# Opposition Brief — McKeel v. Colorado

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0710%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1161

## Text

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0710%3A2. Public record. Not legal advice.