Opposition Brief — McKeel v. Colorado

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| DEC 7 22003 |

NO. {OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JOLENE MCKEEL AND GERALD MCKEEL,

Petitioners,

VS.

THE STATE OF COLORADO,

Respondents.

On Petition for Writ of Certiorari to

The United States Court of Appeals for the Tenth Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

Ken Salazar

Attorney General

Alan J. Gilbert*

Solicitor General

Melody Mirbaba

Assistant Attorney General

1525 Sherman Street, 5'" Floor

Denver. Colorado 80203

Telephone: (303) 866-5228

*Counsel of Record

December 12, 2003

QUESTION PRESENTED

Whether the Rooker-Feldman doctrine bars federal

courts from hearing parties’ claims which seek to attack

collaterally a state court judgment terminating parental rights

by requesting what in substance would be an appellate

review of the state court judgment by asserting a federal

challenge to the state court judgment.

TABLE OF CONTENTS

PAGE

NL 5 I

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eR MMMMRET OOP THE CASE.......2..-0040.00-ce0cvveesovesccsesconsssson |

REASONS FOR DENYING THE WRIT......sscsssssssessssseseeeees 3

A. The Decision Below Is Correct And Does Not

Conflict With This Court’s Decisions Or Other

Circuit’s Decisions. The Decision Is

Consistent With This Court’s Rooker-Feldman

Doctrine And The Federal Comity Policy That

A Party May Not Collaterally Attack A State

Court Judgment By Raising A Federal

Constitutional Issue In Federal Court When

The Federal Challenge Is Inextricably

Intertwined With The State Court Judgment............... 3

FI cccscecsncsssovessrsnssscorscesonossessvesccessscssnscssesesssseoese 7

TABLE OF AUTHORITIES

PAGE

CASES

Alsager v. District Court of Polk Cty., lowa

(Juv. Div.), 518, F.2d 1160 (8th Cir.1975) ou... eee 4

Anderson v. Colorado, 793 F.2d 262 (10th Cir.1986)........... 6

Charchenko v. City of Stillwater, 47 F.3d 981

SF Fe Pivescucsisacicasonendans nada ainacindoasaninasabsskiuadeasoosits 4,6

District of Columbia Court of Appeals v. Feldman,

as ee RT sraenicvanimisepanintentecadadaisbesasinnalimmniiin biases 7

Johnson v. DeGrandy, 512 U.S. 997 (1994) oo eens 6

Johnson v. Rodrigues (Orozco), 226 F.3d 1103

Ce hive csnsiad eet evenlalicsadaneaesdiaeenintiaaeiaa sanascles 5, 6

Kenman Eng’g v. City of Union, 314 F.3d 468

Se es NE sesccesinstssnnnsedishntscasepsacdscsp naldabpuilnita ealedaeasakedainerebes 4

Rhoades v. Penfold 694 F.2d 1043 (Sth Cir. 1983) ......0000..... 4

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)... 5

STATUTES

COLO. REV. STAT. § 195-202 (QUIZ) ccnsncsccesssseiecscsccvsauxssensnes l

COLO. REV. STAT.§ 19-3-603(4) (2002) ...... ce eeceeecee coon eee 2

Pe ce 1 RIOD sietivniincaidtanauiaednieacieineiaadiee l

Pe IR siccencicitslacrnsnuicnibipadimakibeiannibenistibasiins (la - 10a)

Fee PND sstterinncciviontaniineastnneeaaie (1b - 3b)

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OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Tenth Circuit is not published, but is reported at 74 Fed.

Appx. 11(2003), and is found in the Appendix A. The Tenth

Circuit affirmed the judgment of the district court. The

district court’s opinion to dismiss the action is not published,

and is found in the Appendix B.

JURISDICTION

The United States Court of Appeals for the Tenth Circuit

entered its decision on August 25, 2003. Jurisdiction of this

court is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

On July 13, 1994, the Mesa County Department of

Social Services (“County Department”) removed Baby Girl

from the care of her biological mother, the Petitioner Jolene

McKeel (“Mother”). Shortly thereafter, the County

Department filed a Petition for Dependency and/or Neglect

action against Mother to declare Baby Girl dependent and/or

neglected. Petitioner Gerald McKeel, (hereinafter

Grandfather’), intervened in the Dependency and Neglect

action. The Dependency and Neglect Petition expressly

warned that termination of parental rights may follow if a

child is determined to be dependent or neglected. Section

19-3-202, C.R.S. (2002), provides the right to a jury trial for

the adjudication of the Petition in Dependency and Neglect.

Mother entered into a Stipulation for

Adjudication/Disposition, whereby she waived her right to a

jury trial and admitted to the Petition in Dependency and

Neglect. The County Department attempted a reunification

of Baby Girl to Petitioners, but Petitioners failed to follow

2

the treatment plan. After a trial to the court, the court

terminated Mother’s parental rights and denied Grandfather

permanent custody/guardianship of Baby Girl. Thereafter,

Baby Girl was deemed available for adoption and was

adopted by the family which has cared for her for

approximately eight years.

Petitioners appealed the state district court’s

termination judgment to the Colorado court of appeals.

Petitioners, however, did not raise any issue relating to a

right to a jury trial in this appeal. The Colorado court of

appeals affirmed the judgment of the trial court. The

Colorado Supreme Court denied certiorari on September 2,

1997. Once again, Petitioners did not raise any issue

regarding the right to a jury trial. Petitioners did not seek

certiorari to review the state court judgment to the United

States Supreme Court.

On January 17, 2002, approximately six years after

Baby Girl was adopted, Petitioners filed an action in the

United States District Court for the District of Colorado

requesting the Court to declare § 19-3-603(4), C.R.S. (2002),

unconstitutional, because the statute denies the right to a jury

for the trial to terminate parental rights, and asking for Baby

Girl to be immediately returned, or for a new trial wherein

they could obtain custody of Baby Girl.

The United States District Court dismissed

Petitioners’ claims, noting several bases for its decision. The

district court determined that it did not have jurisdiction to

restore Baby Girl to Petitioners, that the Colorado statute did

not violate the federal constitution and that Petitioners

waived their claim for a jury by entering into a stipulation at

the Dependency and Neglect phase of the proceeding.

Petitioners appealed to the United States Court of

Appeals for the Tenth Circuit. The Tenth Circuit affirmed

——

a . -, gpg RT

3

the district court’s decision to dismiss Petitioners’ claims,

due to lack of jurisdiction. The Tenth Circuit concluded the

Rooker-Feldman Doctrine bars Petitioners’ collateral attack

on the state court judgment. (App. 2a). The Tenth Circuit

denied Petitioners’ challenge to the Colorado statute denying

a right to a jury at the second phase of the Dependency and

Neglect proceeding because it was “inextricably intertwined”

with an attack on the state court judgment terminating

Mother’s parental rights.

REASONS FOR DENYING THE WRIT

A. The Decision Below Is Correct And Does

Not Conflict With This Court’s Decisions

Or Other Circuit’s Decisions. The

Decision Is Consistent With This Court’s

Rooker-Feldman Doctrine And The

Federal Comity Policy That A Party

May Not Collaterally Attack A State

Court Judgment By Raising A Federal

Constitutional Issue In Federal Court

When The Federal Challenge Is

Inextricably Intertwined With The State

Court Judgment.

l. The Tenth Circuit’s decision is correct and

does not conflict with this Court’s decisions. Furthermore,

the decision does not conflict with other Circuits’ decisions,

or Tenth Circuit’s decisions. Thus, review by this Court is

not warranted.

la. The Tenth Circuit properly applied this

Court’s Rooker-Feldman doctrine to hold that Petitioners’

federal claims are inextricably intertwined with the state

court judgment, thus barring the federal court from hearing

the action. The cases cited by Petitioners as conflicting

Circuit decisions are distinguishable, and do not directly

4

apply the “inextricable intertwined” test of the Rooker-

Feldman doctrine. For example, the Eighth Circuit’s

decision in Alsager v. District Court of Polk Ctv., lowa (Juv.

Div.), 518, F.2d 1160, 1165-66 (8" Cir.1975), does not

specifically address the “inextricably intertwined” test. On

the contrary, years after the A/sager decision, the Eighth

Circuit expressly applied the “inextricably intertwined” test

in the same manner as the Tenth Circuit did in this case.

Thus, there is not a conflict between the Tenth and Eighth

Circuits, and there is no conflict within the Eighth Circuit.

The Fifth Circuit’s Rhoades v. Penfold 694 F.2d 1043, 1047

(5"" Cir. 1983), also does not apply the “inextricably

intertwined” test, but instead creates a rule treating requests

to void a state judgment on federal constitution grounds as a

request for an injunction enjoining the enforcement of the

state judgment. Here, an injunction of the state court

termination order entered on December 6, 1995, is clearly

not sought by Petitioners. Instead, Petitioners seek the

reinstatement of parental rights by overturning the state court

judgment, the immediate return of Baby Girl, or a new trial.

Because there is not a distinct conflict between Circuits, the

petition should be denied.

lb. In addition, there is no conflict in the

application of the Rooker-Feldman doctrine within the Tenth

Circuit.” The Tenth Circuit has consistently held that when a

constitutional challenge to a state court judgment is made in

federal court, such a challenge must pass the confines of the

Rooker-Feldman doctrine for the federal court to hear the

' Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8"" Cir.

1995). See also App. 7a- 8a.

> The Tenth Circuit’s opinion in Kenman Eng’g v. City of

Union, 314 F.3d 468 (10" Cir. 2002) shows the Circuit’s

consistency in application of the Rooker-Feldman doctrine,

and was cited by the Tenth Circuit in the below opinion. (See

App. 5a- 8a).

nN

matter. The test is applied on a case by case basis, which

may result in different outcomes due to differing facts.

Contrary to Petitioners’ argument, various outcomes with

factually different cases do not mean the doctrine is applied

inconsistently. Petitioners cite Johnson v. Rodrigues

(Orozco), 226 F.3d 1103 (10" Cir. 2000) as a conflicting

decision within the Tenth Circuit. However, in Johnson, the

plaintiff challenging the state adoption laws and state court

judgment, was not a party to the prior state court adoption

proceedings. The plaintiff's challenge was permitted under

Rooker-Feldman because he did not have a prior opportunity

to challenge the state procedures, and his constitutional

challenge was actually a discrete challenge to the state

adoption procedures (namely lack of notice), and did not

dispute the actual merits of the particular state court ruling.”

The facts of Petitioners’ case do not mirror those of

Johnson, thus resulting in a different outcome. Therefore, the

Tenth Circuit’s decision does not conflict with its prior

decisions and the Petition should be denied.

rs Further, the Tenth Circuit correctly found that

this Court’s Rooker-Feldman’ decisions bar federal district

courts from hearing challenges to the validity of state court

decisions appealable from the state court system to the U.S.

Supreme Court.” This Court has clarified that Rooker-

Feldman bars “a party losing in state court . . . from seeking

what in substance would be appellate review of the state

judgment in a United States district court, based on the

losing party’s claim that the state judgment itself violates the

* Id. at 1108.

4 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and

District of Columbia Court of Appeals v. Feldman, 460 US.

462 (1983). |

> Rooker at 476.

6

loser’s federal rights.” Under the doctrine, a federal district

court cannot review matters actually decided by a state court,

or provide relief that is “inextricably intertwined” with the

state court decision.’ A claim is “inextricably intertwined” if

the federal claims succeed only to the extent that the state

court wrongly decided the issues before it.* In this case, the

Tenth Circuit’s opinion follows the Eighth Circuit’s

approach that “. . . Rooker-Feldman precludes a federal

action if the relief requested in the federal action would

effectively reverse the state court decision or void its

ruling.”

Petitioners specifically request the federal court to

declare the Colorado statute unconstitutional, thereby

rendering the state’s termination judgment overturned or

void. Petitioner’s relief therefore requires the federal courts

to upset a prior state court judgment applying Colorado’s

parental termination statute against them, and to render the

underlying Colorado state court judgment “null and void” as

a means for Petitioners to obtain the return Baby Girl or a

new trial. The relief sought by Petitioners would restore

parental rights to Baby Girl. The state court proceedings

denied this relief. Therefore, Petitioners’ claims in the

federal court are “inextricably intertwined” with the state

court judgment and are barred by the Rooker-Feldman

doctrine. Thus, the Tenth Circuit correctly ruled that the

federal court lacks jurisdiction in this case. For these

reasons, the Petition should be denied.

° Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994): see

Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir.1986).

” Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1108 cio"

Cir. 2000). .

* Charchenko v. Citv of Stillwater, 47 F.3d 981, 983 (8"" Cir.

1995).

” Charchenko at 983.

7

CONCLUSION

The Petition for Certiorari should be denied.

Ken Salazar

Attornev General

Alan J. Gilbert*

Solicitor General

Melody Mirbaba

Assistant Attorney General

1525 Sherman Street, 5'" Floor

Denver, Colorado 80203

Telephone: (303) 866-5228

* Counsel of Record

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APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOLENE MCKEEL and

GERALD MCKEEL :

Plaintiffs-Appellants, No. 02-1303

(D.C. No. 02-Z-

v. 104)

(D. Colo.)

THE STATE OF COLORADO,

Defendant-Appellee.

ORDER AND JUDGMENT*

(Filed Aug. 25, 2003)

Before EBEL, Circuit Judge, BRORBY, Senior Circuit

Judge, and MURPHY, Circuit Judge.

Plaintiffs-Appellants Jolene McKeel (Baby Girl’s

mother) and Gerald McKeel (Baby Girl’s grandfather)

* This Order and Judgment is not binding precedent,

except under the doctrines of law of the case, res

a judicata, and collateral estoppel. The court generally

: disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

aA eee Ce

(la)

(2a)

argue on appeal that it is unconstitutional for Colorado

to allow the final termination of parental rig:ius to be

decided by a judge instead of a jury. The plaintiffs-

appellants, however, come before us late in the

procedural history of their case. They failed to comply

with an “abuse and neglect” plan to change the way

they cared for their Baby Girl, and the Colorado

state courts affirmed the termination of their parental

rights.! We find that the exercise of federal jurisdiction

over this case is barred by application of the Rooker-

Feldman doctrine because plaintiffs-appellants seek, inter

alia, to challenge on appeal the final decision of the

Colorado state courts regarding custody of the Baby Girl.

BACKGROUND

Because we dismiss plaintiffs-appellants’ claim

for lack of jurisdiction, we describe the facts of their case

only briefly.

In the Colorado state system, first there must be a

determination whether a child is neglected or abused such

that the termination of parental rights would be

appropriate. Both parties agree there is a right to a jury at

this stage of the proceedings, and we accept that for

purposes of this appeal since it is not contested. After the

finding of facts to support the termination of parental

rights is made, the actual execution of the termination may

be suspended for some period of time to allow parents an

opportunity to comply with a treatment plan. If the parents

| Plaintiffs-Appellants have appealed unsuccessfully to the

Colorado Supreme Court, but it is not clear whether they

petitioned for a writ of certiorari from the U.S. Supreme

Court.

RON Sc oa Perv gous ge ee)

(3a)

do not follow the treatment plan, the suspended judgment

is then enforced by a court and official termination of

parental rights is entered. See, e.g., L.L. v. People, 10

P.3d 1271, 1275 (Colo. 2000) (en banc) (describing the

procedure under Colorado law). At this termination

proceeding, there is no right to a jury and the matter is

decided by the court. Colo. Rev. Stat. § 19-3-602(4).

On July 13, 1994, the State District Court for

Mesa County, Colorado issued an “emergency custody

and pick-up order” for the Baby Girl at issue in the

McKeels’ case. Plaintiffs-Appellants’ were scheduled

for an “abuse and neglect” proceeding under the

Colorado Children’s Code in Colorado state courts and

they were given notice that an unfavorable disposition

on the facts might result in the termination of parental

rights. See generally Colo. Rev. Stat. §§ 19-3-502, 19-

3503, 19-3-505, and 19-3-507. The McKeels stipulated

to their abuse and neglect of the Baby Girl, however, so

no trial occurred at this stage of the proceedings.

Plaintiffs-Appellants were permitted to maintain

revokable custody of the Baby Girl on the basis of a

“corrective treatment plan” entered into with the state,

but they ultimately failed to comply with its provisions.

On December 6, 1995, a Colorado state court

judge found plaintiffs-appellants in violation of the

treatment plan and entered the order terminating the

2 We use the term “plaintiffs-appellants” throughout this

opinion for both McKeel adults. Jolene McKeel was party

to all proceedings in state court and her father intervened

at the final disposition to present another option to the

court in awarding custody to him when it was clear his

daughter would lose her parental rights.

(4a)

McKeels’ parental rights.* Plaintiffs-Appellants appealed

through the Colorado state court system, but provide no

evidence they petitioned for a writ of certiorari from the

U.S. Supreme Court.

On January 17, 2002, nearly five years after

plaintiffs-appellants were denied relief by the Colorado

Supreme Court, they filed suit in federal district court to

attack Colorado’s statute denying them a jury trial on the

actual entry of the termination order. As of the time of the

federal district court proceedings, the Baby Girl was

almost eight years old and had been cared for by people

other than the plaintiffs for more than six years. In the

hearing before the federal district court, there was no

answer to the judge’s inquiry why the plaintiffs had waited

so long to file their case.

The federal district court ruled from the bench to

dismiss the suit. Throughout the hearing generally, the

district court was troubled by why this case was in federal

court and not in state court. The court, though, seemed to

suggest three possible bases for its decision. First, the

court said it did not have jurisdiction to restore the child to

the plaintiffs because that was a matter for the state courts.

Second, the court concluded that the Colorado statute

denying a jury trial at the termination proceeding did not

violate the federal constitution. Third, the court appeared

to conclude that the plaintiffs had waived their claim for

a jury determination when they knowingly entered into

a stipulation at the first stage that a finding of abuse and

3 Any rights Gerald McKeel had were terminated by

extension of the termination of his daughter’s rights to the

child. People ex rel. J.W.W., 936 P.2d 599, 601 (Colo. Ct.

App. 1997).

(Sa)

neglect could be entered against them without a trial.

On appeal, the McKeels petition to have

Colorado Revised Statute Section 19-3-602(4)*

declared both facially unconstitutional, and

unconstitutional as applied, rendering the state’s

previous termination proceedings “null and void.”

Plaintiffs-Appellants ask for Baby Girl to be restored

to” them, or, in the alternative, for a “jury trial [on]

the subject termination proceedings.”

We DISMISS the McKeels’ appeal for lack of

jurisdiction because application of the Rooker-

Feldman doctrine bars their claim.

DISCUSSION

We review all issues of jurisdiction and law de

novo. See, e.g., Elder v. Holloway, 510 U.S. 510, 516

(1994)> Dang v. UNUM Life Ins. Co. of Am.,_175

F.3d 1186, 1189 (10th Cir. 1999).

Pursuant to 28 U.S.C. § 1257, “federal review of

state court judgments can be obtained only in the United

States Supreme Court” and, of course, review is limited

to issues of federal law. Kenmen Eng’z v. City of Union,

314 F.3d 468, 473 (10th Cir. 2002) (quoting Kiowa

Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1169

(10th Cir. 1998)). ;

In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),

4 Colo. Rev. Stat. § 19-3-602(4) reads: “There shall be

no right to a jury trial at proceedings held to consider

the termination of a parent-child legal relationship.”

(6a)

the Supreme Court first held that the grant of statutory

jurisdiction to the Court to review state court

judgments could provide an independent basis for

prohibiting collateral attack on state court judgments

in the lower federal courts. The plaintiff in Rooker

sought to have the judgment of a circuit court in

Indiana, which had been affirmed by the Indiana

Supreme Court, declared null and void in the lower

federal courts as a violation of its federal

constitutional right to contract. /d. 414.

But the U.S. Supreme Court wrote:

It affirmatively appears from the bill that

the judgment was rendered in a cause

wherein the [state] circuit court had

jurisdiction of both the subject matter and

the parties, that a full hearing was had

therein, that the judgment was responsive

to the issues, and that it was affirmed by

the Supreme Court of the state on an appeal

by the plaintiffs. /f the constitutional

questions stated in the bill actually arose in

the cause, it was the province and duty of

the state courts to decide them, and their

decision, whether right or wrong, was an

exercise of jurisdiction. lf the decision was

wrong, that did not make the judgment

void, but merely left it open to reversal or

modification in an appropriate and timely

appellate proceeding [only to the U.S.

Supreme Court].

Id. at 415 (citation omitted and emphasis added).

Years later, the Supreme Court reaffirmed

(7a)

Rooker’s central holding that federal district courts do

not have jurisdiction to hear challenges to the validity of

state court decisions appealable from the state system to

the U.S. Supreme Court. Dist. of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 476 (1983). As the

Supreme Court has articulated since, the effect of

Rooker-Feldman is to preclude “a party losing in state

court... from seeking what in substance would be

appellate review of [a] state judgment in a United States

district court, based on the losing party’s claim that the

state judgment itself violates the loser’s federal rights.”

Johnson v. De Grande, 512 U.S. 997, 1005-06 (1994):

Kenmen, 314 F.3d at 473.

Plaintiff-Appellants essentially admit in their

supplementary briefing that Rooker-Feldman may bar

their challenge to the Colorado statute as applied. They

argue, though, that their claim should be considered a

challenge to the Colorado statute both as applied and

more generally. They rely for this argument on a phrase

from the Feldman case enabling a “general challenge”

to a state statute to survive application of the Rooker-

Feldman doctrine.

Under Feldman, a “general challenge” to the

constitutionality of a statute may remain within a

federal court’s jurisdiction even after application of the

Rooker-Feldman doctrine. Feldman, 460 U.S. at 482-83;

accord Richard H. Fallon, Daniel J. Meltzer, and David

L. Shapiro, Hart and Wechsler’s The Federal Courts

and The Federal System 1502 (4th ed. 1996). The

Feldman Court wrote that there was a distinction

between as-applied challenges to statutes “seeking

review in a federal district court of a state court’s final

judgment in a ... matter” and general challenges

(8a)

“challenging the validity of a state ... rule.” Feldman,

460 US. at 483-84.

It is not clear what general challenge

plaintiffs-appellants may have made to the Colorado

statute aside from their as-applied challenge. They

employed the word “facial” just once in their brief on

appeal in an introductory paragraph and present no

broader argument against the Colorado statute distinct

from the facts of their case as applied.” Although we

do not believe that the McKeels have in fact asserted a

general challenge separate from their challenge to the

statute as applied, we may, nonetheless, easily

determine that any facial claim the McKeels may have

asserted would be barred by the “inextricably

intertwined” test. Federal courts may not hear claims

raised in the same suit as an issue barred by Rooker-

Feldman if the claims are “inextricably intertwined”

with the state court judgment. Kenmen, 314 F.3d at

475 (citing Feldman, 460 U.S. at 483 n.16).

A claim asserted in federal court is barred as

“inextricably intertwined” with the state court judgment

in which the case is rooted unless it falls into one of two

categories. The first category consists of cases in which

5 Traditionally, a party argued in an as-applied

challenge that “a statute cannot be applied to her

because its application would violate her personal

constitutional rights.” Richard H. Fallon, As-Applied

and Facial Challenges and Third-Party Standing, 113

Harv. L. Rev. 1321, 1321 (2000). By contrast, a “facial”

attack asserted that “a statute is more generally invalid”

and should be struck down in all its applications. /d.; id.

at 1326.

(9a)

“the party does not request that the federal court upset a

prior state-court judgment applying [the contested] law

against the party, and ... the prior state-court judgment

did not actually decide that the state law at issue was

facially constitutional.” Kenmen, 314 F.3d at 476

(citations and emphasis omitted). The second category

consists of cases in which “a party may challenge state

procedures for enforcement of a judgment [ ] where

consideration of the underlying state-court decision is not

required.” Id. (citation omitted).

The McKeels’ prayer on appeal was that we

declare the Colorado statute to be unconstitutional,

thereby rendering the state’s previous termination

proceedings “null and void” and “restor[ing]” the Baby

Girl to them, or, in the alternative, granting a “jury trial

[on] the subject termination proceedings.” The McKeels’

claim thus falls into neither of the two categories that

might exempt it from being barred under the

“inextricably intertwined” test for the Rooker-Feldman

doctrine. Under the first category, the McKeels

specifically request that the federal courts upset a prior

state-court judgment applying Colorado’s parental

termination law against them. The McKeels’ claim fails

under the second category because we would be forced to

consider the underlying Colorado state court judgment if

we were to declare it “null and void” for the Baby Girl to

be returned to the McKeels or for the McKeels to receive

a new trial on the termination of their parental rights.

Thus, even if the plaintiffs-appellants are raising a facial

challenge, under the standard of the inextricably

intertwined test for separate claims, no claim survives

application of the Rooker-Feldman doctrine’s bar on

federal court jurisdiction.

(10a)

CONCLUSION

Accordingly, we hold that the Rooker-Feldman

doctrine bars the McKeels’ case from federal court and

DISMISS the case for lack of jurisdiction.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

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sl flat AZS DE Tate a A: TO IIS bd Nara Oe intcm

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLORADO

Senior Judge Zita L. Weinshienk

Civil Action No. 02-Z-104 (MJW)

JOLENE MCKEEL and GERALD MCKEEL, Plaintiffs,

V.

THE STATE OF COLORADO,

Defendant,

ORDER OF DISMISSAL AND JUDGEMENT

(Filed June 3, 2002)

This matter was before the Court on May 2, 2002,

for oral argument on defendant's Motion To Dismiss. The

Court heard the arguments and statements of counsel, and

made oral conclusions of law which are incorporated

herein by reference as if fully set forth. Accordingly, it is

ORDERED that defendant's Motion To Dismiss is

granted. It is

FURTHER ORDERED that the Complaint and

cause of action are dismissed. It is

FURTHER ORDERED that the parties shall bear

their own costs.

DATED at Denver, Colorado, this 3 day of June, 2002,

nunc pro tunc May 2, 2002.

(1b)

(2b)

BY THE COURT:

/s/ Zita L. Weinshienk

ZITA L. WEINSHIENK, Senior Judge

United States District Court

* * *

RULING

[18] THE COURT: Well, there is many questions that

| have about this case. For example, why on earth did plaintiff

wait [19] so long to file an action? I know that the attorney is

new, so he may not know the answer to this. Why wasn't this

case brought in the state court, rather than the Federal Court, so

that it could be challenged under the Colorado Constitution as

well as Federal, and the various interests of the best interests of

the child, which are properly examined by state judges and not

by Federal judges?

In any case, this court is going to grant the motion to

dismiss. I know of no case law which supports any finding that

Colorado Revised Statute 19-3-602(4) is in violation of the

Federal Constitution. That's the statute which says there shall be

no right to a jury trial at proceedings held to consider the

termination of parent/child legal relations.

As pointed out by defendant's attorney bringing this

motion, when parties appear and ask for a jury trial on

dependency and neglect issues, they are well aware that the

remedy can be termination, and they are or should be well

aware of the statute, which says that there is no jury trial for

this second stage, for the remedy.

The second stage, which is a trial to the court, requires a

(3b)

higher burden of proof. It requires clear and convincing

evidence, not preponderance of the evidence. It appears to me

that satisfies due process regardless of who the fact-finder is,

whether it be judge or jury.

There is no law, as I pointed out. Due process is [20]

indeed ensured by the higher standard of proof. We do have the

Supreme Court case, which I think was mentioned in the briefs,

which talks about the higher standard of proof. And I'm referring

to Santosky vs. Kramer, 455 U.S. 745, 1982.

And then, in addition, we have a Wyoming Supreme Court

decision holding that the right to a jury trial in a parental

termination action cannot be characterized as fundamental and

finding that there is no right to a jury trial under their

interpretation of the law in Wyoming. Wyoming is certainly a

close and persuasive jurisdiction to Colorado.

So I wonder whether this issue is really one for the

Colorado legislature. I don't know whether there has been an

attempt made to change the statute. | don't know whether coming

in after all these years and attempting to restore the child to the

plaintiff would be in the best interests of the child. I have no

jurisdiction to consider that. That's a matter for the state courts.

My conclusion after hearing the arguments, after

considering the briefs, after looking at the law and the policy

behind the law, is that the statute in question is not

unconstitutional and that the motion to dismiss must be granted

and this case dismissed.