in Interest of S.M. & E.M , 2021 COA 64 ( 2021 )

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.
5