In this case, the mother appealed the judgment adjudicating her children dependent and neglected after a bench trial. At mother’s request, the court had scheduled a two-day jury trial in the case. On the first day of the trial, mother’s attorney and GAL appeared but mother did not. When mother was still not present 15 minutes after the time the trial was to start, the court dismissed the jury and converted the jury trial to a bench trial. After dismissing the jurors, the court heard from mother’s counsel who objected to converting the jury trial to a bench trial and informed the court that mother was somewhere in the building and that she had been delayed to a problem with her ride. Thirty-minutes after the trial was to start, mother arrived.
On appeal, mother argued that her late arrival did not constitute a waiver of her right to a jury trial. Given the circumstances of this case, a division of the Court of Appeals agreed that mother’s failure to appear for the trial on time was not an express or implied waiver of her statutory right to a jury trial. The division noted that it was not holding that a parent can never waive their right to a jury trial by being late, but instead, was holding that, before a court determines whether a waiver has occurred, it should inquire about the parent’s whereabouts and the circumstances involved in the absence. Since mother’s counsel and GAL were on time and ready to proceed in this case, the division found that the trial court should have inquired about mother’s whereabouts and, if satisfied that she would appear promptly or had a good reason for her tardiness, it should have given her additional time to arrive before releasing the jury. Because a parent’s statutory right to a jury trial is a substantial right under C.R.C.P. 61, the division held that the trial court’s ruling could not be viewed as harmless. As such, the division reversed the judgment and remanded the case to the trial court for a new adjudicatory trial by jury.
