No Automatic Revival of Jury Demand After Vacatur in Dependency and Neglect Cases: Re‑Demand and Timeliness Required under § 19-3-202(2) and C.R.J.P. 4.3(a)

No Automatic Revival of Jury Demand After Vacatur in Dependency and Neglect Cases: Re‑Demand and Timeliness Required under § 19-3-202(2) and C.R.J.P. 4.3(a)

Case: The People of the State of Colorado v. In the Interest of Minor Children: Kay.W., Kai.W., E.W., D.W., and S.W.; and the Children v. K.L.W.

Court: Colorado Supreme Court (en banc)

Citation: 570 P.3d 1059, 2025 CO 48 (June 30, 2025)

Author: Justice Samour

Introduction

This Colorado Supreme Court decision resolves a recurring and practical question in dependency and neglect (D&N) proceedings: What happens to a parent’s statutory right to a jury at the adjudicatory stage when a court vacates a prior default adjudication and sets a new trial? Specifically, if a parent once demanded a jury but then waived that right by failing to appear for the scheduled jury trial, does vacating the default adjudication automatically revive the original jury demand?

In 2021, K.L.W. (“Father”) demanded a six-person jury for the adjudicatory phase (§ 19-3-202(2)), then failed to appear for the jury trial date—an absence that, under Colorado law, constituted waiver. The juvenile court erred by entering a default adjudication. In 2023, upon Father’s C.R.C.P. 60(b) motion, the juvenile court (correctly) vacated the default and set a new adjudicatory bench trial, finding Father’s earlier nonappearance had waived his jury right. Father did not re-demand a jury in the 20 days before the new trial and acknowledged in a filing that an “adjudicatory court trial” (bench) was set. On the morning of trial, he offered only a “for the record” objection to the court’s finding of waiver. After the court adjudicated the children dependent or neglected as to Father in a bench trial, the court of appeals reversed, holding that Father’s 2021 waiver did not extend to the 2023 trial. The Supreme Court granted review.

The Supreme Court reverses the division and reinstates the adjudication, articulating a clear operational rule for Colorado D&N practice: Vacating a default adjudication does not automatically revive a previously waived jury demand. A parent must re-demand a jury pursuant to § 19-3-202(2) and C.R.J.P. 4.3(a), and any such demand must be timely. A day‑of‑trial “for the record” objection neither constitutes a proper jury demand nor satisfies timeliness where granting it would delay the proceeding, undermine orderly administration, and harm the children’s best interests.

Summary of the Opinion

  • Dependency and neglect proceedings are civil; there is no constitutional jury right, but the General Assembly provides a statutory jury right at adjudication (§ 19-3-202(2)).
  • C.R.J.P. 4.3(a) requires a respondent to demand a jury; otherwise the right is deemed waived. C.R.C.P. 39(a) further supplies waiver rules applicable in juvenile matters (e.g., nonappearance at trial waives jury).
  • The juvenile court erred in 2021 by entering a default adjudication when Father failed to appear—but correctly vacated that default in 2023 under C.R.C.P. 60(b).
  • Even assuming (without deciding) that Father’s 2021 waiver did not bind the 2023 proceedings, Father still loses because he never re-demanded a jury as required by § 19-3-202(2) and C.R.J.P. 4.3(a).
  • Father’s “for the record” objection on the morning of trial was not a jury demand; even if construed as one, it was untimely, as granting it would have delayed an expedited permanency planning case and prejudiced the best interests of the children, the orderly administration of justice, and the witnesses.
  • The adjudicatory bench trial was therefore proper, and the division erred in granting Father the functional “mulligan.” The case is remanded for the court of appeals to consider Father’s remaining issues.

Detailed Analysis

1) Procedural and Factual Background

  • 2021: The Department filed a D&N petition alleging risks tied to Father’s unknown whereabouts, mental health, and substance use. Father denied the allegations and demanded a six‑person jury (§ 19-3-202(2)). He failed to appear on the jury trial date. The court found waiver by nonappearance and erroneously entered a default adjudication.
  • 2023: During a termination hearing, Father moved under C.R.C.P. 60(b) to vacate the 2021 default adjudication. The juvenile court (before a different judicial officer) granted the motion, correctly recognizing defaults are unauthorized at adjudication in D&N (People in Interest of K.J.B., 2014 COA 168). The court set a bench adjudicatory trial 20 days later, expressly noting Father had waived a jury by failing to appear in 2021. Father filed pretrial materials acknowledging the matter was set for an “adjudicatory court trial,” but did not re-demand a jury. Only on the morning of trial did he object “for the record” to “the court’s finding and waiver of jury trial.”
  • Trial court: Conducted the bench adjudication and adjudicated the children dependent or neglected as to Father.
  • Court of Appeals: Reversed, concluding the 2021 waiver could not extend to the 2023 proceeding because vacatur put Father “in the same legal position” as pre‑2021, and he appeared in 2023, so his jury right could not be deemed waived under C.R.C.P. 39(a).
  • Supreme Court: Reversed the division; even assuming 2021 waiver did not bind 2023, Father never re‑demanded a jury and any day‑of‑trial effort was untimely.

2) Precedents and Authorities Cited and Their Influence

  • People in Interest of K.J.B., 2014 COA 168, 342 P.3d 597: Establishes that the Children’s Code does not authorize default adjudications at the adjudicatory stage. This drove the juvenile court’s 2023 vacatur of the 2021 default.
  • Kaitz v. District Court, 650 P.2d 553 (Colo. 1982): No constitutional right to jury in Colorado civil actions. The D&N jury right is purely statutory. This frames the analysis as statutory-and-rule driven.
  • People v. D.A.K., 198 Colo. 11, 596 P.2d 747 (1979); People v. Johnson, 2017 COA 11; People in Interest of Z.P., 167 P.3d 211 (Colo. App. 2007); C.R.J.P. 1: Confirm that D&N is civil in nature and that juvenile proceedings follow the Children’s Code and Rules of Juvenile Procedure, with Civil Rules filling gaps.
  • Section 19‑3‑202(2): Provides the statutory right to a six-person jury at the adjudicatory hearing and contemplates that a respondent “may demand” such a trial.
  • C.R.J.P. 4.3(a): Requires a party to demand a jury (typically when denying the petition’s allegations), otherwise the right is deemed waived. The Supreme Court clarifies that where a prior demand has been waived, there must be a new, active demand for any subsequent proceeding.
  • C.R.C.P. 39(a): Informs waiver of jury trials, including by nonappearance; the Court embraces its applicability in juvenile proceedings to the extent juvenile rules/Children’s Code are silent.
  • C.R.C.P. 60(b): Authorizes relief from a judgment (here, the vacatur of the default adjudication); however, vacatur does not resurrect a previously waived jury demand.
  • Comparative/jurisdictional authorities on jury waiver and subsequent trials:
    • State courts: Wilson v. Horsley (Wash. 1999); Tesky v. Tesky (Wis. 1983); People v. Hamm (Mich. App. 1980); Nedrow v. Michigan‑Wisconsin Pipeline (Iowa 1955); Seymour v. Swart (Okla. 1985). These generally hold a prior waiver does not necessarily bind a subsequent trial. But they also presuppose the need to assert the right anew.
    • Federal courts: Burnham (7th Cir. 1898); Lutz (3d Cir. 1970); Groth (6th Cir. 1982); Zemunski (8th Cir. 1993); Mortensen (9th Cir. 1988). Taken together, they support two propositions: (a) a first‑trial waiver often does not automatically govern a later trial; and (b) any withdrawal of waiver or new assertion must be timely and not disrupt proceedings.
    • Talbert v. State (Tex. App. 2017): Emphasizes that last‑minute withdrawals/demands are disfavored if they disrupt the court’s business, inconvenience witnesses, or prejudice the State—concerns mirrored here with the best interests of children and the expedited permanency framework.

3) The Court’s Legal Reasoning

  • Statutory and rule framework governs. Because D&N proceedings are civil and the jury right is statutory, the analysis turns on § 19‑3‑202(2), C.R.J.P. 4.3(a), and, where juvenile law is silent, C.R.C.P. 39(a). All parties agreed—and the Court reaffirmed—that failing to appear for a jury trial waives the statutory jury right.
  • Judicial restraint on the “permanent waiver” question. The Court expressly declined to decide whether a nonappearance waiver at the first adjudication is forever binding in the same case. It assumed, arguendo, that the waiver did not bind the 2023 proceeding—and still held Father loses for lack of a new, timely demand.
  • No automatic revival of an old demand. Vacating the default adjudication returned the case to its pre‑default posture, but crucially, there was “no active demand for a jury trial” remaining because Father’s 2021 nonappearance had already waived it. At that juncture, Father was “free to make a new jury‑trial demand,” but it was his burden to do so under § 19‑3‑202(2) and C.R.J.P. 4.3(a).
  • “For the record” is not a demand; in any event, it was untimely. The morning‑of‑trial objection did not constitute a formal jury demand. Even if generously construed as one, it was untimely given the 20‑day window during which Father took no action and even filed a witness list acknowledging a court trial. Granting a last‑minute demand would have:
    • Delayed a time-sensitive adjudication in an expedited permanency planning case (four of five children were under six at filing), contrary to the children’s best interests (§ 19-1-102(1.6) and (1)(c); § 19‑1‑123(1)(a));
    • Disrupted orderly court administration; and
    • Inconvenienced witnesses who had appeared for a bench trial.
    Those factors track Mortensen, Zemunski, and Talbert on timeliness and prejudice.
  • Why the court of appeals misstepped. The division treated vacatur as resetting the case such that Father’s mere appearance in 2023 restored his jury right (because under C.R.C.P. 39(a) a party waives by failing to appear “at trial”). The Supreme Court responded that this flips the burden: vacatur did not resurrect a waived demand. The parent must re‑demand; appearance alone does not preserve a right that is no longer “active.”
  • Reading C.R.J.P. 4.3(a) harmoniously with § 19‑3‑202(2). Although Rule 4.3(a) states the demand is made “at the time the allegations of a petition are denied,” the Court declined to read this as eliminating the need for a renewed demand where a prior demand has been waived. In short: once waived, a new demand is required for a later proceeding.

4) Impact and Practical Implications

Key operational rule: After a default adjudication is vacated in a D&N case, any previously waived jury demand does not automatically revive. The respondent must file a new, timely jury demand to obtain a jury at the subsequent adjudicatory trial.

  • For parents and defense counsel:
    • Immediately re‑demand a jury in writing upon vacatur of a default adjudication—or better yet, include a renewed demand in the C.R.C.P. 60(b) motion itself. The Supreme Court did not require inclusion in the 60(b) motion, but flagged it as “ideal.”
    • Do not rely on a past demand that has been waived by nonappearance. There is no automatic revival.
    • Make any renewed demand early enough to avoid delaying the proceedings; supply a proposed schedule and an explanation showing the demand will not disrupt court administration or inconvenience witnesses.
  • For the Department and GAL:
    • When a prior jury demand was waived, insist that any later request be made timely and with sensitivity to expedited permanency timelines and the children’s best interests.
    • Object to day‑of‑trial demands or ambiguous “for the record” objections as insufficient and untimely.
  • For juvenile courts:
    • Vacatur of a default adjudication returns the case to the pre‑default posture, but absent a new, timely demand, the court may proceed to a bench adjudication.
    • Timeliness is context‑specific; consider whether granting a late demand would unduly delay adjudication, interfere with court administration, inconvenience witnesses, or run counter to the children’s best interests.
  • Broader jurisprudential impact: The Court cements that civil rules on jury waiver (C.R.C.P. 39(a)) inform juvenile practice when the juvenile framework is silent, and it clarifies that C.R.J.P. 4.3(a) does not eliminate the need to reassert the jury right after a prior waiver. It also foregrounds the best‑interests imperative and expedited permanency in the timeliness analysis.

Complex Concepts Simplified

  • Dependency and Neglect (D&N) adjudication: The stage at which the court determines whether the child is dependent or neglected as to a parent. In Colorado, respondents have a statutory right—not a constitutional one—to a six‑person jury at this stage (§ 19‑3‑202(2)).
  • Statutory vs. constitutional jury right: In civil D&N cases there is no state constitutional jury right; any jury entitlement arises only from statute and juvenile rules, which can be conditioned (e.g., on making a timely demand).
  • Waiver by nonappearance: Under C.R.C.P. 39(a), if a party who demanded a jury fails to appear at trial, that failure operates as waiver of the jury right. The judge may then try the case to the court unless a new, timely demand is made for any subsequent proceeding.
  • Vacatur under C.R.C.P. 60(b): A court can relieve a party from a judgment (here, a default adjudication) for certain reasons. Vacating a default returns the case to its pre‑default posture but does not revive a previously waived jury demand.
  • Timeliness: There is no rigid deadline in the rules for re‑demanding a jury after vacatur; timeliness is assessed practically: Would granting the request unduly delay proceedings or disrupt the court, inconvenience witnesses, or prejudice the children’s best interests? Day‑of‑trial demands are typically untimely.
  • Expedited permanency planning and best interests: Colorado law prioritizes swift, stable placements for young children (§ 19‑1‑102(1.6); § 19‑1‑123(1)(a)). Courts weigh this heavily when assessing whether a late procedural request should be granted.

Unresolved Issues Flagged by the Court

  • Scope of waiver across proceedings: The Court did not decide whether a waiver by nonappearance at an initial adjudicatory trial is “forever binding” in the same case; it assumed arguendo that it was not, and still found against Father.
  • Applicability of C.R.C.P. 38: The Court noted, but did not resolve, whether C.R.C.P. 38’s jury demand procedures apply in D&N cases.

Practical Takeaways

  • After vacatur of a default adjudication, a party must file a new, express, and timely jury demand to obtain a jury at the subsequent adjudicatory hearing.
  • Ambiguous statements like “for the record, I object” are not jury demands. File a written motion/demand and seek prompt hearing/scheduling.
  • Day‑of‑trial demands are usually too late—especially in expedited permanency cases—and may be denied based on delay, court administration, witness inconvenience, and best‑interests considerations.
  • Plan ahead: If filing a C.R.C.P. 60(b) motion to vacate a default adjudication, include or contemporaneously file a renewed jury demand.

Conclusion

The Colorado Supreme Court’s decision establishes a clear and practice‑oriented rule for D&N adjudications: Vacating a default adjudication does not give a parent a “mulligan” on a previously waived jury demand. The right to a jury at adjudication is statutory and must be actively, timely asserted. A prior demand that has been waived by nonappearance is not automatically revived; a renewed demand is required and must be made early enough to avoid disrupting the proceeding, with the children’s best interests and expedited permanency timelines at the forefront. This holding harmonizes the Children’s Code, juvenile rules, and civil rules on jury waiver, and it provides concrete guidance to litigants and courts while preserving prompt, child‑focused adjudications.

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