The right to a jury trial is an important one. Many believe that juries are better situated to make factual determinations than judges are, because juries deliberate as a group and draw on multiple people’s perspectives—perspectives that may be informed by financial or other hardships that most judges lack. While it is possible to waive the right to a jury trial, waiver has serious consequences—especially in legal proceedings that could result in the termination of parental rights—and should not be found unless a person voluntarily, knowingly, and intelligently waives the right.
In this case, the Colorado Court of Appeals held that a mother in a dependency and neglect proceeding waived her right to a jury trial by failing to appear at the trial—even though her lawyer was present. Two months before the trial, the mother had requested accommodations under the Americans with Disabilities Act (ADA) in the form of transportation to court proceedings, citing several mental health conditions. The morning of the trial, the Department of Human Services (DHS) provided a rideshare for the mother, but she did not get in it. When the mother did not show up at trial, her lawyer informed the court that he had spoken with her the night before, and she was planning to attend the trial. After a recess, her lawyer informed the court that he had missed a call from the mother, and she had left a message saying she was trying to get in touch with him. The lawyer said she “sounded different” and might be “either very tired or sick” but he “truly [did not] know what it [was].” The mother’s guardian ad litem listened to the message, which made her “concerned about mother’s well-being.” Neither the lawyer nor the court were able to reach the mother after that. The court ultimately converted the jury trial to a trial to the court.
We believe the Court of Appeals erred in holding that the mother waived her right to a jury trial by failing to appear in court when her lawyer was present. Our amicus brief—filed with the Office of Respondent Parents’ Counsel, Colorado Cross-Disability Coalition, and Disability Law Colorado—explains that, while the right to a jury trial in Colorado is statutory, the procedures used to secure that right must meet constitutional requirements. In other words, the right to a jury trial must be implemented consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Our brief provides context about the ways in which poverty can interfere with a person’s ability to show up to court in person, and argues that the appearance of counsel is sufficient to preserve the right to a jury trial in dependency cases. Our brief also explains that dependency proceedings disproportionately affect parents with disabilities, and that courts must consider the requirements of the ADA and the availability of reasonable accommodations when respondent parents’ disabilities interfere with appearing in person in court. We hope the Colorado Supreme Court will agree and uphold the rights of parents at risk of losing their parental rights.