in Interest of S.M. & E.M

2021 COA 64

• Court: Colorado Court of Appeals
• Decided: May 11, 2021
• Docket: 20CA1524, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 6, 2021

2021COA64

No. 20CA1524, People in Interest of S.M. & E.M. — Juvenile

Court — Dependency and Neglect — Termination of the Parent-

Child Legal Relationship; Civil Procedure — Relief from

Judgment or Order

A division of the court of appeals concludes, for the first time,

that the proper procedure for addressing an allegation of racial bias

against a judicial officer that becomes known while the case is on

appeal is a limited remand and further proceedings under C.R.C.P.

60(b). COLORADO COURT OF APPEALS 2021COA64

Court of Appeals No. 20CA1524 Arapahoe County District Court No. 19JV563 Honorable Natalie T. Chase, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.M. and E.M., Children,

and Concerning E.R. and M.M.,

Appellant.

ORDER FOR LIMITED REMAND

Division III Opinion by JUDGE FREYRE Furman and Johnson, JJ., concur

Announced May 6, 2021

Ronald A. Carl, City Attorney, Jordan C. Lewis, Assistant City Attorney, Aurora, Colorado, for Appellee

Alison A. Bettenberg, Sheena R. Knight, Guardians Ad Litem

Katayoun A. Donnelly, Office of Respondent Parents’ Counsel, Denver, Colorado, for Respondent-Appellant E.R.

Chelsea A. Carr, Office of Respondent Parents’ Counsel, Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado, for Respondent- Appellant M.M. ¶1 In this direct appeal of a judgment terminating the parental

rights of parents E.R. (father) and M.M. (mother), counsel for father

(by written motion) and counsel for mother (at oral argument and

followed by a written motion, which we grant) request that the

judgment be reversed and that the case be remanded to the juvenile

court for a new termination hearing “before a qualified judicial

officer.” The appellants base their request on the public censure of

Judge Natalie T. Chase, who presided over the proceedings in their

case, and on father’s Hispanic heritage and mother’s ethno-religious

affiliation. See In re Chase, 2021 CO 23, ¶ 7 (concluding Judge

Chase violated C.J.C. 2.3, which prohibits a judge from manifesting

bias or prejudice based on race or ethnicity by word or action).

¶2 The Department and GAL respond that “the conduct of Judge

Chase contained in the public censure may be the basis for a

Motion for Disqualification under C.R.C.P. 97 for violations of

C.J.C. Rule 2.11(A).” But they contend “that any determination

regarding the disqualification of a judicial officer under C.R.C.P. 97

is a fact and case specific determination that must be first raised in

the trial court.” Alternatively, they request the opportunity file

supplemental briefs. Because this issue arose after briefing was

1 complete, but before any opinion issued, we conclude that

supplemental briefing on vacating the termination judgment would

not assist us at this point. Instead, we conclude that the juvenile

court must make findings of facts necessary to resolve the parents’

allegations and that we, as an appellate court, cannot determine

such facts. See Carousel Farms Meteropolitan Dist. v. Woodcrest

Homes, Inc., 2019 CO 51, ¶ 18 (noting that trial courts make factual

findings while appellate courts pronounce law).

¶3 In dependency and neglect cases, the United States Supreme

Court has long recognized that “[b]ecause parents subject to

termination proceedings are often poor, uneducated, or members of

minority groups, such proceedings are often vulnerable to

judgments based on cultural or class bias.” Santosky v. Kramer,

455 U.S. 745, 763 (1982) (citation omitted); see also Kathryn L.

Mercer, A Content Analysis of Judicial Decision-Making - How

Judges Use the Primary Caretaker Standard to Make a Custody

Determination, 5 Wm. & Mary J. Women & L. 1, 69 (1998) (“Studies

reviewing how judges decide abuse and neglect terminations of

parental rights find that racial and ethnic biases may influence a

judge’s decision.”).

2 ¶4 In Chase, ¶ 2, the judge and the Colorado Commission on

Judicial Discipline filed a stipulated resolution. In the stipulated

resolution, the judge agreed with the Commission’s facts and

conclusions that various statements the judge made on and off the

bench had, among other things, “a significant negative effect on the

public’s confidence in[,] integrity of[,] and respect for the judiciary,”

and that the judge had “violated Canon Rule 2.3, which prohibits a

judge from manifesting bias or prejudice based on race or ethnicity

by word or action.” Id. at ¶ 3. The supreme court concluded that

the stipulated resolution was supported by the record of the

proceedings, publicly censured the judge, and accepted her

resignation effective in forty-five days. Id. at ¶ 7.

¶5 Father and mother contend that Judge Chase’s decision to

terminate their parental rights “can best be explained in light of the

foregoing.” Because these contentions may provide a basis for relief

from judgment, father and mother should raise them in a C.R.C.P.

60(b) motion in the juvenile court and obtain a ruling from a

judicial officer other than Judge Chase, to avoid any appearance of

partiality, subject to further review in this court.

3 ¶6 Accordingly, we deny parents’ request to reverse the

termination judgment, but we grant their request for a limited

remand. On limited remand, parents must file their motions for

relief from judgment, and a juvenile court judge, other than Judge

Chase, shall conduct further proceedings relevant to the allegations

raised in the C.R.C.P. 60(b) motion and enter findings of fact and

conclusions of law.

¶7 The case is remanded to the juvenile court for the limited

purpose of hearing and ruling upon the C.R.C.P. 60(b) motions,

which shall be done with all due speed.

¶8 After the motion has been resolved, parents must immediately

forward a certified copy of the district court’s order to this court,

and the case will be recertified. The order entered will be made a

part of the record on appeal. A supplemental record, consisting of

the juvenile court record created on remand, including the juvenile

court’s order, is due fourteen days after recertification. If any party

wishes to supplement the record with transcripts of any hearings

that occurred on remand, that party shall file a supplemental

designation of transcripts with the juvenile court and this court

within seven days of recertification. If supplemental transcripts are

4 designated, the complete supplemental record, including the court

record will be due twenty-one days after the filing of the

supplemental designation of transcripts.

¶9 Within fourteen days of the filing of the supplemental record,

the parents, Department, and GAL may file supplemental briefs,

each not to exceed 3,500 words, limited to addressing the juvenile

court’s findings and conclusions on remand. Within fourteen days

of any supplemental brief by a parent, any other party may file a

supplemental response brief not to exceed 3500 words.

¶ 10 It is further ordered that parents must notify this court in

writing of the status of the juvenile court proceedings if this matter

is not concluded within twenty-eight days from the date of this

order, and that the parents must do so every twenty-eight days

thereafter until the juvenile court rules on the motion.

JUDGE FURMAN and JUDGE JOHNSON concur.