed, reasoning that the prior waiver could not extend to the new adjudicatory proceeding. The Supreme Court granted certiorari and reversed the Court of Appeals, holding that regardless of whether the 2021 waiver was permanently binding, the father could not prevail because he never made a new, timely demand for a jury as required by section 19-3-202(2), C.R.S., and C.R.J.P. 4.3(a). The Court further explained that a perfunctory “for the record” objection on the morning of trial is not a jury demand and, even if construed as such, would be untimely—particularly in an expedited permanency planning case where delay would undermine the children’s best interests and the orderly administration of justice.

Parties and posture:

Petitioner: The People of the State of Colorado (joined by the children’s guardian ad litem).
Respondent: K.L.W. (“Father”).
Children: Kay. W., Kai. W., E.W., D.W., and S.W.
Court: Colorado Supreme Court, en banc; Justice Samour authored the unanimous opinion.

Summary of the Opinion

The Supreme Court reversed the Court of Appeals and reinstated the juvenile court’s adjudicatory judgment after a bench trial. The Court held:

Even assuming that a failure-to-appear waiver of the statutory jury right in 2021 did not bind the remainder of the case, the father still could not prevail because he did not make a new demand for a jury trial in 2023 as required by section 19-3-202(2) and C.R.J.P. 4.3(a).
A minimal, “for the record” objection on the morning of trial is not a demand. And even if it were construed as a demand, it was untimely given the twenty-day interval between the order setting a bench trial and the trial date, the father’s own pretrial filing acknowledging a “court trial,” and the expedited permanency planning context.
The Court expressly declined to decide the broader question of whether a failure-to-appear waiver permanently bars any later jury demand in the same dependency and neglect case. Exercising judicial restraint, it resolved the case on the narrower ground that there was no fresh, timely demand.

Result: The juvenile court properly conducted a bench trial in 2023, and the division’s contrary ruling was error. The case was remanded to the Court of Appeals to address the father’s remaining, previously unaddressed appellate issues.

Analysis

1) Precedents and Authorities Cited and Their Role in the Decision

The Court grounded its analysis in the statutory and rule framework governing dependency and neglect proceedings, supplemented by civil procedure rules and persuasive authorities from other jurisdictions.

Civil nature of dependency and neglect proceedings:
- People v. D.A.K., 596 P.2d 747 (Colo. 1979); People v. Johnson, 2017 COA 11, 446 P.3d 826; People in Interest of Z.P., 167 P.3d 211 (Colo. App. 2007); C.R.J.P. 1. These authorities confirm that dependency and neglect (D&N) cases are civil in nature.
- Kaitz v. District Court, 650 P.2d 553 (Colo. 1982); People in Interest of C.C., 2022 COA 81, 519 P.3d 762. These cases confirm there is no constitutional right to a jury in civil cases; the jury right in D&N adjudications is purely statutory.
Statutory right and juvenile rule on jury demands:
- Section 19-3-202(2), C.R.S.: “Any respondent … may demand a trial by jury of six persons at the adjudicatory hearing.”
- C.R.J.P. 4.3(a): The demand must be made “[a]t the time the allegations of a petition are denied,” and otherwise “it shall be deemed waived.” No further juvenile rule specifies how a previously invoked jury right may later be lost or revived.
Civil rules supplying waiver mechanics:
- C.R.C.P. 39(a): Sets out comprehensive jury-waiver circumstances in civil cases, including when “all parties demanding trial by jury fail to appear at trial.” Because the Children’s Code and Juvenile Rules are silent on many details, the Court looked to civil rules. The Court did not need to decide whether C.R.C.P. 38 applies; it relied on C.R.C.P. 39(a) and the statutory/judicial-rule demand requirements.
No default adjudication for failure to appear:
- People in Interest of K.J.B., 2014 COA 168, 342 P.3d 597, confirmed that a juvenile court may not adjudicate by default based on a parent’s nonappearance at the adjudicatory hearing. The juvenile court in this case later relied on K.J.B. to vacate its earlier default adjudication via C.R.C.P. 60(b).
Persuasive authorities on the longevity and withdrawal of jury waivers and timeliness of renewed assertions:
- State high court and appellate cases reflecting a majority rule that a waiver of jury for one trial does not automatically control a later trial (unless expressly so stated): Wilson v. Horsley, 974 P.2d 316 (Wash. 1999); Tesky v. Tesky, 327 N.W.2d 706 (Wis. 1983); People v. Hamm, 298 N.W.2d 896 (Mich. Ct. App. 1980); Nedrow v. Michigan-Wisconsin Pipeline Co., 70 N.W.2d 843 (Iowa 1955); Seymour v. Swart, 695 P.2d 509 (Okla. 1985).
- Federal cases in a similar vein: Burnham v. North Chicago St. Ry., 88 F. 627 (7th Cir. 1898); United States v. Lutz, 420 F.2d 414 (3d Cir. 1970); United States v. Groth, 682 F.2d 578 (6th Cir. 1982); Zemunski v. Kenney, 984 F.2d 953 (8th Cir. 1993); United States v. Mortensen, 860 F.2d 948 (9th Cir. 1988).
- Timeliness focus and prejudice/administration-of-justice considerations: Mortensen (request must not unduly interfere or delay proceedings; morning-of-trial request too late); Zemunski (first-day-of-retrial request to withdraw waiver was dilatory); Talbert v. State, 529 S.W.3d 212 (Tex. App. 2017) (withdrawal should not interfere with the court’s business, inconvenience witnesses, or prejudice the State).

The Court used these authorities to articulate two key points: first, that a previously waived jury right is not automatically revived in a subsequent proceeding; and second, that any renewed assertion must be made clearly and in a timely manner so as not to disrupt proceedings—especially those governed by expedited permanency planning.

2) The Court’s Legal Reasoning

No constitutional jury right in D&N; statutory demand-and-waiver framework controls.
Because dependency and neglect matters are civil, there is no constitutional jury right; the only source is section 19-3-202(2). C.R.J.P. 4.3(a) ties the demand to the time of denial of the petition and deems it waived if not demanded. Civil Rule 39(a) supplements by specifying when an existing jury demand can be deemed waived, including nonappearance at trial.
2021: Father demanded a jury, then waived by nonappearance; default adjudication was error.
The parties and Court agree the father’s failure to appear for the 2021 adjudicatory jury trial waived his statutory jury right under the civil rule. But the juvenile court’s contemporaneous entry of a “default” adjudication was improper under the Children’s Code and K.J.B. That erroneous default later was correctly vacated under C.R.C.P. 60(b).
2023: Vacatur returned the case to pre-default posture—but did not revive an extinguished demand.
Vacating the default restored the case to the status quo ante the default, not to a status where a jury demand remained active. In that pre-default posture, the father had already waived the previously demanded jury by nonappearance. Therefore, there was no live jury demand on the books. If the father wanted a jury at the new adjudicatory proceeding, he had to demand one again, per section 19-3-202(2) and C.R.J.P. 4.3(a).
No automatic “revival” of prior demands; the burden remains on the party to request a jury.
The Court rejected the Court of Appeals’ view that merely appearing for the 2023 adjudication meant the father “didn’t waive” a jury right under C.R.C.P. 39(a). That reading presupposed the existence of a current demand; without a live demand, Rule 39(a) does not create a jury right. The majority rule in other jurisdictions underscores the same point: even where prior waivers do not bind a subsequent trial, the party must assert the jury right anew; it does not automatically spring back to life.
“For the record” objection was not a demand; if construed as one, it was untimely.
The father did not file a renewed jury demand during the twenty days between the court’s 60(b) order (which set a bench trial and expressly found a prior waiver) and the rescheduled adjudication. He even filed a witness list acknowledging an “adjudicatory court trial.” His morning-of-trial “for the record” objection to the court’s finding of waiver was not an explicit jury demand. And even if it were, it came too late. Drawing on persuasive authority, the Court explained that motions or demands made at the eleventh hour—especially in time-sensitive D&N matters—unduly interfere with proceedings, inconvenience witnesses, and disserve the children’s best interests.
Best interests and expedited permanency planning weigh heavily against last-minute disruptions.
The Children’s Code prioritizes the best interests of the child and expedited permanency planning for children under six. Four of the five children here were under six when the case began. A same-day transformation to a jury trial would have caused avoidable delay and disruption, contrary to statutory policy and the court’s obligation to “proceed with all possible speed” toward a determination serving the children’s best interests. The Court specifically invoked those interests, the heavy juvenile dockets, and the orderly administration of justice to highlight why a same-day reversal would have been improper.
Judicial restraint: permanent-binding effect of a failure-to-appear waiver remains unresolved.
The Court expressly declined to decide the broader question whether a failure-to-appear waiver permanently bars later jury demands in the same D&N case. It resolved this case on narrower, sufficient grounds: the absence of a new, timely demand.

3) Impact and Practical Implications

This decision clarifies Colorado practice in an important, recurring scenario in dependency and neglect matters: when adjudication is reset after a C.R.C.P. 60(b) vacatur (for example, vacating an improper default), the parent does not automatically regain a previously demanded jury. Concrete implications include:

Express re-demand required: After any vacatur or reset that follows a prior waiver of the adjudicatory jury right, a parent must expressly demand a jury again. Counsel should not assume earlier demands remain operative.
Timeliness is essential: A demand must be made sufficiently in advance of trial to avoid delay, inconvenience to witnesses, and disruption of the court’s docket—especially in expedited permanency planning cases. Morning-of-trial demands will almost always be too late absent extraordinary justification.
Silence can be fatal to the jury right: Pretrial filings acknowledging a “court trial,” or lack of any jury-demand motion after the court has set a bench trial, will weigh heavily against later assertions.
Burden on the party, not the court: Trial courts have no obligation to sua sponte inquire whether a previously waiving parent now wishes to reinstate the jury right. The duty to demand rests with the party.
Children’s best interests constrain strategic behavior: Courts will not countenance last-minute shifts that delay resolution in D&N cases. The statutory policy of prompt permanency will often tip the scales against untimely demands.
Unresolved but flagged: The Supreme Court left open whether a failure-to-appear waiver is permanently binding for the rest of the case. Litigants should proceed on the assumption that, at minimum, they must file a fresh, timely demand post-vacatur; whether they are categorically barred from doing so remains undecided.

Practice pointers for counsel:

When moving under C.R.C.P. 60(b) to vacate an adjudication, consider contemporaneously filing a renewed jury demand or, at minimum, promptly re-demanding once the court resets adjudication.
Do not rely on C.R.C.P. 39(a) to “restore” a jury right absent a live demand. Rule 39(a) addresses the effect of nonappearance when a demand exists; it does not create or revive demands.
Avoid pretrial filings that treat the proceeding as a bench trial if you intend to seek a jury; such filings undercut any later demand and may be used to show acquiescence.
If circumstances require a late demand, be prepared with a strong, record-based showing that granting it would not unduly delay proceedings, inconvenience witnesses, or undermine the children’s best interests.
Calendar and confirm deadlines. Although the Court did not decide whether C.R.C.P. 38 applies in D&N cases, its specific timing provisions might be persuasive; err on the side of early assertion.

Complex Concepts Simplified

Dependency and Neglect (D&N) proceeding: A civil case in juvenile court to determine whether a child is “dependent or neglected,” often triggering court oversight, services, placement decisions, and potentially termination of parental rights.
Adjudicatory hearing: The stage at which the court (or a jury, if demanded) determines whether the child is dependent or neglected as alleged in the petition. A jury right exists here by statute, not constitution.
Statutory jury right and demand: Section 19-3-202(2) allows a parent to demand a six-person jury at adjudication. Under C.R.J.P. 4.3(a), the demand should be made when the parent denies the petition; failure to demand at that time is deemed a waiver. Once demanded, C.R.C.P. 39(a) governs how the right can be waived (including nonappearance).
Waiver by nonappearance: If a party who demanded a jury fails to appear at trial, the civil rules treat that as a waiver of the jury right. Importantly, the Children’s Code does not allow adjudication by default as a sanction for nonappearance; the state must prove the case.
C.R.C.P. 60(b) vacatur: A mechanism to set aside a judgment (e.g., an improper default adjudication) for specified reasons. Vacating returns the case to its prior procedural posture but does not revive rights that were previously extinguished unless the court or law says so.
Expedited permanency planning: Statutory policy requiring faster timelines for cases involving children under six, to promote stability and avoid prolonged uncertainty. Courts must take steps to avoid unnecessary delay.
Guardian ad litem (GAL): A court-appointed lawyer or advocate representing the best interests of the child, which may differ from the child’s expressed wishes.
“For the record” objection: A brief note of disagreement preserved in the transcript. It is not the same as a formal motion or demand, and it may be inadequate to trigger substantive rights—especially if raised at the last minute.

Discussion of the Court of Appeals’ Approach and the Supreme Court’s Rejection

The Court of Appeals reasoned that vacating the 2021 default rendered the 2023 adjudication a “completely new trial,” and because the father appeared in 2023, he could not have waived his jury right under C.R.C.P. 39(a), which refers to failure to appear “at trial.” The Supreme Court’s principal rejoinder was that Rule 39(a) presumes the existence of a live jury demand. Here, the demand had been waived in 2021 and was never reasserted. Therefore, Rule 39(a) did not entitle the father to a jury simply by his presence in court in 2023. Rather, the statutory and juvenile-rule framework required a fresh, timely demand—one the father never made.

The Supreme Court also observed that even accepting the premise that the 2023 adjudication was “separate and distinct,” that characterization strengthens the duty to make a new demand. C.R.J.P. 4.3(a) and section 19‑3‑202(2) do not dispense with the need to demand a jury simply because an initial denial occurred years earlier; when a trial will occur after a prior waiver, a new demand is required.

Unresolved Questions and Future Litigation

Is a failure-to-appear waiver of the adjudicatory jury right permanently binding for the remainder of a D&N case, even after a vacatur and reset? The Supreme Court expressly did not decide this question.
Does C.R.C.P. 38’s detailed jury-demand procedure apply in D&N proceedings? The Court again declined to decide, leaving room for future clarification.
What constitutes a “timely” renewed demand in D&N? The opinion embraces a pragmatic, case-specific approach focusing on avoiding undue delay, administrative disruption, and witness inconvenience, especially under expedited permanency planning. Courts will likely evaluate timeliness on a sliding scale sensitive to case posture and the children’s ages.
Could a late demand ever be granted? Possibly, if supported by compelling reasons and a record-based showing that granting the request would not prejudice the proceedings, impair the children’s best interests, or disrupt the court’s operations.

Key Takeaways

Vacating an improper default adjudication does not automatically reactivate a previously waived adjudicatory jury demand in a Colorado D&N case.
To obtain a jury at a subsequent adjudication, the parent must file a new, explicit demand under section 19‑3‑202(2) and C.R.J.P. 4.3(a).
A last-minute, “for the record” objection on the morning of trial is not a proper jury demand; even if treated as one, it is untimely in the absence of compelling justification.
Courts will protect the children’s best interests and the orderly administration of justice by disfavoring demands that cause avoidable delay—especially in expedited permanency planning cases.
The broader question whether a failure-to-appear waiver permanently bars later jury demands remains open in Colorado.

Conclusion

People ex rel. Kay. W. v. K.L.W. clarifies a critical procedural point in dependency and neglect litigation: when an adjudication is reset after vacatur, a previously waived jury right does not spring back into place. The onus is on the parent to make a fresh, timely demand. The Court’s reasoning is grounded in the statutory and juvenile-rule framework, informed by civil-procedure principles and the majority approach in other jurisdictions, and anchored in the Children’s Code’s paramount concern for the best interests of the child and timely permanency.

For practitioners, the opinion is both a caution and a roadmap: do not assume that a prior jury demand survives waiver or vacatur; reassert expressly and early. For trial courts, it endorses the management of dockets in D&N matters to avoid late-stage disruptions that impede swift resolution. And for the law more broadly, it delineates a narrow but impactful rule that promotes procedural clarity, curbs gamesmanship, and advances the overarching mission of the juvenile system—serving the welfare and stability of children.